AGREEMENT OF SALE BETWEEN CROWN CENTER REDEVELOPMENT CORPORATION, a Missouri corporation (Seller) AND HINES REIT 2555 GRAND LLC, a Delaware limited liability company (Purchaser) Property: Office Tower Kansas City, Missouri AGREEMENT OF SALE
AGREEMENT
OF SALE
BETWEEN
CROWN
CENTER REDEVELOPMENT CORPORATION,
a
Missouri corporation
(Seller)
AND
▇▇▇▇▇
REIT 2555 GRAND LLC,
a
Delaware limited liability company
(Purchaser)
Property:
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇
AGREEMENT
OF SALE
THIS
AGREEMENT OF SALE (this “Agreement”), made as of the ___ day of
February, 2008, by and between CROWN CENTER REDEVELOPMENT CORPORATION, a
Missouri corporation, with an office at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as seller (“Seller”) and ▇▇▇▇▇ REIT 2555 Grand
LLC, a Delaware limited liability company, with an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, as purchaser
(“Purchaser”).
ARTICLE
I
DEFINITIONS
For
purposes of this Agreement (including the exhibits attached hereto), the
following terms shall have the meanings indicated:
“Affiliate”
means, with respect to any specified Person, any other Person that directly
or
indirectly, through one or more intermediaries, controls, is controlled by,
or
is under common control with the specified Person. For purposes of
this definition, the term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and
policies of a Person, whether through ownership of voting stock, by contract
or
otherwise.
“Broker”
has the meaning given in Section 14.1.
“Business
Day” means any day other than a Saturday, Sunday or day on which the
Federal Reserve Bank of Kansas City is closed.
“Cap”
means Five Million and No/100 Dollars ($5,000,000.00).
“Certificate”
has the meaning given in Section 11.6.
“Chilled
Water Supply Contract” has the meaning given in Section
8.3.
“City”
means the City of Kansas City, Missouri.
“Closing”
and “Closing Date” have the respective meanings given in
Section 7.1.
“Contract
Date” means the date hereof.
“Deed”
has the meaning given in Section 8.1(a).
“Deposit”
means the sum of Four Million Dollars ($4,000,000) deposited in connection
with
the execution and delivery of this Agreement pursuant to Section
3.2.
“Development
Contract” means that certain Contract between Seller and City dated
April 10, 1967, and recorded on May 2, 1967, as Document No. B-577708 in Book
B-5963 at Page 311 in the Recording Office, as amended by that certain First
Supplemental Contract dated October 1, 1968, that certain Second Supplemental
Contract dated November 1, 1970, that certain Third Supplemental Contract dated
March 24, 1971, and recorded April 21, 1971, as Document No. K-114453 in Book
K-250 at Page 800 in the Recording Office, that certain Fourth Supplemental
Contract dated February 10, 1975, that certain Fifth Supplemental
Contract dated April 7, 1975, that certain Sixth Supplemental Contract dated
February 3, 1977, and recorded April 3, 1978, as Document No. K-361665 in Book
K-835 at Page 826 in the Recording Office, that certain Seventh Supplemental
Contract dated May 8, 1979, and recorded May 14, 1979, as Document No. K-406062
in Book K-927 at Page 833 in the Recording Office, that certain Eighth
Supplemental Contract dated July 15, 1983, and recorded August 12, 1983, as
Document No. K-573055 in Book K-1237 at Page 1813 in the Recording Office,
that
certain Ninth Supplemental Contract dated February 29, 1984, and recorded March
9, 1984, as Document No. K-603130 in Book K-1292 at Page 2279 in the Recording
Office, that certain Tenth Supplemental Contract dated January 24, 1986, and
recorded February 6, 1986, as Document No. K-700107 in Book K-1507 at Page
2103
in the Recording Office, that certain Eleventh Supplemental Contract dated
July
23, 1987, and recorded August 10, 1987, as Document No. K-788745 in Book K-1712
at Page 1 in the Recording Office, that certain Twelfth Supplemental Contract
dated January 6, 1989, and recorded January 23, 1989, as Document No. K-864132
in Book K-1883 at Page 381 in the Recording Office, that certain Thirteenth
Supplemental Contract dated August 31, 1998, and recorded September 21, 1998,
as
Document No. 98-K49771 in Book K-3275 at Page 1420 in the Recording Office,
that
certain Fourteenth Supplemental Contract dated November 9, 1999, and recorded
December 8, 1999, as Document No. 1999K 0070378 in the Recording Office, that
certain Fifteenth Supplemental Contract dated January 23, 2001, and recorded
March 2, 2001, as Document No. 2001K 0011254 in the Recording Office, and that
certain Sixteenth Supplemental Contract dated February 25, 2003, and recorded
March 19, 2003, as Document No. 2003K 0020448 in the Recording
Office.
“Development
Plan” means the Development Plan of Crown Center approved by City
Ordinance No. 33763, as amended by amendments approved by City Ordinance No.
35766 passed on September 13, 1968, City Ordinance No. 38705 passed on September
11, 1970, City Ordinance No. 39268 passed on February 26, 1971, City Ordinance
No. 44963 passed on January 31, 1975, City Ordinance No. 45162 passed on March
27, 1975, City Ordinance No. 48630 passed on December 29, 1977, City Ordinance
No. 50254 passed on April 12, 1979, City Ordinance No. 55172 passed May 27,
1983, City Ordinance No. 55945 passed January 6, 1984, City Ordinance No. 58625
Passed October 31, 1985, City Ordinance No. 61184 passed July 2, 1987, City
Ordinance No. 63118 passed October 13, 1988, City Ordinance No. 980990 passed
August 20, 1998, City Ordinance No. 991159 passed September 9, 1999, City
Ordinance No. 001615 passed January 4, 2001, and City Ordinance No. 021302
passed November 14, 2002.
“Easement
Agreement” has the meaning given in Section 8.3.
“Entry
Agreement” has the meaning given in Section 6.2.
“Environmental
Laws” has the meaning given in Section 6.1(c).
“Escrow
Agent” means Commonwealth Land Title Insurance Company.
“Existing
Leases” has the meaning given in Section 10.2.
“Fixed
Rent” means all fixed or so-called base rent payable under the Shook
Hardy Lease and any other Leases.
“Fixtures”
means and includes, but is not limited to, machinery, engines, dynamos, boilers,
elevators, radiators, air-conditioning compressors, ducts, pipes, conduits
and
fittings at any time prior to the Closing Date erected, constructed, affixed
or
attached to and used in connection with the Land or the Improvements and owned
by Seller as of the Closing Date and any and all alterations, renewals and
replacements thereof, additions thereto and substitutes therefor, excluding
any
equipment and fixtures which are identified as being owned by Seller in the
Chilled Water Supply Contract or the Easement Agreement.
“Governmental
Authority” means the United States, the State, county and city in which
the Premises are located, and any political subdivision, agency, authority,
department, court, commission, board, bureau or instrumentality of any of the
foregoing asserting jurisdiction over any of the parties hereto or over the
Premises.
“Hazardous
Materials” has the meaning given in Section 6.1(c).
“Improvements”
means any and all buildings, improvements and structures on the Land, and the
Fixtures, excluding any improvements which are identified as being owned by
Seller in the Easement Agreement.
“Intangible
Property” means all governmental approvals, utility rights and
privileges, surveys, architectural, consulting and engineering blueprints,
plans
and specifications, and reports and studies concerning building operations
(as
opposed to reports or studies pertaining to the initial development and
construction of the Improvements), exclusively relating to the Premises, all
unexpired and assignable warranties and guarantees exclusively relating to
the
workmanship, construction, installation materials and design of the Premises
and
any permits exclusively relating to the use, occupancy or operation of the
Premises.
“Land”
means the parcel or parcels of land commonly known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, as more particularly described on Exhibit A
annexed hereto and made a part hereof, together with Seller’s rights, if any, to
any easements and other appurtenances thereto belonging and any land lying
in
the bed of any public street, road or avenue, opened or proposed, in front
of or
adjoining the parcel, to the center line thereof.
“Leases”
means all leases, occupancy rights (whether or not under written agreements),
licenses and occupancy agreements for space in the Premises, including the
Existing Leases.
“Liquidated
Sum Amount” means an amount equal to Five Hundred Thousand and No/100
Dollars ($500,000.00).
“Liquidated
Sum Title Exception” means a Title Exception which can be discharged
solely by the payment of a liquidated sum of money; provided,
however, that the term “Liquidated Sum Title Exception” as used in this
Agreement shall not include the following: (a) any Voluntary Title Exceptions;
or (b) any Permitted Exceptions.
“MasterServices
Agreement” has the meaning given in Section 8.3.
“Material
Adverse Effect on Purchaser” has the meaning given in Section
16.4(a).
“Mechanics
Lien Title Exception” means a Title Exception that arises as a result
of a mechanics’ or materialmen’s lien being docketed against the Premises which
is filed as a result of Seller’s failure (or alleged failure) to pay when due
for labor or materials furnished by such mechanic or materialman to or for
the
benefit of the Premises at the request of Seller (as opposed to work done at
the
request of or by a Tenant).
“Minimum
Amount” means Two Hundred Fifty and No/100 Dollars
($250,000.00).
“OFAC
List” has the meaning given in Section 10.1.
“Organizational
Documents” means, with respect to any Person who is not a natural
person, the certificate or articles of incorporation, memorandum of association,
articles of association, trust agreement, by-laws, partnership agreement,
limited partnership agreement, certificate of partnership or limited
partnership, limited liability company articles of organization, limited
liability company operating agreement or any other organizational document,
and
all shareholder agreements, voting trusts and similar arrangements with respect
to its stock, partnership interests, membership interests or other equity
interest.
“Overage
Rent” means all amounts payable under the Shook Hardy Lease or any
other Lease for reimbursements or payments in respect of operating expenses,
parking fees, utilities, insurance, real estate and other taxes, and other
charges.
“Personal
Property” shall mean all tangible personal property owned by Seller
which is upon the Land or within the Improvements and used exclusively in
connection with the operation of the Premises, including specifically security
and alarm equipment, furniture, rugs, appliances, telephones, inventories and
tools, but excluding (i) cash, accounts receivable and similar assets (which
instead are, if and to the extent so provided expressly, being prorated and
adjusted pursuant to Article IV hereof), (ii) any business and trade
fixtures, furniture, furnishings, decorations, artwork, moveable partitions,
machinery, equipment and any other personal property (including, but not limited
to the following, whether or not installed so as to be fixture under applicable
law, telephone and other communication systems and equipment, security and
alarm
systems, computer systems and printers and other computer-related equipment
and
signage) owned, or leased from a third party, by any Tenant, (iii) any equipment
and fixtures which are identified as being owned by Seller in the Chilled Water
Supply Contract or the Easement Agreement and (iv) the “Wall Drawing #1118” by
▇▇▇ ▇▇▇▇▇▇ located in the lobby of the office building.
“Premises”
means Land and the Improvements.
“Permitted
Exceptions” has the meaning given in Section 5.1.
“Person”
means an individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
other entity or government or any agency or subdivision thereof.
“Property
Judgment” means a judgment which (a) is entered against Seller and (b)
constitutes an encumbrance upon the Premises under applicable law.
“Purchase
Price” has the meaning given in Section 3.1.
“Recording
Office” means the Office of the Recorder of Deeds for ▇▇▇▇▇▇▇ County,
Missouri.
“Release”
has the meaning given in Section 6.1(c).
“Reletting
Expenses” has the meaning given in Section 4.1.
“Rent”
means Fixed Rent and Overage Rent, collectively.
“Scheduled
Closing Date” has the meaning given in Section 7.1.
“Seller
Liquidated Sum Title Exception Notice” has the meaning given in
Section 5.7.
“ServiceContracts”
means the service contracts, maintenance contracts, brokerage agreements and
other unrecorded contracts or agreements exclusively affecting the Premises
or
the operation thereof by and between Seller or its property manager of the
Building and various vendors or service providers.
“Shook
Estoppel Certificate” has the meaning given in Section
12.1.
“Shook
Hardy” means Shook, Hardy & Bacon L.L.P., a Missouri limited
liability partnership.
“Shook
Hardy Lease” means that certain Lease dated August 4, 2000, by and
between Seller, as landlord, and Shook Hardy, as tenant, with regard to the
Premises, as amended by that certain Amendment dated October 30, 2000, that
certain Second Amendment dated December 10, 2000, that certain Third Amendment
dated September 24, 2002 and that certain Fourth Amendment dated January 23,
2003.
“Shook
Lease Amendment” has the meaning given in Section
12.2.
“Shook
Letter of Credit” means the “Letters of Credit” as defined in Article
22 of the Shook Hardy Lease.
“Survey”
has the meaning given in Section 5.2.
“Survival
Period” has the meaning given in Section 16.3.
“Tenant(s)”
shall mean the tenants under the Leases.
“Title
Exception(s)” means any lien, encumbrance, security interest, charge,
reservation, lease, tenancy, easement, right-of-way, encroachment, restrictive
covenant, condition or limitation or other matter affecting title to any portion
of the Premises.
“Title
Insurer” means Commonwealth Land Title Insurance Company.
“Title
Report” has the meaning given in Section 5.2.
“Unused
Allowance Balance” refers to an amount equal to the sum of (i) the
amount of the balance, if any, of the unused portion of the Improvement
Allowance (as defined in the Shook Hardy Lease), (ii) the amount of any
Expansion Space Improvement Allowance (as defined in the Shook Hardy Lease)
and
(iii) the amount of the balance, if any, of the unused portion of the Additional
Improvement Allowance (as defined in the Shook Hardy Lease).
“Voluntary
Title Exceptions” means Mechanic’s Lien Title Exceptions, Property
Judgments or any other judgments against Seller and any other Title Exceptions
that are intentionally created or intentionally consented to by Seller;
provided, however, that the term “Voluntary Title Exceptions” as
used in this Agreement shall not include the following: (a) any Permitted
Exceptions; (b) any Existing Leases and any other Lease which Seller is
permitted to enter into pursuant to the terms of this Agreement; (c) any Title
Exception created by Shook Hardy; or (d) any Title Exceptions that are approved
or waived by Purchaser or that are created in accordance with the provisions
of
this Agreement.
“Water
Charges” has the meaning given in Section 4.1.
ARTICLE
II
SALE
OF THE PROPERTY
Section
2.1. Sale
and Purchase
. Subject
to the terms and conditions of this Agreement, Seller hereby agrees to sell
and
shall transfer, convey, assign and deliver to Purchaser and Purchaser hereby
agrees to purchase and shall acquire and accept from Seller, at the Closing,
the
Premises and all right, title and interest of Seller in and to the Personal
Property, Intangible Property and the Leases, in accordance with and subject
to
the provisions of this Agreement. For purposes of
clarification, Seller and Purchaser acknowledge and agree that (i) Seller is
not
exercising its right under Section XXIV of the Development Plan and Paragraph
14A of the Development Contract to assign to Purchaser, and is not assigning,
and Purchaser is not assuming, any portion of the Development Plan or of
Seller’s obligations thereunder; and (ii) the transaction contemplated by this
Agreement with respect to the Premises is solely a sale or voluntary disposition
of a portion of the real property in the development area, as described in
the
last paragraph of said Section XXIV of the Development Plan and in Paragraphs
14A and 14B of the Development Contract.
Section
2.2. Personal
Property
. The
parties hereby agree that no portion of the Purchase Price has been allocated
to
the Personal Property or the Intangible Property. In the event that
any Governmental Authority shall require that any sales tax or other similar
tax
with respect to any Personal Property or the Intangible Property be paid in
connection with the transactions contemplated by this Agreement, Seller shall
be
obligated to make all such payments as and when required by any such
Governmental Authority and Seller hereby agrees to indemnify Purchaser from
and
against any and all liability, cost and expense (including reasonable attorneys’
fees and expenses) which may arise from Seller’s failure to comply with its
obligation under this Section 2.2. Upon the reasonable prior
request of Seller, Purchaser (at no cost, expense or liability to Purchaser)
shall execute and/or deliver such instruments and information as may be
necessary in connection with Seller’s payment of any such sales or other similar
tax. Seller’s obligations under this Section 2.2 shall survive
the Closing.
ARTICLE
III
PURCHASE
PRICE; DEPOSIT
Section
3.1. Purchase
Price
. The
Purchase Price shall be One-Hundred Fifty-Five Million Eight Hundred Thousand
and 00/100 Dollars ($155,800,000.00) (the “Purchase
Price”). The Purchase Price, as the same may be adjusted
pursuant to the terms of this Agreement, and all other amounts payable by
Purchaser to Seller at the Closing shall be paid to Seller, at the Closing
by
wire transfer of immediately available federal funds transferred to one or
more
bank accounts designated by Seller.
Section
3.2. Deposit
. Within
one (1) Business Day after execution of this Agreement, Purchaser
shall deposit with the Escrow Agent the Deposit in immediately available funds
by wire transfer to Escrow Agent. The Deposit shall be applied
against the Purchase Price at Closing, returned to Purchaser under the
circumstances described herein for Purchaser to receive the Deposit, or paid
to
Seller under the circumstances provided for herein for the Deposit to be
delivered to Seller. The Deposit will be deposited by Escrow Agent in
government insured interest bearing accounts which have been approved by
Purchaser and Seller. All interest earned on the Deposit shall become
part of the Deposit.
ARTICLE
IV
ADJUSTMENTS
Section
4.1. Adjustments
.
The following are to be adjusted and prorated between Seller and
Purchaser as of 11:59 P.M. on the day preceding the Closing Date, based upon
a
365-day year, and the net amount thereof shall be, if such net amount is in
Seller’s favor, added to the Purchase Price at the Closing, or, if such net
amount is in Purchaser’s favor, credited against the Purchase Price at the
Closing:
(a) Taxes
and Assessments. General property taxes
(state, county, municipal, school and fire district) shall be adjusted and
prorated on the basis of the fiscal year for which assessed. If the
Closing shall occur before the tax rate or assessed valuation is fixed for
the
Premises, the apportionment of real estate taxes for the Premises shall be
upon
the basis of the tax rate for the preceding year applied to the most recently
applicable assessed valuation of the Premises, subject to further and final
adjustment when the tax rate and/or assessed valuation for the Premises is
fixed
for the year in which the Closing occurs. In the event that the
Premises or any part thereof shall be or shall have been affected by any special
assessment or assessments, whether or not the same become payable in annual
installments, Seller shall, at the Closing, be responsible for the entire amount
of any such assessments.
(b) Water
Charges. Water rates, water meter charges
and sewer rents (the “Water Charges”), if any, shall be
adjusted and prorated on the basis of the fiscal period for which
assessed. Seller shall endeavor to have the appropriate agencies read
the meters for the Water Charges (if applicable) on or prior to the Closing
Date, but in no event prior to the date which is thirty (30) days prior to
the
Closing Date. Seller shall be responsible for all Water Charges based
on such final meter readings through the day preceding the Closing Date (using
the per diem rate for the period between the reading date and the day preceding
the Closing Date), and Purchaser shall be responsible for all Water Charges
thereafter. If such final readings are not obtainable, then, until
such time as the final readings are obtained, all Water Charges for which final
readings were not obtained shall be pro rated as of the Closing Date based
upon
the per diem rate obtained by using the last period and bills for such Water
Charges that are available. Upon the taking of a subsequent actual
final reading after Closing, such apportionment shall be adjusted to reflect
the
actual per diem rate for the billing period in which the Closing Date falls,
and
Seller or Purchaser, as the case may be, shall promptly deliver to the other
the
amount determined to be due upon such adjustment. Unmetered Water
Charges shall be apportioned on the basis of the charges therefor for the same
period of the preceding calendar year, but applying the current rate
thereto. Notwithstanding the foregoing, there shall be no adjustment
of Water Charges which are payable directly by Tenants or other occupants of
the
Premises.
(c) Permits,
Licenses. Prepaid license and permit fees in connection with
permits and licenses assigned to Purchaser.
(d) Rent. All
Rent paid pursuant to the Leases for the month or other relevant period in
which
the Closing occurs shall be adjusted at Closing. No adjustment at
Closing shall be made for delinquent rent which shall be handled under the
provisions below. Purchaser shall receive a credit at Closing for all
Rent paid to Seller prior to the Closing for periods after the month in which
the Closing occurs.
(i) If,
as of
the Closing Date, there are any past due Fixed Rent owing by any Tenant,
Purchaser shall use its commercially reasonable efforts to collect the
same. Purchaser shall not be obligated to institute legal actions or
proceedings against any Tenant to collect such past due Fixed Rent, but the
Seller hereby waives any and all right to institute any legal actions or
proceedings against such Tenant including any right to seek the eviction of
such
Tenant or the termination of a Lease.
(ii) Any
Fixed
Rent received (net of Purchaser’s reasonable costs of collection) after the
Closing from any Tenant which owes Fixed Rent for the period prior to the
Closing shall be applied in the following order of
priority: (A) first, to Purchaser, until Fixed Rent for all
current periods is paid in full, and (D) second, after Fixed Rent then due
and payable for all post Closing periods are paid in full, to the Seller in
payment of Fixed Rent for periods prior to the month immediately preceding
the
month in which the Closing occurs.
(iii) To
the
extent that any portion of the Overage Rent is required to be paid monthly
or on
another periodic basis, by Tenants on account of estimated amounts for the
current period, and at the end of each calendar year (or, if applicable, at
the
end of each lease year or tax year, as the case may be), such estimated amounts
are to be recalculated based upon the actual expenses, taxes and other relevant
factors for that calendar (lease or tax) year, with the appropriate adjustments
being made with such Tenants, then such portion of the Overage Rent paid shall
be prorated between Seller, on the one hand, and Purchaser, on the other hand,
at the Closing, based on such estimated payments (i.e., with Seller
entitled to retain all monthly and other periodic installments of such amounts
paid with respect to periods prior to the calendar month or other relevant
period in which the Closing Date occurs, Seller to pay to Purchaser at the
Closing all monthly or other relevant period installments of such amounts paid
with respect to periods following the calendar month or other relevant period
in
which the Closing occurs and Seller and Purchaser shall apportion all monthly
installments of such amounts with respect to the calendar month in which the
Closing occurs) and at the time(s) of final calculation and collection from
(or
refund to) Tenants of the amounts in reconciliation of actual Overage Rent
for a
period for which estimated amounts have been prorated, there shall be a
reproration between Seller (on the one hand) and Purchaser (on the other hand),
based upon their respective actual expenses, taxes and other relevant factors
for that calendar (lease or tax) year, with the net credit resulting from such
reproration being payable to the appropriate party.
(iv) As
to
Overage Rent in respect of an accounting period that shall have expired prior
to
the Closing, but which shall be paid after the Closing, Purchaser agrees that
it
will pay the entire amount over to the Seller upon receipt thereof, less
Purchaser’s reasonable costs of collection reasonably allocable
thereto. Purchaser agrees that it shall: (a) promptly
render bills for any Overage Rent in respect of an accounting period that shall
have expired prior to Closing but which shall be payable after the Closing,
(b) ▇▇▇▇ Tenants who owe such Overage Rent attributable to an accounting
period that shall have expired prior to the Closing, on a monthly basis for
a
period of six consecutive months, and (c) use commercially reasonable
efforts in the collection of Overage Rent (Seller acknowledges that, as of
the
date hereof, Seller knows of no such past due Overage Rent); provided,
however, that Purchaser shall have no obligation to commence any legal
actions or proceedings to collect any such Overage
Rent. Notwithstanding the foregoing, if Purchaser shall be unable to
collect such Overage Rent despite using its commercially reasonable efforts
to
do so, Seller shall have the right to pursue Tenants to collect such
delinquencies (including the prosecution of one or more lawsuits);
provided, however, (i) Seller shall not be entitled to evict (by
summary proceedings or otherwise) any such Tenant or to terminate such Tenant’s
Lease, (ii) Seller shall not be entitled to institute any legal actions or
proceedings against any such Tenant unless the amounts of the delinquency in
controversy, in the aggregate, are equal to or greater than $100,000 and unless
Seller shall have first given Purchaser thirty (30) days’ prior written notice
of its intent to file such legal action or proceeding against the Tenant, (iii)
Seller shall institute such legal actions or proceedings within one (1) year
following the Closing, except that no such time limit shall apply to any actions
or proceedings arising out of any audit of any Overage Rent by Shook Hardy,
and
(iv) Purchaser shall not be obligated hereunder to participate in or cooperate
with Seller as to such suit. Notwithstanding anything to the contrary herein,
no
provision of this Agreement shall be construed as preventing or restricting
Seller from filing a counterclaim against a Tenant in any suit or other
proceeding brought by such Tenant against Seller or any of its
affiliates. Seller shall furnish to Purchaser all information
relating to the period prior to the Closing that is reasonably necessary for
the
billing of Overage Rent. Purchaser shall deliver to Seller,
concurrently with the delivery to Tenants, copies of all statements relating
to
Overage Rent for periods prior to the Closing.
(v) Any
Rent
received directly or indirectly by Seller or Purchaser following the Closing
and
which are the property of the other party, shall be deemed held in trust and
shall be paid to the other party within five (5) Business Days following receipt
thereof. Upon either party’s request from time to time, the other
party shall provide the requesting party with an accounting (certified by the
applicable party as being true and correct) of all Rent received by it following
Closing. Until such time as all amounts required to be paid to Seller by
Purchaser pursuant to the aforesaid provisions shall have been paid in full,
Seller may from time to time, but not more frequently than once each calendar
month, request that Purchaser furnish Seller with a reasonably detailed
accounting of the collection of all Rent. Within ten (10) Business
Days of its receipt of such request, Purchaser shall furnish Seller with such
accounting. Seller shall have the right from time to time following
the Closing, on prior notice to Purchaser, to review Purchaser’s records with
respect to the Premises to ascertain the accuracy of such
accountings.
(e) Electricity
and other Utilities. Seller shall use reasonable efforts to
obtain readings of meters measuring electricity, steam, gas and other utility
consumption at the Premises for all periods through (and including) the date
preceding the Closing Date, but in no event prior to the date which is thirty
(30) days prior to the Closing Date. Seller shall pay, and be responsible for,
all bills rendered on the basis of such readings through the Closing Date (using
the per diem rate for the period between the reading of the meter and the day
preceding the Closing Date). If such readings are not obtained for
any metered utility, then, at the Closing, apportionment shall be made on the
basis of the most recent period for which such readings are
available. Upon the taking of subsequent actual readings, there shall
be a recalculation of the applicable utility charges, and Seller or Purchaser,
as the case may be, shall promptly remit to the other party any amounts to
which
such party shall be entitled by reason of such recalculation (with Seller being
obligated to pay all such utility charges pertaining to the period prior to
the
Closing, and Purchaser being obligated to pay all such utility charges
pertaining to the period thereafter). Notwithstanding the foregoing,
there shall be no adjustment of electric charges and other utility charges
which
are payable by Tenants directly to the relevant utility company.
(f) Unused
Allowance Balance. Seller shall pay to Purchaser the Unused
Allowance Balance on the Closing Date. In no event shall Seller bear
any responsibility for the allowances described in Section 2.02, 2.03 or 2.04
of
the Shook Hardy Lease (the same being the sole responsibility of Purchaser
following the Closing).
(g) Other. At
Closing, Purchaser shall receive a credit in the amount of $40,000 for the
replacements of certain locks at the Premises and a credit in the amount of
$22,000 for the purchase of blinds for the 6th and 7th
Floors. Seller shall have no obligation with regard to the
performance of such work following the Closing nor any costs associated
therewith (Purchaser being responsible for the same). Any other item
which, under the terms of this Agreement, is to be apportioned at
Closing.
Section
4.2. Security
Deposits
. Seller
shall, at Seller’s cost and expense (a) assign to Purchaser at the Closing the
Shook Letter of Credit, then held by Seller as a security deposit under the
Shook Hardy Lease together with all applicable transfer documentation as may
be
required by the issuer thereof in order to transfer the same, (b) execute and
deliver such other instruments as the issuers of such letters of credit shall
reasonably require to transfer or assign such letters of credit to Purchaser,
and (c) reasonably cooperate with Purchaser to change the named beneficiary
under such letters of credit to Purchaser; provided, however, Purchaser shall
bear any transfer fees that may be levied in connection with any assignment
and
transfer of the Shook Letter of Credit to the extent Shook Hardy under the
Shook
Hardy Lease is not obligated to pay such transfer fee.
Section
4.3. Post
Closing Adjustments; Survival
. If
any items to be adjusted as set forth in this Article IV are not
determinable at the Closing or estimates therefor are incorrect, the adjustment
shall be made subsequent to the Closing when the charge is determined. Any
errors or omissions in computing adjustments at the Closing shall be promptly
corrected, provided that the party seeking to correct such error or omission
shall have notified the other party of such error or omission on or prior to
the
date that is one (1) year following the Closing Date as to taxes and one hundred
eighty (180) days following the Closing Date as to other items. The provisions
of this Article IV shall survive the Closing.
ARTICLE
V
TITLE
AND PERMITTED EXCEPTIONS
Section
5.1. Permitted
Exceptions
. Seller
agrees to sell the Premises to Purchaser, and Purchaser agrees to purchase
the
Premises from Seller, subject only to: (a) those matters set forth on Exhibit
B annexed hereto, (b) such Title Exceptions as Title Insurer shall be
willing to, at its regular rates, omit as exceptions to coverage, and (c) the
exceptions and matters subject to which Purchaser has agreed to accept title
to
the Premises specifically set forth in this Agreement (including the Easement
Agreement and all Existing Leases and any other Lease which Seller is permitted
to enter into pursuant to the terms of this Agreement) (the liens, claims,
encumbrances, exceptions and matters set forth in subclauses (a) through (c)
above with respect to the Premises being collectively referred to as the
“Permitted Exceptions”).
Section
5.2. Title
Report
.
Purchaser has received and reviewed a: (i) copy of that certain title commitment
dated July 13, 2007 issued by the Title Insurer and bearing the commitment
number C0707317 (the “Title Report”). Seller also
has delivered to Purchaser a copy of the most recent survey of the Premises
in
Seller’s possession (“Survey”). Prior to the
Contract Date, Purchaser shall have reviewed title to the Premises as described
by the Title Report and Survey and notified Seller of any objections Purchaser
has to the Title Report and Survey. Purchaser may, at its cost and
expense, revise, modify and recertify the Survey. Purchaser shall: (a) instruct
the Title Insurer, in writing, to furnish copies of all title continuations
to
Seller’s counsel at the address set forth in Section 17.1, and (b) within
five (5) Business Days after issuance of any such continuation, give notice
to
Seller specifying all new Title Exceptions set forth in such continuation which
Purchaser claims are not Permitted Exceptions.
Section
5.3. Discharge
of Title Exceptions at Closing
. If,
at the Closing, there are any Title Exceptions which are not Permitted
Exceptions for the Premises and which Seller is obligated by this Agreement
or
elects to pay and discharge, Seller may use any portion of the Purchase Price
or
any other sum to discharge the same, provided that Seller either shall have
delivered to Purchaser at the Closing instruments in recordable form sufficient
to discharge such Title Exceptions of record, together with the cost of any
applicable recording or filing fees. The existence of any such liens
or encumbrances shall not be deemed objections to title prior to Closing if
Seller shall comply with the foregoing requirements at or before
Closing. Any unpaid liens for taxes, Water Charges and assessments
applicable to the period prior to the Closing Date shall not be objections
to
title, but the amount thereof plus any interest and penalties thereon shall
be
deducted from the Purchase Price, subject to the provisions for apportionment
of
taxes, Water Charges, rents and assessments contained in Article IV of
this Agreement.
Section
5.4. Inability
to Convey
. Except
as expressly set forth in this Article V, nothing contained in this
Agreement shall be deemed to require Seller to take or bring any action or
proceeding or any other steps to remove any Title Exception or to expend any
moneys therefor, nor shall Purchaser have any right of action against Seller,
at
law or in equity, for Seller’s inability to convey title in accordance with the
terms of this Agreement.
Section
5.5. Rights
in Respect of Inability to Convey
.
(a) In
the event that Seller, after complying with its obligations hereunder (including
Section 5.6 and Section 5.7) shall be unable to convey title to
the Premises as provided in this Article V, and Purchaser has not, prior
to the Scheduled Closing Date (as it may have been adjourned in accordance
with
this Agreement), given notice to Seller that Purchaser waives objection to
each
Title Exception which is not a Permitted Exception for the Premises and agrees
to close this transaction without abatement of any portion of the Purchase
Price, credit or allowance of any kind (other than a credit in the amount of
the
unused portion of the Liquidated Sum Amount, if any, that the Purchaser may
be
entitled to under Section 5.7) or any claim or right of action against
Seller for damages or otherwise relating to same, Seller shall have the right,
at Seller’s sole election, to either (1) take such action as Seller shall deem
advisable to discharge each such Title Exception which is not a Permitted
Exception, including, without limitation, by satisfying the requirements of
the
Title Insurer sufficient to cause the Title Insurer to insure over any Mechanics
Lien Title Exception at Closing, or (2) terminate this Agreement. In
the event Seller shall elect to take action to so discharge each such Title
Exception which is not a Permitted Exception, Seller shall be entitled to one
or
more adjournments of the Scheduled Closing Date for a period reasonably
necessary to so discharge the same, not to exceed thirty (30) days in the
aggregate (inclusive of any adjournments made by Seller pursuant to Section
5.6 and Section 5.7), and the Closing shall be adjourned to a date
specified by Seller not beyond such thirty (30) day period. If, for
any reason whatsoever, Seller shall not have succeeded in so discharging each
such Title Exception at the expiration of such adjournment(s) and if Purchaser
has not, prior to the expiration of the last of such adjournments, given notice
to Seller that Purchaser waives objection to each such Title Exception and
agrees to close this transaction without abatement of any portion of the
Purchase Price, credit or allowance of any kind (other than a credit in the
amount of the unused portion of the Liquidated Sum Amount, if any, that the
Purchaser may be entitled to under Section 5.7) or any claim or right of
action against Seller for damages or otherwise relating to the same, this
Agreement shall be deemed to be terminated as of the last date to which the
Scheduled Closing Date was adjourned by Seller pursuant to this Article
V. Upon any termination of this Agreement pursuant to this Section
5.5, then (I) the Deposit shall be refunded to Purchaser and (II) neither
party shall have any further rights or obligations hereunder other than those
which expressly survive the termination of this Agreement. No action
taken by Seller to discharge, or attempt to discharge, any purported Title
Exception shall be an admission that any such purported Title Exception is
not a
Permitted Exception. The provisions of this Section 5.5 shall
be subject to Seller’s and Purchaser’s rights and obligations with respect to
Voluntary Title Exceptions and Liquidated Sum Title Exceptions as set forth
in
Section 5.6 and Section 5.7, respectively.
(b) Notwithstanding
anything to the contrary contained herein, if any Title Exception which is
not a
Permitted Exception can be removed by the delivery of an affidavit of Seller,
Seller shall deliver such affidavit to Purchaser and the Title Insurer at the
Closing; provided that such affidavit: (i) does not increase the obligations
of
Seller under this Agreement (other than in a deminimis manner), (ii) does not
result in any costs to Seller (other than deminimis costs) or (iii) would not
be
likely to result in any liability to Seller (other than in a deminimis
manner).
Section
5.6. Voluntary
Title Exceptions
(a) . If,
from time to time prior to the Closing, Purchaser shall receive written
notification (which for purposes of this Article V shall include any
information in any title report and in any title continuation provided to
Purchaser) of any Voluntary Title Exceptions, then Purchaser shall promptly
notify Seller thereof, which notice shall describe in reasonable detail the
Voluntary Title Exceptions(s). Seller shall discharge, in the manner
set forth in Section 5.5, all Voluntary Title Exceptions regardless of
cost on or prior to Closing. Seller shall be entitled to one or more
adjournments of the Scheduled Closing Date of such duration as shall be
reasonably necessary to discharge the same, not to exceed thirty (30) days
in
the aggregate (inclusive of any adjournments made by Seller pursuant to
Section 5.5 and Section 5.7) to so discharge Voluntary Title
Exceptions. If Seller shall fail to so discharge all Voluntary Title
Exceptions on or prior to Closing, then Purchaser shall have the right, as
and
for its sole and exclusive remedy, to elect one of the following two
alternatives:
(i) Purchaser
may elect to close otherwise in accordance with this Agreement, notwithstanding
the existence of such Voluntary Title Exceptions. If Purchaser so
elects, then (1) Purchaser shall be deemed to have waived such Voluntary Title
Exceptions that were not discharged on or prior to the Closing and the same
shall not be grounds for an objection to title, (2) Purchaser shall not have
any
right of action against Seller for or in connection with such undischarged
Voluntary Title Exceptions, at law or in equity and (3) Purchaser shall receive
a credit against the Purchase Price in an amount equal to the aggregate amount
needed to discharge and remove of record those undischarged Voluntary Title
Exceptions that can be discharged solely by the payment of a liquidated sum
of
money and Seller shall, if it is the appropriate party, execute and deliver
all
documents necessary to discharge and remove same of record; or
(ii) Purchaser,
by written notice given to Seller on or prior to the Scheduled Closing Date
(as
so adjourned), may elect to terminate this Agreement; or
(iii) Purchaser
may seek specific performance of Seller’s obligation to remove Voluntary Title
Exceptions.
If
Purchaser shall fail to notify Seller of such election on or prior to the
Scheduled Closing Date (as so adjourned), then Purchaser shall irrevocably
be
deemed to have elected to terminate this Agreement as provided in clause
(ii). If this Agreement is terminated pursuant to clause (ii), then
(I) the Deposit shall be refunded to Purchaser and (II) Purchaser shall have
such rights and remedies against Seller as may be available under equity and/or
applicable law, provided that Seller shall not be liable for consequential
damages or for punitive damages.
Section
5.7. Liquidated
Sum Title Exceptions
. On
or prior to Closing, Seller shall discharge all Liquidated Sum Title Exceptions;
provided, however, that Seller’s obligations under this Section
5.7 shall be subject to and limited by the following
provisions:
(a) Notwithstanding
the foregoing provisions of this Section 5.7, Seller shall have no
obligation to expend more than the Liquidated Sum Amount in the aggregate in
order to cause all Liquidated Sum Title Exceptions to be
discharged. Seller shall be entitled to one or more adjournments of
the Scheduled Closing Date not to exceed thirty (30) days in the aggregate
(inclusive of any adjournments made by Seller pursuant to Section 5.5 and
Section 5.6 above) to discharge Liquidated Sum Title
Exceptions.
(b) If,
from
time to time and at any time at or prior to the Closing, Seller shall determine,
in its good faith judgment, that the sum of (i) the cost to discharge all then
undischarged Liquidated Sum Title Exceptions, plus (ii) all actual amounts
expended by Seller on or prior to such date (but after the date of this
Agreement) to discharge any Liquidated Sum Title Exceptions shall exceed the
Liquidated Sum Amount, then Seller may (but shall not be obligated to) notify
Purchaser thereof (the “Seller Liquidated Sum Title Exception
Notice”), which notice shall describe in reasonable detail (x) the
Liquidated Sum Title Exceptions that are then in existence and have not been
discharged and (y) the actual amounts expended by Seller on or prior to such
date (but after the date of this Agreement) to discharge any Liquidated Sum
Title Exceptions, together with documentation reasonably evidencing the
same. If Seller shall give a Seller Liquidated Sum Title Exception
Notice to Purchaser within five (5) days of the Scheduled Closing Date, then
Purchaser shall have the right, as and for its sole and exclusive remedy, to
elect one of the following two alternatives:
(i) Purchaser
may elect to close otherwise in accordance with this Agreement, notwithstanding
the existence of such Liquidated Sum Title Exceptions. If Purchaser
so elects, then, subject to Purchaser’s rights with respect to any Voluntary
Title Exceptions as set forth in Section 5.6 above, (1) Purchaser shall
be deemed to have waived all Liquidated Sum Title Exceptions that were not
discharged on or prior to the Closing and the same shall not be grounds for
an
objection to title, (2) Purchaser shall not have any right of action against
Seller for or in connection with such undischarged Title Exceptions, at law
or
in equity, and (3) Purchaser shall receive a credit against the Purchase Price
in an amount equal to the lesser of (x) the aggregate amount needed to discharge
and remove of record such undischarged Liquidated Sum Title Exceptions and
(y)
the excess of the Liquidated Sum Amount over the amounts expended by Seller
on
or prior to the Closing Date (but after the date of this Agreement) to discharge
any Liquidated Sum Title Exceptions; or
(ii) Purchaser,
by written notice given to Seller on or prior to the Scheduled Closing Date
(as
so adjourned), may elect to terminate this Agreement. If Purchaser
shall fail to notify Seller of such election on or prior to the Scheduled
Closing Date (as so adjourned), then Purchaser shall irrevocably be deemed
to
have elected to terminate this Agreement as provided in this clause (ii) of
this
Section 5.7(b). If this Agreement is terminated pursuant to
this clause (ii), then (I) the Deposit shall be refunded to Purchaser and (II)
neither party shall have any further rights or obligations hereunder other
than
those which expressly survive the termination of this Agreement.
Section
5.8. Purchaser’s
Right to Accept Title
. Notwithstanding
the foregoing provisions of this Article V, Purchaser may, by notice
given to Seller at any time prior to the Scheduled Closing Date (as it may
have
been adjourned by Seller pursuant to this Article V), elect by written
notice to Seller, to waive any or all exceptions which are not Permitted
Exceptions. In such event, this Agreement shall remain in effect and
the parties shall proceed to Closing but, except to the extent set forth in
Section 5.6 and Section 5.7, Purchaser shall not be entitled to
any abatement, credit or allowance of any kind or any claim or right of action
against Seller for damages or otherwise by reason of the existence of any Title
Exceptions which are not Permitted Exceptions; provided that a waiver of any
exceptions which are not Permitted Exceptions prior to the Scheduled Closing
Date shall not be deemed to be a waiver of any other exceptions that are not
Permitted Exceptions and are first discovered by Purchaser following the
notice.
ARTICLE
VI
CONDITION
OF PROPERTY; NO DUE DILIGENCE PERIOD
Section
6.1. Condition
of Premises
. (a)
Purchaser is a sophisticated investor and its valuation of, and decision to
purchase, the Premises is based upon its own independent expert evaluations
of
such facts and materials deemed relevant by Purchaser and its agents. Other
than
the representations and warranties of Seller specifically set forth herein
or in
the Closing documents executed and delivered by Seller at the Closing pursuant
to Article VIII hereof, Purchaser has not relied in entering into this
Agreement upon any oral or written information from Seller, in any capacity,
or
any of its employees, affiliates, agents, consultants, advisors or
representatives, including any appraisals, projections or evaluations of credit
quality prepared by Seller or any of its employees, affiliates, agents,
consultants, advisors or representatives. Purchaser further
acknowledges that no employee, agent, consultant, advisor or representative
of
Seller has been authorized to make, and that Purchaser has not relied upon,
any
statements or representations other than those specifically contained in this
Agreement. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
PURCHASER ACKNOWLEDGES AND AGREES THAT EXCEPT AS MAY BE EXPRESSLY SET FORTH
IN
THIS AGREEMENT, PURCHASER IS PURCHASING THE PREMISES “AS IS” AND “WHERE IS”
“WITH ALL FAULTS” ON THE CLOSING DATE, AND, EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT OR IN SAID CLOSING DOCUMENTS, SELLER IS MAKING NO REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, AND PURCHASER HAS NOT RELIED ON ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PREMISES,
INCLUDING ANY REPRESENTATION OR WARRANTY WITH RESPECT TO (A) THE BUSINESS OR
FINANCIAL CONDITION OF ANY TENANT OF THE PREMISES, (B) THE PHYSICAL CONDITION
OF
ANY IMPROVEMENT OR ANY OTHER PROPERTY COMPRISING ALL OR A PART OF THE PREMISES,
OR ITS FITNESS, MERCHANTABILITY OR SUITABILITY FOR ANY USE OR PURPOSE, (C)
THE
LEASES, RENTS, INCOME OR EXPENSES OF THE PREMISES, (D) THE COMPLIANCE OR
NON-COMPLIANCE WITH ANY LAWS, CODES, ORDINANCES, RULES OR REGULATIONS OF ANY
GOVERNMENTAL AUTHORITY AND ANY VIOLATIONS THEREOF, (E) THE PRESENCE OF ANY
HAZARDOUS OR TOXIC SUBSTANCES, LEAD PAINT OR ASBESTOS AT THE PREMISES, OR (F)
THE CURRENT OR FUTURE USE OF THE PREMISES, INCLUDING THE PREMISES’ USE FOR
COMMERCIAL, RETAIL, INDUSTRIAL OR OTHER PURPOSES. Seller is
not liable or bound in any manner by any verbal or written statements,
representations, real estate brokers’ “set-ups”, offering memorandum or
information pertaining to the Premises furnished by any real estate broker,
advisor, consultant, agent, employee, representative or other
Person.
(b) Except
as may otherwise be provided in this Agreement, in addition to, and not by
way
of limitation of Section 6.1(a), Purchaser shall be required to accept
the Premises subject to all (i) violations of law, notes or notices of
violations of law or governmental ordinances, orders or requirements noted
in or
issued by any Governmental Authority, and (ii) liens which may attach pursuant
to any of the foregoing, in each case whether such violations, notes, notices,
orders, requirements or liens, or the conditions giving rise thereto, existed
or
were noted or issued prior to the date of this contract, or now or hereafter
exist or come into being. Except as may otherwise be provided in this
Agreement, any such violations, notes, notices, orders, requirements or liens
shall be deemed Permitted Exceptions and shall be the sole responsibility of
Purchaser. Without limiting the generality of the foregoing, Seller shall not
be
required to remove or comply with any violations, notes, notices, orders,
requirements or liens a Tenant is required to remove or comply with pursuant
to
the terms of its Lease, and such violations, notes, notices, orders,
requirements or liens shall not be deemed to be an objection to
title. Except as may otherwise be provided in this Agreement,
Purchaser shall accept the Premises subject to all such violations, notes,
notices, orders, requirements or liens without abatement against the Purchase
Price, credit or allowance of any kind or any claim or right of action against
Seller for damages or otherwise, and Seller shall have no obligation to remove,
comply with, cure, discharge or otherwise deal with such violations, notes,
notices, orders, requirements or liens, or the conditions giving rise
thereto.
(c) Except
for a breach of a representation and warranty in Section 10.2(f)
[Violations] herein, Purchaser expressly waives, releases and discharges Seller,
and any entity or person which at any time directly or indirectly controlled
or
was controlled by Seller, from any and all suits, claims, demands, cause of
action, damages (including, but not limited to, consequential damages), losses,
costs, and expenses of any kind, whether known or unknown, relating to or
arising at any time out of the Premises, and based on: (1) any Environmental
Law
including, without limitation, the federal Comprehensive Environmental Response,
Compensation and Liability Act, and the federal Resource Conservation and
Recovery Act; (2) the Release of any Hazardous Materials; and (3) any
environmental conditions whatsoever in, on, above, beneath, at, to, under or
in
the vicinity of the Premises. As used herein, the term
“Environmental Laws” shall mean: all federal, state, and local
laws, statutes, ordinances and regulations, now or hereafter in effect, related
to the protection of human health, safety, the environment and natural
resources, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601, et. seq.), the Hazardous Material Transportation Act, as amended (49
U.S.C. Sections 5102, et. seq.), the Federal Insecticide, Fungicide and
Rodenticide Act, as amended (7 U.S.C. Sections 136, et. seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et. seq.),
the Toxic Substance, Control Act, as amended (42 U.S.C. Sections 7401, et seq.),
the Clean Air Act, as amended (42 U.S.C. Sections 7401, et seq.), the Federal
Water Pollution Control Act, as amended (33 U.S.C. Section 1251 et. seq.),
the
Occupational Safety and Health Act, as amended (29 U.S.C. Sections 651, et
seq.), the Safe Drinking Water Act, as amended (42 U.S.C. Sections 300f, et
seq.), any state or local counterpart or equivalent of any of the foregoing
and
any Federal, state or local transfer of ownership notification or approval
statutes. As used herein, the term “Hazardous
Materials” shall mean those substances included within the definitions
of any one or more of the terms “hazardous materials,” “hazardous wastes,”
“hazardous substances,” “industrial wastes,” and “toxic pollutants,” as such
terms are defined under the Environmental Laws, or any other substance regulated
by an Environmental Law. As used herein, the term
“Release” shall mean release, presence, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration of a Hazardous Material into the indoor or outdoor
environment.
(d) Notwithstanding
the foregoing, the waivers, releases and other matters set forth in this
Section 6.1 of this Agreement shall not apply to any claims of
contribution by Purchaser against Seller with respect to claims made by third
parties (including Governmental Authorities) against Purchaser or its
successors, assigns, agents or affiliates with respect to Hazardous Materials
in, on, under, above, adjacent to or otherwise affecting the Premises prior
to
Closing, for a period of one (1) year following the Closing (after the
expiration of said one-year period, this subsection (d) shall be of no further
force or effect, except as to claims of contribution filed by Purchaser against
Seller during said one-year period).
(e) The
provisions on this Section 6.1 shall survive the Closing.
Section
6.2. No
Due Diligence Period
. Subject
to the provisions of that certain Due Diligence Entry Agreement dated as of
January 21, 2008, by and between Seller, as “Owner,” and Purchaser, as
“Licensee” (the “Entry Agreement”), Purchaser shall have the
right, through the Closing Date, from time to time, upon the advance notice
required pursuant to the Entry Agreement, to enter upon and pass through the
Premises during normal business hours to examine and inspect the
same.
ARTICLE
VII
CLOSING
Section
7.1. Closing
Date
(a) .
(a) This Agreement and the closing of the
transactions contemplated by this Agreement (the “Closing”) are
occurring simultaneously, and so the Closing shall be held at 11:00 a.m.
(Central Time) on the date first written above (said date being herein called
the “Scheduled Closing Date”), through an escrow with the
Escrow Agent acting as escrowee, under terms that are reasonable and customary
for closings of this kind, TIME BEING OF THE ESSENCE with respect to Purchaser’s
obligation to close on the Scheduled Closing Date.
(b) The
actual date on which the Closing occurs is referred to herein as the
“Closing Date”).
ARTICLE
VIII
CLOSING
DELIVERIES
Section
8.1. Seller
Deliveries
. On
the Closing Date, in addition to all other obligations of Seller in this
Agreement which are to be performed on the Closing Date, Seller shall do the
following:
(a) Seller
shall execute and deliver to Purchaser a Special Warranty Deed, in the form of
Exhibit D-1 annexed hereto and made a part hereof, in proper form for
recording, duly executed and acknowledged so as to convey the Premises to
Purchaser, subject to the Permitted Exceptions and the other objections waived
by Purchaser (the “Deed”).
(b) Seller
shall execute, acknowledge and deliver to Purchaser the appropriate non-foreign
affidavit pursuant to Section 1445 of the Internal Revenue Code, as amended,
sufficient to provide an exemption under subdivision (b) thereof.
(c) Seller
shall execute and deliver to Purchaser a ▇▇▇▇ of sale, in the form of Exhibit
D-2 annexed hereto and made a part hereof, transferring any Personal
Property.
(d) Seller
shall deliver to Purchaser such documents as are reasonably requested by the
Title Insurer to demonstrate that the transactions contemplated hereby have
been
duly authorized by all necessary organizational action of Seller (including
corporate (or other appropriate entity) resolutions and incumbency
certificates) and
such customary affidavits, evidence and documents as may be reasonably required
by the Title Insurer in order to issue so-called owner’s and lender’s title
insurance policies insuring Purchaser’s title to the Premises, as relate to
(i) mechanics’ or materialmen’s liens; (ii) parties in possession;
(iii) the status and capacity of Seller and the authority of the person or
persons who are executing the various documents on behalf of Seller in
connection with the sale of the Premises and (iv) any special assessments not
yet of record; provided in no event shall Seller be required to deliver any
instrument that shall impose liability upon it or require Seller to undertake
any obligations or make any representations not otherwise provided for in this
Agreement.
(e) Seller
shall deliver to Purchaser, to the extent same are in Seller’s (or any of its
agent’s) possession or are under Seller (or any of its agent’s) control,
originals (or if unavailable, copies) of the following documents to the extent
same exclusively relate to the Premises: (i) Leases, (ii) lease files, (iii)
assignable permits, licenses, building certificates (e.g., boiler
certificates), warranties and/or guaranties, (iv) building specifications and
plans, and surveys and reports and studies concerning building operations (as
opposed to reports and studies pertaining to the initial development and
construction of the Improvements), (v) maintenance logs, (vi) to the extent
available, invoices and receipts required to calculate the adjustments under
Article IV of this Agreement, and (vii) utility and real estate tax bills
for the real estate tax fiscal year in which the Closing occurs.
(f) Subject
to the provisions of Section 4.2, Seller shall deliver to Purchaser the
Shook Letter of Credit held by Seller as security in connection with the Shook
Hardy Lease and shall execute and deliver to Purchaser such instruments and
forms as shall be necessary to transfer to Purchaser the Shook Letter of
Credit.
(g) Seller
shall deliver to Purchaser notice letters executed by Seller, in form reasonably
acceptable to Purchaser and Seller, to each Tenant notifying such Tenant that
Seller has transferred its interest in such Tenant’s Lease to Purchaser and
directing such Tenant to pay future rent as directed by Purchaser.
(h) Seller
shall deliver to Purchaser keys or access cards, as the case may be, with
respect to the Premises, tagged for identification (Purchaser acknowledges
and
accepts that the access cards and system for the Premises are not separate
from
the master system described in the Master Services Agreement).
(i) Seller
shall deliver the original executed counterpart of the Shook Hardy Estoppel
Certificate to the extent Seller may have received the same from Shook Hardy,
pursuant to its request under Article XII.
(j) Seller
shall deliver the original executed counterpart of the Shook Hardy Lease
Amendment to the extent Seller may have received the same from Shook Hardy,
pursuant to its request under Article XII.
Section
8.2. Purchaser
Deliveries
. On
the Closing Date, in addition to all other obligations of Purchaser in this
Agreement which are to be performed on the Closing Date, Purchaser
shall do all of the following:
(a) Purchaser
shall cause the Escrow Agent to pay the Deposit to Seller at the Closing and
Purchaser shall pay the balance of the Purchase Price, and all other sums
payable to Seller by Purchaser at the Closing, to Seller in accordance with
the
terms of this Agreement.
(b) Purchaser
shall deliver to Seller certified as true, correct and complete copies of:
(i)
the Organizational Documents of Purchaser, none of which have been amended,
except as evidenced by amendments similarly delivered and, which constitute
the
entire agreement among the partners or, members, as the case may be, thereof,
respectively, (ii) any certificate of value with regard to the transaction
as
may be required in connection with the recordation of the Deed, and (iii) such
other documents as are reasonably requested by the Title Insurer to demonstrate
that the transactions contemplated hereby have been duly authorized by all
necessary organizational action of Purchaser (including corporate (or other
appropriate entity) resolutions and incumbency certificates).
Section
8.3. Mutual
Deliveries
(a) . Seller
and Purchaser shall each execute (and cause to be acknowledged or sworn to
if
required) and deliver on the Closing Date, such instruments, agreements or
other
documents as are required to be executed and delivered by the terms of this
Agreement to consummate the transactions contemplated herein,
including:
(a) An
assignment and assumption of leases with respect to the Leases in effect on
the
Closing Date in the form annexed hereto as Exhibit E-1;
(b) An
assignment and assumption of Seller’s right, title and interest in any
Intangible Property relating exclusively to the Premises in the form annexed
hereto as Exhibit E-2;
(c) The
agreement (“Chilled Water Supply Contract”) in the form annexed
hereto as Exhibit E-3;
(d) The
agreement (“Easement Agreement”) in the form annexed hereto as
Exhibit E-4;
(e) The
agreement (“MasterServices Agreement”) in the
form annexed hereto as Exhibit E-5;
(f) The
agreement in the form annexed hereto as Exhibit E-6;
(g) Any
instruments which may be required for the recordation of the Deed contemplated
herein.
ARTICLE
IX
CONDITIONS
TO CLOSING
Section
9.1. Conditions
to Purchaser’s Obligation to Close
. Purchaser’s
obligation to close on the Closing Date is subject to the satisfaction of the
following conditions precedent, any or all of which may be waived in writing
by
Purchaser:
(a) This
Agreement shall be in full force and effect and there shall not then exist
any
event which would allow Purchaser to terminate this Agreement pursuant to the
express terms hereof;
(b) Seller
shall have complied, in all material respects, with its obligations under
Article VIII;
(c) Purchaser
shall have received an ALTA form of owner’s policy of title insurance issued by
the Title Company, insuring or an irrevocable obligation of the Title Company
committing to insure, good and marketable title to the Premises free and clear
of all liens, encumbrances and other matters affecting title except for
Permitted Exceptions, such obligation shall be unconditional except to the
extent subject to the payment of the premium therefore and the taking of such
other actions as are customarily required to obtain such insurance;
(d) The
Shook
Estoppel Certificate, executed on behalf of Shook Hardy, shall have been
delivered to Purchaser;
(e) The
Shook
Lease Amendment, executed on behalf of Shook Hardy, shall have been delivered
to
Purchaser; and
(f) Shook
Hardy shall not be in default under its Lease (beyond any applicable notice
and
grace period set forth therein) with respect to the payment of any rental
thereunder or in respect of any other material term thereof, and shall not
have
filed for bankruptcy, be subject to an involuntary bankruptcy proceeding, been
adjudicated bankrupt or admitted in writing its inability to pay its debts
as
they become due or have had a receiver appointed for any of its
assets.
Section
9.2. Conditions
to Seller’s Obligation to Close
. Seller’s
obligation to close on the Closing Date is subject to the satisfaction of the
following conditions precedent, any or all of which may be waived in writing
by
Seller:
(a) This
Agreement shall be in full force and effect and there shall not then exist
any
event which would allow Seller to terminate this Agreement pursuant to the
express terms hereof; and
(b) Purchaser
shall have complied, in all material respects, with its obligations under
Article VIII.
Section
9.3. Non-Satisfaction
of Conditions
. If
any of the conditions precedent set forth in Section 9.1 or Section
9.2 above are not satisfied on or before the date by which they are required
to be satisfied, the party for whose benefit the condition precedent exists
shall have the right to waive such condition and, to the extent applicable,
the
rights under Article XVI of this Agreement. If such waiver is
not given then, subject to the rights of the parties under Article XVI
hereof in the event a condition was not satisfied by reason of a default by
a
party, this Agreement shall terminate, Purchaser shall be entitled to a return
of the Deposit and all interest thereon, and neither party shall have any rights
or obligations hereunder, except those that survive any such termination of
this
Agreement
ARTICLE
X
REPRESENTATIONS
AND WARRANTIES
Section
10.1. Representations
and Warranties by Seller as to Seller
. Seller
represents and warrants to Purchaser that, as of the Contract Date:
(a) Authority;
Binding on Seller; Enforceability. It has the right, power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder, and this Agreement has been duly authorized, executed
and
delivered by it and is a valid and binding obligation of such party enforceable
against such party in accordance with the terms hereof, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and by general
principles of equity.
(b) Conflict
with Existing Laws or Contracts. The execution and delivery
of this Agreement and all related documents and the performance of its
obligations hereunder and thereunder by it does not conflict with any provision
of any law or regulation to which Seller is subject, conflict with or result
in
a breach of or constitute a default under any of the terms, conditions or
provisions of Seller’s Organizational Documents or of any agreement or
instrument to which it is a party or by which Seller is bound or any order
or
decree applicable to it or result in the creation or imposition of any lien
on
any of its assets or property, which would reasonably be expected to impair
its
ability to perform its obligations under this Agreement; and it has obtained
all
consents, approvals, authorizations or orders of any court or governmental
agency or body or any other third party, if any, required for the execution,
delivery and performance by it of this Agreement.
(c) Bankruptcy
of Seller. It has not filed any petition seeking or
acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any law relating to bankruptcy
or insolvency, nor has any such petition been filed against it. It is not
insolvent and the consummation of the transactions contemplated by this
Agreement shall not render it insolvent.
(d) OFAC
List. It is not (i) identified on the OFAC List (as
hereinafter defined) or (ii) a person with whom a citizen of the United States
is prohibited to engage in transactions by any trade embargo, economic sanction,
or other prohibition of United States law, rule, regulation, or Executive Order
of the President of the United States. The term “OFAC
List” shall mean the list of specially designated nationals and blocked
persons subject to financial sanctions that is maintained by the U.S. Treasury
Department, Office of Foreign Assets Control and any other similar list
maintained by the U.S. Treasury Department, Office of Foreign Assets Control
pursuant to any law, rule, regulation or Executive Order of the President of
the
United States, including trade embargo, economic sanctions, or other
prohibitions imposed by Executive Order of the President of the United
States.
(e) Other
Property. Seller, as of the Contract Date, is the owner of
fee title to those properties listed in Exhibit C annexed hereto, free
from any mortgages or deeds of trust.
Section
10.2. Representations
and Warranties by Seller as to the Premises
. Seller
represents and warrants to Purchaser that, as of the Contract Date:
(a) Leases.
There are no Leases which are in effect at the Premises as of the
Contract Date, other than the Leases listed on Exhibit F annexed hereto
(the “Existing Leases”). Except as otherwise noted
on Exhibit F, (1) to Seller’s actual knowledge, each of the Existing
Leases is in full force and effect, (2) no written notice of default on the
part
of any Tenant under any Existing Lease has been sent by Seller, as landlord,
other than a default notice setting forth a default which, as of the Contract
Date, has been cured and (3) to Seller’s actual knowledge, no written notice of
default or breach on the part of Seller, as landlord, under any of the Existing
Leases has been received by Seller, other than a default notice setting forth
a
default which, as of the Contract Date, has been cured. Seller has
delivered to Purchaser true and complete copies, in all material respects,
of
all the Existing Leases.
(b) Litigation. Seller
has no actual knowledge of any threatened, and has not received or given any
notice of any pending, actions, suits or proceedings or order, injunction or
decree outstanding as to the Premises which, if adversely determined, could
reasonably be contemplated to prevent Seller’s consummation of the transaction
contemplated by this Agreement or which relates primarily to the Premises or
would directly affect Purchaser after Closing.
(c) Condemnation. There
are no condemnation or eminent domain proceedings pending or, to Seller’s
knowledge, threatened in writing, that may result in the taking of any part
of
the Premises.
(d) Insurance. Attached
hereto as Exhibit G is a schedule of the insurance coverage currently
maintained by Seller with respect to the Premises, which is accurate in all
material respects.
(e) Permits
and Licenses. Seller has not received any written notice
from any Governmental Authority that there is a default with respect to any
permits and licenses held by Seller in connection with the
Premises.
(f) Violations. Seller
has not received any written notice from any Governmental Authority that there
is a violation under any Environmental Laws with respect to the Premises that
is
still outstanding, nor, to Seller’s actual knowledge, has Seller received any
written notice from any Governmental Authority that there is a violation under
any other laws with respect to the Premises that is still
outstanding.
(g) Brokerage
Commissions; Allowances. All brokerage commissions payable
in connection with execution of the Existing Leases have been or will be paid
in
full prior to Closing. Seller has performed all of the
obligations of landlord specifically set forth under each of the Existing Leases
(other than the funding of the Unpaid Allowance Balance with regard to the
Shook
Hardy Lease, which is, as of the date hereof, equal to $3,369,559.41) with
respect to: (i) any tenant allowance payable to any Tenant prior to the
Scheduled Closing Date; and (ii) any landlord’s work to be performed in
connection with the initial occupancy by such Tenant of the premises demised
under its Lease to the extent that the same is required to be performed by
the
landlord prior to the Scheduled Closing Date.
(h) Employees. Seller
has no employees at the Premises for whom Purchaser would be responsible after
the Closing.
(i) ERISA. Seller
is not a “governmental plan” within the meaning of section 3(32) of the Employee
Retirement Income Security Act of 1974, as amended, and the execution of this
Agreement and the sale of the Premises by Seller is not, as a result of the
structure and ownership of Seller, subject to state statutes regulating
investments of and fiduciary obligations with respect to governmental
plans.
(j) Development
Contract. Seller has not received any written notice from
the City that there is a violation under the Development Plan or the Development
Contract with respect to the Premises that is still outstanding. The
Development Plan and the Development Contract have not been amended, terminated
or revoked.
Section
10.3. Representations
and Warranties of Purchaser
. Purchaser
represents to Seller that, as of the Contract Date:
(a) Authority;
Binding on Purchaser; Enforceability. Purchaser has the
right, power and authority to execute and deliver this Agreement and to perform
Purchaser’s obligations hereunder, and this Agreement has been duly authorized,
executed and delivered and is a valid and binding obligation of Purchaser
enforceable against Purchaser in accordance with the terms hereof, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and by general
principles of equity.
(b) Conflict
with Existing Laws or Contracts. The execution and delivery
of this Agreement and all related documents and the performance of its
obligations hereunder and thereunder by Purchaser does not conflict with any
provision of any law or regulation to which Purchaser is subject, conflict
with
or result in a breach of or constitute a default under any of the terms,
conditions or provisions of Purchaser’s Organizational Documents or of any
agreement or instrument to which Purchaser is a party or by which Purchaser
is
bound or any order or decree applicable to Purchaser or result in the creation
or imposition of any lien on any of its assets or property, which would
reasonably be expected to impair its ability to perform its obligations under
this Agreement; and Purchaser has obtained all consents, approvals,
authorizations or orders of any court or governmental agency or body or any
other third party, if any, required for the execution, delivery and performance
by Purchaser of this Agreement.
(c) Legal
Action Against Purchaser. There is no action, suit or
proceeding pending against Purchaser in any court or by or before any other
governmental agency or instrumentality which, if adversely determined, could
reasonably be contemplated to prevent Purchaser’s consummation of the
transaction contemplated by this Agreement.
(d) Bankruptcy
of Purchaser. Purchaser has not filed any petition seeking
or acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any law relating to bankruptcy
or insolvency, nor has any such petition been filed against
Purchaser. Purchaser is not insolvent and the consummation of the
transactions contemplated by this Agreement shall not render Purchaser
insolvent.
(e) OFAC
List. Purchaser is not (i) identified on the OFAC List or
(ii) a person with whom a citizen of the United States is prohibited to engage
in transactions by any trade embargo, economic sanction, or other prohibition
of
United States law, rule, regulation, or Executive Order of the President of
the
United States.
(f) Ownership. Purchaser
is a wholly-owned subsidiary of ▇▇▇▇▇ REIT PROPERTIES, L.P., a Delaware limited
partnership, and ▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC. is the general partner
and majority owner of, and controls, said partnership.
ARTICLE
XI
COVENANTS
Section
11.1. Modification
of the Shook Hardy Lease
. Between
the Contract Date and the Closing Date, Seller shall not modify, amend or
terminate the Existing Leases, in any respect, except for the Shook Lease
Amendment; provided, however, that Seller shall have the right,
without Purchaser’s consent, to enter into any modification or amendment of any
Existing Lease to the extent required pursuant to the terms of the such or
that
is entered into to effectuate or memorialize the exercise of any right or the
performance of any obligation contained in such Existing Lease or pursuant
to
any law, provided that any action or agreement requiring the landlord’s consent
or approval shall require the consent of Purchaser.
Section
11.2. New
Leases
(a) . Between
the Contract Date and the Closing Date, Seller shall not enter into any new
lease or extend any Existing Lease without Purchaser’s prior written consent in
each instance; provided, however, Seller shall have the right, without
Purchaser’s consent, to renew or extend any Existing Lease pursuant to the
exercise of any right of renewal or extension by the Tenant under the terms
of
such Existing Lease; provided that any action or agreement requiring the
landlord’s consent or approval shall require the consent of
Purchaser.
Section
11.3. Operation
of the Premises
(a) Between
the Contract Date and the Closing Date, Seller shall: (i) continue to maintain
the Premises in its current condition, reasonable wear and tear and casualty
loss excepted, provided that Seller shall not be obligated to undertake any
improvements, repairs or replacements which would be capitalized under generally
accepted accounting principles; and (ii) not remove any Fixtures or Personal
Property from the Premises, unless the same is obsolete or is otherwise replaced
with Fixtures of comparable function.
(b) Between
the Contract Date and the
Closing Date, Seller shall maintain in full force and effect fire and other
casualty insurance coverages which are substantially equivalent to those
maintained on the Contract Date.
Section
11.4. Tax
Certiorari Proceedings
.
(a) If
any
tax reduction proceedings in respect of the Premises, relating to 2007 or
relating to any fiscal years prior to the fiscal year in which the Closing
occurs, are pending at the time of the Closing, Seller reserves and shall have
the right to continue to prosecute and/or settle the same; provided,
however, that Seller shall not settle any such proceeding which affects
any fiscal year after 2007 without Purchaser’s prior written consent, which
consent shall not be unreasonably withheld or delayed. Purchaser
shall reasonably cooperate with Seller in connection with the prosecution of
any
such tax reduction proceedings.
(b) Any
refunds or savings in the payment of taxes resulting from such tax reduction
proceedings applicable to the period prior to the date of the Closing shall
belong to and be the property of Seller (provided, however, that
if any such refund creates an obligation to reimburse any Tenants under its
Lease for any Rent paid or to be paid that portion of such refund equal to
the
amount of such required reimbursement (after deduction of allocable expenses
as
may be provided in such Lease) shall be paid to Purchaser by Seller (or, at
Seller’s election, shall be paid directly by Seller to such Tenant) and upon
receipt thereof, Purchaser shall disburse the same to such Tenant), and any
refunds or savings in the payment of taxes applicable to the period from and
after the date of the Closing shall belong to and be the property of
Purchaser. All reasonable attorneys’ fees and other expenses incurred
following the Closing in obtaining such refunds or savings shall be apportioned
between Seller and Purchaser in proportion to the gross amount of such refunds
or savings payable to Seller and Purchaser, respectively, except that
Purchaser’s liability for such fees and other expenses shall not exceed the
refund or savings so obtained.
(c) The
provisions of this Section 11.4 shall survive the Closing.
Section
11.5. Service
Contracts
. Seller
shall terminate at or before the Closing all Service Contracts as to the
Premises. Seller shall terminate at or before Closing, and Purchaser
shall not assume, any property management agreement or leasing agreements as
to
the Premises.
Section
11.6. Development
Contract and Development Plan
.
(a)
Prior to Closing, Seller shall not modify, amend or terminate the Development
Plan or the Development Contract in any respect.
(b) Following
the Closing, Seller and Purchaser agree as follows:
(i) Within
ten (10) days after the Closing Date, Seller shall deliver written notice of
the
transfer of the Premises to Purchaser to the City in accordance with Paragraph
14B of the Development Contract.
(ii) Within
thirty (30) days after the Closing Date, Seller shall submit to the City its
application (including obtaining an architect’s certificate to the extent
required by Sec. 74-17(d) of the Code of Ordinances of the City) for a
certificate of full compliance (“Certificate”) in accordance
with Sec. 74-17(d) of the Code of Ordinances of the City, as amended, with
respect to Phase B-3 of the Development Plan, which includes the
Premises. Thereafter, Seller shall take all procedural steps
necessary to prosecute such application in a good faith and timely manner,
including attendance at any public hearings in connection with the
same. Upon issuance of a Certificate for ▇▇▇▇▇ ▇-▇, Seller shall
provide a copy thereof to Purchaser; provided, however, that nothing herein
shall be deemed or construed as a representation or warranty by Seller that
a
Certificate will be issued. Purchaser shall cooperate with Seller’s
efforts hereunder in connection with the application for the Certificate, and,
if requested by Seller, shall join in the application for the Certificate and
attend any public hearings in connection with same.
(iii) Within
ninety (90) days after the Closing Date, Seller shall obtain and deliver to
Purchaser a copy of an ordinance vacating the easements reserved by the City
in
Ordinance No. 55622, recorded as Document No. K-584944, in Book K-1257 at Page
1786, vacating a portion of Warwick Trafficway.
(iv) Within
six (6) months after the Closing Date, Purchaser shall deliver written notice
of
Purchaser’s election to continue to use, operate and maintain the Premises in
accordance with Paragraph 14B of the Development Contract.
(v) This
Section 11.6(b) shall survive the Closing.
ARTICLE
XII
ESTOPPEL
CERTIFICATE; LEASE AMENDMENT
Section
12.1. Estoppel
Certificate.
Seller
shall request of (but shall not be obligated to obtain from) Shook Hardy that
Shook Hardy execute and deliver an estoppel certificate with respect to the
Shook Hardy Lease in the form of estoppel certificate attached hereto as
Exhibit H-1 (the “Shook Estoppel
Certificate”). Purchaser’s obligation to close on the
Closing Date is subject to its receipt of the Shook
Estoppel Certificate, executed on behalf of Shook Hardy, pursuant to Section
9.1(d) hereof.
Section
12.2. Lease
Amendment.
Seller
shall request of (but shall not be obligated to obtain from) Shook Hardy that
Shook Hardy execute and deliver an amendment to the Shook Hardy Lease in the
form attached hereto as Exhibit H-2 (the “Shook Lease
Amendment”). Purchaser’s obligation to close on the Closing
Date is subject to its receipt of the Shook
Lease Amendment, executed on behalf of Shook Hardy, pursuant to Section
9.1(e) hereof.
ARTICLE
XIII
TRANSACTION
COSTS
Section
13.1. Seller’s
Transaction Costs
. Seller,
in addition to its apportionments (if any) and its other payment obligations
hereunder, if any, shall be responsible for the cost of (a) its legal counsel,
advisors and the other professionals employed by it in connection with the
sale
of the Premises, (b) the base premium for Purchaser’s owner policy of title
insurance insuring the conveyance of the Premises at the Closing, and (c)
transfer and sales taxes.
Section
13.2. Purchaser’s
Transaction Costs
.
Purchaser, in addition to its apportionments (if any) and its other payment
obligations hereunder, shall be responsible for all costs and expenses
associated with: (a) Purchaser’s due diligence, (b) Purchaser’s legal counsel,
advisors, engineers, consultants and the other professionals employed by it
in
connection with Purchaser’s due diligence and the purchase of the Premises, (c)
any update, revision or recertification of the Survey initially provided by
Seller to Purchaser, (d) any endorsements to Purchaser’s owner policy of title
insurance insuring the conveyance of the Premises at the Closing,
(e) the policy premiums in respect of any mortgage title insurance
required by Purchaser’s lender (if any), with Purchaser obtaining the benefit of
any simultaneous issuance credit, and (f) all costs and expenses of obtaining
any financing Purchaser may elect to obtain (including any fees, financing
costs, transfer taxes, mortgage taxes and intangible taxes in connection
therewith
ARTICLE
XIV
BROKERAGE
Section
14.1. Brokerage
Representations
. Seller
and Purchaser each represent and warrant to the other that it has not dealt
with
any broker or other finder or intermediary with respect to the transactions
contemplated hereby other than CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., a Delaware corporation
(the “Broker”). In the event that any claim shall be
made for a broker’s commission, finder’s fee or otherwise on account of the
breach of the representations and warranties set forth in the preceding
sentence, upon prompt notice of any such claim from the party against whom
such
claim is asserted, the party whose acts caused or resulted in the claim, shall
indemnify, defend and hold the other harmless from any and all costs, claims,
damages, liabilities and expenses (including reasonable attorneys’ fees) arising
therefrom or in connection therewith. Seller shall pay the
commissions payable to Broker pursuant to separate written
agreement. The provisions of this Article XIV shall survive
the Closing and any termination or cancellation of this Agreement.
ARTICLE
XV
CASUALTY
AND CONDEMNATION
Section
15.1. Casualty
.
(a) For
purposes of this Article XV, “Major Casualty” means,
with respect to the Improvements at the Premises, a fire in or other casualty
to
such Improvements which causes damage or injury to such Improvements that either
(i) would cost Ten Million and 00/100 Dollars ($10,000,000.00) or more to repair
or (ii) would permit Shook Hardy to exercise its termination right under Article
7 of the Shook Hardy Lease by reason thereof (unless Shook Hardy waives such
termination right with regard to any such fire or other casualty).
(b) If,
between the Contract Date and the Closing, there shall occur a fire or other
casualty affecting the Improvements which is not a Major Casualty, then neither
Seller nor Purchaser shall have the right to terminate this Agreement and
Purchaser shall purchase the Premises in its damaged condition with any repairs
which may have been made thereto by Seller without reduction of or offset
against the Purchase Price or any other claim against Seller. Seller
shall pay to Purchaser all insurance proceeds received by Seller in connection
with such casualty (other than business interruption or rent loss insurance
for
the period prior to the Closing) and shall assign to Purchaser Seller’s right,
if any, to receive any insurance proceeds payable to Seller as a result of
such
fire or other casualty, provided, however, that Seller shall be
entitled to retain (to the extent theretofore paid to Seller), and shall not
be
obligated to assign the right to receive (to the extent not theretofore paid
to
Seller), an amount of such insurance proceeds equal to Seller’s expenses, if
any, incurred in collecting such proceeds and undertaking any repairs of the
Improvements. Additionally, at the Closing, Seller shall pay to
Purchaser the deductible amount under Seller’s insurance policy less any costs
incurred for any repair or restoration of the Improvements not covered by
insurance proceeds and less any portion of the deductible which can be charged
to Shook Hardy under the Shook Hardy Lease.
(c) If,
between the Contract Date and the Closing, there shall occur a fire or other
casualty affecting the Improvements which is a Major Casualty, then Purchaser
shall have the option, to be exercised by notice given to Seller within fifteen
(15) days after the date of such casualty, to terminate this
Agreement. If this Agreement shall be so terminated, then (i)
Purchaser shall be entitled to the return of the Deposit and (ii) neither party
hereto shall have any further obligations or liabilities to the other under
this
Agreement, except for those which expressly survive the termination of this
Agreement. If Purchaser shall not so elect to terminate this
Agreement as provided in this subclause (c), then this Agreement shall remain
in
full force and effect and the provisions of Section 15.1(b) above shall
apply to such damage and any insurance proceeds payable in connection
therewith.
(d) In
no event shall Seller have any obligation to repair any damage or destruction
to
the Improvements, but Seller shall have the right to do so and to utilize
insurance proceeds for such purpose.
(e) Notwithstanding
the foregoing, if the sum of the deductible amounts to be credited to Purchaser
and the insurance proceeds payable in connection with such casualty are not
sufficient to restore such damage, Purchaser shall have the right to terminate
this Agreement and receive a return of the Deposit, unless Seller (in its
discretion) agrees to credit the difference to Purchaser at Closing in which
event Purchaser shall not have such right to terminate.
(f) If
Seller shall receive any insurance proceeds to which Purchaser is entitled
under
Section 15.1(b) above, Seller shall pay the same to Purchaser
promptly. The provisions of this Section 15.1(f) shall survive
the Closing.
Section
15.2. Condemnation
. If,
between the Contract Date and the
Closing, any condemnation or eminent domain proceedings are initiated, then
Purchaser may elect to terminate this Agreement by giving written notice of
its
election to Seller within fifteen (15) days after receiving notice of such
prospective taking. If Purchaser shall so elect to terminate this
Agreement, then (i) Purchaser shall be entitled to the return of the Deposit,
and (ii) neither party hereto shall have any further obligations or liabilities
to the other under this Agreement, except for those which expressly survive
the
termination of this Agreement. If Purchaser shall not so elect to
terminate this Agreement, then the parties hereto shall proceed to the Closing
without reduction of or offset against the Purchase Price and Purchaser shall
have no other claim against Seller. In such event, all of Seller’s
right, title and interest in and to any condemnation proceeds paid or payable
in
connection therewith shall be assigned to Purchaser. In no event
shall Seller have any obligation to repair or restore the Premises or any
portion thereof.
ARTICLE
XVI
DEFAULT;
REMEDIES; SURVIVAL
Section
16.1. Purchaser’s
Default On or Before Closing
. If
Purchaser fails to consummate the purchase of the Premises pursuant to this
Agreement for any reason except failure by Seller to perform hereunder or
failure of a condition precedent to Purchaser’s obligations hereunder (except in
the event the condition was not satisfied by reason of a default by Purchaser),
then, Seller, as its sole and exclusive remedy therefor, may terminate this
Agreement by written notice to Purchaser, whereupon, as liquidated damages
on
account thereof, Seller shall be entitled to retain the Deposit as Purchaser’s
sole liability and Seller’s exclusive remedy hereunder. Upon any such
termination of this Agreement, neither party shall have any further rights
or
obligations hereunder other than those which expressly survive the termination
of this Agreement. Seller and Purchaser agree that the damages
that Seller will sustain as a result of such termination will be substantial
but
will be difficult to ascertain, and the aforesaid liquidated damages are a
fair
and reasonable amount to be retained by Seller as agreed and liquidated damages
in light of Seller’s removal of the Premises from the market and the damages
incurred by Seller and shall not constitute a penalty or a
forfeiture
Section
16.2. Seller’s
Default On or Before Closing
.
(a) If,
on or prior to the Closing Date, (i) Seller defaults in any of the covenants,
agreements or obligations to be performed by Seller under this Agreement on
or
as of the Closing Date (or at the Closing), or (ii) Seller otherwise materially
defaults hereunder and such other material default is not cured by the earlier
of (A) the Scheduled Closing Date (as it may have been adjourned in accordance
with this Agreement) or (B) the date which is thirty (30) days after notice
of
such default from Purchaser to Seller, then, and in any of such events,
Purchaser, as its sole remedy therefor, may either (1) seek specific performance
of Seller’s obligations hereunder, without abatement, credit against or
reduction of the Purchase Price or (2) terminate this Agreement by written
notice to Seller (Purchaser shall be deemed to have elected to so terminate
this
Agreement if Purchaser fails to file suit for specific performance against
Seller in a court having jurisdiction in the city and state in which the
Premises are located, on or before thirty (30) days following the date upon
which Closing was to have occurred or if Purchaser thereafter dismisses such
suit or otherwise fails to prosecute such suit with diligence and in good
faith); provided, however, in the event such
termination is due to Seller’s willful breach or default, Purchaser shall be
entitled to recover from Seller the actual reasonable out-of-pocket expenses
incurred by Purchaser and paid to (A) Purchaser’s attorneys in connection with
the negotiation of this Agreement and (B) Purchaser’s attorneys and unrelated
and affiliated third party consultants, contractors, suppliers or other third
parties in connection with the performance of examinations, inspections and/or
investigations pursuant to this Agreement or determining the feasibility of
Purchaser’s acquisition of the Property pursuant to this Agreement and
provided, further, that in the event (X) specific performance is
not available because Seller has conveyed the Premises to another party, or
(Y)
Seller has voluntarily encumbered the Premises with a mortgage, deed of trust
or
financing lien that Seller does not cause to be released at Closing in violation
of this Agreement, or (Z) Seller has willfully amended, modified or terminated
the Shook Hardy Lease, the Development Plan or the Development Contract in
a
manner which violates Article XI of this Agreement, then Purchaser may
pursue any and all remedies available at law or in equity, including the
recovery of its costs and expense, provided, however, in no event shall
Purchaser be permitted to recover, in the aggregate, in excess of One Million
and 00/100 Dollars ($1,000,000.00). If Purchaser shall so elect to
terminate this Agreement, then the Deposit shall be refunded to Purchaser and
(except as may otherwise be expressly set forth below) neither party shall
have
any further rights or obligations hereunder other than those which expressly
survive the termination of this Agreement. Except as expressly
provided in this Article XVI, Purchaser waives any other right or remedy,
at law or in equity, which Purchaser may have or be entitled to as a result
of
any default by Seller. The term “default”, as used herein, shall mean
the failure to perform an obligation or covenant, and shall not be deemed to
include an inaccuracy in any representation or warranty; it being understood
and
agreed that Section 16.2(b) and Section 16.3(b) hereof set forth
the exclusive remedies of Purchaser for any claim which might arise out of
any
of the provisions of Article X (and, accordingly, the provisions of this
Section 16.2(a) shall not apply to any such
claims). Notwithstanding the foregoing, nothing herein shall limit
Purchaser’s obligations under any indemnities or other provisions which survive
the termination of this Agreement (including, Purchaser’s obligation to
indemnify Seller under Section 19.15) and under Section
19.13.
(b) If,
on or prior to the Closing Date, Purchaser shall become aware of any
inaccuracies in any representation or warranty made by Seller pursuant to
Section 10.1 or Section 10.2 which, in any case or in the
aggregate, could reasonably be expected to have a Material Adverse Effect on
Purchaser, then, and in any of such events, Purchaser, as its sole remedy
therefor, may either (1) elect to proceed to the Closing, without abatement,
credit against or reduction of the Purchase Price (except as may otherwise
be
expressly set forth in this Agreement) or (2) terminate this Agreement by
written notice to Seller. If Purchaser shall so elect to terminate
this Agreement, then the Deposit shall be refunded to Purchaser and (except
as
may otherwise be expressly set forth below) neither party shall have any further
rights or obligations hereunder other than those which expressly survive the
termination of this Agreement. Without limiting the generality of
this Section 16.2(b), in no event shall the occurrence of any of the
events or circumstances described in the preceding subclauses (i), (ii) and
(iii) of this Section 16.2(b) give rise to any obligation of Seller to
cure an inaccuracy in any representation or warranty or otherwise make Seller
liable for damages on account thereof (for avoidance of doubt, the parties
acknowledge that this sentence does not negate or otherwise limit any rights
that Purchaser may expressly have under Section 16.2(a) above or
Section 16.3 below.
(c) If
Purchaser, with knowledge of (i) a default in any of the covenants, agreements
or obligations to be performed by Seller under this Agreement, and/or (ii)
a
material inaccuracy in any representation or warranty of Seller made in this
Agreement, elects to proceed to Closing, then, upon the consummation of the
Closing, Purchaser shall be deemed to have waived any such default and/or
material inaccuracy and shall have no claim against Seller on account
thereof.
Section
16.3. Survival
.
(a) Except
as
otherwise expressly provided in this Agreement, no provision of this Agreement
(i.e., no representation, warranty, covenant, agreement or other
obligation set forth in any provision of this Agreement) shall survive the
Closing (and, accordingly, no claim arising out of the same may be commenced
after the Closing), and delivery of the deed(s) to Purchaser shall be deemed
full performance and discharge of every agreement and obligation on the part
of
Seller and Purchaser to be performed under this Agreement, and no agreement,
promise, representation or warranty, whether express or implied on the part
of
Seller or Purchaser or any agent, officer, employee or representative of Seller
or Purchaser shall survive the Closing unless expressly stated herein to survive
the Closing. The representations or warranties of Seller made
pursuant to Section 10.1 and Section 10.2 shall survive the
Closing for a period of one (1) year after Closing (the “Survival
Period”), and shall be actionable, subject to Section
16.3(b).
(b) If,
after
the Closing, Purchaser shall first learn of (i) any inaccuracies in any
representation or warranty of Seller made pursuant to Section 10.1 or
Section 10.2 which, in any case or in the aggregate, could be reasonably
likely to have a Material Adverse Effect on Purchaser, or (ii) a default in
any
of the covenants, agreements or obligations to be performed by Seller under
this
Agreement which expressly survives the Closing, then Purchaser shall have a
claim for damages on account thereof, provided that: (1) written
notice of any such claim must have been given to Seller by Purchaser with the
Survival Period and any such claim not brought within the Survival Period shall
be deemed waived; (2) Purchaser hereby waives the right to collect or seek
to
collect consequential or punitive damages; (3) the amount of damages sought
for
all such claims (excluding consideration of attorneys’ fees and costs related to
making and prosecuting such claims) must collectively aggregate to more than
the
Minimum Amount (in such event, such claims shall not be limited to the aggregate
excess above the Minimum Amount, but rather such claims shall be actionable
from
the first dollar thereof); and (4) in no event shall the liability of Seller
for
such claims (including, without limitation, for attorneys’ fees and costs)
exceed, in the aggregate, the Cap (and Purchaser hereby waives any right to
seek
or enforce one or more judgments against Seller to the extent that any such
judgments exceed, in the aggregate, the Cap). Notwithstanding
the foregoing, the requirement that there be a minimum amount of damages and
the
Cap shall not apply to the obligations of Seller under Section 4.3,
Article XIV or Section 15.1(f) hereof or under the Deed, the
Easement Agreement, the Chilled Water Supply Contract or the Master Services
Agreement.
(c) The
representations or warranties of
Purchaser made pursuant to Section 10.3
shall survive the Closing for the
Survival Period.
Section
16.4. Determination
of Material Inaccuracy
. Notwithstanding
any
provision of this Agreement to the contrary, no inaccuracies in any
representation or warranty made by Seller pursuant to Section 10.1 and
Section 10.2, with respect to the Premises shall be deemed to have a
“Material Adverse Effect on Purchaser” unless Purchaser can
reasonably demonstrate that the loss or damage resulting from such inaccuracies,
in the aggregate, is more than the Minimum Amount. If any such
inaccuracies in any representation or warranty under Section 10.1 and
Section 10.2 shall not have a Material Adverse Effect on
Purchaser, as determined in accordance with this Section 16.4, then
Purchaser shall not be entitled to any right or remedy under this Agreement,
at
law or equity as a result of such inaccuracies, including the right to terminate
this Agreement if Purchaser shall become aware of such inaccuracies on or before
the Closing.
ARTICLE
XVII
NOTICES
Section
17.1. Notices
. All
notices, demands, requests and other communications required hereunder shall
be
in writing and shall be deemed to have been given upon delivery or upon refusal
to accept delivery, or, in the case of notice sent via facsimile, when the
sender obtains electronic confirmation of successful transmission, and shall
only be sent (a) by personal delivery; or (b) by nationally recognized overnight
delivery service marked for delivery on the next Business Day, in each event
against a signed receipt; or (c) transmitted by facsimile transmission (with
a
copy delivered to recipient on the next Business Day), addressed to the party
for whom it is intended at its address hereinafter set forth:
To
Seller:
Crown
Center Redevelopment Corporation
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, President
Facsimile
No.: (▇▇▇)
▇▇▇-▇▇▇▇
with
a
copy to:
Hallmark
Legal Dept.
2501
▇▇▇▇▇
MD
339
Kansas
City, Missouri
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Assistant General Counsel
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇
▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇, Esq.
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
To
Purchaser:
▇▇▇▇▇
REIT 2555 Grand LLC
▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇
REIT 2555 Grand LLC
▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇
▇▇▇▇▇ L.L.P.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
To
the
Escrow Agent:
Commonwealth
Land Title Insurance Company
c/o
LandAmerica Commercial Services
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇)
▇▇▇-▇▇▇▇
or
at
such other address in the United States of America as may be designated by
either of the parties in a written notice given in accordance with the
provisions of this Section. The attorney for any party may send
notices on that party’s behalf.
ARTICLE
XVIII
ESCROW
AGENT
Section
18.1. Deposit
. The
Deposit shall be held, paid over and/or applied, by Escrow Agent in accordance
with the provisions of this Article XVIII. The Deposit
shall be held by Escrow Agent in a federally-insured, interest-bearing money
market account. If any party makes a demand for the Deposit, the
Escrow Agent shall promptly provide written notice to the other
party.
Section
18.2. Delivery
by Escrow Agent
. The
Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case
may be, as follows:
(a) To
Purchaser, at the Closing upon the consummation of the transfer of title to
the
Premises; or
(b) To
Purchaser, upon receipt of its written demand therefor, stating that Purchaser
is entitled thereto under the terms of this Agreement; provided,
however, that Escrow Agent shall not honor such demand until more
than
ten (10) Business Days after Escrow Agent shall have delivered a copy of such
demand to Seller and Seller shall not have given Escrow Agent specific notice
of
objection within such 10-day period.
(c) To
Seller, upon receipt of its written demand therefor, stating that Seller is
entitled thereto under the terms of this Agreement; provided,
however, that Escrow Agent shall not honor such demand until more
than
ten (10) Business Days after Escrow Agent shall have delivered a copy of such
demand to Purchaser and Purchaser shall not have given Escrow Agent specific
notice of objection within such 10-day period.
Section
18.3. Dispute
. If
a dispute arises between Purchaser and Seller hereunder with regard to the
disposition of the Deposit, the Escrow Agent shall either (a) take affirmative
steps to terminate the Escrow Agent’s duties by delivery of the Deposit to an
appropriate court and commencement of an interpleader action, the reasonable
costs thereof to be borne by whichever of Seller or Purchaser is finally
determined by such court not to be entitled to the Deposit or (b) retain the
Deposit until it receives a written agreement by the parties or a certified
copy
of a final and non-appealable order of a court of competent jurisdiction
directing the disposition of the Deposit.
Section
18.4. Limitation
on Escrow Agent’s Liability
.The
Escrow Agent (a) shall have no duties or responsibilities except those expressly
set forth herein; (b) shall not be bound by any modification of this Agreement,
unless duly executed by the parties and delivered to the Escrow Agent;
provided, however, if the Escrow Agent’s duties are affected by
such modification, the Escrow Agent shall not be bound unless the Escrow Agent
shall have given its prior written consent thereto; (c) may rely and shall
have
no liability to Purchaser or Seller as a result of acting or refraining from
acting upon any instrument or other writing furnished to it hereunder and
believed by it in good faith to be genuine and to have been signed and presented
by the proper person or persons; and (d) shall not be liable for any act of
omission or commission pursuant to this Agreement, except for its own willful
default or negligence. If the Escrow Agent is uncertain as to its
duties or rights hereunder, or shall receive instructions from Purchaser or
Seller which, in the Escrow Agent’s opinion, conflict with the provisions
hereof, the Escrow Agent shall be entitled to consult with counsel of its own
choice.
Section
18.5. Indemnity
. The
parties, jointly and severally, hereby agree to indemnify the Escrow Agent
from,
and to hold it harmless against, any claim, damage, loss, liability or expense
(including court costs and reasonable attorneys’ fees and
costs) incurred in the absence of negligence or willful default on
the part of the Escrow Agent, arising out of or in connection with the
performance of its duties hereunder.
Section
18.6. Acknowledgment
of Escrow Agent
.
Escrow
Agent has acknowledged agreement to the foregoing provisions of this Article
XVIII by signing in the place indicated on the signature pages of this
Agreement.
ARTICLE
XIX
MISCELLANEOUS
Section
19.1. Governing
Law; Jurisdiction and Venue
.
(a) This
Agreement shall be governed by, and construed in accordance with, the
substantive laws of the State of Missouri, without regard to conflict of law
principles.
(b) For
the
purposes of any suit, action or proceeding involving this Agreement, Seller
and
Purchaser each hereby expressly submits to the jurisdiction of all federal
and
state courts sitting in the State of Missouri and City of Kansas City and
consents that any order, process, notice of motion or other application to
or by
any such court or a judge thereof may be served within or without such court’s
jurisdiction by registered mail or by personal service, provided that a
reasonable time for appearance is allowed, Seller and Purchaser each agrees
that
such courts shall have the exclusive jurisdiction over any such suit, action
or
proceeding commenced by either or both of said parties. In
furtherance of such agreement, Seller and Purchaser each agrees upon the request
of the other to discontinue (or agree to the discontinuance of) any such suit,
action or proceeding pending in any other jurisdiction.
(c) Seller
and Purchaser each hereby irrevocably waives any objection that it may now
or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement brought in any federal or state court
sitting in the State of Missouri and City of Kansas City and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought
in
any such court has been brought in an inconvenient forum.
Section
19.2. Further
Assurances
. In
addition to the obligations required to be performed hereunder by Seller and
Purchaser at or prior to the Closing, each party, from and after the Closing,
shall execute, acknowledge and/or deliver such other instruments, as may
reasonably be requested in order to effectuate the purposes of this Agreement;
provided, however, that the foregoing provisions of this
Section 19.2 shall not obligate either party to execute, acknowledge
or
deliver any instrument which would or might impose upon such party any
additional cost, liability or obligation (beyond that imposed upon on it under
the documents delivered by such party at the Closing and the other provisions
of
this Agreement which survive the Closing).
Section
19.3. Successors
and Assigns
. All
of the provisions of this Agreement and of any of the documents and instruments
executed in connection herewith shall apply to and be binding upon, and inure
to
the benefit of Seller and Purchaser, their successors and permitted
assigns. Purchaser may not assign its rights under this Agreement
without first obtaining Seller’s written approval, which approval may be given,
conditioned or withheld in Seller’s sole discretion, and any such attempted
assignment without Seller’s prior written approval shall be null and void;
provided, however, Seller’s written approval shall not be required for an
assignment to a wholly-owned subsidiary of ▇▇▇▇▇ REIT PROPERTIES, L.P., a
Delaware limited partnership (a “Permitted
Affiliate”). In the event Purchaser intends to assign its
rights hereunder, (a) Purchaser shall send Seller written notice (i) of its
request for Seller’s approval hereunder, in the case of an assignment which is
not to a Permitted Affiliate, at least ten (10) Business Days prior to the
date
of the proposed assignment, which request shall include the legal name and
structure of the proposed assignee, as well as its most recent financial
statements and any other information that Seller may reasonably request or
(ii)
of its intended assignment to a Permitted Affiliate at least three (3) Business
Days prior to the date of the proposed assignment which notice shall include
the
legal name and structure of the proposed assignee and the details of its
qualification as a Permitted Affiliate, and (b) Purchaser and the proposed
assignee shall execute an assignment and assumption of this Agreement in form
and substance reasonably satisfactory to Seller, and (c) in no event shall
any
assignment of this Agreement release or discharge Purchaser from any liability
or obligation occurring hereunder. Any transfer, directly or
indirectly, of any stock, partnership interest or other ownership interest
in
Purchaser shall constitute an assignment of this Agreement; provided, however,
any such transfers shall not constitute an assignment of this Agreement so
long
as Purchaser remains a wholly-owned subsidiary of ▇▇▇▇▇ REIT PROPERTIES, L.P.,
a
Delaware limited partnership, and ▇▇▇▇▇ REAL ESTATE INVESTMENT TRUST, INC.
is
the general partner and majority owner of, and controls, said
partnership.
Section
19.4. No
Third Party Beneficiary
This
Agreement and each of the provisions hereof are solely for the benefit of
Purchaser and Seller and their successors and permitted assigns. No
provisions of this Agreement, or of any of the documents and instruments
executed in connection herewith, shall be construed as creating in any person
or
entity other than Purchaser and Seller and their successors and permitted
assigns any rights of any nature whatsoever.
Section
19.5. Entire
Agreement
. This
Agreement, together with the documents and instruments executed and delivered
in
connection herewith, sets forth the entire agreement between Purchaser and
Seller relating to the transactions contemplated hereby and all other prior
or
contemporaneous agreements, understandings, representations or statements,
oral
or written, relating directly to the Premises are superseded
hereby.
Section
19.6. Severability
. If
any provision in this Agreement is found by a court of competent jurisdiction
to
be in violation of any applicable law, and if such court should declare such
provision of this Agreement to be unlawful, void, illegal or unenforceable
in
any respect, the remainder of this Agreement shall be construed as if such
unlawful, void, illegal or unenforceable provision were not contained herein,
and the rights, obligations and interests of the parties hereto under the
remainder of this Agreement shall continue in full force and effect undisturbed
and unmodified in any way.
Section
19.7. Modification
. This
Agreement and the terms hereof may not be changed, waived, modified,
supplemented, canceled, discharged or terminated orally, but only by an
instrument or instruments in writing executed and delivered by Purchaser and
Seller.
Section
19.8. Waiver
of Trial by Jury
. EACH
PARTY HEREBY WAIVES, IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY
ACTION BROUGHT ON, UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS
AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE PREMISES,
OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO
OR
TO ANY OF THE FOREGOING.
Section
19.9. No
Recording
. Neither
this Agreement nor any memorandum hereof shall be recorded. Each
party hereby agrees to indemnify and hold harmless the others for all
liabilities, losses, damages, liens, suits, claims, costs and expenses
(including reasonable attorneys’ fees) incurred by the other by reason of a
breach of the foregoing covenant.
Section
19.10. Captions;
Interpretation
.
(a) The
captions in this Agreement are inserted for convenience of reference only and
in
no way define, describe or limit the scope or intent of this Agreement or any
of
the provisions hereof. All references to “Articles” and “Sections”
without reference to a document other than this Agreement, are intended to
designate articles and sections of this Agreement, and the words “herein,”
“hereof,” “hereunder” and other words of similar import refer to this Agreement
as a whole and not to any particular Article or Section, unless specifically
designated otherwise.
(b) As
used
in this Agreement, the masculine shall include the feminine and neuter, the
singular shall include the plural and the plural shall include the singular,
as
the context may require.
(c) The
use
of the term “including” shall mean in all cases “including but not limited to”
unless specifically designated otherwise.
(d) References
to the “knowledge” of Seller and words of similar import shall refer only to the
current actual (and not constructive) knowledge of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice
President of Real Estate and Facilities, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President of
Finance and Administration, and ▇▇▇▇ ▇▇▇▇▇▇▇ of the facts in question at the
time in question and shall not be construed, by imputation or otherwise, (i)
to
impose upon such persons any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains or to refer to the knowledge of
Seller or any affiliate of Seller, to any property manager, or (ii) to any
other
officer, agent, manager, representative or employee of Seller or any affiliate
thereof. There shall be no personal liability on the part of such
persons arising out of any representation or warranties made
herein.
(e) No
rules
of construction against the drafter of this Agreement shall apply in any
interpretation or enforcement of this Agreement, any documents or certificates
executed pursuant hereto, or any provisions of any of the
foregoing.
Section
19.11. Counterparts
. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same original, and the execution of
separate counterparts by Purchaser and Seller shall bind Purchaser and Seller
as
if they had each executed the same counterpart. Signatures to this
Agreement transmitted by telecopy shall be valid and effective to bind the
party
so signing. Each party agrees to promptly deliver an executed
original counterpart of this Agreement with its actual signature to the other
party, but a failure to do so shall not affect the enforceability of this
Agreement, it being expressly agreed that each party to this Agreement shall
be
bound by its own telecopied signature and shall accept the telecopied signature
of the other party to this agreement.
Section
19.12. No
Waiver
. Neither
the failure of either party to exercise any power given such party hereunder
or
to insist upon strict compliance by the other party with its obligations
hereunder, nor any custom or practice of the parties at variance with the terms
hereof shall constitute a waiver of either party’s right to demand exact
compliance with the terms hereof.
Section
19.13. Confidentiality
. Purchaser
acknowledges that all information in respect of Seller and the Premises
furnished to Purchaser is and has been so furnished on the condition that
Purchaser maintain the confidentiality thereof. Accordingly,
Purchaser shall, and shall cause its directors, officers, members, shareholders,
principals, agents and representatives and other permitted recipients of any
such information hereunder, to hold in strict confidence, and not disclose
to
any other party without the prior written consent of Seller until the Closing
shall have been consummated, any such information delivered to Purchaser by
Seller or any of its agents, representatives or employees. In the
event that the Closing does not occur and this Agreement is terminated,
Purchaser shall promptly return to Seller or destroy all originals and copies
of
all documents and other such information heretofore delivered to Purchaser
in
connection with this transaction without retaining any copy thereof and shall
destroy all electronic records of such documents or containing any such
information. Notwithstanding anything to the contrary hereinabove set
forth, Purchaser may disclose such information (i) on a need-to-know basis
to
its employees or members of professional firms or financial advisors serving
it
in connection with this transaction, (ii) which is publicly accessible (except
by reason of, directly or indirectly, Purchaser’s actions), (iii) lenders and
mortgage brokers, and (iv) as may be required for Purchaser, its Affiliates,
its
related parties, its manager in order to comply with applicable laws,
regulations or court orders, including any applicable federal or state
securities laws, rules or regulations or to comply with the requirements of
the
Securities and Exchange Commission. The provisions of this Section
shall survive any termination of this Agreement and, to the extent concerning
lands outside of the Premises, the Closing.
Section
19.14. Notice
of Pendency
. Purchaser
hereby waives its right to file a notice of pendency or lis pendens against
the
Premises or to take any other affirmative action with respect to the existence
of this Agreement to impede Seller’s ability to convey or encumber the
Premises.
Section
19.15. Access
. Purchaser
and its agents shall have the right to inspect the Premises during business
hours, provided that Purchaser shall first give Seller reasonable advance
notification of its intention to conduct any such inspection and that such
inspection shall not unreasonably impede the normal day-to-day business
operation of the Premises or interfere with any Tenant and Purchaser’s right of
inspection of the Premises shall be subject to the rights of the
Tenants. Purchaser shall exercise reasonable care at all times that
Purchaser shall be present upon the Premises and in the performance of all
inspections. Seller shall have the right to have a representative of
Seller accompany Purchaser during any inspections. Purchaser shall not
communicate in any manner with the Tenants concerning their respective leases
or
occupancy or the Premises, including, without limitation, its potential sale,
without Seller’s prior written consent in every instance; provided, however,
Seller shall not unreasonably withhold its consent to permit Purchaser to
conduct an interview with any tenant, at a time and place convenient for all
parties. Prior to any entrance upon the Premises for the performance
of any inspection, Purchaser shall deliver to Seller a certificate of insurance
evidencing that Purchaser has procured, and Purchaser throughout the performance
of such inspection shall maintain in force and effect, a commercial general
liability insurance policy covering Purchaser and Seller against claims for
bodily injury or death or property damage occurring in, upon or about or
resulting from the Premises, or any street, drive, sidewalk, curb or passageway
adjacent thereto, in standard form and an amount of no less than $2,000,000
(combined single limit), issued by an insurance company with a rating of “A” or
better as established by Best’s Rating Guide, which insurance shall include
blanket contractual liability coverage. Purchaser hereby indemnifies and agrees
to defend and hold Seller harmless from all loss, cost (including reasonable
attorneys’ fees), claim or damage arising in connection with or from any such
inspection by Purchaser or its agents or contractors, or any of their respective
conduct while at the Premises pursuant to the provisions of this Section;
provided the indemnity shall not extend to protect Seller from any pre-existing
liabilities for matters merely discovered by Purchaser (i.e., latent
environmental contamination). Purchaser’s obligations under this
Section 19.15 shall survive Closing or any expiration or termination of
this Agreement for a period of one (1) year.
Section
19.16. Cooperation
with Purchaser’s Auditors and SEC Filing Requirements
. Seller
shall, without representation, warranty or liability of any kind
to Purchaser or any affiliate of Purchaser, provide to Purchaser (at
Purchaser’s expense) copies of, or shall provide Purchaser reasonable access to,
such factual information as may be reasonably requested by Purchaser, and in
the
possession or control of Seller, or its property manager or accountants, to
enable Purchaser’s auditor (Deloitte & Touche LLP or any successor auditor
selected by Purchaser) to conduct an audit of the income statements of the
Premises for the year to date of the year in which the Closing occurs plus
up to
one (1) prior calendar year (provided, however, such audit shall not include
an
audit of management fees or interest expenses). Purchaser shall be
responsible for all out-of-pocket costs associated with this
audit. Seller shall reasonably cooperate (at no cost to Seller) with
Purchaser’s auditor in the conduct of such audit. In addition, Seller agrees to
provide, without representation, warranty or liability of any kind to Purchaser
or any affiliate of Purchaser, if requested by such auditor, historical
financial statements for the Premises, including income and balance sheet data
for the Property, whether required before or after Closing. Without
limiting the foregoing, (a) Purchaser or its designated independent or other
auditor may audit Seller's operating statements of the Premises, at Purchaser's
expense, and Seller shall, without representation, warranty or liability of
any
kind to Purchaser or any affiliate of Purchaser, provide such documentation
as
Purchaser or its auditor may reasonably request in order to complete such audit,
and (b) Seller shall furnish to Purchaser such financial and other information
as may be reasonably required by Purchaser or any Affiliate of Purchaser to
make
any required filings with the Securities and Exchange Commission or other
governmental authority; provided, however, that the foregoing obligations of
Seller shall be limited to providing such information or documentation as may
be
in the possession of, or reasonably obtainable by, Seller, its property manager
or accountants, at no material cost to Seller, and in the format that Seller
(or
its property manager or accountants) have maintained such
information. This Section shall survive the Closing for a period of
six (6) months.
REMAINDER
OF PAGE LEFT BLANK INTENTIONALLY
IN
WITNESS WHEREOF, this Agreement has been entered into as of the day and year
first above written.
SELLER:
CROWN
CENTER REDEVELOPMENT CORPORATION
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By:
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Name:
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Title:
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PURCHASER:
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▇▇▇▇▇
REIT 2555 GRAND LLC
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By:
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Name:
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Title:
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COMMONWEALTH
LAND TITLE INSURANCE COMPANY
as
Escrow Agent (solely as to Article XVIII)
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By:
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Name:
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Title:
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List
of Exhibits
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Exhibit
A Legal
Description
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Exhibit
B
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Permitted
Exceptions
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Exhibit
C Other
Crown Properties
Exhibit
D-1 Special
Warranty Deed
Exhibit
D-2 ▇▇▇▇
of Sale
Exhibit
E-1 Assignment
and Assumption of Leases
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Exhibit
E-2
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Assignment
of Assignable Guaranties, Warranties and/or
Permits
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Exhibit
E-3 Chilled
Water Supply Contract
Exhibit
E-4 Easement
Agreement
Exhibit
E-5 Master
Services Agreement
Exhibit
E-6 Revocable
License (“Wall Drawing #1118” by ▇▇▇ ▇▇▇▇▇▇)
Exhibit
F Existing
Leases and Exceptions to Representations in Section 10.2(a)
Exhibit
G Insurance
Exhibit
H-1 Shook
Estoppel Certificate Form
Exhibit
H-2 Shook
Lease Amendment Form