PURCHASE AND SALE AGREEMENT between ST. AUGUSTINE OUTLET WORLD, LTD. Seller and PRIME OUTLETS ACQUISITION COMPANY LLC\ Purchaser Dated as of November 30, 2005
between
ST.
AUGUSTINE OUTLET WORLD, LTD.
Seller
and
PRIME
OUTLETS ACQUISITION COMPANY LLC\
Purchaser
Dated
as of November 30, 2005
TABLE
OF CONTENTS
|
1.
|
Sale.
|
1
|
|
2.
|
Purchase
Price
|
2
|
|
3.
|
Apportionments
|
2
|
|
4.
|
Purchaser’s
Investigation and Closing Date.
|
6
|
|
5.
|
Title.
|
7
|
|
6.
|
Representations
and Warranties.
|
8
|
|
7.
|
Closing
Costs
|
3
|
|
8.
|
Conditions
Precedent to Closing.
|
3
|
|
9.
|
Deliveries
by Seller at Closing.
|
5
|
|
10.
|
Deliveries
by Purchaser at Closing.
|
7
|
|
11.
|
Covenants.
|
8
|
|
12.
|
As
Is; Release.
|
1
|
|
13.
|
Broker.
|
2
|
|
14.
|
Casualty;
Condemnation.
|
3
|
|
15.
|
Remedies.
|
4
|
|
16.
|
Purchaser’s
Access to the Property.
|
4
|
|
17.
|
Indemnity.
|
6
|
|
18.
|
Escrow.
|
6
|
|
19.
|
Assignment
|
9
|
|
20.
|
Access
to Records; Tax Matters
|
30
|
|
21.
|
Notices.
|
30
|
|
22.
|
Miscellaneous.
|
31
|
Exhibits
A
- Legal
Descriptions of Parcel
B
- Deed
C
- Form
of Lease Assumption
D
- Form
of ▇▇▇▇ of Sale
E
- Form
of Contract and Permit Assignment
F
- Form
of FIRPTA Affidavit
G
- Form
of Tenant Estoppel Certificate
G
- 1
Form of Seller Estoppel Certificate
H
- Form
of SNDA
Schedules
|
1(a)(iv)
|
Personal
Property
|
|
1(b)
|
Excluded
Personal Property
|
|
6(a)(i)(E)
|
Rent
Rolls and Delinquency Reports
|
|
6(a)(i)(F)
|
Uncured
Defaults
|
|
6(a)(i)(G)
|
Service
Contracts
|
|
6(a)(i)(I)
|
Actions
and Investigations
|
|
6(a)(i)(J)
|
Condemnation
Actions
|
|
6(a)(i)(K)
|
Violation
of Governmental Regulations or Private Encumbrances
|
|
6(a)(i)(M)
|
Tax
Appeals and Special Assessments
|
|
6(a)(i)(N)
|
Tenant
Purchase Options
|
|
6(a)(i)(R)
|
Unpaid
Tenant Improvement Allowances
|
|
6(a)(i)(S)
|
Unpaid
Broker Commissions
|
|
7
|
Responsibilities
for Payment of Closing Costs
|
|
11(c)(iii)
|
Major
Tenants
|
DEFINED
TERMS
The
following capitalized terms are defined in the respective Section of the
Agreement identified below:
“Acceptable
Form”
-
as
such term is defined in Section
11(c)(ii).
“Additional
Deposit”
-
as
such term is defined in Section
4(e).
“Agreement”
-
as
such term is defined in the caption.
“Approval”
-
as
such term is defined in Section 8(a)(v).
“Approved
Institution”
-
as
such term is defined in Section
18(g).
“Approved
Investment”
-
as
such term is defined in Section
18(g).
“▇▇▇▇
of Sale”
-
as
such term is defined in Section
9(a)(iii).
“Business
Day´-
as
defined in Section
4(c).
“Closing”
-
as
such term is defined in Section
4(e).
“Closing
Date”
-
as
such term is defined in Section
4(e).
“Commitment”
-
as
that term is defined in Section
5(b).
“Confidential
Information”
-
as
that term is defined in Section
22(a).
“Contingency
Period”
-
as
such term is defined in Section
4(a).
“Contract
and Permit Assignment”
-
as
such term is defined in Section
9(a)(iv).
“Contracts”
-
as
such term is defined in Section
9(a)(iv).
“Deed”
-
as
such term is defined in Section
9(a)(i).
“Deposit”
-
as
such term is defined in Section
2(b).
“Designated
Employee”
-
as
such term is defined in Section
6(a)(ii).
“Disclosing
Party”
-
as
that term is defined in Section
22(a).
“Escrow”
-
as
such term is defined in Section
18(a).
“Hazardous
Material”
-
as
such term is defined in Section
12(f).
“Improvements”
-
as
such term is defined in the Background.
iii
“Investigations”
-
as
such term is defined in Section
16(d).
“Laws”
-
as
such term is defined in Section
16(a)(ii).
“Lease
Assumption”
-
as
such term is defined in Section
9(a)(ii).
“Lease
Year”
-
as
such term is defined in Section
3(b).
“Leases”
-
as
such term is defined in Section
1(a)(vi).
“Liens”
-
as
such term is defined in Section
5(c).
“Major
Tenants”
-
as
such term is defined in Section 11(c)(iii) and as are listed on Schedule
11(c)(iii).
“Notice
of Objection”
-
as
such term is defined in Section
18(e)(i).
“Seller(s)”
-
as
such terms are defined in the Background.
“Parcel(s)”
-
as
such terms are defined in the Background.
“Permits”
-
as
such term is defined in Section
1(a)(viii).
“Permitted
Exceptions”
-
as
such term is defined in Section
5(b).
“Personal
Property”
-
as
such term is defined in Section 1(a)(iv).
“Plans”
-
as
such term is defined in Section
1(a)(ix).
“Property”-
as
such terms are defined in the Background.
“Property
Information”
-
as
such term is defined in Section 6(a)(ii).
“Proposed
Transaction”
-
as
such term is defined in Section
22(d).
“Purchase
Price”
-
as
such term is defined in Section
2.
“Purchaser”
-
as
such term is defined in the caption.
“Purchaser’s
Documents”
-
as
such term is defined in Section 6(b)(i)(B).
“Purchaser’s
Representatives”
-
as
such term is defined in Section
17(b).
“Recipient”
-
as
that term is defined in Section
22(a).
“Seller”
-
as
such term is defined in the caption.
“Seller
Estoppel Certificate”
-
as
such term is defined in Section
11(c)(ii).
iv
“Seller’s
Documents”
-
as
such term is defined in Section 6(a)(i)(B).
“Seller’s
knowledge”
-
as
such term is defined in Section 6(a)(ii).
“Seller’s
Representatives”
-
as
such term is defined in Section
17(a).
“Service
Contracts”
-
as
such term is defined in Section
1(a)(vii).
“SNDA”
-
as
such term is defined in Section
11(e).
“Subject
Lease Year”
-
as
such term is defined in Section
3(b).
“Surviving
Obligations”
-
as
such term is defined in Section 6(a)(iii).
“Title
Company”
-
as
such term is defined in Section
5(a).
“Unacceptable
Encumbrances”
-
as
such term is defined in Section
5(c).
v
PURCHASE
AND SALE AGREEMENT
(this
“Agreement”),
dated
as of November 30, 2005 by and between, ST. AUGUSTINE OUTLET WORLD,
LTD.,
each
having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Seller”),
and PRIME
OUTLETS ACQUISITION COMPANY LLC,
having
an office c/o The Lightstone Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
(“Purchaser”).
BACKGROUND
Seller
owns fee simple title to the retail mall complex known as ▇▇▇▇ Outlets at
St.
Augustine (the “Mall”).
The
Mall consists of the real property more particularly described on Exhibit
A
annexed
hereto (the “Parcel”)
and
the buildings, improvements and other structures constructed on the Parcel
(the
“Improvements”).
The
Parcel, together with the Improvements located thereon and the items listed
in
Section
1(a)(iv)
shall be
referred to herein individually as the “Property,”
and
collectively as the “Property.”
Purchaser
has agreed to purchase the Property and other assets to be conveyed hereunder
in
their “AS-IS,
WHERE-IS, WITH ALL FAULTS”
condition and acknowledges that, except as expressly set forth in this
Agreement, Seller has made no representations or warranties to Purchaser
regarding the Property and other assets.
NOW,
THEREFORE,
in
consideration of ten ($10.00) dollars and the mutual covenants and agreements
hereinafter set forth, and intending to be legally bound, the parties agree
as
follows:
1. Sale.
(a) The
Property.
Seller
agrees to sell to convey to Purchaser, and Purchaser agrees to purchase from
Seller, at the price, upon the terms and subject to the conditions set forth
in
this Agreement, (i) the Parcel; (ii) the Improvements; (iii) all of Seller’s
right, title and interest in and to the easements, rights of way, reservations,
covenants, restrictions, privileges, appurtenances, development rights,
underground rights, water rights and other estates and rights, if any,
pertaining to the Parcel and the Improvements; (iv) all right, title and
interest in and to all equipment, fixtures, inventory and other tangible
personal property owned by Seller located on and used in connection with
the
operation of the Parcel and the Improvements as a retail mall complex, including
such items as are listed in Schedule
1(a)(iv)
(collectively, the “Personal
Property”),
but
excluding the items of personal property described in Section
1(b);
(v) all
right, title and interest, if any, in and to any strips and gores, alleys
adjoining the Parcel, and the land lying in the bed of any street, road or
avenue, opened or proposed, in front of or adjoining the Parcel to the center
line thereof; (vi) the interest of Seller as landlord in all leases, licenses
and other occupancy agreements encumbering the Property on the Closing Date
(collectively, the “Leases”);
(vii)
the service, supply, maintenance, utility and commission agreements, and
equipment leases with respect to the Property (collectively, the “Service
Contracts”),
to
the extent assignable; (viii) the licenses, permits, certificates, approvals,
authorizations, variances and other written authorizations from any governmental
or quasi-governmental authorities having jurisdiction necessary or desirable
for
the use, operation or ownership of the Property and in the possession or
control
of Seller (collectively, the “Permits”),
to
the extent assignable; (ix) all right, title and interest in plans and
specifications in the possession and control of Seller for the Improvements
(collectively, the “Plans”),
to
the extent assignable; and (x) all right, title and interest in warranties
in
the possession or control of Seller for such Improvements, to the extent
assignable.
(b) Excluded
Property.
Specifically excluded from the Property and this sale are all items of personal
property described in Schedule
1(b),
if
any.
2. Purchase
Price.
(a) Initial
Purchase Price.
Subject
to the provisions of paragraph (b) below, the purchase price to be paid by
Purchaser to Seller for the Property is Forty-Two Million Dollars
($42,000,000.00), (the “Purchase
Price”).
The
Purchase Price shall be payable as follows:
(i) Five
Hundred Thousand Dollars ($500,000.00) (the “Deposit”),
within two (2) Business Days following full execution and delivery of this
Agreement, and as a condition precedent to the effectiveness of this Agreement,
by a bank wire transfer of immediately available funds to an account designated
by the Escrow Agent; and
(ii) By
Buyer
paying on the Closing Date, by wire transfer to one or more accounts designated
by Seller, the amount of the Purchase Price less the Deposit.
3. Apportionments.
At
Closing, the following apportionments shall be made with respect to the Property
as of 11:59 p.m. on the day immediately preceding the Closing Date:
(a) Real
Estate and Personal Property Taxes.
Real
estate and personal property taxes shall be prorated for the calendar year
or
fiscal year, as the case may be, for which such taxes are assessed. Such
proration shall be calculated based upon the actual number of days in such
calendar year or fiscal year, as the case may be, with Seller being responsible
for that portion of such calendar or fiscal year occurring prior to midnight
of
the day prior to the Closing Date and Purchaser being responsible for that
portion of such calendar or fiscal year occurring on and after the Closing
Date.
All prorations shall be based upon the actual tax assessed and any discounts
or
penalties shall inure to the benefit of, or be borne by, Seller. If the real
estate and/or personal property tax rate and assessments have not been set
for
the calendar or fiscal year in which the Closing occurs, then the proration
of
such taxes shall be based upon the rate and assessments for the preceding
calendar or fiscal year, and such proration shall be adjusted between Seller
and
Purchaser upon presentation of written evidence that the actual taxes paid
for
the calendar or fiscal year in which the Closing occurs differ from the amounts
used at Closing in accordance with the provisions of Section
3(g).
Seller
shall pay all installments of special assessments due and payable prior to
the
Closing Date and Purchaser shall pay all installments of special assessments
due
and payable on and after the Closing Date; provided,
however,
that
Seller shall not be responsible for any installments of special assessments
which have not been finally assessed (even if Seller shall have received
notice
that such an assessment is contemplated) or which relate to projects that
have
not been completed on the date hereof.
2
(b) Rents.
All
collected rents and other payments from tenants, licensees or other occupants
under the Leases shall be prorated between Seller and Purchaser as of midnight
on the day prior to the Closing Date. Seller shall be entitled to all rents,
charges, and other revenue of any kind attributable to any period under the
Leases to but not including the Closing Date. Purchaser shall be entitled
to all
rents, charges and other revenue of any kind attributable to any period under
the Leases on and after the Closing Date. Minimum rent, percentage only rent
and
additional rent shall be prorated for the month in which Closing occurs.
Percentage rent (as contrasted to percentage only rent) shall be apportioned
on
a Lease-by-Lease basis as follows: (i) subject to the balance of this
subparagraph, Seller shall retain all percentage rent payments received by
it on
and prior to the Closing Date and Purchaser shall retain all percentage rent
payments received by it after the Closing Date; (ii) on the Closing Date,
Seller
shall deliver to Purchaser a statement of all percentage rent collected by
Seller with respect to the Subject Lease Year on a Lease-by-Lease basis along
with a copy of the percentage rent invoices and sales reports which support
those collections; (iii) for each Lease, not later than forty-five (45) days
after the date that gross sales for the Subject Lease Year are finally
determined, Purchaser shall deliver to Seller a statement of all percentage
rent
collected by Purchaser with respect to that Lease along with a copy of the
annual reconciliation of percentage rent owed under the applicable Lease
for the
Subject Lease Year and the related sales information backup; and, (iv) for
each
Lease, within fifteen (15) days after the date the statement and reconciliation
described in subsection
(iii)
above is
delivered to Seller, Purchaser shall pay to Seller or Seller shall pay to
Purchaser, whichever is applicable, the positive difference between (A) the
total percentage rent collected by that party with respect to the Subject
Lease
Year and (B) the product of (1) the average daily percentage rent received
with
respect to the Subject Lease Year after taking into account the annual
reconciliation and (2) the actual number of days that party was the Owner
of the
Property during the Subject Lease Year (with Purchaser being deemed to be
the
owner as of the Closing Date). For example, if the tenant’s Lease Year runs from
February 1 to January 31, the Closing Date occurs on February 16, 2006, Seller
collects $0 percentage rent for the Subject Lease Year, and Purchaser collects
$700,000 percentage rent for the Subject Lease Year, then Purchaser shall
pay to
Seller $28,767.12 ($700,000 - ($1,917.811
x 15
days)). As used herein, the term "Lease
Year"
means
the twelve (12) month period as to which annual percentage rent is owed under
each Lease and “Subject
Lease Year”
means,
for each Lease, the Lease Year in which the Closing Date occurs. Seller
shall be entitled to continue or commence audits of percentage rent and
percentage only rent under the Leases for the Lease Year immediately prior
to
the Subject Lease Year, and shall have the right to settle the same in its
sole
discretion.
3
Rents,
CAM charges, utility charges, tax charges and other revenue or reimbursements
due landlord under the Leases not collected as of the Closing Date shall
not be
prorated at the time of Closing, but for a period of twelve (12) months after
the Closing Date, Purchaser shall make a reasonable, good faith effort to
collect the same on Seller’s behalf by invoicing delinquent tenants on a monthly
basis for all past due amounts (which obligation shall survive the Closing
and
shall not be merged in the Deed); provided,
however,
that
Purchaser shall have no obligation (unless Purchaser elects in its sole
discretion) to enforce its rights under the Leases in a court of law or equity,
to threaten such enforcement, or to commence any action or proceeding whatsoever
to enforce its rights under the Leases. All rents, CAM charges, utility charges,
tax charges and other reimbursements due landlord under the Leases collected
by
Purchaser on or after the Closing Date shall first be applied to all amounts
due
under the Leases at the time of collection for periods from and after the
Closing Date (i.e.,
current
rents and any other sums due Purchaser as the current Owner and landlord),
next
to the actual costs incurred by Purchaser to third parties in collecting
these
amounts, with the balance (if any) payable to Seller promptly upon receipt
for
rents and any other sums due prior to the Closing Date, to be applied in
reverse
chronological order of the date on which same became due. Seller may not
bring
suit against any such tenant to collect any such sums unless the tenant is
a
tenant in other shopping centers owned by Seller or an affiliate of Seller,
in
which case Seller shall be permitted to bring suit against that tenant. In
no
event shall Seller seek or threaten eviction of any tenant in the Property.
Purchaser shall receive a credit against the Purchase Price for pre-paid
rentals
held by Seller covering the period post-Closing. Advertising or marketing
funds
collected by Seller prior to Closing, net of expenses not assumed by Purchaser,
will be credited against the Purchase Price at Closing. Notwithstanding anything
herein to the contrary, Seller shall retain all rights and claims against
tenants and former tenants in bankruptcy which are no longer in possession
at
the Property.
(c) Operating
Expenses.
Operating expenses for the Property shall be prorated as of 11:59 p.m. of
the
day prior to the Closing Date. Seller shall pay all utility charges and other
operating expenses attributable to the Property (such as amounts due under
the
Service Contracts) to, but not including the Closing Date, and Purchaser
shall
pay all utility charges and other operating expenses attributable to the
Property on or after the Closing Date. To the extent that the amount of actual
utility consumption, other operating expenses or revenues are not determined
prior to the Closing Date, a proration shall be made at Closing based on
the
last available reading, in the case of utility consumption, or on the last
▇▇▇▇
or receipt, and post-Closing adjustments between Purchaser and Seller shall
be
made ninety (90) days following the Closing Date, which obligation shall
survive
the Closing and shall not be merged in the Deeds and Seller will be entitled
to
all rights with respect thereto. Seller shall not assign to Purchaser any
deposits which Seller has with any of the utility services or companies
servicing the Property, and Seller will be entitled to all rights with respect
thereto. Purchaser shall arrange with such services and companies to have
accounts opened in Purchaser’s name beginning at 12:01 a.m. on the Closing
Date.
4
(d) Security
Deposits.
At
Closing, Seller shall account to Purchaser for, and give Purchaser a credit
against the Purchase Price for the Property in the aggregate amount of, the
unapplied cash security deposits then held by Seller under the Leases and
any
interest required by law or the applicable Lease to be accrued thereon. At
Closing, Purchaser shall assume liability for, and indemnify and hold Seller
harmless from and against claims relating to, all unapplied cash security
deposits so credited. Following Closing, Seller shall assume liability for,
and
indemnify and hold Purchaser harmless from and against claims relating to,
any
unapplied cash security deposits not so credited. If any security deposit
is
held in the form of a letter of credit, the original letter of credit will
be
assigned and delivered to Purchaser at Closing together with any other documents
required to effect the transfer to Purchaser at Closing. The obligations
of the
parties pursuant to this Section
3(d)
shall
survive Closing and shall not be merged in the Deeds.
(e) New
Leases.
At
Closing, Purchaser shall reimburse Seller, or assume liability for, and
indemnify and hold Seller harmless from and against, all brokerage and other
costs and expenses, including without limitation, incentives, tenant improvement
costs, allowances and other inducements, paid or payable on account of (i)
leases entered into following the execution of this Agreement which are approved
by Purchaser pursuant to Section
11(b)
and (ii)
renewals of existing leases.
(f) Apportionment
Credit.
In the
event the apportionments to be made at the Closing result in a credit balance
(i) to Purchaser, such sum shall be paid at the Closing by giving Purchaser
a credit against the Purchase Price in the amount of such credit balance,
or
(ii) to Seller, Purchaser shall pay the amount thereof to Seller at the
Closing by wire transfer of immediately available funds to the account or
accounts to be designated Seller for the payment of the Purchase
Price.
(g) Delayed
Adjustment.
If at
any time following the Closing Date, any adjustment under any subsection
of this
Section
3
shall
prove to be incorrect (whether as a result in an error in calculation or
a lack
of complete and accurate information as of the Closing), the party in whose
favor the error was made shall promptly pay to the other party the sum necessary
to correct such error upon receipt of proof of such error, provided that
such
proof is delivered to the party from whom payment is requested within twelve
(12) months after the Closing Date for all adjustments other than the adjustment
of percentage rent, which adjustment shall be made when the calculation and
payment thereof has been made, and in any event, within sixteen (16) months
following the Closing Date. The provisions of this Section
3(g)
shall
survive the Closing and shall not be merged in the Deeds.
(h) Purchaser’s
Investigations.
Purchaser shall pay for Purchaser’s Investigations and any other due diligence
performed by Purchaser with respect to the Property.
(i) Attorneys’
Fees.
Purchaser and Seller shall each be responsible for paying its own attorneys’,
consultants’ and other professionals’ fees in connection with this transaction.
5
(j) CAM
Audits.
Seller
shall remain responsible for, and shall control, any audits of CAM charges
for
periods prior to the year of the Closing Date, and shall have the right to
settle the same in its sole discretion. Purchaser shall cooperate with Seller
to
the extent required and shall make any books and records assigned hereunder
available to Seller in connection with any such audit.
(k) Unpaid
Tenant Allowances.
Seller
shall remain responsible for payment of the unpaid tenant allowances listed
on
Schedule
6(a)(i)(R),
if the
tenants listed thereon become entitled at any time after the Closing Date
to
collect these allowances pursuant to the terms of their respective leases,
and
Seller shall indemnify Purchaser for these amounts. Purchaser shall make
no
payment to a tenant for any amounts listed on Schedule
6(a)(i)(R)
without
Seller’s written authorization. If a tenant makes a claim for an unpaid
allowance, Purchaser shall promptly notify Seller and provide Seller with
any
correspondence and supporting documentation provided by the tenant, and Seller
shall be entitled to determine whether the tenant has complied with its
obligation under its Lease. The provisions of this Section
3(k)
shall
survive the Closing and shall not be merged in the Deeds. If a tenant listed
on
Schedule
6(a)(i)(R)
provides
an estoppel certificate pursuant to Section
11(c)
claiming
the allowance and complies with all obligations under its Lease required
to
collect the allowance, then Seller shall pay the allowance at or prior to
Closing, and Schedule
6(a)(i)(R)
shall be
revised to reflect the payment made. If a tenant listed on Schedule
6(a)(i)(R)
provides
an estoppel certificate pursuant to Section
11(c)
claiming
the allowance but does not comply with all obligations under its Lease required
to collect the allowance, then at Closing Seller shall escrow with Purchaser’s
lender the amount of the allowance for a period of ninety (90) days to permit
the tenant to comply with the requirements for collection. If the tenant
complies within that ninety (90) day period, the escrowed amount shall be
released to the tenant and Schedule
6(a)(i)(R)
shall be
revised to reflect the payment made. If the tenant does not comply, the escrowed
amount shall be returned to Seller, and Seller’s indemnity with respect to that
allowance shall remain in full force and effect.
4. Seller’s
and Purchaser’s Termination Rights; Closing Date.
(a) Seller’s
Right to Terminate.
If
Seller is unable to obtain the approval of the transaction contemplated hereby
by the partners of Seller, then Seller shall have the right to terminate
this
Agreement by giving written notice thereof to Purchaser, on or before 5:00
p.m.
Eastern Daylight Time on December 16__, 2005 (such period from the
execution hereof to such time and date, the “Contingency
Period”).
If
Seller terminates the Agreement pursuant to this Section
4(a),
the
Deposit shall be returned to Purchaser, and thereafter neither Seller nor
Purchaser shall have further rights, liabilities or obligations hereunder,
except for Surviving Obligations. If Seller shall not have provided Purchaser
with notice of its termination hereof prior to the expiration of the Contingency
Period:
(i) Seller
shall be deemed to have irrevocably waived the right of termination granted
under Section
4(a)
and to
have made the representation set forth in Section 6(a)(i)(B) below without
exception for the approval of the partners of Seller; and
6
(ii) after
such date, Seller shall have no further right to terminate this Agreement,
except as expressly set forth herein.
(b) Purchaser’s
Right to Terminate
If
Purchaser is not satisfied with the results of its engineering and environmental
investigations of the Property because of finding engineering and/or
environmental defects that, in Purchaser’s reasonable judgment, may be expected
to cost more then $500,000 in the aggregate to rectify, Purchaser shall have
the
right to terminate this Agreement by giving written notice thereof to Seller,
together with copies of such investigations, on or before 5:00 p.m. Eastern
Daylight Time on December 19, 2005 (such period from the execution hereof
to such time and date, the “Contingency
Period”).
If
Purchaser terminates the Agreement pursuant to this Section
4(b),
the
Deposit shall be returned to Purchaser, and thereafter neither Seller nor
Purchaser shall have further rights, liabilities or obligations hereunder,
except for Surviving Obligations. If Purchaser shall not have provided Seller
with notice of its termination hereof prior to the expiration of the Contingency
Period:
(i) Purchaser
shall be deemed to have irrevocably waived the right of termination granted
under Section
4(b);
and
(ii) after
such date, Purchaser shall have no further right to terminate this Agreement,
except as expressly set forth herein.
(c) Closing.
The
delivery of the Deeds and the consummation of the transactions contemplated
by
this Agreement (the “Closing”)
shall
take place at the offices of Seller’s attorney, at 10:00 A.M. on or before
February 28, 2006 (such date, as it may be extended pursuant to the terms
of
this Agreement, the “Closing
Date”).
As
used herein, a “Business
Day”
shall
be any day other than (i) a Saturday or a Sunday, or (ii) a day on which
national banks in New York, New York are not open for business. Purchaser
shall
have the right to extend the originally-scheduled Closing Date for one
additional period of up to thirty (30) days in order to complete its financing
by giving Seller written notice thereof prior to the then-scheduled Closing
Date.
5. Title.
(a) Good
and Marketable Title.
It
shall be a condition to Purchaser’s obligation to close on the Property (which
may be waived in whole or in part by Purchaser), that title to the Property
shall be good and marketable, free and clear of liens and encumbrances except
the Permitted Exceptions, insurable at regular rates by a national title
insurance company selected by Purchaser (the “Title
Company”)
in the
amount of the Purchase Price, insuring that fee simple title to the Property
is
vested in Purchaser subject only to the Permitted Exceptions (defined below).
7
(b) Title
Commitments.
Purchaser shall obtain from the Title Company a title commitment (the
“Commitment”)
with
respect to the Property. Not later than the date that is ten (10) days after
receipt by Purchaser of the Commitment, Purchaser or Purchaser’s counsel shall
deliver a letter setting forth Purchaser’s objections to the exceptions to title
listed on Schedule B to the Commitment. Unless Purchaser shall object to
any
such exception on or before the date that is ten (10) days from the date
of
receipt by Purchaser of the Commitment, Purchaser shall be deemed to have
consented to all exceptions to title on Schedule B to the Commitment. Seller
shall convey or cause to be conveyed and Purchaser shall accept title to
the
Property subject to (i) rights of tenants in possession under the Leases
as
tenants only, (ii) applicable zoning and building ordinances and land use
regulations provided they do not interfere with the use and occupancy of
the
Property as a retail shopping center, (iii) such exceptions to title as are
listed on Schedule B-II to any Commitment (unless objected to as provided
above), (iv) the Lien of taxes not yet due and payable, (v) any exceptions
caused by Purchaser, its agents, representatives or employees, and (vi) any
other exceptions (such as utility easements) that do not affect the value
of the
Property or its use as a retail mall complex provided they are reasonably
acceptable to Purchaser’s lender (the foregoing exceptions described in
subsections
(i) - (vi)
being
herein collectively called the “Permitted
Exceptions”).
(c) Unacceptable
Encumbrances.
Any
title exceptions which are timely objected to by Purchaser shall be herein
collectively called the “Unacceptable
Encumbrances.”
Seller
may elect (but shall not be obligated except as otherwise provided in this
Agreement) to remove, or cause to be removed at its expense, any Unacceptable
Encumbrances, and shall be entitled to a reasonable adjournment of the Closing
(not to exceed thirty (30) days) for the purpose of such removal. Seller
shall
notify Purchaser in writing within ten (10) Business Days after receipt of
Purchaser’s notice of Unacceptable Encumbrances whether Seller elects to remove
the same. Seller shall be deemed to have elected not to remove the applicable
item if Seller does not so notify Purchaser of such election within such
ten
(10) Business Day period. If Seller is unable, or elects not to remove or
endorse over any Unacceptable Encumbrances, or does not remove the Unacceptable
Encumbrance to Purchaser and its lender’s reasonable satisfaction, Purchaser may
elect, in its sole discretion, as its sole and exclusive remedy, either
(i) to terminate this Agreement by notice to Seller pursuant to
Section
15(a),
in
which event the provisions of Section
15(a)
shall
apply, or (ii) to take such title as Seller can convey without abatement
of or
credit against the Purchase Price. Notwithstanding the foregoing, Seller
agrees
to satisfy or defease mortgages (real estate taxes, water and sewer charges,
assessments, judgments against Seller or other liens (collectively, the
“Liens”)
secured by or affecting the Property which can be satisfied by payment of
liquidated sums, or bond against the same, and shall deliver to Purchaser
or the
Title Company, at Closing, instruments in recordable form and sufficient
to
satisfy such Liens or other encumbrances of record, together with the cost
of
recording or filing said instruments, or a bond therefor.
6. Representations
and Warranties.
(a) Seller’s
Representations.
(i) Seller
represents and warrants to Purchaser as follows:
8
A. Seller
is
duly formed and validly existing under the laws of the State of its formation
and is qualified to conduct business under the laws of the state in which
the
Property is located.
B. Subject
to the approval of the partners of Seller as provided in Section 4(a) above,
Seller has the full legal right, power and authority to execute and deliver
this
Agreement and all documents now or hereafter to be executed by Seller pursuant
to this Agreement (collectively, the “Seller’s
Documents”),
to
consummate the transaction contemplated hereby, and to perform their obligations
hereunder and under Seller’s Documents. Seller is the sole owner of the fee
simple title to the Property owned by it as set forth on Exhibit
A.
C. Subject
to the terms of this Agreement, this Agreement and Seller’s Documents have been
duly authorized by all requisite action on the part of Seller, and are the
valid
and legally binding obligations of Seller, enforceable in accordance with
their
respective terms.
D. This
Agreement and Seller’s Documents do not and will not contravene any provisions
of the bylaws, partnership agreements or operating agreements of Seller,
or any
judgment, order, decree, writ or injunction issued against Seller, or to
the
knowledge of Seller, any provision of any Laws applicable to Seller, except,
in
each case, where consents thereto have been obtained. The consummation of
the
transactions contemplated hereby will not result in a breach or constitute
a
default or event of default by Seller under any agreement to which Seller
or any
of its or their assets are subject or bound, except where consents thereto
have
been obtained, and will not result in a violation of any Laws applicable
to
either Seller.
E. To
the
best knowledge of Seller, the rent roll and delinquency reports attached
hereto
as Schedule
6(a)(i)(E)
for the
Property are accurate in all material respects as of the date thereof. Neither
Seller has received any advance payment of rent (other than the current month)
on account of any Leases except as set forth on Schedule
6(a)(i)(E).
F. To
the
best knowledge of Seller, the Leases, Permits and other documents made available
for Purchaser’s review in Seller’s management offices are true, correct and
complete in all material respects. Each Lease is in full force and effect
and
has not been amended except as set forth in Schedule
6(a)(i)(E).
Neither
Seller has entered into any written or oral lease, nor any agreement to lease
any portion of its Property except as set forth in Schedule
6(a)(i)(E).
Except
as set forth in Schedule
6(a)(i)(F),
Seller
has not received or given any notice of a default under the Leases which
has not
been cured.
9
G. To
the
best knowledge of Seller,
Schedule 6(a)(i)(G)
lists
all Service Contracts, broker agreements and other contracts affecting the
Property which will be binding upon Purchaser after the Closing, and the
copies
of these documents provided to Purchaser are true, correct and complete in
all
material respects. Each of the Service Contracts listed in Schedule
6(a)(i)(G)
is in
full force and effect and has not been assigned, modified, amended or rescinded
except as specified in Schedule
6(a)(i)(G).
Seller
has not received or given notice of a default under the Service Contracts
which
has not been cured.
H. There
are
no employees of Seller and no employee benefit plans for which Purchaser
will be
responsible on or after the Closing Date, and there are no union contracts
with
employees of the Property.
I. There
is
no pending action, suit, proceeding or investigation to which Seller is a
party
before any court or other governmental authority with respect to the Property
which is likely to have a material adverse impact on the transactions
contemplated hereby or any Property except as set forth on Schedule
6(a)(i)(I),
and
Seller has no knowledge of any of the same being threatened against either
Seller or any Property.
J. To
the
best knowledge of Seller, there are no pending condemnation proceedings that
affect all or any portion of any Property and Seller has not received any
written notice from any condemning authority threatening a condemnation
proceeding that would affect all or any portion of the Property, except as
set
forth in Schedule 6(a)(i)(J).
K. To
the
best knowledge of Seller, Seller has not received written notice from any
governmental authority requiring the correction of any condition with respect
to
all or any part of the Property by reason of a violation of any Law except
as
set forth in Schedule 6(a)(i)(K).
Except
as set forth in Schedule 6(a)(i)(K),
Seller
has not received written notice of any pending or (to Seller’s knowledge)
threatened judicial or administrative action by adjacent land Seller or other
persons or with respect to any easements or other recorded instruments
encumbering the Property.
10
L. To
the
best knowledge of Seller, Seller has not received any summons, citation,
directive, notice of violation, letter, or other related communication from
the
United States Environmental Protection Agency or State Department of
Environmental Protection or other governmental body responsible for
administering or enforcing environmental laws relating to Seller or the
Property, except as set forth in Schedule 6(a)(i)(K).
There
are no pending requests for information or inquiries from any governmental
authority or any investigations, actions, suits, claims, or proceedings relating
to Hazardous Materials in or on the Property except as set forth in Schedule 6(a)(i)(K).
During
the time period of Seller’s ownership of the Property, to Seller’s knowledge,
and except as disclosed in any environmental report provided to or obtained
by
Purchaser relating to the Property, the Property has been used for the
production, deposit, generation, transportation, storage, treatment, or disposal
of any Hazardous Materials contrary to applicable Laws, and no Hazardous
Materials were disposed of on, in, or at the Property contrary to applicable
Laws.
M. Seller
has not instituted any tax appeals except as set forth in Schedule 6(a)(i)(M),
nor has
Seller received written notice of any pending special assessments that affect
the Property except as set forth in Schedule
6(a)(i)(M).
N. Seller
has not entered into any other agreement or option to sell the Property or
any
portion thereof other than this Agreement, and no tenant has any option to
purchase any portion of the Property except as disclosed in Schedule
6(a)(i)(N).
O. Seller
has good title to the Personal Property owned by it and listed in Schedule
1(a)(iv).
P. Seller
has not (1) commenced a voluntary case, or had entered against it a petition,
for relief under any federal bankruptcy act or any similar petition, order
or
decree under any federal or state law or statute relative to bankruptcy,
insolvency or other relief for debtors; (2) caused, suffered or consented
to the
appointment of a receiver, buyer, administrator, conservator, liquidator,
or
similar official in any federal, state, or foreign judicial or non-judicial
proceeding, to hold, administer and/or liquidate all or substantially all
of its
assets; or (3) made an assignment for the benefit of creditors.
Q. Seller
is
not a “foreign person” as that term is defined in the Federal Foreign Investment
in Real Property Tax Act of 1980 or the 1984 Tax Reform Act, as
amended.
R. No
unpaid
tenant improvement allowances are due under the Leases except as set forth
on
Schedule
6(a)(i)(R).
11
S. No
commissions are due or will become due to any broker on account of any of
the
Leases for terms currently in effect except as set forth on Schedule
6(a)(i)(S).
(ii) As
used
herein, “the best knowledge of the Seller” shall mean the actual knowledge of
▇▇▇▇▇▇ ▇▇▇▇▇▇, after due inquiry of the property manager for the
Property.
(iii) The
representations and warranties of Seller set forth in Section 6(a)(i)
shall be
true, accurate and correct in all material respects upon the execution of
this
Agreement (except for intervening changes in fact that do not constitute
a
breach by Seller of any of its covenants hereunder) and shall be updated
by
Seller on and as of the Closing Date. The representations and warranties
of
Seller set forth in this Agreement shall remain operative and shall survive
for
a period of one hundred eighty (180) days following the Closing Date, and
shall
not be merged therein for such period, and no action or claim based thereon
shall be commenced after such period unless the factual basis of the claim
or
cause of action asserted in the action was first identified with reasonable
clarity in a written notice delivered to Seller not later than one hundred
eighty (180) days following the Closing Date.
(b) Purchaser’s
Representations.
(i) Purchaser
represents and warrants to Seller as follows:
A. Purchaser
is a duly formed and validly existing limited liability company under the
laws
of the State of Delaware, and as of the Closing Date shall be qualified under
the laws of the state in which the Property is located to conduct business
therein.
B. Purchaser
has the full legal right, power, authority and financial ability to execute
and
deliver this Agreement and all documents now or hereafter to be executed
by it
pursuant to this Agreement (collectively, the “Purchaser’s
Documents”),
to
consummate the transactions contemplated hereby, and to perform its obligations
hereunder and under Purchaser’s Documents.
C. This
Agreement and Purchaser’s Documents have been duly authorized by all requisite
corporate action on the part of Purchaser, and are the valid and legally
binding
obligations of Purchaser, enforceable in accordance with their respective
terms.
D. This
Agreement and Purchaser’s Documents do not and will not contravene any provision
of the articles and bylaws of Purchaser, any judgment, order, decree, writ
or
injunction issued against Purchaser, or any provision of any Laws applicable
to
Purchaser. The consummation of the transactions contemplated hereby will
not
result in a breach or constitute a default or event of default by Purchaser
under any agreement to which Purchaser or any of its assets are subject or
bound
and will not result in a violation of any Laws applicable to
Purchaser.
12
E. Purchaser
has no knowledge as of the date hereof of pending actions, suits, proceedings
or
investigations to which Purchaser is a party before any court or other
governmental authority which is likely to have a material adverse impact
on the
transactions contemplated hereby.
(ii) The
representations and warranties of Purchaser set forth in Section
6(b)(i)
and
elsewhere in this Agreement shall be true, accurate and correct in all material
respects upon the execution of this Agreement, shall be deemed to be repeated
on
and as of the Closing Date and shall survive the Closing for a period of
one
hundred eighty (180) days and shall not be merged therein for such period,
and
no action or claim based thereon shall be commenced after such period unless
the
factual basis of the claim or cause of action asserted in the action was
first
identified with reasonable clarity in a written notice delivered to Purchaser
not later than one hundred eighty (180) days after the Closing.
7. Closing
Costs.
All
costs and expenses in connection with the transaction contemplated by this
Agreement (including documentary taxes, transfer taxes, stamp taxes, recording
taxes and fees, title search fees, and title insurance premiums, but
specifically excluding legal, consulting and other professional fees or costs,
which each party shall bear individually, or the costs of Investigations,
which
Purchaser shall bear) shall be apportioned between Purchaser and Seller in
accordance with Schedule
7.
This
Section
7
shall
survive the Closing (and shall not be merged in the Deeds) or earlier
termination of this Agreement.
8. Conditions
Precedent to Closing.
(a) Purchaser
Conditions.
Purchaser’s obligation under this Agreement to purchase the Property is subject
to the fulfillment of each of the following conditions, subject, however
to the
provisions of Section
8(c):
(i) The
representations and warranties of Seller contained herein shall be materially
true, accurate and correct as of the Closing Date;
(ii) Seller
shall have delivered all the documents and other items required by Section
9
(including without limitation estoppel certificates that comply with the
provisions of Section
11(c))
and
shall have performed in all material respects all other covenants, undertakings
and obligations, and complied in all material respects with all conditions
required by this Agreement to be performed or complied by Seller at or prior
to
the Closing.
(iii) Title
to
the Property shall be as required under this Agreement; and
13
(iv) On
or
prior to the Closing Date, (A) Seller shall not have applied for or consented
to
the appointment of a receiver, trustee or liquidator for itself or any of
its
assets unless the same shall have been discharged prior to the Closing Date,
and
no such receiver, liquidator or trustee shall have otherwise been appointed,
unless same shall have been discharged prior to the Closing Date; (B) Seller
shall not have admitted in writing an inability to pay its debts as they
mature;
(C) Seller shall not have made a general assignment for the benefit of
creditors; (D) Seller shall not have been adjudicated a bankrupt or insolvent,
or had a petition for reorganization granted with respect to Seller; and
(E)
Seller shall not have filed a voluntary petition seeking reorganization or
an
arrangement with creditors or taken advantage of any bankruptcy, reorganization,
insolvency, readjustment or debt, dissolution or liquidation law or statute,
or
filed an answer admitting the material allegations of a petition filed against
it in any proceedings under any such law, or had any petition filed against
it
in any proceeding under any of the foregoing laws unless the same shall have
been dismissed, cancelled or terminated prior to the Closing Date.
(b) Seller’s
Conditions.
Seller’s obligation under this Agreement to sell the Property to Purchaser are
subject to the fulfillment of each of the following conditions, subject,
however
to the provisions of Section
8(c):
(i) The
representations and warranties of Purchaser contained herein shall be materially
true, accurate and correct as of the Closing Date;
(ii) Purchaser
shall have delivered the Purchase Price and other funds required hereunder
and
all the documents to be executed by Purchaser set forth in Section
10;
and
(iii) On
or
prior to the Closing Date, (A) Purchaser shall not have applied for or consented
to the appointment of a receiver, trustee or liquidator for itself or any
of its
assets unless the same shall have been discharged prior to the Closing Date,
and
no such receiver, liquidator or trustee shall have otherwise been appointed,
unless same shall have been discharged prior to the Closing Date; (B) Purchaser
shall not have admitted in writing an inability to pay its debts as they
mature;
(C) Purchaser shall not have made a general assignment for the benefit of
creditors; (D) Purchaser shall not have been adjudicated a bankrupt or
insolvent, or had a petition for reorganization granted with respect to
Purchaser; and (E) Purchaser shall not have filed a voluntary petition
seeking reorganization or an arrangement with creditors or taken advantage
of
any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution
or
liquidation law or statute, or filed an answer admitting the material
allegations of a petition filed against it in any proceedings under any such
law, or had any petition filed against it in any proceeding under any of
the
foregoing laws unless the same shall have been dismissed, cancelled or
terminated prior to the Closing Date.
14
(c) Remedies.
In the
event that any condition contained in Section
8(a)
or
(b)
is not
satisfied, the party entitled to the satisfaction of such condition as a
condition to its obligation to close title hereunder shall have as its sole
remedy hereunder the right to elect to (i) waive such unsatisfied condition,
whereupon title shall close as provided in this Agreement without abatement
of
the Purchase Price, or (ii) terminate this Agreement pursuant to Section
15(a)
or
(b),
as
applicable. By closing, Purchaser and Seller shall be conclusively deemed
to
have waived the benefit of any remaining unfulfilled conditions set forth
in
Sections
8(a)
or
(b),
respectively.
9. Deliveries
by Seller at Closing.
(a) Seller’s
Deliveries.
At the
Closing, Seller, shall execute, acknowledge and/or deliver, as applicable,
the
following to Purchaser or the Title Company:
(i) A
deed
sufficient under the law of the state in which the Property is located to
convey
title to such Property to Purchaser with special warranty covenants (or the
equivalent), substantially in the form of Exhibit
B
(each, a
“Deed”).
(ii) An
assignment and assumption of the Leases for the Property, including all
unapplied cash security deposits accounted for by Seller (each, a “Lease
Assumption”),
substantially in the form of Exhibit
C
(with
such revisions as are necessary to have such Lease Assumption comply with
the
law of the state in which such Property is located) assigning Seller’s interest
in the Leases.
(iii) A
▇▇▇▇ of
sale in the form of Exhibit
D
(the
“▇▇▇▇
of Sale”),
conveying, transferring and selling to Purchaser without warranty or
representation all right, title and interest of Seller in and to all Personal
Property with respect to the Property.
(iv) An
Assignment and Assumption of Contracts and Permits, in the form of Exhibit
E
(the
“Contract
and Permit Assignment”),
assigning without warranty or representation all of Seller’s right, title and
interest, if any, in and to (A) all of the assignable Permits, and (B) all
assignable Service Contracts relating to the operation of the Property, and
(collectively, the “Contracts”).
Seller shall not assign any existing management agreements or any contracts
or
policies of insurance for the Property.
(v) An
updated rent roll and delinquency report as of a date not more than 30 days
prior to the Closing Date, with a date down of changes through the Closing
Date
(or, at Seller’s option, an updated rent roll and delinquency report as of the
date of Closing) which will reflect only changes in the ordinary course pursuant
to Section
11,
certified as true and correct to the knowledge of Seller.
(vi) A
memo to
the tenants under the Leases and vendors under any Service Contracts notifying
them of the sale of the Property to Purchaser and advising that all future
payments of rent and other payments due under the Leases and any invoices
or
▇▇▇▇▇▇▇▇ under the Service Contracts are to be sent to Purchaser at the address
of Purchaser specified in Section
21.
15
(vii) Estoppel
Certificates received pursuant to Sections
11(c)
below,
provided that Seller shall deliver the minimum estoppel certificates required
pursuant to subparagraph (iii) of Section 11(c) not later than three (3)
Business Days prior to the Closing Date.
(viii) Any
documents Seller is required to provide pursuant to Section
6(a).
(ix) Copies
of
terminations of the management agreements and Service Contracts not assumed
by
Purchaser unless Purchaser is permitted and chooses to assume any such
agreement.
(x) A
certificate of Seller re-certifying the representations and warranties set
forth
in Section
6(a)(i)
as of
the Closing Date.
(xi) A
“FIRPTA” affidavit sworn to by Seller in the form of Exhibit
F
annexed
hereto. Purchaser acknowledges and agrees that upon Seller’s delivery of such
affidavit, Purchaser shall not withhold any portion of the Purchase Price
pursuant to Section 1445 of the Internal Revenue Code of 1986, as
amended.
(xii) (A)
Copies of the resolution of Seller authorizing the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated by this Agreement certified as true and correct by an authorized
representative of Seller as of the date of Closing; (B) a good standing or
incumbency certificate issued by the state in which Seller is organized and
the
state in which the Property is located, if different, each dated within
thirty (30) days of the Closing Date; (C) an incumbency certificate
executed by an authorized representation of Seller with respect to those
officers of Seller executing any documents or instruments in connection with
the
transactions contemplated herein.
(xiii) Duly
completed and signed real estate transfer tax returns if required by the
governmental authorities in the state in which the Property is
located.
(xiv) Title
Affidavits in customary form, including gap indemnity if customarily provided
in
any jurisdiction in which Property is located and required by the Title
Company.
(xv) A
settlement statement setting forth the apportionments required by Section
3
(and
Seller shall deliver to Purchaser a draft settlement statement three (3)
Business Days prior to the Closing Date).
(xvi) Access
to
the on-site management offices for the Property (where keys to all locks
that
are in Seller’s possession with respect to the Property and other
Property-specific information are kept).
16
(xvii) All
other
documents which Seller is required to deliver pursuant to the provisions
of this
Agreement or
that
Purchaser reasonably requests in order to effectuate the conveyance of the
Property; provided that any documents requested by Purchaser do not impose
any
additional obligations on Seller.
10. Deliveries
by Purchaser at Closing.
(a) At
the
Closing, Purchaser shall execute, acknowledge and/or deliver, as applicable,
the
following to Seller:
(i) The
Lease
Assumption, assuming all of each Seller’s obligations and liabilities under the
relevant Leases including unapplied cash security deposits accounted for
by
Seller.
(ii) The
Contract and Permit Assignment, assuming all of Seller’s right, title and
interest, if any, in and to the Contracts and Permits.
(b) At
the
Closing, Purchaser shall execute, acknowledge and/or deliver, as applicable,
the
following to Seller:
(i) The
Purchase Price, subject to apportionments, credits and adjustments as provided
in this Agreement.
(ii) (A)
copies of the certificate of formation and operating agreement of Purchaser
and
of the consent of the members of Purchaser authorizing the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated by this Agreement, certified as true and correct by an authorized
representative of Purchaser; (B) a good standing certificate issued by the
state
of formation of Purchaser, dated within thirty (30) days of the Closing Date;
and (C) an incumbency certificate executed by an authorized representative
of
Purchaser with respect to those officers of Purchaser executing any documents
or
instruments in connection with the transactions contemplated
herein.
(iii) If
applicable, duly completed and signed real estate transfer tax
returns.
(iv) A
Settlement Statement.
(v) All
other
documents Purchaser is required to deliver pursuant to the provisions of
this
Agreement or that Seller reasonably requests in order to effectuate the
conveyance of the Property; provided, that any documents requested by Seller
do
not impose any additional obligations on ▇▇▇▇▇▇▇▇▇.
▇▇
▇▇. Covenants.
(a) Conduct
of Seller’s Business Prior
to Closing.
During
the period between the date of this Agreement and the Closing Date, except
as
specifically contemplated by this Agreement, or consented to in writing by
Purchaser, Seller will:
(i) Continue
to operate, manage, lease and maintain the Property in the usual, regular
and
ordinary course and in substantially the same manner as heretofore, subject
to
ordinary wear and tear;
(ii) Perform
all of the landlord’s material obligations under the Leases in a timely manner,
and use commercially reasonable efforts to enforce the material obligations
of
the tenants thereunder;
(iii) Promptly,
but in all events prior to Closing, deliver to Purchaser copies of all material
notices delivered or received by Seller in connection with the
Leases.
(iv) Perform
all of Seller’s material obligations under the material Contracts, and use
commercially reasonable efforts to enforce the material obligations of the
contractors thereunder;
(v) Promptly,
but in all events prior to Closing, deliver to Purchaser copies of all material
notices delivered or received by Seller in connection with the
Contracts.
(vi) Promptly
notify Purchaser of any material emergency or other material change at the
Property, including any casualty or condemnation that directly affects any
portion of the Property;
(vii) Maintain
its books and records with respect to the Property in accordance with the
accounting principles currently utilized by Seller, consistently applied,
and
not change in any material manner any of their methods, principles or practices
of accounting or billing currently in effect, except as may be required by
applicable Law or Seller’s regular accountant;
(viii) Not
(A)
encumber or subject the Property to any new Lien, (B) except to effect the
transaction contemplated hereby or as expressly permitted by the terms of
this
Agreement, modify, amend, supplement, terminate or assign any or all of the
Permits, the Contracts and the Leases, provided, however, that until the
expiration of the Investigation Period, upon a material default by the vendor
under a Contract or the tenant under a Lease (other than a Lease to a Major
Tenant), Seller, upon notice to Purchaser, may terminate any Contract or
Lease
without the consent of Purchaser, or (C) transfer, sell, assign, or terminate
any of the Contracts;
18
(ix) Give
Purchaser prompt notice of all insurance claims and/or other litigation with
respect to the Property, and defend such claims and/or other
litigation;
(x) Keep
policies of insurance in full force and effect with respect to the
Property;
(xi) Use
commercially reasonable efforts to obtain the consents, if any, required
to
permit the assignment of Contracts that require consent to assign (without
being
required to bring any actions against any person or to pay any amounts to
any
person to obtain same).
(xii) Not
settle any insurance claims or other litigation that would materially and
adversely affect the Property after the Closing;
(xiii) Not
perform any capital renovations or alterations with respect to the Property
(or
any part thereof), except (A) in connection with the operation of the Property
in the ordinary course, (B) as expressly permitted by the terms of this
Agreement following a casualty or condemnation, or (C) as required by any
Lease
or applicable Law; and
(xiv) Not
enter
into a Contract affecting the Property other than in the ordinary course
(and
then, in such event, only if said contract is freely terminable at Closing
or
upon thirty-one (31) days (or less) prior written notice); and Seller shall
promptly notify Purchaser of all Contracts and other agreements entered into
after the date of this Agreement and deliver to Purchaser copies
thereof;
(xv) Not
commence any appeal of real estate taxes for the Property;
(xvi) Not
sell
or otherwise dispose of all or any portion of any Property;
(xvii) Deliver
to Purchaser the monthly rent rolls and delinquency reports prepared by Seller
in the ordinary course of business, as they become available; and
(xviii) Deliver
to Purchaser, at such time as the information therein is publicly disclosed,
quarterly operating statements with respect to the Property, which operating
statements shall be delivered without representation or
warranty.
19
(b) Leasing.
Seller
will conduct its leasing activities consistent with past practices subject
to
changes consistent with prevailing market practices. During the period between
the date of this Agreement and the Closing Date, Seller shall not enter into
any
new lease, or amend, modify or terminate any Lease without Purchaser’s prior
written consent, which consent shall not be unreasonably withheld, conditioned
or denied. Notwithstanding the forgoing, no consent shall be required for
any
option and/or renewal right that is set forth in such Lease except that,
if the
rental is to be at fair market value, Purchaser shall have the right to consent
to the determination of the fair market value if the landlord has this power
under the Lease (for example, if fair market value is to be determined by
arbitration, Purchaser shall have no consent rights). Seller will promptly
(but,
in all events, prior to the Closing), apprise Purchaser of leasing activities
with respect to the Property, including notice of any loans made by either
Seller to any tenant (and deliver to Purchaser copies of all Leases and other
relevant documents). Any notice from Purchaser rejecting a proposed new lease
or
amendment, modification or termination of any Lease shall include a description
of the reasons for Purchaser's rejection. Seller shall provide Purchaser
with
monthly leasing reports and an updated monthly rent roll for the prior month.
(c) Tenant
Estoppels.
(i) Seller
will obtain and deliver to Purchaser estoppel certificates in an Acceptable
Form
from each of the tenants under Leases having a term of more than one (1)
year.
Seller shall deliver to Purchaser groups of executed estoppel certificates
promptly following Seller’s receipt thereof.
(ii) An
estoppel certificate shall be deemed to be in an acceptable form (“Acceptable
Form”)
if
such estoppel certificate is (A) dated not earlier than January 15, 2006,
(B)
consistent with the terms of the applicable Lease, Schedule
6(a)(i)(E)
and the
representations and warranties of Seller set forth in this Agreement and
discloses no material default, and (C) in form substantially similar to the
form
of estoppel certificate attached as Exhibit
G,
or
substantially in the form required by the applicable Lease, or, with respect
to
a Lease with a Major Tenant, substantially in such form as such Major Tenant
customarily provides to a purchaser of a retail mall, or in such other form
as
Purchaser shall approve in the exercise of its reasonable judgment, or if
such
estoppel certificate is signed by Seller as provided below, substantially
in the
form attached as Exhibit
G-1
(a
“Seller
Estoppel Certificate”).
(iii) If
Seller
is unable to deliver an estoppel certificate in Acceptable Form from each
tenant
occupying 10,000 or more square feet of space (as listed in Schedule
11(c)(iii))
(each,
a “Major
Tenant”)
and
from tenants who lease seventy-five percent (75%) of the remaining gross
leased
area within the Property under leases having a term of more than one (1)
year,
Seller may (A) cure any exception, (B) if acceptable to Purchaser’s lender,
deliver Seller Estoppel Certificates signed by Seller in Acceptable Form
covering Leases which, together with estoppel certificates from tenants in
Acceptable Form, equal the requisite seventy-five percent (75%) of the gross
leaseable area within the Property under Leases having a term of more than
one
(1) year, or (C) notify Purchaser that it cannot obtain the requisite estoppel
certificates in Acceptable Form, and/or is unwilling to cure any exception,
and/or is unwilling to execute Seller Estoppel Certificates. In the case
of
clause (C) above, Purchaser may, at its sole option, (1) accept such estoppel
certificates as have been delivered, waive the requirements set forth in
this
Section 11(c)
and
proceed to Closing without abatement of the Purchase Price, or (2) terminate
the
Agreement by giving Seller written notice thereof, whereupon the Deposit
shall
be returned to Purchaser and, thereafter, neither party shall have any rights,
obligations or liabilities hereunder, except for these obligations that are
expressly stated to survive the termination of this Agreement (the “Surviving
Obligations”).
If
Seller delivers Seller Estoppel Certificates pursuant to clause
(B)
above
with respect to any Lease and thereafter the tenant under such Lease executes
an
estoppel certificate in Acceptable Form, the Seller Estoppel Certificates
executed by Seller shall be deemed null and void.
20
(d) Intentionally
Omitted.
(e) Subordination,
Non-Disturbance and Attornment Agreements.
If
Purchaser prepares and provides the same to Seller prior to the date that
Seller
circulates estoppel certificates, Seller agrees to deliver to tenants with
each
estoppel certificate provided pursuant to Section
11(c)
a
subordination, non-disturbance and attornment agreement in favor of Purchaser’s
lender (an “SNDA”)
in
form substantially similar to Exhibit
I;
provided that
SNDAs
for any Major Tenant shall be prepared on the form, if any, attached to that
Major Tenant’s Lease. Seller shall forward to Purchaser any SNDAs received, but
shall not be responsible to negotiate any SNDAs.
(f) Other
Actions.
Each of
Seller and Purchaser will not take any action that would result in (i) any
of
the representations and warranties of such party set forth in this Agreement
that are qualified as to materiality becoming untrue as of the Closing Date,
(ii) any of the representations and warranties of such party that are not
so
qualified becoming untrue in any material respect as of the Closing Date,
or
(iii) any of the conditions to the Closing set forth in Section
8
not
being satisfied.
(g) Purchaser’s
Consent.
If,
pursuant to any provision of this Section
11,
Purchaser’s consent is required, such consent shall not be unreasonably
withheld, conditioned or delayed, and shall be deemed given if no written
response setting forth the reasons for the non-approval is received by Seller
within five (5) Business Days of receipt by Purchaser of the request for
consent.
12. As
Is; Release.
(a) As-Is.
Purchaser acknowledges and agrees that if Purchaser fails to terminate this
Agreement on or before the expiration of the Investigation Period, the Property
shall be sold, and Purchaser shall accept possession of the Property on the
Closing Date “AS IS - WHERE IS, WITH ALL FAULTS,” with no right of setoff or
reduction in the Purchase Price, and Purchaser shall assume the risk that
adverse physical, environmental, economic or legal conditions may not have
been
revealed by Purchaser’s Investigations, whether or not Purchaser shall have made
any such Investigation. Except as expressly set forth in Section
6(a)(i),
neither
Seller nor Seller’s Representatives have or shall be deemed to have made any
representations or warranties, express or implied, regarding the Property
or any
matters affecting the Property, including without limitation the physical
condition of the Property, title to or boundaries of the Property, soil
conditions, the presence or absence, location or scope of any Hazardous
Materials in, at, or under the Property, compliance with building, health,
safety, land use or zoning Laws, other engineering characteristics, traffic
patterns, parking and all other information pertaining to the Property.
Purchaser moreover acknowledges (i) that Purchaser is a sophisticated buyer,
knowledgeable and experienced in the financial and business risks attendant
to
investments in real property and capable of evaluating the merits and risks
of
entering into this Agreement and purchasing the Property, (ii) that Purchaser
has entered into this Agreement with the intention of making and relying
upon
its own (or its experts’) investigation of the physical, environmental, economic
and legal condition of the Property, and (iii) that Purchaser is not relying
upon any representation or warranty concerning the Property made by Seller
or
Seller’s Representatives other than as expressly set forth in this Agreement.
Except as otherwise expressly provided in this Agreement, Seller shall not
have
any liability of any kind or nature for any condition or defect in the Property,
whether such condition or defect is latent or patent, and regardless of when
any
such condition or defect is discovered.
21
(b) Opportunity
to Investigate.
Purchaser acknowledges that Purchaser has been, and while this Agreement
remains
in full force and effect shall be, afforded the opportunity for full and
complete investigations, examinations and inspections of the Property and
of all
information and documents in the possession or control of Seller relating
to the
Property, the operation and leasing thereof or the sale thereof.
(c) Release.
Purchaser and anyone claiming by, through or under Purchaser hereby fully
and
irrevocably release Seller, each Seller and Seller’s Representatives from any
and all claims that it may now have or hereafter acquire against Seller or
Seller’s Representatives for any cost, loss, liability, damage, expense, action
or cause of action, whether foreseen or unforeseen, arising from or related
to
any structural, engineering or environmental condition at the Property,
including without limitation the presence or absence, location or scope of
any
Hazardous Materials in, at, or under the Property (whether patent, latent
or
otherwise) as of the Closing Date, except for claims against Seller based
upon
any obligations, indemnities and liabilities of Seller expressly provided
in
this Agreement or in the documents delivered by Seller at Closing. Purchaser
further acknowledges and agrees that this release shall be given full force
and
effect according to each of its expressed terms and provisions, including
but
not limited to those relating to unknown and suspected claims, damages and
causes of action. As a material covenant and condition of this Agreement,
Purchaser agrees that in the event of any structural, engineering or
environmental defects, errors or omissions, including without limitation
the
presence or absence, location or scope of any Hazardous Materials in, at,
or
under the Property, or any other conditions affecting the Property as of
the
Closing Date, Purchaser shall not look to Seller for any redress or relief,
except for claims against Seller based upon any obligations and liabilities
of
Seller expressly provided in this Agreement or in the documents delivered
by
Seller at Closing.
(d) Failure
to Terminate.
Purchaser’s failure, for any reason whatsoever, to elect to terminate this
Agreement pursuant to Section
4(b)
shall be
deemed an acknowledgment by Purchaser that Purchaser has inspected the Property,
is thoroughly acquainted with and accepts their condition. Seller shall not
be
liable or bound in any manner by any oral or written “setups” or information
pertaining to the Property furnished by Seller or Seller’s
Representatives.
(e) Survival.
The
provisions of this Section
12
shall
survive the Closing (and shall not be merged in the Deed) or earlier termination
of this Agreement.
13. Broker.
Purchaser
and Seller represent and warrant to each other that there is no broker with
whom
they have dealt in connection with the sale and purchase of the Property
and the
transactions described herein. Purchaser and Seller agree to indemnify, defend
and hold the other harmless from and against any and all claims, causes of
action, losses, costs, expenses, damages or liabilities, including reasonable
attorneys’ fees and disbursements, which the other may sustain, incur or be
exposed to, by reason of any claim or claims by any broker, finder or other
person, for fees, commissions or other compensation arising out of the
transactions contemplated in this Agreement if such claim or claims are based
in
whole or in part on dealings or agreements with the indemnifying party. The
obligations and representations and warranties contained in this Section 13
shall
survive the Closing (and shall not be merged in the Deed) or earlier termination
of this Agreement.
22
14. Casualty;
Condemnation.
(a) Damage
or Destruction:
If a
“material” part (as hereinafter defined) of the Property is damaged or destroyed
by fire or other casualty, Seller shall promptly notify Purchaser of such
fact
and, except as hereinafter provided, Purchaser shall have the option to
terminate this Agreement by giving written notice to Seller not later than
thirty (30) days after receipt of Seller’s notice. If this Agreement is so
terminated, the Deposit shall be refunded to Purchaser and thereafter, neither
party shall have any further rights, obligations or liabilities hereunder,
except for the Surviving Obligations. If there is damage to or destruction
of an
“immaterial” part (“immaterial”
is
herein deemed to be any damage or destruction which is not “material,” as such
term is hereinafter defined) of the Property, Purchaser shall close title
as
provided in this Agreement and, at the Closing, Seller shall, unless Seller
has
repaired such damage or destruction prior to the Closing, (i) cause the net
proceeds (if any) of any insurance less the amount of all costs incurred
in
connection with the repair of such damage or destruction to be paid to
Purchaser, (ii) assign and transfer to Purchaser all right, title and
interest in and to any uncollected insurance proceeds (if any) which Seller
may
be entitled to receive from such damage or destruction, and (iii) grant
Purchaser a credit against the Purchase Price in the amount of any deductible
under the insurance policy for such Property, to the extent that such deductible
has not already been invested in by Seller toward the restoration of the
damage.
A “material”
part
of
the Property shall mean that (i) twenty-five (25%) percent or more of the
gross
leaseable area of the Property has been destroyed or suffered material casualty
damage; or (ii) the cost to repair or replace such damaged or destroyed portion
of the Property will exceed 25% of the Purchase Price allocated to such
Property, as reasonably estimated by Seller.
(b) Condemnation:
If,
prior to the Closing Date, all or any “significant”
portion
(as hereinafter defined) of the Property is taken by eminent domain or
condemnation (or is the subject of a pending taking which has not been
consummated), Seller shall notify Purchaser of such fact and Purchaser shall
have the option to terminate this Agreement upon notice to Seller given not
later than thirty (30) days after receipt of Seller’s notice. If this Agreement
is so terminated, the Deposit shall be refunded to Purchaser and thereafter,
neither party shall have any further rights, obligations or liabilities
hereunder, except for the Surviving Obligations. If Purchaser does not elect
to
terminate this Agreement, or if an “insignificant” portion (“insignificant”
is
herein deemed to be any taking which is not “significant”, as such term is
herein defined) of the Property is taken by eminent domain or condemnation,
at
Closing the Seller shall cause the award or proceeds, net of the reasonable
costs of Seller in connection with obtaining such award or proceeds, to be
assigned to Purchaser and Purchaser shall be entitled to receive and keep
all
awards or other proceeds for such taking by eminent domain or condemnation.
A
“significant”
portion
of the Property means (i) any portion of a building which reduces the
rentable square footage thereof by more than 2%, (ii) a portion of the
parking areas if the taking thereof reduces the remaining available number
of
parking spaces below the minimum legally required, or (iii) any other portion
of
the Property, the taking of which would have a material adverse affect in
the
operations of the Property.
23
15. Remedies.
(a) If
the
Closing fails to occur by reason of Seller’s material default or the inability
of Seller to perform its obligations under this Agreement, then Purchaser
may
terminate this Agreement by written notice to Seller, or, in the case of
a
willful default by Seller, pursue its remedy of specific performance. If
Purchaser elects to terminate this Agreement, the Deposit shall be refunded
to
Purchaser, and thereafter, neither party shall have any further rights,
obligations or liabilities hereunder.
(b) If
the
Closing fails to occur by reason of Purchaser’s failure or refusal to perform
its obligations hereunder, then Seller may, as its sole remedy, terminate
this
Agreement by written notice to Purchaser. If Seller elects to terminate this
Agreement, then this Agreement shall be terminated and Seller may retain,
as its
sole and exclusive remedy, the Deposit as liquidated and agreed upon damages
for
all loss, damage and expenses suffered by Seller, it being agreed that Seller’s
damages are impractical or extremely difficult to ascertain and that the
amount
of the Deposit represents a reasonable estimate of the damages that Seller
will
sustain if the Closing fails to occur by reason of Purchaser’s failure or
refusal to perform its obligations hereunder. Nothing contained herein shall
limit or restrict Seller’s ability to pursue any rights or remedies they may
have against Purchaser with respect to the Surviving Obligations. Such retention
of the Deposit is intended to constitute liquidated damages, and shall not
be
deemed to constitute a forfeiture or penalty. Seller hereby expressly waives,
relinquishes and releases any other right or remedy available to it at law,
in
equity or otherwise by reason of Purchaser’s failure or refusal to perform its
obligations hereunder.
16. Purchaser’s
Access to the Property.
(a) Access.
At all
times this Agreement remains in effect, Purchaser and Purchaser’s
Representatives shall have the right to enter upon the Property, for the
purpose
of conducting such title, survey, environmental, physical, structural and
any
other examinations, inspections, testing, studies and investigations of the
Property and review all Leases, Service Contracts, Permits, Plans and other
documents related to the Property as Purchaser deems necessary or appropriate
(the “Investigations”) provided (a) Purchaser shall give ▇▇▇▇▇▇ ▇▇▇▇▇▇ [and/or
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇] not less than three (3) Business Days’ prior notice before each
such entry, and (b) the notice shall include reasonably sufficient information
to permit Seller to review the scope of the proposed Investigations and the
names of the companies or firms performing such Investigations. Any entry
upon
the Property and all Investigations shall be during normal business hours
and at
the sole risk and expense of Purchaser and Purchaser’s Representatives, and
shall not unreasonably interfere with the activities on or about the Property
of
Seller’s employees, tenants or invitees. Purchaser and Purchaser’s
Representative shall, with respect to the Property investigated:
(i) promptly
repair any damage to the Property resulting from any such Investigations
and
replace, refill and regrade any holes made in, or excavations of, any portion
of
the Property used for such Investigations so that the Property shall be in
the
same condition in all material respects that it existed in prior to such
Investigations;
24
(ii) fully
comply with all applicable laws, rules, ordinances, codes, regulations, orders
or requirements of applicable governmental authorities (collectively, the
“Laws”)
applicable to the Investigations and all other activities undertaken in
connection therewith;
(iii) permit
Seller to have a representative present during all Investigations undertaken
hereunder;
(iv) take
all
actions and implement all protections reasonably necessary to ensure that
all
actions taken in connection with the Investigations, and the equipment,
materials, and substances generated, used or brought onto the Property pose
no
threat to the safety or health of persons or the environment, and cause no
damage to the Property or other property of Seller or other
persons;
(v) maintain
or cause to be maintained, at Purchaser’s expense, a policy of commercial
general liability insurance, with a broad form contractual liability endorsement
covering Purchaser’s indemnification obligations contained in subsection
(vii)
below,
and with a combined single limit of not less than $1,000,000.00 per occurrence
for bodily injury and property damage, automobile liability coverage including
owned and hired vehicles with a combined single limit of $1,000,000.00 per
occurrence for bodily injury and property damage, insuring Purchaser and
Seller,
as an additional insured, against any injuries or damages to persons or property
that may result from or are related to (A) Purchaser’s and/or Purchaser’s
Representatives’ entry upon the Property, (B) any Investigations or other
activities conducted thereon, and (C) any and all other activities undertaken
by
Purchaser and/or Purchaser’s Representatives, all of which insurance shall be on
an “occurrence form” and otherwise in such forms and with an insurance company
reasonably acceptable to Seller and deliver a certificate of such insurance
policy to Seller prior to the first entry on the Property;
(vi) not
allow
the Investigations or any other activities undertaken by Purchaser or
Purchaser’s Representatives to result in any liens, judgments or other
encumbrances being filed or recorded against any Property, and Purchaser
shall,
at its sole cost and expense, promptly discharge of record any such liens
or
encumbrances that are so filed or recorded (including, without limitation,
liens
for services, labor or materials furnished) as a result of Purchaser’s
Investigations; and
(vii) indemnify
and hold Seller, the Seller’s Representatives and the Property harmless from and
against any and all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys’ fees and disbursements), suffered or incurred by Seller and arising
out of or in connection with (A) Purchaser’s and/or Purchaser’s Representatives’
entry upon the Property, (B) any Investigations or other activities
conducted thereon by Purchaser or Purchaser’s Representatives, and/or (C) any
liens or encumbrances filed or recorded against the Property as a consequence
of
the Investigations or any and all other activities undertaken by Purchaser
or
Purchaser’s Representatives, except to the extent any of the foregoing is caused
by the gross negligence or willful misconduct of the indemnified
party.
25
(b) Security
for Purchaser’s Obligations.
Purchaser’s obligations under Section 16(a) shall be secured by the Deposit (but
the Deposit shall not be the limit of Purchaser’s obligations
hereunder).
(c) Contact
with Tenants and Employees.
Purchaser shall be permitted to contact Seller’s property managers, tenants,
management staff, employees or vendors after the termination of the Contingency
Period with the consent of Seller, which shall not be unreasonably withheld,
conditioned or delayed.
(d) Survival.
The
provisions of this Section
16
shall
survive the Closing (and shall not be merged into the Deed) or earlier
termination of this Agreement.
17. Indemnity.
(a) Purchaser’s
Indemnity.
Purchaser hereby agrees to indemnify, defend against, and hold Seller and
Seller’s employees, representatives, members, agents, partners, officers,
directors, trustees, shareholders, principals, parents, subsidiaries,
affiliates, attorneys and agents (collectively, “Seller’s
Representatives”)
harmless from and against all claims, demands, causes of action, losses,
damages, liabilities, costs and expenses (including, without limitation,
reasonable attorneys’ fees and disbursements) asserted against or incurred by
Seller, or Seller’s Representatives in connection with or arising out of
(i) any breach by Purchaser of any of the Contracts and Leases assigned to
Purchaser which occurs after the Closing, and (ii) damage to property and
injuries to third parties on the Property occurring after the Closing.
Purchaser’s obligations under this Section
17(a)
shall
survive the Closing, and shall not be merged in the Deeds.
(b) Seller’s
Indemnity.
Seller
hereby agrees to indemnify, defend and hold Purchaser and Purchaser’s employees,
representatives, members, agents, partners, officers, directors, trustees,
shareholders, principals, parents, subsidiaries, affiliates, attorneys and
agents (collectively, “Purchaser’s
Representatives”)
harmless from all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation, attorneys’ fees
and disbursements) asserted against or incurred by Purchaser or Purchaser’s
Representatives in connection with or arising out of (i) any breach by
Seller of any of the Contracts and Leases assigned to Purchaser which occurred
prior to the Closing, and (ii) damage to property and injuries to third
parties on the Property occurring prior to the Closing. Seller’s obligations
under this Section
17(b)
shall
survive Closing, and shall not be merged in the Deeds.
18. Escrow.
▇▇▇▇▇
▇▇▇▇▇ Ciklin ▇▇▇▇▇▇ Martens ▇▇▇▇▇▇ & ▇'▇▇▇▇▇▇▇ (the “Escrow
Agent”)
shall
hold the Deposit and Purchaser’s and Seller’s Documents in escrow, dispose of
the Deposit, pro rate expenses and deliver Purchaser’s and Seller’s Documents
only in accordance with the following provisions:
(a) Escrow
Agent shall deliver the Deposit to Seller or Purchaser, as the case may be,
as
follows:
26
(i) to
Seller, upon completion of the Closing, to be applied against the Purchase
Price
of the Property as Seller shall direct; or
(ii) to
Seller, after receipt of Seller’s demand in which Seller certifies either that
(A) Purchaser has materially defaulted under this Agreement, or (B) this
Agreement has been otherwise terminated or cancelled, and Seller is thereby
entitled to receive the Deposit; but Escrow Agent shall not honor Seller’s
demand until more than ten (10) days after Escrow Agent has given a copy
of such
demand to Purchaser in accordance with Section
18(e)(i),
nor
thereafter if Escrow Agent receives a Notice of Objection from Purchaser
within
such ten (10) day period; or
(iii) to
Purchaser, after receipt of Purchaser’s demand in which Purchaser certifies
either that (A) Seller has materially defaulted under this Agreement, or
(B)
this Agreement has been otherwise terminated or cancelled, and Purchaser
is
thereby entitled to receive the Deposit; but Escrow Agent shall not honor
Purchaser’s demand until more than ten (10) days after Escrow Agent has given a
copy of Purchaser’s demand to Seller in accordance with Section
18(e)(i),
nor
thereafter if Escrow Agent receives a Notice of Objection from Seller within
such ten (10) day period.
Upon
such
delivery of the Deposit, Escrow Agent shall be relieved of all liability
hereunder and with respect to the Deposit. Escrow Agent shall deliver the
Deposit by a bank wire transfer of immediately available funds to an account
designated by the party entitled to the Deposit.
(b) Objection
to Demand.
(i) Promptly,
upon receipt of a written demand from Seller or Purchaser under Section
18(d)(ii) or (iii), Escrow Agent shall send a copy of such demand to the
other
party. Within ten (10) days after the date of receiving same, but not
thereafter, the other party may object to delivery of the Deposit to the
party
making such demand by giving a notice of objection (a “Notice of Objection”) to
Escrow Agent. After receiving a Notice of Objection, Escrow Agent shall send
a
copy of such Notice of Objection to the party who made the demand; and
thereafter, in its sole and absolute discretion, Escrow Agent may elect either
(A) to continue to hold the Deposit until Escrow Agent receives a written
agreement of Purchaser and Seller directing the disbursement of the Deposit,
in
which event Escrow Agent shall disburse the Deposit in accordance with such
agreement; and/or (B) to take any and all actions as Escrow Agent deems
necessary or desirable, in its reasonable discretion, to discharge and terminate
its duties under this Agreement, including without limitation depositing
the
Deposit into any court of competent jurisdiction and bringing any action
of
interpleader or any other proceeding; and/or (C) in the event of any litigation
between Seller and Purchaser, to deposit the Deposit with the clerk of the
court
in which such litigation is pending.
27
(ii) If
Escrow
Agent is uncertain for any reason whatsoever as to its duties or rights
hereunder (and whether or not Escrow Agent has received any written demand
under
Section
18(d)(ii)
or
(iii),
or
Notice of Objection under Section
18(e)(i)),
notwithstanding anything to the contrary herein, Escrow Agent may hold and
apply
the Deposit pursuant to Section
18(e)(i)(A),
(B)
or
(C)
and may
decline to take any other action whatsoever. In the event the Deposit is
deposited in a court by Escrow Agent pursuant to Section
18(e)(i)(B)
or
(C),
Escrow
Agent shall be entitled to rely upon the decision of such court. In the event
of
any dispute whatsoever among the parties with respect to disposition of the
Deposit, Purchaser and Seller shall pay the reasonable attorney’s fees and costs
incurred by Escrow Agent (which they shall share equally) for any litigation
in
which Escrow Agent is named as, or becomes, a party.
(iii) Escrow
Agent is acting as escrow agent hereunder without charge as an accommodation
to
Purchaser and Seller, it being understood and agreed that Escrow Agent shall
not
be liable for any error in judgment or any act done or omitted by it in good
faith or pursuant to court order, or for any mistake of fact or law. Escrow
Agent shall not incur any liability in acting upon any document or instrument
believed thereby to be genuine. Escrow Agent is hereby released and exculpated
from all liability hereunder as escrow agent, except only for willful misconduct
or gross negligence. Escrow Agent may assume that any person purporting to
give
it any notice on behalf of any party has been authorized to do so. Escrow
Agent
shall not be liable for, and Purchaser and Seller hereby jointly and severally
agree to indemnify Escrow Agent against, any loss, liability or expense,
including reasonable attorney’s fees, arising out of any dispute under this
Agreement, including the cost and expense of defending itself against any
claim
arising hereunder, except with respect to Escrow Agent’s willful misconduct or
gross negligence.
(c) Notwithstanding
anything to the contrary in this Agreement, within one (1) Business Day after
the receipt by the Escrow Agent of the Deposit, Escrow Agent shall place
the
Deposit in an Approved Investment. The interest, if any, which accrues on
such
Approved Investment shall be deemed part of the Deposit; and Escrow Agent
shall
dispose of such interest as and with the Deposit pursuant to this Agreement.
Escrow Agent may not commingle the Deposit with any other funds held by Escrow
Agent. Escrow Agent may convert the Deposit from the Approved Investment
into
cash or a non-interest-bearing demand account at an Approved Institution
as
follows:
(i) at
any
time within seven (7) days prior to the Closing Date; or
(ii) if
the
Closing Date is accelerated or extended, at any time within seven (7) days
prior
to the accelerated or extended Closing Date (provided,
however,
that
Seller and Purchaser shall give Escrow Agent timely notice of any such
acceleration or extension and that Escrow Agent may hold the Deposit in cash
or
a non-interest-bearing deposit account if Seller and Purchaser do not give
Escrow Agent timely notice of any such adjournment).
28
(d) As
used
herein, the term “Approved
Investment”
means
(i) any interest-bearing demand account or money market fund in a federally
insured bank branch located in Orange County or Palm Beach County, Florida,
or
in a money market mutual fund with assets in excess of One Billion Dollars
invested in obligations issued or guaranteed by the United States of America,
or
in any other institution otherwise approved by both Seller and Purchaser
(collectively, an “Approved
Institution”),
or
(ii) any other investment approved by both Seller and Purchaser. The rate
of interest or yield need not be the maximum available and deposits,
withdrawals, purchases, reinvestment of any matured investment and sales
shall
be made in the sole discretion of Escrow Agent, which shall have no liability
whatsoever therefor. Discounts earned shall be deemed interest for the purpose
hereof. Escrow Agent shall not be liable if the institution holding the Deposit
fails.
(e) Any
Notice of Objection, demand or other notice or communication which may or
must
be sent, given or made under this Agreement to or by Escrow Agent shall be
sent
in accordance with the provisions of Section
21.
(f) Simultaneously
with their execution and delivery of this Agreement, Purchaser and Seller
shall
furnish Escrow Agent with their Federal Taxpayer Identification Numbers so
that
Escrow Agent may file appropriate income tax information returns with respect
to
any interest in the Deposit or other income from the Approved Investment.
The
party ultimately entitled to any accrued interest in the Deposit shall be
the
party responsible for the payment of any tax due thereon.
(g) Any
amendment of this Agreement which could alter or otherwise affect Escrow
Agent’s
obligations hereunder will not be effective against or binding upon Escrow
Agent
without Escrow Agent’s prior consent, which consent may be withheld in Escrow
Agent’s sole and absolute discretion.
(h) The
provisions of this Section
18
shall
survive the Closing (and shall not be merged in the Deeds) or earlier
termination of this Agreement.
19. Assignment.
This
Agreement may not be assigned by Purchaser except in strict accordance with
this
Section
19,
and any
assignment or attempted assignment by Purchaser in violation of this
Section
19
shall
constitute a default by Purchaser hereunder and shall be null and void.
Purchaser shall be entitled to assign its rights and obligations with respect
to
all or a portion of the Property to any entity or entities consisting of
Purchaser and/or any entity which is controlled by, controls, or is under
common
control of or with Purchaser, and such assignee shall succeed to the rights
and
obligations of Purchaser under this Agreement with respect to such Property.
No
such assignment shall relieve Purchaser from its obligations
hereunder.
29
20. Access
to Records; Tax Matters.
For a
period of three (3) years subsequent to the Closing Date, Seller and Seller’s
Representatives shall be entitled to access during business hours to all
documents, books and records given to Purchaser by Seller for tax and audit
purposes, regulatory compliance, and cooperation with governmental
investigations upon reasonable prior notice to Purchaser, and shall have
the
right, at their sole cost and expense, to make copies of such documents,
books
and records.
21. Notices.
(a) Notices.
All
notices, elections, consents, approvals, demands, objections, requests or
other
communications which Seller, Purchaser or Escrow Agent may be required or
desire
to give pursuant to, under or by virtue of this Agreement must be in writing
and
sent by (i) first class U.S. certified or registered mail, return receipt
requested, with postage prepaid, or (ii) express mail or courier (for next
Business Day delivery), or (iii) facsimile, with hard copy sent within 24
hours
pursuant to subsection
(ii)
above
addressed or sent as follows:
If
to
Seller:
Estein
& Associates USA Ltd.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇
▇▇▇▇▇ Ciklin ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇'▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If
to
Purchaser:
c/o
The
Lightstone Group LLC
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇, Senior Vice President and Chief Investment
Officer
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ LLP
▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
30
If
to
Escrow Agent:
▇▇▇▇▇
▇▇▇▇▇ Ciklin ▇▇▇▇▇▇ Martens ▇▇▇▇▇▇ & ▇'▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(b) Change
of Notice.
Seller
or Purchaser or Escrow Agent may designate another addressee or change their
address for notices and other communications hereunder by a notice given
to the
other parties in the manner provided in this Section
21.
A
notice or other communication sent in compliance with the provisions of this
Section
21
shall be
deemed given and received on (i) the third (3rd) day following the date it
is
deposited in the U.S. mail, or (ii) the first Business Day following the
date it
is delivered to an express mail provider or courier, or (iii) the day it
is
delivered if sent by facsimile before 5:00 p.m. local time on a Business
Day.
22. Miscellaneous.
(a) Amendments.
This
Agreement shall not be altered, amended, changed, waived, terminated or
otherwise modified in any respect or particular, and no consent or approval
required pursuant to this Agreement shall be effective, unless the same shall
be
in writing and signed by or on behalf of both Seller and Purchaser.
(b) Binding
Agreement.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
and to their respective heirs, executors, administrators, successors and
permitted assigns.
(c) Integration.
All
prior statements, understandings, representations and agreements between
the
parties with respect to the purchase and sale of the Property, oral or written,
are superseded by and merged in this Agreement, which alone fully and completely
expresses the agreement between them in connection with the Proposed Transaction
and which is entered into after full negotiation, neither party relying upon
any
statement, understanding, representation or agreement made by the other not
embodied in this Agreement. This Agreement shall be given a fair and reasonable
construction in accordance with the intentions of the parties. The parties
acknowledge that each party and its counsel have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendment, Schedule or Exhibit
hereto.
(d) Discharge
of Obligations.
Except
as otherwise expressly provided herein, Purchaser’s acceptance of the Deed shall
be deemed a discharge of all of the obligations of Seller and each Seller
hereunder and all of Seller’s representations, warranties, covenants and
agreements herein shall merge in the documents and agreements executed at
the
Closing by Seller and each Seller and shall not survive the
Closing.
31
(e) Venue
and Jurisdiction.
Any
dispute arising from this agreement shall be resolved in the jurisdiction
of
Orange County, Florida.
(f) Time
of the Essence.
Purchaser and Seller mutually agree that, wherever this Agreement provides
that
Purchaser or Seller must send or give any notice, make an election or take
some
other action within a specific time period or at or before a specific time
in
order to exercise a right or remedy they may have hereunder, time shall be
of
the essence with respect to the taking of such action, and either party’s
failure to take such action within the applicable time period or at or before
the specific time shall be deemed to be an irrevocable waiver by such party
of
such right or remedy.
(g) Delay
Not a Waiver.
No
failure or delay of either party in the exercise of any right or remedy given
to
such party hereunder or the waiver by any party of any condition hereunder
for
its benefit (unless the time specified herein for exercise of such right
or
remedy has expired) shall constitute a waiver of any other or further right
or
remedy nor shall any single or partial exercise of any right or remedy preclude
other or further exercise thereof or any other right or remedy. No waiver
by
either party of any breach hereunder or failure or refusal by the other party
to
comply with its obligations shall be deemed a waiver of any other or subsequent
breach, failure or refusal to so comply.
(h) No
Recordation.
Neither
this Agreement nor any memorandum thereof shall be recorded, and any attempted
recordation hereof shall be void and shall constitute a default hereunder.
Purchaser agrees to indemnify Seller against all costs, expenses and damages,
including without limitation reasonable attorneys’ fees and disbursements,
incurred by Seller by reason of the filing by Purchaser of this Agreement
or any
memorandum thereof. The provisions of this Section
23(h)
shall
survive the termination of this Agreement.
(i) No
Offer; Counterpart Copies.
Delivery of this Agreement or a draft hereof shall not be deemed an offer,
and
neither Seller nor Purchaser shall have any rights or obligations hereunder
unless and until all parties have signed and delivered an original of this
Agreement. This Agreement may be executed in one or more counterparts, each
of
which so executed and delivered shall be deemed an original, but all of which
taken together shall constitute but one and the same instrument. A
facsimile of a signature will have the same legal effect as an originally
drawn
signature.
(j) Exhibits
Incorporated.
Each of
the Exhibits and Schedules referred to herein and attached hereto is
incorporated herein by this reference.
(k) Captions.
The
caption headings in this Agreement are for convenience only and are not intended
to be a part of this Agreement and shall not be construed to modify, explain
or
alter any of the terms, covenants or conditions herein contained.
(l) Governing
Law.
This
Agreement shall be interpreted and enforced in accordance with the laws of
the
State of Florida without reference to principles of conflicts of
laws.
32
(m) Invalid
Provision.
If any
provision of this Agreement shall be unenforceable or invalid, the same shall
not affect the remaining provisions of this Agreement and to this end the
provisions of this Agreement are intended to be and shall be severable.
Notwithstanding the foregoing sentence, if (i) any provision of this
Agreement is finally determined by a court of competent jurisdiction to be
unenforceable or invalid in whole or in part, (ii) the opportunity for all
appeals of such determination have expired, and (iii) such unenforceability
or invalidity alters the substance of this Agreement (taken as a whole) so
as to
deny either party, in a material way, the realization of the intended benefit
of
its bargain, such party may terminate this Agreement within ten (10) days
after
the final determination by notice to the other. If such party so elects to
terminate this Agreement, then this Agreement shall be terminated and neither
party shall have any further rights, obligations or liabilities hereunder,
except for the Surviving Obligations, and except that Purchaser shall be
entitled to a return of the Deposit provided that Purchaser is not otherwise
in
material default hereunder.
(n) WAIVER
OF TRIAL BY JURY.
SELLER AND PURCHASER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY,
UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY
JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR CONTRACT)
BROUGHT BY THEM AGAINST THE OTHER(S) ON ANY MATTER ARISING OUT OF OR IN ANY
WAY
CONNECTED WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED
BY A
PARTY IN CONNECTION HEREWITH (INCLUDING ANY ACTION TO RESCIND OR CANCEL THIS
AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE).
(o) Waiver
of Tender.
Seller
and Purchaser hereby waive tender of the Deed and of the Purchase Price.
(p) Attorneys’
Fees.
If
either party brings an action to enforce the terms of this Agreement, the
prevailing party shall be entitled to recover reasonable attorney’s fees
actually incurred.
(q) Radon
Gas.
Radon
is a naturally occurring radioactive gas that, when it has accumulated in
a
building in sufficient quantities, may present health risks to persons who
are
exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public
health
unit.
(r) Electronic
Signatures. Signatures which are electronically transmitted such as by fax
or
email shall be binding as if they were originals.
[The
remainder of this page is left intentionally blank]
33
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
and year first above written.
SELLER:
ST.
AUGUSTINE OUTLET WORLD, LTD.
By:
▇▇▇▇
St. ▇▇▇▇▇▇▇▇▇ Outlet, L.C., general partner
By:
▇▇▇▇
St. ▇▇▇▇▇▇▇▇▇ Corporation, manager
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
President
PURCHASER:
PRIME
OUTLETS ACQUISITION COMPANY LLC
By:
Lightstone Prime LLC
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Authorized Signatory
Executed
solely for the purpose of
accepting
the escrow on the terms
and
conditions set forth herein:
▇▇▇▇▇
▇▇▇▇▇ CIKLIN ▇▇▇▇▇▇
MARTENS
▇▇▇▇▇▇ & ▇'▇▇▇▇▇▇▇
By:
▇▇▇▇ ▇▇▇▇▇▇▇, P.L., Partner
By: /s/
▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
34
EXHIBIT
A
Legal
Description
EXHIBIT
B
Form
of Deed
RETURN
TO:
THIS
INSTRUMENT PREPARED BY:
▇▇▇▇
▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇
▇▇▇▇▇ Ciklin ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & O=▇▇▇▇▇▇▇
18th
Floor - Northbridge Tower I
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Property
Appraiser's I.D. No.:
SPECIAL
WARRANTY
DEED
THIS
SPECIAL WARRANTY
DEED made the
day of
____________, 2006, by __ST. AUGUSTINE OUTLET WORLD,
LTD._______________________, hereinafter called the "Grantor", with an
address
c/o Estein & Associates USA, Ltd., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇,
to
____________________________________________, with an address at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter called
"Grantee";
W
I T N E S S E T H:
That
the
Grantor, for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00)
and other valuable considerations, receipt whereof is hereby acknowledged,
hereby grants, bargains, sells, aliens, remises, releases, conveys and confirms
unto the Grantee, all that certain land and the improvements thereon located
in
the County of Orange, State of Florida and more particularly described as
follows:
SEE
EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF.
TOGETHER
with the improvements thereon and all the tenements, hereditaments and
appurtenances thereto belonging or in anywise appertaining.
TO
HAVE
AND TO HOLD, the same in fee simple forever, SUBJECT, HOWEVER, to those matters
set forth on EXHIBIT B attached hereto and made a part hereof.
AND
the
Grantor hereby covenants with said Grantee that except as noted above, at
the
time of delivery of this Special Warranty Deed, the premises were free from
all
encumbrances made by the Grantor, except for taxes accruing subsequent to
December 31, 2004 and that the Grantor will warrant and defend the same against
the lawful claims and demands of all persons claiming by, through or under
Grantor, but against none other.
Anything
to the contrary herein contained, each party comprising Grantor shall be
responsible for the covenants and warranties applicable only to the property
it
is conveying to Grantee hereunder.
IN
WITNESS WHEREOF, the said Grantor has hereunto set its hand and seal the
day and
year first above written
Print:
Print:
In
the
presence of:
Print:
STATE
OF
COUNTY
OF
Before
me, the undersigned authority, personally came and appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇,
who
produced as identification thereof a Driver's License, showing him to be
the
individual who executed the foregoing instrument as the President of
___________________________________, a Delaware corporation being the Managing
Member of ______________________, a Florida limited liability company, being
the
General Partner of_____________________, a Florida limited partnership named
therein and who acknowledged to and before me that he executed the same in
the
capacities and for the purposes therein expressed by due and regular partnership
and company authority.
WITNESS
my hand and official seal in the County and State last aforesaid, this ____
day
of ____________, 2005.
Notary
Public, State of ___________ at Large
My
commission expires:
EXHIBIT
C
Form
of Lease Assignment
ASSIGNMENT
AND ASSUMPTION OF LEASES
ASSIGNMENT
AND ASSUMPTION OF LEASES made as of _____________ __, 2006 (this
“Assignment”),
between ST. AUGUSTINE OUTLET WORLD,
LTD._____________________________________________, having an address c/o
Estein
& Associates USA Ltd., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(collectively, “Assignor”),
and
_______________________________________ having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (“Assignee”).
For
good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, Assignor hereby assigns, conveys, transfers and sets over to
Assignee any and all of Assignor’s right, title and interest, as landlord, in,
to and under any and all leases and tenancies (collectively, the “Leases”)
covering all or portions of the property described on Exhibit
A
attached
hereto and made a part hereof, together with all the rents, issues, income
and
profits derived therefrom (heretofore due and hereafter to become due),
including intangible rights and Assignor’s rights in respect of any security
deposits thereunder. Assignee hereby assumes all obligations of Assignor
under
the Leases and agrees to perform all of the terms, covenants and conditions
of
the Leases on the part of Assignor required therein to be performed arising
from
and after the date of this Assignment.
A. This
Assignment shall be binding upon and shall inure to the benefit of Assignee,
its
successors and assigns.
B. Assignee
for itself, its successors and assigns, hereby accepts and assumes all of
the
rights, duties and obligations of the landlord under the Leases accruing
on and
after the date hereof and hereby defends, indemnifies and holds harmless
Assignor from and against any and all loss, liability, damage, cost or expense
(including, without limitation, reasonable attorneys’ fees and disbursements)
incurred or sustained by Assignor solely as a result of Assignee’s failure to
perform any obligations of the landlord under the Leases accruing on and
after
the date of this Assignment.
C. This
Assignment shall be governed by and construed in accordance with the laws
of the
State of Florida, without reference to the choice of laws provisions or conflict
of laws provisions of that State.
D. This
Assignment may be executed in multiple counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one
and the
same instrument.
[NO
FURTHER TEXT ON THIS PAGE]
IN
WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of
the
date and year first above written.
ASSIGNOR:
By: ________________________________
Name:
Title:
ASSIGNEE:
By: ________________________________
Name:
Title:
Exhibit
A
EXHIBIT
D
Form
of ▇▇▇▇ of Sale
▇▇▇▇
OF SALE
▇▇▇▇
OF
SALE made as of _________________, 2006, by ST. AUGUSTINE OUTLET WORLD, LTD.,
having an address c/o Estein & Associates USA Ltd., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, “Assignor”),
in
favor of _______________________________________ having an address at ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (“Assignee”).
For
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Assignor hereby assigns, transfers and sets over unto Assignor,
from and after the date hereof, without representation or warranty by or
recourse to Assignor, express or implied, by operation of law or otherwise,
all
of Assignor’s right, title and interest in and to the equipment, machinery and
other tangible personal property of every kind and nature installed in, located
at, situated on, or used in connection with all or any portion of the property
described on Exhibit
A
attached
hereto a made a part hereof (the “Property”),
excluding, however, any such equipment, machinery or other tangible personal
property belonging to any tenants at the Property, any public utility or
any
other person or entity except Assignor (collectively, the “Personal
Property”).
This
▇▇▇▇
of Sale shall be binding upon and shall inure to the benefit of Assignee,
its
successors and assigns.
The
Personal Property is herein being sold “AS IS” and “WHERE IS,” without any
representations or warranties of any kind.
[NO
FURTHER TEXT ON THIS PAGE]
IN
WITNESS WHEREOF, Assignor has executed this Assignment as of the date and
year
first above written.
ASSIGNOR:
Exhibit
A
EXHIBIT
E
Form
of Contract and Permit Assignment
ASSIGNMENT
AND ASSUMPTION OF SERVICE CONTRACTS AND PERMITS
THIS
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS AND
PERMITS (this
“Assignment”)
is
made and entered into as of the _____ day of ______________, 2006, by and
between ___________________________________________,
having
an
address c/o Estein & Associates USA Ltd., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, “Assignor”),
and
________________________________ having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (“Assignee”).
WITNESSETH
WHEREAS,
contemporaneously with the execution and delivery hereof, Assignor has conveyed
to Assignee all that tract or parcel of land more particularly described
in
Exhibit A
attached
hereto and incorporated herein by reference (hereinafter referred to as the
“Real
Property”);
WHEREAS,
the
purchase and sale of the Real Property is being made pursuant to the terms
of
that certain Purchase and Sale Agreement between Assignor and Assignee dated
September __, 2004 (the “Purchase
Agreement”);
and
WHEREAS,
pursuant to the Purchase Agreement, in connection with such conveyance of
the
Real Property, Assignor and Assignee have agreed that Assignor shall transfer
and assign to Assignee all of Assignor’s right, title and interest under the
service contracts relating to the Real Property listed on Exhibit
B
attached
hereto and incorporated herein by reference (the “Service
Contracts”),
together with, to the extent assignable, all right, title and interest of
Assignor, in and to any construction or supplier’s warranties or guaranties
relating to the improvements, fixtures or personal property of Assignor located
on the Real Property, and any licenses and permits related to the use and
operation of the Real Property, (the “Other
Interests”);
and
WHEREAS,
Assignor and Assignee have further agreed that Assignee shall expressly assume
by executing this Assignment all of the obligations of Assignor, from and
after
the date hereof, under each of the Service Contracts;
NOW,
THEREFORE,
for and
in consideration of the mutual covenants contained herein and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party hereto, Assignor and Assignee hereby agree as
follows:
E. Transfer
and Assignment.
Assignor
hereby sells, transfers, assigns, delivers and conveys the Service Contracts
and
Other Interests to Assignee, its successors and assigns.
F. Assumption/Indemnification.
Assignee assumes and agrees to perform any and all obligations and duties
of
Assignor as Seller of the Real Property under the Service Contracts arising
on
or after the date hereof. Assignee indemnifies and agrees to hold Assignor
harmless from and against any defaults or other liabilities (including, without
limitation, court costs and attorneys’ fees) under any of the Service Contracts
relating to circumstances which are incurred or which accrue at any time
on and
after the date hereof.
G. Miscellaneous.
This
Assignment shall inure to the benefit of, and be binding upon, the respective
legal representatives, successors, and assigns of the parties. This Assignment
shall be governed by, and construed under the laws of the State of Florida.
This
Assignment may be executed in one or more counterparts and the signature
of any
party to any counterpart may be appended to any other counterpart, all of
which
counterparts when taken together shall equal one Assignment. This document
(together with any attached Exhibits and incorporated documents, including
the
Purchase Agreement) constitutes the entire agreement on the subject matter
between the parties. No modification of this Assignment shall be binding
unless
in writing and signed by the party against which it is sought to be enforced.
Each party will execute and deliver all additional documents and do all such
other acts as may be reasonably necessary to carry out the provisions and
intent
of this Assignment.
IN
WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of
the
date and year first above written.
|
ASSIGNOR:
______________________________
By:_____________________________
Name:
Title:
|
|
|
ASSIGNEE:
______________________________
By:___________________________
Name:
Title:
|
Exhibit
A
Legal
Description
Exhibit
B
Service
Contracts
EXHIBIT
F
FIRPTA
AFFIDAVIT
EXHIBIT
G
Form
of Tenant Estoppel Certificate
TENANT
ESTOPPEL CERTIFICATE
The
undersigned, a tenant (“Lessee”)
under
that certain Lease (the “Lease”)
dated
__________, with _____________or its predecessor in interest as landlord
(“Lessor”)
for
space identified as _____ (the “Leased
Space”)
at
________________, Florida (the “Property”),
certifies as follows:
|
1.
|
(a)
|
The
Lease has not been modified, supplemented or amended except [as
set forth
below/as follows: _____________].
|
|
(b)
|
The
current fixed monthly rent presently payable under the Lease
is $_______
and the next increase in fixed monthly rent is scheduled to occur
on
__________.
|
|
|
(c)
|
The
additional rent presently payable under the terms of the Lease
is
$________.
|
|
|
(d)
|
The
amount of the security deposit under the Lease is $________ in
[cash/a
letter of credit].
|
|
|
(e)
|
The
current Lease term commenced on ________ and shall terminate
on
________.
|
|
|
(f)
|
Rent
has been paid through
__________.
|
2. Lessee
has taken possession of the Leased Space without any existing condition or
qualification and is in occupancy of the Leased Space. Lessee has not given
any
notice of termination of the Lease.
3. The
monthly rent due is continuing and is not past due. Lessee has not prepaid
any
of the rents under the Lease more than one (1) month in advance. As of the
date
hereof, Lessee is not entitled to any rent concessions, rent abatements,
free
rent or any rent deductions, and Lessee has no defense as to its obligations
under the Lease and asserts no set-off, claim or counterclaim against
Lessor.
4. Neither
Lessee nor, to the best of Lessee’s knowledge, Lessor is in default under the
Lease, nor has any event occurred which with the giving of notice, the passage
of time, or both, would constitute a default under the Lease. The Lease is
in
full force and effect. No portion of the Leased Space has been assigned or
sublet, except: ____________________________.
5. Lessee
has no option or right to purchase the Property or a right of first offer
or
first refusal with respect to leasing additional space at the Property
except:____________. Lessee has the following options to extend the term
of the
Lease: ________________.
6. There
are
no actions, whether voluntary or involuntary, pending against Lessee under
the
bankruptcy or insolvency laws of the United States or any state or territory
of
the United States.
The
undersigned understands and acknowledges that (i) ________________________
(“Purchaser”)
and
its respective successors and assigns are relying on this Certificate in
connection with the purchase and financing of the Property; (ii) this
Certificate shall be binding upon the undersigned, its successors and assigns;
and (iii) upon the purchase of the Property, Purchaser will succeed to the
interest of Lessor under the Lease.
This
certificate has been duly executed and delivered by an authorized officer
of the
undersigned as of ___ day of ____________, 2004.
[NAME
OF
TENANT]
By:
Name:
Title:
[List
Lease Amendments, if any]
EXHIBIT
G-1
Form
of Seller Estoppel Certificate
EXHIBIT
H
Form
of SNDA
SCHEDULE
1(a)(iv)
Personal
Property
SCHEDULE
1(b)
Excluded
Personal Property
None
SCHEDULE
6(a)(i)(E)
Rent
Rolls and Delinquency Reports
SCHEDULE
6(a)(i)(F)
Uncured
Defaults
SCHEDULE
6(a)(i)(G)
Service
Contracts
SCHEDULE
6(a)(i)(I)
Actions
and Investigations
SCHEDULE
6(a)(i)(J)
Condemnation
Actions
None
SCHEDULE
6(a)(i)(K)
Violation
of Governmental Regulations or Private Encumbrances
None
SCHEDULE
6(a)(i)(M)
Tax
Appeals and Special Assessments
None
SCHEDULE
6(a)(i)(N)
Tenant
Purchase Options
None
SCHEDULE
6(a)(i)(R)
Unpaid
Tenant Improvement Allowances
SCHEDULE
6(a)(i)(S)
Unpaid
Tenant Broker Commissions
SCHEDULE
11(c)(iii)
Major
Tenants
SCHEDULE
7
Responsibilities
for Closing Costs
|
Title
Search Fee and Title Insurance Premium
|
-
Purchaser
|
|
Documentary
Stamps on the Deed
|
-
Seller
|
|
All
assumption fees, including documentary stamps on the assume
mortgage
|
-
Purchaser
|
|
Cost
of defeasing the existing mortgage loan
|
-
Seller
|