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EXHIBIT 10(a)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
PURCHASE AND SALE AGREEMENT
BETWEEN
EML ASSOCIATES
a New York general partnership
AS SELLER
AND
THE ▇▇▇▇▇▇▇▇▇▇ COMPANY, L.P., a
Delaware limited partnership
AS PURCHASER
As of April 21, 1999
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as
of the 21st day of April, 1999 (the "Effective Date"), by and between EML
ASSOCIATES, a New York general partnership ( "Seller" ), having an office at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and THE ▇▇▇▇▇▇▇▇▇▇
COMPANY, L.P., a Delaware limited partnership ("Purchaser"), having an office at
4100 One Commerce Square, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
WITNESSETH:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(a) that certain tract or parcel of land situated in
Wilmington, New Castle County, Delaware, more particularly described on Exhibit
A attached hereto and made a part hereof, together with all and singular the
rights and appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or rights-of-way (the
property described in clause (a) of this Section 1. 1 being herein referred to
collectively as the "Land");
(b) the buildings, structures, fixtures and other
improvements on the Land, including specifically, without limitation, that
certain office building located thereon having a street address of ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ (the property described in clause (b) of this Section 1.1 being herein
referred to collectively as the "Improvements");
(c) all of Seller's right, title and interest in and to
all tangible personal property upon the Land or within the Improvements,
including specifically, without limitation, appliances, furniture, carpeting,
draperies and curtains, tools and supplies, and other items of personal property
(excluding cash) used exclusively in connection with the operation of the Land
and the Improvements and only as specifically described on Exhibit B attached
hereto and made a part hereof (the property described in clause (c) of this
Section 1.1 being herein referred to collectively as the "Personal Property");
(d) all of Seller's right, title and interest in and to
all agreements listed and described on Exhibit C (the "Lease Schedule") attached
hereto and made a part hereof, pursuant to which any portion of the Land or
Improvements is used or occupied by anyone other than Seller (the property
described in clause (d) of this Section 1.1 being herein referred to
collectively as the "Leases"); and
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(e) all of Seller's right, title and interest in and to
(i) all assignable contracts and agreements (collectively, the "Operating
Agreements") listed and described on Exhibit D (the "Operating Agreements
Schedule") attached hereto and made a part hereof, relating to the upkeep,
repair, maintenance or operation of the Land, Improvements or Personal Property
which will extend beyond the date of Closing (as such term is defined in Section
4.1 hereof), including specifically, without limitation, all assignable
equipment leases, and (ii) all assignable existing warranties and guaranties
(expressed or implied) issued to Seller in connection with the Improvements or
the Personal Property (the property described in this Section 1. 1 (e) being
sometimes herein referred to collectively as the "Intangibles").
1.2 Property Defined. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "Property."
1.3. Permitted Exceptions. The Property shall be conveyed
subject to the matters which are, or are deemed to be, Permitted Exceptions
pursuant to Article II hereof (herein referred to collectively as the "Permitted
Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to
purchase the Property for a total of EIGHT MILLION SEVEN HUNDRED FIFTY THOUSAND
AND 00/100 DOLLARS ($8,750,000.00) (the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price, as
increased or decreased by prorations and adjustments as herein provided, shall
be payable in full at Closing in cash by wire transfer of immediately available
federal funds to a bank account designated by Seller in writing to Purchaser
prior to the Closing.
1.6 ▇▇▇▇▇▇▇ Money.
(a) Simultaneously with the execution and delivery of this
Agreement, Purchaser is depositing with Chicago Title Insurance Company ("Escrow
Agent"), having an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the sum of Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00) (the "First Deposit") in good funds,
either by certified bank or cashier's check or by federal wire transfer. If
Purchaser does not exercise the right to terminate this Agreement in accordance
with Section 2.3 or Section 3.2 hereof, Purchaser shall, on or before the last
date of the Inspection Period (as such term is defined in Section 3.1 hereof),
deposit with the Escrow Agent the additional sum of Two Hundred Fifty Thousand
and No/100 Dollars ($250,000) (the "Second Deposit") in good funds, either by
certified bank or cashier's check or by federal wire transfer as an additional
deposit under this Agreement. Escrow Agent shall hold the First Deposit and
Second Deposit in an interest-bearing account in accordance with the terms and
conditions of an escrow agreement entered into among Seller, Purchaser and
Escrow Agent simultaneously with
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the execution of this Agreement. The First Deposit and Second Deposit, together
with all interest earned on such sums, are herein referred to collectively as
the "▇▇▇▇▇▇ Money." All interest accruing on such sum shall become a part of the
▇▇▇▇▇▇▇ Money and shall be distributed as ▇▇▇▇▇▇▇ Money in accordance with the
terms of this Agreement.
(b) If Purchaser does not exercise its termination rights
under Sections 2.3 and 3.2 and Purchaser fails to deliver the Second Deposit to
the Escrow Agent within the time period specified above, this Agreement shall
terminate automatically on the last day of the Inspection Period, Escrow Agent
shall deliver the ▇▇▇▇▇▇▇ Money to Seller promptly thereafter and neither party
shall have any further rights, obligations or liabilities hereunder except to
the extent that any right, obligation or liability set forth herein expressly
survives termination of this Agreement. Time is of the essence for the delivery
of ▇▇▇▇▇▇▇ Money under this Agreement.
1.7 Independent Contract Consideration. In addition to the
▇▇▇▇▇▇▇ Money, Purchaser shall, concurrently with its execution hereof, deliver
to Seller a check in the amount of ONE HUNDRED DOLLARS AND NO/100 ($100.00),
which amount Seller and Purchaser agree has been bargained for as consideration
for Seller's execution and delivery of this Agreement and Purchaser's right to
inspect the Property pursuant to Article III. Such sum is in addition to and
independent of any other consideration or payment provided for in this Agreement
and is nonrefundable in all events.
ARTICLE II
TITLE AND SURVEY
2.1 Title Examination, Commitment for Title insurance.
Purchaser shall obtain, at Purchaser's expense, and shall deliver to Seller and
the surveyor preparing the Survey, from a nationally recognized title insurance
company selected by Purchaser (the "Title Company"), an ALTA title insurance
commitment (the "Title Commitment") covering the Property and a copy of each
document referenced in the Title Commitment as an exception to title the
Property. Purchaser shall have until the date (the "Title Exam Deadline"), which
is 10 days prior to the expiration of the Inspection Period (defined in Section
3.1 hereof) to review the Title Commitment and at Closing, at Purchaser's
expense, obtain from the Title Company an Owner's Policy of Title Insurance in
the full amount of the Purchase Price pursuant to Section 2.4 hereof.
2.2 Survey. Seller has obtained and delivered to Purchaser
prior to the date hereof from a surveyor or surveying firm licensed by the state
in which the Property is located, an ALTA survey of the Property (the "Survey")
reflecting the total area of the Property, the location of all improvements,
recorded easements and encroachments, if any, located thereon and other
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matters of record with respect thereto. If Closing is completed, Purchaser shall
reimburse Seller at Closing for the cost of the Survey in the amount of the
invoice previously delivered by Seller to Purchaser.
2.3 Title Objections: Cure of Title Objections.
(a) Purchaser shall have until the Title Exam Deadline to
notify Seller in writing of such objections as Purchaser may have to any
exceptions to title disclosed in the Title Commitment or the Survey. Any item
contained in the Title Commitment or matter shown on the Survey to which
Purchaser does not object prior to the Title Exam Deadline by timely written
notice shall be deemed a Permitted Exception. Time is of the essence with
respect to the provisions of this Section 2.3.
(b) In the event Purchaser shall notify Seller of
objections to title or matter of survey shown on the Survey prior to the Title
Exam Deadline, Seller shall have the right, but not the obligation, to cure such
objections. Within ten (10) days after receipt of Purchaser's notice of
objections, Seller shall notify Purchaser in writing whether Seller elects to
attempt to cure such objections. If Seller elects to attempt to cure, and
provided that Purchaser shall not have terminated this Agreement in accordance
with Section 3.2 hereof, Seller shall have until the date of Closing to attempt
to remove, satisfy or cure the same and for this purpose Seller shall be
entitled to a reasonable adjournment of the Closing if additional time is
required, but in no event shall the adjournment exceed thirty (30) days after
the date for Closing set forth in Section 4.1 hereof. If Seller elects not to
cure any objections specified in Purchaser's notice, or if Seller is unable to
effect a cure prior to the Closing (or any date to which the Closing has been
adjourned), Purchaser shall have the following options: (i) to accept a
conveyance of the Property subject to the Permitted Exceptions, specifically
including any matter objected to by Purchaser which Seller is unwilling or
unable to cure, and without reduction of the Purchase Price; or (ii) to
terminate this Agreement by sending written notice thereof to Seller, and upon
delivery of such notice of termination, this Agreement shall terminate and the
▇▇▇▇▇▇▇ Money shall be returned to Purchaser as Purchaser's sole remedy; and
thereafter neither party hereto shall have any further rights, obligations or
liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement. If
Seller notices Purchaser that Seller does not intend to attempt to cure any
title objection; or if, having commenced attempts to cure any objection, Seller
later notifies Purchaser that Seller will be unable to effect a cure thereof,
Purchaser shall, within ten (10) days after such notice has been given, notify
Seller in writing whether Purchaser shall elect to accept the conveyance under
clause (i) or to terminate this Agreement under clause (ii). If Purchaser fails
to give timely notice of its election to terminate this Agreement, Purchaser
shall be deemed to have elected to accept title subject to such exception
without adjustment of the Purchase Price.
2.4 Conveyance of Title. At Closing, Seller shall convey and
transfer to Purchaser such title to the Property as will enable the Title
Company to issue to Purchaser, at
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Purchaser's expense, an ALTA 1992 Owner's Policy of Title Insurance (the "Title
Policy") covering the Property, in the full amount of the Purchase Price,
provided, however, Purchaser agrees to accept title to the Property subject to
judgments and unsettled taxes against Seller provided the Title Company insures
Purchaser free of such judgments and unsettled taxes. Notwithstanding anything
contained herein to the contrary, the Property shall be conveyed subject to the
following matters, which shall be deemed to be Permitted Exceptions:
(a) the rights of tenants, as tenants only, under the
Leases and any new Leases entered into between the Effective Date and Closing
and, where required, approved by Purchaser in accordance with the terms of this
Agreement;
(b) the lien of all ad valorem real estate taxes and
assessments not yet due and payable as of the date of Closing, subject to
adjustment as herein provided;
(c) local, state and federal laws, ordinances or
governmental regulations, including but not limited to, building and zoning
laws, ordinances and regulations, now or hereafter in effect relating to the
Property;
(d) items appearing of record or shown on the Survey and,
in either case, not objected to by Purchaser or waived or deemed to be waived by
Purchaser in accordance with Sections 2.3 or 2.5 hereof; and
(e) any and all assessments becoming liens subsequent to
the date hereof, and in addition if at the date hereof the Property or any part
thereof shall be or shall have been affected by any assessment or assessments
which are payable in installments or may be paid in installments without penalty
(other than interest), Purchaser shall pay all such installments which shall
become due and payable or which may be paid without penalty (other than
interest) after the date hereof, except that any installment relating to the
current fiscal year (with any interest thereon) shall be apportioned between the
parties at Closing.
2.5 Pre-Closing "Gap" Title Defects. Whether or not Purchaser
shall have furnished to Seller any notice of title objections pursuant to the
foregoing provisions of this Agreement, Purchaser may, at or prior to Closing,
notify Seller in writing of any objections to title first raised by the Title
Company or the Surveyor between (a) the date which is the earlier of (i) the
effective date of Purchaser's Title Commitment referred to above or (ii) the
expiration of the Inspection Period, and (b) the date on which the transaction
contemplated herein is scheduled to close. With respect to any material
objections to title set forth in such notice, Seller shall have the same option
to cure and Purchaser shall have the same option to accept title subject to such
matters or to terminate this Agreement as those which apply to any notice of
objections made by Purchaser before the expiration of the Inspection Period. If
Seller elects to attempt to cure any such matters, the date for Closing shall be
automatically extended by a
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reasonable additional time to effect such a cure, but in no event shall the
extension exceed thirty (30) days after the date for Closing set forth in
Section 4.1 hereof.
ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the
Effective Date and ending at 5:00 p.m. (local time at the Property) June 4, 1999
(hereinafter referred to as the "Inspection Period"), Purchaser shall have the
right to make a physical inspection of the Property and to examine and copy at
such place or places at the Property, in the offices of the property manager or
elsewhere as the same may be located, any operating files maintained by Seller
or its property manager in connection with the leasing, current maintenance
and/or management of the Property, including, without limitation, the Leases,
lease files, Operating Agreements, insurance policies, bills, invoices, receipts
and other general records relating to the income and expenses of the Property,
correspondence, surveys, plans and specifications, warranties for services and
materials provided to the Property, environmental audits and similar materials,
but excluding materials not directly related to the leasing, current maintenance
and/or management of the Property such as, without limitation, Seller's internal
memoranda, financial projections, budgets, appraisals, accounting and tax
records and similar proprietary, elective or confidential information. Purchaser
understands and agrees that any on-site inspections of the Property shall be
conducted upon at least twenty-four (24) hours' prior written notice to Seller
and in the presence of Seller or its representative. Such physical inspection
shall not unreasonably interfere with the use of the Property by Seller or its
tenants nor shall Purchaser's inspection damage the Property in any respect.
Such physical inspection shall not be invasive in any respect (unless Purchaser
obtains Seller's prior written consent), and in any event shall be conducted in
accordance with standards customarily employed in the industry and in compliance
with all governmental laws, rules and regulations. Following each entry by
Purchaser with respect to inspections and/or tests on the Property. Purchaser
shall restore the Property to a condition which is as near to its original
condition as existed prior to any such inspections and/or tests. Seller shall
cooperate with Purchaser in its due diligence but shall not be obligated to
incur any liability or expense in connection therewith. Purchaser shall not
contact any tenants of the Property without obtaining Seller's prior written
consent and shall not disrupt Seller's or Seller's tenants' activities on the
Property. Purchaser agrees to indemnify against and hold Seller harmless from
any claim for liabilities, costs, expenses (including reasonable attorneys' fees
actually incurred) damages or injuries arising out of or resulting from the
inspection of the Property by Purchaser or its agents, and notwithstanding
anything to the contrary in this Agreement, such obligation to indemnify and
hold harmless Seller shall survive Closing or any termination of this Agreement.
In respect of the inspections, examinations and general due diligence
contemplated by this Section 3.1, Seller acknowledges and agrees to the
following: (a) that Purchaser will be permitted to conduct its inspections of
the Property and its examinations of the operating and other files, documents
and materials related to the Property as contemplated by this Agreement, all on
reasonable notice to Seller and accompanied by a representative of Seller
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as set forth herein, such to be conducted on business days and at times
reasonably required by Purchaser; and (b) that Purchaser will be permitted to
contact, acting through Seller but not Purchaser directly, and attempt to secure
through Seller estoppel certificates from, leasing brokers and vendors,
contractors or other service providers under the Operating Agreements. Seller
shall cooperate with Purchaser, in making available to Purchaser the items
Purchaser has identified on Schedule 3.1 attached hereto excluding only items
specifically excluded above in this Section 3.1.
3.2 Right of Termination. Seller agrees that in the event
Purchaser determines (such determination to be made in Purchaser's sole
discretion) that the Property is not suitable for its purposes, Purchaser shall
have the right to terminate this Agreement by giving written notice thereof to
Seller prior to the expiration of the Inspection Period. If Purchaser gives such
notice of termination within the Inspection Period, this Agreement shall
terminate and the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser. Time is of the
essence with respect to the provisions of this Section 3.2. If Purchaser fails
to give Seller a notice of termination prior to the expiration of the Inspection
Period, Purchaser shall no longer have any right to terminate this Agreement
under this Section 3.2 and (subject to the provisions of Section 2.5) shall be
bound to proceed to Closing and consummate the transaction contemplated hereby
pursuant to the terms of this Agreement.
3.3 No Liens Permitted. Nothing contained in this Agreement
shall be deemed or construed in any way as constituting the consent or request
of Seller, express or implied by inference or otherwise, to any party for the
performance of any labor or the furnishing of any materials to the Property or
any part thereof, nor as giving Purchaser any right, power or authority to
contract for or permit the rendering of any services or the furnishing of any
materials that would give rise to the filing of any liens against the Property
or any part thereof. Prior to permitting any party to enter the Property prior
to closing for the purpose of performing any services or supplying any materials
for which such party could claim a mechanic's lien against the Property or any
part thereof, Purchaser shall cause to be filed in the applicable public filing
office, a waiver of mechanic's liens in form satisfactory to Seller by each of
the parties performing such work.
ARTICLE IV
CLOSING
4.1 Time and Place. The consummation of the transaction
contemplated hereby ("Closing") shall be held at the offices of Wolf, Block,
▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ at 10:00 a.m. on July 7, 1999 or at such earlier date as Seller and
Purchaser may mutually agree upon in writing. At Closing, Seller and
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Purchaser shall perform the obligations set forth in, respectively, Section 4.2
and Section 4.3, the performance of which obligations shall be concurrent
conditions.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed special warranty
deed the form of which is attached as Schedule 1 (the "Deed") in recordable
form, conveying the Land and Improvements, subject only to the Permitted
Exceptions; the warranty of title in the Deed will be only as to claims made by,
through or under Seller and not otherwise;
(b) deliver to Purchaser a duly executed ▇▇▇▇ of sale the
form of which is attached hereto as Schedule 2, conveying the Personal Property
without warranty of title or use and without warranty, expressed or implied, as
to merchantability and fitness for any purpose;
(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases by duly executed assignment and
assumption agreement the form of which is attached hereto as Schedule 3,
pursuant to which (i) Seller shall indemnify Purchaser and hold Purchaser
harmless from and against any and all claims pertaining to the Leases arising
prior to Closing and (ii) Purchaser shall indemnify Seller and hold Seller
harmless from and against any and all claims pertaining to the Leases arising
from and after the Closing, including without limitation, claims made by tenants
with respect to tenants' security deposits to the extent paid, credited or
assigned to Purchaser;
(d) to the extent assignable, assign to Purchaser, and
Purchaser shall assume, Seller's interest in the Operating Agreements and the
other Intangibles by duly executed assignment and assumption agreement pursuant
to which (i) Seller shall indemnify Purchaser and hold Purchaser harmless from
and against any and all claims pertaining to the Operating Agreements or the
other Intangibles arising prior to Closing and (ii) Purchaser shall indemnify
Seller and hold Seller harmless from and against any and all claims pertaining
to the Operating Agreements or the other Intangibles arising from and after the
Closing;
(e) deliver to Purchaser such Tenant Estoppels (as defined
in Section 5.4(b) hereof) as are in Seller's possession;
(f) join with Purchaser to execute a notice in the form
attached hereto as Schedule 4, which Purchaser shall send to each tenant under
each of the Leases informing such tenant of the sale of the Property and of the
assignment to Purchaser of Seller's interest in, and obligations under, the
Leases (including, if applicable, Purchaser's assumption of Seller's obligations
with respect to any security deposits) and directing that all rent and other
sums payable after the Closing under each such Lease shall be paid as set forth
in the notice;
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(g) deliver to Purchaser a certificate the form of which
is attached hereto as Schedule 3, dated as of the date of Closing and executed
on behalf of Seller by a duly authorized officer thereof, stating that the
representations and warranties of Seller contained in this Agreement are true
and correct in all material respects as of the date of Closing (with appropriate
modifications of those representations and warranties made in Section 5.1 hereof
to reflect any changes therein including, without limitation, any changes
resulting from actions under Section 5.4 hereof) or identifying any
representation or warranty which is not, or no longer is, true and correct and
explaining the state of facts giving rise to the change. In no event shall
Seller be liable to Purchaser for, or be deemed to be in default hereunder by
reason of, any breach of representation or warranty which results from any
change that (i) occurs between the Effective Date and the date of Closing and
(ii) is expressly permitted under the terms of this Agreement or is beyond the
reasonable control of Seller to prevent; provided, however, that the occurrence
of a change which is not permitted hereunder or is beyond the reasonable control
of Seller to prevent shall, if materially adverse to Purchaser, constitute the
non-fulfillment of the condition set forth in Section 4.6(b); if, despite
changes or other matters described in such certificate, the Closing occurs,
Seller's representations and warranties set forth in this Agreement shall be
deemed to have been modified by all statements made in such certificate;
(h) deliver to Purchaser such evidence as Purchaser's
counsel and/or the Title Company may reasonably require as to the authority of
the person or persons executing documents on behalf of Seller;
(i) deliver to Purchaser an affidavit in the form attached
hereto as Schedule 6, duly executed by Seller stating that Seller is not a
"foreign person" as defined in the Federal Foreign Investment in Real Property
Tax Act of 1980 and the 1984 Tax Reform Act;
(j) deliver to Purchaser the Leases, Operating Agreements
and licenses and permits, if any, in the possession of Seller or Seller's
agents, together with such leasing and property files and records which are
material in connection with the continued operation, leasing and maintenance of
the Property and together with the items of property identified on Exhibit B
hereto. Purchaser shall cooperate with Seller for a period of seven (7) years
after Closing in case of Seller's need in response to any legal requirement, a
tax audit, tax return preparation or litigation threatened or brought against
Seller, by allowing Seller and its agents or representatives access, upon
reasonable advance notice (which notice shall identify the nature of the
information sought by Seller), at all reasonable times to examine and make
copies of any and all instruments, files and records, which right shall survive
the Closing;
(k) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions; and
(1) deliver such additional documents as shall be
reasonably required to consummate the transaction contemplated by this
Agreement.
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4.3 Purchaser's Obligations at Closing. At Closing, Purchaser
shall:
(a) pay to Seller the full amount of the Purchase Price,
as increased or decreased by prorations and adjustments as herein provided, in
immediately available wire transferred funds pursuant to Section 1.5 above, it
being agreed that at Closing the ▇▇▇▇▇▇▇ Money shall be delivered to Seller and
applied towards payment of the Purchase Price;
(b) join Seller in execution of the instruments described
in Sections 4.2(c), 4.2(d), and 4.2(f) above;
(c) deliver to Seller a letter duly executed by Purchaser
in the form attached hereto as Schedule 7, confirming that Purchaser is not
acquiring the Property in whole or part with the assets of an employee benefit
plan (an "Employee Benefit Plan") as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and, in the event
Purchaser is unable or unwilling to make such a representation, Purchaser shall
be deemed to be in default hereunder, and Seller shall have the right to
terminate this Agreement and to receive and retain the ▇▇▇▇▇▇▇ Money;
(d) deliver to Seller such evidence as Seller's counsel
and/or the Title Company may reasonably require as to the authority of the
person or persons executing documents on behalf of Purchaser; and
(e) deliver such additional documents as shall be
reasonably required to consummate the transaction contemplated by this
Agreement.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the
Property as of 12:01 a.m., on the day of Closing, as if Purchaser were vested
with title to the Property during the entire day upon which Closing occurs:
(i) rents, if any, as and when collected (the term
"rents" as used in this Agreement includes all payments due and payable by
tenants under the Leases);
(ii) taxes (including personal property taxes on the
Personal Property) and assessments levied against the Property;
(iii) payments under the Operating Agreements;
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(iv) gas, electricity and other utility charges for
which Seller is liable, if any, such charges to be apportioned at Closing on the
basis of the most recent meter reading occurring prior to Closing; and
(v) any other operating expenses or other items
pertaining to the Property which are customarily prorated between a purchaser
and a seller in the area in which the Property is located.
(b) Notwithstanding anything contained in the foregoing
provisions:
(i) At Closing, Seller shall, at Seller's option,
either deliver to Purchaser any security deposits actually held by Seller
pursuant to the Leases or credit to the account of Purchaser the amount of such
security deposits (to the extent such security deposits are not applied against
delinquent rents or otherwise as provided in the Leases). All refundable cash or
other deposits posted with utility companies serving the Property shall belong
to Seller and Seller shall be entitled to receive and retain the same directly
from the applicable utility companies.
(ii) Any ad valorem real estate taxes, charges and
assessments paid at or prior to Closing shall be prorated and apportioned
between Seller and Purchaser at Closing on a per diem, and on the basis of the
fiscal year of the authority or other person levying the same. If taxes and
assessments for the current year have not been paid before Closing, Seller shall
be charged at Closing an amount equal to that portion of such taxes and
assessments which relates to the period before Closing and Purchaser shall pay
the taxes and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate or assessed
valuation, or both, have not yet been fixed shall be based upon the tax rate
and/or assessed valuation last fixed. To the extent that the actual taxes and
assessments for the current year differ from the amount apportioned at Closing,
the parties shall make all necessary adjustments by appropriate payments between
themselves following Closing.
(iii) Charges referred to in Section 4.4(a) above which
are payable by any tenant to a third party shall not be apportioned hereunder,
and Purchaser shall accept title subject to any of such charges unpaid and
Purchaser shall look solely to the tenant responsible therefor for the payment
of the same. If Seller shall have paid any of such charges on behalf of any
tenant, and shall not have been reimbursed therefor by the time of Closing,
Purchaser shall remit to Seller all such charges so paid by Seller upon
Purchaser's receipt thereof from the applicable tenant(s).
(iv) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any taxes, water rates or sewer rents.
Purchaser shall not be responsible for any penalties or interest which accrue on
delinquent taxes or such rents.
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(v) As to gas, electricity and other utility charges
referred to in Section 4.4(a)(iv) above, Seller may on notice to Purchaser elect
to pay one or more of all of said items accrued to the date hereinabove fixed
for apportionment directly to the person or entity entitled thereto, and to the
extent Seller so elects, such item shall not be apportioned hereunder, and
Seller's obligation to pay such item directly in such case shall survive the
Closing.
(vi) The Personal Property is included in this sale,
without further charge. Purchaser shall pay to Seller the amount of any and all
sales or similar taxes payable in connection with the Personal Property and
Purchaser shall execute and deliver any tax returns required of it in connection
therewith, said obligations of Purchaser to survive Closing.
(vii) Purchaser shall be responsible for the payment of
(A) all Tenant Inducement Costs (as hereinafter defined) and leasing commissions
which become due and payable (whether before or after Closing) (1) as a result
of any renewals or expansions of existing Leases, approved or deemed approved in
accordance with Section 5.4 hereof, between the Effective Date and the date of
Closing, and (2) under any new Leases, approved or deemed approved in accordance
with Section 5.4 hereof, entered into between the Effective Date and the date of
Closing, and (B) all Tenant Inducement Costs and leasing commissions which
become due and payable from and after the date of Closing. If, as of the date of
Closing, Seller shall have paid any Tenant Inducement Costs or leasing
commissions for which Purchaser is responsible pursuant to the foregoing
provisions, Purchaser shall reimburse Seller therefor at Closing. For purposes
hereof, the term "Tenant Inducement Costs" shall mean any out-of-pocket payments
required under a Lease to be paid by the landlord thereunder to or for the
benefit of the tenant thereunder which is in the nature of a tenant inducement,
including specifically, without limitation, tenant improvement costs, lease
buyout costs, and moving, design, refurbishment and club membership allowances.
The term "Tenant Inducement Costs" shall not include loss of income resulting
from any free rental period, it being agreed that Seller shall bear the loss
resulting from any free rental period until the date of Closing and that
Purchaser shall bear such loss from and after the date of Closing.
(viii) Unpaid and delinquent rent collected by Seller
and Purchaser after the date of Closing shall be delivered as follows: (a) if
Seller collects any unpaid or delinquent rent for the Property, Seller shall,
within fifteen (15) days after the receipt thereof, deliver to Purchaser any
such rent which Purchaser is entitled to hereunder relating to the date of
Closing and any period thereafter, and (b) if Purchaser collects any unpaid or
delinquent rent from the Property, Purchaser shall, within fifteen (15) days
after the receipt thereof, deliver to Seller any such rent which Seller is
entitled to hereunder relating to the period prior to the date of Closing.
Seller and Purchaser agree that (i) all rent received by Seller or Purchaser
within the first thirty (30) day period after the date of Closing shall be
applied first to delinquent rentals, if any, in the order of their maturity, and
then to current rentals, and (ii) all rent received by Seller or Purchaser after
the first thirty (30) day period after the date of Closing shall be applied
first to current rentals and then to delinquent rentals, if any, in inverse
order of maturity. Purchaser will
14
make a good faith effort after Closing to collect all rents in the usual course
of Purchaser's operation of the Property, but Purchaser will not be obligated to
institute any lawsuit or other collection procedures to collect delinquent
rents. In the event that there shall be any rents or other charges under any
Leases which, although relating to a period prior to Closing, do not become due
and payable until after Closing or are paid prior to Closing but are subject to
adjustment after Closing (such as year end common area expense reimbursements
and the like), then any rents or charges of such type received by Purchaser or
its agents or Seller or its agents subsequent to Closing shall, to the extent
applicable to a period extending through the Closing, be prorated between Seller
and Purchaser as of Closing and Seller's portion thereof shall be remitted
promptly to Seller by Purchaser.
(c) The provisions of this Section 4.4 shall survive
Closing.
4.5 Closing Costs. Seller shall pay (a) the fees of any
counsel representing it in connection with this transaction; (b) one-half (1/2)
of any transfer tax, documentary stamp tax or similar tax which becomes payable
by reason of the transfer of the Property; and (c) one-half (1/2) of any escrow
fee which may be charged by the Escrow Agent or Title Company. Purchaser shall
pay (u) the fees of any counsel representing Purchaser in connection with this
transaction; (v) the fee for the title examination and the Title Commitment and
the premium for the Owner's Policy of Title Insurance to be issued to Purchaser
by the Title Company at Closing; (w) the cost of the Survey; (x) the fees for
recording the deed conveying the Property to Purchaser; (y) one-half (1/2) of
any transfer tax, documentary stamp tax or similar tax which becomes payable by
reason of the transfer of the Property; and (z) one-half (1/2) of any escrow
fees charged by the Escrow Agent or Title Company. All other costs and expenses
incident to this transaction and the closing thereof shall be paid by the party
incurring same.
4.6 Conditions Precedent to Obligation of Purchaser. The
obligation of Purchaser to consummate the transaction hereunder shall be subject
to the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Purchaser in its sole
discretion:
(a) Seller shall have delivered to Purchaser all of the
items required to be delivered to Purchaser pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section 4.2.
(b) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing (with appropriate modifications permitted under this
Agreement or not adverse to Purchaser).
(c) Seller shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Seller as of the date of Closing.
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4.7 Conditions Precedent to Obligation of Seller. The
obligation of Seller to consummate the transaction hereunder shall be subject to
the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as
adjusted pursuant to and payable in the manner provided for in this Agreement.
(b) Purchaser shall have delivered to Seller all of the
items required to be delivered to Seller pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section 4.3.
(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing.
(d) Purchaser shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Purchaser as of the date of Closing.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby
makes the following representations and warranties to Purchaser as of the
Effective Date:
(a) Organization and Authority. Seller has been duly
organized and is validly existing under the laws of New York. Seller has the
full right and authority to enter into this Agreement and, subject to the
provisions of Section 10.6 hereof, to transfer all of the Property to be
conveyed by Seller pursuant hereto and to consummate or cause to be consummated
the transactions contemplated herein to be made by Seller. The person signing
this Agreement on behalf of Seller is authorized to do so.
(b) Pending Actions. To Seller's knowledge, there is no
action, suit, arbitration, unsatisfied order or judgment, governmental
investigation or proceeding pending against the Property or the transaction
contemplated by this Agreement, which, if adversely determined, could
individually or in the aggregate have a material adverse effect on title to the
Property or any portion thereof or which could in any material way interfere
with the consummation by Seller of the transaction contemplated by this
Agreement.
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(c) Leases. Seller is the lessor or landlord or the
successor lessor or landlord under the Leases. Except as set forth in the Lease
Schedule, to Seller's knowledge, there are no other leases or occupancy
agreements to which Seller is a party affecting the Property. Except as
otherwise set forth in the Leases or on the Lease Schedule, to Seller's
knowledge, no presently effective rent concessions have been given to any
tenants and no rent has been paid in advance by any tenants respecting a period
subsequent to the Closing. Except as may be disclosed on the Lease Schedule, to
Seller's knowledge no tenants have asserted in writing any claims, defenses or
offsets to rent accruing from and after the date of Closing. To Seller's
knowledge, except as set forth in the Lease Schedule, no material default,
delinquency or breach exists on the part of any tenant as of the Effective Date.
There are no material defaults or breaches on the part of the landlord under any
Lease. In the event that any Tenant Estoppel delivered to Purchaser with respect
to any Lease shall contain any statement of fact, information or other matter
which is inconsistent with the matters stated in Seller's representations in
this Section 5.1(c), the Tenant Estoppel shall control and Seller shall have no
liability for any claim based upon a breach of representation regarding such
statement of fact, information or other matter contained in the Tenant Estoppel.
Notwithstanding anything to the contrary contained in this Agreement, Seller
does not represent or warrant that any particular Lease will be in force or
effect at Closing or that the tenants under the Leases will have performed their
obligations thereunder. The termination of any Lease prior to Closing by reason
of the tenant's default shall not affect the obligations of Purchaser under this
Agreement to complete closing in any manner or entitle Purchaser to an abatement
of or credit against the Purchase Price or give rise to any other claim on the
part of Purchaser.
(d) Lease Brokerage. To Seller's knowledge, there are no
lease brokerage agreements, leasing commission agreements or other agreements
providing for payments of any amounts for leasing activities or procuring
tenants with respect to the Property as of the Effective Date which would be
payable subsequent to Closing, other than as disclosed in the Lease Schedule.
(e) No Violations. To Seller's knowledge, Seller has not
received prior to the Effective Date any written notification from any
governmental or public authority (i) that the Property is in violation of any
applicable fire, health, building, use, occupancy or zoning laws where such
violation remains outstanding and, if unaddressed, would have a material adverse
effect on the use of the Property as currently owned and operated or (ii) that
any work is required to be done upon or in connection with the Property, where
such work remains outstanding and, if unaddressed, would have a material adverse
effect on the use of the Property as currently owned and operated.
(f) Taxes and Assessments. True and complete copies of the
most recent real estate tax bills for the Property received by Seller have been
delivered to Purchaser. Except as disclosed to Purchaser, Seller has not filed,
and has not retained anyone to file, notices
17
of protests against, or to commence action to review, real property tax
assessments against the Property.
(g) Condemnation. To Seller's knowledge, no condemnation
proceedings relating to the Property are pending or threatened.
(h) Insurance. To Seller's knowledge, Seller has not
received any written notice from any insurance company or board of fire
underwriters of any defects or inadequacies in or on the Property or any part or
component thereof that would materially and adversely affect the insurability of
the Property or cause any material increase in the premiums for insurance for
the Property that have not been cured or repaired.
(i) Environmental Matters. Except as set forth in the
environmental report of ATC ASSOCIATES, INC., dated September 16, 1998, a copy
of which has been delivered to Purchaser or as otherwise disclosed to Purchaser,
to Seller's knowledge, Seller has received no written notification that any
governmental or quasi governmental authority has determined that there are any
violations of environmental statutes, ordinances or regulations affecting the
Property. As used herein, "Hazardous Substances" means all hazardous or toxic
materials, pollutants, contaminants or wastes currently identified as hazardous
substance or waste in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (commonly known as "CERCLA"), as amended, the Superfund
Amendments and Reauthorization Act (commonly known as "▇▇▇▇"), the Resource
Conservation and Recovery Act (commonly known as "RCRA"), or any other federal,
state or local legislation or ordinances applicable to the Property. Purchaser
acknowledges and agrees that the environment report discloses the presence of
asbestos in the Improvements, that the Purchase Price reflects the existence of
asbestos, and that Purchaser has no right to terminate this Agreement after the
expiration of the Inspection Period or be entitled to any abatement of the
Purchase Price by reason of the existence of asbestos at the Improvements.
Assuming Closing is completed, Purchaser shall be responsible for any asbestos
abatement which may be required (if any) from and after the Effective Date.
5.2 Knowledge Defined. References to the "knowledge" of Seller
shall refer only to the actual knowledge of the Designated Employees (as
hereinafter defined) of Lend Lease Real Estate Investments, Inc. ("Lend Lease"),
the manager of this asset for Seller, and shall not be construed, by imputation
or otherwise, to refer to the knowledge of Seller, Lend Lease or any affiliate
of either of them, to any property manager, or to any other officer, agent,
manager, representative or employee of Seller or Lend Lease or any affiliate
thereof or to impose upon such Designated Employees any duty to investigate the
matter to which such actual knowledge, or the absence thereof, pertains. As used
herein, the term "Designated Employees" shall refer to ▇▇▇▇ ▇▇▇▇▇.
5.3 Survival of Seller's Representations and Warranties.
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(a) Except as otherwise provided in subsection (b) below,
the representations and warranties of Seller set forth in Section 5.1 as updated
by the certificate of Seller to be delivered to Purchaser at Closing in
accordance with Section 4.2(g) hereof, shall survive Closing for a period from
the date of Closing through March 1, 2000. No claim for a breach of any
representation or warranty of Seller shall be actionable or payable (a) if the
breach in question results from or is based on a condition, state of facts or
other matter which was known to Purchaser prior to Closing, (b) unless the valid
claims for all such breaches collectively aggregate more than One Hundred
Thousand Dollars ($100,000), in which event the full amount of such claims shall
be actionable, and (c) unless written notice containing a description of the
specific nature of such breach shall have been given by Purchaser to Seller
prior to the expiration of March 1, 2000 and an action shall have been commenced
by Purchaser against Seller within thirty (30) days after the termination of the
survival period provided for above in this Section 5.3. Purchaser agrees to
first seek recovery under any insurance policies, service contracts and Leases
prior to seeking recovery from Seller, and Seller shall not be liable to
Purchaser if Purchaser's claim is satisfied from such insurance policies,
service contracts or Leases. As used herein, the term "Cap" shall mean the total
aggregate amount of Five Hundred Thousand Dollars ($500,000). In no event shall
Seller's aggregate liability to Purchaser for breach of any representation or
warranty of Seller in this Agreement, the certificate to be delivered by Seller
at Closing pursuant to Section 4.2(g) hereof and for any other claim, cause of
action, or liability of any kind, arising out of or relating directly or
indirectly to this Agreement (whether in contract, tort or otherwise) exceed the
amount of the Cap.
(b) Notwithstanding any provision to the contrary set
forth in this Agreement, the warranties and representations of Seller set forth
in Sections 5.1(c) with respect to Leases for which a Tenant Estoppel is
delivered pursuant to Section 5.4(b) and in Sections 5.1(e) and (g) above (all
herein called the "Non-Surviving Warranties") shall not survive Closing. If
Purchaser determines that any of the surviving warranties or any of the
Non-Surviving Warranties are breached prior to the Closing, Purchaser's sole
right and remedy shall be to terminate this Agreement by giving to Seller
written notice of such termination within ten (10) days after Purchaser learns
of the breach of such warranty. If Purchaser fails to give such written
termination notice to Seller within such time period, Purchaser shall be deemed
to have waived any right or remedy (including, without limitation, any right
under this Agreement to terminate this Agreement) against Seller by reason of
the breach of such warranty. Purchaser shall, prior to the Closing, make its own
independent investigation and determination as to the truth and accuracy of the
Non-Surviving Warranties. If Purchaser shall complete Closing under this
Agreement, Purchaser shall be deemed to have conclusively determined that the
Non-Surviving Warranties are true and correct, and Purchaser shall be deemed to
have waived any claim against Seller by reason of a breach of any of the
Non-Surviving Warranties.
5.4 Covenants of Seller. Seller hereby covenants with
Purchaser as follows:
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(a) From the Effective Date hereof until the Closing or
earlier termination of this Agreement, Seller shall use reasonable efforts to
operate and maintain the Property in a manner generally consistent with the
manner in which Seller has operated and maintained the Property prior to the
date hereof. Purchaser shall accept the Property at the time of Closing in the
same condition as the same are as of the date of this Agreement, as such
condition shall have changed by reason of normal wear and tear. Notwithstanding
that Seller has no obligation to make any repairs or replacements required by
reason of wear and tear, Seller may, at its option, make any such repairs and
replacements prior to the Closing if Seller believes such repairs and
replacements are necessary to comply with its obligations under one or more of
the Leases, or legally required to protect the Property. The reasonable cost of
such repairs and replacements in excess of $7,500 in the aggregate shall be
added to the Purchase Price and shall be payable by Purchaser to Seller at
Closing. Before making such repairs or replacements for which Seller will seek
reimbursement by Purchaser, Seller will give written notice thereof to Purchaser
and provide Purchaser a cost estimate of the work prepared by a reputable
contractor, and Seller will consult with Purchaser on the most economical method
to perform them. If Purchaser procures a reputable contractor to perform such
work at a lower price, Seller will utilize such contractor.
(b) Seller shall use reasonable efforts (but without
obligation to incur any cost or expense) to obtain and deliver to Purchaser
prior to Closing, a written estoppel certificate in the form of Exhibit E
attached hereto and made a part hereof signed by each tenant occupying space in
the Improvements. The signed certificates are referred to herein as the "Tenant
Estoppels". Notwithstanding the foregoing, Purchaser may terminate this
Agreement and have the ▇▇▇▇▇▇▇ Money returned if Seller fails to deliver to
Purchaser by Closing Tenant Estoppels from (i) PNC Bank, N.A.; First Union
National Bank; OnLine; ▇▇▇▇▇▇▇▇▇▇; ▇▇▇▇ and Tybout ("Major Leases"), and (ii)
such other tenants (if any are necessary) which would constitute, together with
the Major Leases, an aggregate of seventy-five percent (75%) of the currently
leased area of the Improvements. Purchaser agrees not to object to (i) any
non-material (as determined in Purchaser's reasonable judgment) qualifications
or modifications which a tenant may make to the form of Tenant Estoppel and (ii)
any modification to a tenant estoppel to conform the Tenant Estoppel to the form
of tenant estoppel certificate the tenant is required to give under its lease
and (iii) a statement by tenant that it is made to the tenant's knowledge.
Purchaser's obligations under this Agreement to complete Closing and pay the
Purchase Price shall not be relieved if Seller is unable to obtain any Tenant
Estoppel required to be delivered after using its reasonable efforts to obtain
it if Seller instead, at Seller's sole option, executes a Tenant Estoppel for
such tenant other than a Major Lease tenant. If any such tenant does have a
claim which would entitle it to set-off the amount of the claim against rent due
under the lease and the amount of such claim is ascertainable, Seller shall have
the right, at its sole option, to give Purchaser a credit against the cash
portion of the Purchase Price in the amount of the claim; and, in such event,
Purchaser shall complete Closing and take subject to such claim. If Seller has
delivered a Seller Tenant Estoppel to Purchaser for one or more tenants and
within ninety (90) days following Closing, Seller or Purchaser receives a Tenant
Estoppel (reasonably
20
acceptable to Purchaser) from any such tenant, then the Seller's Tenant Estoppel
for such tenant shall be deemed null and void.
(c) A copy of any renewal or expansion of an existing
Lease or of any new Lease for occupancy of 4,000 square feet or more of space in
the Improvements ("Major Post Agreement Lease") which Seller wishes to execute
between the Effective Date and the date of Closing will be submitted to
Purchaser prior to execution by Seller. Purchaser agrees to notify Seller in
writing within five (5) business days after its receipt thereof of either its
approval or disapproval, including all Tenant Inducement Costs and leasing
commissions to be incurred in connection therewith. In the event Purchaser
informs Seller that Purchaser does not approve the renewal or expansion of the
existing Major Post Agreement Lease or the new Major Post Agreement Lease, which
approval shall not be unreasonably withheld, Seller shall have the option to
cancel this Agreement by written notice thereof to Purchaser within five (5)
business days after Seller's receipt of written notice of Purchaser's
disapproval thereof, and upon refund and payment of the ▇▇▇▇▇▇▇ Money to
Purchaser, neither party shall have any further liability or obligation
hereunder. In the event Purchaser fails to notify Seller in writing of its
approval or disapproval within the five (5) business day time period for such
purpose set forth above, such failure shall be deemed the approval by Purchaser.
At Closing, Purchaser shall reimburse Seller for any Tenant Inducement Costs,
leasing commissions or other expenses, including reasonable legal fees, incurred
by Seller pursuant to a renewal, an expansion or a new Lease approved (or deemed
approved) by Purchaser. Seller shall have the unrestricted right to enter into
new Leases for less than 4,000 square feet of space in the Improvements or renew
existing Leases for less than 4,000 square feet so long as such Leases or
renewals are within the guidelines set forth in Exhibit F attached hereto and
made a part hereof.
5.5 Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller:
(a) Purchaser is not acquiring the Property with the
assets of an employee benefit plan as defined in Section 3(3) of ERISA.
(b) Purchaser has the full right, power and authority to
purchase the Property as provided in this Agreement and to carry out Purchaser's
obligations hereunder, and all requisite action necessary to authorize Purchaser
to enter into this Agreement and to carry out its obligations hereunder have
been, or by the Closing will have been, taken. The person signing this Agreement
on behalf of Purchaser is authorized to do so.
(c) There is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against
Purchaser which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transaction contemplated by
this Agreement.
21
5.6 Survival of Purchaser's Representations and Warranties.
The representation and warranties of Purchaser set forth in Section 5.5(a) shall
survive Closing and shall be a continuing representation and warranty without
limitation. All other representations and warranties of Purchaser shall survive
Closing for a period through March 1, 2000.
5.7 Covenants of Purchaser. Purchaser hereby covenants with
Seller that Purchaser shall, in connection with its investigation of the
Property during the Inspection Period, inspect the Property for the presence of
Hazardous Substances (as defined in Section 5. 1 (i) hereof), and shall furnish
to Seller copies of any reports received by Purchaser in connection with any
such inspection. Purchaser hereby assumes full responsibility for such
inspections and, except for claims based on representations or warranties
contained in Section 5.1(i), irrevocably waives any claim against Seller arising
from the presence of Hazardous Substances on the Property. Purchaser shall also
furnish to Seller copies of any other reports received by Purchaser relating to
any other inspections of the Property conducted on Purchaser's behalf, if any
(including, specifically, without limitation, any reports analyzing compliance
of the Property with the provisions of the Americans with Disabilities Act
("ADA"), 42 U.S.C. ss.12101, et seq., if applicable).
ARTICLE VI
DEFAULT
6.1 Default by Purchaser. In the event that Purchaser fails to
consummate its obligations in this Agreement for any reason other than Seller's
default or the permitted termination of this Agreement by Seller or Purchaser as
herein expressly provided, Seller shall be entitled, as its sole remedy, to
receive and retain the ▇▇▇▇▇▇▇ Money hereunder, whereupon this Agreement shall
terminate and neither Seller nor Purchaser shall have any further obligation or
liability hereunder to the other.
6.2 Default by Seller. In the event that Seller fails to
consummate its obligations in this Agreement for any reason other than
Purchaser's default or the permitted termination of this Agreement by Seller or
Purchaser as herein expressly provided, Purchaser shall be entitled, as its sole
remedy, either (a) to receive the return of the ▇▇▇▇▇▇▇ Money, which return
shall operate to terminate this Agreement and release Seller from any and all
liability hereunder, or (b) to enforce specific performance of Seller's
obligation to execute the documents required to convey the Property to
Purchaser, it being understood and agreed that the remedy of specific
performance shall not be available to enforce any other obligation of Seller
hereunder. Purchaser expressly waives its rights to seek damages in the event of
Seller's default hereunder. Purchaser shall be deemed to have elected to
terminate this Agreement and receive back the ▇▇▇▇▇▇▇ Money if Purchaser fails
to file suit for specific performance against Seller in a court
22
having jurisdiction in the county and state in which the Property is located, on
or before thirty (30) days following the date upon which Closing was to have
occurred.
ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the
Property or any portion thereof which is not "major" (as hereinafter defined),
this Agreement shall remain in full force and effect provided Seller performs
any necessary repairs or, at Seller's option, assigns to Purchaser all of
Seller's right, title and interest to any claims and proceeds Seller may have
with respect to any casualty insurance policies or condemnation awards relating
to the premises in question. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the date of Closing shall be extended a reasonable time in order to
allow for the completion of such repairs. If Seller elects to assign a casualty
claim to Purchaser, the Purchase Price shall be reduced by an amount equal to
the deductible amount under Seller's insurance policy. Upon Closing, full risk
of loss with respect to the Property shall pass to Purchaser.
7.2 Major Damage. In the event of a "major" loss or damage,
either Seller or Purchaser may terminate this Agreement by written notice to the
other party, in which event the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser. If
neither Seller nor Purchaser elects to terminate this Agreement within ten (10)
days after Seller sends Purchaser written notice of the occurrence of major loss
or damage, then Seller and Purchaser shall be deemed to have elected to proceed
with Closing, in which event Seller shall, at Seller's option, either (a)
perform any necessary repairs, or (b) assign to Purchaser all of Seller's right,
title and interest to any claims and proceeds Seller may have with respect to
any casualty insurance policies or condemnation awards relating to the premises
in question. In the event that Seller elects to perform repairs upon the
Property, Seller shall use reasonable efforts to complete such repairs promptly
and the date of Closing shall be extended a reasonable time in order to allow
for the completion of such repairs. If Seller elects to assign a casualty claim
to Purchaser, the Purchase Price shall be reduced by an amount equal to the
deductible amount under Seller's insurance policy. Upon Closing, full risk of
loss with respect to the Property shall pass to Purchaser.
7.3 Definition of "Major" Loss or Damage. For purposes of
Sections 7.1 and 7.2, "major" loss or damage refers to the following: (i) loss
or damage to the Property or any portion thereof such that the cost of repairing
or restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
opinion of an architect selected by Seller and reasonably approved by Purchaser,
equal to or greater than Five Hundred Thousand and 00/100 Dollars ($500,000),
and (ii) any loss due to a condemnation which permanently and materially impairs
the current use of the Property. If
23
Purchaser does not give notice to Seller of Purchaser's reasons for disapproving
an architect within five (5) business days after receipt of notice of the
proposed architect, Purchaser shall be deemed to have approved the architect
selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions. In the event the transaction
contemplated by this Agreement is consummated, but not otherwise, Seller agrees
to pay to ▇▇▇▇▇▇▇▇ Associates, Inc. (the "Broker") at Closing a brokerage
commission pursuant to a separate written agreement between Seller and Broker.
Each party agrees that should any claim be made for brokerage commissions or
finder's fees by any broker or finder other than the Broker by, through or on
account of any acts of said party or its representatives, said party will
indemnify and hold the other party free and harmless from and against any and
all loss, liability, cost, damage and expense in connection therewith. The
provisions of this paragraph shall survive Closing or earlier termination of
this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated
herein, Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller to
Purchaser in connection with the transaction contemplated hereby. Purchaser
acknowledges and agrees that all materials, data and information delivered by
Seller to Purchaser in connection with the transaction contemplated hereby are
provided to Purchaser as a convenience only and that any reliance on or use of
such materials, data or information by Purchaser shall be at the sole risk of
Purchaser, except as otherwise expressly stated herein. Without limiting the
generality of the foregoing provisions, Purchaser acknowledges and agrees that
(a) any environmental or other report with respect to the Property which is
delivered by Seller to Purchaser shall be for general informational purposes
only, (b) Purchaser shall not have any right to rely on any such report
delivered by Seller to Purchaser, but rather will rely on its own inspections
and investigations of the Property and any reports commissioned by Purchaser
with respect thereto, and (c) neither Seller, any affiliate of Seller nor the
person or entity which prepared any such report delivered by Seller to Purchaser
shall have any liability to Purchaser for any inaccuracy in or omission from any
such report.
9.2 DISCLAIMERS. SELLER AND PURCHASER ACKNOWLEDGE AND AGREE
THAT SELLER ACQUIRED THE PROPERTY THROUGH DEED IN LIEU OF
24
FORECLOSURE AND CONSEQUENTLY SELLER HAS LITTLE, IF ANY, KNOWLEDGE OF THE
PHYSICAL OR ECONOMIC CHARACTERISTICS OF THE PROPERTY. ACCORDINGLY, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER
IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF
ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER
THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING,
TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITION,
UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS,
THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION PROVIDED BY OR
ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL
AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE
IS, WITH ALL FAULTS" EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT
LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY
INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED
BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR
WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY
AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO
ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL
RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF
SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH
IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL
AND ENVIRONMENTAL
25
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND
PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY.
PURCHASER AGREES THAT SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS
SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER
THE DATE OF CLOSING, SUCH CLEANUP, REMOVAL OR REMEDIATION SHALL BE THE
RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE OF
PURCHASER.
9.3 Effect and Survival of Disclaimers. Seller and Purchaser
acknowledge that the compensation to be paid to Seller for the Property has been
decreased to take into account that the Property is being sold subject to the
provisions of this Article IX. Seller and Purchaser agree that the provisions of
this Article IX shall survive Closing.
9.4 Representation by Counsel. Purchaser acknowledges that
Purchaser has been represented by independent legal counsel of Purchaser's
selection and Purchaser is granting the release set forth in Section 9.2 of its
own violation and after consultation with Purchaser's counsel.
26
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and Seller and their
representatives shall hold in strictest confidence through the date Closing is
completed all data and information obtained from the transaction with respect to
Seller and Purchaser or its business, whether obtained before or after the
execution and delivery of this Agreement, and shall not disclose the same to
others; provided, however, that it is understood and agreed that Purchaser may
disclose such data and information to its present or prospective investors,
partners and lenders, as applicable, and either party may disclose such data and
information to the employees, consultants, accountants and attorneys of such
party and those of Purchaser's investors, partners and lenders, provided that
Purchaser and Seller, as applicable, instructs such persons to treat such data
and information confidentially. In the event this Agreement is terminated or
Purchaser fails to perform hereunder, Purchaser shall promptly return to Seller
any statements, documents, schedules, exhibits or other written information
obtained from Seller in connection with this Agreement or the transaction
contemplated herein. It is understood and agreed that, with respect to any
provision of this Agreement which refers to the termination of this Agreement
and the return of the ▇▇▇▇▇▇▇ Money to Purchaser, such ▇▇▇▇▇▇▇ Money shall not
be returned to Purchaser unless and until Purchaser has fulfilled its
obligations to return to Seller the materials described in the preceding
sentence. In the event of a breach of threatened breach by a party hereto or its
agents or representatives of this Section 10.1, the other party shall be
entitled to an injunction restraining the breaching party or its agents or
representatives from disclosing, in whole or in party, such confidential
information. Nothing herein shall be construed as prohibiting the other party
from pursuing any other available remedy at law or in equity for such breach of
threatened breach. The provisions of this Section 10.1 shall survive Closing.
10.2 Public Disclosure. Prior to Closing, any release to the
public of information with respect to the sale contemplated herein or any
matters set forth in this Agreement will be made only in the form approved by
Purchaser and Seller and their respective counsel.
10.3 Discharge of Obligations. The acceptance of the Deed by
Purchaser shall be deemed to be a full performance and discharge of every
representation and warranty made by Seller herein and every agreement and
obligation on the part of Seller to be performed pursuant to the provisions of
this Agreement, except those which are herein specifically stated to survive
Closing.
10.4 Assignment. Purchaser may not assign its rights under
this Agreement to anyone other than a Permitted Assignee (as hereinafter
defined) without first obtaining Seller's written approval which may be given or
withheld in Seller's sole discretion. Subject to the
27
conditions set forth in this Section 10.4, Purchaser may assign its rights under
this Agreement to a Permitted Assignee without the prior written consent of
Seller. In the event that Purchaser desires to assign its rights under this
Agreement to a Permitted Assignee, Purchaser shall send written notice to seller
at least five (5) business days prior to the effective date of such assignment
stating the name and, if applicable, the constituent persons or entities of the
Permitted Assignee. Such assignment shall not become effective until such
Permitted Assignee executes an instrument reasonably satisfactory to Seller in
form and substance whereby the Permitted Assignee expressly assumes each of the
obligations of Purchaser under this Agreement, including specifically, without
limitation, all obligations concerning the ▇▇▇▇▇▇▇ Money. No assignment shall
release or otherwise relieve Purchaser from any obligations hereunder. For
purposes of this Section 10.4 the term "Permitted Assignee" shall mean any
limited or general partnership, corporation, limited liability company or other
entity (a) in which The ▇▇▇▇▇▇▇▇▇▇ Company, L.P., directly or indirectly through
one or more intermediaries, shall have a majority beneficial equity interest and
(b) in which The ▇▇▇▇▇▇▇▇▇▇ Company, L.P., directly or indirectly through one or
more intermediaries, shall have effective management control. Notwithstanding
anything to the contrary contained herein, Purchaser shall not have the right to
assign this Agreement to any assignee which, in the reasonable judgment of
Seller, will cause the transaction contemplated hereby or any party thereto to
violate the requirement of ERISA. In order to enable Seller to make such
determination, Purchaser shall cause to be delivered to Seller such information
as is requested by Seller with respect to a proposed assignee and the
constituent persons or entities of any proposed assignee, including
specifically, without limitation, any pension or profit-sharing plans related
thereto.
10.5 Notices. Any notice pursuant to this Agreement shall be
given in writing by (a) personal delivery, or (b) reputable overnight delivery
service with proof of delivery, or (c) United States Mail, postage prepaid,
registered or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given either at the time of personal delivery, or, in the
case of expedited delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Seller:
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Law Department - Real Estate
28
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copies to:
Lend Lease Real Estate Investments, Inc.
Monarch Tower
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Lend Lease Real Estate Investments, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - Suite ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Manager
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
AND
Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to Purchaser:
The ▇▇▇▇▇▇▇▇▇▇ Company, L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
The ▇▇▇▇▇▇▇▇▇▇ Company, L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
29
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
10.6 Binding Effect. This Agreement shall not be binding in
any way upon Seller unless and until (a) Seller shall execute and deliver the
same to Purchaser, (b) each stage of Seller's investment approval process has
approved this transaction, and (c) Seller's Investment Committee has thereafter
given its written approval thereof. If Seller has not given Purchaser written
notice (the "Approval Notice") of such approvals on or before May 21, 1999 (the
"Approval Deadline"), or if prior to the Approval Deadline Seller notifies
Purchaser in writing that this Agreement has been disapproved by the persons or
entities referred to in clauses (b) or (c) of the preceding sentence, then this
Agreement shall be deemed terminated and Purchaser shall be entitled to the
return of the ▇▇▇▇▇▇▇ Money. It is understood and agreed that at each stage of
Seller's investment approval process, Seller or its investment advisor, Lend
Lease, shall each have the right, in its unfettered discretion, to disapprove
the transaction contemplated by this Agreement for any reason whatsoever,
without obligation thereafter to proceed to the next stage of Seller's
investment approval process. Seller's approval of this Agreement shall be
evidenced only by both Seller's execution of this Agreement and Seller's sending
of the Approval Notice to Purchaser prior to the Approval Deadline and,
accordingly, Purchaser acknowledges and agrees that Purchaser cannot and will
not rely upon any other statement or action of Seller or its representatives as
evidence of Seller's approval of this Agreement or the subject matter hereof.
10.7 Modifications. This Agreement cannot be changed orally,
and no executory agreement shall be effective to waive, change, modify or
discharge it in whole or in part unless such executory agreement is in writing
and is signed by the parties against whom enforcement of any waiver, change,
modification or discharge is sought.
10.8 Tenant Notification Letters. Purchaser shall deliver to
each and every tenant of the Property under a Lease thereof a signed statement
acknowledging Purchaser's receipt and responsibility for each tenant's security
deposit (to the extent delivered by Seller to Purchaser at Closing), if any, all
in compliance with and pursuant to the applicable provisions of applicable law.
The provisions of this paragraph shall survive Closing.
10.9 Calculation of Time Periods. Unless otherwise specified,
in computing any period of time described in this Agreement, the day of the act
or event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
in which the Property is located, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday or legal holiday. The
final day of any such period shall be deemed to end at 5 p.m., local time.
10.10 Successors and Assigns. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
30
10.11 Entire Agreement. This Agreement, including the
Exhibits, contains the entire agreement between the parties pertaining to the
subject matter hereof and fully supersedes all prior written or oral agreements
and understandings between the parties pertaining to such subject matter.
10.12 Further Assurances. Each party agrees that it will
without further consideration execute and deliver such other documents and take
such other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement. Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Property. The provisions of this Section 10. 12 shall survive
Closing.
10.13 Counterparts. This Agreement may be executed in
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
10.14 Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect.
10.15 Applicable Law. This Agreement is performable in the
state in which the Property is located and shall in all respects be governed by,
and construed in accordance with, the substantive federal laws of the United
States and the laws of such state. Seller and Purchaser hereby irrevocably
submit to the jurisdiction of any state or federal court sitting in the state in
which the Property is located in any action or proceeding arising out of or
relating to this Agreement and hereby irrevocably agree that all claims in
respect of such action or proceeding shall be heard and determined in a state or
federal court sitting in the state in which the Property is located. Purchaser
and Seller agree that the provisions of this section 10. 15 shall survive the
Closing of the transaction contemplated by this Agreement.
10.16 No Third Party Beneficiary. The provisions of this
Agreement and of the documents to be executed and delivered at Closing are and
will be for the benefit of Seller and Purchaser only and are not for the benefit
of any third party, and accordingly, no third party shall have the right to
enforce the provisions of this Agreement or of the documents to be executed and
delivered at Closing.
10.17 Exhibits and Schedules. The following schedules or
exhibits attached hereto shall be deemed to be an integral part of this
Agreement:
(a) Exhibit A Legal Description of the Land
31
(b) Exhibit B Personal Property
(c) Exhibit C Lease Schedule
(d) Exhibit D Operating Agreements Schedule
(e) Exhibit E Tenant Estoppel Form
(f) Exhibit F Leasing Guidelines
(g) Schedule 1 Special Warranty Deed
(h) Schedule 2 ▇▇▇▇ of Sale and Assignment
(i) Schedule 3 Assignment and Assumption
(j) Schedule 4 Tenant Notification Letter
(k) Schedule 5 Seller's Certification of
Representations and Warranties
(l) Schedule 6 FIRPTA Affidavit
(m) Schedule 7 ERISA Statement
(n) Schedule 3.1 Due Diligence Materials
10.18 Captions. The section headings appearing in this
Agreement are for convenience of reference only and are not intended, to any
extent and for any purpose, to limit or define the text of any section or any
subsection hereof.
10.19 Construction. The parties acknowledge that the parties
and their counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
10.20 Termination of Agreement. It is understood and agreed
that if either Purchaser or Seller terminates this Agreement pursuant to a right
of termination granted hereunder, such termination shall operate to relieve
Seller and Purchaser from all obligations under this Agreement, except for such
obligations as are specifically stated herein to survive the termination of this
Agreement.
10.21 Survival. The provisions of this Article 10 and of the
following Sections of this Agreement shall survive Closing or any termination of
this Agreement prior thereto and shall not be merged into the execution and
delivery of the Deed: 3.1; 4.2(j); 4.4; 5.3; 5.6; 8.1, 9.3, 10.1, 10.8, 10.12
and 10.15 The foregoing is in addition to and not in exclusion of any survival
provisions elsewhere set forth in this Agreement.
10.22 No Recordation. Neither this Agreement nor any
memorandum of the terms hereof shall be recorded or otherwise placed of public
record and any breach of this covenant shall, unless the party not placing same
of record is otherwise in default hereunder, entitle the party not placing same
of record to pursue its rights and remedies under Article VI.
32
10.23 Limited Liability. The obligations of Seller arising by
virtue of this Agreement shall be limited to the interest of Seller in the
Property and resort shall not be held to any other assets of Seller.
10.24 Waiver of Tender of Deed and Purchase Monies. The tender
of an executed Deed by Seller and the tender by Purchaser of the portion of the
Purchase Price payable at Closing are hereby mutually waived except as otherwise
provided in Sections 4.2 and 4.3; provided, however, nothing herein contained
shall be construed as a waiver of Seller's obligation to deliver the Deed and/or
of the concurrent obligation of Purchaser to pay the Purchase Price payable at
closing.
10.25 Section 1031 Exchange of Properties. Purchaser has
advised Seller, and Seller acknowledges, that Purchaser may enter into one or
more separate Exchange Agreements with a qualified "Intermediary" in order to
effect Purchaser's acquisition of the Property as so-called "Replacement
Property" in a like-kind exchange transaction in accordance with the provisions
of Section 1031 of the Internal Revenue Code of 1986, as amended, and the
Regulations promulgated thereunder. In furtherance of the foregoing: (a)
Purchaser will have the right to assign all or a portion of its right, title and
interest in and to this Agreement to the selected Intermediary (but Purchaser
will remain obligated for all of its agreements and other undertakings
hereunder), and (b) at the request of Purchaser from time to time, Seller will,
at Purchaser's expense, cooperate with Purchaser and with the selected
Intermediary (but without any liability to the selected Intermediary) in order
to effect the intended like-kind exchange contemplated by the foregoing;
provided that: (i) Purchaser will, and hereby does, indemnify Seller for all
costs and expenses incurred by Seller in connection with effectuating such
like-kind exchange and any claim asserted by the selected Intermediary against
Seller, (ii) Seller will not be obligated to take title to any other property
(including any so-called "Replacement Property"), nor will the foregoing affect
in any manner Purchaser's obligations or Seller's rights and benefits under this
Agreement, (iii) Seller is not responsible if such transfer does not meet the
requirements for a tax-free exchange and (iv) it is expressly understood that
the consummation by Purchaser or ability by Purchaser to consummate a like-kind
exchange as aforesaid is not a condition precedent to Purchaser's obligation
to consummate Closing under this Agreement within the time set forth in
Section 4.1.
33
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:___________________________
Name:
Title:
PURCHASER:
THE ▇▇▇▇▇▇▇▇▇▇ COMPANY, L.P.
a Delaware limited partnership
By: TRC Realty, Inc.-GP
a Pennsylvania corporation,
its managing general partner
By:______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
34
Exhibit A
LEGAL DESCRIPTION
35
Exhibit B
PERSONAL PROPERTY
36
Exhibit C
LEASE SCHEDULE
37
Exhibit D
OPERATING AGREEMENTS SCHEDULE
38
Exhibit E
TENANT ESTOPPEL FORM
[*SUBJECT TO PURCHASER REVISIONS]
_________________________ , 1999
[PURCHASER]
Re: Lease dated _______________________, 199__ (the "Lease") executed between
______________________________________________ ("Landlord"), and ("Tenant"), for
those premises located at
Gentlemen:
The undersigned Tenant understands that you or your assigns
intend to acquire that property located at _______________________ (the
"Property") from EML Associates ("Seller"). The undersigned Tenant does hereby
certify to you as follows:
A. The Lease consists only of the documents identified in
Items 1 and 2 on Schedule A attached hereto ("Schedule
A").
B. The Lease is in full force and effect and has not been
modified, supplemented, or amended as indicated in Item
2 on Schedule A.
C. Tenant has not given Landlord written notice of any
dispute between Landlord and Tenant or that Tenant
considers Landlord in default under the Lease.
D. Tenant does not claim any offsets or credits against
rents payable under the Lease.
E. Tenant has not paid a security or other deposit with
respect to the Lease, except as shown on Item 3 of
Schedule A.
F. Tenant has fully paid rent on account of the month of
_________, 199__; the current base rent under the Lease
is shown on Item 4 of Schedule A.
G. Tenant has not paid any rentals in advance except for
the current month of ____________, 199__.
H. The term of the Lease will terminate on the date
indicated in Item 4 on Schedule A.
39
I. Except as shown in Item 6 on Schedule A, Tenant has no
options to renew or extend the term of the Lease right
of first refusal or option to purchase the Property or
any part thereof.
This certificate may be relied upon by you, your mortgagee and
Seller in completing the sale of the Property.
Very truly yours,
By:
Title:
40
Schedule A
1. Lease:
Landlord:
Tenant: ____________________
Suite #: ____________________
Date: ____________________
2. Modifications and/or Amendments
(a) Date: ____________________
(b) Date: ____________________
(c) Date: ____________________
3. Security Deposit
(currently held by
Landlord) $____________________
4. Monthly Base Rent
for current term
of Lease $____________________
5. Commencement Date: ____________________
Termination Date ____________________
6. Right of First refusal to Lease to Purchase
or option ___________ _____________
(if none, state "None")
If "yes", does such right or option still exist or has such right or
option been exercised or waived?
Still Exists_____ Exercised______ Waived______
41
EXHIBIT F
LEASING GUIDELINES
1. $16.00 per rentable square foot, increasing by not less than $0.50
per rentable square foot each lease year, with -0- months of free rent for a
five year lease and a tenant allowance of $25.00 per rentable square foot (for
new Leases) or $5.00 per rentable square foot (for extensions or renewals of
existing Leases).
2. A term not exceeding five (5) years.
3. Form of lease to be materially the same as Seller's standard
lease form.
42
PARCEL NO:
-------------
-------------
SCHEDULE 1
SPECIAL WARRANTY DEED
STATE OF GEORGIA :
: SS.
COUNTY OF ▇▇▇▇▇▇ :
KNOW ALL MEN BY THESE PRESENTS:
THAT EML ASSOCIATES a New York general partnership (hereinafter
referred to as "Grantor"), for and in consideration of the sum of Eight Million
Seven Hundred Fifty Thousand Dollars ($8,750,000) and other good and valuable
consideration to it in hand paid by _____________________, a Delaware
________________ (hereinafter referred to as "Grantee"), whose mailing address
is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, the receipt
and sufficiency of which consideration are hereby acknowledged, and upon and
subject to the exceptions, liens, encumbrances, terms and provisions hereinafter
set forth and described, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these
presents does hereby GRANT, BARGAIN, SELL and CONVEY, unto Grantee all of the
real property situated in Wilmington, New Castle County, Delaware, described on
Exhibit A attached hereto and made a part hereof for all purposes, together with
all and singular the rights, benefits, privileges, easements, tenements,
hereditaments and appurtenances thereon or in any wise appertaining thereto, and
together with all improvements located thereon and any right, title and interest
of Grantor in and to adjacent streets, alleys and rights-of-way (said land,
rights, benefits, privileges, easements, tenements, hereditaments,
appurtenances, improvements and interests being hereinafter referred to as the
"Property").
This conveyance is made subject and subordinate to those agreements,
easements, restrictions, encumbrances and other exceptions to title (the
"Permitted Exceptions") of public record including those set forth on Exhibit B
attached hereto and made a part hereof for all purposes.
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
as aforesaid, unto Grantee, its successors and assigns, forever; and Grantor
does hereby bind itself and its successors, to WARRANT AND FOREVER DEFEND all
and singular the Property unto Grantee, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by, through or under Grantor, but not otherwise.
43
By acceptance of this Special Warranty Deed, Grantee assumes payment of
all real property taxes on the Property for the year 1999 and subsequent years.
IN WITNESS WHEREOF, this Special Warranty Deed has been executed by
Grantor to be effective as of the _____ day of July, 1999.
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:___________________________
Name:
Title:
44
STATE OF GEORGIA :
: SS.
COUNTY OF ▇▇▇▇▇▇ :
On the _____ day of July , 1999, before me, the subscriber, a Notary Public
in and for the State and County aforesaid, personally appeared ________________,
who acknowledge himself/herself to be a _______________ of EREIM Managers Corp.,
the general partner of ML/EQ Real Estate Portfolio, LP, which is the managing
venturer of EML Associates, a New York general partnership, and that he/she
being authorized to do so executed the foregoing instrument on behalf of such
general partnership for the purposes therein contained and desired that it may
be recorded.
WITNESS my hand and seal the day and year aforesaid.
______________________________
Notary Public
My Commission Expires:
45
EXHIBIT A
LEGAL DESCRIPTION
46
EXHIBIT B
PERMITTED EXCEPTIONS
To Be Determined Prior to end of Title Exam Deadline
Pursuant to Section 2.3
47
SCHEDULE 2
▇▇▇▇ OF SALE AND ASSIGNMENT
THAT this ▇▇▇▇ OF SALE AND ASSIGNMENT (this "▇▇▇▇ of Sale") is made
from EML ASSOCIATES, a New York general partnership ("Assignor") to
___________________, a Delaware __________________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this ▇▇▇▇ of Sale,
Assignor is conveying to Assignee, by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain the Assigned Properties (as hereafter defined),
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the receipt of Ten and No/100
Dollars ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER, and
DELIVER to Assignee the following (collectively, the "Assigned Properties"):
(a) The personal property owned by Assignor upon the Land or
within the Improvements, including specifically, without limitation, the
personal property listed on Exhibit B hereto and the heating, ventilation and
air conditioning systems and equipment, appliances, furniture, carpeting,
draperies and curtains, tools and supplies, and other items of personal property
(excluding cash and excluding personal property owned by tenants) used in
connection with the operation of the Land and the Improvements (collectively,
the "Personal Property"); and
(b) All of Assignor's right, title and interest in and to all
assignable warranties and guaranties (express or implied) issued in connection
with the Improvements or the Personal Property (collectively, the "Warranties");
provided, however, that Assignor makes no representation or warranty with
respect to the existence, availability or assignability of any Warranties.
ASSIGNOR MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE IN RESPECT OF THE PERSONAL PROPERTY, AND THE SAME IS SOLD IN
"AS IS, WHERE IS" CONDITION, WITH ALL FAULTS. BY EXECUTION OF THIS ▇▇▇▇ OF SALE,
ASSIGNEE AFFIRMS THAT IT HAS NOT RELIED
48
ON ASSIGNOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PERSONAL PROPERTY FOR
ANY PARTICULAR PURPOSE, AND THAT ASSIGNOR MAKES NO WARRANTY THAT THE PERSONAL
PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE, AND THAT THE PERSONAL PROPERTY IS
BEING SOLD TO ASSIGNEE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY.
This ▇▇▇▇ of Sale is made by Assignor and accepted by Assignee subject
to the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Assigned Properties.
TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its
successors and assigns, forever, and Assignor does hereby bind itself and its
successors to WARRANT AND FOREVER DEFEND, all and singular, title to the
Assigned Properties unto Assignee, its successors and assigns, against every
person whomsoever lawfully claiming or to claim the same, or any part thereof
by, through or under Assignor, but not otherwise, subject to the Permitted
Exceptions described in the Deed.
EXECUTED to be effective as of the _________ day of July, 1999.
ASSIGNOR:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:_________________________
Name:
Title:
ASSIGNEE:
_________________________________
a Delaware ______________________
By:__________________________
Name:
Title:
49
SCHEDULE 3
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
This ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment") is made
by and between EML ASSOCIATES, a New York general partnership ("Assignor") and
___________________________, a Delaware _____________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Assignment,
Assignor is conveying to Assignee by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more specifically described in Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements") and the personal property
owned by Assignor upon the Land or within the Improvements (the "Personal
Property").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain, all of Assignor's right, title and interest in and
to the Contracts (as hereinafter defined), subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to Assignor in hand
paid by Assignee, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET-OVER and DELIVER unto
Assignee all of Assignor's right, title and interest in and to the following
(collectively, the "Contracts").
(a) all or written agreements pursuant to which any portion of
the Land or Improvements is used or occupied by anyone other than Assignor
(collectively, the "Leases"), such Leases being more particularly described in
Exhibit B attached hereto and made a part hereof; provided, however, that
Assignor reserves and retains for itself all claims and causes of action
accruing to Assignor with respect to the Leases prior to the effective date
hereof to the extent set forth in the Purchase and Sale Agreement dated as of
April 19, 1999 ("Purchase and Sale Agreement"); and
(b) the contracts and agreements set forth on Exhibit C
attached hereto and made a part hereof relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal Property,
(collectively, the "Operating Agreements"); provided, however, that Assignor
makes no representation or warranty with respect to the assignability of any of
the Operating Agreements.
50
This Assignment is made by Assignor and accepted by Assignee subject to
the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Contracts.
By execution of this Assignment, Assignee assumes and agrees to perform
all of the covenants, agreements and obligations under the Contracts binding on
Assignor or the Land, Improvements, or Personal Property (such covenants,
agreements and obligations being herein collectively referred to as the
"Contractual Obligations"), as such Contractual Obligations shall arise or
accrue from and after the date of this Assignment. Without limiting the
generality of the preceding sentence, Assignee acknowledges the receipt of all
security deposits described in the Leases and agrees to apply same in accordance
with the terms of the Leases. Assignee hereby agrees to indemnify, hold harmless
and defend Assignor from and against any and all third party obligations,
liabilities, costs and claims (including reasonable attorney's fees) arising as
a result of or with respect to any of the Contractual Obligations that are
attributable to the period of time from and after the date of this Assignment
except as otherwise provided in the Purchase and Sale Agreement.
Assignor agrees to indemnify, hold harmless and defend Assignee from
and against any and all third party obligations, liabilities, costs and claims
(including reasonable attorney's fees) arising as a result of or with respect to
any of the Contractual Obligations that are attributable to the period of time
prior to the date of this Assignment except as otherwise provided in the
Purchase and Sale Agreement between Assignor and Assignee.
ASSIGNEE ACKNOWLEDGES THAT IT HAS INSPECTED THE CONTRACTS AND THAT THIS
ASSIGNMENT IS MADE BY ASSIGNOR AND ACCEPTED BY ASSIGNEE WITHOUT REPRESENTATION
OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE
AGAINST ASSIGNOR, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE PURCHASE AND
SALE AGREEMENT.
Assignee agrees not to grant any extension or renewal of any of the
Contracts, but shall, instead, provide for any extensions or renewals by means
of new leases or new agreements which will contain no reference to Seller.
TO HAVE AND TO HOLD all and singular the Contracts unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and its successors
to WARRANT AND FOREVER defend all and singular the Contracts unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof, by, through or under
Assignor, but not otherwise, subject to the Permitted Exceptions described in
the Deed.
51
EXECUTED to be effective as of the __ day of July, 1999.
ASSIGNOR:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:_________________________
Name:
Title:
52
EXHIBIT A
Legal Description
53
EXHIBIT B
List of Leases
54
EXHIBIT C
List of Assumed Operating Agreements
55
SCHEDULE 4
TENANT NOTIFICATION LETTER
July, 1999
Tenants of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
Re: Sale of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Gentlepersons:
Please be advised that __________________________
("Purchaser") has purchased the captioned property, in which you occupy space as
a tenant. In connection with such purchase, EML Associates ("EML") has assigned
its interest as landlord under your lease to Purchaser and has transferred your
security deposit, if any (the "Security Deposit"), to Purchaser. Purchaser
specifically acknowledges the receipt of and responsibility for the Security
Deposit, the intent of Purchaser and EML being to relieve EML of any liability
for the return of the Security Deposit.
All rental and other payments that become due subsequent to
the date hereof should be payable to Purchaser and should be addressed as
follows:
___________________________________
___________________________________
___________________________________
56
In addition, all notices from you to the landlord concerning any matter
relating to your tenancy should be sent to Purchaser at:
_____________________________________________________.
Very truly yours,
______________________, a Delaware
__________________
By:_______________________________
Name:
Title:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,its
Managing Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:___________________________
Name:
Title:
57
SCHEDULE 5
SELLER'S CERTIFICATION OF REPRESENTATIONS AND WARRANTIES
The undersigned, on behalf of EML ASSOCIATES, a New York
general partnership ("Seller") hereby certifies to
______________________________, a Delaware ___________________ ("Purchaser"), in
connection with the sale of certain property located in Wilmington, New Castle
County, Delaware and the improvements thereon, and commonly known as ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, pursuant to the Purchase and Sale Agreement between Seller and
Purchaser dated as of April __, 1999 ("Agreement of Sale"), that the:
1. The representations and warranties of Seller set forth in
Section 5.1 of the Agreement of Sale remain true and correct as of the date
hereof, except to the extent that Exhibit C has been modified by the updated
rent roll delivered to Purchaser on the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
certification on behalf of Seller as of this ____ day of July, 1999.
EML ASSOCIATES, a New York general partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:________________________________
Name:
Title:
58
SCHEDULE 6
FIRPTA AFFIDAVIT
STATE OF GEORGIA :
: SS.
COUNTY OF ▇▇▇▇▇▇ :
KNOW ALL MEN BY THESE PRESENTS:
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform The ▇▇▇▇▇▇▇▇▇▇ Company, L.P., a Delaware limited partnership
("Transferee"), that withholding of tax is not required upon the disposition of
a U.S. real property interest by EML Associates ("Transferor"), the undersigned
hereby certifies as follows:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is: #▇▇-▇▇▇▇▇▇▇;
3. Transferor's office address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned, in the capacity set forth
below, hereby declares that he has examined this certification and to the best
of his knowledge and belief it is true, correct, and complete, and the
undersigned further declares that he has authority to sign this document in such
capacity.
59
EXECUTED effective as of the ____ day of July, 1999.
EML ASSOCIATES, a New York general partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP., its
General Partner
By:___________________________
Name:
Title:
SWORN TO AND SUBSCRIBED BEFORE ME this ____ day of July, 1999.
Notary Public in and for the
State of Georgia
[Printed or Typed Name of Notary]
My Commission Expires:
60
SCHEDULE 7
ERISA STATEMENT
July, 1999
EML Associates
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
Gentlemen:
In connection with the sale by EML Associates of the above
captioned property (the "Property"), more particularly described on Exhibit A
attached hereto to ________________, a Delaware _______________, the undersigned
hereby represents and certifies that it is not acquiring the Property with the
assets of an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 as amended.
Very truly yours,
_____________________________,
a Delaware ____________________
By: ______________________________
Name:
Title:
61
EXHIBIT A
Legal Description
62
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Agreement")
is made this 4th day of June, 1999, by and between EML ASSOCIATES, a New York
general partnership ( "Seller" ), having an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and THE ▇▇▇▇▇▇▇▇▇▇ COMPANY, L.P., a Delaware
limited partnership ("Purchaser"), having an office at 4100 One Commerce Square,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
WITNESSETH:
Purchaser and Sell entered into the Purchase and Sale Agreement dated
as April 21, 1999 for that certain property located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and the buildings and improvements
thereon ("Agreement of Purchase and Sale").
Purchaser and Seller wish to amend the Agreement of Purchase and Sale
as follows:
1. The second sentence of Section 2.3(b) of the Agreement of Purchase
and Sale is revised to delete the reference to "within ten (10) days after
receipt of Purchaser's notice of objections" and to substitute in its place "by
June 9, 1999".
2. The first sentence of Section 3.1 of the Agreement of Purchase and
Sale is revised to delete the reference to June 4, 1999 and substitute in its
place "June 9, 1999".
3. Nothing contained in this First Amendment to Purchase and Sale
Agreement shall be construed to extend any other date or time period set forth
in the Purchase and Sale Agreement.
4. Except as expressly amended hereby, the Purchase and Sale
Agreement shall remain in full force and effect.
63
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:_________________________________
Name:
Title:
PURCHASER:
THE ▇▇▇▇▇▇▇▇▇▇ COMPANY, L.P.
a Delaware limited partnership
By: TRC Realty, Inc.-GP
a Pennsylvania corporation,
its managing general partner
By:__________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
64
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Agreement")
is made this 9th day of June, 1999, by and between EML ASSOCIATES, a New York
general partnership ( "Seller" ), having an office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and THE ▇▇▇▇▇▇▇▇▇▇ COMPANY, L.P., a Delaware
limited partnership ("Purchaser"), having an office at 4100 One Commerce Square,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
WITNESSETH:
Purchaser and Sell entered into the Purchase and Sale Agreement dated
as April 21, 1999 for that certain property located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and the buildings and improvements
thereon as amended by First Amendment to Purchase and Sale Agreement dated June
4, 1999 ("Agreement of Purchase and Sale").
Purchaser and Seller wish to amend the Agreement of Purchase and Sale
as follows:
1. Purchaser acknowledges and confirms that it has not elected to
terminate the Purchase Agreement as the result of its investigation of the
property pursuant to Sections 3.1 and 3.2 of the Agreement of Purchase and Sale.
2. Seller and Purchaser mutually agree that the Closing Date shall be
July 27, 1999 rather than July 22, 1999, and paragraph 4.1 of the Agreement of
Purchase and Sale is accordingly amended.
3. Except as expressly amended hereby, the Purchase and Sale
Agreement shall remain in full force and effect.
65
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SELLER:
EML ASSOCIATES, a New York general
partnership
By: ML/EQ REAL ESTATE PORTFOLIO, LP,
its Managing Venturer
By: EREIM MANAGERS CORP.,
its General Partner
By:_________________________________
Name:
Title:
PURCHASER:
THE ▇▇▇▇▇▇▇▇▇▇ COMPANY, L.P.
a Delaware limited partnership
By: TRC Realty, Inc.-GP
a Pennsylvania corporation,
its managing general partner
By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President