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EXHIBIT 2.2
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AGREEMENT OF PURCHASE AND SALE
HIGHLAND GROVE SHOPPING CENTER
DEVELOPERS DIVERSIFIED REALTY CORPORATION
AND
OPUS NORTH CORPORATION
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TABLE OF CONTENTS
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1. RECITALS.................................................................1
1.01 Definitions........................................................1
1.02 Land/Improvements..................................................1
1.03 Real Property......................................................1
2. AGREEMENT TO PURCHASE AND SELL...........................................1
2.01 Purchase/Sale......................................................2
3. PURCHASE PRICE AND MANNER OF PAYMENT.....................................2
3.01 Purchase Price.....................................................2
3.02 Purchase Price Portions............................................2
4. ESCROW...................................................................3
4.01 Escrow Agent.......................................................3
4.02 Filings............................................................3
5. SITE ANALYSIS............................................................3
5.01 Site Analysis Documents............................................3
5.02 Access.............................................................4
5.03 Site Analysis Period...............................................5
5.04 Cure of Unacceptable Conditions....................................6
6. SURVEY AND TITLE INSURANCE...............................................8
6.01 Survey.............................................................8
6.02 Title Commitment...................................................8
6.03 Purchaser's Objections; Seller's Cure..............................9
6.04 Title Policy.......................................................9
7. SELLER'S CLOSING DOCUMENTS AND ESCROW...................................10
7.01 Deed..............................................................10
7.02 Assignment of Leases..............................................10
7.03 Leases and Tenant Documents.......................................11
7.04 ▇▇▇▇ of Sale......................................................11
7.05 Assignment of Contracts...........................................11
7.06 Violations/Work Orders Affidavit..................................11
7.07 Keys..............................................................11
7.08 Plans and Specifications..........................................11
7.09 Title Insurance Affidavit.........................................11
7.10 FIRPTA Certificate/Withholding....................................11
7.11 Form 1099.........................................................12
7.12 Books and Records.................................................12
7.13 Letters to Tenants................................................12
7.14 Recording Requirements............................................12
7.15 Estoppel Certificates.............................................12
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7.16 Termination of Management and Seller Affiliated Contracts......12
7.17 Permits/Guaranties.............................................13
7.18 Closing Statements.............................................13
7.19 Escrow Instructions............................................13
7.20 Date Down Certificate..........................................13
7.21 Agreement Estoppel Certificate.................................13
7.22. Outlot and Phase II Covenant..................................14
7.23 Vacant Space Acknowledgment....................................14
7.24 Other Documents................................................14
8. PURCHASER'S PRE-CLOSING AND CLOSING DOCUMENTS........................14
8.01 Assignment of Leases...........................................14
8.02 Assignment of Contracts........................................14
8.03 Closing Statements.............................................14
8.04 Escrow Instructions............................................14
8.05 Recording Requirements.........................................14
8.06 Date Down Certificate..........................................14
8.07 Phase I Covenant...............................................15
8.08 OEA [REA] Approving Party......................................15
8.09 Vacant Space Acknowledgment....................................15
8.10 Other Documents................................................15
9. CONDUCT OF BUSINESS PRIOR TO CLOSING.................................15
9.01 Affirmative and Negative Covenants.............................15
9.02 Payments.......................................................16
9.03 Lien Removal...................................................17
10. REPRESENTATIONS AND WARRANTIES.......................................17
10.01 Seller's Representations and Warranties.......................17
10.02 Purchaser's Representations and Warranties....................21
10.03 Intentionally Deleted.........................................22
10.04 Indemnification...............................................22
11. SHARED CLOSING COSTS AND OTHER EXPENSES..............................23
11.01 Expenses......................................................23
11.02 Shared Closing Costs..........................................24
12. CONDITIONS...........................................................24
12.01 Purchaser's Conditions........................................24
12.02 Seller's Conditions...........................................25
12.03 Rights Upon Failure of a Condition............................25
13. EARN-OUT.............................................................25
13.01 Defined Terms.................................................25
13.02 Closing Date Purchase Price Computation.......................28
13.03 Lease Assignment Reservation..................................28
13.04 New Leases....................................................28
13.05 Earn-Out Period...............................................30
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13.06 Casualty During Earn-Out Period...............................31
13.07 Earn-Out Payments.............................................31
13.08 Footage Payment...............................................32
13.09 Intentionally Deleted.........................................33
13.10 Seller's New Lease Obligations................................33
13.11 Punchlist.....................................................33
14. CLOSING ADJUSTMENTS AND APPORTIONMENTS...............................34
14.01 Rents.........................................................34
14.02 Arrears.......................................................34
14.03 Unknown Rents.................................................35
14.04 Utilities.....................................................35
14.05 Contracts.....................................................36
14.06 Taxes.........................................................36
14.07 Assessment Installments.......................................37
14.08 Permits.......................................................37
14.09 Security Deposits/Tenant Inducements..........................37
14.10 Customary Items...............................................37
14.11 Apportionment Between Phases..................................37
15. CLOSING..............................................................37
15.01 Closing and Closing Date......................................38
16. POSSESSION...........................................................38
16.01 Possession and Post Closing Work..............................38
17. RISK OF LOSS.........................................................38
17.01 Risk..........................................................39
17.02 Damage and Destruction........................................39
17.03 Condemnation and Eminent Domain...............................40
18. DEFAULTS AND REMEDIES................................................40
18.01 Seller's Defaults.............................................40
18.02 Purchaser's Defaults..........................................40
18.03 Seller's Remedies.............................................41
18.04 Pre-Closing Purchaser's Remedies..............................41
18.05 Post Closing Purchaser's Remedies.............................41
19. CROSS PERFORMANCE OBLIGATION.........................................42
20. ASSIGNMENT...........................................................42
21. NOTICES..............................................................42
22. ATTORNEYS' FEES AND DISBURSEMENTS....................................44
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23. NO CONSEQUENTIAL DAMAGES.............................................44
24. MISCELLANEOUS........................................................44
24.01 Successors....................................................44
24.02 Modifications/Waivers.........................................44
24.03 Entire Agreement..............................................44
24.04 Counterparts..................................................44
24.05 Captions......................................................44
24.06 Gender/Singular/Plural........................................45
24.07 Exhibits Incorporated.........................................45
24.08 Governing Law.................................................45
24.09 Severability..................................................45
24.10 Date for Performance..........................................45
24.11 Further Action................................................45
24.12 Intentionally Deleted.........................................45
24.13 Confidentiality...............................................45
24.14 Time of the Essence...........................................46
24.15 Construction..................................................46
24.16 Interest......................................................46
24.17 Warranty Work.................................................46
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AGREEMENT OF PURCHASE AND SALE
HIGHLAND GROVE SHOPPING CENTER
This Agreement of Purchase and Sale (the "Agreement") is made
as of the 2nd day of July, 1996, by and between OPUS NORTH CORPORATION,
an Illinois corporation (""Seller"), and DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation ("Purchaser"). Seller and Purchaser
(singularly, a "Party," collectively, the "Parties") agree as follows:
1. RECITALS.
1.01 DEFINITIONS. The location of all defined terms used in this
Agreement are set forth in the Glossary of Terms that is attached hereto and
made a part hereof.
1.02 LAND/IMPROVEMENTS. Seller is the sole owner of fee simple title
to (i) certain land (the "Land") situated in the City of Highland, State of
Indiana, more particularly described on Schedule 1.02 attached hereto and made a
part hereof which shall include all residual land and outlots, except Outlots 1,
7 and the "Borders" Outlot (collectively, "Outlots") as shown on the site plan
attached hereto as Schedule 1.02(a) (the "Site Plan"); and (ii) all the
buildings, structures and improvements (collectively, the "Improvements")
situated on the Land. The Land shall be conveyed as herein provided, in two
phases ("Phase I," "Phase II," and generally, "Phase" or "Phases"). Phase I and
Phase II are as shown on the Site Plan. The Outlots are hereby reserved unto
Seller from both Phases; and
1.03 REAL PROPERTY. Seller desires to sell, and Purchaser desires to
purchase, the Land and Improvements owned by Seller, and all of Seller's right,
title and interest in and to all rights, privileges, options, leases, licenses,
concessions, hereditaments, appurtenances, easements and rights of way in any
manner belonging to or pertaining to the Land and the Improvements, including
without limitation, rights in and to any streets, alleys or other ways adjacent
to the Land, open or proposed, and the fixtures in or upon the Land and the
Improvements owned by Seller. The Land, the Improvements and all of the items
mentioned in this Paragraph 1.03 are hereinafter collectively referred to as the
"Real Property" and are commonly known as "Highland Grove Shopping Center." The
Real Property shall be deemed divided as applicable to each Phase and unless
specifically noted to the contrary herein, "Real Property" shall mean, as the
context requires, the Real Property applicable to the subject Phase or the Land
as a whole, exclusive of the Outlots.
2. AGREEMENT TO PURCHASE AND SELL.
2.01 PURCHASE/SALE. Upon and subject to the terms and conditions set
forth in this Agreement, Seller agrees to sell and Purchaser agrees to purchase
all of the following that is hereinafter collectively referred to as the
"Project":
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(a) The Real Property;
(b) All tangible personal property (the "Personal Property")
owned by Seller that is now or hereafter located upon the Real Property and used
in connection with the ownership, operation, management, or maintenance of the
Real Property and that is set forth on Schedule 2.01(b) attached hereto;
(c) All intangible personal property (the "Intangible
Property") owned by Seller that is now or is hereafter located upon the Real
Property or is used in connection with the Real Property, including without
limitation, (i) all trade names, logos and telephone numbers, excluding those
tradenames or logos depicting or containing the name or trademark of Opus North
Corporation or its affiliates and excluding any telephone numbers not
exclusively used in connection with the Project; (ii) all Guaranties (as
hereinafter defined) given by Seller or any third party contractors,
subcontractors, vendors and suppliers relating to their performance, quality of
workmanship and quality of materials supplied in connection with the
construction or repair of the Improvements or the purchase of any Personal
Property to the extent any Guaranties remain outstanding as of the applicable
Closing Date (as hereinafter defined) that are set forth on Schedule 5.01(g)
attached hereto; and (iii) to the extent transferable by Seller, all of Seller's
right, title and interest in certificates of occupancy (or the local
equivalent), permits, licenses, approvals and authorizations (collectively, the
"Permits") issued by any federal, state, county and municipal governmental or
quasi-governmental authority relating to the Real Property.
3. PURCHASE PRICE AND MANNER OF PAYMENT.
3.01 PURCHASE PRICE. The total sum (the "Purchase Price") to be paid
by Purchaser to Seller for the sale of the Project is the sum of the Closing
Payments and those Footage Payments and Earn-Out Payments, if any (as those
terms are hereinafter defined), computed, in part, in respect to the base rents
set forth in the Rent Roll attached hereto as Schedule 3.01, all as provided in
Section 13 hereof. The actual amount of the Purchase Price is subject to the
computations and elections provided in Section 13 hereof and subject to the
adjustments, if any, provided in Section 14 hereof. Portions of the Purchase
Price will be paid at various times as hereinafter provided.
3.02 PURCHASE PRICE PORTIONS. The Purchase Price shall be paid as
follows:
(a) Lump Sum Payment.$35,000.00 ("Lump Sum Payment"), which
Purchaser shall pay on the Phase I Closing Date as part of the Closing Payment
as provided in Paragraph 13.02 hereof by wired funds to the Escrow Agent (as
hereinafter defined) for disbursement to Seller on the Phase I Closing Date by
not later than 2:00 P.M. Central Daylight Savings Time.
(b) Initial Deposit. Twenty-Five Thousand and 00/100 Dollars
($25,000.00) (the "Initial Deposit"), which Purchaser deposited with Escrow
Agent simultaneous with the execution of this Agreement by Purchaser and Seller.
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(c) Second Deposit. Twenty-Five Thousand and 00/100 Dollars
($25,000.00) (the "Second Deposit") which Purchaser shall deposit with Escrow
Agent on the expiration date of the Site Analysis Period (as hereinafter
defined), if Purchaser elects to proceed with this transaction, as more fully
provided in Paragraph 5.03 below (the Initial Deposit and the Second Deposit are
hereinafter collectively referred to as the "Deposit"). The term "Deposit" shall
be deemed to include all interest accruing on the Deposit during the term of
this Agreement.
(d) Closing Date Price. So much of the Purchase Price computed
in accordance with the provisions of Paragraph 13.02 hereof that is payable as
of the applicable Closing Date, after giving credit for the Deposit in respect
to the Phase I Closing Date (as hereinafter defined) and after making the
adjustments, if any, as provided in Section 14 hereof, shall be paid by wired
funds to the Escrow Agent for disbursement to Seller on the applicable Closing
Date by not later than 2:00 P.M. Central Daylight Savings Time in respect to
Phase I, and 2:00 P.M. Central Standard Time in respect to Phase II.
(e) Earn-Out Period Payments. As provided in Paragraph 13.07,
those Earn-Out Payments that are payable during, or in some instances, after the
Earn-Out Period (as hereinafter defined) shall be paid by wired funds to the
Escrow Agent for disbursement to Seller when required by the provisions of
Paragraph 13.07.
(f) Footage Payment. As provided in Paragraph 13.08, if a
Footage Payment (as hereinafter defined) is payable, it shall be paid by wired
funds to the Escrow Agent for disbursement to Seller when required pursuant to
Paragraph 13.08.
4. ESCROW.
4.01 ESCROW AGENT. The Parties hereby designate First American Title
Insurance Company as the escrow agent ("Escrow Agent" or "Title Company"). By
execution of this Agreement, Escrow Agent agrees to be bound by the terms and
conditions of this Agreement which relate to the Escrow Agent and its rights and
obligations hereunder.
4.02 FILINGS. The Parties hereby designate Escrow Agent to serve as
"Real Estate Broker," as defined in Section 6045 of the Internal Revenue Code,
as amended, for the purpose of making such reports and filing such returns as
shall be required thereunder from time to time.
5. SITE ANALYSIS.
5.01 SITE ANALYSIS DOCUMENTS. To the extent not heretofore delivered,
promptly after the execution of this Agreement, Seller agrees (i) to make
available for inspection at reasonable times by Purchaser and its agents any and
all documents, instruments, surveys, reports, plans, permits, approvals,
studies, reviews, analyses, contracts, agreements and other materials relating
to the acquisition, development, construction, ownership and operation of the
Project that are in Seller's possession or under its control, and (ii) to
deliver to Purchaser true and correct copies of the following documents (in
respect to clause (ii) collectively hereafter referred to as "Site Analysis
Documents"):
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(a) "As-built" survey of the Project showing the location of
all Improvements thereon and any easements encumbering the Project.
(b) Soil, topographical, and other reports relating to the
Project, including the environmental reports set forth on Schedule 5.01(b)
("Environmental Reports") attached hereto.
(c) Operating statements and records sufficient to accurately
show all revenues, income, costs and expenses of operating and maintaining the
Project for the period on and after the opening of the Project for business.
(d) All written contracts for repair, maintenance, garbage
removal, concessions, vending, service contracts, and other services to be
performed with respect to the Project.
(e) All Leases (as hereinafter defined) and all written
licenses, concessions and tenancies with Tenants (as hereinafter defined)
occupying or having the right to occupy any portion of the Project, and Seller's
written statement of any oral leases, licenses, concessions and tenancies with
tenants, licensees, concessionaires or others occupying or having the right to
occupy or use any portion of the Project, if any.
(f) All final, as-built architectural drawings, engineering
studies, plans and specifications relating to the original and current
construction of the Project (hereinafter collectively referred to as "Plans").
(g) All warranties and guaranties that remain outstanding as
of the applicable Closing Date that have been given by Seller or any third party
contractors, subcontractors, vendors and suppliers relating to their
performance, quality of workmanship and quality of materials supplied in
connection with the construction, manufacture, development, installation and
operation of the Improvements, Personal Property and any and all fixtures,
equipment and items of personal property comprising all or any part of the
Improvements located in or used in connection with the Project (collectively
hereinafter referred to as "Guaranties"), all of which are set forth on Schedule
5.01(g) attached hereto.
5.02 ACCESS. Seller acknowledges that to enable Purchaser to proceed
with this transaction, Purchaser already has and, during the Site Analysis
Period (as hereinafter defined), may undertake or cause to have undertaken
further tests and studies, including, but not limited to, marketing,
engineering, environmental, feasibility and soil that Purchaser, in its
reasonable discretion, deems necessary to determine the feasibility of its
acquisition of the Project (hereinafter collectively referred to as "Tests and
Studies"). The Tests and Studies conducted by or on behalf of Purchaser and the
restoration of the Project in respect thereto as hereinafter provided shall be
done in such a fashion so as to not disrupt the ordinary course of business of
Seller or any of the Tenants, New Tenants (as hereinafter defined) or Seller's
contractors or subcontractors.
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Purchaser and its agents, contractors or employees shall have
the right to enter upon the Project (both Phase I and II) for the purpose of
performing its Tests and Studies, provided (i) said activities shall not (y) in
any way damage the Project in such a fashion or to a degree that prevents its
restoration by Purchaser as hereafter provided substantially to the condition of
the Project that existed immediately prior thereto, or (z) void or make voidable
any Guaranties of portions thereof (but in any event subject to Seller's prior
consent that shall not be unreasonably withheld or delayed), and (ii) Seller or
its designated agents have the right to participate in (provided Seller and its
agents do not interfere with) such Tests and Studies. Purchaser shall give
Seller twenty-four (24) hour advance notice before Purchaser and its agents,
contractors or employees enter upon the Project. In the event this Agreement
fails to close for any reason, except for Seller's willful refusal to convey
(absent a material default hereunder by Purchaser) title to the Land as required
hereunder, or Seller's acknowledged or subsequently determined material default
hereunder ("Restoration Forgiveness"), Purchaser shall restore the Project to
substantially the same condition that existed immediately prior to such
surveying, inspecting and testing that were undertaken by or on behalf of
Purchaser prior to the date of this Agreement or during the Site Analysis
Period. Except in the instance of a Restoration Forgiveness, Purchaser shall
keep the Project free of all liens in connection with the Tests and Studies and
shall cause all such liens to be removed immediately upon its being notified of
same. Except in the instance of a Restoration Forgiveness, Purchaser agrees to
indemnify, defend and hold Seller harmless against any liabilities, claims and
damages, including, without limitation, any property damage, personal injury or
claim of lien against the Project resulting from the activities permitted by
this Paragraph 5.02 (including, without limitation, reasonable attorneys' fees
and expenses paid or incurred by Seller during litigation, if any), which
indemnity shall survive the Closing Date or the expiration, cancellation or
termination of this Agreement.
5.03 SITE ANALYSIS PERIOD. Purchaser shall have the Site Analysis
Period in which to conduct the Tests and Studies and to ascertain whether the
Project is acceptable to Purchaser. "Site Analysis Period" shall mean the period
expiring on June 17, 1996. The Site Analysis Period shall also include that
thirty (30) day period on and after the Phase II Notice Date (as hereinafter
defined) for those Tests and Studies on Phase II Purchaser chooses to conduct in
respect to those Improvements completed on Phase II after June 17, 1996. If the
Project is determined to be unacceptable to Purchaser, for any reason
whatsoever, in Purchaser's sole discretion, Purchaser shall have the right to
terminate this Agreement (in respect to all Phases, but not in respect to one
Phase and not the other) by giving written notice of termination on or prior to
June 17, 1996, in which event the Deposit shall be returned to Purchaser. In
accordance with the provisions of 11.02(b) hereof, Seller and Purchaser shall
each pay 50% of the Shared Closing Costs incurred as of the termination date,
and neither Party shall have any further rights or obligations hereunder, except
those specifically provided herein that survive the termination of this
Agreement. A failure to so notify Seller of Purchaser's election to terminate or
proceed with this Agreement as aforesaid prior to June 17, 1996, shall be deemed
as notice to Seller that Purchaser has elected to terminate this Agreement as
aforesaid. In addition, not less than forty-five (45) days (nor more than sixty
(60) days) prior to the Phase II Closing Date ("Phase II Notice Date"), Seller
shall advise Purchaser, in writing, of the date on which Seller anticipates the
Phase II Closing to occur as provided in Paragraph 15.01 hereof. For the period
of thirty (30) days on and subsequent to the Phase II Notice Date, Purchaser may
conduct those additional
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Tests and Studies on or in respect to Phase II pertaining to (i) any defects or
deficiencies of Phase II in respect to its compliance with any and all codes,
ordinances, statutes, Permits, approvals or licenses issued in respect to Phase
II or promulgated by any federal, state, county or municipal government or
quasi-governmental authority which are required by such governmental or
quasi-government authority to correct, (ii) any other defects in the materials
or workmanship of Phase II from that which is required to be in substantial
compliance with the Plans, except that portion thereof, if any, that relates to
materials for, or workmanship of improvements constructed or to be constructed
on behalf of Tenants or New Tenants that form a part of the Phase II Post
Closing Work (as hereinafter defined), (iii) violations of Environmental Laws
(as hereinafter defined), or (iv) conditions determined in good faith that are
existing on-site or off-site of Phase II (except on Phase I) that if not
corrected may, in the future, become violations of Environmental Laws in respect
to Phase II, which in the instance of clauses (i), (ii), (iii) and (iv) did not
exist as of June 17, 1996. If Purchaser, in its reasonable discretion,
determines in respect to clauses (i) through (iv) above that there does exist
defects, deficiencies, violations or the existence of conditions that are
unacceptable to Purchaser, Purchaser shall have the right to terminate this
Agreement in respect to Phase II by giving written notice of termination on or
prior to the expiration of said thirty (30) day period in which event Seller and
Purchaser shall each pay fifty percent (50%) of the Shared Closing Costs
incurred in respect to Phase II and neither party shall have any further rights
or obligations hereunder in respect to Phase II, except those specifically
provided herein that survive the termination of this Agreement. Except for
Restoration Forgiveness, Purchaser shall cause Phase II to be restored to
substantially the same condition that existed immediately prior to any Tests and
Studies performed by Purchaser subsequent to the Phase II Notice Date, which
obligation shall survive the termination of this Agreement.
5.04 CURE OF UNACCEPTABLE CONDITIONS. Any of the Tests and Studies of
Purchaser and/or its agents or representatives conducted during the Site
Analysis Period that discloses in respect to Phase I that there are (i) any
defects or deficiencies of Phase I in respect to its compliance with any and all
codes, ordinances, statutes, Permits, approvals or licenses issued in respect to
Phase I or promulgated by any federal, state, county or municipal governmental
or quasi-governmental authority which are required by such governmental or
quasi-governmental authority to correct; (ii) any defects in the materials or
workmanship of Phase I from that which is required to be in substantial
compliance with the Plans, except that portion thereof, if any, that relates to
materials for, or workmanship of improvements constructed or to be constructed
on behalf of Tenants or New Tenants that form a part of Post Closing Work (as
hereinafter defined); or (iii) a violation of Environmental Laws that, in
respect to clauses (i), (ii) and (iii), can be corrected and cured for an
estimated aggregate cost (in respect to Phase I) not to exceed One Hundred
Thousand Dollars ($100,000.00), shall be collectively hereinafter referred to as
"Unacceptable Conditions." In respect to Phase II, an Unacceptable Condition(s)
shall mean the same as defined in clauses (i), (ii) and (iii) above, but in
respect to Phase II, except that the estimated aggregate cost of correcting and
curing the same shall not exceed Fifty Thousand Dollars ($50,000.00) plus One
Hundred Thousand Dollars ($100,000.00) minus the estimated aggregate cost of
correcting and curing the Phase I Unacceptable Conditions agreed to by the
Parties or elected by Purchaser as hereafter provided ("Phase II Unacceptable
Condition Cost Limitation"). It is understood that regardless of the cost, the
Warranty Work obligations set forth in Paragraph 24.17 hereof shall not be
included as an Unacceptable Condition in respect to the
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$100,000.00 limitation for Phase I or in respect to the Phase II Unacceptable
Condition Cost Limitation, and the cost of performing Warranty Work shall be in
addition to any cost associated with either Phase in respect to any Unacceptable
Condition. In the event Purchaser discovers what it deems to be Unacceptable
Conditions as a result of the Tests and Studies, Purchaser shall notify
("Condition Notice") Seller, in writing, of the same promptly following
Purchaser's discovery thereof, but in no instance later than three (3) business
days following the expiration of the Site Analysis Period applicable to the
entire Project or just Phase II as provided in Paragraph 5.04 above. Such
Condition Notice shall include a copy of those portions of the Tests and Studies
disclosing such Unacceptable Condition(s). Within ten (10) days following
Seller's receipt of the Condition Notice, if any, Seller shall advise
("Condition Response") Purchaser, in writing, of Seller's good faith
determination and estimate of (1) those matters contained in the Condition
Notice that do not qualify as Unacceptable Conditions; (2) the time within which
the remaining matters contained in the Condition Notice will be cured or
corrected; and (3) the aggregate cost to Seller of curing and correcting such
remaining matters. In the event the Condition Response is unacceptable to
Purchaser, Seller and Purchaser shall promptly meet and confer, in good faith,
to attempt to resolve the unacceptable aspects to Purchaser of the differences
between the Condition Notice and the Condition Response or the time within which
or the aggregate cost for which Seller estimated in the Condition Response for
curing or correcting as aforesaid. In the event Seller and Purchaser are unable
to resolve such differences, Purchaser may elect to (a) terminate this Agreement
in respect to the applicable Phase (provided if Purchaser elects a termination
in respect to Phase I, it shall act as Purchaser's election to terminate in
respect to both Phases), (b) proceed to each of the Phase Closings in respect to
Seller's obligations to cure or correct those matters set forth in the Condition
Response, modified, if at all, as a result of the aforesaid conference between
Purchaser and Seller (provided the estimated aggregate cost of performing the
same does not exceed $100,000.00 in respect to Phase I, the Phase II
Unacceptable Condition Cost Limitation in respect to Phase II, or such greater
amount as Seller, in its sole discretion, has agreed to expend), or (c) proceed
to each of the Phase Closings and select those specific line items from the
Condition Response that Purchaser requires to have corrected (provided the
estimated aggregate cost of performing the same does not exceed $100,000.00 in
respect to Phase I or the Phase II Unacceptable Condition Cost Limitation in
respect to Phase II). Purchaser, within ten (10) business days after such
conference, shall advise Seller, in writing, of Purchaser's election. If the
Condition Notice, Condition Response or the time periods specified above for
elections of Purchaser extend beyond the time specified for the applicable
Closing Date, such Closing Date shall be extended to the date five (5) business
days subsequent to the date Purchaser elects, if at all, to proceed with the
applicable Closing. In the event Purchaser elects to terminate this Agreement in
respect to Phase I, the Deposit shall be returned to Purchaser, Purchaser and
Seller shall each pay fifty percent (50%) of the Shared Closing Costs incurred
as of the termination date, and neither Party shall have any further rights or
obligations hereunder, except those specifically provided herein that survive
the termination of this Agreement. In the event Purchaser elects to proceed to
the Phase I and Phase II Closings pursuant to clause (b) above, the matters
contained in the Condition Response, modified, if at all, by Purchaser's and
Seller's conference and provided the estimated aggregate cost of curing or
correcting the same is One Hundred Thousand and no/100 ($100,000.00) or less in
respect to Phase I or equal to or less than the Phase II Unacceptable Condition
Cost Limitation in respect to Phase II (or such greater amount Seller accepts as
aforesaid) shall be deemed to be the
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Unacceptable Conditions to which Seller is bound. In the event Purchaser elects
to proceed to the Phase I and Phase II Closing pursuant to clause (c) above, the
specific line items selected by Purchaser that are set forth in the Condition
Response (provided the estimated aggregate cost of curing or correcting the same
is in the amounts as aforesaid in respect to Phase I and Phase II) shall be
deemed to be the Unacceptable Conditions to which Seller is bound. Thereafter,
in respect to the applicable Phase, Seller shall undertake to cure or correct
such Unacceptable Conditions, at its sole cost and expense (regardless of the
actual cost ultimately incurred by Seller in respect thereto) within the time
(subject to Force Majeure, as hereinafter defined) set forth in the Condition
Response. The obligation of Seller to cure or correct such Unacceptable
Conditions shall survive the Closing. In the event (y) Seller fails to commence
the cure of an Unacceptable Condition(s) on or prior to the time specified in
the Condition Response for the completed cure thereof, or (z) Seller commences
the cure of an Unacceptable Condition(s), but fails to complete such cure prior
to the time specified in the Condition Response (subject to Force Majeure),
Purchaser may off-set so much of any Earn-Out Payment or Footage Payment
subsequently payable by Purchaser hereunder by the amount of the reasonable
costs and expenses incurred by Purchaser for undertaking and completing the
uncured Unacceptable Condition(s). The curing or correcting of any Unacceptable
Condition shall be done in accordance with the Plans. However, if such curing or
correcting requires a variance from the Plans, Seller shall not undertake such
variance without obtaining Purchaser's prior written consent, which consent
shall not be unreasonably withheld or delayed.
6. SURVEY AND TITLE INSURANCE.
6.01 SURVEY. Seller shall cause an "as-built" Survey (the "Survey")
of the Phase I and Phase II Real Property to be updated during the Site Analysis
Period applicable to each Phase. The Survey for each Phase shall be certified to
Seller, Purchaser, and the Title Company. The Survey for each Phase shall
satisfy all of the requirements set forth on Schedule 6.01 that is attached to
and made a part of the Exhibit Agreement (as hereinafter defined).
6.02 TITLE COMMITMENT. During the Site Analysis Period for each
Phase, to the extent not theretofore delivered, Seller shall (i) cause the Title
Company to issue and deliver to Purchaser a title insurance commitment for an
owner's extended coverage policy of title insurance for the applicable Phase, in
the amount of that portion of the Purchase Price applicable to the subject Phase
then estimated to be payable to Seller on the applicable Closing Date,
committing the Title Company to insure Purchaser as the owner of fee simple
title to the Phase I and Phase II Real Property, as applicable, and all
easements appurtenant thereto (the "Commitment"), and (ii) copies of each
document described on Schedule B of the applicable Commitment.
6.03 PURCHASER'S OBJECTIONS; SELLER'S CURE. Other than those title
exceptions ("Permitted Exceptions") applicable to Phase I and Phase II set forth
in Schedule 6.03 attached hereto and made a part hereof and exceptions caused by
or claimed under or through Seller that will be removed at the applicable Phase
Closing (as hereinafter defined) if (i) the Commitment reveals any other matters
or exceptions ("Title Defects"), or (ii) the Survey reveals any defects which
affect the marketability of the applicable Phase or are deemed objectionable by
Purchaser
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("Survey Defects"), Purchaser shall notify Seller, in writing, of the
same within fifteen (15) days following the date of delivery to Purchaser of the
last of the Commitment and Survey ("Defects Notice") for the subject Phase. In
the event Purchaser fails to deliver a Defects Notice as aforesaid, Seller shall
advise Purchaser of such failure, in writing. If Purchaser fails, within three
(3) business days thereafter to deliver a Defects Notice, it shall be deemed a
notice to Seller that Purchaser has elected to waive such defects, if any, and
to proceed with the transaction contemplated hereby, subject to the fulfillment
of Seller's obligations hereunder. Except for Title Defects or Survey Defects
that are caused by or claimed under or through Seller that can be removed or
discharged by the payment of a sum of money (including, without limitation, a
Mortgage(s), as hereinafter defined), Seller shall have no affirmative
obligation to cure or correct any Title Defects or Survey Defects, except as
provided in Seller's Response (as hereinafter defined). Within fifteen (15) days
following Seller's receipt of a Defects Notice, Seller, at its option, shall
notify Purchaser of those Title Defects and Survey Defects that Seller shall
undertake to cure or correct ("Seller's Response"). In the event Seller (a)
elects in Seller's Response not to satisfy a specified Title Defect or Survey
Defect or (b) is unable, within sixty (60) days after Purchaser's receipt of
Seller's Response, to satisfy the Title Defect or Survey Defect which Seller had
elected in Seller's Response to so satisfy, Purchaser may, at its option, (1)
accept title to the applicable Phase subject to the Title Defects and/or Survey
Defects raised by Purchaser in which event such Title Defects and Survey Defects
shall be deemed to be Permitted Exceptions for such Phase, or (2) cancel this
Agreement and receive a full refund of the Deposit (if the cancellation is in
respect to Phase I), whereupon Seller shall pay all Shared Closing Costs and
this Agreement shall be of no further force and effect, except for those matters
which are specifically set forth in this Agreement as surviving the expiration
or termination of this Agreement. If Purchaser elects to accept Title and/or
Survey Defects in respect to Phase I, it shall be deemed to have elected to
accept the same Title and/or Survey Defects in respect to Phase II, to the
extent the same affects Phase II. In the event Purchaser elects to terminate
this Agreement in respect to Phase I, it shall act as Purchaser's election to
terminate this Agreement in respect to Phase II. If the Defects Notice, Seller's
Response or the time periods specified above for elections of Purchaser extend
beyond the time specified for the applicable Closing Date, such Closing Date
shall be extended to the date five (5) business days subsequent to the date
Purchaser elects, if at all, to proceed with the applicable Closing.
6.04 TITLE POLICY. It shall be a condition precedent to Purchaser's
obligation to consummate the Phase transactions contemplated by this Agreement
that the Title Company can and will issue an ALTA Owner's Policy of Title
Insurance (Form B, Amended 1987, if available) (the "Title Policy") for each
Phase in the full amount of that portion of the Purchase Price payable by
Purchaser on each of the Closing Dates as provided in Paragraph 13.02 hereof,
insuring Purchaser as the owner in fee simple of the applicable Phase, and all
appurtenant easements thereto, free and clear of all liens and encumbrances,
except for the Permitted Exceptions, and without exception for rights or claims
of parties in possession not shown by the public records, encroachments,
overlaps, boundary line disputes, or any other matter disclosed by the Survey
which Purchaser has not waived or approved or is deemed to have approved
pursuant to Paragraph 6.03 hereof, provided, however, that the Title Policy may
show the rights of the Tenants and New Tenants (as hereinafter defined) under
New Leases (as hereinafter defined) that are fully executed prior to the
applicable Closing as parties in possession (or right to possession)
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as tenants only. Purchaser shall attempt to cause the Title Company, as part of
the Title Policy, to issue the following endorsements in the form of those set
forth in Schedule 6.04 attached hereto ("Endorsements"): CC&R Endorsement
(unless easements appurtenant to the applicable Phase are additionally insured
parcels on Schedule A of the applicable Title Policy), Comprehensive ▇▇. ▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, Tax Parcel, Contiguity (in respect to the Phases and
the portions thereof, but only to the extent of contiguous portions of the Land
as depicted on Schedule 1.02 attached hereto), Environmental, Encroachment,
"single Lot" subdivision, and Zoning 3.1 (with parking). Any Survey or physical
inspection requirements imposed as a condition to the issuance of each Title
Policy may be satisfied by Seller as a Shared Closing Cost, except costs and
expenses in respect to correcting Survey Defects which shall be paid by Seller.
Seller shall execute such affidavits and certificates as the Title Company may
require as a condition to the issuance of each Title Policy, and a copy of each
such affidavit or certificate shall be delivered to Purchaser. In addition, as
part of the Shared Closing Costs, Seller shall cause (i) the applicable Title
Policy to be dated down to the date each Earn-Out Payment (as hereinafter
defined) is paid during or after the Earn-Out Period showing no new exceptions,
except the Permitted Exceptions, the subject or previous New Leases, and
exception caused, permitted or claimed by, through or under Purchaser or its
successors and assigns; and (ii) the amount of the Title Policy's coverage to be
increased to an amount that equals the subject Earn-Out Payment.
7. SELLER'S CLOSING DOCUMENTS AND ESCROW.
At each Phase Closing, Seller shall execute and deliver the
following documents to Escrow Agent:
7.01 DEED. A signed special warranty deed in the form and substance
(modified for the subject jurisdiction) attached to the Exhibit Agreement as
Schedule 7.01 (the "Deed") conveying to Purchaser, good, indefeasible and
insurable title to the applicable Phase and the Improvements thereon, free and
clear of all liens and encumbrances of any type whatsoever, except for the
Permitted Exceptions. The Permitted Exceptions shall be specifically, and not
categorically, excepted from the warranty of title in the Deed.
7.02 ASSIGNMENT OF LEASES. For the applicable Phase, an assignment
(the "Lease Assignment") in the form attached to the Exhibit Agreement as
Schedule 7.02 of all (except in respect to the Assignment Reservation as
provided in Paragraphs 13.03, 14.01, 14.02 and 14.03 hereof) of the Seller's
right, title and interest as lessor under the leases, tenancies, occupancy
agreements, rental agreements, options, licenses and concessions, and all of the
foregoing (hereinafter collectively referred to as the "Leases") which are
described on Schedule 7.02(a) attached hereto, and all New Leases that are fully
executed prior to the applicable Closing, together with all security deposits,
cleaning deposits, key deposits and advance rental payments (collectively, the
"Security Deposits") made by the lessees, tenants, occupants, optionees,
licensees and concessionaires (collectively, in respect to the applicable Phase,
the "Tenants") and New Tenants under the Leases and subject New Leases.
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7.03 LEASES AND TENANT DOCUMENTS. All original copies of the
applicable Phase Leases and New Leases that are fully executed prior to
applicable Closing, Tenant and the subject New Tenant financial statements,
their sales reports and other Tenant and the subject New Tenant related
documents, and to the extent, if any, that original copies are not delivered,
Seller shall deliver copies which shall be accompanied by an affidavit sworn to
by Seller confirming that the copies delivered are true and complete copies of
the originals.
7.04 ▇▇▇▇ OF SALE. A ▇▇▇▇ of sale in the form attached to the Exhibit
Agreement as Schedule 7.04, transferring and conveying to Purchaser all of
Seller's right, title and interest to the applicable Phase Personal Property and
the Intangible Property.
7.05 ASSIGNMENT OF CONTRACTS. An assignment (the "Contract
Assignment") in the form attached to the Exhibit Agreement as Schedule 7.05, of
all of Seller's right, title and interest as the owner of the applicable Phase
under the service contracts and agreements, personal property leases and
agreements (collectively, the "Contracts") which are described on Schedule
7.05(a) attached hereto and which have been approved by Purchaser as being those
Contracts that are assigned to Purchaser pursuant to the Contract Assignment.
7.06 VIOLATIONS/WORK ORDERS AFFIDAVIT. An affidavit, in form and
substance of Schedule 7.06 attached to the Exhibit Agreement, confirming that
Seller has complied with and discharged (or, to the extent Seller has not
complied with and discharged, an explanation of that which remains to be done to
cause compliance and discharge) (i) all notices, if any, that either Seller or
its management agent managing the Real Property received concerning any and all
uncured violations (the "Violations") of any law, statute, ordinance,
regulation, rule, requirement, order, judgment or decree enacted, adopted,
imposed, issued, entered or filed by any governmental authority (concerning or
affecting the Project or any part thereof), and (ii) all work orders concerning
the Project or any part thereof, if any (the "Work Orders") issued by any
insurance carriers insuring a risk in respect to the Project.
7.07 KEYS. All keys to the applicable Phase.
7.08 PLANS AND SPECIFICATIONS. To the extent not delivered prior to
the Phase I Closing Date as part of the Site Analysis Documents, all Plans.
7.09 TITLE INSURANCE AFFIDAVIT. Any affidavit required by the Title
Company to remove the standard printed exceptions from the applicable Title
Policy.
7.10 FIRPTA CERTIFICATE/WITHHOLDING. A certificate in the form and
substance attached to the Exhibit Agreement as Schedule 7.10 ("FIRPTA
Affidavit").
7.11 FORM 1099. Any information with respect to Seller in connection
with the conveyance of the applicable Phase Real Property by Seller to Purchaser
required by either (i) IRC Sec. 6045 or Treas. Regs. Sec. 1.6045, or (ii) Treas.
Form 1099 or its instructions. If required thereby, the Escrow Agent shall
timely (x) prepare and file a Form 1099 in accordance with the provisions of
Treas. Regs. Sec. 1.6045, and (y) furnish the Parties with copies.
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7.12 BOOKS AND RECORDS. Copies of all accounting books and records
relating to the operation and maintenance of the applicable Phase.
7.13 LETTERS TO TENANTS. Letters in the form and substance set forth
in Schedule 7.13 that is attached to the Exhibit Agreement (the "Tenant
Letters") addressed to the applicable Phase Tenants and New Tenants of New
Leases executed prior to the applicable Closing and signed by Seller, advising
the Tenants and New Tenants of the sale of the applicable Phase and the
Purchaser's right to receive the Rents (as hereinafter defined) under their
respective Leases.
7.14 RECORDING REQUIREMENTS. All documents and affidavits required of
Seller to record the Deed.
7.15 ESTOPPEL CERTIFICATES. An estoppel certificate in the form and
substance set forth in Schedule 7.15 that is attached to the Exhibit Agreement
("Tenant Estoppel") showing no material exceptions that is executed (not more
than forty-five (45) days prior to the applicable Closing Date or such earlier
date Purchaser reasonably accepts) by (i) all Tenants or New Tenants of the
applicable Phase Leases and New Leases that are Qualified Leases (as hereinafter
defined) on or prior to the applicable Closing Date that have demised to them
space in the applicable Phase containing 7,500 square feet or more, and (ii) at
least eighty percent (80%) (calculated on a square foot basis) of all Tenants or
New Tenants of the applicable Phase Leases or New Leases that are Qualified
Leases on or prior to the applicable Closing Date that have demised to them
space in the applicable Phase containing less than 7,500 square feet. To the
extent Seller is unable to deliver to Purchaser Tenant Estoppels from all or any
of the remaining Tenants or New Tenants in the applicable Phase under such
Qualified Leases in respect to premises containing less than 7,500 square feet
or a Tenant Estoppel in respect to a premises that is 7,500 square feet or less
that contains a material exception noted by the applicable Tenant or New Tenant,
Seller shall be entitled to deliver to Purchaser Seller's estoppel certificate
("Seller's Estoppel") in form and substance reasonably acceptable to Purchaser
confirming the terms and conditions of the Lease or subject New Lease for which
a Tenant Estoppel was not delivered to Purchaser or, if delivered, that contains
a material exception. Such Seller's Estoppel shall be deemed a representation
and warranty by Seller as to the terms and conditions of the subject Lease or
New Lease, and the Seller's Estoppel shall not be subject to the time limitation
for claims set forth in Paragraph 10.04(b) hereof. After the applicable Closing,
when and as Purchaser receives a Tenant Estoppel (without material exception)
for which Seller delivered a Seller's Estoppel, the subject Seller's Estoppel
shall be released by Purchaser and returned to Seller and shall be deemed to be
of no further force and effect.
7.16 TERMINATION OF MANAGEMENT AND SELLER AFFILIATED CONTRACTS.
Notwithstanding any other provision of this Agreement, in respect to any
agreements or contracts that are not to be included as part of the Contract
Assignment, agreements ("Termination Agreements") signed by (i) the parties to
any management agreement for the applicable Phase, and (ii) the parties to all
other such agreements or contracts for the applicable Phase between the Seller
or its predecessors in interest and parties affiliated with or controlled by
Seller or any of Seller's principals, which Termination Agreements terminate
such management agreement and
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other such agreements and contracts as of the applicable Closing Date, without
any liability or obligation on the part of the Purchaser or the applicable
Phase.
7.17 PERMITS/GUARANTIES. Original or copies of applicable Phase
Permits and originals of the applicable Phase Guaranties which, in each
instance, Seller agrees to keep in full force and effect, and to comply with all
of the terms and conditions thereof prior to the applicable Closing.
7.18 CLOSING STATEMENTS. Closing Statements executed by Seller.
7.19 ESCROW INSTRUCTIONS. Signed escrow instructions, reasonably
satisfactory to Escrow Agent, in form and substance sufficient to carry out the
applicable Closing.
7.20 DATE DOWN CERTIFICATE. A certificate of Seller (the "Seller Date
Down Certificate") in form and substance attached to the Exhibit Agreement as
Schedule 7.20 certifying that Seller's representations and warranties set forth
in Paragraph 10.01 of this Agreement are true and correct as of the applicable
Closing Date as modified by the Schedules that are attached hereto pursuant to
Paragraph 10.01 hereof that are updated to the applicable Closing Date. In the
event any updated Schedules disclose a material deviation from the prior
applicable Schedule as reasonably determined by Purchaser, Purchaser shall have
three (3) business days from the date Purchaser receives a copy of the Seller
Date Down Certificate in which to elect to terminate this Agreement or to
proceed with the applicable Closing in accordance with the updated Schedules. In
the event Purchaser fails to notify Seller, in writing, of Purchaser's election
to terminate this Agreement, it shall act as notice to Seller that Purchaser has
elected to terminate this Agreement in respect to the applicable and subsequent
Closing. In the event Purchaser elects to terminate this Agreement, the Deposit
shall be refunded to Purchaser (if in respect to Phase I), Purchaser and Seller
shall each pay fifty percent (50%) of the Shared Closing Costs, and this
Agreement shall be of no further force and effect, except in respect to those
provisions specifically provided herein as surviving the termination of this
Agreement. In the event Purchaser elects to terminate this Agreement as
aforesaid in respect to Phase I, it shall act as Purchaser's election to
terminate this Agreement in respect to Phase II as well.
7.21 AGREEMENT ESTOPPEL CERTIFICATE. An estoppel certificate in form
and substance attached hereto as Schedule 7.21 ("Agreement Estoppel") showing no
material exceptions that are executed by each party to those easement agreements
or other agreements or undertakings (including, but not limited to, development
agreements) affecting the Project on and after the Closing Date that require the
performance of obligations by the owner of the Project and the approval of such
performance by the other party to the same that are identified by Purchaser to
Seller, in writing, not less than fifteen (15) days prior to the applicable
Closing Date. To the extent such Agreement Estoppel shows a material exception
or the party to such easement agreements or other agreements or undertakings
identified by Purchaser as aforesaid fails to deliver an Agreement Estoppel,
Seller shall be entitled to deliver its undertaking confirming, in form and
content reasonably acceptable to Purchaser, the terms and conditions of the
Agreement Estoppel to the extent applicable in the form attached hereto as
Schedule 7.21, and such
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confirmation by Seller shall not be subject to the time limitation for claims
set forth in Paragraph 10.04(b) hereof. After the Closing, when and as Purchaser
receives an Agreement Estoppel for which Seller delivered its undertaking as
aforesaid, the subject undertaking shall be released by Purchaser and returned
to Seller and shall be deemed to be of no further force and effect.
7.22 OUTLOT AND PHASE II COVENANT. A declaration encumbering title to
the Outlots and Phase II in respect to the exclusion of uses thereon that
violate any of the exclusive uses permitted under Leases or New Leases for Phase
I as of the Phase I Closing Date, in form and content reasonably acceptable to
Seller and Purchaser.
7.23 VACANT SPACE ACKNOWLEDGMENT. The acknowledgment of the location
within the applicable Phase of any space that is Vacant Space as of the
applicable Closing.
7.24 ASSIGNMENT OF OEA. An Assignment of Declaration in the form
attached hereto as Schedule 7.24 assigning to Purchaser Seller's rights under
the terms of the Operation and Easement Agreement that is a Permitted
Encumbrance.
7.25 OTHER DOCUMENTS. Such other documents as may be reasonably
required to close the applicable Phase transaction contemplated by this
Agreement.
8. PURCHASER'S PRE-CLOSING AND CLOSING DOCUMENTS.
At each Phase Closing, Purchaser shall execute and deliver the
following to Escrow Agent:
8.01 ASSIGNMENT OF LEASES. The Lease Assignment, acknowledging the
assumption by Purchaser of Seller's obligations under the Leases which accrue
after the applicable Closing Date.
8.02 ASSIGNMENT OF CONTRACTS. The Contract Assignment, acknowledging
the assumption by Purchaser of Seller's obligations under the Contracts which
accrue after the applicable Closing Date.
8.03 CLOSING STATEMENTS. Closing Statements executed by Purchaser.
8.04 ESCROW INSTRUCTIONS. Signed escrow instructions, reasonably
satisfactory to Escrow Agent, in form and substance sufficient to carry out the
applicable Closing.
8.05 RECORDING REQUIREMENTS. All documents and affidavits required of
Purchaser to record the Deed.
8.06 DATE DOWN CERTIFICATE. A certificate of Purchaser (the
"Purchaser Date Down Certificate") in form and substance attached to the Exhibit
Agreement as Schedule 8.06 certifying that Purchaser's representations and
warranties set forth in Paragraph 10.02 of this Agreement are true and correct
as of the applicable Closing Date.
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8.07 PHASE I COVENANT. A declaration encumbering title to Phase I in
respect to exclusion of uses thereon that violate any of the exclusive uses
permitted under Leases or New Leases in Phase II and the Outlots as of the Phase
I Closing Date, in form and content reasonably acceptable to Seller and
Purchaser.
8.08 VACANT SPACE ACKNOWLEDGMENT. The acknowledgment of the location
within the applicable Phase of any space that is Vacant Space as of the
applicable Closing
8.09 OTHER DOCUMENTS. Such other documents as may be reasonably
required to close the applicable Phase transaction contemplated by this
Agreement.
9. CONDUCT OF BUSINESS PRIOR TO CLOSING.
9.01 AFFIRMATIVE AND NEGATIVE COVENANTS. Until the applicable
Closing, in respect to the applicable Phase, Seller shall or cause to:
(i) Subject to Casualty or any Taking (as those terms are
hereinafter defined), maintain the applicable Phase and Phase Personal Property
in good condition and repair and not commit or permit waste;
(ii) Carry on its business in respect to the Project in the same
manner as it has heretofore;
(iii) Keep in full force and effect all insurance coverage
required to be maintained by it pursuant to the Leases, applicable New Leases,
the Mortgages, the Permitted Exceptions, and any easement agreements or other
agreements or undertakings affecting the Project;
(iv) Perform all of its obligations under the Contracts, Leases,
applicable New Leases, Mortgages, Permitted Exceptions and any easement
agreements or other agreements or undertakings affecting the Project;
(v) Maintain and preserve its business organization intact;
(vi) Maintain and preserve its relations with the Tenants, New
Tenants under New Leases that are fully executed prior to the Closing, suppliers
and customers;
(vii) Except as provided in Paragraph 13.04 hereof, not
voluntarily terminate, amend, modify, extend, renew, waive or accept the
surrender of any Lease or New Lease or provision thereof, without Purchaser's
prior consent, which consent shall not be unreasonably withheld or delayed;
(viii) Not voluntarily terminate, amend, modify, extend, renew,
waive or accept the cancellation of any Contract, Permitted Exception or any
easement agreements or other
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agreements or undertakings affecting the applicable Phase or any provision of
any of them, without the Purchaser's prior consent, which consent shall not be
unreasonably withheld or delayed;
(ix) Except as provided in Paragraph 13.04 hereof, not
voluntarily enter into, accept or consent to any new (a) lease, occupancy
agreement, subtenancy agreement, license agreement, concession agreement, (b)
contract or agreement, personal property lease or agreement, and/or (c) lien,
encumbrance, or security interest (including without limitation, mortgage, deed
of trust, security agreement, assignment of leases or rents, collectively,
"Mortgage") or other title exception or defect (including without limitation,
easement, restriction, dedication), which shall not be terminated on or before
the applicable Closing without the Purchaser's prior consent, which consent
shall not be unreasonably withheld or delayed;
(x) Not commence any action or proceeding or petition, apply for
or consent to any action or proceeding, the effect of which may be to change the
zoning of the Project or its assessed valuation (except for entering into New
Leases);
(xi) Not sell, assign or transfer the Project or any part hereof
(except in the instance of New Leases as provided in Paragraph 13.04 hereof),
including without limitation, the Intangible Property and the Personal Property;
provided, however, that Seller may remove applicable Phase Personal Property for
the purpose of promptly effecting necessary repairs or immediate replacement
with Personal Property of like character and equal or better quality;
(xii) Not demolish or materially alter the Improvements or any
part thereof or otherwise adversely affect the value of the Project, without
Purchaser's prior consent, which consent shall not be unreasonably withheld or
delayed, except for (1) curing Unacceptable Conditions, Title Defects and Survey
Defects, (2) completing Punchlist Work (as defined and provided in Paragraph
13.11 hereof), (3) constructing tenant improvements for Leases, (4) performing
Seller's New Lease Obligations (as defined and provided in Paragraph 13.10
hereof), and (5) completing, in accordance with the Plans, any incomplete work.
(xiii) Except as provided in Paragraph 9.01(xii) above, not
materially alter the applicable Phase or any part thereof, including without
limitation, by mining, excavating, removing topsoil, timbering or changing the
grade, without Purchaser's prior consent, which consent shall not be
unreasonably withheld or delayed.
9.02 PAYMENTS. As more fully set forth in Paragraph 16.01 hereof, (i)
Punchlist Work; (ii) curing Unacceptable Conditions; (iii) constructing tenant
improvements for Leases and New Leases; (iv) all other work to be performed and
all payments to be made by Seller pursuant to the provisions of the Leases, the
Contracts, the Permitted Exceptions, and any insurance policy maintained by
Seller providing coverage for the Project which pertain to obligations that
accrue prior to the applicable Closing; and (v) Warranty Work shall be
completely performed and paid for when due (subject to the right to contest
Liens as provided in Paragraph 9.03 hereof) by Seller and the obligation thereof
shall survive the Closing.
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9.03 LIEN REMOVAL. Except for (i) taxes not yet due and payable as of
the applicable Closing, (ii) installments of special assessments due and payable
after the applicable Closing, and (iii) Liens (as hereinafter defined and
provided) that are either bonded or insured over in a form reasonably
satisfactory to Purchaser, all other liens and encumbrances of ascertainable
amounts incurred by Seller or by, for or on behalf of Seller, except the
Permitted Exceptions, shall be removed from the record by Seller or Seller shall
make arrangements satisfactory to the Title Company for the removal of, or title
insurance over (in form reasonably satisfactory to Purchaser), such liens and
encumbrances of record on the applicable Closing Date. Notwithstanding the
foregoing, any liens or encumbrances attaching to the title of the applicable
Phase as a result of work performed on or material supplied to the applicable
Phase by Seller or on behalf of anyone claiming by, through or under Seller
(except Tenants and New Tenants under Qualified Leases, as hereinafter defined)
or as a result of Seller's failure to pay, when due, a Commission (collectively,
"Lien" or "Liens") may be contested by Seller as hereafter provided. Within
thirty (30) days after the recording of a Lien that is recorded or filed after
the applicable Closing and that affects the closed Phase, Seller shall, at its
election, either (i) bond over the same, or (ii) cause the Title Company to
insure over the same (in form and substance reasonably satisfactory to
Purchaser), in order, in the instances of either clause (i) or (ii) above, to
reasonably protect the Purchaser and the applicable Phase (or any part thereof)
from and against the subject Lien. Thereafter, in the manner elected by Seller,
Seller may contest such Lien provided that, within thirty (30) days following
the entry by a court of competent jurisdiction of a final judgment or decree in
favor of the claimant of such Lien, Seller shall pay and satisfy such Lien and
cause it to be released of record. In the event Seller fails to pay and satisfy
any Lien within thirty (30) days following the entry by a court of competent
jurisdiction of a final judgment or decree in favor of the claimant of such Lien
or fails to bond over or insure over a Lien as provided in this Paragraph 9.03,
Purchaser may offset so much of any Earn-Out Payment or Footage Payment
subsequently payable by Purchaser hereunder by the amount incurred by Purchaser
for effectuating the satisfaction and release of the subject Lien.
10. REPRESENTATIONS AND WARRANTIES.
10.01 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser that:
(i) Seller is an Illinois corporation duly created and validly
existing pursuant to the laws of the jurisdiction of its organization and is
duly qualified to do business in the jurisdiction in which the Project is
situated.
(ii) Seller is authorized and empowered to enter into this
Agreement and to perform all of its obligations under this Agreement without any
qualification whatsoever, and no consent or approval of any third party
(including without limitation, any governmental or quasi-governmental authority)
is or was required by Seller to execute and deliver this Agreement or consummate
this transaction.
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(iii) Upon the signing and delivery of this Agreement, this
Agreement will be legally binding upon Seller in accordance with all of its
provisions, except as such provisions may be qualified or limited by bankruptcy,
creditor's rights and equitable principles.
(iv) The person signing this Agreement on behalf of Seller has
been duly authorized to sign and deliver this Agreement on behalf of Seller.
(v) To the best of its Knowledge (as hereinafter defined),
Seller has not committed any act or permitted any action to be taken which would
materially adversely affect its ability to fulfill all of its obligations under
this Agreement.
(vi) The execution and delivery of this Agreement, and the
performance of Seller's obligations under this Agreement, will not violate or
breach, or conflict with, the terms, covenants or provisions of any agreement,
contract, note, Mortgage, indenture or other document of any kind whatsoever to
which Seller is a party or to which the Project is subject.
(vii) Seller has received no written notice and Seller has no
Knowledge of any uncured Work Order, or unfulfilled requirements or
recommendations issued, imposed or made by any insurers concerning the Project
or any part thereof.
(viii) To the best of its Knowledge, (i) Seller is not in
default of any obligation of Seller under any Mortgage, and (ii) Seller and/or
the Project is in compliance with all terms and conditions of the Permitted
Exceptions, including any easement agreement or other agreement or undertaking
affecting the Project.
(ix) To the best of Seller's Knowledge, the Project was
constructed, and is presently being operated, occupied and used in substantial
accordance with all applicable federal, state and local laws, rules, regulations
and ordinances governing the construction, operation, occupation and use of the
Project, and no variances to any applicable federal, state or local law, rule,
regulation or ordinance were granted in connection with the construction of the
Project.
(x) To the best of Seller's Knowledge, there is (i) no pending
or contemplated Taking affecting the Project or any part thereof, or (ii) no
pending or contemplated public improvement in or about the Real Property which
may in any manner affect access to or from the Project or increase the taxes
assessed against the Project.
(xi) To the best of Seller's Knowledge, except for the Vacant
Space (as hereinafter defined), Seller is in receipt of all Permits required by
all governmental authorities for the construction currently being prosecuted at
the Project and the operation, occupation and use of the Project as a shopping
center; all Permits are in full force and effect; and all Permits issued to the
Project are described in respect to each Phase on Schedule 10.01(xi) attached
hereto and made a part hereof.
(xii) Neither Seller, nor, to the best of Seller's Knowledge
(except as disclosed in the Environmental Reports), any prior owner of the
Project has: (a) caused or permitted the
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generation, manufacture, refinement, transportation, treatment, storage,
handling, installation, removal, disposal, transfer, production or processing of
Hazardous Substances (as hereinafter defined) or other dangerous or toxic
substances, or solid wastes, except in strict compliance with all laws; (b)
caused or permitted or received any written notice or have any actual knowledge
of the Release (as hereinafter defined) or existence of any Hazardous Substances
on or about the Project or property surrounding the Project which might affect
the Project; (c) caused or permitted or received any written notice or have any
actual knowledge of any substances or conditions on or about the Project or on
property surrounding the Project which may support a claim or cause of action,
whether by any governmental authority or any other person, under any laws
("Environmental Laws") in effect as of the date of this Agreement and all rules
and regulations promulgated thereunder, including, but not limited to: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Sections 9601 et seq. (the "Superfund Act"); the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. Sections 6921 et seq.; the Toxic Substances
Control Act, 15 U.S.C. Sections 2601 et seq.; the Federal Insecticide, Fungicide
and Rodenticide Act, 7 U.S.C. Section 136; the Federal Water Pollution Control
Act, 33 U.S.C. Sections 1251 et seq.; the Hazardous Materials Transportation
Act, 49 U.S.C. Sections 1801 et seq.; the Federal Solid Waste Disposal Act, 42
U.S.C. Sections 6901 et seq.; the Clean Air Act, 42 U.S.C. Sections 7401 et
seq.; or any other law. For the purposes of this Agreement the terms "Hazardous
Substances" and "Release" shall have the definitions used in the Superfund Act;
provided, however, that the definition of the term "Hazardous Substances" shall
also include (if not included within the definition contained in the Superfund
Act), petroleum and related by products, hydrocarbons, radon, asbestos, urea
formaldehyde and polychlorinated biphenyl compounds.
(xiii) Except for the Permitted Exceptions, Seller is the sole
owner of good, indefeasible and insurable fee simple title to the Land and the
Improvements, and Seller has not executed or entered into any other agreement to
purchase, sell, option, lease or otherwise dispose or alienate all or any
portion of the Project other than this Agreement, the Leases and New Leases.
(xiv) Subject to the right of Seller to contest Liens as
provided in Paragraph 9.03 hereof, all labor and services performed and material
furnished to the Project have been paid for or will be paid for in full by
Seller, and, to the best of Seller's Knowledge, there exists no valid basis for
which a Lien or similar lien can properly be claimed against the Project or any
part thereof.
(xv) As of the date hereof, Schedule 7.02(a) attached hereto is
a complete and correct list of all Leases for each Phase, and the information
disclosed on Schedule 7.02(a) is accurate with respect to each of the Leases.
(xvi) Leasing commissions or fees that are payable in connection
with any leasing agreement or registration statement to which Seller is a party
or that Seller has accepted, in writing, that pertains to New Leases (that will
be paid by Seller as provided in Paragraph 13.11 hereof), and the Leases
described in Schedule 7.02(a), and commissions resulting from any
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other agreement to which Seller is a party relating to the Project
(collectively, "Commissions") will be paid by Seller when due under the
applicable leasing agreement or registration statement.
(xvii) Except as set forth on Schedule 10.01(xvii) attached
hereto, as of the date hereof, (1) none of the Tenants or New Tenants of Leases
and New Leases that are Qualified Leases as of the applicable Closing have been
granted any economic or financial concession or inducement (collectively,
"Tenant Inducement") that will not be paid in full by Seller when required in
accordance with the applicable provisions of the subject Leases and New Leases,
and (2) none of the subject Tenants or New Tenants have deposited Security
Deposits with Seller, except those disclosed on Schedule 7.02(a) attached
hereto.
(xviii) To the best of Seller's Knowledge, except as set forth
on Schedule 10.01(xviii) attached hereto, as of the date hereof, no Tenant or
New Tenant of Leases or New Leases that are Qualified Leases as of the
applicable Closing has alleged an event of default on the part of Seller which
is presently outstanding, or that Seller has not fulfilled all of its
obligations under the subject Leases or New Leases which are conditions of the
obligations of such Tenants and New Tenants to pay the Rents, including without
limitation, all work, repairs and improvements required to be furnished by
Seller pursuant to such Leases and New Leases.
(xix) To the best of Seller's Knowledge, except as set forth on
Schedule 10.01(xix) attached hereto, as of the date hereof, (1) none of the
Tenants or New Tenants under Leases or New Leases that are Qualified Leases as
of the applicable Closing are in default of any of their obligations under their
respective Leases and New Leases, and (2) no event has occurred which, with the
giving of notice, the passage of time, or both, would constitute an event of
default by such Tenant or New Tenant.
(xx) Except as set forth on Schedule 10.01(xx) attached hereto,
as of the date hereof, Seller has no notice and to the best of Seller's
Knowledge, no Tenant or New Tenant under a New Lease that is fully executed
prior to applicable Closing has advised Seller, orally or in writing, that any
Tenant or any subject New Tenant intends to give up physical or legal possession
of its demised premises, including without limitation: assigning its lease;
subletting all or part of its demised premises; vacating its demised premises;
discontinuing the operation of its business at its demised premises;
surrendering possession of its demised premises; or terminating its Lease or
subject New Lease.
(xxi) There are no employees of Seller that are assigned to the
Project for which Purchaser shall have any obligations after the applicable
Closing.
(xxii) A description of all Guaranties relating to the
construction and equipment of the Project received by Seller that, by their
terms, are in effect on or after the applicable Closing Date are true, correct
and complete, and all Guaranties issued with respect to the Project that, by
their terms, are in effect on or after the applicable Closing Date are described
in respect to each Phase on Schedule 5.01(g) attached hereto.
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(xxiii) Seller has not dealt with any broker, finder or other
person in connection with this transaction, who is entitled to any Commission,
finder's fee or similar payment as a result of the acts of Seller or its agents,
except (1) as pertains to New Leases, and in such event, all Commissions in
connection therewith shall be paid by Seller as provided in Paragraph 13.11
hereof, and (2) as pertains to Commissions not yet due and payable in respect to
Leases which shall be paid by Seller when required in respect to such Leases.
Seller acknowledges that it has conversed with ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ in connection with this transaction, but that Seller has not agreed to be
obligated to pay any fee or other compensation to either or both of them.
(xxiv) Seller has no actual Knowledge that any of the written
information provided to Purchaser by Seller or on its behalf in connection with
this transaction (including without limitation, the warranties and
representations set forth in this Agreement), is inaccurate or incomplete or
contains any untrue statement of fact.
(xxv) To the best of Seller's Knowledge, copies of documents
furnished or to be furnished to Purchaser by Seller or on its behalf in
connection with this transaction are true and complete copies of the originals.
(xxvi) As of the applicable Closing, Seller's net worth,
determined in accordance with generally accepted accounting principals
consistently applied, is greater than $5,000,000.00, exclusive of goodwill.
The term "Knowledge" when used in the context of "to the best of Seller's
Knowledge" (or any derivative form thereof) shall mean the actual (written or
oral), not imputed, knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ (Seller's Project Manager) or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Seller's Property
Manager).
10.02 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents
and warrants to Seller that:
(i) Purchaser is an Ohio corporation, duly organized and validly
existing pursuant to the law of the jurisdiction of its organization.
(ii) Purchaser is authorized and empowered to enter into this
Agreement and perform all of its obligations under this Agreement without any
qualification whatsoever.
(iii) No consent or approval of any third party (including
without limitation, any governmental or quasi-governmental authority) is or was
required by Purchaser to execute and deliver this Agreement or consummate this
transaction.
(iv) Upon the signing and delivery of this Agreement, it will be
legally binding upon Purchaser in accordance with all of its provisions, except
as such provisions may be qualified or limited by bankruptcy, creditor's rights
and equitable principles.
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(v) The person signing this Agreement on behalf of Purchaser has
been duly authorized to sign and deliver this Agreement on behalf of Purchaser.
(vi) To the best of Purchaser's Knowledge (as hereinafter
defined), Purchaser has not committed any act or permitted any action to be
taken which would materially adversely affect its ability to perform all of its
obligations under this Agreement.
(vii) The execution and delivery of this Agreement by Purchaser
and Purchaser's performance of it obligations under this Agreement shall not
conflict with any law, statute, ordinance, regulation, order, directive or
decree of any governmental or quasi-governmental authority or any contract,
other agreement or obligation to which Purchaser is a party or is otherwise
bound.
(viii) Except for ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, neither
Purchaser nor its agents have dealt with any broker, finder or other person in
connection with this transaction who is entitled to any Commission or similar
payment as a result of the acts of Purchaser or its agents.
(ix) All copies of documents furnished or to be furnished to
Seller by Purchaser or on its behalf in connection with this transaction are
true and complete copies of the originals.
The term Purchaser's Knowledge, when used in the context of "to the best of
Purchaser's Knowledge" (or any derivative form thereof) shall mean the actual
(written or oral), not imputed, knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or
▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
10.03 INTENTIONALLY DELETED.
10.04 INDEMNIFICATION.
(a) Except as limited by the provisions of Paragraph 23 hereof,
the Parties shall indemnify and hold each other harmless, from and against all
damages, costs, expenses, liabilities, penalties and fines, including without
limitation, attorneys fees, disbursements, expert witness fees, paralegal fees,
reporters fees, reproduction and printing costs, including any of the foregoing
which are incurred in connection with any appeal, and amounts paid in settlement
of claims (collectively, in respect to the foregoing inclusion, "Litigation
Expenses" ), paid or incurred by the other Party as a result of any
representation or warranty of the respective Party set forth in this Agreement
not being true and correct in all material respects when made. In addition, the
indemnity provisions of this Paragraph 10.04(a) on behalf of the Purchaser shall
pertain to any claims, demands, actions, causes of action, judgments or decrees
made against or entered against Seller in respect to any Commissions or other
compensation claimed or demanded by either ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ in
connection with the terms of this Agreement.
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(b) Notwithstanding the foregoing, and except as provided in
Paragraph 24.17 hereof in respect to Warranty Work, Seller's and Purchaser's
right to seek or obtain indemnification, damages or other legal recourse against
the other Party hereto (or any successor thereto) with respect to a breach of
any warranty, representation or covenant made in this Agreement or in any
documents, instruments or certificate executed and delivered pursuant hereto
shall terminate, and be of no further force or effect, unless (i) by the date
which is the last to occur of three hundred sixty five (365) days after the
termination of this Agreement and three hundred sixty five (365) days after the
expiration of the Earn-Out Period (as hereinafter defined), the aggrieved Party
shall have notified the other Party, in writing, that the aggrieved Party deems
that any such warranty, representation or covenant was breached in a material
respect when made (as updated or deemed updated) and states therein, with
reasonable particularity, the nature of the alleged breach and the section or
provision of the relevant document which was allegedly breached and (ii) by the
date which is the last to occur of three hundred ninety (390) days after the
termination of this Agreement and three hundred ninety (390) days after the
expiration of the Earn-Out Period, the aggrieved Party files suit against the
other Party seeking legal or equitable recourse as a consequence of such breach.
If the aggrieved Party timely notifies the other Party as called for in the
preceding clause (i) and timely files suit against the other Party as called for
in the preceding clause (ii), then the warranty, representation or covenant at
issue shall not terminate, but rather shall continue until the dispute is
settled between Seller and Purchaser or a final, non-appealable judgment is
issued by a court of competent jurisdiction with respect thereto.
(c) Within ten (10) days after receipt by an indemnified Party
of written notice of any claim or the commencement of any action under this
Paragraph 10.04 by a third party, the indemnified Party shall, if a demand in
respect thereof is to be made against the indemnifying Party pursuant to this
Paragraph 10.04, notify the indemnifying Party in writing of the claim or the
commencement of the action, provided the failure to notify the indemnifying
Party shall not relieve the indemnifying Party from any liability which it may
have to the indemnified Party other than under this Paragraph 10.04. Each
indemnitor shall be entitled, at its cost and expense, to contest any such third
party claim or action by all appropriate legal proceedings, provided that the
indemnitor shall have first notified the indemnitee of the indemnitor's
intention to do so within ten (10) days after the indemnitor's receipt of such
notice from the indemnitee. If the indemnitee joins in any such contest, the
indemnitor shall have full authority to determine all action to be taken with
respect thereto. If, after such opportunity, the indemnitor elects not to
contest any such claim or action, the indemnitor shall be bound by the
resolution of such claim or action obtained by the indemnitee. If required by
the indemnitor, the indemnitee shall cooperate fully with the indemnitor and its
counsel in contesting any such claim or action or, if appropriate, in making any
counterclaim or cross-claim against the subject third party asserting the claim
or bringing the action, but the indemnitor will reimburse the indemnitee for any
out-of-pocket costs and expenses incurred by the indemnitee in so cooperating.
The indemnitor shall pay to the indemnitee, in cash, all amounts to which the
indemnitee may become entitled by reason of the provisions of this Agreement,
such payment to be made within thirty (30) days after such amounts are finally
determined either by mutual agreement or by judgment of a court of competent
jurisdiction.
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11. SHARED CLOSING COSTS AND OTHER EXPENSES.
11.01 EXPENSES.
(a) Seller shall pay any and all fees or costs required to be
paid by Seller to the holder of the Mortgages in connection with the sale of the
Project, including, but not limited to prepayment fees, lender's consent fees or
lender's counsel fees, if any.
(b) Purchaser shall pay the costs and expenses of all Test and
Studies including any environmental audit of the Project and any other
investigations of the Project undertaken by Purchaser and all costs and
expenses, if any, charged by a lender to Purchaser in connection with any
financing or joint venturing of this transaction.
(c) Each Party shall pay its own attorney's fees.
11.02 SHARED CLOSING COSTS.
(a) Except as set forth above in Paragraph 11.01, if each
Closing occurs, Seller and Purchaser shall each pay fifty percent (50%) of all
of the cost of the applicable Phase Commitment, Title Policy (including the
Endorsements and the dating down and increasing the amount of coverage thereof
as provided in Paragraph 6.04 hereof), updating the Survey, transferring all
Permits and Guaranties to Purchaser, all escrow fees, and all transfer,
conveyance, revenue, excise, documentary or other tax or stamps, including
Indiana Gross Sales Tax, payable as a result of the sale of each Phase
(collectively, the "Shared Closing Costs").
(b) Except as provided otherwise in this Agreement, if each
Closing does not occur because of the failure of a condition to either Party's
obligation to close each Phase transaction (other than a default by a Party),
each Party shall pay fifty percent (50%) of the Shared Closing Costs.
(c) If each Closing does not occur because Seller is in default,
Seller shall pay all of the Shared Closing Costs for the applicable Phase.
(d) If each Closing does not occur and Purchaser is in default,
Purchaser shall pay all Shared Closing Costs for the applicable Phase.
12. CONDITIONS.
12.01 PURCHASER'S CONDITIONS. Purchaser shall not be obligated to
close a Phase transaction unless and until:
(a) Seller has delivered to the Escrow Agent the pre-closing and
closing documents described in Paragraphs 5, 6 and 7 of this Agreement;
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(b) Title to the applicable Phase is delivered in accordance
with the provisions of this Agreement and the Title Company issues the
applicable Phase Title Policy to the Purchaser on the applicable Closing Date,
in the amount of that portion of the Purchase Price computed as of the
applicable Closing Date in accordance with Paragraph 13.02 hereof, insuring that
indefeasible fee simple title to the applicable Phase is vested in Purchaser,
free and clear of all liens and encumbrances, except for the Permitted
Exceptions;
(c) The applicable Phase is delivered in the physical condition
provided for in this Agreement, reasonable wear and tear excepted; and
(d) If Seller is in default in the performance of any of its
obligations under this Agreement and such default has not been cured prior to
the applicable Closing or any of the representations or warranties of Seller are
untrue or inaccurate in any material respect when made or on the applicable
Closing Date.
12.02 SELLER'S CONDITIONS. Seller shall not be obligated to close a
Phase transaction unless and until:
(a) Purchaser has delivered to the Escrow Agent that portion of
the Purchase Price computed as of the applicable Closing Date in accordance with
Paragraph 13.02 hereof;
(b) Purchaser has delivered the closing documents described in
Paragraph 8 of this Agreement; and
(c) If Purchaser is in default in the performance of any of its
obligations under this Agreement and such default has not been cured by
Purchaser prior to the applicable Closing or any of the representations or
warranties of Purchaser is untrue or inaccurate in any material respect when
made or on the applicable Closing Date.
12.03 RIGHTS UPON FAILURE OF A CONDITION. Except in the case of a
default by Seller under Paragraph 12.01(d) or by Purchaser under Paragraph
12.02(c), if a condition of a Phase Closing of either Party is not satisfied as
of the applicable Closing Date, the Party whose condition is not satisfied at
such Closing shall have the right to (i) waive such condition and proceed with
the Phase Closing, (ii) extend the Phase Closing Date to permit additional time
to cause the unsatisfied condition to be satisfied, or (iii) terminate this
Agreement in respect to both Phases if the Phase I Closing has not already
occurred, or terminate the Phase II Closing, if the Phase I Closing has
occurred, and both Parties shall be released of all rights and obligations
hereunder in respect to the Phase that has not closed, except as otherwise
specifically provided for herein. If the failure of the condition is a default,
the rights of the parties shall be governed by Section 18 hereof.
13. EARN-OUT.
13.01 DEFINED TERMS. In addition to the other terms defined elsewhere
in this Agreement, the following terms shall have the following meaning:
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of Paragraphs 5.04 and 16.01 hereof.
(i) "Carry" shall mean the amount of the proportionate share of
real estate taxes and operating expenses for the applicable Phase that are (or
would have been) allocable to the premises that are the subject of a Lease or
New Lease that becomes a Qualified Lease for the period commencing on the
applicable Closing Date and ending on the date on which the Earn-Out Payment for
such Qualified Lease is due and payable hereunder, reduced by the portion, if
any, of such proportionate share for the subject period that is paid to
Purchaser by the Tenant or New Tenant of such Qualified Lease. To the extent
payable but not paid by the subject Tenant or New Tenant, the portion of Rent
from the such Tenant or New Tenant that applies to the period prior the date the
subject Earn-Out Payment is due and payable shall be deemed Arrears (as
hereinafter defined).
(ii) "Closing Payment" shall mean that amount (a) that is equal
to (y) for Phase I, the aggregate sum of those capitalized Net Cash Flows for
those Leases set forth on the Rent Roll attached hereto as Schedule 3.01 that
are Qualified Leases as of the Phase I Closing Date (which aggregated sum, as of
the date hereof based on the presumption of which Leases will be Qualified
Leases as of the Phase I Closing, is $13,301,810.00); plus or minus the amount
by which the annual Base Rent set forth in said Schedule 3.01 for those Leases
that are Qualified Leases as of the Phase I Closing Date increases or decreases
as verified by the applicable Tenant Estoppel, which increase or decrease shall
be capitalized using a rate of ten and 34/100ths percent (10.34%), and (z) for
Phase II, the aggregate sum of the Net Cash Flows for those Phase II Qualified
Leases as of the Phase II Closing Date that is capitalized using a rate of ten
and 34/100ths percent (10.34%); plus (b) in the instance of the Phase I Closing
only, the Lump Sum Payment; and plus or minus (c) the adjustments for the
applicable Phase that are provided in Section 14 hereof.
(iii) "Earn-Out Payment" shall mean the amount that is equal to
the Net Cash Flow from those Leases or New Leases that are Qualified Leases on
the date (other than any Closing Date) such Earn-Out Payment is due as provided
in this Section 13 capitalized using a rate of ten and 34/100ths percent
(10.34%), minus (1) the Carry, and minus (2) any unsatisfied right of offset
permitted Purchaser as provided in Paragraphs 5.04, 9.03, 14.06, 1407 and 16.01
hereof that was not previously credited to Purchaser.
(iv) "Force Majeure" shall mean delays resulting from (a) labor
disputes, (b) material or labor shortages, (c) Casualty, (d) acts of God or the
public enemy, (e) governmental embargo restrictions, (f) actions or inactions of
any governmental authority (including, but not limited to, the failure to timely
process or approve applications for the issuance or transfer of Permits,
licenses or approvals), (g) the adjustment of insurance claims resulting from
Casualty in excess of $1,000,000.00, (h) any other cause beyond the reasonable
control and reasonable anticipation of the applicable Party, but excluding
therefrom reasonable control resulting from monetary deficiency.
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(v) "Net Cash Flow" shall mean, in respect to the applicable
Qualified Leases, an amount equal to the aggregate amount of the so-called "base
rent" (but not operating expenses, tax reimbursements, escalations based on a
consumer price index, or other similar Rent adjustments) payable for the full
calendar year on and after the date the subject Qualified Lease became a
Qualified Lease (without reduction for "free" Rent or Rent abatements), less any
non-reimbursable operating expenses and taxes for such calendar year. Purchaser
acknowledges that for those Leases set forth on Schedule 7.02(a) attached
hereto, there are no non-reimbursable operating expenses or taxes that shall be
a deduction in the determination of Net Cash Flow.
(vi) "New Lease" shall mean any lease (other than the Leases)
that lets or demises space in the Project and that is entered into by (a) the
Seller subsequent to the date hereof, but prior to the applicable Closing Date,
or (b) by Purchaser or its successor(s) subsequent to the applicable Closing
Date, but prior to the expiration of the Earn-Out Period.
(vii) "New Tenant" shall mean the tenant or lessee under a New
Lease.
(viii) "Other Center" or "Other Centers" shall mean (a)
Arrowhead Crossing, located in Phoenix, Arizona, of which Opus Southwest
Corporation is the Other Seller; (b) Eastchase Market, located in Forth Worth,
Texas, of which Opus South Corporation is the Other Seller; (c) Maple Grove
Crossing, located in Minneapolis, Minnesota, of which Opus Corporation is the
Other Seller; and (d) Tanasbourne Town Center (Phase I), located in Hillsboro,
Oregon, of which Bold, L.L.C. is the Other Seller.
(ix) "Other Sale Agreement" or "Other Sale Agreements" shall
mean, in respect to the Other Centers, those other four Agreements of Purchase
and Sale entered into, effective as of the date hereof, by and between Purchaser
hereunder, as the purchaser thereunder, and, in respect to each Other Sale
Agreement, one of the Other Sellers, as the seller thereunder.
(x) "Other Seller" or "Other Sellers" shall mean any one or more
of the following: Opus South Corporation, a Florida corporation; Opus Southwest
Corporation, a Minnesota corporation; Opus Corporation, a Minnesota corporation;
and Bold, L.L.C, a Delaware limited liability company.
(xi) "Qualified Lease" shall mean, on the applicable Closing
Date or on the dates during or after the Earn-Out Period on which an Earn-Out
Payment is required to be paid hereunder, any Lease or New Lease that, pursuant
to the terms thereof:
(a) has been fully executed by either Seller or Purchaser
(or its successor), as lessor, and by the Tenant or New Tenant, as
lessee;
(b) the Tenant or New Tenant (1) has taken possession of
the premises that is the subject of the Lease or New Lease; (2) has
commenced paying Rent thereunder, provided, however, if Seller pays to
Purchaser the amount of (y) any free Rent afforded such Tenant or New
Tenant, or (z) the amount of Rent that would have been payable by such
Tenant or New Tenant, but for a fitting-up or fixturing period
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afforded to such Tenant or New Tenant, then the provisions of this
clause (2) shall not apply (provided that in the instance of clauses
(y) and (z), Seller shall not be permitted to pay such Rent for a
period greater than three (3) months); (3) has not terminated its
Lease or New Lease or been terminated by the landlord thereof as a
result of a default thereunder by such Tenant and New Tenant; (4) in
the instance of the applicable Closing Date, if it occurs (i) on or
before the fifteenth (15th) of a month, the Rent payment obligations
thereunder are not delinquent for a period longer than the month
preceding the month in which the applicable Closing Date occurred, or
(ii) after the fifteenth (15th) of a month, the Rent payment
obligations thereunder are not delinquent for a period longer than the
month in which the applicable Closing Date occurred; and (5) in the
instance of an Earn-Out Payment for the Earn-Out Period, the Rent
payment obligations thereunder are not delinquent for a period longer
than the month in which the Earn-Out Payment is due (in respect to
clauses (4) and/or (5), for any Rent that is past due longer than the
period set forth therein, "Monetary Default");
(c) the Tenant or New Tenant, as of the date an Earn-Out
Payment is required to be paid hereunder in respect thereto, is not in
voluntary or involuntary proceedings filed by or against it under
Section 365 of the U.S. Bankruptcy Code ("Bankruptcy Proceeding"); and
(d) the Earn-Out Conditions (as hereinafter defined)
therefor have been satisfied.
(xii) "Vacant Space" shall mean space in the Project that is
rentable for commercial purposes and that is not the subject of a Lease, New
Lease or any other occupancy right as of the Phase I Closing Date. If a Lease,
New Lease or any other occupancy right that is fully executed prior to the
expiration of the First Segment (as hereinafter defined) is terminated prior to
the expiration of the First Segment (provided Purchaser consents, in its sole
discretion, to such termination), no Closing Payment or Earn-Out Payment has
been paid in respect to such terminated Lease, New Lease or any other occupancy
right, and the subject space is not the subject of a different Lease, New Lease
or any other occupancy right at the expiration of the First Segment, then such
space shall also be deemed to be "Vacant Space" at the expiration of the First
Segment.
13.02 CLOSING DATE PURCHASE PRICE COMPUTATION. On the applicable Closing
Date, as part of the Purchase Price, Purchaser shall pay to Seller the
applicable Closing Payment computed in accordance with the provisions of
Paragraph 13.01(ii) hereof.
13.03 LEASE ASSIGNMENT RESERVATION. Notwithstanding any provisions to the
contrary contained in this Agreement, Seller shall be entitled to reserve from
the Lease Assignment ("Assignment Reservation") all of the remedies (but
excluding any eviction actions or summary depossess actions) of the landlord
under the subject Leases or New Leases (that are executed by Seller) that
pertain to (i) an event(s) that occurred prior to the applicable Closing Date,
but the obligation of indemnity by or performance of the subject Tenant or New
Tenant in respect to such event does not arise until on or subsequent to such
Closing Date; (ii) the recovery
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of Rent that is either due and payable prior to the applicable Closing Date or
due prior to the applicable Closing Date, but not payable until thereafter,
including Unknown Rents (as hereinafter defined); and (iii) the recovery of any
base rent portion of Rent that is due under Leases or New Leases prior to the
date ("Reserved Base Rent Date") that is the first to occur of (y) the date on
which the Earn-Out Payment in respect thereto is paid (if any is required as
hereafter provided), and (z) the date ("Lease Reservation Date") that is five
(5) months subsequent to the date (subject to Force Majeure) that is set forth
in the subject Lease or New Lease for the commencement of the term thereof.
Because Purchaser is to be the payee of Rent under Leases and New Leases due on
and after the Closing Date, the Lease Assignment shall not specifically reserve
the Assignment Reservation provisions provided in clause (iii). However,
provided Purchaser is not required to make any out-of-pocket expenditures to
third parties and Purchaser applies all Rents received after the applicable
Closing first to Rent then due under the applicable Leases and New Leases as
provided in Paragraph 14.02 hereof, Purchaser agrees to fully cooperate with
Seller in prosecuting against the applicable Tenant or New Tenants the rights
reserved in the Assignment Reservation, provided, further, however, that prior
to the commencement of any action or proceeding against such Tenant or New
Tenant, Seller notifies Purchaser of its intent to commence any such action or
proceeding and affords Purchaser a reasonable period of time to resolve the
matter with such Tenant or New Tenant before Seller commences any such action or
proceeding.
13.04 NEW LEASES. Except for New Leases presented to Purchaser by Seller as
hereafter provided, Purchaser and its successors, during the Earn-Out Period,
shall not enter into any lease, tenancy, occupancy agreement, rental agreement,
option, license or concession for space in the Project (collectively, "Rental
Undertaking"), without first obtaining Seller's prior written consent, which
consent shall not be unreasonably withheld or delayed. If Seller consents as
aforesaid to a Rental Undertaking, such approved Rental Undertaking shall be
deemed a New Lease. During the period commencing on the date hereof and ending
on the expiration of the Earn-Out Period, Seller shall have the exclusive right
to negotiate prospective New Leases, except in the instance of Rental
Undertakings to which Seller has consented as aforesaid. Purchaser agrees to
bind its successors, assigns and their successors and assigns to the provisions
of this Paragraph 13.04.
Seller shall keep Purchaser reasonably advised of the terms,
provisions and conditions of such prospective New Leases as well as the identity
of and the available financial information pertaining to the lessee ("Prospect")
of a proposed New Lease. Purchaser agrees to reasonably cooperate with and
advise Seller whether the credit worthiness of the Prospect is acceptable to
Purchaser and of those terms, provisions and conditions proposed for prospective
New Leases that Purchaser approves or disapproves. Purchaser agrees not to
unreasonably withhold or delay its consent and approval of the credit worthiness
of the Prospect or of such terms, provisions and conditions, provided the same
are reasonably consistent with the Leases and New Leases (or does not violate
any provision thereof) in respect to (i) rental rates and proposed Tenant
Inducements for comparable space within the Project for Prospects of comparable
net worth, (ii) duration of lease term, and (iii) exclusive uses proposed for
the Prospect..
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Under the provisions of a New Lease, (i) for the period prior
to the applicable Closing Date, Seller shall be the landlord thereof, and (ii)
for the Earn-Out Period in respect to the applicable Phase, Purchaser shall be
the landlord thereof and Seller shall be a party thereto, as contractor, for the
limited purpose of performing the New Lease Obligations (as hereinafter
defined).
When and as a final draft of a New Lease is prepared, Seller
shall deliver a true and complete copy thereof to Purchaser along with all
financial information pertaining to the Prospect that is in Seller's possession
or under its control that was not theretofore delivered to Purchaser. Purchaser
shall advise Seller, in writing, within ten (10) business days after Purchaser's
receipt of the draft New Lease, whether Purchaser approves or disapproves the
same. If Purchaser notifies Seller as aforesaid of Purchaser's disapproval of a
draft New Lease ("Disapproved Lease"), such notice shall set forth, in
reasonable particularity, the reasons for Purchaser's disapproval. If Purchaser
fails to so notify Seller of whether the draft New Lease is approved or
disapproved as aforesaid, it shall act as notice to Seller that Purchaser has
approved the same. When a prospective New Lease has been approved or is deemed
to have been approved, (i) in the instance of prospective New Leases to be
executed prior to the applicable Closing Date, Seller shall execute the same as
Landlord thereunder, and (ii) in the instance of prospective New Leases to be
executed during the Earn-Out Period for the applicable Phase, Seller shall
promptly thereafter deliver execution originals of the same to Purchaser that
have been executed by the subject Prospect, as the New Tenant, and by the Seller
in respect to the New Lease Obligations. Within five (5) business days following
Purchaser's receipt of execution originals as aforesaid in clause (ii),
Purchaser shall execute and return the same to Seller. If Purchaser fails to
return, when required, said originals executed by Purchaser as aforesaid, such
New Lease ("Unsigned Lease") shall automatically be deemed a New Lease that is
fully executed during the Earn-Out Segment (as hereinafter defined) in which
Seller delivered it to Purchaser for execution, and shall be deemed a Qualified
Lease and the Earn-Out Conditions in respect thereto satisfied on the sixth
(6th) business day after it was delivered to Purchaser, notwithstanding the
provisions of Paragraph 13.01(xi) hereof. As a result, subject to the provisions
of the next sentence, Purchaser shall pay to Seller, on the twenty-fifth (25th)
day of the month first occurring thereafter, the Earn-Out Payment computed in
respect to such Unsigned Lease. However, in the event, after the date an
Unsigned Lease became a Qualified Lease as aforesaid and prior to the date the
Prospect thereof withdraws its signature thereto, Purchaser executes and returns
to Seller such Unsigned Lease, Seller agrees to be bound by and to perform the
New Lease Obligations for such Unsigned Lease.
In the event, at any time prior to the date that is three (3)
months subsequent to the expiration date of the Earn-Out Segment in which there
was a Disapproved Lease, Purchaser (or its successors or assigns) enters into
any Rental Undertaking with the Prospect of such Disapproved Lease, such Rental
Undertaking shall automatically, notwithstanding the provisions of Paragraph
13.01(xi) hereof, be deemed to be a Qualified Lease, and Purchaser shall pay to
Seller, on the twenty-fifth (25th) day of the month first occurring after such
Rental Undertaking was signed by Purchaser, an amount equal to (a) the Earn-Out
Payment computed in respect to the provisions of such Rental Undertaking as a
Qualified Lease, minus (b) the Footage Payment,
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if any, that was previously paid by Purchaser in respect to the portion of the
Project that is the subject of such Rental Undertaking, minus, (c) the costs
incurred by Purchaser to unrelated third parties for the construction and
completion of tenant improvements and broker's commissions for the subject
Rental Undertaking, but in an amount, in either instance, not greater than the
cost of those tenant improvements and Commissions provided in the Disapproved
Lease, and minus (d) any unsatisfied right of offset afforded Purchaser pursuant
to Paragraphs 5.04, 9.03, 14.06, 14.07 and 16.01 hereof. The obligations of
Purchaser under the provisions of this grammatical paragraph shall survive the
applicable Closing and the later expiration of the Earn-Out Period.
13.05 EARN-OUT PERIOD. The hereafter provided period of time subsequent to
the Phase I Closing Date shall be divided into two segments (respectively,
"First Segment," and "Second Segment," and generally, "Earn-Out Segment,"). Each
Earn-Out Segment during which Seller has elected, as hereafter provided, to
extend the term of this Agreement shall be for a period of five (5) months or
for such longer period as provided in Section 13.06 hereof. The First Segment
shall commence on the day after the Phase I Closing Date, and the Second Segment
(if Seller elected or is deemed to have elected to extend the Earn-Out Period)
shall commence on the day after the expiration of the First Segment. Provided
the Phase I Closing occurs, Seller hereby elects to extend the term of this
Agreement for the First Segment. Seller may elect, in its sole discretion, to
extend the term of this Agreement for the Second Segment by delivering to
Purchaser Seller's written notice of such election ("Earn-Out Extension Notice")
not less than thirty (30) days prior to the expiration of the First Segment. If
Seller fails to deliver, as aforesaid, its Earn-Out Extension Notice, it shall
act as notice to Purchaser that Seller has elected not to extend the term of
this Agreement for the Second Segment, but such election or deemed election of
Seller shall not affect the obligations of the Parties in respect to the Phase
II Closing. However, notwithstanding the preceding sentence, if one or more of
the Other Sellers elect(s), under the provisions of its respective Other Sale
Agreement, to extend for the Second Segment, Seller, regardless of its election
hereunder, shall be deemed to have elected to so extend this Agreement, except
that an election by the Other Seller under the terms of the Other Sale Agreement
for Tanasbourne Town Center (Phase I) to extend for the second segment
thereunder shall not be deemed an election of Seller hereunder to extend the
Earn-Out Period for the Second Segment, if the closing for such Other Center is
after the Phase I Closing. The aggregate of the Earn-Out Segments for which
Seller has elected or is deemed to have elected to extend the term hereof shall
be referred to as the "Earn-Out Period." Any time remaining in the Earn-Out
Period on and after the Phase II Closing Date shall be applicable to Phase II as
well as Phase I, provided that the Earn-Out Period applicable to Phase II
(except as provided in Paragraph 17.02 below) shall not be longer than the Phase
I Earn-Out Period.
13.06 CASUALTY DURING EARN-OUT PERIOD. Except as hereafter provided, if,
during the Earn-Out Period, there is a Casualty to a Vacant Space, the Earn-Out
Period and the applicable Earn-Out Segment shall be tolled as to the damaged
Vacant Space until such time as Purchaser causes such damaged Vacant Space to be
restored to a habitable condition, exclusive of tenant's improvements. Except as
hereafter provided, if, during the Earn-Out Period, there is a Casualty to
twenty five percent (25%) of the Square Footage of the entire Project (as
opposed to a particular Phase) Improvements (exclusive of the Vacant Space), the
Earn-Out Period and the applicable Earn-Out Segment shall be tolled until such
time as such damaged Improvements are
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restored to a condition so that the Tenants or New Tenants thereof are open and
operating their respective businesses therein, except in respect to those
Tenants or New Tenants whose Leases or New Leases were terminated as a result of
the subject Casualty. Purchaser agrees to promptly notify Seller, in writing, of
the occurrence of such a Casualty. Notwithstanding the foregoing, in the event
of such a Casualty, Seller shall deliver to Purchaser, within ten (10) days
following the date of Seller's receipt of Purchaser's written notification,
Seller's written notice ("Casualty Notice") of its good faith determination that
such Casualty is the proper basis for the tolling of the applicable Earn-Out
Segment. If Seller fails to deliver a Casualty Notice as aforesaid, it shall act
as notice to Purchaser that Seller is not claiming any tolling of the applicable
Earn-Out Segment in respect to such Casualty. Regardless of a Casualty Notice,
there will be no tolling of the Earn-Out Period if Purchaser restores the
applicable portion of the Improvements in the Phase(s) that has been closed
within thirty (30) days following the date of such Casualty. However, if such
restoration is not completed within said thirty (30) days, the Earn-Out Period
shall be tolled commencing on the date of the Casualty and ending on the date
provided in the first two sentences of this Paragraph 13.06. During the Earn-Out
Period, following a Casualty, Purchaser agrees to diligently (subject to Force
Majeure) undertake the restoration of the applicable portion of the Improvements
in the Phase(s) that has then closed.
13.07 EARN-OUT PAYMENTS. In respect to Leases or New Leases that are fully
executed prior to the expiration of the Earn-Out Period, on the twenty-fifth
(25th) day of each calendar month after the Phase I Closing Date, provided the
subject Lease or New Lease is a Qualified Lease in respect to Phase I on and
after the Phase I Closing Date and a Qualified Lease in respect to Phase II on
and after the Phase II Closing Date, but prior to the Lease Reservation Date,
Purchaser shall pay to Seller the Earn-Out Payment computed in respect to those
Leases and New Leases that became, for the first time, Qualified Leases during
the preceding month and for which no Earn-Out Payment had been previously paid
to Seller. In the event a New Lease is executed during the First or Second
Segment, but it does not become a Qualified Lease until after the expiration of
the Earn-Out Period, but prior to the Lease Reservation Date, Purchaser, subject
to the satisfaction of the Earn-Out Conditions, shall pay to Seller at the time
aforesaid, an amount equal to the Earn-Out Payment computed in respect to such
subsequent Qualified Lease. Any Earn-Out Payment shall be subject to any
unsatisfied right of offset as provided in Paragraphs 5.04, 9.03, 14.06, 14.07
and 16.01 hereof.
Notwithstanding the foregoing, the Earn-Out Payment or Closing
Payment in respect to a particular Qualified Lease (excluding those that are
Qualified Leases in respect to an Unsigned Lease or a Rental Undertaking with
the Prospect of a Disapproved Lease as provided in each instance in Paragraph
13.04 hereof) shall not be due and payable by Purchaser to Seller, unless and
until, Seller, prior to the Lease Reservation Date, has delivered or caused to
be delivered to Purchaser, in respect to the subject Qualified Lease, (i) a
fully executed original thereof; (ii) a certificate of occupancy from the
applicable governmental authority authorizing the uninterrupted occupancy by the
subject Tenant or New Tenant of the subject premises; (iii) the applicable
Tenant Estoppel containing no material exceptions or Seller's Estoppel, if in
accordance with the provisions of Paragraph 7.15 hereof; (iv) Schedule
10.01(xvii) from Seller in respect to the subject Lease or New Lease, updated to
the date the Earn-Out Payment is due, setting forth any unsatisfied Tenant
Inducement in respect thereto; (v) evidence, in form and
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content reasonably satisfactory to Purchaser, that the portion of Tenant
Inducements payable to the subject Tenant or New Tenant has been paid by Seller;
(vi) an original of the insurance certificates required from the subject New
Tenant under the Qualified Lease; (vii) the date down and increased coverage
endorsement for the Title Policy required pursuant to the provisions of
Paragraph 6.04 hereof, provided Purchaser pays fifty percent (50%) of the Shared
Closing Costs in respect thereto; and (viii) copies of the "as-built" plans and
specifications for the tenant improvements for the subject Qualified Lease
(collectively, in respect to clauses (i) through (viii) above, "Earn-Out
Conditions"). The Earn-Out Payment obligations of this Paragraph 13.07 shall
survive each Closing Date and the later termination of this Agreement. If the
Earn-Out Conditions are not satisfied for the subject Lease or New Lease on or
prior to the Lease Reservation Date therefor, then Purchaser shall have no
obligation to make any Earn-Out Payment in respect thereto.
13.08 FOOTAGE PAYMENT. In the event Seller elects not to extend the Earn-Out
Period for the Second Segment, Purchaser shall pay to Seller, when hereafter
provided, an amount ("Footage Payment") equal to the Square Footage (as
hereinafter defined) of the Vacant Space existing at the expiration of the First
Segment, multiplied by (i) $55.00 for that portion of the Vacant Space that is
not greater than one hundred feet in depth as measured from the front exterior
surface to the rear exterior surface, and (ii) $45.00 for that portion of the
Vacant Space that is greater than one hundred feet in depth measured as
aforesaid. If Seller elects or is deemed to have elected to extend the term of
the Earn-Out Period for the Second Segment, there will be no Footage Payment.
"Square Footage" shall mean the aggregate number of square feet of the Vacant
Space measured from the front exterior surface to the rear exterior surface and
from the middle of demising walls of such Vacant Space. Within forty-five (45)
days following the date Seller has elected or is deemed to have elected not to
extend the term of the Earn-Out Period for the Second Segment, Seller shall
deliver to Purchaser Seller's computation of the amount of the Footage Payment
("Footage Computation") which will set forth the identity of the Vacant Space,
the depth of the Vacant Space, and the amount of the Square Footage contained
therein. Unless Purchaser notifies Seller within ten (10) business days
following Purchaser's receipt of the Computation Notice that Purchaser disagrees
with the provisions thereof, Purchaser shall pay to Seller, within thirty (30)
days following Purchaser's receipt of the Computation Notice the amount of the
Footage Payment provided therein. If Purchaser does object to the Computation
Notice as aforesaid, Purchaser and Seller shall promptly confer, in good faith,
to resolve the disagreement. When the disagreement is resolved, within ten (10)
business days thereafter, Purchaser shall pay to Seller the resolved Footage
Payment. Any Footage Payment shall be subject to any unsatisfied right of offset
as provided in Paragraphs 5.04, 9.03, 14.06, 14.07 and 16.01 hereof.
13.09 INTENTIONALLY DELETED.
13.10 SELLER'S NEW LEASE OBLIGATIONS. Seller, at its sole cost and expense,
shall (i) apply for and obtain all permits and licenses necessary to construct
all tenant improvements required under New Leases; (ii) subject to Force
Majeure, construct and complete, when required under the provisions of New
Leases, all such tenant improvements; (iii) pay, when due, all
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Commissions in respect to New Leases; (iv) provide and undertake the required
New Lease construction and warranty work ("Tenant Warranty"); and (v) provide
the builder's "all risk" and general liability insurance coverage required by
the subject New Lease in respect to such construction (collectively in respect
to clauses (i) through (v), "New Lease Obligations").
13.11 PUNCHLIST. The portion of the Purchase Price payable at each Closing
as computed pursuant to the provisions of Paragraph 13.02 hereof and the amount
of each Earn-Out Payment due hereunder shall be reduced by an amount which shall
be held by Purchaser and disbursed as hereafter provided, which amount shall
equal one hundred and twenty five percent (125%) of the reasonably estimated
cost of completing all of the tenant improvement work for Leases and New Leases
that are Qualified Leases in the applicable Phase as of the applicable Closing
Date and/or Earn-Out Payment date. The amount of the Footage Payment payable
hereunder shall be reduced by an amount which shall be held by Purchaser and
disbursed as hereafter provided, which amount shall equal one hundred twenty
five percent (125%) of the reasonably estimated cost of constructing and
completing substantially to those standards for the shell and core portions of
the Improvements for the subject Phase that are each set forth on the Shell and
Core List and Standard attached hereto as Schedule 13.11 (collectively, in
respect to the first and second sentences of this Paragraph 13.11, "Punchlist
Holdback"). The Punchlist Holdback shall be compiled in a line item format in
respect to major segments for completing such incomplete items and shall set
forth the reasonable cost of completing each such line item. If Seller and
Purchaser, within fifteen (15) days prior to the date the foregoing payments
hereunder are due, are unable to agree on the scope or amount of each applicable
Punchlist Holdback line item, Seller and Purchaser shall appoint a third party
contractor to make such determination, and the scope and amount so determined by
the third party contractor shall be binding upon the Parties. When the scope and
amount of the applicable Punchlist Holdback is determined as aforesaid, it shall
be attached to this Agreement, respectively, as Schedules 13.11(a)(1),
13.11(a)(2), etc. Thereafter, subject to Force Majeure, Seller, at its sole cost
and expense (regardless of the amount of the Punchlist Holdback), agrees to
diligently prosecute to completion ("Punchlist Work") all of the items on each
Schedule 13.11(a) attached hereto. The obligation of Seller to complete the
Punchlist Work is absolute and unconditional. Monthly, after each Punchlist
Holdback is established as aforesaid, when Punchlist Work pertaining to various
line items on the applicable Punchlist Holdback is complete, the Purchaser shall
pay to Seller one hundred percent (100%) of that portion of the applicable
Punchlist Holdback applicable to such completed Punchlist Work (thereby
retaining twenty-five percent (25%) thereof), provided Seller has delivered to
Purchaser a Form G704 in the form attached to the Exhibit Agreement as Schedule
13.11(b), executed by Seller (or its contractor) setting forth that the subject
line item of such Punchlist Work has been completed.
When all of the Punchlist Work in respect to the applicable Punchlist
Holdback has been completed in respect to the applicable Phase and the Forms
G704 therefor have been delivered to Purchaser, Purchaser shall pay to Seller
the remaining twenty-five percent (25%) of the subject Punchlist Holdback,
provided Seller has delivered to Purchaser the following documents:
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(a) Evidence that all payment in the manner required by the applicable
contract, agreement or undertaking is paid in full in respect to the subject
Phase Punchlist Work;
(b) Lien waivers required by (and that are reasonably satisfactory to)
the Title Company from the Seller and its contractor and subcontractors that are
necessary to insure over Liens in respect to the subject Punchlist Work; and
(c) In respect to the portion(s) of the subject Punchlist Work that
pertains to incomplete tenant improvements under a Lease or New Lease, an
acknowledgment from the subject Tenant or New Tenant, in form and substance
reasonably acceptable to Purchaser, setting forth the applicable Tenant's or New
Tenant's acceptance of completion of the subject tenant improvements.
14. CLOSING ADJUSTMENTS AND APPORTIONMENTS.
All of the items of income and expense mentioned in this Section 14
shall be apportioned or adjusted between Seller and Purchaser as of 12:01 A.M.,
local time of the Project, as of the applicable Closing Date. Except as provided
in the instance of Unknown Rents as provided in Paragraph 14.03 hereof, all
apportionments and adjustments shall be made as of the applicable Closing Date.
To the extent that the apportionments and adjustments, at the applicable
Closing, are based upon any errors or omissions in the calculation or
determination thereof, promptly after notice of such errors or omissions, the
Parties shall readjust or reapportion and make the payment required as a result
thereof.
14.01 RENTS. The fixed and minimum rents and all additional rents,
escalation charges, common area maintenance charges, imposition charges, heating
and cooling charges, insurance charges, charges for utilities, percentage rent,
and all other rents, charges and commissions (collectively, the "Rents") payable
by the Tenants under the Leases and New Leases that are Qualified Leases for the
applicable Phase as of the applicable Closing Date, to the extent collected by
Seller on or prior to such Closing Date and which represent payments of Rents
applicable to a period of time subsequent to such Closing Date. Notwithstanding
the foregoing, Seller shall be permitted the rights against Tenants and New
Tenants as provided in the Assignment Reservation set forth in Paragraph 13.03
hereof.
14.02 ARREARS. Any of the Rents that are due and payable by the Tenants and
New Tenants of the applicable Phase on or prior to the applicable Closing Date,
but which have not been collected by the Seller on or prior to such Closing
Date, or payment of which has been deferred until after such Closing Date
("Arrears"), to the extent applicable to any period of time on or prior to the
Closing Date, and which are paid after such Closing Date shall, subject to the
terms below, be paid to Seller and be the subject of the Assignment Reservation,
and if the Arrears are received by Purchaser, Purchaser shall pay the Arrears to
Seller after collection by Purchaser, provided, however, that if any Arrears
exist on such Closing Date, all Rents, received and collected by Purchaser after
such Closing Date shall be applied first to payment of all Rents due Purchaser
and second to all Arrears due Seller. Purchaser shall have no obligation to
collect any Arrears or to commence any action to enforce the obligation of
Tenants to pay the Arrears,
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but Purchaser agrees to cooperate with Seller in the collection of such Arrears,
but only as provided in Paragraph 13.03 hereof. In the event Purchaser elects to
commence any action or proceeding against any Tenant and as a result thereof
collects any Arrears which Purchaser is required to remit to Seller, Purchaser
shall be entitled to deduct and retain a portion of the amount collected which
is equal to the Pro Rata Share (as hereinafter defined) of the Litigation
Expenses incurred by Purchaser in connection with the collection of the Arrears.
Notwithstanding anything to the contrary, Seller, as a result of the Assignment
Reservation, shall have the right, after delivery of prior written notice to
Purchaser, to commence any action or proceeding, except a summary depossess or
any eviction actions, against any Tenant for Seller's portion of any Arrears.
14.03 UNKNOWN RENTS. Any Rents which have accrued but are not due and
payable on the applicable Closing Date because the applicable Lease or New Lease
year or other fiscal period for the subject Phase for which such Rents are to be
computed has not yet expired (including by way of example only, escalation
charges and percentage rents) or if it has expired but cannot for any other
reason be calculated by the Parties on such Closing Date ("Unknown Rents"),
shall be apportioned promptly after (i) the expiration of the applicable Lease
or New Lease year or other fiscal period, and (ii) the receipt and collection of
the Unknown Rents. Purchaser shall make reasonable efforts to ascertain the
amount of the Unknown Rents (but, shall not be obligated to commence any action
or proceeding to collect Unknown Rents, except that Purchaser shall reasonably
cooperate with Seller in respect to the Assignment Reservation as provided in
Paragraph 13.03 hereof), and when the amounts of the Unknown Rents are
ascertained, received and collected by Purchaser, Purchaser shall promptly pay
to Seller a portion (the "Pro Rata Share") of the Unknown Rents determined by
multiplying the Unknown Rents collected by a fraction, the numerator of which is
the number of days in the applicable Lease or New Lease year or other fiscal
period up to but excluding the applicable Closing Date and the denominator of
which is the number of days in the applicable Lease or New Lease year or other
fiscal period, less any monies Seller has previously received on account of the
Unknown Rents and Seller's Pro Rata Share of the Litigation Expenses incurred by
Purchaser in the collection of the Unknown Rents. In the event it is determined
after the applicable Closing that the amount of the Unknown Rents received by
Seller exceeds the Seller's Pro Rata Share, Seller shall promptly pay such
excess to Purchaser upon demand. Notwithstanding anything to the contrary,
Seller shall have the right to commence any action or proceeding, except a
summary depossess or an eviction action, against any Tenant for Seller's portion
of any Unknown Rents.
14.04 UTILITIES. To the extent not payable by Tenants or New Tenants, the
actual or estimated charges for utilities accrued and payable by Seller prior to
the applicable Closing Date, provided Purchaser is required by law or elects to
assume Seller's account. Deposits for utilities (the "Utility Deposits"), plus
any interest on the Utility Deposits to which Seller is or will be entitled,
held by the provider of the utilities and which are freely transferable to
Purchaser, shall, at the election of the Purchaser, be assigned by Seller to
Purchaser and Purchaser shall pay Seller the full amount thereof at the
applicable Closing, in addition to the applicable portion of the Purchase Price.
Seller shall retain the right to obtain a refund of any Utility Deposits which
are not required to be assigned to Purchaser and Purchaser will cooperate with
Seller in obtaining any refund. With respect to water, sewer, electric and gas
charges, Seller shall make reasonable
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efforts to obtain a reading of the meter or other consumption measuring device
as of the applicable Closing Date. If the Seller is unable to obtain such a
reading, Seller shall furnish a reading as of a date not more than thirty (30)
days prior to the applicable Closing Date and the unknown charges shall be
apportioned on the basis of an estimate computed by utilizing such reading and
the most recent ▇▇▇▇ from the utility provider, computed on an equal per diem
basis.
14.05 CONTRACTS. Prepaid charges, payments and accrued charges under the
Contracts set forth in Schedule 7.05(a) attached hereto, to the extent not paid
by Tenants or New Tenants. However, if paid by Tenants or New Tenants, Seller
shall credit Purchaser with the amount thereof received by Seller from such
Tenants or New Tenants, to the extent not applied to the payment obligations
under the Contracts.
14.06 TAXES. All references to the year of real estate taxes shall mean
those real estate taxes that are due with respect to the stated year, but are
not assessed and payable until the succeeding year. Seller shall cause all real
estate taxes for 1994 and prior years for the Project to have been paid as of
the Phase I Closing Date. Seller shall be responsible for paying the 1995 real
estate taxes and, if possible, shall cause such real estate taxes to be paid as
of the Phase I Closing. If the statement for the 1995 real estate taxes is not
available on or before the Phase I Closing, the 1995 real estate taxes shall be
estimated to be $31,870.00, and the Parties shall thereafter make such
adjustments (increases or decreases) as may be necessary at such time as the
1995 real estate tax statement becomes available. Notwithstanding the foregoing,
at each Closing, to the extent there are Tenants or New Tenants that pay their
Real Estate Tax Rent (as hereinafter defined) on a lump sum basis, Seller shall
not be required to credit Purchaser with that portion of the pro-rata share of
the real estate taxes that are payable in the year of such Closing for the
period from January 1 to the date of the applicable Closing for which such lump
sum paying Tenants and New Tenants are responsible ("Lump Sum Non-Credit").
However, if any such Tenant or New Tenant fails to pay their respective lump sum
portion of Real Estate Tax Rent when due that is applicable to the period from
January 1 to the applicable Closing Date, Purchaser shall notify Seller of the
same, in writing, and Seller shall pay such unpaid amount within five (5)
business days and such amount so paid by Seller shall be deemed Arrears. In the
event Seller fails to pay such amount, Purchaser shall be permitted to offset
any Closing Payment, Footage Payment, Earn-Out Payment or other sum payable by
Purchaser to Seller hereunder that is thereafter due. To the extent there are
insufficient future payments due Seller from Purchaser against which to make
such offset, Purchaser shall have the remedy against Seller as provided in
Paragraph 18.05 hereof. The 1996 real estate taxes for the applicable Phase
shall be pro-rated as of the applicable Closing Date. Seller's pro-rata share of
1996 real estate taxes shall be calculated based upon the number of days
elapsing from January 1, 1996 to, but not including, the applicable Phase
Closing Date in relation to 365 days in the year 1996. Purchaser shall be
responsible for the remaining portion of such real estate taxes, commencing with
the applicable Closing Date and continuing through December 31 of the year of
the applicable Closing. In the event the statements for the 1996 real estate
taxes are not available as of the applicable Closing Date, the Parties shall
make the pro-ration provided for herein on the basis of an agreed upon estimate
of $288,700.00, and shall thereafter make such adjustments as may be necessary
at such time as the tax statements
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for the total real estate taxes for 1996 become available. The Closing Payment
for each Closing shall be reduced by the amount of the unpaid 1995 real estate
taxes (exclusive of the Lump Sum Non-Credit), plus Seller's pro-rata share of
the 1996 real estate taxes.
The portion of the Rent under Leases and New Leases that pertains to
the obligations of Tenants and New Tenants to pay their respective pro-rata
share real estate taxes (or special assessments provided in Paragraph 14.07
hereof) shall be called "Real Estate Tax Rent." Certain Tenants and New Tenants
pay their Real Estate Tax Rent in a lump sum(s) and others pay their Real Estate
Tax Rent on a monthly basis. The portion of Real Estate Tax Rent that pertains
to the period prior to the applicable Closing Date and which was paid to Seller
by those Tenants and New Tenants who pay the same on a monthly or lump sum basis
shall be retained by Seller. Any Real Estate Tax Rent received by Seller prior
to the applicable Closing Date that pertains to the period on or subsequent to
such Closing Date shall be credited to Purchaser at such Closing. Any Real
Estate Tax Rent received by Purchaser after the applicable Closing that pertains
to the period prior to such Closing Date (except that which is a Lump Sum
Non-Credit) shall, be paid by Purchaser to Seller. The Real Estate Tax Rent
retained by Seller shall be subject to adjustment (increases or decreases) at
such time as Purchaser reconciles the estimated payment of Real Estate Tax Rent
with the amount of the actual real estate taxes paid for 1996.
14.07 ASSESSMENT INSTALLMENTS. If, as of the applicable Closing Date, the
subject Phase is encumbered or otherwise affected by any assessment (whether or
not a lien) which becomes payable in installments, for the installment that is
due and payable in the year in which the applicable Closing occurs, Seller shall
credit Purchaser with the pro-rata portion of such installment from January 1 of
the year of such Closing to the applicable Closing Date, except for an amount
that would be equal to the Lump Sum Non-Credit. Such pro-ration shall be made on
the basis that the number of days from January 1 of the year of the applicable
Closing to, but excluding, the applicable Closing Date bears to three hundred
and sixty five (365) days. The portion of Real Estate Tax Rent applicable to the
installment of assessment payable in the year of the applicable Closing that
pertains to the period prior to the applicable Closing and which was paid to
Seller by Tenants or New Tenants shall be retained by Seller. Any Real Estate
Tax Rent applicable to such installment or assessment that was received by
Seller prior to the applicable Closing Date that pertains to the period on or
subsequent to such Closing Date shall be credited to Purchaser at such Closing.
Any Real Estate Tax Rent applicable to such installment of assessment received
by Purchaser after the applicable Closing Date that pertains to the period prior
to such Closing Date (except that which is a Lump Sum Non-Credit) shall be paid
by Purchaser to Seller. If any Tenant or New Tenant who pays their respective
Real Estate Tax Rent on a lump sum basis and for whom a Lump Sum Non-Credit was
provided, Seller shall remain responsible for Lump Sum Non-Credit as provided in
Paragraph 14.06.
14.08 PERMITS. The (i) Vault taxes and rents, if any, due and payable in 1996
(to the extent not the obligation of the applicable Tenants or New Tenants to
pay), (ii) Permit fees to
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the extent transferable, and (iii) government inspection fees shall be
apportioned as of the applicable Closing Date.
14.09 SECURITY DEPOSITS/TENANT INDUCEMENTS. Purchaser shall receive a credit
against the portion of the Purchase Price payable on the applicable Closing Date
in an amount equal to the sum of (i) the Security Deposits, if any, which Seller
is holding pursuant to the Leases and New Leases in the subject Phase and as set
forth in Schedule 7.02(a) attached hereto, plus (ii) all costs, expenses and
losses (including without limitation, reductions in Rent) which will be incurred
by Purchaser after the applicable Closing as a result of all Tenant Inducements
given on or before the applicable Closing Date which are not paid in full as of
such Closing in respect to Qualified Leases in the subject Phase as of the
applicable Closing Date.
14.10 CUSTOMARY ITEMS. Any other items of income and expense not
specifically mentioned in this Section 14 which are customarily apportioned in
real property transactions of the character contemplated by this Agreement.
14.11 APPORTIONMENT BETWEEN PHASES. For the purpose of determining the
pro-rations provided in this Section 14, on the Phase I Closing Date, Purchaser
and Seller shall attempt, in good faith, to the extent reasonably practicable,
to apportion between Phase I and Phase II in the proportion attributable to
Phase I and Phase II of the pro-rations provided in this Section 14.
15. CLOSING.
15.01 CLOSING AND CLOSING DATE. The closing of Phase I of this transaction
("Phase I Closing") shall be held at the office of Opus Properties on June 27,
1996 (the "Phase I Closing Date"), and the closing of Phase II of this
transaction ("Phase II Closing") shall be held at the office of Opus Properties
on the date ("Phase II Closing Date") that is the first to occur of November 1,
1996, and the date all of the Leases and New Leases for all of the rentable
portion of Phase II are Qualified Leases, subject, in each instance, to
extensions pursuant to Paragraphs 5.04, 6.03, 7.20, 12.03 and 17.02 hereof.
16. POSSESSION.
16.01 POSSESSION AND POST CLOSING WORK. Purchaser shall be entitled to
possession of the applicable Phase on the subject Closing Date, subject only to
such Phase's Leases, New Leases, Assignment Reservation and the Permitted
Exceptions. Notwithstanding the foregoing, subsequent to the applicable Closing
Date, Seller and Seller's agents, contractors and subcontractors shall have
access to such portions of the Project necessary and convenient to commence
and/or complete (i) the Punchlist Work; (ii) Unacceptable Conditions; (iii)
Seller's New Lease Obligations; (iv) incomplete tenant improvement work under
Leases; (v) Warranty Work; and (vi) Tenant Inducements (collectively in respect
to clauses (i) through (vi), "Post Closing Work"). All Post Closing Work shall
be done (a) at Seller's sole cost and expense, (b) in a fashion to reasonably
minimize, taking into account the scope and nature of the Post Closing Work, the
disruption to Tenants and New Tenants and to the operation and management of the
subject Phase(s) by Purchaser and Purchaser's agents, (c) in compliance with
Environmental
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Laws, and (d) in any event, subject to Force Majeure, with diligence. The
obligation of Seller to complete the Post Closing Work and to pay Commissions
and pay all financial obligations of Seller hereunder is absolute and
unconditional, and Seller agrees to indemnify, defend and hold Purchaser and its
successors and assigns and the Project harmless (including Litigation Expenses)
from and against any and all (except as provided in Paragraph 23 hereof) loss,
damage, claim, demand, liability, Lien, action, cause of action, judgment or
decree as a result of (A) damage or destruction to property, including title to
the Project, (B) personal injury, or (C) loss of Rent resulting from the
performance or non-performance of the Post Closing Work by Seller (except that
which is caused, in whole or in part, by the negligence, willful misconduct or
breach of contract by Purchaser or its successors and assigns or their
respective agents, employees, contractors or subcontractors), and resulting from
Seller's failure to pay Commissions or to pay all financial obligations of
Seller hereunder. In the event Seller fails to perform the Post Closing Work,
pay Commissions or pay all financial obligations of Seller hereunder, Purchaser
may deduct from the next succeeding Earn-Out Payment payable hereunder after the
event of Seller's failure as aforesaid, the cost and expense incurred by
Purchaser in completing such incomplete Post Closing Work, paying such unpaid
Commissions or paying all financial obligations of Seller hereunder. During the
performance of any Post Closing Work, Seller shall maintain commercial public
liability insurance in an amount and issued by carriers that is reasonably
satisfactory to Purchaser naming Purchaser and those other persons or entities
reasonably designated by Purchaser as additional insureds thereunder.
17. RISK OF LOSS.
17.01 RISK. Except as provided in Paragraphs 17.02 and 17.03, the risk of
loss or damage (the "Loss") to the subject Phase by (i) condemnation, eminent
domain or similar actions or proceedings or threat thereof (collectively,
"Taking"), or (ii) fire or other casualty (collectively, a "Casualty") shall be
borne by Seller through the date and time that the applicable portion of the
Purchase Price payable on the applicable Closing Date is paid to Seller and
thereafter shall be borne by Purchaser.
17.02 DAMAGE AND DESTRUCTION. In the event all or any portion of Phase I is
materially damaged by any cause whatsoever prior to the Phase I Closing Date,
Seller shall so advise Purchaser and Purchaser shall have the right, at its sole
option, to either: (a) proceed with the Phase I Closing with no reduction in the
Purchase Price, provided, however, Purchaser shall receive from Seller on the
Phase I Closing Date (i) all proceeds of any casualty insurance maintained by
Seller and payable with respect to such damage, and (ii) an amount equal to the
deductible on such casualty insurance which, in the instance of clauses (i) and
(ii), are applicable to Phase I; or (b) terminate this Agreement by giving
written notice of termination to Seller within ten (10) business days of the
date Purchaser is advised by Seller of such damage, in which event the Deposit
shall be refunded to Purchaser, Seller and Purchaser shall each pay 50% of the
Shared Closing Costs as of the date this Agreement is terminated by Purchaser,
and Seller and Purchaser shall have no further rights or obligations under this
Agreement, except those rights and obligations specifically set forth herein as
surviving such termination. The Seller represents and warrants to Purchaser that
the Improvements (except any Tenant's or New Tenant's trade fixtures therein)
for the entire Project are insured to the full replacement value
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thereof with a deductible of not more than $5,000.00, which insurance Seller
agrees to keep in full force and effect until the applicable Closing in respect
to that Phase(s) that has not yet closed.
In the event all or any portion of Phase II is materially damaged by
any cause whatsoever prior to the Phase II Closing Date, Seller shall so advise
Purchaser and Purchaser shall have the right, at its sole option, to either (1)
proceed with the Phase II Closing with no reduction in the Purchase Price,
provided, however, Purchaser shall receive from Seller (y) all proceeds of any
casualty insurance maintained by Seller and payable with respect to such damage,
and (z) an amount equal to the deductible on such casualty insurance which, in
the instance of clauses (y) and (z), are applicable to Phase II; or (2) permit
Seller the opportunity to restore the damage to Phase II as hereafter provided.
If Purchaser elects to permit Seller to restore as provided in clause (2) above,
Seller shall promptly undertake, with diligence (but subject to Force Majeure),
the restoration of Phase II and the Phase II Closing Date shall be postponed
until the earlier to occur of six (6) months subsequent to the date of the
Casualty to Phase II and the date Phase II is fully restored. In the event any
Lease or New Lease is terminated as a result of a Casualty to Phase II, on and
after the Phase II Closing Date (and commencing thereon), Seller shall be
permitted an Earn-Out Period applicable to Phase II for a period commencing on
the Phase II Closing Date that is the longer of five (5) months and the
unexpired Earn-Out Period that was elected or deemed elected by Seller in
respect to Phase I.
17.03 CONDEMNATION AND EMINENT DOMAIN. If, prior to the Phase I Closing
Date, the Project shall be subjected to a Taking, either total or partial, or if
any notice of intent of Taking or sale in lieu of Taking that materially affects
the Project is received by Seller or Purchaser, Purchaser shall have the right
to either: (a) proceed with Phase I Closing, in which event Purchaser shall be
entitled to participate in any such Taking proceedings that are applicable to
Phase I, and if applicable to Phase II, Purchaser shall be entitled to so
participate after the Phase II Closing, and, after payment to Seller of the cash
portion of the Purchase Price payable on the applicable Closing Date, to receive
all of the proceeds of such Taking that are applicable to Phase I, after the
Phase I Closing, and that are applicable to Phase II, after the Phase II
Closing, or (b) terminate this Agreement by giving written notice of termination
to Seller, in which event the Deposit shall be returned to Purchaser, Seller and
Purchaser shall each pay 50% of the Shared Closing Costs, and Purchaser and
Seller shall have no further rights or obligations under this Agreement, except
those rights and obligations specifically set forth herein as surviving such
termination. Seller and Purchaser each agree to promptly forward to the other
any notice of intent received pertaining to a Taking of all or a portion of the
Project.
18. DEFAULTS AND REMEDIES.
18.01 SELLER'S DEFAULTS. In respect to the remedies afforded Purchaser
pursuant to Paragraph 18.04 hereof, Seller shall be deemed to be in default
under this Agreement in the event (i) Seller fails, for any reason (other than a
default by Purchaser), to perform any of its material obligations under this
Agreement that arise on or prior to the Phase I Closing within the time limits
and in the manner provided for in this Agreement, (ii) any representation or
warranty by Seller in this Agreement is untrue or inaccurate in a material
respect when made or as of the
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Phase I Closing Date, (iii) any Other Seller under the applicable Other Sale
Agreement fails, for any reason (other than a default by Purchaser), to perform
any of its material obligations under the subject Other Sale Agreement that
arise on or prior to the Phase I Closing within the time limits and in the
manner provided for in such Other Sale Agreement, or (iv) any representation or
warranty made by any Other Seller in the applicable Other Sale Agreement is
untrue or inaccurate in a material respect when made or as of the Phase I
Closing Date. Notwithstanding the provisions of clauses (iii) and (iv) above, if
Purchaser closes this transaction, any default or any inaccurate representation
or warranty by any Other Seller under the terms of the applicable Other Sale
Agreement shall be deemed waived in respect to this Agreement and it shall not
be construed as a default by Seller hereunder. In respect to the remedies
afforded Purchaser pursuant to Paragraph 18.05 hereof, Seller shall be deemed to
be in default under this Agreement in the event Seller fails, for any reason
(other than a default by Purchaser), to perform any of its material obligations
under this Agreement that arise subsequent to the Phase I Closing (excluding the
obligations of Seller to close this transaction in respect to subsequent Phase
Closing, in which event the remedies afforded Purchaser pursuant to Paragraph
18.04 shall only apply) within the time limits and in the manner provided for in
this Agreement or any representation or warranty made by Seller in this
Agreement is untrue or inaccurate in a material respect when made or as of the
applicable Closing Date. If the applicable Closing does not occur and Seller is
in default, Seller shall pay all of the Shared Closing Costs.
18.02 PURCHASER'S DEFAULTS. Purchaser shall be deemed to be in default under
this Agreement in the event Purchaser fails, for any reason (other than a
default by Seller), to perform any of its material obligations under this
Agreement or any or all of the Other Sale Agreements within the time limits and
in the manner provided for, as applicable, in this Agreement and the Other Sale
Agreements, or any representation or warranty made by the Purchaser in this
Agreement or any or all of the Other Sale Agreements is untrue or inaccurate in
a material respect when made or as of the applicable Closing Date. If the
applicable Closing does not occur and Purchaser is in default, Purchaser shall
pay all of the Shared Closing Costs.
18.03 SELLER'S REMEDIES. If Purchaser is in material default under this
Agreement of its obligation to close each Phase and Seller is not in material
default, the sole and exclusive remedy of Seller shall be to terminate this
Agreement by notice given to Purchaser and in such event Purchaser shall be
liable to Seller for liquidated damages in respect to Phase I in the amount
equal to one percent (1%) of $13,301,810.00, and in respect to Phase II in the
amount equal to one percent (1%) of Phase II Closing Payment, plus, in either
instance, Litigation Expenses incurred by Seller in enforcing the collection of
such liquidated damages. The Parties recognize and agree that the foregoing
remedy for liquidated damages is a reasonable amount in the context of this
transaction in which the accurate measurement of damages is not feasible or
convenient. Notwithstanding the foregoing, if Purchaser (i) violates the
Recording Restriction (as hereinafter defined), (ii) fails to indemnify, defend
or hold Seller and the Project harmless in respect to Tests and Studies as
provided in Paragraph 5.02 hereof, or (iii) fails to bind its successors and
assigns as provided in Paragraph 13.04 hereof, Seller, in addition to the
aforesaid liquidated damages in respect to Purchaser's failure to close this
transaction, shall be entitled (subject to the limitations contained in
Paragraph 23 hereof) to recover from Purchaser monetary damages in the amount
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actually suffered by Seller as a result of the events set forth in clauses (i),
(ii), or (iii). If Purchaser fails to pay, when due, the Earn-Out Payments
and/or Footage Payments required hereunder, Seller shall only be entitled to
recover from Purchaser such Earn-Out Payments or Footage Payments, plus interest
thereon as provided in Paragraph 24.16 hereof, plus Litigation Expenses.
18.04 PRE-CLOSING PURCHASER'S REMEDIES. If Seller, in respect to its
obligations to close an applicable Phase, is in material default under this
Agreement on or before the applicable Closing Date and Purchaser is not in
material default, Purchaser may, as Purchaser's sole and exclusive remedies,
elect to either (i) terminate this Agreement, in which event the Deposit (but
only in respect to Phase I) shall be refunded to Purchaser, and neither Party
shall have any further rights or obligations hereunder, except those
specifically provided herein as surviving such termination, or (ii) seek and
enforce the specific performance of Seller's obligations hereunder in which
event Purchaser shall also be permitted to recover Litigation Expenses that it
incurred as a result of such proceeding. Notwithstanding the foregoing, in no
instance shall Purchaser or anyone claiming by, through or under Purchaser (over
whom Purchaser has control) record or file in the public records in the
jurisdiction of the Project any memorandum or other indicia of Purchaser's
rights or Seller's obligations hereunder, except in the single instance of a
recording or filing that is concurrently done at the time of the filing of a
complaint by Purchaser, with a court of competent jurisdiction, for the relief
of specific performance of Seller's obligations hereunder, but then only after
Purchaser has given Seller three (3) business days written notice prior to such
recording or filing ("Recording Restriction").
18.05 POST CLOSING PURCHASER'S REMEDIES. If Seller is in material default
under this Agreement in respect to any of its obligations hereunder pertaining
to an applicable Phase that arise subsequent to the applicable Closing Date,
subject to the limitation provided in Paragraph 23 hereof, Purchaser may recover
from Seller all out-of-pocket monetary damages incurred by Purchaser that have
not been satisfied by the offset permitted Purchaser pursuant to Paragraphs
5.04, 9.03, 14.06, 14.07 and 16.01 hereof. In addition, Purchaser shall be
permitted to recover Litigation Expenses that it incurs as a result of enforcing
Purchaser's right to recover monetary damages as aforesaid.
19. CROSS PERFORMANCE OBLIGATION. If Purchaser or its permitted
successors and assigns elects to terminate any of the Other Sale Agreements for
any reason other than a Casualty to or Taking in respect to any of the Other
Centers prior to the Phase I Closing Date, it shall act as an election of
Purchaser under this Agreement to concurrently terminate this Agreement and this
Agreement shall thereupon terminate, Purchaser and Seller shall each pay fifty
percent (50%) of the Shared Closing Costs, and neither Purchaser nor Seller
shall have any further rights or obligations hereunder, except those
specifically provided herein as surviving such termination. However, if the
Phase I Closing shall have occurred, the termination of any Other Sale
Agreements with respect to a subsequent phase under any such Other Sale
Agreement shall not result in the automatic termination of this Agreement in
respect to Phase II.
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20. ASSIGNMENT
Seller shall not assign or transfer any of its rights under this
Agreement without first obtaining Purchaser's prior written consent which
consent shall not be unreasonably withheld or delayed. Prior to the Phase I
Closing, Purchaser shall not assign any of its rights under this Agreement
without first obtaining Seller's prior written consent which consent shall not
be unreasonably withheld or delayed. At or subsequent to the Phase I Closing,
Purchaser may assign its rights under this Agreement provided such assignee and
Purchaser are jointly and severally liable for the obligations of Purchaser
hereunder and such assignee assumes such obligations, in writing, in form and
content reasonably acceptable to Seller.
21. NOTICES.
Any notice, demand, request, approval, consent or other communication
(collectively, a "Notice") concerning this Agreement or the Project or any
matter arising in connection with this Agreement or the Project shall be in
writing. Seller hereby appoints Opus Properties, L.L.C., a Delaware limited
liability company ("Opus Properties"), as Seller's duly authorized and empowered
agent to give and receive any and all Notices required or permitted to be given
by Purchaser or Seller hereunder. Any Notice received by Opus Properties under
the terms of this Agreement shall be deemed received and binding on Seller. Any
Notice given by Opus Properties to Purchaser shall be deemed a Notice given by
and binding on Seller. All Notices shall be addressed as follows:
If to Seller to: Opus Properties, L.L.C.
700 Opus Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Opus, U.S., L.L.C.
700 Opus Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: O'Brien, ▇'▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Purchaser to: DEVELOPERS DIVERSIFIED REALTY
CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq,
Developers Diversified Realty Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
3200 National City Center
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ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent to: First American Title Insurance Company
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ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Any Notice shall be given by either (i) personal delivery, in which event it
shall be deemed given on the date of delivery; (ii) certified mail return
receipt requested, in which event it shall be deemed given three (3) business
days after the date postmarked; or (iii) next or second business day delivery by
nationally recognized overnight courier, in which event it shall be deemed given
on the next or second (whichever is applicable) business day immediately
following receipt by the courier. Any Party may change any address for the
delivery of Notice to such Party, by giving Notice in accordance with the
provisions of this Paragraph 21.
22. ATTORNEYS' FEES AND DISBURSEMENTS.
In the event that any Party shall engage an attorney in connection
with any action or proceeding to enforce or construe this Agreement, the
prevailing Party in such action or proceeding shall be entitled to recover its
Litigation Expenses to the extent permitted by law. In the event different
Parties are the prevailing Parties on different issues, the Litigation Expenses
shall be apportioned in proportion to the value of the issues decided for and
against the Parties.
23. NO CONSEQUENTIAL DAMAGES.
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Notwithstanding any term, provision or covenant contained in this
Agreement to the contrary, no Party hereto shall be entitled to recover from the
other Party consequential, exemplary or punitive damages, all such damages are
hereby expressly waived and released.
24. MISCELLANEOUS.
24.01 SUCCESSORS. The rights and obligations of the Parties under this
Agreement shall inure to the benefit of and be binding upon the Parties and all
persons who are permitted hereunder to succeed to their respective rights and
obligations.
24.02 MODIFICATIONS/WAIVERS. This Agreement cannot be changed nor can any
provision of this Agreement, or any right or remedy of any Party, be waived
orally. Changes and waivers can only be made in writing and the change or waiver
must be signed by the Party against whom the change or waiver is sought to be
enforced. Any waiver of any provision of this Agreement, or any right or remedy,
given on any one or more occasions shall not be deemed a waiver with respect to
any other occasion.
24.03 ENTIRE AGREEMENT. This Agreement is signed by the Parties as a final
expression of all of the terms, covenants and conditions of their agreement and
as a complete and exclusive statement of its terms, covenants and conditions.
24.04 COUNTERPARTS. This Agreement may be signed in one or more counterparts
or duplicate signature pages with the same force and effect as if all required
signatures were contained in a single original instrument.
24.05 CAPTIONS. The captions contained in this Agreement were inserted for
the convenience of reference only. They do not in any manner define, limit or
describe the provisions of this Agreement or the intentions of the Parties.
24.06 GENDER/SINGULAR/PLURAL. Whenever masculine, feminine, neuter,
singular, plural, conjunctive or disjunctive terms are used in this Agreement,
they shall be construed to read in whatever form is appropriate to make this
Agreement applicable to all the Parties and all circumstances, except where the
context of this Agreement clearly dictates otherwise.
24.07 EXHIBITS INCORPORATED. The exhibits attached to this Agreement are
hereby incorporated by reference in their entirety with the same force and
effect as if they were set forth at length in this Agreement. Concurrently with
the execution of this Agreement, Seller, Purchaser and all of the Other Sellers
entered into that certain Exhibit Agreement ("Exhibit Agreement") pursuant to
the terms of which the exhibits attached thereto are certain of the schedules
referenced in this Agreement that are also common to all of the Other Sale
Agreements. Therefore, the exhibits attached to the Exhibit Agreement are hereby
incorporated by reference in their entirety in this Agreement with the same
force and effect as if they were set forth at length in this Agreement.
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24.08 GOVERNING LAW. In the event of any dispute concerning or arising out
of this Agreement, the laws of the State in which the Project is located shall
govern and control the construction and enforcement of this Agreement.
24.09 SEVERABILITY. If one or more provisions of this Agreement or the
application thereof shall be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions or any
other application thereof shall in no way be affected or impaired.
24.10 DATE FOR PERFORMANCE. If the date for performance of any act under
this Agreement falls on a Saturday, Sunday or federal holiday, the date for such
performance shall automatically be extended to the first succeeding business
which is not a federal holiday.
24.11 FURTHER ACTION. The Parties shall at any time, and from time to time
on and after the Phase I Closing Date, upon the request of the other Party, do,
execute, acknowledge and deliver all such further acts, deeds, assignments and
other instruments as may be reasonably required for the consummation of this
transaction and are reasonably acceptable in scope, form and content to the
Party whose act, signature, acknowledgment or delivery is requested.
24.12 INTENTIONALLY DELETED.
24.13 CONFIDENTIALITY. Without the prior written consent of Purchaser,
neither Seller nor any of Seller's representatives will disclose to any person
any of the terms, conditions or other facts with respect to this Agreement or
the Exhibit Agreement, including the status thereof, provided, that Seller or
any of Seller's representatives may make such disclosure if Seller has first
received the written opinion of counsel acceptable to Purchaser that such
disclosure must be made by Seller in order that Seller does not commit a
violation of law. Without the prior written consent of Seller, neither Purchaser
nor any of Purchaser's representatives will disclose to any person any of the
terms, conditions or other facts with respect to this Agreement or the Exhibit
Agreement, including the status thereof and any of the terms, provisions or
conditions of the Site Analysis Documents or of any of the Studies and Reports,
provided, that Purchaser or any of Purchaser's representatives may make such
disclosure if Purchaser has first received the written opinion of counsel
acceptable to Seller that such disclosure must be made by Purchaser in order
that Purchaser does not commit a violation of law. The obligation of Seller and
Purchaser pursuant to the provisions of this Paragraph 24.13 shall survive the
termination of this Agreement.
24.14 TIME OF THE ESSENCE. Time is of the essence in this transaction.
24.15 CONSTRUCTION. This Agreement shall not be construed more strictly
against one Party than against the other merely by virtue of the fact that it
may have been prepared by counsel for one of the Parties, it being recognized
that both Seller and Purchaser have contributed substantially and materially to
the preparation of this Agreement. The headings of various Section and
Paragraphs in this Agreement are for convenience only, and are not to be
utilized in construing the content or meaning of the substantive provisions
hereof.
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24.16 INTEREST. Any payment obligation of a Party hereto to the other Party
shall bear interest at the rate of two percent (2%) plus the corporate base rate
of interest from time to time charged by Citibank, N.A., commencing on the date
that is five (5) business days subsequent to the date such payment is due, until
paid.
24.17 WARRANTY WORK. For the period ("Warranty Period") (i) that is provided
in each Lease or New Lease in respect to the applicable Tenant Warranty for
tenant improvements, and (ii) of one (1) year subsequent to the date each of the
Improvements (exclusive of tenant improvements that are the subject of the
applicable Tenant Warranty) is substantially complete in accordance with the
Plans, Seller agrees, at its sole cost and expense, to promptly (subject to
Force Majeure) correct any defects in the tenant improvements or other
Improvements due to (a) the failure thereof to substantially comply with the
plans for the subject tenant improvements or the Plans in respect to the rest of
the Improvements, or (b) faulty, improper or inferior materials or workmanship
(collectively, "Warranty Work"). If Warranty Work is the subject of a Lease or
New Lease, the provisions of such Lease or New Lease shall control in the
determination of the scope of the Warranty Work. If Warranty Work is not the
subject a Lease or New Lease, then the provisions of this Paragraph 24.17 shall
control in the determination of the scope of the Warranty Work. However,
Warranty Work shall not in any way include routine and appropriate maintenance
or Warranty Work directly resulting from (but only to the extent resulting from)
the failure to perform routine and appropriate maintenance of the tenant
improvements or other Improvements. Promptly during the Warranty Period (but in
any event prior to the expiration of the Warranty Period), Purchaser shall give
Seller written notice ("Warranty Notice") of any defect in the Project that
Purchaser, in good faith, determines to require Warranty Work. Except as
hereafter provided, Seller shall promptly undertake and complete, subject to
Force Majeure, the Warranty Work that is the subject of the Warranty Notice.
However, if Seller objects, in good faith, within ten (10) business days
following receipt of a Warranty Notice, it shall notify Purchaser, in writing of
the same. Thereafter, they shall promptly confer, in good faith, to resolve any
disagreement in respect to Warranty Work. If within fifteen (15) days after
conferring Purchaser and Seller are unable to agree on the scope of Warranty
Work that is not the subject of a Lease or New Lease, they shall appoint a third
party contractor to make such determination, and the scope so determined by the
third party contractor shall be binding on the Parties. When the Warranty Work
is agreed to by the Parties or determined by the third party contractor as
aforesaid, such Warranty Work shall be undertaken and completed as aforesaid.
The Warranty Work obligation hereunder shall only pertain to the Warranty Work
for which a Warranty Notice was delivered to Seller prior to the expiration of
the Warranty Period or that was delivered by a Tenant or a New Tenant in
accordance with the provisions of the Tenant Warranty, and in such event the
Warranty Work obligation of Seller in respect thereto shall not terminate at the
expiration of the Warranty Period or the Tenant Warranty, but rather shall
continue until such Warranty Work is completed by Seller.
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IN WITNESS WHEREOF, the Parties have signed this Agreement as of the
date set forth in the first paragraph of this Agreement.
SELLER: PURCHASER:
DEVELOPERS DIVERSIFIED
OPUS NORTH CORPORATION REALTY CORPORATION
an Illinois corporation an Ohio corporation
By: /s/ ????????????????? By:
------------------------------- ------------------------
Its: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- Executive Vice President
Seller's Federal Taxpayer Purchaser's Federal Taxpayer
Identification No.: Identification No.:
▇▇-▇▇▇▇▇▇▇ ▇▇-▇▇▇▇▇▇▇
For purposes only of acting as the Escrow Agent as provided in this Agreement,
First American Title Insurance Company
By: /s/ ??????????????????
--------------------------------
Its: COMMERCIAL MANAGER
----------------------------
55
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the
date set forth in the first paragraph of this Agreement.
SELLER: PURCHASER:
DEVELOPERS DIVERSIFIED
OPUS NORTH CORPORATION REALTY CORPORATION
an Illinois corporation an Ohio corporation
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- ------------------------
Its: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- Executive Vice President
Seller's Federal Taxpayer Purchaser's Federal Taxpayer
Identification No.: Identification No.:
▇▇-▇▇▇▇▇▇▇ ▇▇-▇▇▇▇▇▇▇
For purposes only of acting as the Escrow Agent as provided in this Agreement,
First American Title Insurance Company
By:
--------------------------------
Its:
----------------------------
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SCHEDULES ATTACHED TO THIS AGREEMENT OR
THE EXHIBIT AGREEMENT
---------------------------------------
1.02 Legal Description
1.02(a) Site Plan
2.01(b) Personal Property
3.01 Rent Roll
5.01(b) Environmental Reports
5.01(g) Guaranties
6.01 Survey Requirements and Certifications
(attached to the Exhibit Agreement)
6.03 Permitted Exceptions
6.04 Endorsements
7.01 Deed (attached to the Exhibit Agreement)
7.02 Assignment of Leases (attached to the Exhibit Agreement)
7.02(a) Description of Leases and Security Deposits
7.04 ▇▇▇▇ of Sale (attached to the Exhibit Agreement)
7.05 Assignment of Contracts (attached to the Exhibit
Agreement)
7.05(a) Description of Contracts to be Assigned at Closing
7.06 Affidavit of Seller Concerning Violations/Work Orders
(attached to the Exhibit Agreement)
7.10 FIRPTA Affidavit (attached to the Exhibit Agreement)
7.13 Tenant Letter (attached to the Exhibit Agreement)
7.15 Tenant Estoppel (attached to the Exhibit Agreement)
7.20 Seller Date Down Certificate (attached to the Exhibit
Agreement)
7.21 Agreement Estoppel
7.24 Assignment Declaration
8.06 Purchaser Date Down Certificate (attached to the Exhibit
Agreement)
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10.01(xi) Permits
10.01(xvii) Tenant Inducements
10.01(xviii) Alleged Seller Defaults Under the Leases
10.01(xix) Tenant Defaults Under the Leases
10.01(xx) Tenant's Notice of Vacating, Assigning or Subletting
13.11 Shell and Core List and Standard
13.11(a)(1), etc. Punchlist Holdback(s)
13.11(b) Form G704 Certificate of Completion (attached to the
Exhibit Agreement)
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GLOSSARY OF TERMS
-----------------
Term Where Defined
---- -------------
Agreement 1st Paragraph
Agreement Estoppel 7.21
Arrears 14.02
Assignment Reservation 13.03
Bankruptcy Proceeding 13.01(xi)(c)
Carry 13.01(i)
Casualty 17.01
Casualty Notice 13.06
Closing 15.01
Closing Date(s) 15.01
Closing Payment 13.01(ii)
Commissions 10.01(xvi)
Condition Notice 5.04
Condition Response 5.04
Commitment 6.02
Contract Assignment 7.05
Deed 7.01
Defects Notice 6.03
Deposit 3.02(c)
Disapproved Lease 13.04
Earn-Out Conditions 13.07
Earn-Out Extension Notice 13.05
Earn-Out Payment 13.01(iii)
Earn-Out Period 13.05
Earn-Out Segment 13.05
Endorsements 6.04
Environmental Laws 10.01(xii)
Environmental Reports 5.01(b)
Escrow Agent 4.01
Exhibit Agreement 24.07
FIRPTA Affidavit 7.10
First Segment 13.05
Footage Computation 13.08
Footage Payment 13.08
Force Majeure 13.01(iv)
Guaranties 5.01(g)
Hazardous Substances 10.01(xii)
Improvements 1.02
Initial Deposit 3.02(b)
Intangible Property 2.01(c)
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GLOSSARY OF TERMS
-----------------
Term Where Defined
---- -------------
Knowledge 10.01
Land 1.02
Lease Assignment 7.02
Lease Reservation Date 13.03
Leases 7.02
Lien(s) 9.03
Litigation Expenses 10.04(a)
Loss 17.01
Lump Sum Payment 3.02(a)
Lump Sum Non-Credit 14.06
Monetary Default 13.01(xi)(b)
Mortgage 10.01(ix)
Net Cash Flow 13.01(v)
New Lease 13.01(vi)
New Lease Obligations 13.10
New Tenant 13.01(vii)
Notice 21
Opus Properties 21
Other Center(s) 13.01(viii)
Other Sale Agreement(s) 13.01(ix)
Other Seller(s) 13.01(x)
Outlots 1.02
Party(ies) 1st Paragraph
Permits 2.01(c)
Permitted Exceptions 6.03
Personal Property 2.01(b)
Phase I 1.02
Phase I Closing 15.01
Phase I Closing Date 15.01
Phase I Holdback 13.11
Phase II 1.02
Phase II Closing 15.01
Phase II Closing Date 15.01
Phase II Holdback 13.11
Phase II Notice Date 5.03
Phase II Unacceptable Condition Cost Limitation 5.04
Phase(s) 1.02
Plans 5.01(f)
Post Closing Work 16.01
Pro Rata Share 14.03
Project 2.01
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GLOSSARY OF TERMS
-----------------
Term Where Defined
---- -------------
Prospect 13.04
Punchlist Holdback 13.11
Punchlist Work 13.11
Purchase Price 3.01
Purchaser 1st Paragraph
Purchaser Date Down Certificate 8.06
Purchaser's Knowledge 10.02
Qualified Lease 13.01(xi)
Real Estate Broker 4.02
Real Estate Tax Rent 14.06
Real Property 1.03
Recording Restriction 18.04
Release 10.01(xii)
Rental Undertaking 13.04
Rents 14.01
Reserved Base Rent Date 13.03
Restoration Forgiveness 5.02
Second Deposit 3.02(c)
Second Segment 13.05
Security Deposits 7.02
Seller 1st Paragraph
Seller Date Down Certificate 7.20
Seller's Estoppel 7.15
Seller's Response 6.03
Shared Closing Costs 11.02(a)
Site Analysis Documents 5.01
Site Analysis Period 5.03
Square Footage 13.08
Superfund Act 10.01(xii)
Survey 6.01
Survey Defects 6.03
Taking 17.01
Tenant Estoppel 7.15
Tenant Inducement 10.01(xvii)
Tenant Letters 7.13
Tenant Warranty 13.10
Tenants 7.02
Termination Agreements 7.16
Tests and Studies 5.02
Title Company 4.01
Title Defects 6.03
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GLOSSARY OF TERMS
-----------------
Term Where Defined
---- -------------
Title Policy 6.04
Unacceptable Conditions 5.04
Unknown Rents 14.03
Unassigned Lease 13.04
Utility Deposits 14.04
Vacant Space 13.01(xii)
Violations 7.06
Warranty Notice 24.17
Warranty Period 24.17
Warranty Work 24.17
Work Orders 7.06