AMENDED AND RESTATED AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AMENDED
AND RESTATED AGREEMENT FOR
PURCHASE AND SALE OF REAL PROPERTY
THIS AMENDED AND RESTATED AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (this "Agreement") is made as of July 2, 2012, by and between LADDER CAPITAL FINANCE ▇.▇▇ and/or its assignee as permitted under this Agreement (the "Buyer"), and RSBR INVESTMENTS, LLC, RBA INVESTMENTS, LLC and OVERLAND PROPERTIES, LLC (individually and collectively, the "Seller").
WHEREAS, pursuant to the terms of that certain Agreement for Purchase and Sale of Real Property, dated as of March 27, 2012 (the "First Purchase Agreement"), executed by and between Seller and Buyer, Buyer agreed to purchase from Seller and Seller agreed to sell to Buyer, certain properties, as more particularly described in the First Purchase Agreement;
WHEREAS, pursuant to the terms of that certain Agreement for Purchase and Sale of Real Property, dated as of April 20, 2012 (the -Second Purchase Agreement"), executed by and between Seller and Buyer, Buyer agreed to purchase from Seller and Seller agreed to sell to Buyer, certain properties, as more particularly described in the Second Purchase Agreement;
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from Seller certain additional Properties, as more particularly described herein, upon the terms, covenants and provisions of this Agreement;
WHEREAS, Seller and Buyer mutually desire to combine the First Purchase Agreement and Second Purchase Agreement into a single agreement and to amend and restate in their entirety the First Purchase Agreement and the Second Purchase Agreement, to provide for, among other things, the inclusion of additional Properties, a change in the Purchase Price and modification to the Examination Periods, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the parties hereto do hereby amend and restate the First Purchase Agreement and the Second Purchase Agreement in their entirety as set forth herein and hereby agree as follows:
Section 1. Terms and Definitions: The terms listed below shall have the respective meaning given them as set forth adjacent to each term.
(a) "Seller's Broker" shall mean Park Manor Capital Partners, acting as Seller's agent.
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(b)
"Buyer's Agent" shall mean Park Manor Capital Partners, acting as Buyer's agent.
(c) "Closing" shall mean the consummation of the transaction contemplated herein as more particularly described in Section 10 hereof.
(d) "▇▇▇▇▇▇▇ Money" shall mean Five Hundred Thousand and No/Cents ($500,000.00) Dollars. Seller and Buyer each acknowledge and agree that Tluee Hundred Thousand and 00/100 ($300,000.00) Dollars has heretofore been delivered to Escrow Agent (as hereinafter defined) and is currently being held in escrow by Escrow Agent pursuant to Section 8 hereof. Buyer shall deliver to Escrow Agent, within two (2) business days after the execution and delivery by both parties of this Agreement an additional Two Hundred Thousand and 00/100 ($200,000.00) Dollars in cash or certified or bank cashier's check, or in a confirmed wire transfer of funds to be held in escrow by Escrow Agent pursuant to Section 8 hereof. Seller and Buyer shall share equally in the responsibility for paying any reasonable escrow fees charged by the Escrow Agent. Hereinafter, the term "▇▇▇▇▇▇▇ Money" shall be deemed to include all interest accrued thereon.
(e) "Delivery Date" shall have the meaning ascribed to it in the Lease. Seller shall notify Buyer upon the occurrence of the Delivery Date, and shall deliver to Buyer the Evidence of Completion (as defined in the Lease), with respect to each Property.
(f) "Examination Period(s)" shall mean, with respect to each individual Property, the period of time commencing on the date hereof and expiring thirty (30) days after the later of: (i) the Delivery Date; (ii) the Commencement Date (as defined in the Lease); (iii) the date Tenant opens for business to the public on such Property (the "Property Opening Date"), and (iv) the date Buyer receives the Due Diligence Certification (as defined in Section 6(b) hereof) with respect to a particular Property. Notwithstanding the foregoing, Seller and Buyer acknowledge and agree that the Examination Period for the Properties located in Edinburg, Texas, Farmington, New Mexico, Hawk Point, Missouri and Rocky Mount, Missouri commenced on June 6, 2012 and shall expire on July 30, 2012.
(g) "Lease" shall mean individually, and "Leases" shall mean collectively, the applicable lease between Dollar General (the "Tenant') and a Seller, as more particularly described on Schedule 2 attached hereto and mnde a part hereof
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(h) "Property" shall mean, individually and "Properties" shall mean collectively: (a) those certain parcels of real property owned in fee by Seller at the locations set forth on Schedule 1 attached hereto and incorporated herein by this reference (the "Real Property") together with all buildings, facilities and other improvements located thereon (collectively, the "Improvements"); (b) all right, title and interest of a Seller under its respective Lease with Tenant; (c) all right, title and interest of a Seller in all machinery, furniture, equipment and items of personal property of a Seller attached or appurtenant to, located on or used in the ownership, use, operation or maintenance of the Property or the Improvements (collectively, the "Personalty"); (d) all right, title and interest of a Seller, if any, to any unpaid award for (1) any taking or condemnation of its Property or any portion thereof, or (2) any damage to the Property or the Improvements by reason of a change of grade of any street or highway; (e) all easements, licenses, rights and appurtenances relating to any of the foregoing; and (f all right, title and interest of Seller in and to any warranties, tradenames, logos (including any federal or state trademark or tradename registrations), or other identifying name or ▇▇▇▇ now used in connection with the Real Property and/or the Improvements (the "Intangible Property").
(i) "Purchase Price" shall mean the aggregate sum of Eighty-Two Million Six Hundred Eighty-Three Thousand Eight Hundred Forty-Seven and 58/100 ($82,683,847.58) Dollars, allocated in accordance with Schedule I attached hereto and made a part hereof (subject, however, to an adjustment reducing the Purchase Price by the amount that is allocated to a Property as set forth on Schedule 1 to the extent a Property is rejected by Buyer during an Examination Period or is otherwise removed or rejected in accordance with the terms of this Agreement), payable by certified or bank cashier's check or in a confirmed wire transfer of funds at a Closing,
(j) "Seller's Notice Address" shall be as follows, except as same may be changed pursuant to the Notice section herein:
▇▇▇ ▇▇▇▇▇
RSBR Investments, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
And to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ Law Firm,
LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇-▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇
(k) "Buyer's Notice Address" shall be as follows, except as same may be changed pursuant to the Notice section herein:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladder Capital Finance LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
And to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ladder Capital Finance LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
And to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ladder Capital
Finance LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(1) "Title Insurer" and "Escrow Agent" shall mean in all instances Commonwealth/Lawyers Land Title Insurance Corporation, Two Grand Central Tower, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
(m) "Seller Guarantor" shall mean (i) with respect to RSBR Investments, LLC, either ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇▇▇; (ii) with respect to RBA Investments, LLC, either ▇▇ ▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇▇▇; and (iii) with respect to Overland Properties, LLC, either ▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇.
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Section 2. Proration of Expenses and Payment of Costs and Recording Fees. Seller and Buyer agree that all rents, utility charges (to the extent not payable directly to the utility supplier by Tenant), and real estate taxes and assessments (to the extent not payable directly to the taxing authority by Tenant) shall be prorated on a calendar-year basis as of the date of Closing; provided, however, that rent shall only be pro-rated to the extent paid. If Closing shall occur before the actual real estate taxes and special assessments payable during such year are known, the apportionment of such taxes and assessments shall be upon the basis of the real estate taxes and assessments for the applicable Property payable during the immediately preceding year; provided that, if the real estate taxes and assessments payable during the year in which Closing occurs are thereafter determined to be more or less than the real estate taxes and assessments payable during the preceding year, Seller and Buyer promptly shall adjust the proration of such taxes and assessments, and Seller or Buyer, as the case may be, shall pay to the other any amount required as a result of such adjustment and this covenant shall not merge with the Deed for the applicable Property delivered hereunder but shall survive the Closing. To the extent applicable, Seller shall, to the extent not payable directly by Tenant, be responsible for the payment of all municipal license taxes, if any, payable during the calendar year in which the Closing occurs and corresponding to any period prior to the date that Tenant became obligated to pay such amounts. At Closing: (a) Buyer shall pay: (i) the premium and related charges for owner's title insurance policy to be issued to Buyer; (ii) the recording fees necessary to record the deed and mortgage documents at the register of deeds office where the Property is located; and (iii) one half of any escrow fees charged by the Escrow Agent in connection with this transaction; and (b) Seller shall pay: (i) the transfer, excise and/or documentary tax/stamps in connection with the recording of the deed at the register of deeds office where the applicable Property is located and; (ii) the recording fees necessary to record the discharges of any liens of record or other instruments necessary to convey title to the Property to Buyer in accordance with this Agreement; and (iii) one half of any escrow fees charged by the Escrow Agent in connection with this transaction. Buyer shall be responsible for the cost of its own survey, environmental reports and due diligence investigations. Seller -and Buyer shall be responsible for their own attorney's fees
Section 3. Sale of Property. Subject to the terms of this Agreement, Seller agrees to sell each Property to Buyer for the Purchase Price set forth above.
Section 4. Payment of Purchase Price. Buyer shall pay a portion of the Purchase Price to Seller at each Closing, in the amount allocated to a particular Property as set forth in Schedule 1, and in accordance with all of the terms and conditions of this Agreement.
Section 5. Title. At each Closing, Seller agrees to convey to Buyer fee simple marketable title to the applicable Property by bargain and sale deed, in each instance free and clear of all liens, defects of title, and encumbrances except for the Lease, taxes for
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the current year and subsequent years not yet due and payable, and other exceptions set forth in the Title Report (as defined below) which Seller does not agree to cure under Section 6(a) herein (or is deemed to not agree to cure) and which Buyer waives as an Objection pursuant to said Section 6(a), other than those exceptions Seller is obligated to cure pursuant to Section 6(a) below (collectively, the "Permitted Exceptions").
Section 6. Examination of Property. Seller and Buyer hereby agree as follows:
(a) Title and Survey Examination. Within five (5) business days after the commencement of an Examination Period for a particular Property, Buyer shall order a title report for each Property (the "Title Report") from the Title Insurer and a survey of each Property. Seller shall notify Buyer promptly after all of the Improvements on a particular Property have been substantially completed in order to provide Buyer with the necessary time to have an ALTA survey prepared during the applicable Examination Period. Buyer shall furnish to Seller a copy of the Title Report and the survey for a particular Property on or prior to the expiration of the applicable Examination Period
"Title Review Should be delivered together with statement specifying defects in title and/or the survey for a particular Property (the "Objections"). Seller shall notify Buyer within ten (10) days after Seller's receipt of the Objections whether Seller will cure the Objections. If a Seller does not respond within said ten (10)-day period, Seller shall be deemed to have elected to not cure the Objections. If Seller does not agree (or is deemed to not agree) to cure the Objections for any particular Property, Buyer shall have the right, by notice given to Seller and Title Insurer at any time prior to Closing, either to: (a) waive the Objections with respect to any such Property and close title without abatement or reduction of the Purchase Price applicable to such Property; or (b) terminate this Agreement as to only the subject Property. If Buyer elects to terminate this Agreement as to one or more of the Properties pursuant to this Section 6(a), then: (i) this Agreement shall be deemed terminated as to any such rejected Property and neither party shall have any further rights, obligations or liabilities with respect to such rejected Property, except with respect to any obligations that expressly survive termination of this Agreement as contained herein; and (ii) there shall be a reduction in the Purchase Price payable by Buyer at Closing by the amount allocated to the Property designated for removal from this transaction as shown on Schedule 1 hereof. Notwithstanding anything to the contrary contained in this Agreement, in no event shall any of the following exceptions be a Permitted Exception and Seller shall be required to provide information and evidence to satisfy Title Insurer's standard requirements as to Seller's authority and standard title affidavits and shall be required to cure on or before the Closing: (i) any monetary liens or encumbrances against its Property (including, without limitation, all mortgages, mechanics liens, tax liens and judgments); (ii) all unpaid real estate taxes and water charges; and (iii) any encumbrances against title which are created by or through a Seller after the date of this Agreement.
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(b) Examination. Seller shall provide to Buyer: (i) upon execution of this Agreement, copies of the following documents and materials pertaining to each Property to the extent within Seller's possession or readily obtainable by Seller: a title commitment/policy; copies of title exception documents; ALTA survey; site plans and specifications; architectural plans; environmental/hazardous material reports; soils reports; governmental permits/approvals; zoning information; real property tax and assessment information; utility letters; copies of the Leases and copies of all correspondence related to the Leases; any documents required to be delivered by Seller to Buyer pursuant to Section 11 hereof; and any other documents relating to a Property reasonably requested by Buyer; (ii) upon execution of this Agreement, a copy of the certificate of formation of Seller, a copy of the operating agreement of Seller, an incumbency certificate for Seller, and a W-9 of Seller; and (iii) upon the occurrence of the Delivery Date for each Property, the Evidence of Completion (as defined in the Lease) (collectively, the "Due Diligence Materials"). Upon delivery to Buyer of all of the Due Diligence Materials applicable to a particular Property, Seller shall deliver a written certification to Buyer stating that all of the Due Diligence Materials applicable to a Property has been delivered to Buyer (the "Due Diligence Certification"). Throughout the term of this Agreement, Buyer, its agents and designees, shall have the right to enter each Property for the purposes of inspecting each Property, conducting soil tests, environmental studies, and making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations and inspections as Buyer may reasonably require to assess the condition and suitability of each Property; provided, however, that such activities by or on behalf of Buyer on a Property shall not damage such Property nor interfere with construction on the Property or the conduct of business by Tenant other than to a de minimis extent; and provided further, however, that Buyer shall indemnify and hold Seller harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on each Property, provided, however, in no event shall Buyer be responsible or liable in any way for any pre-existing conditions, including any hazardous materials discovered during its inspections of a Property, and Buyer shall repair any and all damage caused, in whole or' in part, by Buyer and return each Property to substantially the same condition that existed prior to such damage, which obligation shall survive Closing or any termination of this Agreement. Buyer shall give Seller reasonable written notice (which in any event shall not be less than one (1) business day, or such other period of time as required under the Lease) before entering each Property. Seller may have a representative present during any and all examinations, inspections and/or studies on a Property. Buyer shall have the unconditional right, for any reason or no reason at all, to terminate this Agreement as to one or more of the Properties by giving written notice thereof to Seller at any time prior to 5:00 p.m. Eastern Standard Time on the last day of the Examination Period applicable to a particular Property, in which event: (i) this Agreement shall be deemed terminated as to any such rejected Property and neither party shall have any further rights, obligations or liabilities with respect to such rejected Property, except with respect to any obligations that expressly survive termination of this Agreement as contained herein; and (ii) there
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shall be a reduction in the Purchase Price payable by Buyer at Closing by the amount allocated to the Property designated for removal from this transaction as shown on Schedule 1 hereof. If Buyer does not elect to terminate this Agreement as to any one or more Properties prior to the expiration of the applicable Examination Period, Buyer conclusively shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 6(b) with respect to such particular Property. Notwithstanding anything to the contrary contained in this Agreement, amendments to this Agreement to extend an Examination Period may be agreed in writing or email transmission by each party or each party's respective attorney and any notices to terminate this Agreement pursuant to this Section 6(b) may be given by Buyer or Buyer's attorney by email transmission to Seller and/or Seller's attorney, provided, however, any notice of termination given by email transmission shall be deemed delivered and effective upon the date sent by the Party, provided however the such email notice shall also be sent by one of the means set forth in Section 15 of this Agreement.
(c) Tenant Estoppel Certificate. Prior to a Closing, Seller shall obtain an original estoppel eeitiikate from Tenant substantially in the form of Exhibit F attached hereto (the "Tenant Estoppel") with respect to each Lease and deliver a copy of same to Buyer. Each Tenant Estoppel must not assert any defaults, offsets, defenses, punchlist items or claims under the Lease and shall state that all of the obligations of Seller relating to the construction of the premises leased by Tenant under such Lease have been satisfied (including, without limitation, the completion of all offsite improvements, punchlist items and the payment of any tenant improvement allowances). In addition, the business terms of each Tenant Estoppel must be in accordance with the applicable Lease and consistent with Seller representations set forth in Section 11 of this Agreement. Seller shall also obtain, within ten (10) business days prior to a Closing, an updated Tenant Estoppel from Tenant for the Property that is closing, which shall be dated not more than thirty (30) days before Closing. Seller agrees to reasonably cooperate with Buyer and request reasonable modifications to the Tenant Estoppel attached hereto as Exhibit F.
(d) Subordination, Non-Disturbance. Within two (2) business days following the Property Opening Date of the applicable Property, Seller shall request an original subordination, non-disturbance agreement from Tenant substantially in the form of Exhibit G attached hereto (the "SNDA") with respect to the applicable Lease. Within the timeframe specified in each Lease, Seller shall obtain each SNDA from Tenant and deliver a copy of same to Buyer.
Section 7. Risk of Loss/Condemnation.
(a) Casualty. Until Closing, the risk of loss or damage to each Property shall be borne by Seller. Upon an occurrence of a casualty affecting a Property, Seller shall promptly notify Buyer in writing of same. In the event all or any portion of a Property is damaged in any casualty, Buyer may elect to terminate this Agreement as to the affected Property by providing written notice of such termination to Seller within ten (10)
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business days after Buyer's receipt of notice of such casualty, upon which termination: (i) Agreement shall be deemed terminated as to any such removed Property and neither party shall have any further rights, obligations or liabilities with respect to such removed Property, except with respect to any obligations that expressly survive termination of this Agreement as contained herein; and (ii) there shall be a reduction in the Purchase Price payable by Buyer at Closing by the amount allocated to the Property designated for removal from this transaction as shown on Schedule 1 hereof. If Buyer does not elect to terminate this Agreement there shall be no abatement of the Purchase Price and Seller shall: (i) as to any casualty insured by Tenant and in respect of which Tenant has a restoration obligation, enforce such Tenant's obligations pursuant to the applicable Lease, or (ii) as to any casualty for which Seller is carrying insurance or is entitled to receive insurance proceeds from Tenant, Seller shall restore the damaged portion of the applicable Property, and in each case the Examination Period with respect to such Property shall re-commence upon the completion of such restoration and Tenant reopening for business to the public therein.
(b) Condemnation. Upon an occurrence of a condemnation or taking affecting a Property, Seller shall promptly notify Buyer in writing of same. In the event all or any portion of a Property is condemned or taken (or notice of any condemnation or taking is issued), then Buyer may elect to terminate this Agreement as to the Property affected by such condemnation or taking by providing written notice of such termination to Seller within ten (10) business days after Buyer's receipt of notice of such condemnation or taking, upon which termination: (i) this Agreement shall be deemed terminated as to any such removed Property and neither party shall have any further rights, obligations or liabilities with respect to such removed Property, except with respect to any obligations that expressly survive termination of this Agreement as contained herein; and (ii) there shall be a reduction in the Purchase Price payable by Buyer at Closing by the amount allocated to the Property designated for removal from this transaction as shown on Schedule 1 hereof. If Buyer does not elect to cancel this Agreement as aforesaid, there shall be no abatement of the Purchase Price and Seller shall assign to Buyer at the Closing the rights of Seller to the awards, if any, for the condemnation or taking, and Buyer shall be entitled to receive and keep all such awards.
Section 8. ▇▇▇▇▇▇▇ Money Disbursement. The ▇▇▇▇▇▇▇ Money shall be held by the Escrow Agent, in trust as escrow agent ("Escrow Agent"), and disposed of only in accordance with the following provisions:
(a) The Escrow Agent: (i) shall invest the ▇▇▇▇▇▇▇ Money in a ▇▇ ▇▇▇▇▇▇ Chase interest bearing money market account reasonably satisfactory to both Buyer and Seller; (ii) shall not commingle the ▇▇▇▇▇▇▇ Money with any funds of the Escrow Agent or others; and (iii) shall promptly provide Buyer and Seller with confirmation of the investments made.
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(b) The ▇▇▇▇▇▇▇ Money shall be applicable to the Purchase Price and shall be applied at the last Closing under this Agreement. Notwithstanding the foregoing, if Buyer does not Close on the last remaining Property and terminates this Agreement with respect to such last remaining Property, then the ▇▇▇▇▇▇▇ Money shall be returned to Buyer.
(c) If either Buyer or Seller makes a written demand (the "Demand") upon the Escrow Agent for payment of the ▇▇▇▇▇▇▇ Money, the Escrow Agent shall give written notice to the other party of the Demand within one (1) business day after receipt of the Demand. If the Escrow Agent does not receive a written objection from the other party to the proposed payment within five (5) business days after the giving of such notice by Escrow Agent, the Escrow Agent is hereby authorized to make the payment set forth in the Demand. If the Escrow Agent does receive such written objection within such five (5) business day period, the Escrow Agent shall continue to hold such amount until otherwise directed by written instructions signed by Seller and Buyer or a final judgment of a court.
(c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that the Escrow Agent shall not be deemed to be the agent of either of the parties, and that the Escrow Agent shall not be liable to either of the parties for any action or omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for its negligent acts and for any liabilities (including reasonable attorneys' fees, expenses and disbursements) incurred by Seller or Buyer resulting from the Escrow Agent's mistake of law respecting the Escrow Agent scope or nature of its duties. Seller and Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from and against all liabilities (including reasonable attorneys' fees, expenses and disbursements) incurred in connection with the performance of the Escrow Agent's duties hereunder, except with respect to actions or omissions taken or made by the Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of the Escrow Agent. The Escrow Agent has executed this Agreement in the place indicated on the signature page hereof in order to confirm that the Escrow Agent has received and shall hold the ▇▇▇▇▇▇▇ Money in escrow, and shall disburse the ▇▇▇▇▇▇▇ Money pursuant to the provisions of this Section 8.
Section 9. Default
(a) If Buyer defaults in any of its obligations undertaken in this Agreement and fails to cure such default within ten (10) days after notice from Seller specifying in reasonable detail the nature of such default, Seller shall be entitled to, as their sole and exclusive remedy to either: (i) if Buyer is willing to proceed to Closing, waive such default and proceed to Closing in accordance with the terms and provisions hereof; or (ii) declare this Agreement to be terminated with respect to the applicable Property in respect of which the default occurred. Upon such termination: (i) this Agreement shall be
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deemed terminated as to any such Property only and neither party shall have any further rights, obligations or liabilities with respect to such Property, except with respect to any obligations that expressly survive termination of this Agreement as contained herein; and (ii) there shall be a reduction in the Purchase Price payable by Buyer at Closing by the amount allocated to the Property designated for removal from this transaction as shown on Schedule 1 hereof. There shall be no forfeiture of the ▇▇▇▇▇▇▇ Money as a result of any default of Buyer.
(b) If Seller defaults in any of its obligations undertaken in this Agreement and fails to cure such default within ten (10) days after notice from Buyer specifying in reasonable detail the nature of such default, Buyer may: (i) waive such default and proceed to Closing in accordance with the terms and provisions hereof; or (ii) terminate this Agreement with respect to the applicable Property in respect of which Seller is in default, and if the Agreement is terminated as to all of the remaining Properties for which Closing has not occurred direct Escrow Agent to return the ▇▇▇▇▇▇▇ Money to Buyer and upon such termination Seller shall pay to Buyer all of the out-of-pocket costs and expenses incurred by Bu.yei in connection with this Agreement, not to exceed $50,000.00 per Property, which return and payment shall operate to terminate this Agreement and release Seller and Buyer from any and all liability hereunder with respect to the applicable Property or Properties, except those which are specifically stated herein to survive any termination hereof; or (iii) enforce specific performance of Seller's obligations hereunder, to the extent such remedy is available. Notwithstanding the foregoing, in the event Seller has conveyed a Property in violation of this Agreement to any party not related to Buyer, so that the remedy of specific performance is not thereby, or otherwise for any reason, available to Buyer, then Buyer shall, in addition to the foregoing remedies, be permitted to pursue any and all rights and remedies available to Buyer at law or in equity, including, without limitation, pursue and collect all damages of any type or kind, including without limitation, direct, indirect, resulting, consequential, special, exemplary, punitive or other damages and be further entitled to temporary and permanent restraining orders and affirmative relief.
Section 10. Closing. A Closing shall consist of the execution and delivery of documents by Seller and Buyer, as set forth below, and delivery by Buyer to Seller of the Purchase Price as allocated to each Property in accordance with the terms of this Agreement, in escrow with Escrow Agent. Each Closing shall occur on such date and time as mutually agreed to by Buyer and Seller in writing, but in no event later than that date which is fifteen (15) days after the end of the Examination Period with respect to such Property, subject however, to Buyer's right to extend the date of a Closing pursuant to this Section 10. Seller shall deliver to Buyer at Closing the following executed documents:
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(a) A bargain and sale deed (or its equivalent which provides covenants against grantor's acts) from Seller to Buyer conveying the applicable Real Property to Buyer subject only to the Permitted Exceptions;
(b) an Assignment and Assumption of Lease, in the form attached hereto as Exhibit A from Seller to Buyer assigning the Lease applicable to Seller's Property, and any security deposits thereunder, to Buyer;
(c) a ▇▇▇▇ of Sale in the form of Exhibit B attached hereto from Seller to Buyer conveying the Personalty and Intangible Property owned by such Seller to Buyer;
(d) an Assignment of Contracts, Permits, Licenses and Warranties in the form of Exhibit C attached hereto from Seller to Buyer;
(e) a settlement statement setting forth the Purchase Price, all prorations and other adjustments to be made pursuant to the terms hereof, and the funds required for Closing as contemplated hereunder;
(0 all transfer tax statements, declarations and filings as may be necessary or appropriate for purposes of recordation of the deed;
a title affidavit executed by Seller in form satisfactory to the Title Insurer;
(h) an original Tenant Estoppel from Tenant in the form of Exhibit D attached hereto, which is dated not earlier than thirty (30) days prior to the date of Closing, with respect to each Lease.
(i) an original SNDA from Tenant in the form of Exhibit E attached hereto with respect to each Lease;
(j) the letter to Tenant in the form of Exhibit F attached hereto for each Lease;
(k) clearance under any applicable State withholding tax law applicable to the sale of any of the Properties;
(1) a certificate dated as of the date of Closing confirming that the representations and warranties in Section 11 are true and correct as of the date of Closing and confirming the personal guaranty of at least one Seller Guarantor;
(m) a certificate dated as of the date of Closing, listing all of the unexpired warranties of contractors and suppliers that delivered services or materials in connection with the construction and development of the Property;
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(h) good standing certificates and corporate resolutions or member or partner consents, as applicable, for Seller and such other documents as reasonably requested by the Title Insurer;
(i) such other documents, instruments, certifications and confirmations as may be reasonably required and customary to fully effect and consummate the transactions contemplated hereby.
At each Closing, Buyer shall: (i) deliver the balance of the Purchase Price to Seller applicable to the Property as allocated on Schedule l annexed hereto, (ii) execute and deliver execution counterparts of the closing documents referenced in clauses (a) (where applicable), (b) and (e) above; and (iii) at the last Closing under this Agreement, instruct the Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money to Seller as a credit towards the Purchase Price.
Buyer shall have the right to extend the Closing of each Property for up to thirty (30) days upon written notice to Seller which notice may he given by Buyer to Roller at any time before 5:00 PM Eastern Time on the date set for Closing of the applicable Property. Notwithstanding anything to the contrary contained in this Agreement, notice to extend the Closing may be sent in writing or email transmission by Buyer or Buyer's attorney. The Closing shall be held in escrow through the mail by delivery of the closing documents to the parties on or prior to the Closing or such other place or manner as the parties hereto may mutually agree.
Notwithstanding anything to the contrary contained in this Agreement, if at Closing there are any monetary obligations of Seller due and payable under a Lease (such as, for example purposes only, a tenant improvement allowance) or any outstanding construction obligations (such as, for example purposes only, offsite improvcmcnts or punchlist items), such obligations shall remain the obligations of Seller and Buyer shall have the right to: (i) delay Closing until such time that such obligations have been satisfied; or (ii) require Seller put into escrow with the Escrow Agent, or reduce the Purchase Price by an amount necessary to satisfy such monetary obligation and/or an amount reasonably estimated by Buyer to satisfy any such non-monetary obligation of Seller under the Lease. This Section, and all provisions contained therein, shall survive the Closing.
Section 11. Representation by Seller. Seller represents and warrants to, and covenants with, Buyer as follows:
(a) Seller is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent required by law, the State in which the Property is located. Seller is authorized to consummate the transaction set forth herein and fulfill all of its respective obligations hereunder and under all closing documents to be executed by Seller, has all necessary power to execute and deliver this Agreement and all closing documents to be executed by Seller, and to perform all of
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Seller's obligations hereunder and thereunder. This Agreement and all closing documents to be executed by Seller have been duly authorized by all requisite corporate authority or other required action on the part of Seller and are the valid and legally binding obligations of Seller, enforceable in accordance with their respective terms. Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Seller is bound;
(b) Seller has good and indefeasible fee simple title to the Properties subject to matters of record and affecting the Properties and at Closing will have and will convey to Buyer by bargain and sale deed good and indefeasible fee simple title to the Properties, free and clear of all liens, defects, encumbrances, conditions, exceptions, restrictions or other matters affecting title except the Permitted Exceptions;
(c) Seller has not received any written notice of any current or pending litigation, tax appeals or environmental investigations against Seller or any of the Properties and, to the best of Seller's knowledge, there is no pending litigation, tax appeals or environmental investigations against Seller or any of the Properties;
(d) Seller has not entered into any contracts, subcontracts or agreements affecting a Property which will be binding upon Buyer after a Closing other than the Lease;
(e) Except for defaults cured on or before the date of this Agreement, Seller has not received any written notice of default under the terms of any of the Leases and, to the best of Seller's knowledge, there is no outstanding, uncured default under the terms of any of the Leases;
(f) Seller has not received any written notice from (or delivered any notice to) any governmental authority regarding any violation of any law applicable to any of the Properties and, to the best of Seller's knowledge, there are no such violations;
(g) The Personalty to be transferred to Buyer is free and clear of liens, security interests and other encumbrances arising by, through or under Seller, except as a result of loan instruments securing a loan that shall be paid in full by Seller at or prior to Closing;
(h) With respect to each Lease: (i) Schedule 2 attached hereto is a true, correct and complete description of the Lease (including any and all amendments thereto) applicable to the applicable Property, a copy of each (including all amendment(s), if applicable) shall be delivered to Buyer immediately following mutual execution and delivery of this Agreement; (ii) the Lease is in full force and effect; (iii) there are no uncured monetary defaults by Tenant under the Lease and no offset or abatement is
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presently available to, or has been asserted in writing by, Tenant under the Lease, and Seller has complied in all material respects with its obligations under the Lease, and there is no defense or claim presently available to Tenant under the Lease; (iv) no brokerage commission or compensation of any kind is due or will be due from the Property or the rent therefrom for leasing space in the Property whether past, present or future and no understanding or agreement exists with regard to payment of any leasing commissions for future leases with existing or future tenants except in connection with extensions or renewals of the Lease as specifically set forth therein; (v) other than as expressly set forth in the Lease, there are no other material promises, amendments, agreements or commitments between Tenant and Seller or any one acting by or on behalf of Seller, nor are there any commitments which will be binding on Buyer in favor of Tenant; (vi) except as set forth in the Lease; Tenant is not entitled to any rent concession, rent-free occupancy, lease buyout costs, tenant improvement costs, moving, design and refurbishment costs, tenant improvement allowance, space plan allowance, reduction or abatement of rent for any reason whatsoever, including, without limitation, for any work (not yet performed) or other consideration (not yet given) in connection with Tenant's occupancy pursuant to the Lease; and (vii) Seller is holding no security deposits with respect to the Lease and no rent has been prepaid for more than one month before its due date;
(i) There are no occupancy rights, leases or tenancies affecting the Properties other than the Leases;
(j) No person or entity has any option, right of first refusal or other right to purchase the Property or any part thereof or interest therein;
(k) Each Property is in compliance in all material respects with all applicable zoning laws, regulations and ordinances as of the date of this Agreement;
(l) Seller is not a "foreign person" under the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA") and upon consummation of the transaction contemplated hereby, Buyer will not be required to withhold from the Purchase Price any withholding tax;
(m) There are no pending or, to the best of Seller's knowledge, threatened condemnation proceedings affecting any Property and Seller has not received any written notice that there is any pending or threatened condemnation of all or any part of any Property;
(n) Seller has not initiated, and to Seller's knowledge there currently are no pending, proceedings to correct or reduce the assessed valuation of any Property and Seller has received no written notice, nor does Seller have any knowledge, of any special tax assessments pending or contemplated against any Property that are not of record or disclosed in the Title Report;
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(o) There are no employees of Seller engaged in the operation or maintenance of any of the Properties;
(p) Seller has not initiated or participated in, any, and to the best of Seller's knowledge, there is currently no action for a change or modification in the current subdivision, site plan, zoning or other land use permits for any of the Properties;
(q) Seller has not received any written notice from any governmental authority, mortgagee, insurance company, board of fire underwriters, or any other association having authority or power over all or any portion of the Properties, requesting the performance of any work or alterations with respect to any Property that has not been performed or alleging that Seller presently is in breach or violation of, or not in compliance with, any applicable law, statute, code, act, ordinance, rule permit, license, regulation, standard or underwriting requirement or under any order of court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, wherever located, with respect to any Property or Seller's present use and operation of a Property, including, without limitation, those currently relating to fire, safety, environmental laws, parking, architectural barriers to the handicapped, zoning and building codes. Moreover, Seller has no knowledge of any of the foregoing matters being pending or threatened;
(r) Seller has not assigned or transferred any of its interest in the Lease applicable to a Property other than in connection with a mortgage financing, which shall be discharged at or prior to Closing;
(s) Any and all work identified on any punchlist submitted by Tenant to Seller in connection with work performed (or required to be performed) by or on behalf of Seller has been fully performed and Seller has not received written notice and nor does Seller have any knowledge that Tenant has not accepted said work;
(t) No petition has been filed by or against Seller under the Federal Bankruptcy Code or any similar State or Federal Law; and
(u) To the best of Seller's knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous substances have been generated, stored, released, or disposed of on or about any of the Properties in violation of any law, rule or regulation applicable to a Property which regulates or controls matters relating to the environment or public health or safety (collectively, "Environmental Laws"). Seller has not received any written notice from (nor delivered any notice to) any federal, state, county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance discharge or seepage relating to any of the Properties. For purposes of this Agreement, "hazardous substances" shall mean any substance or material that is defined or deemed to be hazardous or toxic pursuant to any Environmental Laws.
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Should Seller receive notice or actual knowledge of any inaccurate information regarding any of the matters set forth in this Section 11 after the date of this Agreement and prior to a Closing, Seller will immediately notify Buyer of the same in writing. If Seller is unwilling or unable to correct such inaccuracy on or before Closing of the applicable Property, Buyer may either: (a) cancel this Agreement with respect to the Property affected by such inaccuracy and leave this Agreement in effect as to the balance of the Properties, in which event: (i) this Agreement shall be deemed terminated as to any such removed Property and neither party shall have any further rights, obligations or liabilities with respect to such removed Property, except with respect to any obligations that expressly survive termination of this Agreement as contained herein; (ii) there shall be a reduction in the Purchase Price payable by Buyer at Closing by the amount allocated to the Property designated for removal from this transaction as shown on Schedule 1 hereof; and (iii) Seller shall pay to Buyer all of the out-of-pocket costs and expenses incurred by Buyer in connection with such rejected Property, not to exceed $50,000.00 per Property; or (b) waive such right to terminate and accept such inaccuracy by proceeding with the transaction pursuant to the remaining terms and conditions of this Agreement.
The representations and warranties of Seller shall survive Closing for a period of one (1) year. At least one Seller Guarantor shall at Closing unconditionally and personally guarantee the liability of Seller for any losses, costs or damages incurred by Buyer relative to any Seller's breach of a representation and warranty set forth in this Section 11. Such personal guaranty under this Section 11 shall survive Closing, and provided that no breach of any of the representations or warranties shall have occurred, such personal guaranty under this Section 11 shall be limited to the first six (6) month period after a Closing.
Section 12. Buyer's Representations. Buyer represents and warrants to, and covenants with, Seller as follows:
(a) Buyer is duly formed, validly existing and in good standing under the lawsof Delaware, is authorized to consummate the transaction set forth herein and fulfill all of its obligations hereunder and under all closing documents to be executed by Buyer, and has all necessary power to execute and deliver this Agreement and all closing documents to be executed by Buyer, and to perform all of Buyer's obligations hereunder and thereunder. This Agreement and all closing documents to be executed by Buyer have been duly authorized by all requisite corporate or other required action on the part of Buyer and are the valid and legally binding obligation of Buyer, enforceable in accordance with their respective terms. Neither the execution and delivery of this Agreement and all closing documents to be executed by Buyer, nor the performance of the obligations of Buyer hereunder or thereunder will result in the violation of any law or any provision of the organizational documents of Buyer or will conflict with any order or decree of any court or governmental instrumentality of any nature by which Buyer is bound; and
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(b) No petition has been filed by or against Buyer under the Federal Bankruptcy Code or any similar State or Federal Law.
The representations and warranties of Buyer shall survive Closing for a period of one (1) year.
Section 13. Conditions to Buyer's Obligations. Buyer's obligation to pay the Purchase Price, and to accept title to each Property, shall be subject to compliance by Seller with the following conditions precedent on and as of the date of Closing:
(a) Possession of each Property shall be delivered to Buyer free and clear of all liens and encumbrances other than the Permitted Exceptions and the applicable Lease;
(b) Seller shall deliver to Buyer on or before the Closing the items set forth in Section 10 above;
(c) Buyer shall receive from the Title Insurer or any other title insurer approved by Buyer in its judgment and discretion, a current ALTA owner's form of title insurance policy, or irrevocable and unconditional binder to issue the same, with extended coverage for the applicable Real Property in the amount of the Purchase Price as allocated in this Agreement, dated, or updated to, the date of the Closing, insuring, or committing to insure, at its ordinary premium rates Buyer's good and marketable title in fee simple to such Real Property and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section 6 hereof and subject only to the Permitted Exceptions;
(d) Buyer shall have received a valid and permanent final certificate of occupancy (or the equivalent thereof) for each Property and Tenant (to the extent required by applicable law);
(e) Buyer shall have received the Tenant Estoppel and SNDA for each applicable Lease duly executed by Tenant, and with respect to each SNDA, duly executed by Seller and acknowledged by a notary public;
(f) Keys to all locks located in each Property, if applicable;
(g) An original copy of the Lease and any amendments thereto (including, without limitation, a Lease Modification Agreement wherein Tenant confirms the commencement date of the Lease);
(h) An original (or a copy if an original is not available) of any and all warranties issued to Seller in connection with the construction of the Improvements, it being agreed that in the event such warranties are not assignable to Buyer, Seller shall have such warranties re-issued to Buyer or Tenant, as requested by Buyer;
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(i) A certificate of property insurance and of liability insurance from Dollar General naming Buyer as an additional insured, in compliance with the Lease; and
(j) The Delivery Date and Commencement Date (as such terms are defined in the Lease) shall have occurred under the applicable Lease and Tenant shall be open and operating for business to the public in substantially all of the applicable leased space and Tenant shall be paying full and unabated rent under such Lease;
(k) All obligations of Seller under a Lease with respect to Tenant's initial occupancy thereof shall have been completed and/or satisfied, including, without limitation, satisfying the Evidence of Completion (as defined in the Lease), completing any punchlist items and paying any tenant allowances;
(1) Buyer shall have received copies of all final lien waivers from the general contractor and all subcontractors performing work or providing materials or services to a the Property; and
(m) The representations and warranties of Seller contained in this Agreement shall have been true when made and shall be true in all material respects at and as of the date of Closing as if such representations and warranties were made at and as of the Closing, and Seller shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing.
In the event any of closing conditions set forth in this Section 13 are not satisfied by the Outside Closing Date with respect to any one or more of the Properties, Buyer shall have the right to remove such non-satisfying Property from the Properties to be acquired by Buyer and terminate this Agreement with respect to such non-satisfying Property upon notice to Seller given at anytime thereafter, in which event: (i) this Agreement shall be deemed terminated as to any such rejected Property and neither party shall have any fut diet rights, obligations or liabilities with respect to such rejected Property, except with respect to any obligations that expressly survive termination of this Agreement as contained herein; and (ii) there shall be a reduction in the Purchase Price payable by Buyer at Closing by the amount allocated to the Property designated for removal from this transaction as shown on Schedule 1 hereof.
Section 14. Conditions to Seller's Obligations. Seller's obligation to deliver title to the Properties shall be subject to compliance by Buyer with the following conditions precedent on and as of the date of Closing:
(a) Buyer shall deliver to Seller on each Closing Date the remainder of the Purchase Price as allocated to such Property in accordance with Schedule 1 hereof, subject to adjustment of such amount pursuant to Section 2 hereof; and
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(b) The representations and warranties of Buyer contained in this Agreement shall have been true when made and shall be true in all material respects at and as of the date of Closing as if such representations and warranties were made at and as of the Closing, and Buyer shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed or complied with by Buyer prior to or at the Closing.
Section 15. Notices. Unless otherwise provided herein, all notices and other communications which may be or are required to be given or made by any party to the other in connection herewith shall be in writing and shall be: (i) delivered in person with proof of delivery thereof, (ii) sent by United States certified mail, postage prepaid, return receipt requested, or (iii) deposited with a nationally recognized overnight courier, in each case to the addresses set out in Section 1, or at such other addresses as specified by written notice delivered in accordance herewith. Any notice or other communication sent as hereinabove provided shall be deemed received (a) three days after being deposited in the mail if sent by certified mail, postage prepaid, return receipt requested, or (b) one day after being deposited with a commercial overnight courier if sent by such method. Notices under this Agreement may also be given by e-mail transmission, provided, however, that if such notice is sent by e-mail transmission, such notice or other communication shall also be sent by one of the other means provided hereinabove. Any notice under this Agreement may be given by the attorney representing a party in this transaction.
Section 16. Seller Covenants. Seller agrees that: (a) it shall continue to operate the Properties in the same manner in which Seller has previously operated the Properties; (b) it shall, subject to Section 7 hereof and subject to reasonable wear and tear, maintain the Properties in the same (or better) condition as exists on the date hereof; (c) it shall comply with all obligations as owner of the Properties, the landlord under the Lease, or mortgagor under any mortgage affecting any of the Properties, which Seller is required to carry out and perform, either by virtue of agreements with such parties or by virtue of any order or direction of any governmental authority having jurisdiction; (d) it shall not, without Buyer's prior written consent, enter into any agreement concerning the management or operation of a Property which would remain in effect beyond the Closing, and (e) it shall not, without Buyer's prior written consent: (i) amend any Lease in any manner; (ii) consent to an assignment of a Lease or a sublease of the premises demised thereunder or a termination or surrender thereof; and/or (iii) consent to an alteration of the premises demised thereunder (unless such consent is non-discretionary). Seller shall promptly inform Buyer in writing of any material event adversely affecting the ownership, use, occupancy or maintenance of a Property, whether insured or not.
Section 17. Post-Closing Covenants.
(a) Seller shall be and remain responsible for completing any work required to be performed by the landlord under each Lease, including, without limitation, the
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obligations set forth in Section 2 of each Lease. Seller further agrees that it will remain adequately capitalized in a manner such that such Seller shall have sufficient funds in order to comply with its respective obligations as described in this Section 17. In the event that any Seller fails to comply with said warranty obligations, Buyer may, after giving thirty (30) days written notice to Seller and Seller having failed to commence and diligently pursue to completion curative action within said time period, proceed to remedy such obligations on its own and shall have recourse against Seller for any expenses incurred thereby. Neither payment nor acceptance of the Purchase Price nor any provision in this Agreement will be deemed to constitute a waiver by Buyer of Seller's responsibility under this Section. This Section, and all provisions contained therein, shall survive a Closing. The obligations of Seller pursuant to this Section shall continue beyond the periods specified herein as to warranty work required by the landlord pursuant to the applicable Lease if such defect is discovered during the warranty period and is not cured by Seller within that warranty period. In other words, defects which arise or exist prior to the date of expiration of the warranty period must be cured and corrected by Seller even though the curing or corrective action may not be commenced or completed until after the date of expiration of the warranty period. At Closing at least one Seller Guarantor shall unconditionally, personally, guarantee the obligations of Seller pursuant to this Section 17 which guaranty shall survive a Closing and shall be confirmed at Closing.
(h) If following Closing, any Seller shall receive a payment of rent from Tenant applicable to any period from and after Closing, such Seller shall promptly remit such payment to Buyer in accordance with account instructions to be furnished by Buyer. The provisions of this Section 17 shall survive Closing.
Section 18. Entire Agreement. This Agreement constitutes the sole and entire agreement among the parties hereto and no modification of this Agreement shall be binding unless in writing and signed by all parties hereto. No prior agreement or understanding pertaining to the subject matter hereof (including, without limitation, any letter of intent executed prior to this Agreement) shall be valid or of any force or effect from and after the date hereof.
Section 19. No Representations or Warranties. Buyer hereby acknowledges, understands and agrees that it has an opportunity to inspect the Properties as set forth in Section 6 herein, and except as set forth in this Agreement or in any documents executed at Closing by Seller, each Property shall be conveyed at Closing to Buyer in "as-is" condition with no representation or warranties whatsoever.
Section 20. Applicable Law. This Agreement shall be construed under the laws of the State in which a Property is located.
Section 21. Tax-Deferred Exchange. In the event Buyer or Seller desire to effect a tax-deferred exchange in connection with the conveyance of a Propeq-ty, Ruyer and Seller
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agree to cooperate in effecting such exchange (including, without limitation, any intermediate conveyance to the members of Seller); provided, however: (1) that the exchanging party shall be responsible for all additional costs associated with such exchange; (ii) that a non-exchanging party shall not assume any additional liability with respect to such tax deferred exchange; (iii) no assignment of this Agreement shall relieve the exchanging party of its obligations under this Agreement, and the exchanging party shall remain liable for the performance of its obligations under this Agreement, including, without limitation, the representations, warranties, and covenants given by the exchanging party to the non-exchanging party, (iv) the exchange will not delay or otherwise adversely affect the Closing, (v) there is no additional unreimbursed loss, cost, damage, tax, expense or adverse consequence incurred by the non-exchanging party resulting from, or in connection with, the exchange, and the exchanging party shall indemnify, save and hold harmless the non-exchanging party of, from and against any such loss, cost, damage, tax, expense or adverse consequence (including reasonable attorneys' fees), and (vi) in no event shall the non-exchanging party be obligated to acquire any property or otherwise be obligated to take title, or appear in the records of title, to any property in connection with such exchange. Seller and Buyer shall execute such additional documents, at no cost to the non-exchanging party, as shall be required to give effect to this provision.
Section 22. Broker's Commissions. Buyer and Seller each hereby represent that, except for the Seller's Broker and Buyer's Agent listed herein, there are no other brokers involved or that have a right to proceeds in this transaction. Seller shall be responsible for payment of commissions to the Seller's Broker and Buyer's Agent pursuant to a separate, previously negotiated agreement(s). Seller and Buyer each hereby agree to indemnify and hold the other harmless from all loss, cost, damage or expense (including reasonable attorneys' fees at both trial and appellate levels) incurred by the other as a result of any claim arising out of the acts of the indemnifying party (or others on its behalf) for a commission, finder's fee or similar compensation made by any broker, finder or any party who claims to have dealt with such party (except that Ruyer shall have no obligations hereunder with respect to any claim by Seller's Broker and/or Buyer's Agent). The representations, warranties and indemnity obligations contained in this section shall survive the Closing or the earlier termination of this Agreement.
Section 23. Assignment. Buyer may assign all or any portion of its rights under this Agreement to one or more assignees or designees; provided, however, that no such assignment shall relieve Buyer of any of its obligations hereunder until Closing is complete.
Section 24. Attorneys' Fees. In any action between Buyer and any Seller as a result of failure to perform or a default under this Agreement, the prevailing party shall be entitled to recover from the other party, and the other party shall pay to the prevailing party, the
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prevailing party's attorneys' fees and disbursements and court costs incurred in such action.
Section 25. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other party.
Section 26. Interpretation. If there is any specific and direct conflict between, or any ambiguity resulting from, the terms and provisions of this Agreement and the terms and provisions of any document, instrument or other agreement executed in connection herewith or in furtherance hereof, including any Exhibits hereto, the same shall be consistently interpreted in such manner as to give effect to the general purposes and intention as expressed in this Agreement which shall be deemed to prevail and control.
Section 27. Headings. The headings of this Agreement are for reference only and shall not limit or define the meaning of any provision of this Agreement.
Section 28. Severability. If any provision of this Agreement is unenforceable to any extent, the remaining portions of such provision, and all other provisions of this Agreement, shall nevertheless be kept in effect.
Section 29. Counterparts. This Agreement may be executed by portable document format (pdf) and/or in any number of counterparts. Each party may rely upon any emailed pdf or counterpart copy as if it were one original document.
Section 30. Rents and Deposits. Seller and Buyer agree that, in addition to all other conditions and covenants contained herein, Buyer shall receive a credit at Closing for security deposits and advance rents paid/abatements, if any, held by Seller and Seller shall deposit with Buyer and Escrow Agent not later than the business day immediately prior to Closing a statement as to the date to which all rents have been paid. All base rent and other charges payable by the Tenant will be prorated between Seller and Buyer as of midnight on the date of Closing as if such rent and other charges had been collected in accordance with the Leases. In no event shall Buyer be obligated to attempt to collect from any Tenant any delinquent or past due sums or amounts owed to Seller, but Buyer shall reasonably cooperate with Seller (at no expense to Buyer) with respect thereto. If following Closing, Seller shall receive a payment of rent from Tenant applicable to any period from and after Closing, Seller shall promptly remit such payment to Buyer. The provisions of this Section 30 shall survive Closing.
Section 31. Additional Termination Right of Buyer. Buyer shall have the right to terminate this Agreement upon notice to Seller if Tenant is downgraded from its rating as of the date of this Agreement by Standard & Poor's (BB+) or Moody's (Bal) at any time prior to a Closing whereupon: (i) this Agreement shall be deemed terminated and neither
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party shall have any further rights, obligations or liabilities hereunder, except with respect to any obligations that expressly survive termination of this Agreement as contained herein; and (ii) the ▇▇▇▇▇▇▇ Money shall promptly be returned to Buyer.
Section 32. Termination Right of Seller. Except with respect to the right of Buyer to terminate this Agreement as to one or more of the Properties as described in the next sentence of this Section, if Buyer terminates this Agreement as to more than ten (10) of the Properties pursuant to the terms of this Agreement, then Seller shall have the right to terminate the whole of this Agreement, as to the balance of the Properties for which Closing has not occurred, by ten (10) days prior notice to Buyer, in which event neither party shall have any further claim against the other, except (i) with respect to those matters which this Agreement provides expressly survive the termination of this Agreement, and (ii) the ▇▇▇▇▇▇▇ Money shall be returned to Buyer. Notwithstanding the foregoing, any termination of this Agreement as to one or more Properties for any of the following reasons shall not be included in calculating whether or not Purchaser has terminated this Agreement as to more than ten (10) Properties for the purposes of determining -whether Seller's light to terminate has accrued pursuant to This Section 32: (i) any termination of this Agreement as to any Property in respect of which Buyer's due diligence discloses any environmental contamination, whether past or present, affecting a Property which constitutes a present "Recognized Environmental Condition" under a standard ASTM Phase I report; or (ii) any termination of this Agreement as to any Property pursuant to Section 6(A) above due to an uncured Objection, or (iii) any termination of this Agreement as to any Properties pursuant to Section 7 above.
Section 33. Incorporation of Exhibits by Reference. All Exhibits to this Agreement are fully incorporated herein as though set forth at length herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above.
SELLER:
RSBR INVESTMENTS, LLC, a Missouri limited liability company
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Manager
RBA INVESTMENTS, LLC, a Missouri limited liability company
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Manager
OVERLAND PROPERTIES, LLC, a Missouri limited liability company
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Manager
BUYER:
LADDER CAPITAL
FINANCE LLC, a Delaware limited liability company
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
JOINDER AND CONSENT OF ESCROW AGENT:
An original, fully executed copy of this Agreement, together with the first installment of the ▇▇▇▇▇▇▇ Money, has been received by Escrow Agent this 3rd day of July, 2012, and by execution hereof Escrow Agent covenants and agrees to be bound by the terms of this Agreement applicable to Escrow Agent.
Escrow Agent:
COMMONWEALTH TITLE LAND INSURANCE COMPANY
By:
Name:
Title:
EXHIBITS AND SCHEDULES
| Schedule 1 | List of Properties and Purchase Price Allocation | |
| Schedule 2 | List of Leases | |
| Exhibit A | Form of Assignment and Assumption of Lease | |
| Exhibit B | - | Form of ▇▇▇▇ of Sale |
| Exhibit C | Form of Assignment of Contracts, Permits, Licenses and Warranties | |
| Exhibit D | Form of Tenant Estoppel | |
| Exhibit E | Form of SNDA | |
| Exhibit F | - | Form of Tenant Notice |