Exhibit 10.1
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is dated for reference
purposes June 16, 1999, and is entered into by and among BLACK CANYON LOOP
COMPANY LLC, an Arizona limited liability company, as fee owner of Parcel I
described in Exhibit A ("BCLC"), METROPOLITAN OPERATING PARTNERSHIP, L.P., an
Arizona limited partnership, as fee owner of Parcel 2 described in Exhibit A
("MOP") (collectively, "Seller"), and SAFEWAY INC., a Delaware corporation
("Buyer").
1. Agreement To Sell And To Buy. Seller agrees to sell and convey to Buyer
and Buyer agrees to purchase from Seller all of Sellers right, title, and
interest in the following described property (the "Subject Property'):
1.1 Land. All of the land situated in the City of Phoenix, County of
Maricopa, State of Arizona, commonly known as Deer Valley Corporate
Center, and legally described in Exhibit A attached (including all
appurtenances and Seller's right, title and interest, if any, in
adjacent streets and alleys) (the "Land"), consisting of
approximately 43 acres, upon which is located a building consisting
of approximately One Hundred Seventy Thousand (170,000) square feet,
together with related surface and single level deck parking.
1.2. Improvements. All buildings, improvements, and fixtures situated on
the Land (the "Improvements").
1.2.1. The Improvements include a four (4) story, Class "A" office
building totaling approximately 170,000 square feet, parked
at 5/1000 with surface parking and a single level parking
deck (collectively, the "Building").
1.3. Tangible Personal Property. All tangible personal property owned by
Seller, located on the Land and/or in the Improvements, and used in
the ownership, operation, and maintenance of the Subject Property.
1.4. Intangible Personal Property. Intangible property used in the
ownership, operation, and maintenance of the Subject Property,
consisting of the right to use the name "Deer Valley Corporate
Center," and any related tradenames, trade dress, or trademarks, all
leases, contract rights, instruments, documents of title,
transferable licenses, plans, specifications, as-built drawings, and
goodwill.
2. Purchase Price. The purchase price for the Subject Property is Thirty-six
Million Dollars ($36,000,000) cash (the "Purchase Price"), payable as
follows:
2.1. Initial Deposit. Within three (3) business days after execution and
delivery of this Agreement, Buyer shall deposit in Escrow a check
or draft in the sum of One Million Five Hundred Thousand Dollars
($1,500,000) payable to the Escrow Agent and to be held in an
interest bearing account for Buyer's account as a refundable
deposit (the "Initial Deposit") applicable toward the Purchase
Price.
2.2. Cash At Closing. The balance of the Purchase Price shall be payable
in cash at closing.
2.3. Bonds and Assessments. Any bonds or assessments shall be paid in full
by Seller.
3. Contingency Release Date; Close of Escrow; Additional Deposit.
3.1. Contingency Release Date. The Contingency Release Date shall be the
date which is thirty (30) days after the execution and delivery of
this Agreement.
3.2. Close of Escrow. The close of Escrow ("Closing") shall occur on or
before the date (the "Closing Date") which is ten (10) days after
the Contingency Release Date.
3.2.1. If on the Closing Date title to the Subject Property is
affected by any lien or encumbrance which is not a Permitted
Exception (as defined below), Seller may adjourn the Closing
from time to time upon written notice to Buyer to a date no
later than August 16, 1999 for the purpose of attempting to
remove the lien or encumbrance.
3.2.2. If on the Closing Date Seller has not obtained the
Certificate of Occupancy (as defined below), Seller may
adjourn the Closing from time to time upon written notice
to Buyer to a date no later than August 16, 1999 for the
purpose of obtaining the Certificate of Occupancy.
3.2.3. If on the Closing Date one or more of the conditions set
forth in Section 16 of this Agreement is not satisfied or
waived, Seller may adjourn the Closing from time to time
upon written notice to Buyer to a date no later than August
16, 1999 for the purpose of bringing about the satisfaction
of the conditions.
3.2.4. If Closing has not occurred on or before August 16, 1999, on
account of the failure of one or more of the conditions set
forth in Subsection 3.2.1, 3.2.2, or 3.2.3, Buyer may
adjourn the Closing from time to time upon written notice
to Seller to a date no later than September 16, 1999 for the
purpose of providing additional time for Seller to
satisfactorily address the issues set forth in Subsection
3.2.1, 3.2.2, or 3.2.3, during which ▇▇▇▇ ▇▇▇▇▇▇ shall
continue to use commercially reasonable efforts to do so. If
Closing has not occurred on or before September 16, 1999,
on account of the failure 6f one or more of the conditions
set forth in Subsection 3.2.1, 3.2.2, or 3.2.3, either party
shall have the right to terminate this Agreement upon
written notice to the other.
3.3. Additional Deposit. Unless Buyer terminates this Agreement on or
prior to the Contingency Release Date, within three (3) business
days following the Contingency Release Date Buyer shall deposit in
Escrow a check or draft in the sum of One Million Five Hundred
Thousand Dollars ($1,500,000) payable to the Escrow Agent and to be
held in an interest bearing account for Buyer's account as an
additional refundable deposit (the "Additional Deposit") applicable
toward the Purchase Price.
3.4. Deposit. The Initial Deposit and the Additional Deposit shall be
referred to as the "Deposit." Unless Buyer terminates this
Agreement on or prior to the Contingency Release Date, the Initial
Deposit shall be non-refundable after the Contingency Release Date.
The Additional Deposit - shall be non-refundable when deposited in
Escrow. The entire Deposit shall be applicable to the purchase
price.
3.5. Seller's Right To Terminate. If Buyer does not timely terminate this
Agreement pursuant to the provisions of Section 15 of this Agreement
and Buyer fails to deposit the Additional Deposit in Escrow prior to
5:00 p.m. PDT on the third (3rd) business day after the Contingency
Release Date, Seller shall have the right to terminate this
Agreement by written notice to Buyer given at any time prior to the
time Buyer deposits the Additional Deposit in Escrow, in which case
Escrow Agent shall promptly deliver the Initial Deposit to Seller.
In such event the Initial Deposit shall be deemed to be liquidated
damages (and not a penalty) for Buyer's failure to perform its
obligations under this Agreement, it being agreed that Seller's
actual damages as a consequence of Buyer's default may be difficult,
if not impossible, to accurately quantify.
4. Escrow. Within three (3) business days after the execution and delivery
of this Agreement, the parties shall open an escrow (the "Escrow") with
Commonwealth Land Title Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇▇ (Voice: 212-949-0100 or
212-949-6208; Telecopy: 212-856-9308) (the "Escrow Agent"), and the
parties shall deposit with Escrow Agent an executed copy of this
Agreement. At the request of Seller, Buyer, or Escrow Agent, within seven
(7) days after execution and delivery of this Agreement Escrow Agent
shall prepare and Seller, Buyer, and Escrow Agent shall execute and
deliver an escrow agreement reasonably satisfactory to Seller, Buyer, and
Escrow Agent, which escrow agreement may clarify or restrict Escrow
Agent's duties or liability, without, however, amending or modifying any
portion of this Agreement.
5. Title Report Survey, and Review.
5.1. Within five (5) business days after the execution and delivery of
this Agreement, Seller shall deliver to Buyer any existing survey and
any existing title report or commitment covering all or any part of
the Subject Property. Buyer may order at its expense a survey of the
Subject Property (the "Survey", to be completed prior to closing),
and within five (5) business days following the execution and
delivery of this Agreement, Buyer shall order a current title
commitment covering the Subject Property, together with legible copies
of all documents referred to therein, to be issued to Buyer by
Commonwealth Land Title Company (the "Title Company") (together, the
"Title Report"). On or before the date which is ten (10) business
days after Buyers receipt of the Title Report and the Survey, Buyer
shall notify Seller in writing of any matters listed in the Title
Report or depicted on the Survey which Buyer disapproves (the "Title
Defects"). Buyer's failure to notify Seller of Buyers disapproval of
a Title Report or Survey matter within this period shall be deemed
to be an approval of the matter. The Title Defects shall be cured or
removed by Seller by the close of Escrow as a condition to Buyer's
obligation to close and not as a covenant of Seller to remove the
same, provided, however, that Seller shall use reasonable efforts to
remove Title Defects. Seller shall remove mortgages, deeds of trust
and related and similar loan security liens and encumbrances of
record as of the date of execution and delivery of this Agreement,
and other monetary liens caused or imposed by Seller, delinquent
real estate taxes, and mechanics' liens (or with respect to
mechanics' liens Seller may cause the Title Company to insure over).
Except as otherwise provided in this Agreement with respect to
completion of the Building and payment therefor, Seller shall not be
required to expend funds in excess of Fifty Thousand Dollars
($50,000) to remove non-monetary liens or other monetary liens.
Seller shall inform Buyer promptly and in writing whether or not
Seller anticipates being unable to remove any Title Defects. The
parties acknowledge that Buyers review of leases is part of Buyer's
feasibility study to be conducted by Buyer prior to the Contingency
Release Date.
6. Title. Seller shall convey to Buyer marketable and insurable fee simple
title to the Subject Property. Seller's obligation to convey title shall
be deemed satisfied by Buyer's acceptance of the Deed and Title Policy.
Title shall be evidenced by the issuance by the Title Company of its
standard ALTA Owner's Policy of Title Insurance ("Title Policy") in the
full amount of the Purchase Price. At Buyer's option, the Title Policy
shall be an extended coverage policy. The Title Policy shall insure in
Buyer fee simple title to the Subject Property, subject only to a lien to
secure payment of real property taxes and assessments not delinquent and
other exceptions which are disclosed by the Title Report and Survey and
which are not disapproved by Buyer in accordance with the provisions of
this Agreement (the "Permitted Exceptions"). Subject to reasonable
approval of the Title Company and Buyer, and subject to Seller's
obligation to pay monetary liens, Seller shall have the right, but not
the obligation, to bond or escrow for monetary liens which are not
readily dischargeable prior to closing (e.g., mechanic liens for TI's or
other work commenced prior to Closing).
7. Closing Instruments. On the Closing Date, the parties shall deliver or
cause to be delivered the following items (all of which shall be duly
executed and acknowledged where required):
7.1. Warranty Deed. A special warranty deed (the "Deed") in form of
Exhibit B and reasonably satisfactory to the Title Company conveying
to Buyer the real property comprising a portion of the Subject
Property, subject only to the Permitted Exceptions.
7.2. ▇▇▇▇ of Sale and Assignment. A ▇▇▇▇ of sale and assignment for any
personal property, without representation or warranty and in form
and substance reasonably satisfactory to Buyer conveying to Buyer
the personal property comprising a portion of the Subject Property.
7.3. Assignment and Assumption of Leases. An assignment and assumption
of leases (the "Assignment of Leases") in form and substance
reasonably satisfactory to Seller and Buyer, and consistent with the
provisions of this Agreement, assigning to Buyer the Leases (as
defined below) from and after the date of the Closing and
transferring to Buyer any deposits or prepaid rent under the Leases.
7.4. Assignment and Assumption of TI Buildout Agreement(s). An assignment
and assumption of the Chubb Buildout Agreement (as defined below),
the Construction Management Agreement (as defined below) (if any),
and any other contract for the construction of TI's under the Leases
(the "Assignment of the TI Buildout Agreement(s)") in form and
substance reasonably satisfactory to Seller and Buyer and consistent
with the provisions of this Agreement, assigning to Buyer the Chubb
Buildout Agreement, the Construction Management Agreement (if any),
and any other contract for construction of TI's under the Leases.
7.5. Assignment of Warranties. An assignment in form and substance
reasonably satisfactory to Buyer of all rights under the
construction contract(s) and related agreements for the construction
of the Building and other Improvements, including any and all
warranties or guaranties relating to the Building, TI's, and other
Improvements (the "Assignment of Warranties").
7.6. Title Insurance. The Title Policy in the amount of the Purchase Price,
and any affidavits or other documents which the Title Company might
reasonably request to issue the Title Policy.
7.7. Keys. The keys and combinations to locks and other Security devices
located on the Subject Property.
7.8. Nonforeign Affidavit. An affidavit in a form satisfactory Buyer
executed by Seller evidencing Sellers exemption from withholding
under the Internal Revenue Code Section 1445.
7.9. Additional Documents. Additional documents which Buyer or the Title
Company may reasonably request to consummate the sale of the Subject
Property.
8. Closing Instructions. By the Closing Date, each party shall deposit with
Escrow Agent its closing instructions. Escrow Agent may prepare and the
parties shall promptly execute and return such reasonable and customary
Escrow instructions consistent with this Agreement, as Escrow Agent may
require in order to clarify or restrict Escrow Agent's duties or
liability, without, however, amending any portion of this Agreement.
9. Building Completion; Existing Agreements.
9.1. Building Certificate of Occupancy. The parties acknowledge that
construction of the Building shell and core may not be complete on
the date of execution and delivery of this Agreement. Seller shall
complete, prior to Closing at no cost or expense to Buyer,
construction of the Building and all Improvements necessary for the
beneficial use of the Building, including the issuance of a
certificate of occupancy and/or any other permit or approval
required for occupancy of the Building (collectively, the
"Certificate of Occupancy").
9.1.1. Seller shall be responsible for all costs to complete the
Building and all Improvements necessary for the beneficial
use of the Building, and shall make arrangements
satisfactory to the Title Company to permit the Title
Company to issue the Title Policy without exceptions for any
mechanic liens or other matters relating to work performed
under the construction contract(s) and related agreements
for the construction of the Building and other Improvements
constructed prior to closing.
9.2. Existing Agreements.
9.2.1. Seller has entered into the following agreements (the
"Existing Agreements") with respect to the Building:
9.2.1.1. Office Lease, dated December 1998, between BCLC and
Federal Insurance Company (the "Chubb Lease").
9.2.1.2. Agreement Between Owner and Contractor, dated
March 17, 1999, between BCLC and Jokake
Construction Co. (the "Chubb Buildout Agreement").
9.2.1.3. Office Building Lease, dated May 21, 1999, between
BCLC and Employers Mutual Casualty Company (the
"Employers Mutual Lease").
9.2.1.4. The Chubb Lease and the Employers Mutual Lease are
each referred to as a "Lease" and are collectively
referred to as the "Leases."
9.2.2. BCLC anticipates entering into a Construction Management
Agreement with JDB Asset Management, Inc. (or perhaps a
third party) (in either case, the "Construction Management
Agreement").
9.3. Tenant Improvements; Delivery of Evaluation Materials.
9.3.1. The parties acknowledge that the Leases obligate the
landlord under the Leases to construct improvements and/or
to perform other work as set forth in - the Leases
(collectively, "TI's" or the "TI Work"). The Chubb Buildout
Agreement is a construction contract for the construction of
TI's under the Chubb Lease.
9.3.2. Simultaneously with the execution and delivery of this
Agreement, and from time to time during prior to the
Contingency Release Date as additional material becomes
available, Seller shall deliver to Buyer true, complete and
correct copies of the Existing Agreements, together with any
final or preliminary scope of work documents, plans and
specifications, cost estimates, and bids, to the extent
available to Seller, as may be reasonably required for
Buyer's evaluation of the scope and cost of the TI Work.
9.4. Completion of TI Work; Credit Against Purchase Price.
9.4.1. The parties anticipate that the TI Work under the Leases
will not be complete prior to Closing. Pursuant to the
Assignment of Leases to be executed and delivered at
Closing, Buyer shall assume and agree to complete the TI
Work under the Leases to the extent not complete prior to
Closing.
9.4.2. During the period prior to Closing, Seller shall continue in
the normal course of business to pursue in a commercially
reasonable manner the performance of the TI Work under the
Leases (including pre-construction activities such as, but
not limited to, preparation of plans and specifications and
application for permits for the TI Work), provided, however,
that for coordination purposes Seller shall permit Buyer's
representative to participate in this process and Seller
shall consult with Buyer's representative prior to approving
plans and specifications or entering contracts.
9.4.3. Pursuant to the Assignment of the TI Buildout Agreement(s)
to be executed and delivered at Closing, Buyer shall assume
the completion of the TI's under the Leases under the Chubb
Buildout Agreement and any other contract for the
construction of TI's under the Leases.
9.4.4. Prior to the Contingency Release Date, the parties shall
determine the reasonably estimated (i) cost to complete the TI
Work required to be constructed by the landlord under the
Leases to the extent that the TI Work is not anticipated to
be completed prior to Closing and to the extent that the
cost is payable by the landlord under the Leases, and (ii)
the cost to complete the Base Building Improvements (as
defined below), to the extent that the Base Building
Improvements are not anticipated to be completed prior to
Closing, and the parties shall execute an agreement (the "TI
Credit Agreement") establishing the cost to complete and
otherwise implementing the provisions set forth in this
Section. With respect to the Chubb Lease, the cost to
complete the TI Work shall be an amount equal to the excess,
if any, of $1,094,449 over the amounts actually expended by
Seller to discharge its obligation to construct TI Work
under the Chubb Lease or credited to the tenant in
accordance with the Chubb Lease in connection with tenant
improvements. Seller shall credit Buyer at Closing, as a
credit against the Purchase Price, (i) with respect to the
Chubb Lease, an amount calculated pursuant to the
immediately preceding sentence, and (ii) with respect to the
Employers Mutual Lease, for the estimated cost to complete
payable by the landlord as determined by the parties
pursuant to the first sentence of this Section 9.4.4. If
Seller has a guaranteed maximum cost TI Buildout Agreement
for the Employers Mutual Lease, the cost to complete will be
based on the costs and estimated stage of completion under
the TI Buildout Agreement. If Seller does not have a
guaranteed maximum cost TI Buildout Agreement for the
Employers Mutual Lease, Seller shall credit Buyer at
closing, as a credit against the purchase price, for the
estimated cost to complete payable by the landlord under the
TI Buildout Agreement, as reasonably agreed to by the
parties prior to the Contingency Release Date, and Seller
shall escrow a ten percent (10%) contingency to be disbursed
against costs to complete payable by landlord, if any, which
are in excess of the credit, or refunded to Seller if and to
the extent costs do not exceed the credit. In any case, the
cost to complete shall include the unpaid fees and costs
under the Construction Management Agreement, if any. In
addition, Seller shall credit Buyer at Closing, as a credit
against the Purchase Price, for the amount, if any, of the
cost to complete the base building improvements described in
Exhibit D-1 of the Chubb Lease ("Base Building
Improvements"), as determined pursuant to the provisions of
the first sentence of this Section.
9.4.5. The parties acknowledge their mutual intent during the term of
this Agreement to cooperate to the end that TI Work shall be
completed in accordance with a schedule which will permit
rent to commence under the Chubb Lease on August 1, 1999 and
under the Employers Mutual Lease on September 1, 1999.
9.5. Other Terms. Prior to the Closing Date, Seller shall not enter into
any new leases affecting the Subject Property without Buyer's prior
written consent, which consent Buyer may grant or withhold in its
sole discretion. On the Closing Date Seller shall deliver evidence
reasonably satisfactory to Buyer that the manager and any leasing
agents employed by Seller with respect to the Subject Property have
been paid all compensation due for services rendered and that all
agreements with respect to management and leasing of the Project
have been terminated. Seller warrants the Subject Property will be
delivered to Buyer free Of any contracts whatsoever except as
provided in this Agreement or otherwise approved in writing by
Buyer-
10. Adjustments. Prorations. All rents and other revenues and receipts (if
any) and all real property taxes and assessments, utility charges, and
other expenses and disbursements of the Subject Property shall be
prorated as of 12:00 midnight on the Closing Date. All sums due for
accounts payable which were owing or incurred by the Subject Property
prior to the Proration Date will be paid by Seller, and Seller agrees to
indemnify and hold Buyer harmless with respect thereto. Buyer will
forward to Seller any bills for such period received after the Closing
Date for payment and Buyer shall have no further obligation with respect
thereto. Seller shall retain any utility deposits. Buyer agrees to
indemnify and hold Seller harmless with respect to all accounts payable
and other claims relating to the Subject Property which are incurred or
accrue after the Closing Date.
11. Closing Costs. Each party shall pay half of the Escrow fee. Seller shall
pay notary fees, any expenses incurred in examination of title, expenses
of placing title in proper condition (to the extent Seller is required to
do so pursuant to this Agreement) and the title premium for a standard
coverage Title Policy, and all governmental impositions incurred as a
result of the transfer of title to Buyer, except that Buyer shall pay the
cost of recording the Deed. Buyer shall pay any added Title Policy
premium attributable to extended coverage.
12. Possession. Possession of the Subject Property shall be delivered to
Buyer on the close of Escrow, free from all third party rights of
possession, except rights of possession under Leases.
13. Inspections and Feasibility Study. Prior to closing, Buyer and its
employees, agents, servants, representatives and contractors may enter
upon the Subject Property at reasonable times and in a reasonable manner
for purposes of making or performing, at Buyers expense, such feasibility
studies, borings, surveys, structural and other inspections, planning,
engineering studies, soil tests and studies, environmental sampling
and/or tests (collectively "Tests"), as Buyer deems necessary or
advisable; provided, however, that all such Tests conducted on the
Subject Property shall be undertaken in a safe, workmanlike and
reasonable manner, and that Buyer shall substantially restore any area
which may be disturbed to its condition prior to such Tests. Also during
the Escrow period, Buyer shall have access to and upon request shall
receive copies of and may examine all of Sellers records for the Subject
Property, including plans and specifications, permits, certificates of
occupancy, reports, and records of all operating costs and expenses,
correspondence, contracts, leases, and accounts regarding the
construction, operation and maintenance of the Subject Property. Buyer
shall indemnify, defend and hold harmless Seller from and against any and
all loss, costs, liability, damage and expenses, including, but not
limited to, penalties, fines, court costs, disbursements and attorneys'
fees incurred in connection with or arising from injuries to persons or
damage to property caused by Buyer, its agents, servants, employees,
representatives or contractors while on the Subject Property and Buyer
shall deliver to Seller evidence of commercial general liability
insurance maintained by Buyer insuring Buyer's indemnity under this
Section at such time as Buyer requests access to the Subject Property in
accordance with this Section. The provisions of this Section shall be
binding upon Buyer regardless of whether or not the transactions
contemplated by this Agreement are consummated and shall survive for a
one-year period following the termination of this Agreement or Closing.
14. Condition Of The Subject Property. Subject to Seller's continuing
construction of Phase I of the Deer Valley Corporate Center and to the
terms of this Agreement, Seller shall deliver possession of the Subject
Property in substantially the same condition as existed on the date Of
execution and delivery of this Agreement.
15. Buyer's Right To Terminate. If as a result of Buyers inspections,
feasibility studies, or for any other reason whatsoever, Buyer, in its
sole judgment based upon its own criteria, determines that Buyers
purchase of the Subject Property is not feasible, Buyer shall have the
right to terminate this Agreement by written notice given to Seller at
any time on or before 5:00 p.m. PDT on the Contingency Release Date If
Buyer. fails to give timely notice of termination, Buyer shall be deemed
to have waived its right to terminate this Agreement pursuant to the
provisions of this Section 15. In the event of such termination, the
Escrow shall be canceled, the Deposit shall be returned to Buyer, and all
documents and any other funds in Escrow shall be returned immediately to
the party having deposited the same. If Buyer does not terminate this.
Agreement on before the Contingency Release Date, the Deposit shall
become non-refundable and constitute liquidated damages as provided
elsewhere in this Agreement.
16. Purchase Conditions. The following are conditions precedent to the
obligation of Buyer to purchase the Subject Property. Unless and except
to the extent waived by Buyer, each of such conditions shall be and
remain fully satisfied in Buyer's sole subjective discretion before Buyer
shall be obligated to purchase the Subject Property.
16.1.Zonina. That there be no change in the zoning or entitlements for
the Subject Property after the Contingency Release Date.
16.2.Environmental. Buyer, prior to the Contingency Release Date, shall
have the right to obtain a written report by a recognized
environmental consulting and/or testing firm retained by Buyer
demonstrating to Buyers satisfaction that the Subject Property, and
property adjacent thereto, including without limitation its surface
water, ground water, air, soils and improvements thereon, contains
no Hazardous Material and there has been no Hazardous Discharge or
Environmental Notice with regard thereto, and that there has been
no change in the environmental condition after the Contingency
Release Date.
16.3.Structural and Building Report. Buyer, prior to the Contingency
Release Date, shall have the right to obtain a written report from a
consulting engineer or other professionals retained by Buyer
demonstrating to Buyers satisfaction that the condition (including
the structural condition) of the Subject Property is satisfactory,
and that there has been no change in the condition of the Subject
Property after the Contingency Release Date, except as otherwise
contemplated by this Agreement.
17. Representations and Warranties. Seller hereby represents and warrants to
and for the benefit of Buyer, as follows:
17.1. Legal Proceedings, Eminent Domain, and Government Regulation. From
and after May 24, 1999, MOP has no knowledge of and has received no
notification of any material suits (including, without limitation,
condemnation or eminent domain proceedings or actions), hearings,
governmental investigations or other legal proceedings (collectively
"Proceeding") pending or threatened against Seller, before any court
or governmental department or agency which may impact the Subject
Property. From and after May 24, 1999, MOP has not received any
offer ("Offer") from any public or quasi-public authority, having
powers of eminent domain over the Subject Property, to purchase or
acquire the Subject Property or any portion thereof or interest
therein. From and after May 24, 1999, MOP has received no
notification ("Notification") that Seller is subject to or in
default with respect to, any order, writ, injunction or decree of
any court or governmental department or agency directed specifically
to Seller relating to the use of the Subject Property. Seller shall
give Buyer immediate written notice of any Proceeding, Offer or
Notification which may occur prior to the close of Escrow and of
which Seller has actual knowledge. To the best of Seller's knowledge
after May 24, 1999, except as disclosed in writing to Buyer within
ten (10) days after the execution and delivery of this Agreement,
Seller has received no written notice that the Subject Property
violates applicable building, zoning, or other statutes or
regulations.
17.2. Insolvency. Seller is not the subject of any insolvency or
bankruptcy proceedings at law or in equity or otherwise, the result
of which might affect title to the Subject Property or the right of
Seller to transfer and convey, or cause to be transferred and
conveyed, the Subject Property to Buyer.
17.3. Disclosure. Seller will inform Buyer of any material adverse change
in the physical condition of the Subject Property of which Seller is
aware prior to closing.
17.4. Environmental Seller shall authorize and does hereby authorize its
environmental consultant (Law Engineering) to make available and
furnish to Buyer true, accurate and complete copies of all reports
and sampling and test results obtained from all environmental and/or
health samples and tests taken at or around the Subject Property by,
or on behalf of Seller's environmental consultant. Seller shall give
Buyer immediate written notice of any Hazardous Discharge or
Environmental Notice which may occur prior to the close of Escrow
and of which Seller has actual knowledge.
18. Accuracy at Close. All representations and warranties hereunder are
intended to and shall remain true and correct as of the time of the close
of Escrow and at all times herein shall be deemed to be material. Seller
covenants and agrees to defend, indemnify and save harmless Buyer from
any liability, damages, loss, cost and expense (including reasonable
attorneys' fees) of whatsoever kind and nature arising out of any
misrepresentation or breach of warranty with respect to such
representations and warranties, provided that Seller shall not be in
breach of any representation or warranty contained in this Agreement, nor
shall Seller be obligated to indemnify Buyer, in the event that a
condemnation proceeding is commenced between the Contingency Release Date
and the Closing with respect to an immaterial and de minimis portion of
the Subject Property.
19. Risk of Loss. If any portion of the Subject Property is taken by eminent
domain or condemnation or any transfer in lieu thereof (excluding any
minor taking related to the development plan currently in place), or if
any improvements on the Subject Property are destroyed or materially
damaged prior to the transfer of title, Buyer may (i) terminate this
Agreement, or (ii) complete the purchase of the Subject Property, in
which case there shall be no reduction in the Purchase Price and all
condemnation and insurance proceeds shall be assigned and paid to Buyer.
In the event Buyer terminates this Agreement, the Escrow shall be
canceled, the Deposit shall be returned to Buyer, and all documents and
any funds in Escrow shall be returned immediately to the party having
deposited the same.
20. Seller's Remedies. If Buyer fails to close the Escrow for reasons which
constitute a default by Buyer under this Agreement, Seller may give five
(5) days written notice to Escrow Agent and Buyer and if Buyer does not
cure such default as set forth in such notice within such five (5) day
period, Seller thereafter as its sole remedy may terminate this Agreement
by written notice to Buyer and Escrow Agent. Upon such termination, the
Escrow shall be canceled, Escrow Agent shall promptly deliver to Seller
the Deposit (not including any interest), and all documents and any funds
(other than the Deposit) in the Escrow shall be returned immediately to
the party having deposited the same. BUYER AND SELLER AGREE BY PLACING
THEIR INITIALS HERE (BUYER _______________ SELLER ___________) THAT IF
SELLER TERMINATES THIS AGREEMENT UPON THE BUYER'S DEFAULT AS SET FORTH IN
THIS AGREEMENT, SELLER, AS ITS SOLE REMEDY, SHALL RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES FOR THE DEFAULT.
21. Buyer's Remedies. If Seller fails to close the Escrow for reasons which
constitute a default by Seller under this Agreement, Buyer may give five
(5) days written notice to Escrow Agent and Seller and if Seller does not
cure the default as set forth in such notice with such five (5) day
period, Buyer as its sole remedy may bring an action for specific
performance of this Agreement and recovery of damages incidental to the
action.
22. Remedies Cumulative. Except as otherwise provided in this Agreement, all
remedies permitted or available to Buyer or Seller under this Agreement,
or at law, or in equity, or by statute, shall be cumulative and not
alternative, and exercise of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other
permitted or available right or remedy.
23. No Waiver. No waiver by either party of any default under this Agreement
by the other party shall be effective or binding upon such party unless
given in the form of a written instrument signed by such party, and no
such waiver shall be implied from any omission by such party to take
action with respect to such default. No express written waiver of any
default shall affect any other default or cover any period of time other
than the default and/or period of time specified in such express waiver.
One or more written waivers of any default under any provision of this
Agreement shall not be deemed to be a waiver of any subsequent default in
the performance of the same provision or any other term or provision
contained in this Agreement.
24. Governing Law. This Agreement shall be governed and enforced by, and
construed in accordance with the laws of the state in which the Subject
Property is located.
25. Attorneys' Fees. In the event either party hereto finds it necessary to
employ legal counsel or to bring an action at law or other proceedings
against the other party to enforce any of the terms, covenants or
conditions hereof, the prevailing party in such action or proceeding
shall be paid all reasonable attorneys' fees, as determined by the court
and not the jury, and in the event any judgment is secured by such
prevailing party, all such attorneys' fees shall be included in any such
judgment in such action or proceedings.
26. Notices. Notices made by the parties pursuant hereto may be served
personally or may be served by depositing the same in the United States
mail, postage prepaid, certified or registered mail, addressed as
follows:
26.1. If to Seller:
26.1.1. Black Canyon Loop Company LLC
c/o Reckson Associates Realty Corporation
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
With a copy to:
26.1.2. Metropolitan Operating Partnership, L.P.
c/o Reckson Associates Realty Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
26.2. If to Buyer:
26.2.1. Safeway Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
26.3. Safeway Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
The foregoing addresses may be changed by written notice given pursuant to
provisions of this Section.
27. Broker's Commission. Seller represents and warrants to Buyer and Buyer
represents and warrants to Seller that neither has used any broker,
agent, finder or other person in connection with the transaction
contemplated hereby to whom a brokerage or other commission or fee may be
payable, other than CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, who has acted as agent for Buyer.
Seller shall pay any and all compensation which may be owing to CB
▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to a separate written agreement between Seller and
CB ▇▇▇▇▇▇▇ ▇▇▇▇▇. Buyer assumes no liability with respect to the payment
of a commission or any other compensation to CB ▇▇▇▇▇▇▇ ▇▇▇▇▇. Each party
indemnifies and agrees to defend and hold the other harmless from any
claims resulting from the breach by the indemnifying party of the
warranties and representations in this Section.
28. Survival. All covenants, agreements, representations or warranties
contained in this Agreement shall survive the close of Escrow and the
conveyance of the Subject Property for a period of six (6) months and
shall not be deemed to be merged into or waived by the instruments of
closing or transfer, but shall expressly survive and be binding upon the
parties obligated by the covenant, agreement, representation or warranty,
unless expressly stated to the contrary.
29. Execution and Change It is understood and agreed that until this
Agreement is fully executed and delivered by the authorized partners,
corporate officers or other individuals, as applicable, of the parties
hereto, there is not and shall not be an agreement of any kind between
the parties hereto upon which any commitment, undertaking or obligation
can be founded. It is further agreed that once this Agreement is fully
executed and delivered that it contains the entire agreement between the
parties hereto and that, in executing it, the parties do not rely upon
any statement, promise, or representation not herein expressed and this
Agreement once executed and delivered shall not be modified, changed or
altered in any respect except by a writing executed and delivered in the
same manner as required for this Agreement.
30. Time of the Essence. Time is of the essence of this Agreement and each
and every term, condition and provision hereof.
31. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original, but all of which,
together, shall constitute one and the same instrument.
32. Successors and Assigns.
32.1.Binding on Successors and Assigns. Except as otherwise provided in
this Agreement, this Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns.
32.2.Limits on Buyer's Assignment. Except as otherwise provided in this
Agreement, this Agreement and Buyer's rights under this Agreement
may not be assigned by Buyer without the prior written consent of
Seller, except that Buyer may assign its rights under this Agreement
to any subsidiary or affiliate for the purpose of taking title to
the Subject Property, provided that Buyer named in this Agreement
shall remain liable under this Agreement until the Closing occurs
and Seller has received the Purchase Price in accordance with this
Agreement.
32.3.Buyer's Exchange Cooperation. If requested to do so by Seller, Buyer
shall cooperate in a simultaneous or deferred exchange by permitting
Seller to assign this Agreement to a third party (an "Exchange
Facilitator") and by accepting a conveyance of the Subject Property
from the Exchange Facilitator. The, assignment may take effect only
simultaneously with the closing under this Agreement, and in no
event shall Seller be relieved of any liability under this Agreement
by reason of the assignment and in no event shall the Exchange
Facilitator have any right to enforce this Agreement that Seller
would not have if there had been no assignment. Buyer shall not be
required to bear any escrow, title, or other expenses in excess of
those Buyer would bear if there were no exchange, nor shall Buyer be
required to expend any sums of money in connection with the
exchange. Buyer shall not be required to execute any document
creating personal liability or assume or be exposed to any liability
in connection with an exchange, nor shall the Closing Date be
extended to consummate an exchange. In no event shall Buyer be
required to take title to any property other than the Subject
Property, and in no event shall Buyer be responsible for any tax
consequences to Seller or any other party in connection with an
exchange. Seller agrees and covenants to defend, indemnify, protect,
and save harmless Buyer from any liability, damages, loss, cost and
expense (including reasonable attorneys' fees) of whatsoever kind
and nature arising out of any exchange.
32.4.Seller's Exchange Cooperation. If requested to do so by Buyer,
Seller shall cooperate in a simultaneous or deferred exchange by
permitting Buyer to assign this Agreement to a third party (also an
"Exchange Facilitator") and by transferring the Subject Property to
the Exchange Facilitator. The assignment may take effect only
simultaneously with the closing under this Agreement, and in no
event shall Buyer be relieved of any liability under this Agreement
by reason of the assignment and in no event shall the Exchange
Facilitator have any right to enforce this Agreement that Buyer
would not have if there had been no assignment. Seller shall not be
required to bear any escrow, title, or other expenses in excess of
those Seller would bear if there were no exchange, nor shall Seller
be required to expend any sums of money in connection with the
exchange. Seller shall not be required to execute any document
creating personal liability or assume or be exposed to any liability
in connection with an exchange, nor shall the Closing Date be
extended to consummate an exchange. In no event shall Seller be
required to take title to any property other than the Subject
Property, and in no event shall Seller be responsible for any tax
consequences to Buyer or any other party in connection with an
exchange. Buyer agrees and covenants to defend, indemnify, protect,
and save harmless Seller from any liability, damages, loss, cost and
expense (including reasonable attorneys' fees) of whatsoever kind
and nature arising out of any exchange.
33. No Recording. This Agreement may not be recorded by Buyer. The recording
of this Agreement shall be deemed a material default under this Agreement
entitling Seller to terminate this Agreement and retain the Deposit in
addition to such other remedies as may be available in equity or at law.
34. Other Offers, Confidentiality. From and after the execution and delivery
of this Agreement, Seller and its representatives and affiliates will not
solicit or accept any offer for the purchase of the Subject Property
from any party other than Buyer unless and until this Agreement is
terminated in accordance with its terms. Except as may be required by law
or as may be necessary to effectuate the contemplated transaction, both
Seller and Buyer, individually and on behalf of their representatives
(including lenders, principals, affiliates, and clients, it being agreed
that Seller and Buyer each shall be responsible for the breach by their
respective representatives of the terms of this Section), agree that
until closing they and their respective representatives shall hold both
the terms and conditions of this Agreement and its existence as
confidential information and will not disclose such terms, conditions, or
existence to any third party without the other's consent, not to be
unreasonably withheld.
35. Facsimile Signatures. The parties agree to be bound by facsimile
signatures with the same force and effect as if the same were originals.
36. Contacting Tenants. Buyer shall not contact any tenant or prospective
tenant at the Subject Property without the prior written consent of
Seller, not to be unreasonably withheld.
37. Expiration Buyer shall have no obligation under this Agreement unless
Seller duly executes and delivers to Buyer (or Buyer's broker) an
executed counterpart original of this Agreement (via facsimile or
otherwise) prior to 4:00 p.m. PDT on Wednesday, June 17, 1999.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
dates set forth below.
BLACK CANYON LOOP COMPANY LLC, SAFEWAY INC.
an Arizona limited liability company a Delaware corporation,
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------- ------------------------------
Its Its Vice President
Date: ____________________, 1999 Date:______________
METROPOLITAN OPERATING
PARTNERSHIP, L.P.
By: Metropolitan Partners, LLC, its general
partner,
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Its
Date: __________________, 1999
EXHIBITS
A LEGAL DESCRIPTION
B WARRANTY DEED
EXHIBIT A
Parcel 1
Order Number: 224532
LEGAL DESCRIPTION
A parcel of land lying within Section 24, Township 4 North, Range 2
East of the Gila and Salt River Base and Meridian, Maricopa County,
Arizona, more particularly described as follows:
COMMENCING at the Southwest corner of Lot 4, as depicted on the Final
Plat for Deer Valley Towne Center Unit II, as recorded in Book 454,
page 48, records of Maricopa County, Arizona, said point being the
POINT OF BEGINNING of the herein described parcel;
THENCE along the West line of said lot, North 00 degrees 26' 27" West,
a distance of 91.67 feet;
THENCE continuing along said West line, South 89 degrees 33' 33" West,
a distance of 2.00 feet;
THENCE continuing along said West line, North 00 degrees 26' 27" West,
a distance of 26.64 feet;
THENCE continuing along said West line, North 04 degrees 19' 45" East, a
distance of 144.31 feet;
THENCE continuing along said West fine, North 00 degrees 26' 27" West, a
distance of 99.41 feet, to the beginning of a curve;
THENCE Northerly along said West line and said curve, having a radius
of 20.00 feet, concave Southeasterly through a central angle of
90 degrees 00' 00", a distance of 31.42 feet, to the curve's end;
THENCE continuing along said West line North 89 degrees 33' 33"
East, a distance of 1.00 feet;
THENCE continuing along said West line, North 00 degrees 26' 27" West, a
distance of 41.16 feet;
THENCE continuing along said West line, South 89 degrees 33' 33" West,
a distance of 13.00 feet, to the beginning of a curve;
THENCE Westerly along said West line and said curve, having a radius
of 20.00 feet, concave Northeasterly through a central angle of
64 degrees 07' 54", a distance of 22.39 feet, to a point of intersection
with a non-tangent line;
THENCE leaving said West line, North 89 degrees 33' 33" East, a distance
of 297.83 feet;
THENCE North 56 degrees 38' 32" East, a distance of 92.05 feet;
THENCE North 89 degrees 33' 33" East, a distance of 167.03 feet;
THENCE South 00 degrees 26' 27" East, a distance of 30.06 feet;
THENCE North 89 degrees 33' 33" East, a distance of 279.69 feet, to a
point on the East line of said lot and the beginning of a non-tangent
curve;
THENCE Southerly along said East line and said curve, having a radius
of 740.00 feet, concave Northwesterly, whose radius bears North
74 degrees 26' 30" West, through a central angle of 47 degrees 18' 47",
a distance of 611.07 feet, to a point on the South line of said lot and
a point of intersection with a non-tangent line;
THENCE along said South line, South 89 degrees 59' 06" West, a distance
of 442.85 feet, to the POINT OF BEGINNING.
EXHIBIT A
Parcel 2
Order Number: 239975
LEGAL DESCRIPTION
All of ▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, according to Book 454
of Maps, Page 48, records of Maricopa County, Arizona;
EXCEPT a parcel of land lying within Section 24, Township 4 North, Range 2
East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona
more particularly described as follows:
COMMENCING at the Southwest corner of Lot 4, as depicted on the Final
Plat for Deer Valley Towne Center Unit II, as recorded in Book 454,
page 48, records of Maricopa County, Arizona, said point being the
POINT OF BEGINNING of the herein described parcel;
THENCE along the West line of said lot, North 00 degrees 26' 27" West,
a distance of 91.67 feet;
THENCE continuing along said West line, South 89 degrees 33' 33" West,
a distance of 2.00 feet;
THENCE continuing along said West line, North 00 degrees 26' 27" West,
a distance of 26.64 feet;
THENCE continuing along said West line, North 04 degrees 19' 45" East, a
distance of 144.31 feet;
THENCE continuing along said West fine, North 00 degrees 26' 27" West, a
distance of 99.41 feet, to the beginning of a curve;
THENCE Northerly along said West line and said curve, having a radius
of 20.00 feet, concave Southeasterly through a central angle of
90 degrees 00' 00", a distance of 31.42 feet, to the curve's end;
THENCE continuing along said West line North 89 degrees 33' 33"
East a distance of 1.00 feet;
THENCE continuing along said West line, North 00 degrees 26' 27" West, a
distance of 41.16 feet;
THENCE continuing along said West line, South 89 degrees 33' 33" West,
a distance of 13.00 feet, to the beginning of a curve;
THENCE Westerly along said West line and said curve, having a radius
of 20.00 feet, concave Northeasterly through a central angle of
64 degrees 07' 54", a distance of 22.39 feet, to a point of intersection
with a non-tangent line;
THENCE leaving said West line, North 89 degrees 33' 33" East, a distance
of 297.83 feet;
THENCE North 56 degrees 38' 32" East, a distance of 92.05 feet;
THENCE North 89 degrees 33' 33" East, a distance of 167.03 feet;
THENCE South 00 degrees 26' 27" East, a distance of 30.06 feet;
THENCE North 89 degrees 33' 33" East, a distance of 279.69 feet, to a
point on the East line of said lot and the beginning of a non-tangent
curve;
THENCE Southerly along said East line and said curve, having a
radius of 740.00 feet, concave
Northwesterly, whose radius bears North 74 degrees 26' 30" West, through
a central angle of 47 degrees 18' 47", a distance of 611.07 feet, to a
point on the South line of said lot and a point of intersection with a
non-tangent line;
THENCE along said South line, South 89 degrees 59' 06" West, a distance
of 442.85 feet, to the POINT OF BEGINNING.
EXHIBIT B
When recorded, return to:
_________________________
_________________________
_________________________
_________________________
______________________________________________________________________
(Space above this line for Recorder's use)
SPECIAL WARRANTY DEED
For the consideration of Ten Dollars and other valuable
consideration, the receipt and sufficiency of which are acknowledged,
_____________________________, a ________________ limited partnership
and ________________________, a _________________ limited liability company
(collectively "Grantor"), conveys to ________________, a _________________,
the following described real property situated in Maricopa County, Arizona,
together with all buildings, structures, improvements and fixtures thereon
and all rights and privileges appurtenant thereto:
See the legal description set forth in Exhibit "A" attached and
incorporated by this reference (the "Property").
SUBJECT TO only those matters set fort in Exhibit "B" attached and
incorporated by this reference.
Grantor binds itself and its successors to warrant and defend the
title to the Property against all acts of Grantor since May 24, 1999 and no
other subject to only the matters set forth above.
Dated this ____ day of ___________, 1999.
METROPOLITAN OPERATING PARTNERSHIP, L.P.
By: Metropolitan Partners, LLC, its general partner
By:_______________________
Name:
Title:
BLACK CANYON LOOP COMPANY, LLC
By: Metropolitan Operating Partnership, L.P.,
its sole member
By: Metropolitan Partners, LLC, its general
partner
By:_____________________
Name:
Title:
STATE OF __________)
)ss.
COUNTY OF _________)
The foregoing instrument was acknowledged before me this ______ day
of __________, 1999, by _________________ as __________________ of Metropolitan
Partners, LLC, the general partner of Metropolitan Operating Partnership, L.P.,
the sole member of BLACK CANYON LOOP COMPANY, LLC, on behalf of said limited
liability company.
__________________________________
Notary Public
My Commission Expires:
_____________________________
STATE OF _________________)
)ss.
COUNTY OF ________________)
The foregoing instrument was acknowledged before me this ____ day of
_____ 1999, by ___________________ as __________________ of Metropolitan
Partners, LLC, the general partner of METROPOLITAN OPERATING PARTNERSHIP, L.P.,
on behalf of said limited partnership.
__________________________________
Notary Public
My Commission Expires:
_____________________________