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EXHIBIT 2.5
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
By and Between
MaxVest Associates, Limited Partnership, a Georgia limited partnership,
as Seller
THE PRICE REIT, INC.
a Maryland corporation,
as Buyer
and
Chicago Title Insurance Company, as Escrow Holder
February 5, 1997
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ARTICLE I PROPERTY...............................................................1
1.1 LAND 1
1.2 APPURTENANCES 1
1.3 IMPROVEMENTS 2
1.4 LEASES AND RENTS 2
1.5 PERSONAL PROPERTY 2
1.6 INTANGIBLE PROPERTY 2
ARTICLE II PURCHASE PRICE........................................................2
2.1 PURCHASE PRICE 2
2.2 PAYMENT OF PURCHASE PRICE 3
2.3 ▇▇▇▇▇▇▇ MONEY DEPOSIT 3
2.4 INVESTMENT OF DEPOSIT 3
2.5 DEPOSIT AS LIQUIDATED DAMAGES 3
ARTICLE III TITLE TO PROPERTY....................................................4
3.1 TITLE 4
3.2 OTHER CONVEYANCE DOCUMENTS 4
ARTICLE IV CONDITIONS TO CLOSING.................................................5
A. BUYER'S CONDITIONS TO CLOSING 5
4.1 NON-FOREIGN STATUS OF SELLER 5
4.2 REVIEW AND APPROVAL OF TITLE AND SURVEY 5
4.3 REVIEW AND APPROVAL OF OTHER MATTERS 6
4.4 SERVICE AND OTHER CONTRACTS 7
4.5 PHYSICAL CHARACTERISTICS OF THE PROPERTY 7
4.6 GOVERNMENTAL PERMITS, APPROVALS AND REGULATIONS 8
4.7 REPRESENTATIONS AND WARRANTIES 8
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4.8 IMPAIRMENT OF PROPERTY 8
4.9 APPROVAL 8
4.10 OBJECTIONS TO PROPERTY OR OTHER MATTERS 8
4.11 TENANT MATTERS 9
4.12 REA ESTOPPELS 9
4.13 SUBDIVISION 9
4.14 DELIVERY OF DOCUMENTS 9
B. SELLER'S CONDITIONS TO CLOSING 9
4.15 DELIVERY OF DOCUMENTS AND PURCHASE PRICE 10
4.16 SUBDIVISION 10
ARTICLE V CLOSING, RECORDING AND TERMINATION....................................10
5.1 DEPOSIT WITH ESCROW HOLDER AND ESCROW INSTRUCTIONS 10
5.2 CLOSING 10
5.3 DELIVERY BY SELLER 10
5.4 DELIVERY BY BUYER 12
5.5 OTHER INSTRUMENTS 12
5.6 PRORATIONS 12
5.7 COSTS AND EXPENSES 14
5.8 CLOSING AND RECORDATION 14
5.9 TERMINATION OF AGREEMENT 14
5.10 SECURITY DEPOSITS 15
ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER..................15
6.1 AUTHORITY 15
6.2 TITLE 15
6.3 THE LEASES 15
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6.4 NO LITIGATION OR ADVERSE EVENTS 16
6.5 COMPLIANCE WITH LAWS 16
6.6 NO DEFAULTS IN OTHER AGREEMENTS 16
6.7 EMINENT DOMAIN 16
6.8 PERMITS, CO'S, ZONING, ETC. 16
6.9 TAXES AND ASSESSMENTS 16
6.10 ENVIRONMENT 16
6.11 PHYSICAL CONDITION 18
6.12 EMPLOYEES 18
6.13 MECHANIC'S LIENS 18
6.14 OPERATING STATEMENTS 18
6.15 DISCLOSURE 18
6.16 NO LEASES OF PROPERTY OR ASSETS 19
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF BUYER.............................19
7.1 REPRESENTATIONS AND WARRANTIES OF BUYER 19
ARTICLE VIII POSSESSION, DESTRUCTION AND CONDEMNATION...........................20
8.1 POSSESSION 20
8.2 LOSS, DESTRUCTION AND CONDEMNATION 20
ARTICLE IX MAINTENANCE AND OPERATION OF THE PROPERTY; COVENANTS.................22
9.1 MAINTENANCE 22
9.2 LEASES AND OTHER AGREEMENTS 22
9.3 ENCUMBRANCES 23
9.4 CONSENTS AND NOTICES 23
9.5 AUDIT COOPERATION 23
ARTICLE X MISCELLANEOUS.........................................................23
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10.1 NOTICES 23
10.2 BROKERS AND FINDERS 24
10.3 SUCCESSORS AND ASSIGNS 24
10.4 AMENDMENTS 25
10.5 CONTINUATION AND SURVIVAL OF INDEMNITIES, REPRESENTATIONS,
WARRANTIES AND POST-CLOSING OBLIGATIONS 25
10.6 INTERPRETATION 25
10.7 GOVERNING LAW 25
10.8 MERGER OF PRIOR AGREEMENTS 25
10.9 ATTORNEYS' FEES 25
10.10 NOTICE OF TERMINATION 25
10.11 SPECIFIC PERFORMANCE; DAMAGES 26
10.12 RELATIONSHIP 26
10.13 COUNTERPARTS 26
10.14 TIME OF THE ESSENCE 26
10.15 NO WAIVER 26
10.16 SATURDAYS, SUNDAYS, LEGAL HOLIDAYS 26
10.17 OFFER AND ACCEPTANCE; EFFECTIVE DATE 26
10.18 CONFIDENTIALITY 27
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INDEX TO SCHEDULES
Schedule A Legal Description of the Land
Schedule B Form of Deed
Schedule C Form of Assignment and Assumption of Leases and Rents
Schedule D Form of ▇▇▇▇ of Sale
Schedule E Form of Assignment of Contracts, Intangible Property, Warranties and
Guarantees
Schedule F Form of Non-Foreign Certificate
Schedule G Form of Tenant Estoppel Certificate
Schedule H Rent Roll
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DEFINITIONS
The following is a list of defined terms used herein and the
sections in which such terms are defined.
Term Section
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AGREEMENT INTRODUCTION
APPROVED CONTRACTS 4.4
APPURTENANCES 1.2
ASSIGNMENT OF INTANGIBLE PROPERTY,
WARRANTIES AND GUARANTEES 1.6
ASSIGNMENT OF LEASES AND RENTS 1.4
▇▇▇▇ OF SALE 1.5
BUYER INTRODUCTION
BUYER APPROVAL 4.9
CLOSING 5.2
CLOSING DATE 5.2
CODE 4.1
CONTRACTS 4.4
DEED 1.1
▇▇▇▇▇▇▇ MONEY DEPOSIT 2.3
ESCROW HOLDER INTRODUCTION
IMPROVEMENTS 1.3
INTANGIBLE PROPERTY 1.6
LAND 1.1
LEASES 1.4
MAJOR LEASE 4.8
NON-FOREIGN CERTIFICATE 4.1
OUTSIDE CLOSING DATE 5.2
PERSONAL PROPERTY 1.5
PERMITTED EXCEPTIONS 4.2
PHASE I REPORT 4.5
PROPERTY 1.6
PURCHASE PRICE 2.1
REAL PROPERTY 1.6
RENT ROLL 6.3
RENTS 1.4
REVIEW PERIOD 4.10
SELLER INTRODUCTION
SURVEY 4.2
TITLE COMPANY 3.1
TITLE POLICY 3.1
TITLE REPORT 4.2
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PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
("AGREEMENT") is made and entered into as of February 5, 1997, by and between
MAXVEST ASSOCIATES, LIMITED PARTNERSHIP, a Georgia limited partnership
("SELLER"), THE PRICE REIT, INC., a Maryland corporation ("BUYER"), and Chicago
Title Insurance Company ("ESCROW HOLDER"), with reference to the following
facts:
A. Seller is the owner of the Property, as hereinafter
defined.
B. Buyer desires to purchase from Seller and Seller
desires to sell to Buyer the Property, all on the terms and conditions set forth
herein.
NOW, THEREFORE, IN CONSIDERATION of the foregoing and the
mutual agreements herein set forth, and other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller and Buyer, and
where appropriate Escrow Holder, agree as follows:
ARTICLE I
PROPERTY
Seller hereby agrees to sell and convey to Buyer, and Buyer
hereby agrees to purchase from Seller, subject to the terms and conditions set
forth herein, the following:
1.1 Land. That certain real property (the "LAND") described in
Schedule A hereto, less the portion thereof representing the outparcel to be
subdivided from the Land pursuant to Section 4.13 hereof, all of which shall be
conveyed to Buyer pursuant to a deed in the form of Schedule B hereto (the
"DEED");
1.2 Appurtenances. All rights, privileges and easements
appurtenant to and for the benefit of the Land, including, without limitation,
all minerals, oil, gas and other hydrocarbon substances on and under the Land,
as well as all development rights, air rights, water, water rights and water
stock relating to the Land and any other easements, rights-of-way or
appurtenances owned by Seller and used in connection with the beneficial
operation, use and enjoyment of the Land, the Leases, the Rents, the
Improvements, the Intangible Property, or any other appurtenance, together with
all rights of Seller in and to public and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇,
alleys and passageways, sidewalks, driveways, parking areas and areas adjacent
thereto or used in connection therewith (open or proposed, in front of or
abutting the Land), and all rights of Seller in any land lying in the bed of any
existing or proposed street adjacent to the Land, all strips or gores of land
adjoining the Land, and any awards made or to be made and any unpaid award for
damage to the Land by reason of any change of grade of any such street, road,
avenue, alley or passageway (all of which are collectively referred to as the
"APPURTENANCES");
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1.3 Improvements. All improvements and fixtures located or to
be located on the Land, including, without limitation, all buildings and
structures presently located on the Land or to be located thereon on the Closing
Date, all apparatus, equipment and appliances owned by Seller and presently
located on the Land and used in connection with the operation or occupancy
thereof, such as heating and air conditioning systems and facilities used to
provide any utility services, parking services, refrigeration, ventilation,
garbage disposal, recreation or other services thereto, and all landscaping and
leasehold improvements which are the property of the owner of the Land, if any
(all of which are collectively referred to as the "IMPROVEMENTS");
1.4 Leases and Rents. All leases, occupancy agreements and
other similar agreements to which Seller is a party or by which it is bound,
together with all modifications, extensions and renewals thereof, and any
guarantees of any of the foregoing with respect to or demising any part of the
Land, Appurtenances or Improvements (the "LEASES"), all income, receipts, funds
and revenues of any kind whatsoever payable under the Leases or otherwise with
respect to all or any portion of the Land, Appurtenances or Improvements (the
"RENTS"), all of which Leases and Rents shall be transferred and assigned to
Buyer pursuant to an instrument in the form of Schedule C hereto (the
"ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS");
1.5 Personal Property. All tangible personal property owned by
Seller and located or to be located on, or situated or to be situated in and
used in connection with, the Land and/or the Improvements ("PERSONAL PROPERTY"),
and all of which Personal Property shall be transferred and assigned to Buyer
pursuant to an instrument in the form of Schedule D hereto (the "▇▇▇▇ OF SALE");
and
1.6 Intangible Property. All of the interest of Seller in (i)
any intangible personal property which relates to and is reasonably required for
the operation and functioning of the Land, Improvements or Personal Property
generally, and (ii) any and all warranties, guarantees, permits, contracts and
other rights owned by Seller relating to the ownership, operation or functioning
of all or any part of the Property, as defined below (including without
limitation all third party guarantees and warranties, express or implied, in
connection with the construction of the Improvements) (all of which are
collectively referred to as the "INTANGIBLE PROPERTY"), and all of which, to the
extent assignable, shall be assigned to Buyer pursuant to one or more (as
determined by Buyer) assignments in the form of Schedule E hereto (the
"ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND GUARANTEES").
All of the items described in Sections 1.1, 1.2, 1.3, 1.4, 1.5
and 1.6 above are hereinafter collectively referred to as the "PROPERTY." The
items described in Sections 1.1, 1.2, and 1.3 above are hereinafter referred to
collectively as the "REAL PROPERTY."
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Property shall
be Four Million Nine Hundred Seventy-Five Thousand Dollars ($4,975,000.00) (the
"PURCHASE PRICE"). The Purchase Price shall be allocated among Land,
Improvements and Personal Property as Buyer shall reasonably determine.
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2.2 Payment of Purchase Price. The Purchase Price shall be
paid by Buyer into the escrow for this Agreement to be maintained by Escrow
Holder ("ESCROW") at the Closing by wire transfer of immediately available funds
in accordance with wiring instructions to be provided by Escrow Holder;
provided, however, that Buyer shall adjust the funds to be wired pursuant to
this Section 2.2 for the following: (i) the amount of credits due to Buyer, or
debits due from Buyer (as the case may be) for prorations hereunder, and (ii)
the amount of the ▇▇▇▇▇▇▇ Money Deposit (hereinafter defined) plus earnings
thereon.
2.3 ▇▇▇▇▇▇▇ Money Deposit. Concurrently with the delivery of
one (1) fully executed copy of this Agreement to Escrow Holder, Buyer shall
deposit with Escrow Holder the sum of One Hundred Thousand Dollars ($100,000.00)
(the "▇▇▇▇▇▇▇ MONEY DEPOSIT") in the form of a check or wire transfer. The
▇▇▇▇▇▇▇ Money Deposit shall become nonrefundable after the end of the Review
Period, unless this Agreement terminates other than due to a default of Buyer
hereunder.
2.4 Investment of Deposit. Escrow Holder shall place the
▇▇▇▇▇▇▇ Money Deposit in an interest-bearing account with a bank or savings
association, the deposits of which are federally insured, as Buyer may select.
All interest on the ▇▇▇▇▇▇▇ Money Deposit shall accrue for the benefit of Buyer
until the Closing. Notwithstanding the foregoing, however, in the event of any
default by Buyer hereunder, all interest earned on such account shall accrue to
the benefit of Seller. Seller shall not be responsible for, nor bear the risk of
loss of, the ▇▇▇▇▇▇▇ Money Deposit, and shall not be responsible for the rate of
return thereon.
2.5 Deposit As Liquidated Damages. IF THE SALE OF THE PROPERTY
AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED SOLELY BECAUSE OF A DEFAULT UNDER
THIS AGREEMENT ON THE PART OF BUYER, ESCROW HOLDER SHALL PROMPTLY PAY OVER TO
SELLER THE ▇▇▇▇▇▇▇ MONEY DEPOSIT, IF ANY, THEN BEING HELD BY ESCROW HOLDER, AND
SELLER SHALL RETAIN THE ▇▇▇▇▇▇▇ MONEY DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES
ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT THE PURCHASE AND SALE OF
THE PROPERTY IS NOT CONSUMMATED AS CONTEMPLATED HEREIN AS A RESULT OF A DEFAULT
BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE,
BY PLACING THEIR SIGNATURES BELOW, THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE
THAT THE ▇▇▇▇▇▇▇ MONEY DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE
PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES IN SUCH EVENT. THEREFORE, IF
BUYER BREACHES THIS AGREEMENT AND WRONGFULLY FAILS TO COMPLETE THE PURCHASE OF
THE PROPERTY AS PROVIDED HEREIN, SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES
IN THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY DEPOSIT. ON RECEIPT AND RETENTION BY SELLER
OF THE ▇▇▇▇▇▇▇ MONEY DEPOSIT, THIS AGREEMENT SHALL TERMINATE AND BUYER SHALL
HAVE NO FURTHER OBLIGATIONS OR LIABILITY HEREUNDER, EXCEPT IN CONNECTION WITH
ANY INDEMNITY WHICH, BY ITS TERMS, SURVIVES ANY TERMINATION OF THIS AGREEMENT.
THE PARTIES FURTHER ACKNOWLEDGE THAT THE ▇▇▇▇▇▇▇ MONEY DEPOSIT HAS BEEN AGREED
UPON AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT BUYER WRONGFULLY
FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS PROVIDED HEREIN. IN NO EVENT,
HOWEVER, SHALL THE
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FOREGOING PROVISIONS LIMIT THE DAMAGES RECOVERABLE BY SELLER
FROM BUYER DUE TO BUYER'S OBLIGATION TO INDEMNIFY SELLER IN ACCORDANCE WITH THIS
AGREEMENT OR DUE TO A BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR
AGREEMENT WHICH SURVIVES THE CLOSING UNDER THE TERMS OF THIS AGREEMENT.
Seller:
Dated:_______________________
MAXVEST ASSOCIATES, LIMITED
PARTNERSHIP, a Georgia limited
partnership
By: Theta Corp.,
its general partner
By:_______________________
Its:______________________
Buyer:
THE PRICE REIT, INC.
Dated:_______________________ By:__________________________
Its:_________________________
ARTICLE III
TITLE TO PROPERTY
3.1 Title. At the Closing, Seller shall convey to Buyer
marketable and insurable fee simple title to the Property pursuant to the Deed.
In furtherance thereof, Seller shall cause Escrow Holder, in its capacity title
company (the "TITLE COMPANY") to issue an ALTA extended coverage Owner's Policy
of Title Insurance (Form B, Rev. 10/17/70), (the "TITLE POLICY"), together with
such endorsements thereto as Buyer may request, in the full amount of the
Purchase Price, insuring fee simple title to the Real Property in Buyer, subject
only to (i) the lien of real property taxes for the then applicable fiscal year,
to the extent not yet due and payable, (ii) the lien of supplemental taxes
imposed by reason of transfer on or after the Closing, (iii) the Leases, and
(iv) the Permitted Exceptions.
3.2 Other Conveyance Documents. At the Closing, Seller shall
(i) assign the Leases and Rents to Buyer pursuant to the Assignment and
Assumption of Leases and Rents; (ii) transfer title to the Personal Property to
Buyer pursuant to the ▇▇▇▇ of Sale, and (iii) transfer and assign to Buyer all
of Seller's rights in and to the Intangible Property pursuant to the Assignment
of Contracts, Intangible Property, Warranties and
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Guarantees; such title and rights to be free of any liens, encumbrances or
interests of third parties other than the Permitted Exceptions.
ARTICLE IV
CONDITIONS TO CLOSING
A. Buyer's Conditions to Closing.
The complete satisfaction as of the expiration of the Review
Period (or such other date as may be specified herein) with respect to those
matters described in Sections 4.2-4.6 and 4.9-4.10 hereof, and as of the Closing
Date with respect to the balance of the following conditions, is a condition
precedent to Buyer's obligation to purchase the Property:
4.1 Non-Foreign Status of Seller. Seller's execution and
delivery to Buyer, on the Closing Date, of Seller's certificate in the form
attached hereto as Schedule F (the "NON-FOREIGN Certificate") stating, under
penalty of perjury, that (a) Seller is not a "foreign person" for the purposes
of Section 1445 of the Internal Revenue Code of 1986, as amended (the "CODE"),
and that withholding of tax will not be required thereunder, and (b) withholding
is not required under the provisions of any state laws in connection with the
contemplated transfer of the Property by Seller to Buyer (or, if such
withholding is required, authorizing such withholding).
4.2 Review and Approval of Title and Survey. In connection
with Buyer's review of title and related matters, Seller shall, at its sole cost
and expense and as soon as practicable, but in no event later than ten (10) days
after the date of this Agreement, deliver to Buyer or cause Escrow Holder to
deliver to Buyer a current extended coverage commitment (ALTA Form 1970) for
title insurance for the Property issued by the Title Company (the "TITLE
REPORT"), accompanied by legible record copies of all of the documents referred
to in the Title Report, together with all restrictions, agreements or other
documents which affect or will affect the ownership of or title to the Property
and which are not disclosed by the Title Report for the Property, if any, but
which are known to Seller. Buyer shall arrange, at its sole cost and expense,
for the preparation of a current ALTA survey of the Property, certified to Buyer
in a form reasonably required by Buyer (the "SURVEY"). Buyer shall have until
the expiration of thirty (30) business days from the delivery of the Title
Report to notify Escrow Holder and Seller in writing of Buyer's disapproval of
the condition of title. Buyer shall give Seller and Escrow Holder written notice
outlining in detail any title items objected to and specifying Buyer's desired
cure. Seller shall have ten (10) business days after receipt of Buyer's notice
to advise Buyer and Escrow Holder, in writing, as to whether Seller shall cure
said objections prior to the Closing (and should Seller fail to advise Buyer of
Seller's objection within such ten (10) business day period, Seller shall be
deemed to have elected to refuse to cure said objections). In the event that
Seller elects not to cure such objections, or elects to cure such objections and
fails or refuses to cure said objections, Buyer shall have the option, which
must be exercised within 10 days of Buyer's receipt of Seller's response or
deemed response, or Closing (whichever is earlier), (a) to waive Buyer's
objections and purchase the Property as otherwise contemplated in this
Agreement, notwithstanding such objections, in which event the subject matter of
such waived objections shall be included within Permitted Exceptions, and Seller
shall convey the Property to Buyer, subject to the Permitted Exceptions, or (b)
to terminate this Agreement
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by written notice to Seller and Escrow Holder, whereupon any and all right and
obligations of Buyer and Seller hereunder shall terminate (other than any such
obligations which, by their express terms, survive any termination of this
Agreement) and within five (5) days after Buyer has provided notice to Escrow
Holder, Escrow Holder shall deliver to Buyer the ▇▇▇▇▇▇▇ Money Deposit, together
with interest thereon. All exceptions to title to, and/or encumbrances against,
the Property shown on the Title Report or Survey or otherwise provided to Buyer
by Seller as hereinabove described but not objected to by Buyer within the time
period provided herein, and those items referred to in items (i) and (ii) and
(iii) of the second sentence of Section 3.1 hereof, and the covenants,
conditions and restrictions referred to in Section 4.13 hereof, shall be deemed
"PERMITTED EXCEPTIONS"; provided, however, that Seller covenants to remove all
monetary encumbrances (other than those with respect to the liens referred to in
items (i) and (ii) of the second sentence of Section 3.1 hereof) affecting the
Property or any portion thereof prior to Closing, and Seller further agrees that
no monetary encumbrances other than the liens referred to in items (i) and (ii)
of the second sentence of Section 3.1 hereof shall be Permitted Exceptions.
4.3 Review and Approval of Other Matters. In connection with
Buyer's review of other matters, Seller shall deliver or otherwise make
available to Buyer, within ten (10) days after the date of this Agreement, true,
complete and correct copies of the following items, to the extent in Seller's or
Seller's manager's possession:
(a) Copies of all soils and hazardous materials
reports, termite reports, engineering studies, topographical
maps, appraisals and other reports, studies, and maps with
respect to the Property (other than materials related to
matters among the partners in Seller);
(b) Copies of subdivision maps relating to the Land;
(c) Copies of all approvals and permits relating to
Seller's development and ownership of the Real Property and
copies of all governmental approvals and permits otherwise
respecting the Real Property;
(d) Copies of all correspondence with tenants pursuant
to the terms of or otherwise relating to their leases relating
to the construction, permitting or entitlement of the Real
Property, and copies of documents and certificates from
appropriate governmental authorities relating to the zoning,
building and platting status of the Real Property;
(e) A description of existing and proposed local
improvements affecting the Property, including assessment
levels;
(f) Copies of all service contracts relating to the
Property;
(g) Copies of the real property and personal property
tax bills for the Property for the period of Seller's
ownership;
(h) Copies of all tenant leases and proposed tenant
leases on the Property;
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(i) Copies of all plans and construction drawings for
all buildings constructed or to be constructed on the
Property; and
(j) Copies of all insurance policies maintained by
Seller with respect to the Property for the period of Seller's
ownership.
Buyer agrees to keep all information relating to the Property
provided to it by Seller or obtained by Buyer in the course of its review and
inspection of the Property pursuant to this Agreement confidential until Closing
has occurred, subject to Section 10.18 hereof; provided, however, that such
information may be disclosed as required by law, or to Buyer's agents,
attorneys, employees or consultants who are assisting Buyer with its inspection
and evaluation of the Property, to Buyer's existing or prospective lenders or
joint venture partners, and to the extent required by any subpoena issued by any
court of competent jurisdiction or by governmental or administrative body. The
obligations of Buyer under this Section 4.3 shall survive any termination of
this Agreement.
4.4 Service and Other Contracts. Buyer's review and approval,
in its sole and absolute discretion, of all utility contracts, water and sewer
service contracts, service contracts, warranties, permits, soils reports, and
other contracts or documents of any nature relating to the Property or any
portion thereof (the "CONTRACTS"; those Contracts which Buyer does not
disapprove in writing prior to the end of the Review Period (and prior to the
Closing Date in the case of contracts not entered into or delivered to the Buyer
until after the expiration of the Review Period) shall be referred to as the
"APPROVED CONTRACTS"). Buyer's remedy if it disapproves any Contract(s) shall be
(i) to the extent such disapproved Contract(s) can be terminated, to compel the
Seller to terminate such disapproved Contract(s) on or prior to the Closing by
advising Seller of such requests at the time Buyer disapproves of any such
Contract, which Seller hereby agrees to do at its sole cost and expense if so
requested by Buyer, or (ii) to the extent Seller cannot terminate such
disapproved Contract(s), Buyer shall have the option, which must be exercised
within ten (10) days of Buyer's receipt of Seller's notice to Buyer that Seller
cannot terminate such disapproved Contract(s), or Closing (whichever is
earlier), (a) to waive Buyer's disapproval of the Contract(s) and purchase the
Property as otherwise contemplated in this Agreement, and Seller shall convey
the Property to Buyer, or (b) to terminate this Agreement by written notice to
Seller and Escrow Holder, whereupon any and all right and obligations of Buyer
and Seller hereunder shall terminate (other than such obligations which, by
their express terms, survive any termination of this Agreement) and within five
(5) days after Buyer has provided notice to Escrow Holder, Escrow Holder shall
deliver to Buyer the ▇▇▇▇▇▇▇ Money Deposit, together with interest thereon.
4.5 Physical Characteristics of the Property. Buyer's review
and approval, in its sole and absolute discretion, of (a) an environmental
assessment (which shall, without limiting the scope of the report, contain an
assessment of asbestos and radon affecting the Property) by an environmental
consultant of Buyer's choice and at Buyer's cost (the "PHASE I REPORT"), and (b)
the results of Buyer's physical inspection and testing of the Property, or any
portion thereof (which testing shall be conducted at Buyer's expense, and may
include, but shall not be limited to, testing for the presence of asbestos,
PCBs, as defined below, and other Hazardous Materials, as defined below,
including without limitation the performance of core sampling, drilling and
other intrusive testing), of the structural, mechanical, electrical and other
physical or environmental characteristics of the Property, including any tenant
improvements or other construction installed or to be installed as of the
Closing Date. To the extent not prohibited by the Leases, Seller shall
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allow Buyer reasonable access to the Property to perform any physical inspection
thereof which Buyer reasonably deems appropriate. Buyer shall notify Seller in
advance and coordinate the timing of any visits to the Property with Seller so
as to minimize disruption of the on-going operation of the Property. Buyer shall
pay all costs incurred in making any tests, surveys, analyses, and
investigations of the Property and shall indemnify and hold Seller harmless from
and against any and all liens which may arise as a result of the activities of
Buyer or its agents, representatives, or designees on the Property, and against
any and all claims for death or injury to persons or for physical damage to the
Real Property arising out of or as a result of Buyer or its agents,
representatives or designees going upon the Property pursuant to the provisions
of this Section or otherwise.
4.6 Governmental Permits, Approvals and Regulations. Buyer
shall have confirmed that all governmental permits and approvals with respect to
the Property relating to the zoning, entitlements, construction, operation, use
or occupancy of the Property or any portion thereof, are in full force and
effect.
4.7 Representations and Warranties. All of Seller's
representations and warranties contained herein or made in writing by Seller
shall have been true and correct in all material respects when made and shall be
true and correct in all material respects as of the Closing Date, as though made
at, and as of, the Closing Date, and Seller shall have executed and delivered
all documents and complied with all of Seller's covenants and agreements
contained in or made pursuant to this Agreement.
4.8 Impairment of Property. No material adverse change shall
have occurred in the condition or ownership of the Property or any part thereof
from and after the conclusion of the Review Period. As of the Closing no part of
the Property, or any interest of Seller therein, shall be encumbered by any
lien, pledge, security interest, financing or due and unpaid charge, tax or
other imposition (other than Permitted Exceptions and items which will be
removed on or prior to the Closing Date), or materially damaged as described in
Section 8.2 and not repaired to Buyer's satisfaction or taken in any material
respect in condemnation or other like proceeding and no such proceeding shall be
pending or threatened, except as otherwise provided in Section 8.2 hereof. There
shall have occurred no material adverse change in the financial condition of any
tenant under any of the Leases demising five thousand (5,000) square feet or
more of the Improvements (each, a "MAJOR LEASE"), and there shall be no material
default, or event that with the giving of notice or the passage of time or both
would constitute a material default, under any Major Lease or any event that
with the giving of notice or the passage of time or both would allow any party
to any Major Lease to terminate such Lease, with or without notice.
4.9 Approval of Buyer's Board of Directors. This Agreement and
the transactions contemplated hereby shall have been approved by Buyer's board
of directors (the "BUYER APPROVAL") on or before the date that is forty-five
(45) days after the date hereof.
4.10 Objections to Property or Other Matters. To the extent
there is a change in any of the matters described in this Article IV.A, or any
such matters first become available or are supplemented after the date hereof,
Seller shall promptly inform Buyer of such change in circumstances upon becoming
aware thereof and deliver any such new or supplemental information to Buyer.
Buyer shall have until the date that is forty-five (45) business days after the
date of the full execution and delivery of this Agreement (the "REVIEW PERIOD"),
to notify Seller of any objections Buyer has to the physical or
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financial state of the Property, to the Phase I environmental report, to any
contracts or leases relating to the Property, to any item delivered (or not
delivered) by Seller to Buyer, or to any other matter covered by this Article
IV.A other than Title or Survey; provided that Buyer shall have until the
Closing Date to approve the items specified in Sections 4.1, 4.8, 4.11 and 4.12
hereof. If Buyer shall object as provided herein, then this Agreement shall
terminate and any and all right and obligations of Buyer and Seller hereunder
shall terminate (other than any obligations which, by their express terms,
survive any termination of this Agreement), and within five (5) days after Buyer
provides notice of such termination to Escrow Holder, Escrow Holder shall pay to
Buyer the ▇▇▇▇▇▇▇ Money Deposit, together with interest thereon. If Buyer does
not give notice to Seller of its objections prior to the end of the Review
Period, Buyer shall be conclusively deemed to have waived any right to object to
such matters and to terminate this Agreement due to Buyer's disapproval thereof.
4.11 Tenant Matters. Buyer shall have received and approved
written estoppel statements, in substantially the form as that attached hereto
as Schedule G, from each of the tenants under the Major Leases, and tenants
holding leases upon not less than eighty-five percent (85%) of the remaining
gross leasable area in the Property. Each such estoppel statement shall be in
form and substance acceptable to Buyer. Buyer shall have 5 days after the date
of Buyer's receipt of each estoppel to notify Seller of any objection Buyer may
have regarding such estoppel, and in the event Buyer fails to so notify Seller,
Buyer shall be deemed to have approved such estoppel.
4.12 REA Estoppels. Buyer shall have received and approved
such written estoppel statements from each party to any reciprocal easement
agreement affecting the Property as Buyer shall reasonably require. Each such
estoppel statement shall be in form and substance reasonably acceptable to
Buyer. Buyer shall have 5 days after the date of Buyer's receipt of each such
estoppel to notify Seller of any objection Buyer may have regarding such
estoppel, and in the event Buyer fails to so notify Seller, Buyer shall be
deemed to have approved such estoppel.
4.13 Subdivision. Buyer shall have approved the subdivision of
the Land pursuant to which an outparcel shall be separated from the Land, Buyer
shall have received a revised survey of the Land and such outparcel in form and
substance acceptable to Buyer, such subdivision shall have been completed, and
recorded covenants, conditions and restrictions in form and substance acceptable
to Buyer shall have been recorded against the remainder of the Land and such
outparcel.
4.14 Delivery of Documents. The due and timely delivery by
Seller of executed documents required by this Agreement, including without
limitation all of the documents and items specified in Section 5.3 below.
The foregoing conditions contained in this Article IV.A
(except to the extent otherwise provided in Article IV.B hereof) are intended
solely for the benefit of, and may be waived by, Buyer.
B. Seller's Conditions to Closing.
The following conditions are conditions precedent to Seller's
obligation to sell the Property:
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4.15 Delivery of Documents and Purchase Price. Buyer's due and
timely execution and delivery of all documents and items to be executed and
delivered by Buyer (including without limitation the Purchase Price) pursuant to
this Agreement, including without limitation all of the documents and items
specified in Section 5.4 below.
4.16 Subdivision. The condition precedent to Buyer's
obligations hereunder set forth in Section 4.13 hereof shall have been
satisfied.
The foregoing conditions contained in this Article IV.B are
intended solely for the benefit of Seller (except to the extent otherwise
provided in Article IV.A hereof).
ARTICLE V
CLOSING, RECORDING AND TERMINATION
5.1 Deposit with Escrow Holder and Escrow Instructions.
Promptly after execution of this Agreement, the parties hereto shall deliver one
(1) fully executed copy of this Agreement to the Escrow Holder and this
instrument shall serve as the escrow instructions to the Escrow Holder for
consummation of the purchase and sale contemplated hereby. Seller and Buyer
agree to execute such additional and supplementary escrow instructions as may be
appropriate to enable the Escrow Holder to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control.
5.2 Closing. (a) The Closing Date shall occur no later than
the date (the "OUTSIDE CLOSING DATE") which is forty-five (45) days after the
conclusion of the Review Period. The Closing and the Closing Date shall not have
occurred until the Purchase Price shall have been paid by Buyer to Escrow Holder
as provided herein. The "CLOSING" shall be deemed to have occurred on the date
that all of the events specified in Section 5.8 of this Agreement shall have
occurred. The "CLOSING DATE" shall be the date on which the Closing occurs.
(b) In the event the Closing does not occur on
or before the Outside Closing Date, subject to any extension to the Outside
Closing Date contemplated by Article VIII hereof, the Escrow Holder shall,
unless it is notified by Buyer to the contrary within five (5) days after such
date, return to the depositor thereof all items which may have been deposited
with Escrow Holder hereunder (not including the ▇▇▇▇▇▇▇ Money Deposit, if Seller
has prior to such date alleged in writing to Buyer and Escrow Holder that Seller
is entitled to the ▇▇▇▇▇▇▇ Money Deposit pursuant to the terms hereof). Any such
return shall not, however, relieve either party hereto of any liability it may
have for its wrongful failure to close. Buyer shall, within five (5) days after
the termination of this Agreement in accordance with the terms hereof, return to
Seller all documents and materials delivered to Buyer hereunder by or on behalf
of Seller.
5.3 Delivery by Seller. At the Closing, Seller shall deposit
with the Escrow Holder, for the benefit of Buyer, or deliver directly to Buyer
the following:
(a) The Deed and the Assignment and Assumption of
Leases and Rents, each duly executed and acknowledged by
Seller, in recordable form, and ready for recordation in the
official records
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of the jurisdiction in which the Land is located (the
"OFFICIAL RECORDS");
(b) The ▇▇▇▇ of Sale duly executed by Seller;
(c) A certificate from the office of the county clerk
of the county in which the Land is located and of the county
in which Seller's principal office is located, a certificate
from the Office of the Secretary of State of the State of
North Carolina, or other appropriate evidence of all filings
against Seller under the Commercial Code of North Carolina
which would be a lien on any of the Personal Property, any
such evidence being dated within ten (10) days prior to the
Closing Date, together with fully executed termination
statements with respect to such filings;
(d) originals or copies of any warranties and
guaranties received by Seller and to be assigned to Buyer,
from any contractors, subcontractors, suppliers or materialmen
in connection with any construction, repairs or alterations of
the Improvements or any tenant improvements;
(e) The Assignment of Contracts, Intangible Property,
Warranties and Guarantees, duly executed by Seller and
acknowledged, assigning all of Seller's interest in the
Intangible Property, together with written terminations of any
Contracts which are not Approved Contracts;
(f) Originals or copies of all certificates of
occupancy and permits for the Improvements;
(g) All existing as-built plans and specifications for
the Improvements in the possession of Seller or its manager;
(h) A closing statement prepared by Escrow Holder in
form and content consistent with this Agreement and otherwise
reasonably satisfactory to Buyer and Seller;
(i) The Non-Foreign Certificate, duly executed by
Seller;
(j) Complete originals of the Leases with respect to
the Property and copies of all records, books of account,
ledgers, statements and other business records relating to the
ownership and operation of the Property and/or the
administration of the Leases, in whatever mode maintained,
including information contained on computer disks; and
(k) A letter to each tenant, in form and substance
acceptable to Buyer, advising such tenant that the Property
has been sold to Buyer.
Buyer may waive compliance on Seller's part under any of the
foregoing items by an instrument in writing.
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5.4 Delivery By Buyer. Buyer shall execute and deliver to
Escrow Holder, for the benefit of Seller, or directly to Seller the Assignment
and Assumption of Leases and Rents, a closing statement, and such other
documents and instruments as may be required to the close the transactions
contemplated hereby, which documents and instruments shall be in form and
substance reasonably acceptable to Buyer. On the Closing Date, after Buyer's or
Escrow Holder's receipt of all of the items specified in Section 5.3 hereof,
after the complete satisfaction of all of the conditions precedent to Buyer's
obligations hereunder, and after the expiration of the Review Period, Buyer
shall deliver the Purchase Price to Escrow Holder as provided in Section 2.2
above.
5.5 Other Instruments. Seller and Buyer shall each deposit
such other instruments as are reasonably required by Escrow Holder or otherwise
required to close the escrow and consummate the purchase of the Property in
accordance with the terms hereof.
5.6 Prorations. At Closing, the parties shall prorate (with
Buyer being deemed to be the owner of the Property for the date of the Closing)
as of the date on which the Closing occurs, based on the actual number of days
elapsed in the calendar month in which the Closing Date occurs, the following
with respect to the Property:
(a) Rents. All rents and other receipts collected by
Seller for the month in which the Closing occurs shall be
prorated as of the Closing. Delinquent rentals shall be
prorated between Buyer and Seller, but not until they are
actually collected by Buyer. Buyer shall use reasonable
efforts after the Closing to collect delinquent rents for the
period up to the Closing; provided, however, that all
collections shall be applied first to periods commencing after
the Closing, and then to periods prior to the Closing.
Percentage Rents (if any) shall be prorated by Buyer
reasonably promptly after receipt thereof by Buyer.
(b) Common Area Maintenance Charges. All reimbursable
expenses shall be reconciled at Closing, such that if Seller
has collected sums in excess of its reimbursable expenses
under the Leases, Seller shall pay such excess to Buyer. In
the event that such reconciliation shows that Seller has
collected less than its incurred reimbursable expenses under
the Leases, Buyer shall remit the excess (to the extent, and
only to the extent, that such excess is actually collected by
Buyer, with all payments on arrearages to be applied first to
the period after the Closing Date) to Seller not later than
the expiration of three months after the conclusion of the
twelve-month period then in progress with respect to the
budgeting of such expenses under the Leases.
(c) Taxes. Real estate taxes, recurring assessments,
and personal property taxes, if any, on all or any portion of
the Property (exlcusive of the portion of the Land subdivided
into an outparcel pursuant to Section 4.13 hereof), based on
the regular and supplemental tax bills for the tax or
assessment year in which the Closing occurs (or, if such tax
▇▇▇▇ has not been issued as of the date of Closing the regular
and supplemental tax ▇▇▇▇ for the tax or assessment year
preceding that in which the Closing occurs, with such increase
thereto as Buyer reasonably estimates will occur) shall
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be prorated as of the Closing. Should such proration be based
on a tax ▇▇▇▇ for the preceding tax or assessment year, and
should such proration prove to be inaccurate upon receipt of
the tax ▇▇▇▇ for the Property for the tax or assessment year
of Closing, either Seller or Buyer may demand a payment from
the other correcting such misapportionment. If any
supplemental real estate taxes are levied for any period
preceding the Closing, the parties will, promptly after the
Closing or the issuance of the supplemental real estate tax
▇▇▇▇ (whichever last occurs), prorate between themselves, in
cash, without interest and to the date of the Closing Date,
the supplemental real estate taxes shown by such ▇▇▇▇.
(d) Utilities. All utilities, including gas, water,
sewer, electricity, telephone and other utilities supplied to
the Property shall be read as of the Closing Date, to the
extent possible. Seller shall pay, prior to the Closing Date,
all such amounts for which a ▇▇▇▇ has been received or for
which payment is otherwise due prior to the Closing Date, and
Buyer shall be credited, and Seller shall be debited, with an
amount equal to all utility charges for the period from the
date covered by such bills until the Closing Date. Seller
shall be credited for the amount of any deposits made by
Seller for utility services which have not been refunded to
Seller and which are assigned to Buyer on or prior to the
Closing Date.
(e) Service Contracts. Amounts payable under Approved
Contracts shall be prorated on an accrual basis. Seller shall
pay, prior to the Closing Date, all such amounts for which a
▇▇▇▇ has been received or for which payment is otherwise due
prior to the Closing Date, and Buyer shall be credited, and
Seller shall be debited, with an amount equal to all amounts
accrued under the Approved Contracts from the date covered by
such bills until the Closing Date. Seller shall deliver to
Escrow, for the benefit of Buyer, evidence of the cancellation
or termination of all Contracts other than Approved Contracts,
and Seller shall be responsible for all such cancellation
costs.
(f) Improvement Lien Assessments. All improvement
lien assessments shall be paid in full by Seller at Closing.
(g) Other Items. All other proratable items, including
without limitation other income from, and expenses associated
with, the Property shall be prorated between Buyer and Seller
as of the Closing.
In the event accurate prorations and other adjustments cannot be made at Closing
because current bills or statements or other information is not obtainable, the
parties shall prorate on the best available information, subject to adjustment
as soon after the Closing as the actual amounts to be prorated are determined.
Buyer and Seller's obligation to prorate shall survive the Closing for a period
of one (1) year (unless within such time Buyer or Seller makes a claim against
the other party to this Agreement with respect to such obligation to prorate,
in which case such obligation shall survive without limitation), and Buyer and
Seller shall use good faith efforts to conclude prorations with respect to
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percentage Rent, taxes, and common area maintenance charges as soon as
practicable after the determination of the amounts thereof. From and after
Closing, each party shall afford to the other reasonable access to any
information in its possession concerning the operations of the Property
(including the right to copy the same at the expense of the party desiring the
copy) for the purposes of ascertaining post-closing adjustments, tax
examinations or audits, or other similar purposes.
5.7 Costs and Expenses. Seller and Buyer shall each bear and
pay one-half (1/2) of the fees of Escrow Holder. Seller shall pay all premiums
for the Title Policy (not including the costs of any special endorsements
thereto requested by Buyer), all legal fees and costs incurred by Seller, the
cost of any recordation fees and documentary or other transfer taxes applicable
with respect to the sale of the Real Property, all sales tax, if any, applicable
with respect to the sale of the Personal Property and/or the Intangible
Property, and other fees and charges which are typically borne by sellers in
Greensboro, North Carolina. Buyer shall pay for the Survey, the Phase I Report,
its out-of-pocket expenses, all due diligence, all legal fees and costs incurred
by Buyer in connection herewith, and other fees and charges which are typically
borne by buyers in Greensboro, North Carolina.
5.8 Closing and Recordation. Provided that Escrow Holder has
received all of the items required to be delivered pursuant to this Article V
(or a waiver from the party for whose benefit such item is being delivered) and
that it has not received prior written notice from Buyer that Buyer has elected
to terminate its rights and obligations hereunder pursuant to Article IV,
Article VIII and/or Section 5.9, and provided that Buyer has received either the
Title Policy or the irrevocable commitment of Title Company to provide it with
the Title Policy immediately after recordation of the Deed, Escrow Holder is
authorized and instructed (a) with respect to the Property, to cause the Title
Company to record the documents delivered to the Escrow Holder in accordance
with recording instructions set forth in a letter to be delivered to Escrow
Holder and Title Company by Buyer (or if no such letter is received prior to the
Closing, in accordance with customary practice), (b) to deliver those other
documents and instruments delivered into Escrow to the party for whose benefit
such documents or instruments were made and (c) to deliver the Purchase Price,
as adjusted pursuant to Section 5.6 hereof, upon receiving confirmation of
recording of the Deed.
5.9 Termination of Agreement.
(a) Failure of Buyer's Conditions. If any one or more of the
conditions to Buyer's obligations, as set forth in Article IV.A, Section 5.3 or
elsewhere in this Agreement, is not either fully performed, satisfied or waived
in writing (or deemed waived as provided herein) on or before the Closing Date
or such earlier date as provided elsewhere herein, then Buyer may elect, by
written notice as provided in Section 10.10 hereof, to terminate this Agreement,
in which case neither party shall have any further obligation to the other
(other than any obligations which, by their express terms, survive any
termination of this Agreement). Nothing in this paragraph shall be construed to
limit any of Buyer's rights or remedies at law or equity in the event of a
default by Seller. Upon termination of this Agreement by Buyer pursuant to any
provision providing Buyer a right of termination, Buyer shall return to Seller
all materials previously provided by Seller to Buyer and, except in the case of
Buyer's termination due to Seller's default, Buyer shall deliver to Seller
copies of all reports and studies and obtained by Buyer from third party
consultants with respect to the Property.
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(b) Failure of Seller's Conditions. If any one or more of the
conditions to Seller's obligations, as set forth in Article IV.B, Section 5.4 or
elsewhere in this Agreement, is not either fully performed, satisfied or waived
in writing (or deemed waived as provided herein) on or before the Closing Date
or such earlier date as provided elsewhere herein, then Seller may elect, by
written notice as provided in Section 10.10 hereof, to terminate this Agreement
and neither party shall have any further obligation to the other (other than any
obligations which, by their express terms, survive any termination of this
Agreement).
5.10 Security Deposits. Seller shall pay over to Buyer at
Closing or grant to Buyer a credit against the Purchase Price in an amount equal
to the aggregate of the tenants' security and other deposits and prepaid rents
under the Leases, including all accrued interest thereon to the extent that the
tenants may be entitled to receive such amounts in connection with the refund of
any such deposit or prepaid rent. Buyer shall indemnify Seller for any claim by
any tenant under a lease to the extent, and solely to the extent, that such
claim relates to Buyer's wrongful failure to refund a security deposit to such
tenant, which security deposit was delivered by Seller to Buyer pursuant hereto.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER
As an inducement to Buyer to enter into this Agreement and the
consummation of the transaction contemplated hereby, Seller hereby represents
and warrants to and agrees with Buyer as of the date hereof, as set forth below.
As used herein and elsewhere in this Agreement, the term "SELLER'S ACTUAL
KNOWLEDGE" shall mean the actual knowledge of each of Messrs. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, after review of the written files of Seller and Seller's
manager with respect to the Property. Seller hereby represents and warrants that
the foregoing persons are the persons employed by Seller or Seller's manager
with executive, managerial or daily supervisory responsibility with respect to
the Property.
6.1 Authority. Seller is duly organized and validly existing
under the laws of the jurisdiction of its organization, is duly qualified to
conduct business and own real property in the State of North Carolina, and has
all requisite power to own all of its properties and assets and to carry on its
business as presently conducted. The execution, delivery and performance of this
Agreement and all other agreements contemplated hereby has been duly and validly
authorized by all necessary action of Seller and the Agreement and all other
agreements contemplated thereby are and will be valid and binding obligations of
Seller.
6.2 Title. Seller holds fee simple title to the Property, and
to Seller's actual knowledge, such fee simple title is free and clear of all
liens, encumbrances, security interests, charges, adverse claims and other
exceptions to title, except for the Leases, Contracts, matters of record,
matters that would be disclosed by a current and accurate survey, and the
Permitted Exceptions.
6.3 The Leases. A list of the current Leases is set forth in
the rent roll attached hereto as Schedule H (the "RENT ROLL"). The Rent Roll is
true, complete and correct in all respects as of the date thereof and except for
the Leases set forth in the Rent Roll, there
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are no other leases, licenses or other agreements granting any party any right
of occupancy of the Property. With respect to each Lease: (i) the Lease is in
full force and effect, and constitutes the valid and binding legal obligation of
Seller; (ii) there are no understandings, oral or written, between the parties
to the Lease which in any manner vary the obligations or rights of either party
except as set forth in the copies of such Lease and related written materials
provided by Seller to Buyer pursuant to this Agreement; (iii) except as
indicated on the Rent Roll, there is no default by Seller under the Lease and to
Seller's actual knowledge, by the tenant under the Lease; and (iv) no rent or
additional rent under the Lease has been paid for more than thirty (30) days in
advance of its due date.
6.4 No Litigation or Adverse Events. Seller has received no
written notice of, and to Seller's actual knowledge, there are no, pending or
threatened investigations, actions, suits, proceedings or claims against or
affecting Seller, the Property, any tenant or relating to the zoning,
environmental condition or use of any adjacent property, at law or in equity or
before or by any federal, state, municipal or other governmental department,
commission, board, agency, or instrumentality, domestic or foreign.
6.5 Compliance with Laws. Seller has not received any notice
or claim of any violations of applicable laws, ordinances, rules and regulations
(including without limitation those relating to zoning and the Americans With
Disabilities Act) applicable to the ownership or operation of the Property.
Seller has not received from any insurance company or Board of Fire Underwriters
any notice, which remains uncured, of any defect or inadequacy in connection
with the Property or its operation.
6.6 No Defaults in Other Agreements. To Seller's actual
knowledge, neither Seller nor any other party is in material default under any
Contract affecting the Property, and no event exists which, with the passage of
time or the giving of notice or both, will become a material default thereunder
on the part of the Seller or any other party thereto. To Seller's actual
knowledge, Seller is in compliance in all material respects with the terms and
provisions of the covenants, conditions, restrictions, rights-of-way or
easements affecting the Property.
6.7 Eminent Domain. To Seller's actual knowledge, there is no
existing or proposed or threatened eminent domain or similar proceeding, or
private purchase in lieu of such a proceeding which would affect the Property in
any material way.
6.8 Permits, CO's, Zoning, etc. To Seller's actual knowledge,
all permits, certificates of occupancy, and all other notices, permits,
certificates and authority required as of the date hereof in connection with
Seller's ownership and operation of the Property or the use or occupancy thereof
have been obtained and are in full force and effect and in good standing.
6.9 Taxes and Assessments. To Seller's actual knowledge, all
real property taxes, and all Seller's personal property taxes, relating to the
Property, excepting those for the current tax year which are not yet overdue
(i.e., which are still payable without interest or penalty), have been paid in
full. To Seller's actual knowledge, there is no existing or proposed assessment
that has or may become a lien on the Property.
6.10 Environment. (i) Seller has not engaged in any operations
or activities upon, or any use or occupancy of the Property, or any portion
thereof, for the purpose of or in any way involving the handling, manufacture,
treatment, storage, use, generation, release, discharge, refining, dumping or
disposal of any Hazardous
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Materials (whether legal or illegal, accidental or intentional) on, under, in or
about the Property, or transported any Hazardous Materials to, from or across
the Property, except in all cases in material compliance with Environmental
Requirements and only in the course of legitimate business operations at the
Property (which shall not include any business primarily or substantially
devoted to the handling, manufacture, treatment, storage, use, generation,
release, discharge, refining, dumping or disposal of Hazardous Materials); (ii)
to Seller's actual knowledge, no tenant, occupant or user of the Property, nor
any other person, has engaged in or permitted any operations or activities upon,
or any use or occupancy of the Property, or any portion thereof, for the purpose
of or in any material way involving the handling, manufacture, treatment,
storage, use, generation, release, discharge, refining, dumping or disposal of
any Hazardous Materials (whether legal or illegal, accidental or intentional)
on, under, in or about the Property, or transported any Hazardous Materials to,
from or across the Property, except in all cases in material compliance with
Environmental Requirements and only in the course of legitimate business
operations at the Property (which shall not include any business primarily or
substantially devoted to the handling, manufacture, treatment, storage, use,
generation, release, discharge, refining, dumping or disposal of Hazardous
Materials); (iii) to Seller's actual knowledge, based upon a review of Seller's
written files with respect to the Property and upon a Phase I environmental site
assessment of the Property prepared by Law Engineering, Inc. and dated November,
1994, and without further independent investigation, no Hazardous Materials are
presently constructed, deposited, stored, or otherwise located on, under, in or
about the Property except in all cases in material compliance with Environmental
Requirements and only in the course of legitimate business operations at the
Property (which shall not include any business primarily or substantially
devoted to the handling, manufacture, treatment, storage, use, generation,
release, discharge, refining, dumping or disposal of Hazardous Materials); (iv)
to Seller's actual knowledge, based upon a review of Seller's written files with
respect to the Property and upon a Phase I environmental site assessment of the
Property prepared by Law Engineering, Inc. and dated November, 1994, and without
further independent investigation, no Hazardous Materials have migrated from the
Property upon or beneath other properties; and (v) to Seller's actual knowledge,
based upon a review of Seller's written files with respect to the Property and
upon a Phase I environmental site assessment of the Property prepared by Law
Engineering, Inc. and dated November, 1994, and without further independent
investigation, no Hazardous Materials have migrated or threaten to migrate from
other properties upon, about or beneath the Property.
As used herein:
"ENVIRONMENTAL REQUIREMENTS" shall mean all applicable present
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, concessions, franchises and similar items, of
all governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including, without limitation: (i) all requirements, including but
not limited to those pertaining to reporting, licensing, permitting,
investigation and remediation of emissions, discharges, releases or threatened
releases of "Hazardous Materials," chemical substances, pollutants, contaminants
or hazardous or toxic substances, materials or wastes whether solid, liquid or
gaseous in nature, into the air, surface water, ground water or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of chemical substances, pollutants, contaminants
or hazardous or toxic substances, materials, or wastes, whether solid, liquid or
gaseous in nature; and (ii) all requirements pertaining to the protection of the
health and safety of employees or the public.
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"HAZARDOUS MATERIALS" shall mean (i) any flammable, explosive
or radioactive materials, hazardous wastes, toxic substances or materials
including, without limitation, substances defined as "hazardous substances,"
"hazardous materials," "toxic substances" or "solid waste" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq.; the Toxic Substances Control Act, 15 U.S.C., Section 2601
et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901 et seq.; and in the regulations adopted and publications promulgated
pursuant to said laws; (ii) those substances listed in the United States
Department of Transportation Table (49 C.F.R. 172.101 and amendments thereto) or
by the Environmental Protection Agency (or any successor agency) as hazardous
substances (40 C.F.R. Part 302 and amendments thereto); (iii) those substances
defined as "hazardous wastes," "hazardous substances" or "toxic substances" in
any similar federal, state or local laws or in the regulations adopted and
publications promulgated pursuant to any of the foregoing laws or which
otherwise are regulated by any governmental authority, agency, department,
commission, board or instrumentality of the United States of America, the State
of North Carolina or any political subdivision thereof, (iv) any pollutant or
contaminant or hazardous, dangerous or toxic chemicals, materials, or substances
within the meaning of any other applicable federal, state, or local law,
regulation, ordinance, or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, all
as amended; (v) petroleum or any by-products thereof; (vi) any radioactive
material, including any source, special nuclear or by-product material as
defined at 42 U.S.C. Sections 2011 et seq., as amended, and in the regulations
adopted and publications promulgated pursuant to said law; (vii) asbestos in any
form or condition; and (viii) polychlorinated biphenyls.
6.11 Physical Condition. To Seller's actual knowledge: (i)
there are no material structural defects in the Improvements located on or at
the Property; and (ii) the Improvements and Personal Property (including without
limitation plumbing equipment, HVAC, electric wiring and fixtures, gas
distribution system, water and sewage systems, and security systems) are in good
working order and condition, except for defects or required repairs that are not
material.
6.12 Employees. Seller has no employees.
6.13 Mechanic's Liens. All bills and claims for labor
performed and materials furnished to or for the benefit of the Property
currently due and contracted for by Seller or its manager have been paid in
full, and there are no mechanic's or materialmen's liens (whether or not
perfected) on or affecting the Property as a result of labor performed or
materials furnished and contracted for by the Seller or its manager.
6.14 Operating Statements. The financial statements delivered
by Seller to Buyer fairly present the profit or loss from the management and
operation of the Property for the periods covered thereby and, in all material
respects, accurately reflect all rents and other gross receipts, and all amounts
paid by Seller for electricity, water, sewer, other utility services, insurance,
fuel, maintenance and repairs (whether capitalized or expensed), real estate
taxes, payroll and payroll taxes and all other operating and other expenses
associated with the Property.
6.15 Disclosure. The information contained in the
representations contained herein do not contain any material misstatement or
omission. To Seller's actual knowledge, there are no material misstatements of
fact set forth in the documents and materials provided
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to Buyer pursuant to Section 4.3(a). Seller has delivered or made available to
Buyer complete copies of all written materials described in Sections 4.3(b)-(j)
which are in Seller's or its manager's possession.
6.16 No Leases of Property or Assets. No material portion of
the Personal Property or fixtures with respect to the Property (other than
fixtures owned or installed by tenants) is leased by the Seller as lessee.
Seller shall promptly notify Buyer, in writing, of any event
or condition known to Seller which occurs prior to Closing and which causes a
material change in the facts relating to, or the truth of, the above
representations and warranties. At the Closing, Seller shall reaffirm and
restate such representations and warranties, subject to disclosure of any
changes in facts or circumstances which may have occurred since the date hereof.
The representations and warranties set forth in this Article VI (and in any
certificate delivered by Seller at Closing) shall survive the execution and
delivery of this Agreement, the delivery of the Deed and transfer of title to
the Property, until the date that is one (1) year after the Closing Date;
provided however, that in the event Buyer makes a written claim against Seller
with respect to any representation or warranty prior to the date which is one
(1) year after the Closing Date, then such representation or warranty shall
survive without limitation as to such written claim. Notwithstanding anything to
the contrary provided in this Agreement, in the event Buyer shall have actual
knowledge as of the time of Closing that any of Seller's representations or
warranties are false or misleading, but shall elect to proceed to close this
transaction notwithstanding such false or misleading representation or warranty,
Buyer shall be deemed to have waived any claim it may have against Seller with
respect to such misrepresentation or breach of warranty unless such
misrepresentation or breach of warranty was intentional.
Except as expressly set forth in this Article VI, Seller makes
no representations or warranties, express or implied, regarding the condition of
the Property, the presence or absence of Hazardous Materials on or emanating
from the Property, the compliance by the Property with any applicable
governmental requirement, or any other aspect of the Property. By execution
hereof, Buyer agrees that neither Seller nor Seller's agents or representatives
have made, and Buyer has not relied upon, any representation or warranty of any
kind which is not herein expressly set forth or provided for, and Buyer shall
acquire the Property in its condition as of the date of Closing, "as is,"
subject to the terms and conditions of this Agreement and to the express
representations and warranties made by Seller herein.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BUYER
7.1 Representations and Warranties of Buyer. Buyer hereby
represents and warrants to Seller as follows: Buyer is a corporation duly
organized under the laws of the State of Maryland; subject to receipt of the
Buyer Approval, this Agreement and all documents executed by Buyer which are to
be delivered to Seller at the Closing are and as of the Closing Date will be
duly authorized, executed and delivered by Buyer, and are and as of the Closing
Date will be legal, valid and binding obligations of Buyer, and do not and as of
the Closing Date will not violate any provisions of any agreement or judicial
order to which Buyer is a party or to which it is subject.
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ARTICLE VIII
POSSESSION, DESTRUCTION AND CONDEMNATION
8.1 Possession. Possession of the Property shall be delivered
to Buyer on the Closing Date, subject to the Leases described on the Rent Roll
or otherwise approved by Seller. Without limiting any other provisions of this
Agreement, Seller shall afford authorized representatives of Buyer reasonable
access to the Property for the purposes of determining Seller's compliance
herewith (provided that Seller or Seller's agent shall be allowed to accompany
Buyer in any visit to the Property Buyer may make for the purposes of
determining such compliance); however, in no event shall such right give rise to
any obligation of Buyer to determine compliance or noncompliance.
8.2 Loss, Destruction and Condemnation.
(a) Definition of Material Damage. For the purposes
of this Section 8.2, damage to the Property is material if (i) the actual cost
of repairing or replacing the damaged portions of the Improvements on the
Property exceeds $100,000.00, or (ii) if it would take longer than ninety (90)
days to perform such repair or replacement using reasonably diligent efforts, or
(iii) if any lessee has the right to ▇▇▇▇▇ any rent under its lease as a result
of such damage and there is not full rental interruption coverage with respect
thereto available to Buyer through and after the Closing Date until the date
that is ninety (90) days beyond the estimated date of reconstruction, or (iv) if
any lessee has a right to terminate its lease as a result of such damage.
(b) Effect of Non-Material Damage to Improvements.
If prior to the Closing the Improvements on the Property are damaged by casualty
and such damage is not material, (i) this Agreement may not be terminated by
reason of such casualty (provided that this does not waive Buyer's other
termination rights under this Agreement) and (ii) Seller will, at Buyer's
option, either (a) cause the damaged portion of the Improvements to be repaired
at Seller's sole cost and expense within ninety (90) days after the date of such
damage or (b) pay to Buyer all insurance proceeds (and the amount of any
applicable deductible) theretofore actually received by Seller and, in addition,
assign, transfer and set over to Buyer all of Seller's right, title and interest
in and to any insurance claims or insurance proceeds that may thereafter be made
for any such damage or destruction, except that any loss of rent insurance shall
be prorated as of the date of Closing. Seller will notify Buyer within five (5)
days (but in any event prior to the Closing Date) of Seller's receipt of
knowledge of any casualty which occurs after the date of this Agreement and on
or prior to the Closing Date.
(c) Effect of Material Damage to Improvements.
If prior to the Closing the Improvements are damaged by casualty and such damage
is material, Seller shall notify Buyer in writing of such casualty as soon as
practicable. Within ten (10) days after the occurrence of such casualty, Seller
will, as soon as is practicable, commence restoration of the damaged
Improvements, and shall complete such restoration in compliance with all laws
and the representations and warranties set forth herein and shall restore such
Improvements their condition prior to the occurrence of the casualty promptly
(but in no event more than ninety (90) days thereafter), and the Closing Date
shall be extended (but in no event by more than ninety (90) days) until such
damaged Improvements are complete. If Seller does not commence or complete such
restoration within such time period, then Buyer may elect pursuant to a writing
delivered to Seller and
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Escrow Holder to (i) continue this Agreement, provided, however, that Seller
shall assign to Buyer at the Closing any insurance proceeds to which Seller is
entitled with respect to such damage except that any loss of rent proceeds shall
be prorated as of the date of Closing (in which event the Purchase Price shall
be reduced by the amount of any deductible with respect thereto); (ii) terminate
this Agreement, in which case Buyer shall have no further rights and obligations
to the Seller under this Agreement (except for such rights and obligations that,
by the express terms hereof, survive any termination of this Agreement) (but
Buyer shall retain its rights and remedies against Seller) and Escrow Holder
shall immediately return the ▇▇▇▇▇▇▇ Money Deposit (with interest thereon) to
Buyer. Buyer's failure to have elected any of these options within the time
allotted therefor shall be deemed to be an election of option (ii).
(d) Definition of Material Taking. For the purposes
of this Section 8.2, a taking or threatened taking by eminent domain or similar
proceedings shall be deemed material if (i) the value of that portion of the
Property to be so taken exceeds $100,000.00, (ii) the portion of the Property
taken materially impairs access to the Property or materially and adversely
affects the parking area; (iii) any lessee has the right to ▇▇▇▇▇ any rent under
its lease as a result of such taking or threatened taking, or (iv) any lessee
has the right to terminate its lease as a result of such taking or threatened
taking.
(e) Effect of Non-Material Taking. If prior to the
Closing there is a taking or threatened taking of a portion of the Property
which is not material, (i) this Agreement may not be terminated and (ii) Seller
will assign to Buyer at the Closing all of Seller's rights in and to any
condemnation award with respect to such non-material taking, and there will be
no reduction in the Purchase Price. Seller will deliver written notice to Escrow
Holder and Buyer within one (1) day after Seller receives notice of or otherwise
becomes aware of any taking or threatened taking affecting the Property.
(f) Effect of Material Taking. If prior to the
Closing there is a taking or threatened taking of a material portion of the
Property or all of it, Seller shall notify Buyer in writing of such taking or
threatened taking, and within ten (10) days after Buyer's receipt of such
notice, Seller and Buyer shall endeavor to agree upon whether the Property shall
be purchased by Buyer, and any reduction in the Purchase Price, and any
assignment of any condemnation award with respect to such taking. If within such
ten (10) day period Buyer and Seller have not reached a mutually acceptable
agreement as to those matters, Buyer within ten (10) days thereafter may elect
in writing to (i) continue this Agreement subject to the taking or threatened
taking with an assignment of all of Seller's rights to condemnation awards,
severance damages, payments-in-lieu thereof or the like; or (ii) terminate this
Agreement, in which case Buyer and Seller shall have no further rights or
obligations to one another under this Agreement (except for such rights and
obligations that, by the express terms hereof, survive any termination of this
Agreement), and Escrow Holder shall immediately return the ▇▇▇▇▇▇▇ Money Deposit
(with interest thereon) to Buyer. Buyer's failure to have elected any of these
options within the time period allotted therefor shall be deemed to be an
election of option (ii).
(g) Extension of Outside Closing Date. Upon the
occurrence of any damage to the Property which Seller is obligated to repair and
restore in accordance with the terms of this Agreement, the Outside Closing Date
shall be extended to the date upon which Seller is required hereunder to have
such damage repaired, but in no event shall any such extension extend the
Outside Closing Date to a date which is more than ninety (90) days after the
date of such damage to the Property.
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ARTICLE IX
MAINTENANCE AND OPERATION OF THE PROPERTY;
COVENANTS
9.1 Maintenance. In addition to Seller's other obligations
hereunder, Seller shall, upon and after the date of this Agreement and to and
including the Closing Date, at Seller's sole cost and expense, maintain the
Property in the ordinary course of business consistent with past practice, pay
all taxes, assessments, fines, penalties, charges and other operating expenses,
and shall make all repairs, maintenance and replacements of the Improvements and
any Personal Property and otherwise operate the Property in its ordinary and
customary manner, and otherwise in the same manner as before the making of this
Agreement, the same as though Seller were retaining the Property. Seller shall
not make any alterations to the Property without first receiving Buyer's prior
written consent thereto, except to the extent required by applicable
governmental laws, ordinances or regulations.
9.2 Leases and Other Agreements. Seller shall not, on or after
the date of this Agreement and on or prior to the Closing Date, enter into any
Lease pertaining to the Property except pursuant to the terms and conditions set
forth in this Section 9.2. At any time prior to the Closing Date, in the event
that Seller intends to enter into a lease with respect to any portion of the
Property, Seller shall deliver to Buyer a complete copy of the proposed lease,
financial information as to the proposed lessee (with credit reports), and
copies of all brokerage agreements (or a detailed list of all brokerage
obligations) with respect to such lease. Buyer shall review and approve or
disapprove of such lease within ten (10) days after the receipt of all of the
foregoing materials. If all such materials are delivered to Buyer on or prior to
ten (10) days prior to conclusion of the Review Period, and if (a) such lease
(and any brokerage commissions with respect thereto) was negotiated by Seller in
good faith and is on market terms, (b) the proposed lessee is creditworthy as
determined by Buyer in its reasonable judgment, (c) the proposed use of the
premises under such Lease is compatible with the other uses in the Property and
is not inconsistent with the general leasing policies of Buyer, as determined by
Buyer in its reasonable judgment, and (d) the terms and conditions of such Lease
and any brokerage commissions payable with respect thereto are otherwise
acceptable to Buyer in its reasonable discretion, then Buyer shall approve such
lease and if and when the Closing occurs, Buyer shall assume all obligations
under such lease to pay for or construct tenant improvements and shall assume
and pay, as and when due, all brokerage commissions with respect to such lease
which commissions were disclosed to and approved by Buyer. In the event that
Buyer does not affirmatively approve in writing such lease within such ten (10)
day period, then Buyer shall be deemed to have disapproved such lease and as
long as this Agreement remains effective Seller shall not enter into such lease.
Seller's sole remedy with respect to any such disapproval shall be to terminate
this Agreement, by written notice to Buyer not later than five (5) days later
the expiration of such ten (10) day period, in which case the ▇▇▇▇▇▇▇ Money
Deposit, with all interest thereon, shall be refunded to Buyer and this
Agreement, and each party's obligations hereunder, shall terminate (except for
such rights and obligations that, by the express terms hereof, survive any
termination of this Agreement). Notwithstanding the foregoing, after the
conclusion of the Review Period, in no event shall Seller enter into any lease
with respect to the Property without Buyer's prior written consent, which will
not be unreasonably withheld or delayed. After the date hereof, without Buyer's
prior written consent (which will not be unreasonably withheld) in
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no event shall Seller enter into any agreement or contract with respect to
the Property (other than a lease, which shall be governed by the foregoing
provisions and other than any agreement which is a Permitted Exception) which is
not terminable on thirty (30) days' prior notice (without premium or penalty).
9.3 Encumbrances. Seller shall not, after the date of this
Agreement and prior to the Closing Date, mortgage, encumber or suffer to be
encumbered all or any portion of the Property, which encumbrances would survive
the Closing Date, without the prior written consent of Buyer.
9.4 Consents and Notices. Seller and Buyer shall cooperate
with each other and exercise commercially reasonable efforts to obtain as of the
Closing Date, all consents from, and provide all notices to, any third party and
any governmental or regulatory authority which are required pursuant to any
Contract or any applicable laws as a condition to or in connection with the
execution, delivery or performance of this Agreement or other documents and
instruments contemplated thereby.
9.5 Audit Cooperation. Until the date that is one (1) year
after the Closing Date, Seller hereby agrees to cooperate with Buyer in
producing Buyer's audited financial statements for the Property for such periods
as may be requested by Buyer. Such cooperation shall include, without
limitation, the execution and delivery by Seller to Buyer's auditors of such
confirmations and letters as such auditors may reasonably require.
ARTICLE X
MISCELLANEOUS
10.1 Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and personally delivered or sent by
United States mail, registered or certified mail, postage prepaid, return
receipt requested, or by electronic facsimile transmission (followed by a copy
mailed or delivered as otherwise provided herein), or sent by Federal Express or
similar nationally recognized overnight courier service, and addressed as
follows, and shall be deemed to have been given upon the date of delivery (or
refusal to accept delivery) at the address specified below as indicated on the
return receipt or air ▇▇▇▇, or on the date of facsimile transmission if
delivered in such manner:
If to Seller: Maxvest Associates, Limited Partnership
------------
c/o ▇▇▇▇▇ ▇▇▇▇▇ Company
▇▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇
Suite 1100
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Buyer: The PRICE REIT, Inc.
-----------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Avenue
Fourth Floor
Los Angeles, CA 90036
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Holder: Chicago Title Insurance Company
------------------- ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as either party may from time to time specify in writing
to the other in the manner aforesaid.
10.2 Brokers and Finders. Buyer and Seller each hereby
represents and warrants that no broker was involved in this Agreement or the
transactions contemplated hereby except for Majors & Majors Realtors, Marcus &
Millichap, and K&F Development, each of whose commissions are to be paid by
Seller pursuant to a separate agreement between Seller and said brokers. In the
event of a claim for a broker's fee, finder's fee, commission or other similar
compensation in connection herewith other than as set forth above, (i) Buyer, if
such claim is based upon any agreement alleged to have been made by Buyer,
hereby agrees to reimburse Seller for any liability, loss, cost, damage or
expense (including reasonable attorneys' and paralegals' fees and costs) which
Seller may sustain or incur by reason of such claim and (ii) Seller, if such
claim is based upon any agreement alleged to have been made by Seller, hereby
agrees to indemnify, defend, protect and hold Buyer harmless against any and all
liability, loss, cost, damage or expense (including reasonable attorneys' and
paralegals' fees and costs) which Buyer may sustain or incur by reason of such
claim. The provisions of this Section 10.2 shall survive the Closing or earlier
termination of this Agreement.
10.3 Successors and Assigns. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns, except that neither Seller's nor Buyer's interest under
this Agreement may be assigned, encumbered or otherwise transferred whether
voluntarily, involuntarily, by operation of
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law or otherwise, without the prior written consent of the other; provided,
however, that Buyer may assign, encumber or otherwise transfer Buyer's interest
under this Agreement, without the prior written consent of Seller (which will
not be unreasonably withheld, conditioned or delayed), to any subsidiary or
affiliate of Buyer, provided, however, that such assignment shall not release
Buyer from its obligations under this Agreement. There shall be no third party
beneficiaries to this Agreement.
10.4 Amendments. This Agreement may be amended or modified
only by a written instrument executed by the party asserted to be bound thereby.
10.5 Continuation and Survival of Indemnities,
Representations, Warranties and Post-Closing Obligations. Except as provided in
Section 5.6 hereof or in Article VI of this Agreement, all indemnities,
representations and warranties by, and all of the post-closing obligations, if
any, of, the respective parties contained herein or made in writing pursuant to
this Agreement or any other instrument delivered by Seller pursuant hereto are
intended to and shall survive the execution and delivery of this Agreement, the
delivery of the Deed and transfer of title.
10.6 Interpretation. Whenever used herein, the term
"including" shall be deemed to be followed by the words "without limitation."
Words used in the singular number shall include the plural, and vice-versa, and
any gender shall be deemed to include each other gender. The captions and
headings of the Articles and Sections of this Agreement are for convenience of
reference only, and shall not be deemed to define or limit the provisions
hereof.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina.
10.8 Merger of Prior Agreements. This Agreement (including the
exhibits hereto) constitutes the entire agreement between the parties with
respect to the purchase and sale of the Property specifically described herein
and supersedes all prior and contemporaneous (whether oral or written)
agreements and understandings between the parties hereto relating to the
specific subject matter hereof.
10.9 Attorneys' Fees. In the event of any action or proceeding
at law or in equity between Buyer and Seller (including an action or proceeding
between Buyer and the trustee or debtor in possession while Seller is a debtor
in a proceeding under the Bankruptcy Code (Title 11 of the United States Code)
or any successor statute to such Code) to enforce or interpret any provision of
this Agreement or to protect or establish any right or remedy of either Buyer or
Seller hereunder, the unsuccessful party to such action or proceeding shall pay
to the prevailing party all costs and expenses, including without limitation
reasonable attorneys' and paralegals' fees and expenses (including without
limitation fees, costs and expenses of experts and consultants), incurred in
such action or proceeding and in any appeal in connection therewith by such
prevailing party, together with all costs of enforcement and/or collection of
any judgment or other relief. If such prevailing party shall recover judgment in
any such action, proceeding or appeal, such costs, expenses and attorneys' and
paralegals' and others' fees shall be included in and as a part of such
judgment.
10.10 Notice of Termination. If either Buyer or Seller elects
to terminate this Agreement, it will submit to Escrow Holder and the other party
hereto a notice of termination in duplicate. If Escrow Holder receives a notice
of termination, it is instructed
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to deliver by Federal Express or similar nationally recognized overnight courier
service and fax one copy to the other such party and such other party's
representatives, as designated in Section 10.1 above, within one (1) business
day. If Escrow Holder has not received a written objection from the other party
within five (5) business days after delivering and faxing the copy, Escrow
Holder is to (i) comply with the instructions contained in the notice of
termination, (ii) pay cancellation charges out of any funds on deposit in this
Escrow, (iii) return the ▇▇▇▇▇▇▇ Money Deposit (and interest thereon) to Buyer,
and (iv) cancel this Agreement.
10.11 Specific Performance; Damages. The parties understand
and agree that the Property is unique and for that reason, among others, Buyer
will be irreparably damaged in the event that this Agreement is not specifically
enforced. Accordingly, in the event of any breach or default in or of this
Agreement or any of the warranties, terms or provisions hereof by Seller, Buyer
shall have the right to demand and have specific performance of this Agreement.
Without limitation of the foregoing, in the event the purchase and sale of the
Property is not consummated due to Seller's wrongful act or failure to close,
Buyer may recover from Seller any out-of-pocket expenses actually incurred by
Purchaser as a result of such default by Seller, and Buyer hereby waives any and
all rights to recover direct or indirect or consequential damages in excess of
such amounts, except in the case of Seller's fraud or intentional
misrepresentation or material omission.
10.12 Relationship. It is not intended by this Agreement to,
and nothing contained in this Agreement shall, create any partnership, joint
venture, financing arrangement or other agreement between Buyer and Seller. No
term or provision of this Agreement is intended to be, or shall be, for the
benefit of any person, firm, organization or corporation not a party hereto, and
no such other person, firm, organization or corporation shall have any right or
cause of action hereunder.
10.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
10.14 Time of the Essence. Time is of the essence in this
Agreement and with respect to all of its terms.
10.15 No Waiver. No failure of either party to exercise any
power given either party hereunder or to insist upon strict compliance by the
other party with its obligations hereunder, and no custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of either
party's rights to demand exact compliance with the terms hereof.
10.16 Saturdays, Sundays, Legal Holidays. If the time period
by which any right, option, or election provided under this Agreement must be
exercised or by which any acts or payments required hereunder must be performed
or paid, or by which the Closing must be held, expires on a Saturday, Sunday,
legal or bank holiday, then such time period shall be automatically extended to
the close of business on the next regularly scheduled business day.
10.17 Offer and Acceptance; Effective Date. This Agreement,
when executed on behalf of Seller, shall constitute an offer by Seller to sell
the Property to Buyer on the terms and conditions herein set forth, which offer
shall be open for
26
34
acceptance by Buyer until 5:00 p.m. on February __, 1997. Acceptance by Buyer
shall be deemed to occur if, and only if, Seller shall have received actual
delivery of at least one (1) unaltered counterpart of this Agreement executed by
Buyer and by Escrow Holder evidencing Escrow Holder's receipt of the ▇▇▇▇▇▇▇
Money Deposit. If such acceptance is not so received, then and unless the period
for acceptance is extended in writing by Seller, this Agreement and such offer
shall be deemed withdrawn and of no further force and effect. For purposes of
calculation of all time periods within which Seller or Buyer must act or respond
as herein described, the phrase "the date of this Agreement" or other like
phrases shall mean and refer to the date indicated on the first page hereof.
10.18 Confidentiality. The parties hereto acknowledge and
agree that Buyer is a publicly traded entity and subject to certain disclosure
obligations under federal and state securities laws. Therefore, notwithstanding
anything herein to the contrary, express or implied, Buyer may elect, in its
reasonable discretion, to disclose publicly, by press release or by filings with
federal or state authorities or otherwise, such matters relating to this
Agreement, the transactions contemplated hereby or the Property as Buyer may
deem necessary or desirable under federal or state securities laws or the
requirements or guidelines of any national securities exchange upon which
Seller's securities are listed.
IN WITNESS WHEREOF, Seller, Buyer, and Escrow Holder have
executed this Agreement as of the date first above written.
BUYER: THE PRICE REIT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: President and Chief Executive Officer
--------------------------------------
SELLER: MAXVEST ASSOCIATES, LIMITED PARTNERSHIP
By: Theta Corp., its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
-----------------------------
27
35
CONSENT OF ESCROW COMPANY
The undersigned Escrow Company agrees to (i) accept the
foregoing Agreement, (ii) be Escrow Holder under the Agreement, and (iii) be
bound by the Agreement in the performance of its duties as Escrow Holder;
however, the undersigned will have no obligations, liability or responsibility
under (a) this consent or otherwise, unless and until the Agreement, fully
signed by the parties, has been delivered to the undersigned, or (b) any
amendment to the Agreement unless and until the amendment is accepted by the
undersigned in writing.
Dated: February 10, 1997 Chicago Title Insurance Company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Commercial Underwriter
--------------------------
28
36
SCHEDULE A
LEGAL DESCRIPTION OF THE LAND
Schedule A
37
SCHEDULE B
NORTH CAROLINA SPECIAL WARRANTY DEED
[TO BE REVIEWED BY LOCAL COUNSEL]
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
NORTH CAROLINA SPECIAL WARRANTY DEED
THIS INDENTURE is made this ____ day of _____________, 1997,
by MAXVEST ASSOCIATES, LIMITED PARTNERSHIP, a Georgia limited partnership
("Grantor") in favor of THE PRICE REIT, INC., a Maryland corporation
("Grantee"). Mailing address of Grantee is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Avenue, Fourth
Floor, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH, that Grantor, in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration to Grantor duly paid,
the receipt and sufficiency of which are hereby acknowledged, does by these
presents SELL and CONVEY unto Grantee and Grantee's successors and assigns, the
following described property (the "Property"):
(A) That certain real property described in Exhibit A hereto
(the "LAND");
(B) All rights, privileges and easements appurtenant to and
for the benefit of the Land, including, without limitation, all minerals, oil,
gas and other hydrocarbon substances on and under the Land, as well as all
development rights, air rights, water, water rights and water stock relating to
the Land and any other easements, rights-of-way or appurtenances owned by Seller
and used in connection with the beneficial operation, use and enjoyment of the
Land or the Improvements or any other appurtenance, together with all rights of
Seller in and to public and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, alleys and
passageways, sidewalks, driveways, parking areas and areas adjacent thereto or
used in connection therewith (open or proposed, in front of or abutting the
Land), and all rights of Seller in any land lying in the bed of any existing or
proposed street adjacent to the Land, all strips or gores of land adjoining the
Land, and any awards made or to be made and any unpaid award for damage to the
Land by reason of any change of grade of any such street, road, avenue, alley or
passageway;
Schedule B
38
(C) All improvements and fixtures located or to be located on
the Land, including, without limitation, all buildings and structures presently
located on the Land, all apparatus, equipment and appliances owned by Grantor
presently located on the Land and used in connection with the operation or
occupancy thereof, such as heating and air conditioning systems and facilities
used to provide any utility services, parking services, refrigeration,
ventilation, garbage disposal, recreation or other services thereto, and all
landscaping and leasehold improvements which are the property of Grantor (the
"IMPROVEMENTS");
SUBJECT TO only such matters as may be set forth in Exhibit B
attached hereto and by this reference made a part hereof.
TO HAVE AND TO HOLD the Property with all and singular the
tenements, hereditaments and appurtenances thereto belonging or in any wise
appertaining, unto Grantee and Grantee's successors and assigns, forever,
Grantor hereby covenanting that the Property is free and clear from any
encumbrance done or suffered by Grantor except as set forth above, and that
Grantor will warrant and defend title to the Property unto Grantee and Grantee's
successors and assigns forever against the claims and demands of persons
claiming or to claim the same by, through or under Grantor, except as set forth
above.
IN WITNESS WHEREOF, the Grantor has caused this Deed to be
executed and delivered as of the date first above written.
MAXVEST ASSOCIATES, LIMITED PARTNERSHIP
By: Theta Corp., Its general partner
By: _______________________________
Its:_______________________________
Schedule B
39
EXHIBIT A
LEGAL DESCRIPTION
Schedule B
40
EXHIBIT B
INSERT "PERMITTED EXCEPTIONS"
Schedule B
41
SCHEDULE C
ASSIGNMENT AND ASSUMPTION OF LEASE AND RENTS
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, MAXVEST ASSOCIATES, LIMITED PARTNERSHIP, a Georgia limited
partnership ("Assignor"), hereby assigns, sets over, transfers and delegates to
THE PRICE REIT, INC., a Maryland corporation ("Assignee"), all of the landlord's
right, title, interest, claim and estate in and to all leases, occupancy
agreements and similar agreements, together with all modifications, extensions
and renewals thereof, all security therefor, and all guaranties of any of the
foregoing (collectively, the "Leases") which demise all or any part of, or
interest in, the real property more particularly described on Exhibit A attached
hereto and incorporated herein (the "Land"), together with all income, receipts,
fund and revenues of any kind whatsoever payable under the Leases or otherwise
with respect to the Land, whether heretofore accrued or hereafter arising.
Assignee hereby assumes all of Assignor's obligations under or with
respect to the Leases described on Exhibit B attached hereto, which obligations
arise out of and relate to the period commencing on the date hereof, and agrees
to indemnify, defend, protect, and hold Assignor harmless from and against any
and all loss, claim, obligation, cost or expense (including without limitation
reasonable attorneys fees) relating to or in connection with any such
obligations of the landlord under the Leases arising out of and relating to the
period commencing on the date hereof. Assignor hereby agrees to indemnify,
defend, protect and hold Assignee harmless from and against any and all loss,
claim, obligation, cost or expense (including without limitation reasonable
attorneys fees) relating to or in connection with any obligations of the
landlord under the Leases, which obligations arise out of or relate to the
period prior to the date hereof.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay the
prevailing party's costs and expenses of such litigation including, without
limitation, reasonable attorneys' fees. Any such
Schedule C
42
attorneys' fees and other expenses incurred by either party in enforcing a
judgment in its favor under this Assignment shall be recoverable separately from
and in addition to any other amount included in such judgment, and such
attorneys' fees obligation is intended to be severable from the other provisions
of this Assignment and to survive and not be merged into any such judgment.
This Assignment may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
effective as of this ______ day of _______________, 1997.
ASSIGNOR:
MAXVEST ASSOCIATES, LIMITED PARTNERSHIP
By: Theta Corp., its general partner
By: _______________________________
Its:________________________________
ASSIGNEE:
THE PRICE REIT, INC.
By:______________________________
Its:_____________________________
Schedule C
43
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
LEGAL DESCRIPTION OF PROPERTY
Schedule C
44
EXHIBIT "B" TO ASSIGNMENT AND ASSUMPTION OF LEASES AND RENTS
ASSUMED LEASES
Schedule C
45
SCHEDULE D
▇▇▇▇ OF SALE
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, MAXVEST ASSOCIATES, LIMITED PARTNERSHIP, a Georgia limited
partnership ("Seller"), hereby transfers, conveys and assigns to THE PRICE REIT,
INC., a Maryland corporation ("Buyer"), and its successors and assigns forever,
any and all tangible personal property owned by Seller and located on or about
and used in connection with the real property more particularly described on
Exhibit A attached hereto and made a part hereof (the "Property") or any
improvements thereon, including but not limited to fixtures, furnishings,
furniture, tools machinery and/or equipment, operational instructions and/or
specifications, surveys, drawings, business records and the personal property
listed on any schedule attached hereto.
If any litigation between Seller and Buyer arises out of the
obligations of the parties under this ▇▇▇▇ of Sale or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay the
prevailing party's costs and expenses of such litigation including, without
limitation, reasonable attorneys, fees. Any such attorneys' fees and other
expenses incurred by either party in enforcing a judgment in its favor under
this ▇▇▇▇ of Sale shall be recoverable separately from and in addition to any
other amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this ▇▇▇▇ of Sale and to
survive and not be merged into any such judgment.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed
and delivered as of this ______ day of __________, 1997.
MAXVEST ASSOCIATES, LIMITED PARTNERSHIP
By: Theta Corp., its general partner
By: _______________________________
Its:________________________________
Schedule D
46
EXHIBIT "A" TO ▇▇▇▇ OF SALE
DESCRIPTION OF PROPERTY
Schedule D
47
SCHEDULE E
ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY,
WARRANTIES AND GUARANTEES
THIS ASSIGNMENT OF CONTRACTS, INTANGIBLE PROPERTY, WARRANTIES AND
GUARANTIES (this "Assignment") is made as of the ___ day of ____________, 1997,
by MAXVEST ASSOCIATES, LIMITED PARTNERSHIP, a Georgia limited partnership
("Assignor"), in favor of THE PRICE REIT, INC., a Maryland corporation
("Assignee").
RECITALS;
Pursuant to that certain Purchase and Sale Agreement and Escrow
Instructions dated as of January ____, 1997 by and between Assignor, Assignee
and ____________________ Title Insurance Company (the "Agreement"), Assignee has
this day acquired from Assignor certain interests in land, buildings and
improvements more particularly described on Exhibit A attached hereto and made a
part hereof (the "Property"). Capitalized terms not otherwise defined herein
shall have the meanings given them in the Agreement.
In consideration of the acquisition of the Property by Assignee and
other good and valuable consideration, the mutual receipt and legal sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
Assignor hereby assigns, transfers and delegates to Assignee all of
Assignor's right, title and interest in and to the following (collectively, the
"Assigned Property"): (i) any intangible personal property which relates to and
is reasonably required for the operation and functioning of the Land,
Improvements or Personal Property, including without limitation all transferable
licenses and governmental approvals and permits of any nature relating to the
Property or the Improvements or any repairs or renovations to such Improvements,
and (ii) any and all transferable warranties, guaranties, contracts and other
rights owned by Assignor relating to the ownership, operation or functioning of
all or any part of the Property (including without limitation all third party
guarantees and warranties, express or implied, in connection with the
construction of the Improvements and any deposits given by Assignor in
connection with the installation or provision of utility services, to the extent
such deposits have not been returned to Assignor as of the date hereof).
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision
Schedule E
48
contained herein, the losing party shall pay the prevailing party's costs and
expenses of such litigation including, without limitation, reasonable attorneys,
fees. Any such attorneys' fees and other expenses incurred by either party in
enforcing a judgment in its favor under this Assignment shall be recoverable
separately from and in addition to any other amount included in such judgment,
and such attorneys' fees obligation is intended to be severable from the other
provisions of this Assignment and to survive and not be merged into any such
judgment.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
effective as of the date set forth below.
Executed as of the date first above written.
ASSIGNOR:
MAXVEST ASSOCIATES, LIMITED PARTNERSHIP
By: Theta Corp., its general partner
By: _______________________________
Its:_______________________________
Schedule E
49
EXHIBIT "A" TO ASSIGNMENT OF CONTRACTS, INTANGIBLE
PROPERTY, WARRANTIES AND GUARANTEES
LEGAL DESCRIPTION OF PROPERTY
Schedule E
50
SCHEDULE F
CERTIFICATION OF NON-FOREIGN STATUS
(FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT)
Internal Revenue Code Section 1445 provides that a transferee
of a United States real property interest must withhold tax if the transferor is
a foreign person. To inform THE PRICE REIT, INC. ("Transferee") that withholding
of tax is not required upon the disposition of a United States real property
interest by the undersigned ("Transferor"), Transferor hereby certifies and
declares as follows:
1. Transferor's U.S. tax identification/social security number
is: __________________________________;
2. Transferor's principal office address is
__________________________________________; and
3. Transferor is not a foreign person (foreign corporation,
foreign partnership, foreign trust, foreign estate or non-resident alien), as
defined in the Internal Revenue Code and Income Tax Regulations.
Transferor acknowledges that this certification may be
disclosed by Transferee to the Internal Revenue Service and that any false
statement contained in this certification may be punished by fine or
imprisonment or both.
Transferor understands that Transferee is relying on this
certification to determine whether withholding is required by Transferee
pursuant to Internal Revenue Code Section 1445.
Under penalties of perjury, the undersigned signatory declares
that: I have examined this certification, to the best of my knowledge and belief
it is true and complete, and I am duly authorized to execute this certification
on behalf of Transferor.
Dated:_____________________, 1997
MAXVEST ASSOCIATES, LIMITED PARTNERSHIP
By: Theta Corp., its general partner
By: ________________________________
Its:________________________________
Schedule F
51
SCHEDULE G
TENANT ESTOPPEL CERTIFICATE
THIS TENANT ESTOPPEL CERTIFICATE ("Certificate"), dated as of
_____________, 1997, is executed by ________________________ ("Tenant") in favor
of THE PRICE REIT, INC. ("Buyer").
R E C I T A L S
A. Buyer and MAXVEST ASSOCIATES, LTD. ("Landlord"), have entered into
that certain Purchase and Sale Agreement and Escrow Instructions, dated as of
January ___, 1997 (the "Purchase Agreement"), whereby Buyer has agreed to
purchase, among other things, the improved real property located in the City of
Greensboro, County of ___________, State of North Carolina, more particularly
described on Schedule "A" attached to the Purchase Agreement (the "Property").
B. Tenant and Landlord have entered into that certain Lease Agreement,
dated as of ________________ (together with all amendments, modifications,
supplements, guarantees and restatements thereof, the "Lease"), for a portion of
the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has requested
that Tenant execute this Certificate.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer as
follows:
AGREEMENT
Section 1. Lease.
Attached hereto as Exhibit "A" is a true, correct, and complete copy of
the Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements. guarantees and restatements thereof:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 2. Leased Premises.
Pursuant to the Lease, Tenant leases those certain Premises (the
"Leased Premises") consisting of approximately ______________________
(______________) rentable square
Schedule G
52
feet within the Property, as more particularly described in the Lease. In
addition, pursuant to the terms of the Lease, Tenant has the [non-exclusive]
right to use [___________ parking spaces/the parking area] located on the
Property during the term of the Lease. [Cross-out the preceding sentence or
portions thereof if inapplicable.]
Section 3. Full Force of Lease.
The Lease is in full force and effect, has not been terminated, and is
enforceable in accordance with its terms.
Section 4. Complete Agreement
The Lease constitutes the complete agreement between Landlord and
Tenant for the Leased Premises and the Property.
Section 5. Acceptance of Leased Premises.
Tenant has accepted and is currently occupying the Leased Premises.
Section 6. Lease Term.
The term of the Lease commenced on _____________________ and ends on
_______________________, subject to the following options to extend:
________________________________________________________________________________
(If none, please state "None.")
Section 7. Purchase Rights.
Tenant has no option, right of first refusal, right of first offer, or
other right to purchase all or any portion of the Leased Premises or all or any
portion of the Property, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 8. Rights of Tenant.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of
the Leased Premises or all or any part of the Property;
(c) has no right, title, or interest in the Leased Premises, other
than as Tenant under the Lease.
Schedule G
53
Section 9. Rent.
(a) The rent under the Lease is current, and Tenant is not in
default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the amount
of ________________________ Dollars ($_________) per month. Tenant has not
received and is not, presently, entitled to any abatement, refunds, rebates,
concessions or forgiveness of rent or other charges, free rent, partial rent, or
credits, offsets or reductions in rent, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
(c) Tenant's estimated share of operating expenses, common area
charges, insurance, real estate taxes and administrative and over-head expenses
is ___________ percent (______%) and is currently being paid at the rate of
____________________________________ Dollars ($__________) per month, payable to
______________________________________________.
(d) There are no existing defenses or offsets against rent due or to
become due under the terms of the Lease, and there presently is no default or
other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, except as
follows:________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
Section 10. Security Deposit.
The amount of Tenant's security deposit held by Landlord under the
Lease is _________________________________ Dollars ($_____________).
Section 11. Prepaid Rent.
The amount of prepaid rent, separate from the security deposit, is
__________________________________ Dollars ($_____________), covering the period
from ________ to ________.
Section 12. Insurance.
All insurance, if any, required to be maintained by Tenant under the
Lease is presently in effect.
Schedule G
54
Section 13. Pending Actions.
There are no actions, whether voluntary or otherwise, pending against
the Tenant (or any guarantor of the Tenant's obligations under the Lease)
pursuant to the bankruptcy or insolvency laws of the United States or any state
thereof.
Section 14. Landlord's Obligations
As of the date of this Certificate, Landlord has performed all
obligations required of Landlord pursuant to the Lease and no offsets.
counterclaims, or defenses of Tenant under the Lease exist against Landlord. As
of the date of this Certificate, no events have occurred that, with the passage
of time or the giving of notice, would constitute a basis for offsets,
counterclaims, or defenses against the Landlord, except as follows:
________________________________________________________________________________
________________________________________________________________________________
(If none, please state "None.")
(If none, please state "None.")
Section 15. Assignments by Landlord.
Tenant has received no notice of any assignment, hypothecation or
pledge of the Lease or rentals under the Lease by Landlord.
Section 16. Assignments by Tenant.
Tenant has not sublet or assigned the Leased Premises or the Lease or
any portion thereof to any sublessee or assignee. No one except Tenant and its
employees will occupy the Leased Premises except as permitted under the Lease.
The address for notices to be sent to Tenant is as set forth in the Lease.
Section 17. Environmental Matters.
The operation and use of the Leased Premises does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials and/or solid waste, except those used
in the ordinary course of operating a retail store or restaurant (if so
permitted by the Lease) or otherwise used in accordance with all applicable
laws.
Section 18. Notification by Tenant.
From the date of this Certificate and continuing the earlier to occur
of (i) December 31, 1997 and (ii) Buyer's acquisition of title to the Property,
Tenant agrees to immediately notify Buyer, in writing, at the following address,
on the occurrence of any event or the discovery of any fact that would make any
representation contained in this Certificate inaccurate:
Schedule G
55
The PRICE REIT, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Tenant makes this Certificate with the knowledge that it will be relied
upon by Buyer in agreeing to purchase the Property. In the event that Buyer
acquires the Property, nothing in this Section 18 shall limit Tenant's
obligations under the Lease.
Tenant his executed this Certificate as of the date first written above
by the person named below, who is duly authorized to do so.
TENANT
_________________________________
By:_______________________________
Name:
Its:
Schedule G
56
SCHEDULE H
RENT ROLL
Attached.
Schedule H