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EXHIBIT 10.C
PURCHASE AND SALE AGREEMENT
BETWEEN
EML ASSOCIATES,
a New York general partnership
as Seller
and
SPP REAL ESTATE (▇'▇▇▇▇), INC.
as Purchaser
As of December ____, 1997
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of
December _____, 1997, by and between EML ASSOCIATES, a joint venture in the form
of a New York general partnership ("Seller"), having an office c/o The Equitable
Life Assurance Society of the United States, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, and SPP REAL ESTATE (▇'▇▇▇▇), INC. ("Purchaser"), having an office
at c/o AMB Institutional Realty Advisors, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(a) that certain tract or parcel of land situated in DuPage
County, Illinois commonly known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and more particularly described on Exhibit A-1 attached hereto
and made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or
rights-of-way (collectively the "Willowbrook Land");
(b) that certain tract or parcel of land situated in DuPage
County, Illinois commonly known as 800 Hollywood, Itasca, Illinois and
more particularly described on Exhibit A-2 attached hereto and made a
part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or
rights-of-way (collectively the "Itasca Land");
(c) that certain tract or parcel of land situated in DuPage
County, Illinois commonly known as ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and more particularly described on Exhibit A-3 attached hereto
and made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or
rights-of-way (collectively the "Bensenville #1 Land");
(d) that certain tract or parcel of land situated in DuPage
County, Illinois commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and more particularly described on Exhibit A-4 attached hereto
and made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or rights-of-
way (collectively the "Bensenville #2 Land");
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(e) the buildings, structures, fixtures and other improvements
on the Willowbrook Land, the Itasca Land, the Bensenville #1 Land and
the Bensenville #2 Land (collectively the "Improvements");
(f) all of Seller's right, title and interest in and to all
tangible personal property upon the Willowbrook Land, the Itasca Land,
the Bensenville #1 Land and the Bensenville #2 Land or within the
Improvements, including specifically, without limitation, appliances,
furniture, carpeting, draperies and curtains, tools and supplies, and
other items of personal property (excluding cash) used exclusively in
connection with the operation of the Willowbrook Land, the Itasca Land,
the Bensenville #1 Land and/or the Bensenville #2 Land and the
Improvements (collectively the "Personal Property");
(g) all of Seller's right, title and interest in and to all
agreements listed and described on Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit
B-3 and Exhibit B-4 (collectively the "Lease Schedules") attached
hereto and made a part hereof, pursuant to which any portion of the
Willowbrook Land, the Itasca Land, the Bensenville #1 Land and/or the
Bensenville #2 Land, respectively, or the Improvements thereon, are
used or occupied by anyone other than Seller (collectively the
"Leases"); and
(h) all of Seller's right, title and interest in and to any
intangible property used in connection with the Willowbrook Land, the
Itasca Land, the Bensenville #1 Land and/or the Bensenville #2 Land,
the Improvements or the Personal Property, including, without
limitation, (i) all assignable contracts and agreements (collectively
the "Operating Agreements") listed and described on Exhibit C-1,
Exhibit C-2, Exhibit C-3 and Exhibit C-4, respectively (collectively
the "Operating Agreements Schedules") attached hereto and made a part
hereof, relating to the upkeep, repair, maintenance or operation of the
Willowbrook Land, the Itasca Land, the Bensenville #1 Land and the
Bensenville #2 Land, Improvements or Personal Property which will
extend beyond the date of Closing (as such term is defined in Section
4.1 hereof), including specifically, without limitation, all assignable
equipment leases, and (ii) all assignable existing warranties and
guaranties (expressed or implied) issued to Seller in connection with
the Improvements or the Personal Property (collectively the
"Intangibles").
1.2 Properties Defined. The Willowbrook Land, together with the
Improvements, the Personal Property, the Leases and the Intangibles thereon or
in connection therewith, are hereinafter sometimes referred to collectively as
the "Willowbrook Property." The Itasca Land, together with the Improvements, the
Personal Property, the Leases and the Intangibles thereon or in connection
therewith, are hereinafter sometimes referred to collectively as the "Itasca
Property". The Bensenville #1 Land, together with the Improvements, the Personal
Property, the Leases and the Intangibles thereon or in connection therewith, are
hereinafter sometimes referred to collectively as the "Bensenville #1 Property".
The Bensenville #2 Land, together with the Improvements, the Personal Property,
the Leases and the Intangibles thereon or in connection therewith, are
hereinafter sometimes referred to collectively as the "Bensenville #2 Property".
The Willowbrook Land, the Itasca Land, the Bensenville #1 Land and the
Bensenville #2 Land are sometimes referred to collectively as the "Land". The
Willowbrook Property, the Itasca Property, the Bensenville #1 Property and the
Bensenville #2 Property are sometimes referred to collectively as the
"Properties".
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1.3 Permitted Exceptions. The Properties shall be conveyed by one
or more special warranty deeds subject to the matters which are, or are deemed
to be, Permitted Exceptions pursuant to Article II hereof (herein referred to
collectively as the "Permitted Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to
purchase the Properties for a total of SEVEN MILLION EIGHT HUNDRED SIXTY
THOUSAND DOLLARS ($7,860,000.00)(the "Purchase Price").
1.5 Intentionally Omitted.
1.6 Payment of Purchase Price. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available federal funds
to a bank account designated by Seller in writing to Purchaser prior to the
Closing,
ARTICLE II
TITLE AND SURVEY
2.1 Title Examination; Commitment for Title Insurance. Purchaser
shall have until the expiration of the Inspection Period (defined in Section 3.1
hereof) to examine title to the Properties. Seller shall obtain from First
American Title Insurance Company or another nationally recognized title
insurance company (the "Title Company") at Seller's expense, one or more ALTA
title insurance commitments (collectively the "Title Commitment") covering the
Properties, showing all matters affecting title to the Properties and binding
the Title Company to issue at Closing its current form of ALTA Form B (rev.
10/17/70) extended coverage Owner's Policy of Title Insurance in the full amount
of the Purchase Price pursuant to Section 2.4 hereof. Seller shall instruct the
Title Company to deliver to Purchaser, Seller and the surveyors described in
Section 2.2 below copies of the Title Commitment and copies of all instruments
referenced in Schedule B and Schedule C thereof.
2.2 Survey. Seller, at Seller's expense, has engaged one or more
reputable surveyors or surveying firms, licensed by the state in which the
Properties are located, to survey the Properties and prepare and deliver to
Purchaser, the Title Company and Seller ALTA surveys thereof (collectively the
"Surveys") reflecting, with respect to each of the Properties, the total area of
the Property, the location of all improvements, recorded easements and
encroachments, if any, located thereon and all building and set back lines and
other matters of record with respect thereto.
2.3 Title Objections; Cure of Title Objections. Purchaser shall
have until the expiration of the Inspection Period to notify Seller, in writing,
of such objections as Purchaser may have to anything contained in the Title
Commitment or the Surveys. Any item contained in the Title Commitment or any
matter shown on the Surveys to which Purchaser does not object during the
Inspection Period shall be deemed a Permitted Exception. In the event Purchaser
shall notify Seller of objections to title or to matters shown on the Surveys
prior to the expiration of the Inspection Period, Seller shall have the right,
but not the obligation, to cure such objections. Within ten (10) days after
receipt of Purchaser's notice of objections, Seller shall notify Purchaser in
writing whether Seller elects to attempt to cure such objections. If Seller
elects to attempt to cure, and provided that Purchaser shall not have terminated
this Agreement in accordance with Section 3.2 hereof, Seller shall have until
the date of Closing to attempt to remove, satisfy or cure the same and for this
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purpose Seller shall be entitled to a reasonable adjournment of the Closing if
additional time is required, but in no event shall the adjournment exceed sixty
(60) days after the date for Closing set forth in Section 4.1 hereof. If Seller
elects not to cure any objections specified in Purchaser's notice, or if Seller
is unable to effect a cure prior to the Closing (or any date to which the
Closing has been adjourned), Purchaser shall have the following options: (i) to
accept a conveyance of the Properties subject to the Permitted Exceptions,
specifically including any matter objected to by Purchaser which Seller is
unwilling or unable to cure, and without reduction of the Purchase Price; or
(ii) to terminate this Agreement by sending written notice thereof to Seller,
and upon delivery of such notice of termination, this Agreement shall terminate,
and thereafter neither party hereto shall have any further rights, obligations
or liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement. If
Seller notifies Purchaser that Seller does not intend to attempt to cure any
title objection (or if, having commenced attempts to cure any objection, Seller
later notifies Purchaser that Seller will be unable to effect a cure thereof)
Purchaser shall, within five (5) days after such notice has been given, notify
Seller in writing whether Purchaser shall elect to accept the conveyance under
clause (i) or to terminate this Agreement under clause (ii).
2.4 Conveyance of Title. At Closing, Seller shall convey and
transfer to Purchaser by special warranty deeds such title to the Properties as
will enable the Title Company to issue to Purchaser, at Purchaser's expense, an
ALTA Form B (rev. 10/17/70) Owner's Policy of Title Insurance (collectively the
"Title Policy") covering the Properties, in the full amount of the Purchase
Price. Notwithstanding anything contained herein to the contrary, the Properties
shall be conveyed subject to the following matters, which shall be deemed to be
Permitted Exceptions:
(a) the rights of named tenants, as tenants only, under the
Leases and any new Leases entered into between the Effective Date and
Closing and, where required, approved by Purchaser in accordance with
the terms of this Agreement;
(b) the lien of all ad valorem real estate taxes and
assessments not yet due and payable as of the date of Closing;
(c) local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws,
ordinances and regulations, now or hereafter in effect relating to the
Properties, or any of them; and
(d) items appearing of record or shown on any of the Surveys
and, in either case, not objected to by Purchaser or waived or deemed
waived by Purchaser in accordance with Sections 2.3 or 2.5 hereof.
2.5 Pre-Closing "Gap" Title Defects. Whether or not Purchaser
shall have furnished to Seller any notice of title objections pursuant to the
foregoing provisions of this Agreement, Purchaser may, at or prior to Closing,
notify Seller in writing of any objections to title first raised by the Title
Company or the Surveyor between (a) the date which is the earlier of (i) the
effective date of Purchaser's Title Commitment referred to above or (ii) the
expiration of the Inspection Period, and (b) the date on which the transaction
contemplated herein is scheduled to close. With respect to any objections to
title set forth in such notice, Seller shall have the same option to cure and
Purchaser shall have the same option to accept title subject to such matters or
to terminate this Agreement as those which apply to any notice of objections
made by Purchaser before the expiration of the Inspection Period. If Seller
elects to attempt to cure any such matters,
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the date for Closing shall be automatically extended by a reasonable additional
time to effect such a cure, but in no event shall the extension exceed sixty
(60) days after the date for Closing set forth in Section 4.1 hereof.
ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the
date of this Agreement (the "Effective Date") and ending on the Closing
(hereinafter referred to as the "Inspection Period"), Purchaser shall have the
right to make a physical inspection of the Properties and to examine at such
place or places at the Properties, in the offices of the property manager or
elsewhere as the same may be located, any operating files maintained by Seller
or its property manager in connection with the leasing, maintenance and/or
management of the Properties, including, without limitation, the Leases, lease
files, Operating Agreements, insurance policies, bills, invoices, receipts and
other general records relating to the income and expenses of the Properties,
operating budget, correspondence, surveys, plans and specifications, warranties
for services and materials provided to the Properties, engineering reports,
environmental audits and similar materials, but excluding materials not
directly related to the leasing, maintenance and/or management of the
Properties such as Seller's internal memoranda, financial projections,
appraisals, accounting and tax records and similar proprietary or confidential
information. Purchaser shall make all inspection requests in writing to Seller.
Each request shall include a list of information to be made available during
such inspection. Purchaser understands and agrees that any on-site inspections
of the Properties shall be conducted upon at least twenty-four (24) hours'
prior notice to Seller and in the presence of Seller or its representative. To
the extent reasonably possible, Seller agrees to cooperate with all of
Purchaser's requests for Property information within two (2) business days from
the receipt thereof, provided that Seller shall not be required to furnish any
information excluded specifically by the terms of this Agreement. Purchaser
agrees to repair and restore any damage to the Properties caused by any testing
conducted on the Properties by Purchaser. Purchaser shall return each of the
Properties to substantially the same condition as existed prior to its entry.
Purchaser agrees to indemnify against and hold Seller harmless from any claim
for liabilities, costs, expenses (including reasonable attorneys' fees actually
incurred) damages or injuries to the extent arising out of or resulting from
the inspection of the Properties by Purchaser or its agents, and
notwithstanding anything to the contrary in this Agreement, such obligation to
indemnify and hold harmless Seller shall survive Closing or any termination of
this Agreement. All inspections shall occur at reasonable times agreed upon by
Seller and Purchaser and shall be conducted so as not to interfere unreasonably
with use of any of the Properties by Seller or its tenants. Purchaser shall
advise Seller during the Inspection Period which of the Operating Agreements
Purchaser will assume at Closing (the "Assumed Operating Agreements") and
Seller shall terminate as of the Closing Date all such agreements which
Purchaser elects not to assume.
3.2 Right of Termination. Seller agrees that in the event
Purchaser determines (such determination to be made in Purchaser's sole
discretion) to proceed with this transaction and purchase the Properties,
Purchaser shall make such election by delivering to Seller, prior to the
expiration of the Inspection Period written notice of its election, in which
event Purchaser shall no longer have any right to terminate this Agreement under
this Section 3.2. If Purchaser gives a notice of termination within the
Inspection Period or fails to deliver any notice within the Inspection Period,
this Agreement shall terminate. Time is of the essence with respect to the
provisions of this Section 3.2.
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ARTICLE IV
CLOSING
4.1 Time and Place. The consummation of the transaction
contemplated hereby ("Closing") shall occur at 1:00 p.m. (CST) on December 30,
1997, through the use of an escrow account to be established by Seller with the
Title Company at its downtown Chicago office. At Closing, Seller and Purchaser
shall perform the obligations set forth in respectively, Section 4.2 and Section
4.3., the performance of which obligations shall be concurrent conditions.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser one or more duly executed special
warranty deeds (collectively the "Deed") in recordable form, conveying
the Willowbrook Land, the Itasca Land, the Bensenville #1 Land and
Bensenville #2 Land, and the Improvements thereon, subject only to the
Permitted Exceptions; the warranty of title in the Deed will be only as
to claims made by, through or under Seller and not otherwise;
(b) deliver to Purchaser one or more duly executed bills of
sale conveying the Personal Property without warranty of title or use
and without warranty, expressed or implied, as to merchantability and
fitness for any purpose;
(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases by one or more duly
executed assignment and assumption agreement pursuant to which (i)
Seller shall indemnify Purchaser and hold Purchaser harmless from and
against any and all claims pertaining to the Leases arising prior to
Closing and (ii) Purchaser shall indemnify Seller and hold Seller
harmless from and against any and all claims pertaining to the Leases
arising from and after the Closing, including without limitation,
claims made by tenants with respect to tenants' security deposits to
the extent paid, credited or assigned to Purchaser;
(d) to the extent assignable, assign to Purchaser, and
Purchaser shall assume, Seller's interest in the Assumed Operating
Agreements and the other Intangibles by duly executed assignment and
assumption agreement pursuant to which (i) Seller shall indemnify
Purchaser and hold Purchaser harmless from and against any and all
claims pertaining to the Assumed Operating Agreements or the other
Intangibles arising prior to Closing and (ii) Purchaser shall indemnify
Seller and hold Seller harmless from and against any and all claims
pertaining to the Assumed Operating Agreements or the other Intangibles
arising from and after the Closing;
(e) deliver to Purchaser such Tenant Estoppels (as defined in
Section 5.1(b) hereof) as are in Seller's possession or Seller's
Estoppels to the extent permitted and required under Section 5.1(b)
hereof;
(f) join with Purchaser to execute a notice in form and
content reasonably satisfactory to Purchaser and Seller which Purchaser
shall send to each tenant under each of the Leases informing such
tenant of the sale of the Property in question and of the assignment to
Purchaser of Seller's interest in, and obligations under, the Leases
(including, if applicable any security deposits)
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and directing that all rent and other sums payable after the Closing
under each such Lease shall be paid as set forth in the notice;
(g) deliver to Purchaser such evidence as the Title Company
may reasonably require as to the authority of the person or persons
executing documents on behalf of Seller;
(h) deliver to Purchaser an affidavit duly executed by Seller
stating that Seller is not a "foreign person" as defined in the Federal
Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax
Reform Act;
(i) deliver to Purchaser the Leases, Operating Agreements and
licenses and permits, if any, in the possession of Seller or Seller's
agents, together with such leasing and property files and records which
are material in connection with the continued operation, leasing and
maintenance of the Properties. Purchaser shall cooperate with Seller
for a period of seven (7) years after Closing in case of Seller's need
in response to any legal requirement, a tax audit tax return
preparation or litigation threatened or brought against Seller, by
allowing Seller and its agents or representatives access, upon
reasonable advance notice (which notice shall identify the nature of
the information sought by Seller), at all reasonable times to examine
and make copies of any and all instruments files and records which
right shall survive the Closing;
(j) deliver to Purchaser possession and occupancy of the
Properties, subject to the Permitted Exceptions;
(k) deliver to Purchaser a Closing Statement executed by
Seller in form and substance approved by the parties hereto;
(l) A Bulk Sales Stop Order from the Illinois Department of
Revenue ("Department") under the provisions of the Illinois Income Tax
Act, 35 ILCS 5/902, and the Retailers Occupation Tax Act, 35 ILCS 120/5
(collectively "Acts") and, if available, a full release (the "Release")
of claims from the Department with respect to all debts owed by Seller
under the Acts effective for all periods prior to the Closing Date. If
the Release is not available, the amount to be withheld pursuant to the
Bulk Sales Stop Order shall be held in the escrow by the Title Company
until it receives the Release whereupon the Title Company shall pay to
Seller the entire amount withheld; provided, however, if the delivery
of the Release is subject to a demand for payment of all or a portion
of the amount withheld to the Department, Escrow Agent shall be
authorized and directed to pay such sums in accordance with the demand
and to pay the balance, if any, to Seller; and
(m) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser
shall:
(a) pay to Seller the full amount of the Purchase Price as
increased or decreased by prorations and adjustments as herein
provided, in immediately available wire transferred funds pursuant to
Section 1.5 above;
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(b) join Seller in execution of the instruments described in
Sections 4.2(c), 4.2(d), and 4.2(f) above;
(c) deliver to Seller such evidence as the Title Company may
reasonably require as to the authority of the person or persons
executing documents on behalf of Purchaser;
(d) deliver to Seller counterparts of the Closing Statement
described in Section 4.2(k) above, executed by Purchaser; and
(e) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the
Properties as of 12:01 a.m., on January 1, 1998 (notwithstanding the
December 30 closing date) as if Purchaser were vested with title to the
Properties for the entire day on such date, and Seller were vested with
title the Properties during each of the days immediately preceding such
date:
(i) rents, if any, as and when collected (the term
"rents" as used in this Agreement includes all payments due
and payable by tenants under the Leases);
(ii) payments under the Assumed Operating Agreements;
(iii) gas, electricity and other utility charges for
which Seller is liable, if any, such charges to be apportioned
at Closing on the basis of the most recent meter reading
occurring prior to Closing; and
(iv) any other operating expenses or other items
(other than real estate taxes) pertaining to the Properties
which are customarily prorated between a purchaser and a
seller in the area in which the Properties are located.
(b) Notwithstanding anything contained in the foregoing
provisions:
(i) At Closing, Seller shall, at Seller's option, either
deliver to Purchaser any security deposits actually held by
Seller pursuant to the Leases or credit to the account of
Purchaser the amount of such security deposits (to the extent
such security deposits are not applied against delinquent
rents or otherwise as provided in the Leases). Purchaser shall
be responsible for establishing all accounts with utility
companies serving the Properties and to provide any deposits
required by such companies in connection therewith. Any
refundable cash or other deposit currently held by such
utility companies that were deposited by Seller, its
predecessors or agents ("Seller's Deposits"), are with the
utility companies serving the Properties shall be the property
of Seller and Seller shall have the right to seek a refund
thereof. To the extent any utility company pays to Purchaser
any of Seller's Deposit, Purchaser shall immediately remit
such amount to Seller. This obligation of Purchaser shall
survive Closing.
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(ii) Real estate taxes and similar ad valorem taxes
shall not be prorated.
(iii) Charges referred to in Section 4.4(a) above, if
any, which are payable by any tenant to a third party shall
not be apportioned hereunder, and Purchaser shall accept title
subject to any of such charges unpaid and Purchaser shall look
solely to the tenant responsible therefor for the payment of
the same. If Seller shall have paid any of such charges on
behalf of any tenant, and shall not have been reimbursed
therefor by the time of Closing, Purchaser shall pay to Seller
such amounts as they are collected subsequent to Closing.
(iv) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any water rates or sewer
rents.
(v) As to gas, electricity and other utility charges
referred to Section 4.4(a)(iv) above, Seller may on notice to
Purchaser elect to pay one or more of all of said items
accrued to the date hereinabove fixed for apportionment
directly to the person or entity entitled thereto, and to the
extent Seller so elects, such item shall not be apportioned
hereunder, and Seller's obligation to pay such item directly
in such case shall survive the Closing.
(vi) The Personal Property, if any, is included in this
sale, without further charge.
(vii) Purchaser shall be responsible for the payment
of (A) all Tenant Inducement Costs (as hereinafter defined)
expressly contained in the applicable lease and leasing
commissions pursuant to agreements disclosed in writing to
Purchaser on or before the Closing Date which become due and
payable (whether before or after Closing) (1) as a result of
any renewals or expansions of existing Leases, approved or
deemed approved in accordance with Section 5.1 hereof, between
the Effective Date and the date of Closing, and (2) under any
new Leases, approved or deemed approved in accordance with
Section 5.1 hereof, entered into between the Effective Date
and the date of Closing, and (B) all Tenant Inducement Costs
and leasing commissions which become due and payable from and
after the date of Closing as a result of any agreements
entered into by Purchaser to pay such costs or commissions.
If, as of the date of Closing, Seller shall have paid any
Tenant Inducement Costs or leasing commissions for which
Purchaser is responsible pursuant to the foregoing provisions,
Purchaser shall reimburse Seller therefor at Closing. For
purposes hereof, the term "Tenant Inducement Costs" shall mean
any out-of-pocket payments required under a Lease to be paid
by the landlord thereunder to or for the benefit of the tenant
thereunder which is in the nature of a tenant inducement,
including specifically, without limitation, tenant improvement
costs, lease buyout costs, and moving, design, refurbishment
and club membership allowances. The term "Tenant Inducement
Costs" shall not include loss of income resulting from any
free rental period, it being agreed that Seller shall bear the
loss resulting from any free rental period until the date of
Closing and that Purchaser shall bear such loss from and after
the date of Closing. Notwithstanding anything to the contrary
contained in this Agreement, all Tenant Inducement costs with
respect to which Purchaser agrees to pay or reimburse Seller
are listed on Exhibit F attached hereto.
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(viii) Unpaid and delinquent rent collected by Seller
and Purchaser after the date of Closing shall be delivered as
follows: (a) if Seller collects any unpaid or delinquent rent
for any of the Properties, Seller shall, within fifteen (15)
days after the receipt thereof, deliver to Purchaser any such
rent which Purchaser is entitled to hereunder relating to the
date of Closing and any period thereafter, and (b) if
Purchaser collects any unpaid or delinquent rent from any of
the Properties, Purchaser shall, within fifteen (15) days
after the receipt thereof, deliver to Seller any such rent
which Seller is entitled to hereunder relating to the period
prior to the date of Closing. Seller and Purchaser agree that
all rent received by Seller or Purchaser after the date of
Closing shall be applied first to current rentals, and then to
delinquent rentals, if any, in the order of their maturity.
Purchaser will make a good faith effort after Closing to
collect all rents in the usual course of Purchaser's operation
of the Properties, but Purchaser will not be obligated to
institute any lawsuit or other collection procedures to
collect delinquent rents. Where the Leases contain tenant
obligations for taxes, common area expenses, operating
expenses or additional charges of any other nature, and where
Seller shall have collected any portion thereof in excess of
amounts owed by Seller for such items for the period prior to
the Closing Date, then, to the extent such amounts can be
ascertained as of the Closing Date, there shall be an
adjustment and credit given to Purchaser on the Closing Date
for such excess amounts collected. Purchaser shall apply all
such excess amounts to the charges owed by Purchaser for such
items for the period after the Closing Date and, if required
by the Leases, shall rebate or credit the Tenants with any
remainder. If expenses actually paid by Seller for such items
during such period exceed the amounts actually collected by
Seller which are attributable to such items, Purchaser shall
pay to Seller an amount equal to such deficiency as and when
such amounts are collected by Purchaser from the applicable
tenants. If it is determined that the amount collected during
Seller's ownership period exceeded expenses incurred during
the same period by more than the amount previously credited to
Purchaser at Closing, then Seller shall promptly pay to
Purchaser the deficiency. If it is determined that the amount
collected during Seller's ownership period exceeded expenses
incurred during the same period by less than the amount
previously credited to Purchaser at Closing, then Purchaser
shall promptly pay to Seller the difference.
(ix) Seller and Purchaser shall jointly prepare a
preliminary Closing adjustment on the basis of the Leases and
other sources of income and expenses, and shall deliver such
computation to the Title Company prior to Closing.
(x) If any of the aforesaid prorations cannot be
calculated accurately on the Closing Date, then they shall be
calculated as soon after the Closing Date as feasible. Either
party owing the other party a sum of money based on such
subsequent proration(s) shall promptly pay said sum to the
other party, together with interest thereon at the rate of two
percent (2%) over the average "prime rate" (as announced from
time to time in the Wall Street Journal) per annum from the
Closing Date to the date of payment if payment is not made
within ten (10) days after delivery of a ▇▇▇▇ therefor.
(c) The provisions of this Section 4.4 shall survive Closing.
4.5 Closing Costs. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction; (b) the fee for the Title
Commitment; and (c) the cost of the Surveys. Purchaser shall pay
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(v) the fees of any counsel representing Purchaser in connection with this
transaction; (w) any local, county or state deed or transfer tax or similar tax
which becomes payable by reason of the transfer of the Properties; (x) the
premium for the Owner's Policy of Title Insurance to be issued to Purchaser by
the Title Company at Closing; (y) the fees for recording the deed(s) conveying
the Properties to Purchaser; and (z) all other costs and expenses incident to
this transaction and the closing thereof.
4.6 Conditions Precedent to Obligation of Purchaser. The
obligation of Purchaser to consummate the transaction hereunder shall be subject
to the fulfillment on or before the date of Closing of all of the following
conditions any or all of which may be waived by Purchaser in writing in its sole
discretion:
(a) Seller shall have delivered to Purchaser all of the items
required to be delivered to Purchaser pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section
4.2.
(b) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all material
respects as of the date of Closing (with appropriate modifications
permitted under this Agreement or not adverse to Purchaser).
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be
performed and observed by Seller as of the date of Closing.
(d) Seller shall have obtained and delivered to Purchaser a
tenant estoppel certificate in form and substance satisfactory to
Purchaser from each of the tenants under the Leases (the "Tenants");
provided, that this condition may be satisfied by Seller's delivery of
a Seller's estoppel certificate in the form prescribed hereby for any
Tenant (and provided that in the event that any Tenant Estoppel
delivered to and accepted by Purchaser with respect to any Lease shall
contain any statement of fact, information or other matter which is
inconsistent with the matters stated in Seller's representations in
this Agreement, the Tenant Estoppel shall control and Seller shall have
no liability for any claim based upon a breach of representation
regarding such statement of fact, information or other matter contained
in the Tenant Estoppel). Said certificates shall be substantially in
the form attached hereto as Exhibit D or D-1, as applicable (as
modified to address specific concerns arising as a result of
Purchaser's review of the Leases) and shall be dated no earlier than
thirty (30) days prior to the Closing Date.
(e) The physical condition of each of the Properties shall be
substantially the same on the day of Closing as of the last day of the
Inspection Period, reasonable wear and tear and loss by casualty
excepted (subject to the provisions of Article VII below), and, as of
the day of Closing, there shall be no litigation or administrative
agency or other governmental proceeding of any kind whatsoever, pending
or threatened, which after Closing would, in Purchaser's reasonable
discretion, materially adversely affect the value of the Properties or
the ability of Purchaser to operate the Properties in the manner in
which it is currently being operated, and no proceedings shall be
pending or threatened which could or would cause the redesignation or
other modification of the zoning classification of, or of any building
or environmental code requirements applicable to, any of the
Properties.
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4.7 Conditions Precedent to Obligation of Seller. The obligation
of Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted
pursuant to and payable in the manner provided for in this Agreement.
(b) Purchaser shall have delivered to Seller all of the items
required to be delivered to Seller pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section
4.3.
(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material
respects as of the date of Closing.
(d) Purchaser shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Purchaser as of the date of Closing.
ARTICLE V
SELLER AND PURCHASER COVENANTS
5.1 Covenants of Seller. Seller hereby covenants with Purchaser
as follows:
(a) From the Effective Date hereof until the Closing or
earlier termination of this Agreement, Seller shall use reasonable
efforts to operate and maintain the Properties in a manner generally
consistent with the manner in which Seller has operated and maintained
the Properties prior to the date hereof.
(b) Seller shall use reasonable efforts (but without
obligation to incur any cost or expense) to obtain and deliver to
Purchaser prior to Closing, a written estoppel certificate in the form
of Exhibit D attached hereto and made a part hereof signed by each
tenant occupying space in any of the Properties. The signed
certificates are referred to herein as the "Tenant Estoppels".
(c) A copy of any renewal or expansion of an existing Lease or
of any new Lease which Seller wishes to execute between the Effective
Date and the date of Closing will be submitted to Purchaser prior to
execution by Seller. Purchaser agrees to notify Seller in writing
within five (5) business days after its receipt thereof of either its
approval or disapproval, including all Tenant Inducement Costs and
leasing commissions to be incurred in connection therewith. In the
event Purchaser informs Seller that Purchaser does not approve the
renewal or expansion of the existing Lease or the new Lease, which
approval shall not be unreasonably withheld, Seller shall have the
option to cancel this Agreement by written notice thereof to Purchaser
within five (5) business days after Seller's receipt of written notice
of Purchaser's disapproval thereof, and neither party shall have any
further liability or obligation hereunder. In the event Purchaser fails
to notify Seller in writing of its approval or disapproval within the
five (5) day time period for such purpose set forth above, such failure
shall be deemed the disapproval by Purchaser. At Closing, Purchaser
shall reimburse
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Seller for any Tenant Inducement Costs and leasing commissions incurred
by Seller pursuant to a renewal, an expansion or any new Lease approved
by Purchaser.
5.2 Covenants of Purchaser. Purchaser hereby covenants with
Seller that Purchaser shall, in connection with its investigation of the
Properties during the Inspection Period, inspect the Properties for the
presence of Hazardous Substances, and shall furnish to Seller copies of any
reports received by Purchaser in connection with any such inspection. Purchaser
shall also furnish to Seller copies of any other reports received by Purchaser
relating to any other inspections of the Properties conducted on Purchaser's
behalf, if any (including, specifically, without limitation, any reports
analyzing compliance of the Properties with the provisions of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. ss.12101, et seq., if applicable). Any
reports furnished by Purchaser to Seller shall be furnished without warranty of
any kind whatsoever and shall exclude any attorney-client privileged materials.
ARTICLE VI
DEFAULT
6.1 Default by Purchaser. If Purchaser defaults under this
Agreement, Seller's sole and exclusive remedy shall be to terminate this
Agreement by giving written notice thereof to Purchaser, whereupon the ▇▇▇▇▇▇▇
Money shall be paid to Seller as liquidated damages, as Seller's sole and
exclusive remedy on account of such default hereunder by Purchaser. The parties
acknowledge and agree that actual damages in such event are uncertain in amount
and difficult to ascertain and that said amount of liquidated damages was
reasonably determined.
6.2 Default by Seller. In the event that Seller fails to
consummate this Agreement for any reason other than Purchaser's default or the
permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its sole remedy, either (a)
to terminate this Agreement, or (b) to enforce specific performance of Seller's
obligation to execute the documents required to convey the Properties to
Purchaser, it being understood and agreed that the remedy of specific
performance shall not be available to enforce any other obligation of Seller
hereunder. Purchaser expressly waives its rights to seek damages in the event of
Seller's default hereunder. Purchaser shall be deemed to have elected to
terminate this Agreement if Purchaser fails to file suit for specific
performance against Seller in a court having jurisdiction in the county and
state in which the Properties are located, on or before sixty (60) days
following the date upon which Closing was to have occurred.
ARTICLE VII
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the
Properties or any portion thereof which is not "major" (as hereinafter
defined), this Agreement shall remain in full force and effect provided Seller
performs any necessary repairs or, at Seller's option, assigns to Purchaser all
of Seller's right, title and interest to any claims and proceeds Seller may
have with respect to any casualty insurance policies or condemnation awards
relating to the premises in question. In the event that Seller elects to
perform repairs upon the Property, Seller shall use reasonable efforts to
complete such repairs promptly and the date of
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Closing shall be extended a reasonable time in order to allow for the completion
of such repairs. If Seller elects to assign a casualty claim to Purchaser, the
Purchase Price shall be reduced by an amount equal to the deductible amount
under Seller's insurance policy. Upon Closing, full risk of loss with respect to
the Properties shall pass to Purchaser.
7.2 Major Damage. In the event of a "major" loss or damage, either
Seller or Purchaser may terminate this Agreement by written notice to the other
party. If neither Seller nor Purchaser elects to terminate this Agreement within
ten (10) days after Seller sends Purchaser written notice of the occurrence of
major loss or damage, then Seller and Purchaser shall be deemed to have elected
to proceed with Closing, in which event Seller shall, at Seller's option, either
(a) perform any necessary repairs, or (b) assign to Purchaser all of Seller's
right, title and interest to any claims and proceeds Seller may have with
respect to any casualty insurance policies or condemnation awards relating to
the premises in question. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the date of Closing shall be extended a reasonable time in order to
allow for the completion of such repairs. If Seller elects to assign a casualty
claim to Purchaser, the Purchase Price shall be reduced by an amount equal to
the deductible amount under Seller's insurance policy. Upon Closing, full risk
of loss with respect to the Properties shall pass to Purchaser.
7.3 Definition of "Major" Loss or Damage. For purposes of
Sections 7.1 and 7.2, "major" loss or damage refers to the following: (i) loss
or damage to the Property or any portion thereof such that the cost of
repairing or restoring the premises in question to a condition substantially
identical to that of the premises in question prior to the event of damage
would be, in the opinion of an architect selected by Seller and reasonably
approved by Purchaser, equal to or greater than One Hundred Thousand Dollars
($100,000), and (ii) any loss due to a condemnation. If Purchaser does not give
notice to Seller of Purchaser's reasons for disapproving an architect within
five (5) business days after receipt of notice of the proposed architect,
Purchaser shall be deemed to have approved the architect selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 Brokerage Commissions. In the event the transaction
contemplated by this Agreement is consummated, but not otherwise, Seller agrees
to pay to ▇▇▇▇▇▇▇ & Kahnweiler (the "Broker") at Closing a brokerage commission
pursuant to a separate written agreement between Seller and Broker. Each party
agrees that should any claim be made for brokerage commissions or finder's fees
by any broker or finder other than the Broker by, through or on account of any
acts of said party or its representatives, said party will indemnify and hold
the other party free and harmless from and against any and all loss, liability,
cost, damage and expense in connection therewith. The provisions of this
paragraph shall survive Closing.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 No Reliance on Documents. Except as expressly stated in this
Agreement, Seller makes no representation or warranty as to the truth, accuracy
or completeness of any materials, data or information
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delivered by Seller to Purchaser in connection with the transaction contemplated
hereby. Purchaser acknowledges and agrees that all materials, data and
information delivered by Seller to Purchaser in connection with the transaction
contemplated hereby are provided to Purchaser as a convenience only and that any
reliance on or use of such materials, data or information by Purchaser shall be
at the sole risk of Purchaser, except as otherwise expressly stated herein.
Without limiting the generality of the foregoing provisions, Purchaser
acknowledges and agrees that (a) any environmental or other report with respect
to the Properties which is delivered by Seller to Purchaser shall be for general
informational purposes only, (b) Purchaser shall not have any right to rely on
any such report delivered by Seller to Purchaser, but rather will rely on its
own inspections and investigations of the Properties and any reports
commissioned by Purchaser with respect thereto, and (c) neither Seller, any
affiliate of Seller nor the person or entity which prepared any such report
delivered by Seller to Purchaser shall have any liability to Purchaser for any
inaccuracy in or omission from any such report.
9.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME
MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR
IMPLIED, WITH RESPECT TO THE PROPERTIES, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE
SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR
ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTIES WITH GOVERNMENTAL LAWS,
THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTIES DOCUMENTS OR ANY OTHER
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER
OR THING REGARDING THE PROPERTIES. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON
CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTIES "AS IS, WHERE IS, WITH ALL FAULTS". EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT, PURCHASER HAS NOT RELIED AND WILL NOT RELY
ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTIES OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTIES) MADE
OR FURNISHED BY SELLER, THE MANAGER OF THE PROPERTIES, OR ANY REAL ESTATE BROKER
OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR
GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET
FORTH IN THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS
CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE
PROPERTIES, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE
CONDITION OF THE PROPERTIES AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION
TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED
FROM THE PROPERTIES, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS
ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, EXCEPT TO THE EXTENT OF
ANY BREACH BY SELLER OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION
11.01 BELOW, AND EXCEPT WITH RESPECT TO ANY CLAIMS FOR DAMAGES, REMEDIATION,
CONTRIBUTION OR INDEMNITY BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION
GOVERNMENTAL AUTHORITIES, RELATING TO THE PROPERTIES AND SELLER'S PERIOD OF
OWNERSHIP THEREOF, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S
INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF
ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE
ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF
ANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND
ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING
THE PROPERTIES. EXCEPT TO THE EXTENT OF ANY BREACH
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BY SELLER OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11.01
BELOW, AND EXCEPT WITH RESPECT TO ANY CLAIMS FOR DAMAGES, REMEDIATION,
CONTRIBUTION OR INDEMNITY BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION
GOVERNMENTAL AUTHORITIES, RELATING TO THE PROPERTIES AND SELLER'S PERIOD OF
OWNERSHIP THEREOF, PURCHASER AGREES THAT SHOULD ANY CLEANUP, REMEDIATION OR
REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE
PROPERTIES BE REQUIRED AFTER THE DATE OF CLOSING, SUCH CLEAN-UP, REMOVAL OR
REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE
COST AND EXPENSE OF PURCHASER.
9.3 Effect and Survival of Disclaimers. Seller and Purchaser
acknowledge that the compensation to be paid to Seller for the Properties has
been calculated and determined taking into account the existing condition of the
Properties, including without limitation any condition disclosed in that Roofing
Investigation Report prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Phase I environmental
assessment prepared by RERC Environmental, and that the Properties are being
sold subject to the provisions of this Article IX. Seller and Purchaser agree
that the provisions of this Article IX shall survive Closing.
ARTICLE X
MISCELLANEOUS
10.1 Confidentiality. Purchaser and its representatives shall hold
in strictest confidence all data and information obtained with respect to Seller
or its business, whether obtained before or after the execution and delivery of
this Agreement, and shall not disclose the same to others; provided, however,
that it is understood and agreed that Purchaser may disclose such data and
information to (i) the employees, consultants, accountants and attorneys of
Purchaser provided that such persons agree to treat such data and information
confidentially or (ii) as required by law or any court having jurisdiction. In
the event this
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Agreement is terminated or Purchaser fails to perform hereunder, Purchaser shall
promptly return to Seller any statements, documents, schedules, exhibits or
other written information obtained from Seller in connection with this Agreement
or the transaction contemplated herein. It is understood and agreed that, with
respect to any provision of this Agreement which refers to the termination of
this Agreement, Purchaser shall fulfill its obligation to return to Seller the
materials described in the preceding sentence which were delivered to Purchaser
by Seller. In the event of a breach or threatened breach by Purchaser or its
agents or representatives of this Section 10.1, Seller shall be entitled to an
injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach or threatened breach.
10.2 Public Disclosure. Prior to Closing, any release to the
public of information with respect to the sale contemplated herein or any
matters set forth in this Agreement will be made only in the form approved by
Purchaser and Seller and their respective counsel.
10.3 Discharge of Obligations. The acceptance of the Deed by
Purchaser shall be deemed to be a full performance and discharge of every
representation and warranty made by Seller herein and every agreement and
obligation on the part of Seller to be performed pursuant to the provisions of
this Agreement, except those which are herein specifically stated to survive
Closing.
10.4 Assignment. Purchaser may not assign its rights under this
Agreement without first obtaining Seller's written approval, which approval may
be given or withheld in Seller's reasonable discretion. Under no circumstances
shall Purchaser have the right to assign this Agreement to any person or entity
owned or controlled by an employee benefit plan if Seller's sale of the
Properties to such person or entity would, in the reasonable opinion of Seller's
ERISA advisor, create or otherwise cause a "prohibited transaction" under ERISA.
In the event Purchaser assigns this Agreement or transfers any ownership
interest in Purchaser without the consent of Seller, and such assignment or
transfer would make the consummation of the transaction hereunder a "prohibited
transaction" under ERISA and necessitate the termination of this Agreement then,
notwithstanding any contrary provision which may be contained herein, Seller
shall have the right to pursue any remedy available at law or in equity as a
result of such assignment or transfer. Any transfer, directly or indirectly, of
any stock, partnership interest or other ownership interest in Purchaser without
Seller's written approval, which approval may be given or withheld in Seller's
reasonable discretion, shall constitute a default by Purchaser under this
Agreement.
10.5 Notices. Any notice pursuant to this Agreement shall be given
in writing by (a) personal delivery, or (b) reputable overnight delivery service
with proof of delivery, or (c) United States Mail, postage prepaid, registered
or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given either at the time of personal delivery, or, in the
case of expedited delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
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If to Seller: EML Associates
c/o ERE Yarmouth
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
Attn: Messrs. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ and
Lane ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: AMB Institutional Realty
Advisors, Inc.
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TELECOPY: (▇▇▇) ▇▇▇-▇▇▇▇
10.6 Binding Effect. This Agreement shall not be binding in any
way upon Seller or Purchaser unless and until Seller and Purchaser shall each
execute and deliver the same to the other.
10.7 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 Tenant Notification Letters. Purchaser and Seller shall
deliver to each and every tenant of the Properties under a Lease thereof a
signed statement acknowledging Purchaser's receipt and responsibility for each
tenant's security deposit (to the extent delivered by Seller to Purchaser at
Closing), if any, all in compliance with and pursuant to the applicable
provisions of applicable law. The provisions of this paragraph shall survive
Closing.
10.9 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
in which the Properties are located, in
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which event the period shall run until the end of the next day which is neither
a Saturday, Sunday or legal holiday. The final day of any such period shall be
deemed to end at 5 p.m., local time.
10.10 Successors and Assigns. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
10.11 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior written or oral agreements and
understandings between the parties pertaining to such subject matter.
10.12 Further Assurances. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement. Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Properties. The provisions of this Section 10.12 shall survive
Closing.
10.13 Counterparts. This Agreement may be executed in counterparts,
and all such executed counterparts shall constitute the same agreement. It shall
be necessary to account for only one such counterpart in proving this Agreement.
10.14 Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect.
10.15 Applicable Law. This Agreement is performable in the state in
which the Properties are located and shall in all respects be governed by, and
construed in accordance with, the substantive federal laws of the United States
and the laws of such state. Seller and Purchaser hereby irrevocably submit to
the jurisdiction of any state or federal court sitting in the state in which the
Properties are located in any action or proceeding arising out of or relating to
this Agreement and hereby irrevocably agree that all claims in respect of such
action or proceeding shall be heard and determined in a state or federal court
sitting in the state in which the Properties are located. Purchaser and Seller
agree that the provisions of this section 10.15 shall survive the Closing of the
transaction contemplated by this Agreement.
10.16 No Third Party Beneficiaries. The provisions of this Agreement
and of the documents to be executed and delivered at Closing are and will be for
the benefit of Seller and Purchaser only and are not for the benefit of any
third party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
10.17 Exhibits and Schedules. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) Exhibit A-1 through A-4 - Legal Descriptions of the Land
(b) Exhibit B-1 through B-4 - Lease Schedules
(c) Exhibit C-1 through C4 - Operating Agreements Schedules
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(d) Exhibits D and D-1 - Tenant Estoppel Form/Seller
Estoppel Form
(e) Exhibit E - Seller Environmental Assessment Reports
(f) Exhibit F - Tenant Inducement Costs Schedule
10.18 Captions. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
10.19 Construction. The parties acknowledge that the parties and
their 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 exhibits or amendments hereto.
10.20 Termination of Agreement. It is understood and agreed that if
either Purchaser or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Purchaser from all obligations under this Agreement, except for such
obligations as are officially stated herein to survive the termination of this
Agreement.
10.21 Survival. The provisions of the following Sections of this
Agreement shall survive Closing and shall not be merged into the execution and
delivery of the Deed: 3.1; 4.2(i); 4.4; 8.1; 9.3; 10.8; 10.12; 10.15; 10.22;
Sections 11.1 and 11.2 (except that all provisions thereof other than
subparagraph 11.1(m) shall only survive for a period not to exceed twelve months
following the Closing, and subparagraph 11.01(m) shall not be subject to such
12-month limitation); and Article XII.
10.22 Enforcement. If either party hereto fails to perform any of
its obligations under this Agreement or if a dispute arises between the parties
hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such dispute
shall pay any and all costs and expenses incurred by the other party on account
of such default and/or in enforcing or establishing its rights hereunder,
including, without limitation, court costs and reasonable attorneys' fees and
disbursements. Any such attorneys' fees and other expenses incurred by either
party in enforcing a judgment in its favor under this Agreement shall be
recoverable separately from and in addition to any other amount included in such
judgment, and such attorneys' fees obligation is intended to be severable from
the other provisions of this Agreement and to survive and not be merged into any
such judgment.
10.23 Marketing. Seller agrees not to market or show the Properties
to any other prospective purchasers during the term of this Agreement.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 Representations and Warranties of Seller. Seller hereby
represents and warrants to and covenants with Purchaser as follows:
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(a) To Seller's knowledge, Seller has received no written notices
that either the Properties or the use thereof violates any laws, rules and
regulations of any federal, state, city or county government or any agency,
body, or subdivision thereof having any jurisdiction over the Properties that
have not been resolved to the satisfaction to the issuer of the notice.
(b) To Seller's knowledge, Seller has made available to Purchaser
all documents, books, records and any other materials relating to or concerning
the Properties which Seller has in its possession or are in the possession of
Seller's property manager or leasing agent. To Seller's knowledge, there are no
material agreements concerning the Properties which are not in the possession of
Seller, its property manager or its leasing agent. The copies of the Assumed
Operating Agreements delivered to Purchaser by Seller are true, correct and
complete copies of such documents, and to Seller's knowledge the Assumed
Operating Agreements are without default by (or notice of default to) any party.
To Seller's knowledge, Seller has delivered or caused to be delivered no written
notices of default to any tenant of the Properties which are outstanding and
remain uncured as of the date of execution hereof (and as of the Closing Date),
and Seller has received no written notices from any tenant of any default by
Seller under any lease affecting the Properties which Seller has not heretofore
cured or will not have cured prior to Closing.
(c) To Seller's knowledge, there are no condemnation,
environmental, zoning or other land-use regulation proceedings, either
instituted or, to Seller's knowledge, planned to be instituted, which would
detrimentally affect the use, operation or value of the Properties, nor has
Seller received notice of any special assessment proceedings affecting the
Properties. Seller shall notify Purchaser promptly of any such proceedings of
which Seller becomes aware.
(d) To Seller's knowledge, there is no litigation pending or
threatened that might detrimentally affect the value or the use or operation of
the Properties for its intended purpose or the ability of Seller to perform its
obligations under this Agreement. Seller shall notify Purchaser promptly of any
such litigation of which Seller becomes aware.
(e) Seller is a general partnership duly organized, validly
existing under the laws of the State of New York; this Agreement and all
documents executed by Seller which are to be delivered to Purchaser at the
Closing are and at the time of Closing will be duly authorized, executed and
delivered by Seller, are and at the time of Closing will be legal, valid and
binding obligations of Seller enforceable against Seller in accordance with
their respective terms, and do not and at the time of Closing will not violate
any provision of any agreement or judicial order to which Seller or the
Properties are subject.
(f) At the time of Closing there will be no outstanding contracts
made by Seller for any improvements to the Properties, which have not been fully
paid for and Seller shall cause to be discharged all mechanics' and
materialmen's liens arising from any labor or materials furnished to the
Properties prior to the time of Closing. To Seller's knowledge, Seller has
completed all tenant improvements, including punch-list items, with respect to
any tenant improvements constructed by Seller as landlord under the Leases on
the Properties.
(g) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Code.
(h) Except as set forth in any environmental assessment reports in
Seller's possession and disclosed to Purchaser or as otherwise disclosed to
Purchaser (all of which are listed on Exhibit "E" attached hereto), to Seller's
knowledge Seller has received no written notification that any governmental or
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quasi-governmental authority has determined that there are any violations of
environmental statutes, ordinances or regulations affecting the Properties. For
the purposes hereof, "Hazardous Material" shall mean any substance, chemicals,
waste or other material which is listed, defined or otherwise identified as
"hazardous" or "toxic" under any federal, state, local or administrative agency
ordinance or law, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. ss.ss.6901 et seq. and the
Resource Conservation and Recovery Act, 52 U.S.C. ss.ss.6901 et seq., or any
regulation, order, rule or requirement adopted thereunder, as well as any
formaldehyde, urea, polychlorinated biphenyls, petroleum, petroleum product or
by-product, crude oil, natural gas, natural gas liquids, liquefied natural gas,
or synthetic gas usable for fuel or mixture thereof, radon, asbestos, and
"source," "special nuclear" and "by-product" material as defined in the Atomic
Energy Act of 1985, 42 U.S.C. ss.ss.3011 et seq.
(i) Except for any options, if any, granted to tenants to lease
additional space in the Properties as set forth in their respective leases,
Seller has not granted any option or right of first refusal or first opportunity
to any party to acquire any interest in any of the Properties.
(j) Neither Seller nor, to Seller's knowledge, any Tenant has
either filed or been the subject of any filing of a petition under the Federal
Bankruptcy Law or any federal or state insolvency laws or laws for composition
of indebtedness or for the reorganization of debtors.
(k) The Lease Schedules attached hereto as Exhibits ▇-▇, ▇-▇, ▇-▇
and B-4 are true, correct and complete.
(l) To Seller's knowledge, no Tenant has indicated to Seller in
writing its intent to terminate its Leases prior to expiration of the term of
the Leases.
(m) No brokerage or similar fee is due or unpaid by Seller with
respect to the Leases. Except as disclosed on Exhibit E attached hereto, no
brokerage or similar fee shall be due or payable after the Closing in connection
with the Leases, including, without limitation, as a result of the exercise of,
without limitation, any renewal, extension or expansion options arising under
the Leases.
(n) There are no "facilities" at, on or under the Property which
are subject to reporting under Section 312 of the Federal Emergency Planning
Community Right-to-Know Act of 1986 and federal regulations promulgated
thereunder, and there are no underground storage tanks at, on or under the
Property which require notification under Section 9002 of the Solid Waste Solid
Disposal Act as now or hereafter amended (42 U.S.C. 6991). The Responsible
Property Transfer Act of 1988 (765 ILCS 90/1 et seq.) is not applicable to the
transfer of the Property from Seller or the Trustee to Purchaser."
(o) As used herein, "to Seller's knowledge" shall refer only to
the actual knowledge of the Designated Employees (as hereinafter defined) of (i)
ERE Yarmouth ("ERE"), Seller's investment advisor, and (ii) ▇▇▇ ▇▇▇▇
("Manager"), the property manager, respectively, and shall not be construed, by
imputation or otherwise, to refer to the knowledge of Seller, or either of the
partners of Seller or any affiliate of either of them, or to any other officer,
agent, manager, representative or employee of Seller or ERE or Manager or any
affiliate thereof or to impose upon such Designated Employees any duty to
investigate the matter to which such actual knowledge, or the absence thereof,
pertains. As used herein, the term "Designated Employees" shall refer to the
following persons: (a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who is the asset manager for the
Properties at ERE, and (b) ▇▇▇ ▇▇▇▇, who is the individual at Manager
responsible for the management of the Properties.
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11.2 Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to and covenants with Seller
that Purchaser is duly organized and validly existing as a Delaware corporation;
this Agreement and all documents executed by Purchaser which are to be delivered
to Seller at the Closing are and at the time of Closing will be duly authorized,
executed and delivered by Purchaser, are and at the time of Closing will be
legal, valid and binding obligations of Purchaser enforceable against Purchaser
in accordance with their respective terms, and do not and at the time of Closing
will not violate any provision of any agreement or judicial order to which
Purchaser or the Properties are subject.
ARTICLE XII
INDEMNIFICATION
12. Indemnification.
(a) Each party hereby agrees to indemnify the other party and
defend and hold it harmless from and against any and all claims, demands,
liabilities, costs, expenses, penalties, damages and losses, including, without
limitation, reasonable attorneys' fees, resulting from any misrepresentation or
breach of warranty or breach of covenant made by such party in this Agreement or
in any document, certificate, or exhibit given or delivered to the other
pursuant to or in connection with this Agreement.
(b) Seller agrees to indemnify Purchaser and defend and hold
Purchaser harmless from and against any and all claims, demands, liabilities,
costs, expenses, penalties, damages and losses, including, without limitation,
reasonable attorneys' fees, asserted against, incurred or suffered by Purchaser
resulting from any personal injury or property damage occurring in, on or about
the Property or relating thereto before the Closing Date, from any cause
whatsoever other than as a consequence of the acts or omissions of Purchaser,
its agents, employees or contractors.
(c) Purchaser agrees to indemnify Seller and defend and hold
Seller harmless from any claims, losses, demands, liabilities, costs, expenses,
penalties, damages and losses, including, without limitation, reasonable
attorneys' fees, asserted against, incurred or suffered by Seller resulting from
any personal injury or property damage occurring in, on or about the Properties
or relating thereto after the Closing Date, from any cause whatsoever other than
as a consequence of the acts or omissions of Seller, its agents, employees or
contractors.
(d) The indemnification provisions of this Section 12 shall
survive beyond the Closing, or, if the Closing does not occur pursuant to this
Agreement, beyond any termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
EML ASSOCIATES, a joint venture in the form of
a New York general partnership
By: ML/EQ Real Estate Portfolio, L.P., a
Delaware limited partnership, its Managing
Venturer
By: EREIM Managers Corp., its Managing
General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
PURCHASER:
SPP REAL ESTATE (▇'▇▇▇▇), INC., a Delaware
corporation
By: AMB Institutional Realty Advisors, L.P., its
Authorized Agent
By: AMB Institution Realty Advisors,
Inc., its general partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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EXHIBITS
Exhibit A-1 Willowbrook Land
Exhibit A-2 Itasca Land
Exhibit A-3 Bensenville #1 Land
Exhibit A-4 Bensenville #2 Land
Exhibit B-1 Willowbrook Leases
Exhibit B-2 Itasca Leases
Exhibit B-3 Bensenville #1 Leases
Exhibit B-4 Bensenville #2 Leases
Exhibit C-1 Willowbrook Operating Agreements
Exhibit C-2 Itasca Operating Agreements
Exhibit C-3 Bensenville #1 Operating Agreements
Exhibit C-4 Bensenville #2 Operating Agreements
Exhibit D Tenant Estoppel
Exhibit D-1 Seller's Estoppel
Exhibit E Seller's Environmental Reports
Exhibit F Tenant Inducement Costs
27
Exhibit A-1
Description of Willowbrook Land
28
Exhibit A-2
Description of Itasca Land
29
Exhibit A-3
Description of Bensenville #1 Land
30
Exhibit A-4
Description of Bensenville #2 Land
31
Exhibit B-1
Schedule of Willowbrook Leases
DOCUMENT
TENANT DOCUMENT DATE
ACME Window Coverings, Ltd. Lease 02/01/96
ACME Window Coverings, Ltd. Amendment 06/05/96
32
Exhibit B-2
Schedule of Itasca Leases
DOCUMENT
TENANT DOCUMENT DATE
Concentric, Inc. Lease 02/01/96
33
Exhibit B-3
Schedule of Bensenville #1 Leases
TENANT DOCUMENT DATE
Triangle Engineered Products Co. Lease 05/12/89
Triangle Engineered Products Co. First Amendment 07/01/93
Triangle Engineered Products Co. Second Amendment 02/01/95
Triangle Engineered Products Co. Third Amendment 08/01/97
34
Exhibit B-4
Schedule of Bensenville #2 Leases
DOCUMENT
TENANT DOCUMENT DATE
[S] [C] [C]
Hi-Performance Fasteners Systems, Inc. Lease 09/01/94
Hi-Performance Fasteners Systems, Inc. First Amendment 11/01/94
35
Exhibit C-1
Schedule of Willowbrook Operating Agreements
-NONE-
36
Exhibit C-2
Schedule of Itasca Operating Agreements
1. Performance Building Products, Inc. (TEN YEAR Roofing Guaranty), No.
92.082.601, date 08/26/92.
37
Exhibit C-3
Schedule of Bensenville #1 Operating Agreements
-NONE-
38
Exhibit C-4
Schedule of Bensenville #2 Operating Agreements
1. Performance Building Products, Inc. (Insured Roofing Guaranty) No.
89.071.803, dated 11-6-89.
39
Exhibit D
Form of Tenant Estoppel
40
Exhibit D-1
Form of Seller's Estoppel
The undersigned landlord ("Landlord"), as Landlord under the Lease of
the above-referenced premises ("Premises") executed by ___________, as Tenant,
and Landlord on the above-referenced Lease Date, hereby states, declares,
represents and warrants to ___________ ("Purchaser") and its assignees as
follows:
1. Lease. That the copy of the Lease attached hereto as Exhibit
A is a true and complete correct copy of the Lease which is in full
force and effect and which has not been amended, supplemented or
changed by Letter agreement or otherwise, except as follows:______ .
2. Completion of Premises/No Disputes. Tenant has accepted
possession of the Premises, and all conditions to be satisfied by
Landlord under the Lease have been completed pursuant to the terms of
the Lease, including but not limited to, completion of construction of
the Premises (and all other improvements required under the Lease) in
accordance with applicable plans and specifications and payment of any
improvement allowances; there are no unreimbursed expenses (except for
any annual reconciliation of operating expenses and tax expense
adjustments).
3. Base Rental Notes. Except for increases listed on the
previous page, Base Rental is subject to the following adjustments:___.
4. No Default/Claims. Neither Landlord nor, to Landlord's
actual knowledge, Tenant under the Lease is in default under any of
the terms of the Lease nor has any event occurred which with the
passage of time (after notice if any required by the Lease) would
become an event of default under the Lease. To the actual knowledge of
Landlord, Tenant has no claims, counterclaims, defenses or setoffs
against Landlord arising from the Lease, nor is Tenant entitled to any
concession, rebate allowance or free rent for any period after the
certification, except as follows: _____________.
5. No Advance Payments. Except for current month's rent and, if
any, the Security Deposit, the following rent has been paid in advance
by Tenant: ___________________________________.
6. No Sublease/Assignment. To Landlord's actual knowledge,
Tenant has not entered into any sublease, assignment or any other
agreement transferring any of its interests in the Lease or the
Premises, except as follows: ___________________________.
This Landlord Estoppel Certificate shall expire and be of no further
force and effect upon the earlier of (a) twelve (12) months following the date
hereof, or (b) delivery by Landlord to Purchaser of a Tenant Estoppel
Certificate executed by Tenant in the form required pursuant to the Purchase and
Sale Agreement dated as of December ___, 1997 between Purchaser and Landlord, or
in a form otherwise satisfactory to and accepted by Purchaser.
41
EML ASSOCIATES, a joint venture in the form of
a New York general partnership
By: ML/EQ Real Estate Portfolio, L.P., a
Delaware limited partnership, its Managing
Venturer
By: EREIM Managers Corp., its
Managing General Partner
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
42
Exhibit E
Schedule of Seller's Environmental Reports
1. Phase I Environmental Site Assessment of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Job #4405, prepared RERC Environmental, Inc. dated November
20, 1997.
2. Phase I Environmental Site Assessment of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Job #4406, prepared RERC Environmental, Inc. dated November
20, 1997.
3. Phase I Environmental Site Assessment of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Job #4407 prepared RERC Environmental, Inc. dated November 20,
1997.
4. Phase I Environmental Site Assessment of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Job #4408, prepared RERC Environmental, Inc. dated November
20, 1997.
43
Exhibit F
Schedule of Tenant Inducement Costs
NONE