EXHIBIT 10.128
MEMBERSHIP INTERESTS PURCHASE AGREEMENT FOR THE ▇▇▇▇ DETROIT
BUILDING AND THE ▇▇▇▇ KALAMAZOO BUILDING
MEMBERSHIP INTERESTS PURCHASE AGREEMENT
between
GEBAM, INC.
as Seller,
and
▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC.
as Buyer
Dated as of March 15, 2002
MEMBERSHIP INTERESTS PURCHASE AGREEMENT
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THIS MEMBERSHIP INTERESTS PURCHASE AGREEMENT, dated as of March 15,
2002 (this "Agreement"), is by and between GEBAM, INC., a Delaware corporation
("Seller"), and ▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC., a Maryland corporation
("Buyer"). The Seller and the Buyer are herein referred to individually as a
"Party" and collectively as the "Parties."
WITNESSETH:
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WHEREAS, Seller is the beneficial owner of all of the outstanding
membership interests (collectively, the "Membership Interests") in (i) DANACQ
KALAMAZOO, LLC, a Delaware limited liability company (the "Kalamazoo LLC"), and
(ii) DANACQ FARMINGTON HILLS, LLC, a Delaware limited liability company (the
"Farmington LLC"). The term "Companies" as used herein shall mean, collectively,
the Kalamazoo LLC and the Farmington LLC , and the term "Company" as used herein
shall mean, singularly, Kalamazoo LLC and Farmington LLC;
WHEREAS, the Kalamazoo LLC was formed on October 22, 2001, by the
filing of the Certificate of Formation (the "Kalamazoo Certificate") pursuant to
the Delaware Limited Liability Company Act (6 Del. C. Section 18-101 et seq.).
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The Kalamazoo LLC was organized by the Limited Liability Company Agreement of
Danacq Kalamazoo, LLC, a Delaware Limited Liability Company (the "Kalamazoo
Operating Agreement"), dated as of October 22, 2001, executed by Seller;
WHEREAS, the Farmington LLC was formed on October 22, 2001, by the
filing of the Certificate of Formation (the "Farmington Certificate") pursuant
to the Delaware Limited Liability Company Act (6 Del. C. Section 18-101 et
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seq.). The Farmington LLC was organized by the Limited Liability Company
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Agreement of Danacq Farmington Hills, LLC, a Delaware Limited Liability Company
(the "Farmington Operating Agreement"), dated as of October 22, 2001, executed
by Seller. The term "Certificates" as used herein shall mean, collectively, the
Kalamazoo Certificate and the Farmington Certificate. The term "Operating
Agreements" as used herein shall mean, collectively, the Kalamazoo Operating
Agreement and the Farmington Operating Agreement;
WHEREAS, the Kalamazoo LLC has (a) purchased the Kalamazoo Property
(as hereinafter defined) located in the City of Kalamazoo, County of Kalamazoo,
State of Michigan, and (b) leased the Kalamazoo Property to ▇▇▇▇ Corporation, a
Virginia corporation ("Lessee") pursuant to that certain Lease Agreement dated
as of October 26, 2001, between the Kalamazoo LLC, as lessor, and Lessee, as
lessee, as amended pursuant to that certain First Amendment to Lease Agreement
dated as of December 6, 2001, between the Kalamazoo LLC, as lessor, and Lessee,
as lessee (as amended, the "Kalamazoo Lease");
WHEREAS, the Farmington LLC has (a) purchased the Farmington
Property (as hereinafter defined) located in the City of Farmington Hills,
County of
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Oakland, State of Michigan, and (b) leased the Farmington Property to Lessee
pursuant to that certain Lease Agreement dated as of October 26, 2001, between
the Farmington LLC, as lessor, and Lessee, as lessee, as amended pursuant to
that certain First Amendment to Lease Agreement dated as of December 6, 2001,
between the Farmington LLC, as lessor, and Lessee, as lessee (as amended, the
"Farmington Lease"). The term "Leases" as used herein shall mean, collectively,
the Kalamazoo Lease and the Farmington Lease;
WHEREAS, Seller desires to sell the Membership Interests to Buyer,
and Buyer desires to purchase the Membership Interests from Seller, upon the
terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
representations and warranties herein contained, the Parties hereto agree as
follows:
SECTION 1
PURCHASE AND SALE OF MEMBERSHIP INTERESTS
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1.1 Definitions. In addition to the terms defined elsewhere in
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this Agreement, the following capitalized terms whenever used in this Agreement
shall have the meanings ascribed below:
"Business Day" shall mean any day other than Saturday, Sunday, a
recognized United States holiday or a day on which banks in New York, New York
are permitted or required to be closed for business.
"Existing Title Exceptions" shall mean the documents, instruments
and other matters listed and described in Schedule B of the Existing Title
Policies.
"Existing Title Policies" shall mean, collectively, the Kalamazoo
Title Policy and the Farmington Title Policy.
"Farmington Improvements" shall mean all buildings, structures and
improvements situated on the Farmington Land, including, without limitation,
that certain building containing approximately 112,480 square feet of floor
area, all parking areas, and other amenities located on the Farmington Land and
all apparatus, elevators, built-in appliances, equipment, pumps, machinery,
plumbing, air conditioning and electrical and other fixtures located on the
Farmington Land, exclusive of any of same which are owned by Lessee.
"Farmington Intangible Personal Property" shall mean all intangible
personal property owned by Farmington LLC and related to the Farmington Land,
Farmington Improvements, and Farmington Personal Property, including all
governmental licenses and permits, the Existing Title Policy relating to the
Farmington Land and Farmington Improvements, any guaranties, warranties, or
other rights related to the ownership of or use and operation of the Farmington
Land, Farmington Improvements, and the Farmington Personal Property, and also
specifically including,
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whether or not same is deemed to be "intangible" personal property, all right,
title and interest of Farmington LLC in and to all plans and specifications with
respect to the Farmington Improvements.
"Farmington Land" shall mean all that tract or parcel of land
located in the City of Farmington Hills, County of Oakland, State of Michigan,
containing approximately 7.7 acres and being more particularly described on
Exhibit E attached hereto, together with all rights, privileges and easements
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appurtenant, benefiting or pertaining thereto, including all water rights,
mineral rights, development rights, air rights, reversions, or other
appurtenances to said property, and all right, title and interest of Farmington
LLC, if any, in and to any land lying in the bed of any street, road, alley or
right-of-way, open or proposed, adjacent to or abutting said property.
"Farmington Personal Property" shall mean all personal property now
owned or acquired by Farmington LLC prior to Closing and located on or in, or
used in connection with, the Farmington Land and Farmington Improvements,
including, without limitation, the items set forth and described on Exhibit F
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attached hereto.
"Farmington Property" shall mean, collectively, the Farmington
Land, the Farmington Improvements, the Farmington Personal Property, and the
Farmington Intangible Personal Property.
"Farmington Title Policy" shall mean that certain owner's policy of
title insurance issued by Title Company in favor of Farmington LLC, policy file
no. E053708, dated November 6, 2001, including endorsements thereto.
"GECC" shall mean General Electric Capital Corporation, a Delaware
corporation.
"Kalamazoo Improvements" shall mean all buildings, structures and
improvements situated on the Kalamazoo Land, including, without limitation, that
certain building containing approximately 150,000 square feet of floor area, all
parking areas, and other amenities located on the Land and all apparatus,
elevators, built-in appliances, equipment, pumps, machinery, plumbing, air
conditioning and electrical and other fixtures located on the Kalamazoo Land,
exclusive of any of same which are owned by Lessee.
"Kalamazoo Intangible Property" shall mean all intangible personal
property owned by Kalamazoo LLC and related to the Kalamazoo Land, Kalamazoo
Improvements, and Kalamazoo Personal Property, including all governmental
licenses and permits, the Existing Title Policy relating to the Kalamazoo Land
and Kalamazoo Improvements, any guaranties, warranties, or other rights related
to the ownership of or use and operation of the Kalamazoo Land, Kalamazoo
Improvements, and the Kalamazoo Personal Property, and also specifically
including, whether or not same is deemed to be "intangible" personal property,
all right, title and interest of Kalamazoo LLC in and to all plans and
specifications with respect to the Kalamazoo Improvements.
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"Kalamazoo Land" shall mean all that tract or parcel of land
located in the City of Kalamazoo, County of Kalamazoo, State of Michigan,
containing approximately 27 acres and being more particularly described on
Exhibit C attached hereto, together with all rights, privileges and easements
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appurtenant, benefiting or pertaining thereto, including all water rights,
mineral rights, development rights, air rights, reversions, or other
appurtenances to said property, and all right, title and interest of Kalamazoo
LLC, if any, in and to any land lying in the bed of any street, road, alley or
right-of-way, open or proposed, adjacent to or abutting said property.
"Kalamazoo Personal Property" shall mean all personal property now
owned or acquired by Kalamazoo LLC prior to Closing and located on or in, or
used in connection with, the Kalamazoo Land and Kalamazoo Improvements,
including, without limitation, the items set forth and described on Exhibit D
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attached hereto.
"Kalamazoo Property" shall mean, collectively, the Kalamazoo Land,
the Kalamazoo Improvements, the Kalamazoo Personal Property, and the Kalamazoo
Intangible Personal Property.
"Kalamazoo Title Policy" shall mean that certain owner's policy of
title insurance issued by Title Company in favor of Kalamazoo LLC, policy file
no. E053710, dated November 7, 2001, including endorsements thereto.
"Person" shall mean an individual, partnership, corporation, trust,
limited liability company, unincorporated association, joint stock company or
other entity or association.
"Properties" shall mean, collectively, the Kalamazoo Property and
the Farmington Property.
"Tax" or "Taxes" shall mean any federal, state, local, or foreign
income, gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Section 59A of the Internal Revenue Code of 1986, as amended), customs duties,
capital stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, personal property, sales, use, transfer, registration,
value added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not, but expressly excluding any real property taxes or other taxes
which are the responsibility of the Lessee under the Leases.
"Tax Return" shall mean any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"Title Company" shall mean Commonwealth Land Title Insurance
Company.
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1.2 Basic Transaction. In reliance upon the representations,
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warranties and agreements contained herein and subject to the terms and
conditions hereof, Seller hereby agrees to sell, convey, transfer and deliver to
Buyer, and Buyer hereby agrees to purchase from Seller, all of the Membership
Interests, for the purchase price set forth in Section 1.3 (the "Purchase
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Price").
1.3 Purchase Price. The Purchase Price shall be an amount equal
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to Forty-One Million Nine Hundred Fifty Thousand Dollars ($41,950,000), payable
as follows:
(a) by deposit by the Buyer, concurrently with its execution and
delivery of this Agreement, of the sum of Five Hundred Thousand Dollars
($500,000) (together with any interest earned thereon, the "Deposit") with the
Escrowee (as defined in Section 1.4) by wire transfer in accordance with such
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instructions as the Escrowee shall deliver to Buyer for such purpose, to be held
in an interest-bearing account; and
(b) the balance, at the Closing (as defined in Section 1.4) by
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wire transfer in accordance with Section 1.5, provided that, if the Closing
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occurs on any day other than the last day of a calendar month, there shall be
credited against payment of the Purchase Price an amount equal to (i) (A) the
Basic Rent (as defined in the Leases) actually paid by the Lessee with respect
to the calendar month in which the Closing occurs, times (B) a fraction, the
numerator of which is the number of days (including the date of the Closing)
remaining in the calendar month in which the Closing occurs as of the date of
the Closing, and the denominator of which is the number of days in such calendar
month, plus (ii) any Basic Rent prepaid by Lessee for any period following the
month of Closing (collectively, the "Proration Credit").
In addition, Buyer shall assume the obligations of "Lessor Parent" under Article
XXI of the Leases.
(c) Seller and Purchaser acknowledge and agree that the Purchase
Price shall be allocated (the "Allocation") as follows:
Membership Interests in Kalamazoo LLC: $18,300,000.00
Membership Interests in Farmington LLC: $23,650,000.00
Each of the Buyer and the Seller agree that, at its own cost and
expense, it (i) will prepare all required Tax Returns and reports in a manner
that is consistent with such Allocation, and (ii) will not voluntarily take any
position inconsistent therewith upon examination of any such Tax Return, in any
refund claim, in any litigation or otherwise with respect to such Tax Returns.
1.4 The Closing. Subject to the conditions set forth in
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Section 5, the closing of the purchase and sale of the Membership Interests
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hereunder (the "Closing") shall occur on or before March 29, 2002, or such other
date as the Parties shall agree ("Closing Date"). The Closing shall take place
with an escrow with Commonwealth Land Title Insurance Company ("Escrowee")
pursuant to a written escrow agreement
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among Buyer, Seller and Escrowee containing terms and conditions consistent with
the terms and conditions of this Agreement (which shall in all events be
controlling) and mutually satisfactory to Buyer and Seller.
1.5 Deliveries. At the Closing, Seller shall sell, convey,
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transfer and deliver to Buyer, and Buyer will purchase from Seller, the
Membership Interests. As payment in full for the Membership Interests being
purchased by it under this Agreement at the Closing, Buyer shall deliver to
Seller by electronic funds transfer of immediately available funds, through
escrow, the amount of the Purchase Price less the Proration Credit. In addition,
at the Closing, Buyer and Seller shall execute and deliver to escrow (a) a
settlement statement setting forth the amounts paid by or on behalf of, and the
amounts to be paid to, Buyer and Seller pursuant to this Agreement; (b) executed
counterparts of two (2) originals of an assignment and assumption of the
Membership Interests ("Membership Assignment") in the form of Exhibit A attached
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hereto; (c) executed counterparts of two (2) originals of an assignment and
assumption of the obligations of "Lessor Parent" under Article XXI of the Leases
("Lessor Parent Assignment") in form reasonably acceptable to Seller and to
Lessee as required under Article XXI of the Leases; (d) executed counterparts of
two (2) originals of an assignment and assumption of the rights and obligations
of that certain Tax Indemnification Agreement between Seller and ▇▇▇▇
Corporation dated as of October 26, 2001 in form reasonably acceptable to Seller
and to Buyer; and (e) a notice from Seller and Buyer to Lessee of the sale of
the Membership Interests to Buyer in the form attached hereto as Exhibit G, and
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each of Seller and Buyer shall also execute and deliver, or cause to be executed
and delivered, such other agreements or documents, and shall take, or cause to
be taken, such other acts, as may be required of it pursuant to Article XXI of
the Leases to effect the purchase and sale of the Membership Interests in
compliance with such Article XXI. In addition, Buyer shall deliver into escrow,
or cause to be delivered into escrow, fully executed originals of the Amendments
(as defined in Section 5.1(g) hereof), and Seller shall deliver into escrow the
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following: (i) a non-foreign affidavit in the form of Exhibit L attached hereto
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(the "Non-Foreign Affidavit"); (ii) a standard owner's affidavit in the form and
substance reasonably required by the Title Company, together with an affidavit
or other documentation reasonably acceptable to the Title Company so that the
Title Company will issue an endorsement to each of the Existing Title Policies
increasing the amount of the insurance provided thereunder to the amount of the
Purchase Price (as allocated as provided in Section 1.3 above) and changing the
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effective date thereof to the date of Closing and a "non-imputation endorsement"
with respect to each of the Existing Title Policies; (iii) appropriate evidence
of Seller's authorization to consummate the subject transaction as reasonably
required by the Title Company; (iv) a certificate evidencing the reaffirmation
of the truth and accuracy of Seller's representations and warranties set forth
in Section 3.1 hereof; (v) such surveys, site plans, plans and specifications
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and other similar, material documents relating to the Kalamazoo Property and the
Farmington Property as are in the possession or control of Seller or the
Companies; (vii) original certificates of occupancy (or if originals are not
available, then copies) for all space within the Kalamazoo Improvements and the
Farmington Improvements, to the extent same are in the possession or control of
Seller or the Companies; (viii) the original Existing Title Policies; and (ix)
original executed counterparts of the Leases.
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1.6 Resignation. As of the Closing, each Person nominated by
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Seller who serves as an officer, manager, director or in any other similar
capacity of either Company shall deliver a signed resignation from all such
positions and release of all claims against the Companies effective as of the
Closing Date in form reasonably acceptable to Buyer, and each such Person shall
thereupon be deemed to have been discharged of any and all liability to either
Company.
1.7 Tax Returns. Seller agrees that Buyer shall prepare or cause
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to be prepared and file or cause to be filed all Tax Returns for the Companies
which are filed after the Closing Date.
SECTION 2
INSPECTIONS AND INSPECTION PERIOD
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2.1 Right to Inspect. Buyer, and Buyer's agents and
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representatives, shall have the right, from time to time, prior to the Closing
Date or earlier termination of this Agreement, during normal business hours, to
enter upon the Properties for the purpose of conducting visual inspections of
the Properties, testing of machinery and equipment, taking of measurements,
making of surveys and generally for the reasonable ascertainment of matters
relating to the Properties; provided, however, that Buyer shall (i) give Seller
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reasonable prior written notice of the time and place of such entry, in order to
permit a representative of Seller to accompany Buyer; (ii) use commercially
reasonable efforts in good faith not to interfere with the operations of the
Properties or Lessee; (iii) restore any damage to the Properties or any adjacent
property caused by such actions; (iv) indemnify, defend and save Seller and, as
the case may be, its partners, trustees, shareholders, directors, members,
officers, employees and agents harmless of and from any and all claims and/or
liabilities which Seller and its partners, trustees, shareholders, directors,
members, officers, employees and agents may suffer or be subject by reason of or
in any manner relating to such entry and such activities, including, without
limitation, any claims by Lessee or its invitees; (v) not enter into Lessee's
leased premises or communicate with Lessee unless Buyer gives Seller at least 24
hours prior written notice and Buyer is accompanied by Seller or Seller's agent
in each instance; (vi) prior to entry onto the Properties, furnish Seller with a
certificate of general liability and property damage insurance maintained by
Buyer with single occurrence coverage of at least $2,000,000 (and aggregate
coverage of $5,000,000) and naming Seller, Lessee and the property manager of
Seller and/or Lessee (as applicable) as additional insureds; and (vii) not
conduct any environmental investigations or testing other than a standard "Phase
I" investigation, without the prior written consent of Seller, which Seller may
withhold in its sole and absolute discretion. All inspection rights under this
Section 2.1 shall be subject to the rights of Lessee under the Leases. To
facilitate Buyer's investigation of the Properties, Buyer acknowledges that
Seller has delivered to Buyer prior to the date hereof the documents with
respect to the Properties, described on Exhibit H attached hereto.
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2.2 No Liens Permitted. Nothing contained in this Agreement shall
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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
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labor or the furnishing of any materials to the Properties or any part thereof,
nor as giving Buyer 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 Properties or any part thereof.
Buyer agrees to promptly cause the removal of, and indemnify, defend and hold
Seller harmless with respect to, any mechanic's or similar lien filed against
the Properties or any part thereof by any party performing any labor or services
at the Properties at Buyer's request or supplying any materials to the
Properties at Buyer's request.
2.3 Buyer's Right of Termination. If Buyer determines that it is
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not satisfied with the Properties and all matters relating thereto as a result
of Buyer's inspection, Buyer shall have the right to terminate this Agreement,
for any reason whatsoever, by giving Seller written notice (the "Termination
Notice") at any time prior to 2:00 p.m. Eastern Standard Time on March 29, 2002.
The period from the date hereof to 2:00 p.m. Eastern Standard Time on March 29,
2002, is referred to herein as the "Inspection Period". Upon giving the
Termination Notice, this Agreement shall immediately terminate (except for the
indemnity obligations of Buyer to Seller under this Agreement in Section 2.1
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which shall survive termination of this Agreement and the indemnity obligations
of the Parties under Section 8.2 which shall survive the termination of this
Agreement) and the Deposit shall be returned to Buyer, as Buyer's sole and
exclusive remedy. Except as may otherwise be expressly provided in this
Agreement, Buyer shall be deemed to have consented to every fact, item and
condition relating to the Properties if a Termination Notice is not delivered by
Buyer prior to the expiration of the Inspection Period. Buyer's failure to
deliver the Termination Notice prior to the expiration of the Inspection Period
shall be deemed a waiver of Buyer's right to terminate this Agreement under this
Section 2.3 or by reason of the physical condition of the Properties or any
other matter whatsoever relating to the Properties.
2.4 Survival. The provisions of this Section 2 shall survive
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termination of this Agreement or the Closing, as the case may be, for a period
of twelve (12) months; provided, however, that any indemnity set forth in this
Section 2 shall survive the termination of this Agreement or the Closing, as the
case may be, without any such limitation.
SECTION 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
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3.1 Representations and Warranties of Seller. Seller hereby
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represents and warrants to Buyer as of the date of this Agreement as follows:
(a) Organization and Good Standing of Seller. Seller is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
(b) Organization and Good Standing of Companies. Each of the
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Companies is a limited liability company, duly organized, validly existing and
in good
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standing under the laws of the State of Delaware and is qualified to do business
in the State of Michigan. Seller has provided to Buyer true and correct copies
of the Certificates and the Operating Agreements, in each case, including all
amendments, as currently in full force and effect.
(c) Validity. Seller has the power, capacity and authority to
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enter into this Agreement, the Membership Assignment and the Lessor Parent
Assignment and to sell the Membership Interests in accordance with the terms
hereof and to perform Seller's obligations hereunder and thereunder. This
Agreement has been (and each of the Membership Assignment and the Lessor Parent
Assignment, upon the Closing, will be) duly authorized by all necessary action
on the part of Seller and GECC and executed and delivered by Seller and
constitutes (or will constitute, as the case may be) the legal, valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms, except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally or (ii) by general equitable principles regardless
of whether considered in a proceeding in equity or at law. No other proceedings
on the part of Seller or GECC are necessary to authorize the execution, delivery
and performance of this Agreement by Seller and GECC.
(d) Consents. No consent, approval, order or authorization of, or
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registration, qualification, or filing with any Person or governmental entity is
required that has not been made or obtained in connection with the consummation
of the transactions contemplated by this Agreement.
(e) No Conflict. The execution, delivery and performance of this
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Agreement, and the consummation of the transactions contemplated hereby, will
not result in (a) any violation or be in conflict with or constitute, with or
without the passage of time or giving of notice, either a breach or default
under, (i) any provision of the certificate of incorporation or by-laws of
Seller, (ii) the Certificates or Operating Agreements, (iii) any instrument,
judgment, order, writ, decree or agreement to which Seller is, or the Companies
are, a party or by which they or any of them are bound, or (iv) to the knowledge
of Seller, any provision of any federal or state statute, rule or regulation
applicable to Seller or the Companies or (b) an event that results in the
creation of any lien upon any assets of Seller or the Companies.
(f) Title to Membership Interests. Seller is the sole record and
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beneficial owner of all of the Membership Interests, free and clear of any
liens, claims, charging orders or encumbrances of any kind or nature (including
any restrictions on the right to vote, assign or otherwise transfer such
Membership Interests), and, subject to the terms and conditions of this
Agreement, Seller will transfer and deliver to Buyer at Closing good and valid
title to the Membership Interests free and clear of such limitations or
restrictions. The Membership Interests constitute all outstanding membership
interests in the Companies, and there are no outstanding options, warrants or
other rights that would entitle any Person or entity to acquire any interest in
the Companies. All such Membership Interests have been duly authorized and
validly issued, are fully paid and, except as may be expressly set forth in the
Certificates or Operating Agreements, have no
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requirement for the owner thereof to make additional contributions to, or be
liable for obligations of, the Companies.
(g) Kalamazoo Property. Since the date of Kalamazoo LLC's
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acquisition of the Kalamazoo Property, Kalamazoo LLC has not granted or
otherwise created or consented to the creation of any easement, restriction,
lien, assessment, or encumbrance respecting the Kalamazoo Property other than
the Kalamazoo Lease.
(h) Farmington Property. Since the date of Farmington LLC's
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acquisition of the Farmington Property, Farmington LLC has not granted or
otherwise created or consented to the creation of any easement, restriction,
lien, assessment, or encumbrance respecting the Farmington Property other than
the Farmington Lease.
(i) Title Policies. No claims have been made by Seller or the
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Companies under either of the Title Policies, and to the Seller's knowledge, (i)
the Title Policies are in full force and effect, and (ii) neither Seller nor the
Companies have acted or failed to act in any manner that would impair the
coverage under the Title Policies.
(j) Assets; Liabilities. Since their formation, neither of the
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Companies have acquired any assets other than any contributions made to the
Companies by Seller, the Properties and personal property and rights incidental
thereto, the Companies' interest in the Certificates, the Operating Agreements
and the Leases and any payments made to the Companies under such agreements,
including, without limitation, rent under the Leases. The Companies have no
subsidiaries and own no interests in any other entity. Except as disclosed to
Buyer in this Agreement, since the Companies' formation, neither of the
Companies have incurred any obligation or liability, including, without
limitation, any contingent liabilities, other than those arising under the
Certificates, the Operating Agreements, the Leases and those arising solely by
reason of the Companies' acquisition and ownership of the Properties such as
covenants, conditions and restrictions which burden the Properties. Seller does
not own any assets relating or with respect to the Properties or the Companies
other than the Membership Interests.
(k) Litigation. Neither the Seller nor any of the Companies have
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been served with any litigation or administrative proceeding and, to Seller's
knowledge, there is no pending or threatened litigation, arbitration, mediation
or administrative proceedings affecting Seller, the Companies or the Properties.
Neither the Seller nor any of the Companies are a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
other governmental entity, and there is no action, suit or proceeding initiated
by Seller or any of the Companies currently pending.
(l) Taxes. The Companies have not been required to file any
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income or franchise tax returns or to pay any income or franchise taxes (other
than any fees or costs paid in order to qualify to do business in the State of
Michigan). Each Company since the date of its formation has been classified as a
"disregarded entity" within the meaning of Treasury Regulation Section
301.7701-2(a). Neither the Seller nor the Companies are delinquent on any Taxes
imposed on Seller or the Companies. Neither of the Companies has waived any
statute of limitations in respect of Taxes or agreed to any
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extension of time with respect to any Taxes (including any deficiency). The
Companies do not have any liability, either individually or on a joint and
several basis with Seller or General Electric Capital Corporation, arising under
the Employee Retirement Income Security Act of 1974.
(m) Copies of Reports. All environmental, engineering, title and
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appraisal reports (collectively, the "Reports") delivered to Buyer by Seller are
true and complete ▇▇▇▇▇ of the reports received by Seller from the issuers of
such reports.
(n) No Notices. Except as disclosed in the Reports, to Seller's
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knowledge, neither Seller nor the Companies have received any written notice of
(i) any pending or threatened condemnation, taking or similar proceeding
affecting the Properties or any portion thereof, (ii) any pending public
improvements in or about any portion of the Properties which could result in a
special assessment or any reassessments against or affecting the Properties, or
(iii) any building code, zoning or environmental law violation by the Companies
or the Properties.
(o) Leases and Tenants. Seller has delivered to Buyer true and
------------------
complete copies of the Leases. Except for the Leases, the Companies have not
entered into and, to Seller's knowledge, there exist no other occupancy
agreements, leases, lettings or tenancies in effect which will affect the
Properties after Closing. None of the Companies' interest in the Leases or of
the Companies' right to receive rent payable by Lessee has been assigned,
conveyed, pledged or in any manner encumbered by the Companies.
(p) Leases - Default. No default with respect to the payment of
----------------
Basic Rent (as defined in the Leases) under the Leases has occurred, and to
Seller's knowledge, there are no existing or uncured other defaults by the
Lessee under the Leases.
(q) Leases - Commissions. No rental, lease, or other commissions
--------------------
with respect to the Leases are payable to any third party whatsoever.
(r) Warranties and Guaranties. To Seller's knowledge, attached
-------------------------
hereto as Exhibit I is a complete and accurate list and description of all of
---------
the warranties and guaranties of contractors, vendors, manufacturers and other
parties in effect and related to the Properties (other than any such warranties
or guaranties that are in favor of Lessee). Seller has heretofore provided
Purchaser with complete and accurate copies of all such warranties and
guaranties listed on Exhibit I.
---------
(s) No Other Agreements. Except for the agreements described on
-------------------
Exhibit M, the Leases and the exceptions set forth in the Existing Title
---------
Policies, the Companies have not entered into or assumed any other leases,
service contracts, management agreements, or other contracts or agreements, oral
or written, that grant to any Person whomsoever any right, title, interest or
benefit in or to all or any part of the Properties, any rights to acquire all or
any part of the Properties or any rights relating to the use, operation,
management, maintenance, or repair of all or any part of the Properties.
11
(t) Proceedings Affecting Access. To Seller's knowledge, neither
----------------------------
Seller nor the Companies have received written notice of any pending or
threatened proceedings that could have the effect of impairing or restricting
access between the Properties and adjacent public roads.
(u) No Roll-Back Taxes. To the Seller's knowledge, the Properties
------------------
have not been classified under any designation authorized by law to obtain a
special low ad valorem tax rate or to receive a reduction, abatement or
deferment of ad valorem taxes which, in such case, will result in additional,
catch-up or roll-back ad valorem taxes in the future in order to recover the
amounts previously reduced, abated or deferred.
(v) No Assessments. To Seller's knowledge, other than real
--------------
property ad valorem taxes, neither Seller nor the Companies have received
written notice of any assessments that have been made against the Properties
that are unpaid, whether or not they have become liens, and no impact fees or
similar charges or sums are payable as a result of the construction of the
Kalamazoo Improvements or the Farmington Improvements.
(w) Surveys. Seller has heretofore delivered to Buyer the most
-------
current boundary and "as-built" surveys of the Properties in the possession or
control of Seller.
(x) No Liens. All contractors, subcontractors, and other persons
--------
or entities furnishing work, labor, materials, or supplies at the request of the
Companies or Seller for the Properties have been paid in full.
(y) Bankruptcy. Seller is solvent and has not made a general
----------
assignment for the benefit of creditors nor been adjudicated a bankrupt or
insolvent, nor has a receiver, liquidator, or trustee for any of Seller's
properties (including the Membership Interests) been appointed or a petition
filed by or against Seller for bankruptcy, reorganization, or arrangement
pursuant to the Federal Bankruptcy Act or any similar Federal or state statute,
or any proceeding instituted for the dissolution or liquidation of Seller.
(z) Employees. At no time has either of the Companies employed
---------
any persons as employees (whether on a full-time, part-time or temporary basis)
or independent contractors. At no time have either of the Companies been party
to, subject to the terms of, responsible for liabilities of, maintained,
contributed to or been required to contribute to any "Benefit Arrangement." The
term "Benefit Arrangement" shall mean any employment, severance or similar
contract or arrangement (whether or not written) or any plan (specifically
including, but not limited to, any "employee benefit plan," as defined in
Section 3(3) of ERISA, and any "group health plan," as defined in Section
5000(b)(1) of the Internal Revenue Code), policy, fund, program or contract or
arrangement (whether or not written) providing for compensation, bonus,
profit-sharing, stock option, employee stock purchase plan (as that term is
defined in Section 423 of the Internal Revenue Code), or other stock related
rights or other forms of incentive or deferred compensation, vacation benefits,
insurance coverage (including any self-insured arrangements), health or medical
benefits, disability benefits, workers' compensation,
12
supplemental unemployment benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health, medical or life
insurance or other benefits). No Person serving as officer, manager, director or
in any other similar capacity of either Company is entitled to any form of
compensation or other benefits (including benefits pursuant to a Benefit
Arrangement) from the Companies.
(aa) Seller Not a Foreign Person. Seller is not a "foreign person"
---------------------------
which would subject Purchaser to the withholding tax provisions of Section 1445
of the Internal Revenue Code of 1986, as amended.
(bb) Ordinary Course of the Business. Each Company has operated
-------------------------------
its business in the ordinary course, and since the acquisition of the Properties
by the Companies:
(i) to Seller's knowledge, there has been no destruction
or loss of or to any of the assets or properties of any Company;
(ii) there has been no sale, transfer or other disposition
of any material asset or properties of any Company;
(iii) there has been no amendment, termination or waiver of
any right of any Company under any contract or agreement or governmental
license, permit or authorization;
(iv) Except as disclosed in the Existing Title Policies and
except for the Leases, there has been no mortgage, lien, security interest,
pledge, hypothecation or other encumbrance created by the Companies on or in any
of the Properties or assumed by any Company with respect to any of its assets;
and
(v) No Company has made or committed to make any capital
expenditures.
(cc) Compliance with Laws. To Seller's knowledge, each Company has
--------------------
complied with all statutes, laws, rules, regulations, orders, decrees and
ordinances applicable to it or the operation of the Properties (collectively,
the "Laws"). Neither Seller nor any Company has received any written notice
alleging any such violations of Laws.
(dd) Absence of Certain Payments. Neither Seller, or any director,
---------------------------
officer, manager, agent, employee or other Person acting on behalf of Seller,
nor any Company, or any officer, manager, agent or other Person acting on behalf
of any Company, has directly or indirectly, made contributions, gifts, or
payments relating to any political activity or solicitation of business which
was prohibited by law or, on behalf of Seller or any Company, made any direct or
indirect unlawful payment to any governmental official or employee or
established or maintained any unlawful or unreported funds. Neither Seller nor
any Company, or any officer, manager, agent or other Person acting on behalf of
any Company, has accepted or received any unlawful contribution, payment, gift,
entertainment or expenditure.
13
(ee) Certificates. To Seller's knowledge, Seller has heretofore
------------
provided Buyer with complete and accurate copies of all such certificates of
occupancy, licenses and permits related to the Properties and which are in the
possession or control of Seller, and to Seller's knowledge, each of the
Companies is in compliance with the terms of such licenses, permits and
approvals.
All references in this Section 3.1 or elsewhere in this Agreement
and/or in any other document or instrument executed by Seller in connection with
or pursuant to this Agreement, to "Seller's knowledge", "Seller's actual
knowledge", "to the knowledge of Seller" and words of similar import shall refer
solely to facts within the actual knowledge (without independent investigation
or inquiry) of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and shall not be construed to refer to the knowledge of any
other employee, officer, director, shareholder or agent of Seller or any
affiliate of Seller, and shall in no event be deemed to include imputed or
constructive knowledge. Buyer acknowledges that Seller has owned its interest in
the Companies and that the Companies have owned the Properties since
approximately October 26, 2001 and thus that Seller's knowledge regarding the
Properties is limited.
At Closing, Seller shall represent and warrant to Buyer that all
such representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing, except for any changes in any such
representations or warranties that occur and are disclosed by Seller to Buyer
expressly and in writing at any time and from time to time prior to Closing,
which disclosures shall thereafter be updated by Seller to the date of Closing.
3.2 Covenants of Seller. Seller hereby covenants for the benefit
-------------------
of Buyer that during the term of this Agreement:
(a) Amendments to Agreements. Except with Buyer's prior written
------------------------
consent, neither Seller nor the Companies will agree to any amendment or
modification of, any supplement to, or any termination or surrender of, or any
waiver of any rights of the Companies under, any of the Certificates, the
Operating Agreements, Existing Title Exceptions or the Leases.
(b) Rents. Neither Seller nor the Companies shall accept any
-----
payment of rent under the Leases more than thirty (30) days in advance of the
due date.
(c) Consents and Approvals. Except with Buyer's prior written
----------------------
consent, neither Seller nor the Companies will grant or withhold any consent or
approval right in favor of either Company under the applicable Lease or commence
any action against Lessee, provided, however, that Seller shall have the right
to grant any such consent or approval or take any such action in its reasonable
discretion if Buyer fails to respond to Seller's request for Buyer's consent by
the earlier of five (5) days after request from Buyer or the date one day before
the deadline for either Company's response under the applicable Lease. Seller
shall provide Buyer with a copy of any request for consent or approval under
either Lease within one (1) business day of receipt by either Company of such
request.
14
(d) Cooperation. Seller shall cooperate with Buyer in its
-----------
acquisition of the Membership Interests, including, without limitation, allowing
Buyer access to the Properties, subject to the rights of Lessee under the
Leases, provided, that nothing contained herein shall obligate Seller to incur
any cost or expense for which it is not expressly liable under the other
provisions of this Agreement. Furthermore, nothing in this Agreement shall
obligate Seller to take any action against Lessee under the Leases for Seller's
refusal to allow access or to execute any document requested of Seller under
this Agreement.
(e) Ordinary Course of Business. During the term of this
---------------------------
Agreement Seller shall operate the Companies in the ordinary course of business
consistent with past practice and shall use its commercially reasonable efforts
to preserve intact the Companies and their business relationships, and Seller
shall not permit the Companies to undertake any business activity other than the
ownership of the Properties or enter into any other contracts or agreements or
assume or incur any additional obligation or indebtedness, and Seller shall
cause the Companies to perform and discharge all of the duties and obligations
and comply with the covenants and agreements of the landlord or lessor under the
Leases in the manner and within the time limits required thereunder. In
addition, during the term of this Agreement, Seller shall not permit the
Companies or any of their respective officers, managers, representatives or
agents to:
(i) issue or agree to issue any additional membership
interests;
(ii) merge or consolidate with any other Person or acquire
any assets outside of the normal operation of the Properties;
(iii) sell, lease, license or otherwise dispose of any
assets or property;
(v) cancel any debts or waive any claims or rights; or
(vi) agree or commit to do any of the foregoing.
(f) Further Encumbrance. Except with Buyer's prior written
-------------------
consent, neither Seller nor the Companies shall grant or otherwise create or
consent to the creation of any easement, restriction, lien, assessment or
encumbrance respecting any of the Properties or any of the Membership Interests.
(g) Employees. Seller shall not allow the Companies to: (i) enter
---------
into any agreement with any person, labor union, or association regarding the
employment of persons for either Company, (ii) institute or adopt any Benefit
Arrangement, (iii) hire any persons as employees, or (iv) enter into any
agreement or Benefit Arrangement with any person serving as an officer, manager,
director, member or in any other similar capacity of either Company.
(h) No Action. Neither Seller nor any Company will knowingly
---------
take, or agree or commit to take, any action that would make any representation
or warranty of the Seller hereunder inaccurate in any respect at or prior to the
Closing Date.
15
(i) Estoppel Certificates. Seller shall use good faith, diligent
---------------------
efforts to obtain (i) the Estoppel Certificate executed by Arboretum Office Park
Association and Arboretum Development Limited Partnership, and (ii) the Estoppel
Certificate executed by Kalamazoo Valley Education and Office Park Condominium
Association, in the forms set forth on Exhibit J attached hereto without any
---------
material deviations.
(j) Taxes. Seller acknowledges and agrees that Seller shall be
-----
responsible for (i) the payment of all Taxes of the Companies attributable to
Seller's period of ownership of the Membership Interests (other than any such
Taxes that are the responsibility of Lessee under the Leases) and (ii) the
filing of all Tax Returns related to the Taxes described in the preceding clause
------
(i) for any period as to which the Tax Returns are required to be filed prior to
---
the Closing.
3.3 Seller's Indemnity Seller hereby agrees to indemnify,
------------------
protect, defend, save and hold harmless Buyer from and against any and all
debts, duties, obligations, liabilities, suits, claims (including any claim for
damage to property or injury to or death of any persons), demands, liens,
encumbrances, causes of action, damages, losses, fees and expenses (including,
without limitation, attorneys' fees and expenses and court costs) (all of the
foregoing, collectively, "Claims") in any way relating to, or in connection with
or arising out of:
(a) any breach by Seller of any of its representations,
warranties or covenants set forth herein;
(b) any act or omission of Seller or the Companies occurring
prior to the Closing (other than for any Claim related thereto which (i) is the
responsibility or obligation of Lessee under the Leases; (ii) arises out of
Buyer's inspection of the Properties; or (iii) would be covered by any insurance
policy that Lessee is required to maintain under the Leases; provided that the
--------
insurer under such policy has not (y) denied liability under the insurance
policy or (z) accepted defense of such Claim with reservation of its rights
against the applicable Company and ultimately denies liability due to an
exclusion under the insurance policy; provided, further, that if either of the
-----------------
events in clauses (y) or (z) above should occur, then Buyer will cooperate with
Seller in exercising the rights of the Company with respect to any such denial
of liability);
(c) any personal or bodily injury or death or property
damage occurring prior to Closing at or in respect of any of the Properties
(other than for any Claim related thereto which (i) is the responsibility or
obligation of Lessee under the Leases; (ii) arises out of Buyer's inspection of
the Properties; or (iii) would be covered by any insurance policy that Lessee is
required to maintain under the Leases; provided that the insurer under such
--------
policy has not (y) denied liability under the insurance policy or (z) accepted
defense of such Claim with reservation of its rights against the applicable
Company and ultimately denies liability due to an exclusion under the insurance
policy; provided, further, that if either of the events in clauses (y) or (z)
-----------------
above should occur, then Buyer will cooperate with Seller in exercising the
rights of the Company with respect to any such denial of liability); or
16
(d) any breach by Seller of its obligations as "Lessor Parent"
under Article XXI of the Leases prior to the Closing.
Notwithstanding anything to the contrary set forth herein, no Claim
under Section 3.3(d) may be brought to the extent such Claim arises by reason of
--------------
a breach of Buyer's obligations under Section 4.2(d) or a breach of Buyer's
--------------
representation and warranty under Section 4.1(f).
--------------
The provisions of this Section 3.3 and Section 3.6 below shall survive
----------- -----------
the Closing until the expiration of any statute of limitations; provided,
--------
however, the provisions of Section 3.3(a) and the provisions of clauses (i) and
------- -------------- -----------
(iii) of Section 3.6 (regarding the "Joint and Several Representations" and the
----- -----------
"Joint and Several Indemnity") shall automatically expire with respect to
indemnification for breach of any of the representations and warranties of
Seller on the same respective dates that such representations and warranties
shall expire as set forth in Section 3.5 below.
-----------
3.4 Distributions. Nothing contained herein shall prevent or impair
-------------
Seller's rights to cause the Companies to make distributions to Seller of any
rental or other income received by the Companies from and after the date of this
Agreement until Closing. Seller shall have no obligation to remit any such
distributions to Buyer after the Closing. Seller agrees to cause the Companies
to close at or before the Closing Date any bank accounts or other accounts with
financial institutions opened in the name of the Companies prior to the Closing.
3.5 Survival. The representations and warranties of Seller set forth
--------
in Sections 3.1 (a) through (f), 3.1(j), 3.1(k), 3.1(l), 3.1(s) and 3.1(z) shall
---------------- --- ------ ------ ------ ------ ------
survive the Closing until the expiration of any applicable statute of
limitations. All other representations and warranties of Seller shall survive
the Closing for a period of twelve (12) months following the Closing, except to
the extent that a written notice of breach of any such representation or
warranty has been given by Buyer to Seller prior to the expiration of such
twelve (12) month period and any action to be brought in connection with such
claimed breach is commenced on or prior to the date that is eighteen (18) months
after the Closing Date.
3.6 Joinder of GECC. GECC hereby agrees to be jointly and severally
---------------
liable with Seller for (i) Seller's breach of the Joint and Several
Representations (as hereinafter defined), (ii) Claims with respect to any breach
by Seller of any of the Joint and Several Covenants (as hereinafter defined),
and (iii) the Joint and Several Indemnity (as hereinafter defined).
(a) Joint and Several Representations. The term "Joint and Several
---------------------------------
Representations" as used herein shall mean the representations and warranties of
Seller set forth in Sections 3.1 (a) through (l), 3.1(o), 3.1(q), 3.1(s), 3.1(x)
---------------- --- ------ ------ ------ ------
through (aa), 3.1(bb)(ii), 3.1(bb)(iii), 3.1(bb)(v), 3.1(cc), 3.1(dd); provided,
---- ----------- ------------ ---------- ------- ------- ---------
however, that for purposes of the joinder of GECC under this Section 3.6, the
------- -----------
representations set forth in Sections 3.1(i) and 3.1(o) shall be deemed deleted
--------------- ------
in their entirety and replaced with the following:
17
"(i) Title Policies. No claims have been made by Seller or the
--------------
Companies under either of the Title Policies, and to Seller's knowledge,
neither Seller nor the Companies have acted or failed to act in any manner
that would impair the coverage under the Title Policies."
"(o) Leases and Tenants. Seller has delivered to Buyer true and
------------------
complete copies of the Leases. Except for the Leases, the Companies have
not entered into and, to Seller's knowledge, there exist no other occupancy
agreements, leases, lettings or tenancies entered into by the Companies in
effect which will affect the Properties after Closing. None of the
Companies' interest in the Leases or of the Companies' right to receive
rent payable by Lessee has been assigned, conveyed, pledged or in any
manner encumbered by the Companies."
(b) Joint and Several Covenants. The term "Joint and Several
---------------------------
Covenants" as used herein shall mean the covenants of Seller set forth in
Sections 3.2(a) through (c), 3.2(e) through (h) and 3.2(j).
--------------------------- ------------------ ------
(c) Joint and Several Indemnity. The term "Joint and Several
---------------------------
ndemnity" as used herein shall mean the indemnity obligations of Seller set
forth in Section 3.3; provided, however, that for purposes of the joinder of
----------- -----------------
GECC under this Section 3.6, the indemnity obligation set forth in Sections
----------- --------
3.3(a) shall: (i) be limited to those representations and warranties defined as
------
the Joint and Several Representations above and (ii) be deemed deleted in its
entirety and replaced with the following:
"(a) any breach by Seller of its representations or warranties
set forth herein;"
(d) Limitation of Liability. Notwithstanding anything to the
-----------------------
contrary set forth herein, GECC's liability under this Section 3.6 shall be
-----------
limited to the amount of the Purchase Price. This Section 3.6 shall not affect
-----------
the survival periods for the representations and warranties of Seller set forth
in Section 3.5 hereof or the survival period set forth in Section 3.3 hereof.
----------- -----------
(e) Acknowledgement of Consideration. GECC hereby acknowledges
--------------------------------
and agrees that the sale of the Membership Interests to Buyer in accordance with
this Agreement will benefit GECC, and GECC has joined in this Agreement for the
purposes set forth in this Section 3.6 for good and valuable consideration, the
-----------
receipt and sufficiency of which are hereby acknowledged. GECC hereby consents
to the sale and assignment of the Membership Interests to Buyer or its permitted
assigns.
SECTION 4
REPRESENTATIONS AND WARRANTIES AND COVENANTS OF BUYER
-----------------------------------------------------
4.1 Representations and Warranties of Buyer. Buyer hereby
---------------------------------------
represents and warrants to Seller as of the date of this Agreement as follows:
18
(a) Organization and Good Standing. Buyer is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the State of
Maryland.
(b) Validity. Buyer has the power, capacity and authority to
--------
enter into this Agreement, the Membership Assignment and the Lessor Parent
Assignment and to purchase the Membership Interests in accordance with the terms
hereof and to perform Buyer's obligations hereunder and thereunder. This
Agreement has been (and each of the Membership Assignment and the Lessor Parent
Assignment, upon the Closing, will be) duly executed and delivered by Buyer and
constitutes (or will constitute, as the case may be) the legal, valid and
binding obligation of Buyer enforceable against Buyer in accordance with its
terms except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally or (ii) by general equitable principles regardless
of whether considered in a proceeding in equity or at law.
(c) Consents. No consent, approval, order or authorization of, or
--------
registration, qualification, or filing with any Person or governmental entity is
required that has not been made or obtained in connection with the consummation
of the transactions contemplated by this Agreement.
(d) No Conflict. The execution, delivery and performance of this
-----------
Agreement, and the consummation of the transactions contemplated hereby, will
not result in (a) any violation or be in conflict with or constitute, with or
without the passage of time or giving of notice, either a default under, (i) any
provision of the certificate of formation or operating agreement of Buyer, (ii)
any instrument, judgment, order, writ, decree or agreement to which Buyer is a
party or by which it is bound, or (iii) to the knowledge of Buyer, any provision
of any federal or state statute, rule or regulation applicable to Buyer or (b)
an event that results in the creation of any lien upon any assets of Buyer
except, in each case, as would not result in a material adverse effect.
(e) Investment. Buyer is not acquiring the Membership Interests
----------
with a view to or for sale in connection with any distribution thereof within
the meaning of the Securities Act of 1933, as amended (the "Securities Act").
Buyer acknowledges that the transfer of the Membership Interests may be
restricted under the Securities Act and various state securities laws.
(f) Buyer Location; Compliance with Article XXI of Lease. Buyer's
----------------------------------------------------
chief executive office is located in the State of Georgia. Buyer is a U.S.
Person, as defined in the Leases, and otherwise meets the requirements of each
of paragraph (3) and paragraph (5) of Section 21.1(d) of the Leases.
(g) No Representations. BUYER ACKNOWLEDGES THAT EXCEPT AS
------------------
EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS DELIVERED BY SELLER
AT THE CLOSING, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, NOR SHALL IT BE
DEEMED TO HAVE MADE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO
THE VALUE, CONDITION, MERCHANTABILITY OR
19
FITNESS FOR USE FOR A PARTICULAR PURPOSE OF THE MEMBERSHIP INTERESTS OR OF ANY
ASSET OF THE COMPANIES (INCLUDING, WITHOUT LIMITATION, THE PROPERTIES), AND
BUYER IS PURCHASING THE MEMBERSHIP INTERESTS ON AN "AS IS," "WHERE IS" BASIS.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS DELIVERED
BY SELLER AT THE CLOSING SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER WITH RESPECT TO THE
PROPERTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (i) THE VALUE, NATURE, QUALITY
OR CONDITION OF THE PROPERTIES, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL
AND GEOLOGY, (ii) ANY INCOME TO BE DERIVED FROM THE PROPERTIES, INCLUDING,
WITHOUT LIMITATION, THE ECONOMICS OF THE LEASES, (iii) THE SUITABILITY OF THE
PROPERTIES FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON,
(iv) THE COMPLIANCE OF OR BY THE PROPERTIES OR ITS OPERATION WITH ANY LAWS,
RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR
BODY, (v) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED
INTO THE PROPERTIES, (vi) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR
OF THE PROPERTIES, (vii) COMPLIANCE WITH ANY ENVIRONMENTAL REQUIREMENTS (AS
DEFINED BELOW), INCLUDING THE EXISTENCE IN, ON, UNDER, OR IN THE VICINITY OF THE
PROPERTIES OF HAZARDOUS MATERIALS (AS DEFINED BELOW), (viii) ZONING TO WHICH THE
PROPERTIES OR ANY PORTION THEREOF MAY BE SUBJECT, (ix) THE AVAILABILITY OF ANY
UTILITIES TO THE PROPERTIES OR ANY PORTION THEREOF INCLUDING, WITHOUT
LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC, (x) USAGES OF ANY ADJOINING
PROPERTIES, (xi) ACCESS TO THE PROPERTIES OR ANY PORTION THEREOF, (xii) THE
VALUE, COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE,
DESIGN, QUALITY, DESCRIPTION, DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE
TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE PROPERTIES OR ANY PORTION THEREOF,
OR ANY INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS OF CLAIMS ON OR
AFFECTING OR PERTAINING TO THE PROPERTIES OR ANY PART THEREOF, (xiii) THE
CONDITION OR USE OF THE PROPERTIES OR COMPLIANCE OF THE PROPERTIES WITH ANY OR
ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR
LAWS, (xiv) THE EXISTENCE OR NON-EXISTENCE OF UNDERGROUND STORAGE TANKS OR THE
CONDITION THEREOF OR THE EXISTENCE OR STATUS OF ANY PERMITS THEREFOR,
20
(xv) ANY OTHER MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE LAND OR
IMPROVEMENTS, (xvi) THE POTENTIAL FOR FURTHER DEVELOPMENT OF THE PROPERTIES,
(xvii) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS
AFFECTING THE PROPERTIES, OR (xviii) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTIES. ADDITIONALLY, NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO
MAKE, AND BY EXECUTION HEREOF OF BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY
SET FORTH HEREIN AND THE DOCUMENTS DELIVERED BY SELLER AT THE CLOSING, NO PERSON
HAS MADE, ANY REPRESENTATION, AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR
PROMISE REGARDING THE PROPERTIES OR THE TRANSACTION CONTEMPLATED HEREIN; AND NO
SUCH REPRESENTATION, WARRANTY, AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY,
MADE BY ANY PERSON ACTING ON BEHALF OF SELLER SHALL BE VALID OR BINDING UPON
SELLER UNLESS EXPRESSLY SET FORTH HEREIN OR IN THE DOCUMENTS TO BE DELIVERED BY
SELLER AT THE CLOSING. EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER SET FORTH HEREIN OR IN THE DOCUMENTS TO BE DELIVERED BY
SELLER AT THE CLOSING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS NOT
RELYING ON ANY INFORMATION PROVIDED BY SELLER, INCLUDING, WITHOUT LIMITATION,
THE REPORTS, AND AGREES TO ACCEPT THE MEMBERSHIP INTERESTS AT THE CLOSING AND
WAIVE ALL OBJECTIONS OR CLAIMS AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO,
ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTIES OR
TO ANY HAZARDOUS MATERIALS ON THE PROPERTIES OTHER THAN CLAIMS BASED UPON BREACH
OF AN EXPRESS REPRESENTATION BY SELLER OR DEFAULT OF AN EXPRESS COVENANT OF
SELLER SET FORTH HEREIN OR IN THE DOCUMENTS TO BE DELIVERED BY SELLER AT
CLOSING. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION IN BUYER'S
POSSESSION OR OTHERWISE PROVIDED TO BUYER WITH RESPECT TO THE PROPERTIES WAS
OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS
AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION EXCEPT AS
EXPRESSLY SET FORTH HEREIN AND IN THE DOCUMENTS TO BE DELIVERED BY SELLER AT THE
CLOSING. SELLER SHALL NOT BE LIABLE FOR ANY VERBAL OR WRITTEN STATEMENT,
REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTIES, OR THE OPERATION
THEREOF, FURNISHED BY SELLER OR ANY REAL ESTATE BROKER, CONTRACTOR, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON AND NOT SET FORTH HEREIN OR IN THE DOCUMENTS
TO BE DELIVERED BY SELLER AT THE CLOSING. BUYER FURTHER ACKNOWLEDGES AND
21
AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE MEMBERSHIP
INTERESTS AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS, WHERE IS" CONDITION AND
BASIS WITH ALL FAULTS EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE DOCUMENTS TO
BE DELIVERED BY SELLER AT CLOSING. IT IS UNDERSTOOD AND AGREED THAT THE
MEMBERSHIP INTERESTS ARE SOLD BY SELLER AND PURCHASED BY BUYER SUBJECT TO THE
FOREGOING AND THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO
REFLECT THAT THE MEMBERSHIP INTERESTS ARE SOLD BY SELLER AND PURCHASED BY BUYER
SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION 4.1(g) SHALL SURVIVE
--------------
THE CLOSING OR ANY TERMINATION HEREOF.
(h) Hazardous Materials. "Hazardous Materials" shall mean any
------------------- -------------------
substance which is or contains (i) any "hazardous substance" as now or hereafter
defined in Section 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. (S)9601 et seq.) ("CERCLA")
or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now
or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C.
(S)6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. (S)2601 et
seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos
and asbestos containing materials, in any form, whether friable or non-friable;
(vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any additional
substances or materials which are now or hereafter classified or considered to
be hazardous or toxic under Environmental Requirements (as hereinafter defined)
or the common law, or any other applicable laws relating to the Properties.
Hazardous Materials shall include, without limitation, any substance, the
presence of which on the Properties, (A) requires reporting, investigation or
remediation under Environmental Requirements; (B) causes or threatens to cause a
nuisance on the Properties or adjacent property or poses or threatens to pose a
hazard to the health or safety of persons on the Properties or adjacent
property; or (C) which, if it emanated or migrated from the Properties, could
constitute a trespass.
(i) Environmental Requirements. "Environmental Requirements" shall
-------------------------- --------------------------
mean all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Properties are located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Properties, the Properties, or the use of the Properties,
relating to pollution, the protection or regulation of human health, natural
resources, or the environment, or the emission, discharge, release or threatened
release of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or waste or Hazardous Materials into the environment
(including, without limitation, ambient air, surface water, ground water or land
or soil).
4.2 Covenants of Buyer. Buyer hereby agrees to indemnify, protect,
------------------
defend, save and hold harmless Seller from and against any and all Claims in any
way
22
relating to, or in connection with or arising out of (i) Buyer's occupation,
ownership, leasing, use, operation, maintenance and management of the
Properties, the Companies or the Membership Interests arising after the Closing
(including, without limitation, (A) any breach by the Companies of any of their
obligations under the Certificates, the Operating Agreements or the Leases after
the Closing, (B) any breach by Buyer of the Certificates or the Operating
Agreements, (C) any act or omission of the Companies or Buyer after the Closing,
or (D) any breach by the Buyer of its obligations as "Lessor Parent" under
Article XXI of the Leases after the Closing), except to the extent any such
Claim is due to Seller's acts or negligence occurring during Seller's period of
ownership of the Membership Interests, or (ii) any breach by Buyer of any of its
representations, warranties or covenants set forth herein. Buyer acknowledges
and agrees that Buyer shall be responsible for (y) the payment of all Taxes of
the Companies attributable to Buyer's period of ownership of the Membership
Interests (other than any such Taxes that are the responsibility of Lessee under
the Leases) and (z) the filing of all Tax Returns related to the Taxes described
in the preceding clause (y) for any period after the Closing as to which the Tax
----------
Returns are required to be filed. The provisions of this Section 4.2 shall
-----------
survive the Closing or any termination hereof.
4.3 BUYER'S WAIVER AND RELEASE. EXCEPT FOR THE EXPRESS
--------------------------
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND GECC SET FORTH HEREIN OR
IN THE DOCUMENTS DELIVERED AT CLOSING, AS PART OF BUYER'S AGREEMENT TO PURCHASE
AND ACCEPT THE MEMBERSHIP INTERESTS "AS-IS WHERE-IS", AND NOT AS A LIMITATION ON
SUCH AGREEMENT, BUYER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL
ACTUAL OR POTENTIAL RIGHTS BUYER MIGHT HAVE AGAINST SELLER REGARDING ANY FORM OF
WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR TYPE, RELATING TO THE MEMBERSHIP
INTERESTS AND THE PROPERTIES OR ANY OF THE MATTERS REFERRED TO IN SECTION
-------
4.1(h). SUCH WAIVER IS ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED IN ANY WAY,
------
EXCEPT WITH RESPECT TO THE RIGHTS OF BUYER UNDER THIS AGREEMENT FOR THE BREACH
BY SELLER OF ANY OF THE REPRESENTATIONS, WARRANTIES OR COVENANTS OF SELLER SET
FORTH HEREIN OR IN THE DOCUMENTS DELIVERED AT CLOSING BY SELLER. SUCH WAIVER
INCLUDES, BUT IS NOT LIMITED TO, A WAIVER OF EXPRESS WARRANTIES, (EXCEPT FOR THE
EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER SET FORTH HEREIN OR
IN THE DOCUMENTS DELIVERED AT CLOSING BY SELLER) IMPLIED WARRANTIES, WARRANTIES
OF FITNESS FOR A PARTICULAR USE, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF
HABITABILITY, STRICT LIABILITY RIGHTS, AND CLAIMS, LIABILITIES, DEMANDS OR
CAUSES OF ACTION OF EVERY KIND AND TYPE, WHETHER STATUTORY, CONTRACTUAL OR UNDER
TORT PRINCIPLES, AT LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO, CLAIMS
REGARDING DEFECTS WHICH MIGHT HAVE BEEN DISCOVERABLE, CLAIMS REGARDING DEFECTS
WHICH WERE NOT OR ARE NOT DISCOVERABLE, PRODUCT LIABILITY CLAIMS, PRODUCT
23
LIABILITY TYPE CLAIMS, ALL OTHER EXTANT OR LATER CREATED OR CONCEIVED OF STRICT
LIABILITY OR STRICT LIABILITY TYPE CLAIMS AND RIGHTS, AND ANY CLAIMS UNDER
CERCLA; PROVIDED, HOWEVER, THAT SUCH WAIVER DOES NOT INCLUDE A WAIVER FOR THE
-------- -------
BREACH BY SELLER OF ANY OF SELLER'S EXPRESS REPRESENTATIONS, WARRANTIES OR
COVENANTS SET FORTH HEREIN OR IN THE DOCUMENTS DELIVERED AT CLOSING BY SELLER.
EFFECTIVE UPON THE CLOSING DATE, AND TO THE FULLEST EXTENT PERMITTED BY LAW,
BUYER HEREBY RELEASES, DISCHARGES AND FOREVER ACQUITS SELLER AND EVERY ENTITY
AFFILIATED WITH SELLER, ITS SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS, ACCOUNTANTS, PARTNERS AND INDEPENDENT CONTRACTORS
AND THE SUCCESSOR OF EACH AND EVERY ONE OF THEM (COLLECTIVELY, THE "SELLER
PARTIES") FROM ALL CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES,
DAMAGES, LIABILITIES, OBLIGATIONS, COSTS, LOSSES AND EXPENSES WHICH BUYER HAS
SUFFERED OR MAY SUFFER OR INCUR RELATING TO THE MEMBERSHIP INTERESTS OR THE
PROPERTIES EXCEPT TO THE EXTENT ARISING UNDER OR PURSUANT TO THIS AGREEMENT OR
UNDER OR PURSUANT TO THE DOCUMENTS DELIVERED AT CLOSING BY SELLER. AS PART OF
THE PROVISIONS OF THIS SECTION 4.3, BUT NOT AS A LIMITATION THEREON, BUYER
-----------
HEREBY AGREES THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH
ARE KNOWN OR DISCLOSED AND INCLUDES UNKNOWN CAUSES OF ACTION, CLAIMS,
CONTROVERSIES, DAMAGES, LIABILITIES, COSTS, LOSSES AND EXPENSES AND BUYER HEREBY
WAIVES ANY AND ALL RIGHTS AND BENEFITS WHICH IT NOW HAS, OR IN THE FUTURE MAY
HAVE CONFERRED UPON IT, BY VIRTUE OF THE PROVISIONS OF FEDERAL, STATE OR LOCAL
LAW, RULES OR REGULATIONS. THE PROVISIONS OF THIS SECTION 4.3 ARE MATERIAL AND
-----------
INCLUDED AS A MATERIAL PORTION OF THE CONSIDERATION GIVEN TO SELLER BY BUYER IN
EXCHANGE FOR SELLER'S PERFORMANCE HEREUNDER. THE PROVISIONS OF THIS SECTION 4.3
-----------
SHALL SURVIVE THE CLOSING OR ANY TERMINATION HEREOF.
SELLER AND BUYER HAVE EACH INITIALED THIS SECTION 4.3 TO FURTHER
-----------
INDICATE THEIR AWARENESS AND ACCEPTANCE OF EACH AND EVERY PROVISION HEREOF.
BUYER'S INITIALS:[ILLEGIBLE] SELLER'S INITIALS:[ILLEGIBLE]
----------- -----------
SECTION 5
CLOSING CONDITIONS
------------------
The Closing of the purchase and sale of the Membership Interests is
subject to the following conditions:
24
5.1 Buyer's Closing Conditions. Buyer's obligation to acquire the
--------------------------
Membership Interests is subject to the satisfaction of the following conditions
or waiver thereof in writing by Buyer:
(a) The representations and warranties of Seller under this
Agreement shall be true and correct in all material respects as of the date of
the Closing, as if made thereon.
(b) The performance by Seller of its covenants and obligations
under this Agreement.
(c) The delivery to Buyer of tenant estoppel certificates
executed by Lessee in the form of Exhibit B attached hereto without any material
---------
deviations. Seller agrees to use commercially reasonable, good faith efforts to
obtain such tenant estoppel certificates.
(d) The delivery to Buyer of resignation letters and releases as
contemplated herein from any Person nominated by Seller who serves as an
officer, manager, director or in any other similar capacity of either Company
and releases from the Seller as to its indemnification by the Companies pursuant
to the Operating Agreements.
(e) The delivery to Buyer of the Non-Foreign Affidavit.
(f) The condition of title to the Properties shall not be
impaired relative to its state as of the date of execution of this Agreement.
(g) Execution, concurrently with the Closing, of amendments to
the Leases (the "Amendments") that, inter alia, modify the rent structure during
----- ----
the extended terms of the Leases. The Amendments shall be otherwise in form and
substance reasonably satisfactory to Buyer and Lessee; provided, however, that
-----------------
Buyer shall use good faith, diligent efforts to negotiate the Amendments with
Lessee and to complete negotiations and cause fully executed originals of the
Amendments to be delivered into escrow no later than March 29, 2002; provided,
--------
further, that the Amendments shall expressly provide that they will not be
-------
effective unless and until the transactions contemplated by this Agreement have
been consummated. Seller shall have the right to participate in any negotiations
between Buyer and Lessee with respect to the Amendments.
(h) No action by any authority shall have been instituted or
threatened (other than any such action instituted or threatened by Buyer or at
the request of Buyer) for the purpose of enjoining or preventing the
transactions contemplated by this Agreement or that questions the legality or
validity of the transactions contemplated hereby.
5.2 Seller's Closing Conditions. Seller's obligation to sell the
---------------------------
Membership Interests is subject to the satisfaction of the following conditions
or waiver thereof by Seller:
25
(a) The representations and warranties of Buyer under this
Agreement shall be true and correct in all material respects as of the date of
the Closing, as if made thereon.
(b) The performance by Buyer of its covenants and obligations
under this Agreement.
(c) A certificate evidencing the reaffirmation of the truth and
accuracy of Buyer's representations and warranties set forth in Section 4.1
-----------
hereof.
(d) No action by any authority shall have been instituted or
threatened (other than any such action instituted or threatened by Seller or at
the request of Seller) for the purpose of enjoining or preventing the
transactions contemplated by this Agreement or that questions the legality or
validity of the transactions contemplated hereby.
5.3 Termination. If the Closing has not occurred by the Closing
-----------
Date due to the failure of any of the conditions set forth in Section 5.1 or
-----------
Section 5.2 above (other than the failure of any such condition due to a breach
-----------
or default hereunder by Buyer or Seller, in which case the provisions of
Sections 6.1 or 6.2 hereof, as applicable, shall control), to be satisfied, or
------------ ---
waived by the applicable Party, then either Buyer (as to the conditions set
forth in Section 5.1) or Seller (as to the conditions set forth in Section 5.2)
----------- -----------
shall have the right to terminate this Agreement upon notice to the other Party,
in which event Escrowee shall return all documents and all funds deposited with
Escrowee by the depositor thereof. Any such termination shall not relieve any
Party from its breach of any covenant under this Agreement.
SECTION 6
DEFAULT
-------
6.1 Breach by Buyer. IN THE EVENT OF THE BREACH BY BUYER OF ANY
---------------
REPRESENTATION OR COVENANT UNDER THIS AGREEMENT AND THE FAILURE TO CURE SUCH
BREACH WITHIN THE LATER OF (a) FIVE (5) DAYS OF NOTICE THEREOF OR (b) EXPIRATION
OF THE INSPECTION PERIOD, OR IN THE EVENT OF THE FAILURE OF BUYER TO CLOSE ON OR
BEFORE THE CLOSING DATE (SO LONG AS BUYER'S CLOSING CONDITIONS SET FORTH IN
SECTION 5.1 HEREOF HAVE BEEN SATISFIED), SELLER, AT ITS OPTION, MAY TERMINATE
THIS AGREEMENT AND THEREUPON SELLER SHALL BE ENTITLED TO THE AMOUNT OF THE
DEPOSIT AS LIQUIDATED DAMAGES (AND NOT AS A PENALTY) AND AS SELLER'S SOLE REMEDY
AND RELIEF WITH RESPECT THERETO UNDER THIS AGREEMENT (EXCEPT FOR THE OBLIGATIONS
OF BUYER THAT SURVIVE THE TERMINATION OF THIS AGREEMENT). IN SUCH EVENT (AND
PROVIDED THAT THE ESCROWEE HOLDS THE DEPOSIT IN ACCORDANCE WITH SECTION 1), THE
---------
ESCROWEE, IF IT HAS NOT PREVIOUSLY DONE SO, SHALL IMMEDIATELY DELIVER THE AMOUNT
OF THE DEPOSIT (I.E., $500,000.00
26
PLUS ALL ACCRUED INTEREST THEREON) TO SELLER AS LIQUIDATED DAMAGES UNDER AND IN
CONNECTION WITH THIS AGREEMENT. SELLER AND BUYER HAVE MADE THIS PROVISION FOR
LIQUIDATED DAMAGES BECAUSE IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO
ASCERTAIN AND CALCULATE, ON THE DATE HEREOF, THE AMOUNT OF ACTUAL DAMAGES
SUSTAINED BY SELLER FOR THE BREACH BY BUYER OF ITS OBLIGATION TO PURCHASE THE
MEMBERSHIP INTEREST, AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTIONS,
CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD
RECEIVE AS A RESULT OF BUYER'S BREACH OR DEFAULT, AND SELLER AND BUYER AGREE
THAT SUCH SUM REPRESENTS REASONABLE COMPENSATION TO SELLER FOR SUCH BREACH.
NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 6.1 SHALL NOT
-----------
LIMIT OR AFFECT ANY OF BUYER'S INDEMNITIES AS PROVIDED IN OTHER SECTIONS OF THIS
AGREEMENT, OR SELLER'S RIGHT TO RECEIVE REIMBURSEMENT OF ATTORNEYS' FEES, COSTS
AND EXPENSES IN ACCORDANCE WITH OTHER PROVISIONS OF THIS AGREEMENT.
BUYER'S INITIALS: [ILLEGIBLE] SELLER'S INITIALS: [ILLEGIBLE]
------------ ------------
6.2 Breach by Seller. In the event of the breach by Seller of any
----------------
representation or covenant under this Agreement and the failure to cure such
breach within five (5) days after written notice thereof from Buyer or the
failure of Seller to close on or before the Closing Date (so long as Seller's
Closing conditions set forth in Section 5.2 hereof have been satisfied), Buyer,
-----------
at its option, may: (a) terminate its obligations under this Agreement by
further written notice thereof to Seller and receive the return of the Deposit
from Escrowee; (b) specifically enforce the terms and provisions of this
Agreement against Seller; (c) avail itself of any other rights and remedies
available to Buyer at law or in equity as a result of such failure by Seller; or
(d) avail itself of any combination of the foregoing.
SECTION 7
RISK OF LOSS
------------
7.1 Condemnation. If, prior to the Closing, action is initiated
------------
to take any of the Properties by eminent domain proceedings or by deed in lieu
thereof, Buyer may either at or prior to Closing (a) terminate this Agreement,
whereupon the Deposit shall be immediately returned to Buyer and neither party
shall have any further obligation hereunder except the indemnity obligations of
the Parties that expressly survive the termination of the Agreement, or (b)
consummate the transactions contemplated in this Agreement, in which latter
event there shall be no reduction in the Purchase Price, but Buyer shall receive
at Closing a credit against the Purchase Price in the amount of any award of the
condemning authority received prior to or at Closing by the Companies.
7.2 Casualty. Except as provided in Section 3.1 of this
-------- -----------
Agreement, Seller assumes all risks and liability for damage to or injury
occurring to the Properties
27
by fire, storm, accident, or any other casualty or cause until the Closing has
been consummated. If any of the Kalamazoo Improvements or the Farmington
Improvements shall be destroyed or damaged prior to the Closing, and if either
the estimated cost of repair or replacement exceeds One Million Dollars
($1,000,000.00) or the damage results in the termination of either of the
Leases, Buyer may, by written notice given to Seller within twenty (20) days
after receipt of written notice from Seller of such damage or destruction, elect
to terminate this Agreement, in which event the Deposit shall immediately be
returned to Buyer and the rights, duties, obligations, and liabilities of all
Parties hereunder shall immediately terminate and be of no further force or
effect, except for the indemnity obligations of the Parties that expressly
survive the termination of this Agreement. If Buyer does not elect to terminate
this Agreement pursuant to this Section 7.2, or has no right to terminate this
-----------
Agreement (because the damage or destruction does not exceed $1,000,000.00 and
has not resulted in the termination of either of the Leases), and the sale of
the Property is consummated, Buyer shall be entitled to receive all insurance
proceeds (subject to any rights of Lessee under the Leases to such proceeds)
paid or payable to Seller or the Companies by reason of such destruction or
damage under the insurance (less amounts of insurance theretofore received and
applied by Seller or the Companies to costs actually incurred for restoration).
Neither Seller nor the Companies shall settle or release any damage or
destruction claims without obtaining Buyer's prior written consent in each case.
All said insurance proceeds received by Seller or the Companies by the date of
Closing shall be paid by Seller to Buyer at Closing, together with the amount
necessary to cover any difference between the amount of such proceeds and the
estimated cost of repair or replacement to the extent such amount is not paid or
obligated to be paid by Lessee under the applicable Lease. In addition, at
Closing, Seller shall pay over to Buyer, and assign to Buyer, all proceeds of
any rent loss insurance for the period of time commencing on the date of
Closing. If the amount of said casualty or rent loss insurance proceeds is not
settled by the date of Closing, Seller shall cooperate with Buyer in order that
Buyer shall receive all of Seller's or the Companies' right, title, and interest
in and under such insurance proceeds.
SECTION 8
MISCELLANEOUS
-------------
8.1 Expenses. Each Party will bear its own costs and expenses
--------
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby. Seller shall pay any State of
Michigan, county or city transfer tax due and payable in connection with the
assignment of the Membership Interests to Buyer. Seller shall pay for the first
$8,000.00 of the premium for the issuance of the endorsements to the Existing
Title Policies changing the effective dates thereof to the Closing Date and
increasing the amount of the insurance thereunder to the Purchase Price (as
allocated as provided in Section 2.2 hereof) and "non-imputation" endorsements
to the Existing Title Policies; provided, that Buyer shall pay for the costs
associated with such endorsements in excess of $8,000.00. Seller and Buyer shall
each pay one-half of the fees of Escrowee. In the event it becomes necessary for
either party hereto to file suit to enforce this Agreement or any provision
contained herein, the party prevailing in such
28
suit shall be entitled to recover, in addition to all other remedies or damages,
as provided herein, reasonable attorneys' fees, costs and expenses incurred in
such suit.
8.2 Broker. Each Party represents to the other Party that no
------
Person, corporation, or partnership acting as real estate broker, finder or real
estate agent (collectively, "broker") brought about this Agreement other than
------
Farragut Investments, Inc. and First Fidelity Companies. Seller agrees to pay
all commissions and fees due and payable to Farragut Investments, Inc. Buyer
agrees to pay all commissions and fees due and payable to First Fidelity
Companies. Seller agrees to and does hereby indemnify Buyer from all loss,
damage, cost, or expense (including reasonable attorneys' fees) that Buyer may
suffer as a result of any claim or action brought by any broker, other than
Farragut Investments, Inc., acting or allegedly acting on behalf of Seller in
connection with this transaction, and Buyer agrees to and does hereby indemnify
and hold Seller harmless from all loss, damage, cost, or expense (including
reasonable attorneys' fees) that Seller may suffer as a result of any claim or
action brought by any broker, other than First Fidelity Companies, acting or
allegedly acting on behalf of Buyer in connection with this transaction. The
obligations of the Parties under this Section 8.2 shall survive the termination
-----------
of this Agreement and/or the Closing.
8.3 Notices. All notices, requests, demands, claims, and other
-------
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Seller: GEBAM, Inc.
c/o GE Capital Asset Management
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Sale/Leaseback Asset
Manager
GE Capital Real Estate
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy, which shall not constitute notice, to:
U.S. Realty Advisors, LLC
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
29
with a copy, which shall not constitute notice, to:
GE Capital Real Estate
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel/▇▇▇▇ Portfolio
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy, which shall not constitute notice, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Buyer: ▇▇▇▇▇ Real Estate Investment Trust, Inc.
c/▇ ▇▇▇▇▇ Capital, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy, which shall not constitute notice, to:
▇▇. ▇▇▇▇ ▇▇▇▇▇
The First Fidelity Companies
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy, which shall not constitute notice, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Bank of America Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Either Party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until
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it actually is received by the intended recipient. Either Party may change the
address to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party notice in the manner
herein set forth.
8.4 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between Seller and Buyer with respect to the transactions that are the
subject matter hereof and supercedes in its entirety any prior agreements, prior
representations, alleged warranties, statements, negotiations, undertakings,
letters, acceptances, understandings, contracts and communications, whether
written or oral, among the Parties hereto with respect to or in connection with
the subject matter hereof.
8.5 Headings, Etc. The headings contained in this Agreement are
-------------
intended solely for convenience and shall not affect the rights of the Parties
to this Agreement. When used in this Agreement: (a) "or" is not exclusive; (b)
"including" is not limiting; (c) a reference to any law, rule or regulation
includes any amendment or modification thereto or thereof, as well as any
replacement therefor; and (d) unless otherwise provided for in this Agreement, a
reference to any other agreement, instrument or document shall include such
other agreement, instrument or document, as it may be amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms. References herein to Sections, paragraphs, Exhibits and the like, unless
otherwise stated, are references to Sections or paragraphs of, or Exhibits to,
this Agreement. Terms such as "herein", "hereof", or "hereunder" refer to this
Agreement as a whole, and not to any particular provision hereof.
8.6 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
8.7 General Provisions Regarding Indemnities. All of the
----------------------------------------
indemnification obligations under this Agreement shall be subject to the
following provisions:
(a) Should the indemnitor fail to discharge or undertake to
defend the indemnitee against the applicable Claim (with counsel approved by the
indemnitee), within ten (10) days after the indemnitee gives the indemnitor
written notice of the same, then the indemnitee may settle such Claim, and the
indemnitor's liability to the indemnitee shall be conclusively established by
such settlement, the amount of such liability to include both the settlement
consideration and the reasonable costs and expenses, including attorneys' fees,
incurred by the indemnitee in effecting such settlement.
(b) The indemnitor's indemnification obligations under this
Agreement shall cover the costs and expenses of the indemnitee, including
reasonable attorneys' fees, related to any actions, suits or judgments incident
to any of the matters covered by such indemnities.
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(c) The indemnitor's indemnification obligations under this
Agreement shall also extend to any present or future advisor, trustee, director,
member, officer, partner, employee, beneficiary, shareholder, participant or
agent of or in the indemnitee or any entity now or hereafter having a direct or
indirect ownership interest in the indemnitee.
8.8 Choice of Law. This Agreement shall be governed by, and
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construed in accordance with, the internal laws of the State of Michigan without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Michigan or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Michigan.
8.9 Amendments. No amendment or modification of any provision of
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this Agreement shall be valid unless the same shall be in writing and signed by
Seller and Buyer.
8.10 Counterparts. This Agreement may be signed in two or more
------------
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and all such counterparts together shall be deemed an
original of this Agreement. For purposes of this Agreement, a facsimile copy of
a Party's signature shall be sufficient to bind such Party.
8.11 Successors and Assigns. Neither this Agreement nor any of
----------------------
the rights, interests or obligations hereunder shall be assigned by any of the
Parties hereto (whether by operation or otherwise) without the prior written
consent of the other Party, provided, however, that Buyer may assign its rights
under this Agreement to an affiliate without the consent of Seller. For purposes
hereof an "affiliate" shall mean an entity controlled by, controlling or under
common control with Buyer. Subject to the foregoing, the Agreement will be
binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and permitted assigns.
8.12 Time of the Essence. Time is of the essence in this
-------------------
Agreement.
8.13 Third Party Beneficiary. This Agreement is for the sole and
-----------------------
exclusive use of Seller and Buyer and may not be enforced, nor relied upon, by
any Person other than Seller and Buyer.
8.14 Binding Agreement. Neither the delivery of an unsigned copy
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of this Agreement by Seller, nor any negotiations by Seller shall constitute an
offer to sell the Membership Interests upon the terms and conditions set forth
in this Agreement or upon any other terms or conditions. Any such delivery or
negotiations shall be deemed solely to solicit offers from potential buyers.
Seller shall have the right at all times until this Agreement is executed and
delivered by both Seller and Buyer to negotiate the sale of the Membership
Interests with Buyer or any other Person upon the terms and conditions set forth
herein or upon any other terms and conditions desired by Seller in its sole
discretion and to cease negotiations with Buyer or any other Person at any time
for
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any or no reason. Only the fully executed Agreement signed by both Buyer and
Seller shall bind Seller and Buyer.
* * *
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IN WITNESS WHEREOF, Seller and Buyer have executed this
Agreement as of the date set forth above.
GEBAM, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Authorized Signatory
-----------------------------
▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC.,
a Maryland corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title: Executive Vice President
-----------------------------
The undersigned joins in this Agreement solely for the purposes set forth in
Section 3.6 hereof:
General Electric Capital Corporation,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Title: Authorized Signatory
-------------------------
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