Exhibit 10.100
AGREEMENT OF PURCHASE AND SALE
BETWEEN
COYOTE TULSA MALL, L.L.C., SELLER
AND
GLIMCHER PROPERTIES LIMITED PARTNERSHIP, PURCHASER
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TABLE OF CONTENTS
Page
Article I.
Property............................................................1
Article II. Purchase Price and
Deposits........................................2
Article III. Failure to
Close..................................................4
3.1
PURCHASER'S
DEFAULT.............................................4
3.2
Seller's
Default................................................5
3.3
Closing.........................................................5
3.4
Closing
Procedure...............................................6
3.5
Purchaser's
Performance.........................................7
3.6
Evidence of Authority;
Miscellaneous............................7
Article IV. Prorations of Rents, Taxes, Etc.;
Expenses.........................8
4.1
Effective Time of
Proration.....................................8
4.2
Real Property
Taxes.............................................8
4.3
Security
Deposits...............................................8
4.4
Personal Property Taxes, Permit Fees, Service
Contracts.........9
4.5
Rents...........................................................9
4.6
Utilities......................................................11
4.7
Leasing Commissions and Tenant
Improvements....................11
4.8
Estimates; Post-Closing
Adjustments............................12
4.9
Reconciliation of Tenant Reimbursable
Charges..................12
4.10
Expenses.......................................................13
Article V. Purchaser Inspections and
Contingencies............................14
5.1
Document
Inspection............................................14
5.2
Physical
Inspection............................................14
5.3
Feasibility
Period.............................................16
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5.4
Survey
Contingency.............................................17
5.5
Title
Contingency..............................................19
5.6
Estoppels;
SNDAs...............................................21
5.7
Service
Contracts..............................................22
5.8
Additional Conditions of
Closing...............................23
Article VI. Loss due to Casualty or
Condemnation..............................24
6.1
Loss due to
Condemnation.......................................24
6.2
Loss due to
Casualty...........................................25
Article VII. Operation and Maintenance of the
Property........................26
7.1
Maintenance, Operation and
Insurance...........................26
7.2
Leasing........................................................27
Article VIII.
Broker..........................................................29
Article IX. Representations and
Warranties....................................30
9.1
Limitations on Representations and
Warranties..................30
9.2
Representations and
Warranties.................................31
9.3
Seller's
Knowledge.............................................34
9.4
Survival.......................................................34
9.5
Representations and Warranties of
Purchaser....................35
Article X.
Assignment.........................................................35
Article XI.
Notices...........................................................36
Article XII.
Miscellaneous....................................................37
12.1
Successors and
Assigns.........................................37
12.2
Gender.........................................................37
12.3
Captions.......................................................37
12.4
Construction...................................................38
12.5
Entire
Agreement...............................................38
12.6
Recording......................................................38
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12.7
No
Continuance.................................................38
12.8
Time of
Essence................................................38
12.9
Original
Document..............................................38
12.10
Governing
Law..................................................38
12.11
Acceptance of
Offer............................................39
12.12
Confidentiality................................................39
12.13
Surviving
Covenants............................................39
12.14
Maximum Aggregate
Liability....................................40
12.15
Section 1031
Exchange..........................................40
12.16
Facsimile
Signatures...........................................40
12.17
WAIVER OF JURY
TRIAL...........................................41
12.18
ERISA..........................................................41
Exhibit A _ Description of
Land
Exhibit B _ Rent Roll
Exhibit C _ Limited Warranty
Deed
Exhibit D _ Bill of Sale and
General Assignment
Exhibit E _ Assignment and
Assumption of Leases and Security Deposits
Exhibit F-1 _
Form
of J.C. Penney and Hollywood Theaters Estoppel
Exhibit F-2 _
Form
of Anchor Estoppel
Exhibit F-3
_ Form of Tenant
Estoppel
Exhibit G _ FIRPTA
Certificate
Exhibit H _ List of Due
Diligence Items
Exhibit I _ Pending
Litigation
Exhibit J _ List of
Maintenance and Service Contracts
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Exhibit K _ Assignment and
Assumption of Service Contracts
Exhibit L _ Assignment and
Assumption of REA
Exhibit M _ Tenant Notice
Letter
Exhibit N _ List of Required
Tenants
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AGREEMENT OF PURCHASE AND SALE
THIS
AGREEMENT OF PURCHASE AND SALE is made by and between COYOTE
TULSA
MALL, L.L.C., a Delaware limited liability company ("Seller"), and
GLIMCHER
PROPERTIES LIMITED PARTNERSHIP, ("Purchaser"), as of the "Effective
Date" (as
defined below).
Article I.
Property
--------
Seller hereby agrees to sell, and Purchaser hereby agrees to buy,
all of
Seller's right title and interest in the following property: (a)
an
approximately 34.32 acre parcel of real property (provided that the
foregoing
acreage includes the Dillard's, Foley's and Mervyn's parcels, which
are owned by
their respective department store occupants and are not included in
the sale),
together with all and singular the easements, covenants,
agreements, rights,
privileges, tenements, hereditaments and appurtenances thereunto
now or
hereafter belonging or appertaining, including, but not limited to,
that certain
Amended and Restated Grant of Reciprocal Easements, Declaration of
Covenants
Running with the Land and Development Agreement, by and among
Seller, The May
Department Stores Company ("May"), Dillard's, Inc. ("Dillards"),
and Mervyn's
subsidiary of Target Corporation ("Mervyn's"), dated January 15,
1997 (the
"REA"), as supplemented by Dillard's Supplemental Agreement dated
January 13,
1997 (the "Dillard Supplement"), May Supplemental Agreement dated
January 13,
1997 (the "May Supplement"), and Mervyn's Supplement Agreement (the
"Mervyn's
Supplement"), located in the City of Tulsa, State of Oklahoma, more
particularly
described on Exhibit A attached to this Agreement (collectively,
the "Land");
(b) the enclosed regional shopping mall located on the Land
containing in the
aggregate approximately 438,481 square feet of space (which square
footage
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includes approximately 169,091 square feet of space leased to J.C.
Penney
Company, Inc.) (the "Building"), and other improvements of every
kind located
in, on and over the Land, generally known as "Tulsa Promenade"
(the
"Improvements"); (c) all tenant leases and license agreements
relating to the
Improvements, being the leases and license agreements referred to
on the Rent
Roll attached hereto as Exhibit B, as the same is updated at the
time of
Closing, (the "Leases") (the Land, Improvements, and Leases are
referred to
herein, collectively, as the "Real Property"); (d) all furniture,
fixtures,
equipment, and other personal property (both tangible and
intangible, including,
without limitation, any Service Contracts (as defined below)
applicable thereto,
other than the property management agreement, which, unless
otherwise requested
by Purchaser, shall be terminated), contract rights, tenant lists,
advertising
materials, telephone numbers, domain names, trade names, trade
rights, and
Seller's interest in the name "Tulsa Promenade" to the extent any
of the
foregoing is owned by Seller and contained in or related to the
Improvements but
not including property owned by the management company (the
"Personal Property")
(collectively, the Real Property and the Personal Property are
sometimes
referred to herein as the "Property").
Article II.
Purchase Price and Deposits
---------------------------
The
purchase price which the Purchaser agrees to pay and the Seller
agrees
to accept for the Property shall be the sum of FIFTY EIGHT MILLION
THREE HUNDRED
THOUSAND DOLLARS and No/100's ($58,300,000.00) (hereinafter
referred to as the
"Purchase Price"), subject to adjustment as hereinafter provided,
payable as
follows:
(a) An earnest money deposit (the "Initial Deposit") of Two
Million
Dollars ($2,000,000.00), in cash, to be deposited by Purchaser with
Flagler
Title Company, 5 Harvard Circle, Suite 110 West Palm Beach, FL
33409 (the
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"Escrow Holder"), within two (2) Business Days (hereinafter
defined) after
delivery of five (5) fully executed copies of this Agreement to
Escrow
Holder, such Initial Deposit to be held in an interest-bearing
escrow
account by Escrow Holder, and such Initial Deposit will become
earned and
the
non-refundable property of Seller upon expiration of the
Feasibility
Period (as hereinafter defined) except as hereinafter provided;
(b) Purchaser may extend the Closing Date (but not the
Feasibility
Period) until 5 p.m. Tulsa, Oklahoma time on January 31, 2006, if
Purchaser
makes an additional earnest money deposit (the "Additional
Deposit") of
Five
Hundred Thousand Dollars and No/100's ($500,000.00), in cash, to
be
deposited by Purchaser with Escrow Holder prior to the expiration
of the
Feasibility Period (as hereinafter defined), such Additional
Deposit will
be
held in an interest bearing account by Escrow Holder; and
(c) The balance of the Purchase Price shall be paid by Purchaser
to
Seller at the time of Closing by Federal wire transfer to the
Escrow
Holder, with the transfer of funds to Seller to be completed on the
day of
the
Closing.
The
Initial Deposit and the Additional Deposit (if applicable) and
all
interest earned thereon are hereinafter referred to collectively as
the
"Deposit". The Deposit shall be paid to Seller at the Closing as a
credit
against the Purchase Price. Purchaser shall provide the Escrow
Holder with its
tax identification number, and all interest shall be for
Purchaser's account for
tax purposes.
In
addition to the Initial Deposit, Purchaser shall deposit five (5)
fully
executed copies of this Agreement with the Escrow Holder
immediately after both
parties have executed it. The date of such deposit shall be
acknowledged by the
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Escrow Holder on all copies, and such date shall be the "Effective
Date" of this
Agreement. The Escrow Holder shall retain one copy of this
Agreement and deliver
two (2) copies hereof to each of Purchaser and Seller and one (1)
copy to the
Title Company. The Escrow Holder, will cause Stewart Title Guaranty
Company, to
issue an Insured Closing Letter, to Seller, in a form that is
satisfactory to
Seller, within five (5) days after the Effective Date.
"Business Day" shall mean all days except Saturdays, Sundays,
National
Holidays and other days when banks are permitted or required not to
transact
business in Oklahoma.
Article III.
Failure to Close
----------------
3.1
PURCHASER'S DEFAULT
If
the sale is not consummated because of a default on the part of
Purchaser, then, as Seller's sole and exclusive remedy for such
default, Seller
may terminate this Agreement by written notice to Purchaser. In
such event,
Escrow Holder must deliver the Deposit to Seller as liquidated
damages for
Purchaser's default. Such amount is agreed upon by and between
Seller and
Purchaser as liquidated damages due to the difficulty and
inconvenience of
ascertaining and measuring actual damages, and the uncertainty
thereof. The
remedy set forth in this Section 3.1 is Seller's sole and exclusive
remedy for
the sale not being consummated due to a default by Purchaser.
However, nothing
contained in this Section 3.1 limits Purchaser's liability for a
default in the
performance of any representations, covenants, indemnities or
obligations that
survive the Closing or the termination of this Agreement, and
Seller will have
the right to pursue any remedies available at law or in equity
against Purchaser
for a breach of such obligations. In no event will Purchaser ever
be liable to
Seller hereunder for any punitive, speculative, or consequential
damages.
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3.2
Seller's Default
If
Seller defaults under this Agreement, then Purchaser may either
(i)
enforce specific performance hereunder and be entitled to recover
Purchaser's
costs and attorney fees in any such proceeding or (ii) terminate
this Agreement
and obtain the return of the Deposit. If Purchaser elects to
enforce specific
performance hereunder, it must file suit in the appropriate court
within thirty
(30) calendar days after the scheduled Closing Date (and
Purchaser's failure to
do so will constitute a waiver of the remedy of specific
performance hereunder).
The remedies set forth in this Section 3.2 are Purchaser's sole and
exclusive
remedies. In no event will Seller ever be liable to Purchaser
hereunder for any
punitive, speculative, or consequential damages.
3.3
Closing. The parties hereto agree to conduct a closing of this
sale
(the "Closing") at 12:00 Noon Central Time on or before January 17,
2006 (the
"Closing Date"), (unless extended pursuant to the terms and
conditions of
Article II (b) of this Agreement) and if extended pursuant to the
terms and
conditions of Article II (b), in no event later than January 31,
2006 (the
"Outside Closing Date"), in the principal office of the Escrow
Holder, or at
such other place as may be agreed upon by the parties hereto. This
Agreement
shall terminate if transfer of title is not completed by the
earlier to occur of
the Closing Date or the Outside Closing Date (unless such failure
to close is
due to Seller's default, the date for Closing is extended pursuant
to the
matters described in Sections 5.4, 5.5, 5.6 and Article VI hereof,
or the date
for Closing is extended by agreement of the parties, which
agreement shall be
confirmed in writing).
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3.4
Closing Procedure. Seller shall execute and deliver or cause to
be
delivered to Escrow Holder on or before the Closing (a) a Limited
Warranty Deed,
in the form attached hereto and incorporated herein as Exhibit "C",
proper for
recording, conveying the Real Property to Purchaser, subject,
however, to (i)
(A) any and all easements, rights of way, encumbrances, liens,
covenants,
restrictions, or other matters of record which have been approved
by Purchaser
or as to which objection has been waived by Purchaser (the
"Permitted
Exceptions"), and (B) any and all matters shown on the Survey (as
defined in
Section 5.4), and either approved by Purchaser or as to which
objection has been
waived by Purchaser, (ii) taxes not yet due and payable, (iii) the
rights of
lessees and licensees of space in the Improvements at the time of
Closing (to
the extent shown on the Rent Roll as updated at the time of
Closing), and (iv)
any encumbrances created or permitted by the terms of this
Agreement, including,
if applicable, those approved by Seller and Purchaser; (b) a Bill
of Sale and
General Assignment in the form attached hereto and incorporated
herein as
Exhibit "D", dated as of the date of Closing conveying to Purchaser
any and all
Personal Property; (c) an Assignment and Assumption of Leases and
Security
Deposits in the form attached hereto and incorporated herein as
Exhibit "E",
dated the date of Closing, assigning all of the landlord's right,
title and
interest in and to any tenant and other leases covering all or any
portion of
the Real Property; (d) an Assignment and Assumption of Service
Contracts in the
form attached hereto and incorporated herein as Exhibit "K", dated
as of the
Closing; (e) an Assignment and Assumption of REA in the form
attached hereto and
incorporated herein as Exhibit "L", dated as of the Closing; (f)
Tenant
Notification Letters in the form attached hereto and incorporated
herein as
Exhibit "M" (the "Tenant Notices"), dated the date of the Closing,
executed by
Seller and Purchaser, and complying with applicable statutes in
order to relieve
Seller of liability for tenant security deposits (provided the
security deposits
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are paid to Purchaser), notifying the tenants of the Real Property
that the
Property has been sold to Purchaser and directing the tenants to
pay rentals to
Purchaser (or Purchaser's designated agent); (g) to the extent in
Seller's
possession or under Seller's control, the originals of all leases,
as-built
plans and specifications, maintenance and service and any other
contracts that
are to be assumed; (h) subject to the provisions of Section 5.6
hereof, original
copies of the Estoppels (as defined in Section 5.6); (i) an updated
Rent Roll,
in the form of the Rent Roll attached hereto and incorporated
herein as Exhibit
"B", dated within five (5) days of the date of the Closing; (j)
affidavit that
Seller is not a "foreign person" on the form attached hereto and
incorporated
herein as Exhibit "G"; (k) a master key or duplicate key for all
locks in the
Improvements; (l) to the extent in the possession of Seller or
Seller's property
management company, all engineering and maintenance records; (m)
all of Seller's
tenant correspondence files and (n) a copy of Seller's current
payment account
files for each tenant or occupant of the Property and a current
aged delinquency
report showing the status of payments due from tenants that are in
arrears.
3.5
Purchaser's Performance. At the Closing, Purchaser will cause
the
Purchase Price to be delivered to the Escrow Holder, and Purchaser
will execute
and deliver the Tenant Notices, the Assignment and Assumption of
Leases and
Security Deposits, the Bill of Sale and General Assignment, the
Assignment and
Assumption of REA, and Assignment and Assumption of Maintenance and
Service
Contracts.
3.6
Evidence of Authority; Miscellaneous. Both parties will deliver to
the
Escrow Holder (and the Title Company, if requested by the Title
Company) and
each other such evidence or documents as may reasonably be required
by the
Escrow Holder or Title Company or either party hereto evidencing
the power and
authority of Seller and Purchaser and the due authority of, and
execution and
delivery by, any person or persons who are executing any of the
documents
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required hereunder in connection with the sale of the Property.
Both parties
will execute and deliver such other documents as are reasonably
required to
affect the intent of this Agreement.
Article IV.
Prorations of Rents, Taxes, Etc.; Expenses
------------------------------------------
4.1
Effective Time of Proration. All revenues, taxes, and property
expenses
shall be prorated at Closing between Purchaser and Seller as of
12:01 A.M. on
the Closing Date, with Purchaser having the benefits and burdens of
ownership on
and after the Closing Date and Seller having such benefits and
burdens prior to
the Closing Date.
4.2
Real Property Taxes. Seller shall be responsible for real
property
taxes for all periods prior to the Closing Date, and Purchaser
shall be
responsible for real property taxes for all periods from and after
the Closing
Date. Actual tax or assessment figures will be used for the
proration or, if
actual figures are not available, then the most recent assessed
value of the
Real Property will be used, multiplied by the current tax or
assessment rate,
with a subsequent cash adjustment to be made between Purchaser and
Seller when
actual tax or assessment figures are available.
4.3
Security Deposits. All security deposits that have not been
forfeited
by the tenants under leases of space in the Property shall be
transferred to
Purchaser, or a credit shall be given for any such security
deposits not
transferred to Purchaser. A list of all such security deposits
shall be attached
as an exhibit to the Assignment and Assumption of Leases and
Security Deposits
delivered at Closing. Purchaser shall assume responsibility for all
security
deposits actually transferred or for which a credit is given, from
and after the
Closing Date.
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4.4
Personal Property Taxes, Permit Fees, Service Contracts.
Personal
property taxes, annual permit or inspection fees, sewer charges,
fees under
service contracts, utility charges, and other expenses normal to
the operation
and maintenance of the Property shall also be prorated as of the
Closing Date.
4.5
Rents. Rents and/or additional rents under the Leases shall be
prorated
as and when collected, subject to the following:
In
the event that there are any past due rentals for any month
preceding
the month of Closing and/or for the month of Closing owing by the
tenant(s) at
the Closing Date (hereinafter referred to as the "Past Due
Rentals"), Purchaser
and Seller agree that the rentals and monies received by Purchaser
subsequent to
the Closing Date from such tenant(s) shall be: (i) applied first to
any rentals
then due and owing to Purchaser for any period after the Closing;
and (ii)
applied second to the payment of Past Due Rentals, and Purchaser
agrees to remit
forthwith to Seller such portion of the rentals so collected to
which Seller is
entitled, without claim or setoff, abatement or deduction (other
than actual
collection costs). Seller shall retain all rights to rents and
damages against
the tenant(s) accruing prior to the Closing Date, including,
without limitation,
any claims for damages due to any such tenant's default, provided
that Seller
shall have no right to seek termination of such tenant's Lease. At
Closing,
Seller shall credit Purchaser with its proportionate share of any
rents received
by Seller prior to Closing relating to the number of days
(including the Closing
Date) remaining in the month of Closing or subsequent months.
Purchaser and Seller further agree that: (i) Seller is entitled
hereunder
to all of the Past Due Rentals for any month preceding the month of
Closing and
to its proportionate share of the Past Due Rentals for the month of
Closing (in
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each case net of collection costs) regardless of the period of
delinquency; (ii)
Purchaser will cooperate (exclusive of tenant evictions and at the
cost of
Seller) with Seller in the collection of those of the Past Due
Rentals that are
in arrears over one month; and (iii) any of the Past Due Rentals
that are still
outstanding ninety (90) days after the date of Closing shall, at
that time and
upon request of Seller, be reassigned to Seller who may commence
litigation to
collect same, provided that Seller shall have no right to seek
termination of
such tenant's Lease.
Any
additional rents (i.e., payments other than those on account of
fixed
minimum rental charges including rents based upon tenant sales
performance)
received by Purchaser subsequent to the Closing Date from the
tenant(s) pursuant
to any of the Leases, but which relate to a period of time
occurring both prior
to and subsequent to the Closing Date ("Prorated Additional
Rents"), shall be
apportioned between Seller and Purchaser upon receipt thereof with
the Seller
entitled to a portion equal to the amount so received multiplied by
a fraction,
the denominator of which shall be the number of days in the lease
year (or
portion thereof) for which such items have been paid and the
numerator of which
shall be the number of days in the lease year (or portion thereof)
for which
such items have been paid that shall have elapsed from the
commencement of such
lease year (or relevant portion thereof) to and including the day
immediately
preceding the Closing Date. If such Prorated Additional Rents have
been
collected by Seller prior to the Closing Date, then on the Closing
Date, Seller
shall allow to Purchaser a credit against the Purchase Price in an
amount equal
to a fraction of such payments, the denominator of which shall be
the number of
days in the lease year for which such items have been paid and the
numerator of
which shall be the number of days, if any, remaining in the lease
year for which
such items have been paid from and after the date of Closing to the
end of such
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lease year. If such Prorated Additional Rents are collected by
Purchaser on or
after the Closing Date, then Purchaser shall remit Seller's portion
of rents
due, to Seller within thirty (30) days after receipt of such rents
by Purchaser.
When additional rents have been finally determined, a final
adjustment shall be
made in a post-closing adjustment. As used herein, the term "lease
year" means
the relevant annual period for such payments in each lease. For
example, if a
Lease provides for CAM charges to be computed on a calendar year
basis and
percentage rent to be computed on a fiscal year basis ending
January 31,
adjustments for CAM would be made on the basis of a "lease year"
which is a
calendar year and adjustment for percentage rent would be made on
the basis of a
"lease year" which is a twelve month period ending January 31.
Notwithstanding
the foregoing, with respect to cart and kiosk licenses and seasonal
leases as to
which additional rents are not based on a lease year, the proration
of
additional rents shall be made in the same manner as provided above
except that
the period of proration shall be the applicable period as to which
the
additional rent is calculated.
4.6
Utilities. Final readings on all gas, water and electric meters
shall
be made as of the date of Closing, and Seller and Purchaser shall
cooperate to
cause such readings to be made. If final readings are not possible,
gas, water
and electricity charges will be prorated based on the most recent
period for
which costs are available. Seller shall obtain, directly from the
utility
companies, the return of any deposits made by Seller with utility
companies, and
Purchaser shall be responsible for making all arrangements for the
continuation
of utility services, including making any required deposits.
4.7
Leasing Commissions and Tenant Improvements. From and after the
Effective Date, all leasing shall be done in accordance with said
Section 7.2.
Attached hereto and incorporated herein as Exhibit "N" is a list of
Tenant's
whose leasing commissions, tenant allowances, rent abatements or
free rent
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periods and costs of tenant improvements (the "Leasing Costs") that
remain
unpaid and outstanding as of the Effective Date. The said Leasing
Costs list
shall be updated by Seller at Closing to identify and provide
evidence of
payment by Seller for all Leasing Costs paid by Seller prior to
Closing and
Purchaser shall receive a credit against the Purchase Price at
Closing in the
amount of all Leasing Costs that are the responsibility of Seller
that remain
unpaid at Closing, as further described in Section 7.3 hereof.
4.8
Estimates; Post-Closing Adjustments. All items (including taxes)
that
are not subject to an exact determination on the Closing Date shall
be estimated
by the parties. When any item so estimated is, after the Closing
capable of
exact determination, the party in possession of the facts necessary
to make the
determination shall send the other party a detailed report on the
exact
determination so made and the parties shall adjust the prior
estimate by making
cash payments within thirty (30) days after both parties have
received and agree
on the results of said reports, but in no event later than June 30,
2006.
4.9
Reconciliation of Tenant Reimbursable Charges. On or before April
15,
2006, Seller shall prepare a reconciliation of reimbursable charges
by tenants
for CAM, real estate taxes, insurance and other such charges under
the leases
(the "Tenant Reimbursable Charges") and payments therefore for
calendar year
2005 (the "Reconciliation"). Purchaser agrees to cooperate with
Seller in
preparing such Reconciliation and shall be responsible for sending
the same to
tenants. Any Tenant Reimbursable Charges that are due to Seller as
shown on the
2005 Reconciliation shall be treated as Past Due Rentals. Refunds
or credits, if
any, due any tenants with respect to Tenant Reimbursable Charges
for calendar
year 2005, shall be paid by Seller to Purchaser.
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Reconciliation of the 2006 Tenant Reimbursable Charges shall be
the
responsibility of Purchaser. Seller agrees to cooperate with
Purchaser in
Seller's preparation of such Reconciliation for 2006. Any Tenant's
Reimbursable
Charges that are due Seller as shown on the 2006 Reconciliation
shall be paid to
Seller within thirty (30) days of collection by Purchaser. Refunds
or credits,
if any, due any tenant's with respect to Tenant Reimbursable
Charges for
calendar year 2006, shall be paid by Seller to Purchaser upon
disclosure of
sufficient documentation from Purchaser to Seller.
4.10
Expenses. Seller shall pay its own attorney's fees, the cost of
recording any instruments required hereunder to clear title, the
costs of the
Survey, and one half of all state, county, or local transfer taxes,
and one-half
of any escrow fees. Purchaser shall pay all other costs and
expenses related to
the transaction or this Agreement including, but not limited to,
all of
Purchaser's attorneys' fees and expenses, mortgage taxes, recording
charges for
any conveyancing documents hereunder that are to be recorded, all
costs of
Purchaser's due diligence investigation, the costs of any
endorsements to
Purchaser's title insurance policy, one-half of all state, county,
or local
transfer taxes, and one-half of any escrow fee. Broker's
commissions shall be
paid as provided in Article VIII hereof.
Seller will pay for the first fifty cents per thousand of Purchase
Price
for a basic Owner's Policy of Title Insurance (for example, a
purchase price of
$58,300,000.00 divided by $1,000.00 multiplied by $.50 equals
$29.150.00 paid by
Seller). The Purchaser will pay for the remaining balance of the
costs for a
basic Owner's Policy of Title Insurance and all costs associated
with any other
amendments or endorsements thereto that are above fifty cents per
thousand of
Purchase Price..
13
<PAGE>
Article V.
Purchaser Inspections and Contingencies
---------------------------------------
5.1
Document Inspection. Within ten (10) Business Days from the
Effective
Date, Seller shall make available the documents relating to the
Real Property as
set forth on Exhibit "H", which Exhibit "H" is attached hereto and
incorporated
herein, for review by Purchaser, to the extent in Seller's or its
property
manager's possession.
Purchaser agrees that if for any reason the Closing is not
consummated,
Purchaser will immediately (within five (5) business days) return
to Seller all
materials furnished to Purchaser pursuant to this Section 5.1.
5.2
Physical Inspection. In addition to the items set forth in Section
5.1,
Seller will make the Property available for inspection by
Purchaser, and
Purchaser shall, at Purchaser's risk, undertake such studies of the
Property and
physical inspections of the Property ("Purchaser's Tests and
Studies") as
Purchaser deems appropriate as soon as possible after the Effective
Date of this
Agreement and in accordance with the terms of this Agreement.
At
Purchaser's option, Purchaser's Tests and Studies may include,
without
limitation, a title examination, land use investigation,
financing-requirements
investigation, engineering inspection and a Phase 1 environmental
audit;
provided, however, any Phase 2 environmental audit shall require
Seller's prior
written approval, which shall be made is Seller's sole
determination of Seller's
assessment of the risks of material damage to the Property or the
environment
posed by Purchaser's proposed activity on the Property, and any
Phase 2 audit
shall be pursuant to a special access agreement and satisfactory to
Seller and
Purchaser. Purchaser shall provide Seller with a written request
for permission
to do a Phase 2 audit, including a description of the nature of the
proposed
14
<PAGE>
investigation with reasonable specificity. Seller shall notify
Purchaser, in
writing within 3 Business Days following receipt of such request,
whether Seller
approves or disapproves of such Phase 2 environmental audit. If
Seller fails to
respond to the request for approval of such Phase 2 environmental
audit within
said 3-Business Day period, then Seller shall be deemed to have
disapproved such
Phase 2 environmental audit. If Seller elects not to permit such
Phase 2
environmental audit, or elects to permit such Phase 2 environmental
audit under
conditions which Purchaser does not deem reasonable, then Purchaser
shall have
the right to terminate this Agreement and receive a return of its
Deposit.
Purchaser hereby agrees to pay, protect, defend, indemnify and save
Seller
harmless against all liabilities, obligations, claims (including
mechanic's lien
claims), damages, penalties, causes of action, judgments, costs and
expenses
(including, without limitation, attorneys' fees and expenses)
imposed upon,
incurred by or asserted against Seller by reason of property damage
or personal
injury, as well as mechanics' liens or materialmen's liens,
resulting from the
conduct of Purchaser's Tests and Studies by Purchaser or by
Purchaser's
employees, agents or independent contractors and the actions of
such persons on
the Real Property. In the event any part of the Property is damaged
or excavated
by Purchaser, its employees, agents or independent contractors,
Purchaser agrees
to restore the Property to its condition prior to such damage or
excavation and,
in the event such restoration is not done and the Transaction is
not
consummated, to make such additional payments to Seller as may be
reasonably
required to pay for the actual, out-of-pocket costs that have been,
or will be,
incurred by Seller to return the Property to its condition
immediately prior to
such damage or excavation. Seller shall provide Purchaser with
reasonable
evidence as to the amount of such cost. Notwithstanding any
provision to the
contrary herein, Purchaser's obligations under this subparagraph
shall survive
15
<PAGE>
the expiration or termination of this Agreement, and shall survive
Closing, for
a period of two (2) years as to property damage and for a period
equal to the
applicable statute of limitations as to personal injury.
Before and during Purchaser's Tests and Studies, Purchaser and
each
representative of Purchaser, conducting any Purchaser Tests and
Studies shall
maintain workers' compensation insurance in accordance with
applicable law, and
Purchaser, or its representative conducting any Purchaser's Tests
and Studies,
shall maintain (1) commercial general liability insurance with
limits of at
least One Million Dollars ($1,000,000.00) for bodily or personal
injury or
death, for each incident (2) property damage insurance in the
amount of at least
Two Hundred Fifty Thousand Dollars ($250,000.00), and (3)
contractual liability
insurance with respect to Purchaser's obligations under this
Agreement.
Purchaser shall deliver to Seller evidence of such workers'
compensation
insurance and a certificate evidencing the commercial general
liability,
property damage and contractual liability insurance before
conducting any of
Purchaser's Tests and Studies on the Property. Each such insurance
policy shall
be written by a reputable insurance company having a rating of at
least "A+VII"
by Best's Rating Guide (or a comparable rating by a successor
rating service),
and shall otherwise be subject to Seller's prior approval. Such
insurance
policies shall name as additional insureds Seller and such other
parties holding
insurable interests as Seller may designate.
5.3
Feasibility Period. If Purchaser determines that the
development,
ownership, use or financing of the Property as Purchaser intends is
not feasible
for any reason, then Purchaser shall have the right, to be
exercised not later
than 5 p.m. Central Time on December 30, 2005 (the "Feasibility
Period") to
elect to either proceed or not proceed with the purchase of the
Property as
contemplated herein. If, on or before the expiration of the
Feasibility Period,
16
<PAGE>
Purchaser has notified Seller that Purchaser is not satisfied, in
its sole and
absolute discretion, with all aspects of the Property, then this
Agreement shall
terminate, and Seller shall instruct the Title Company to return
the Deposit
(less one-half of any applicable escrow fee) to Purchaser, and
neither party
shall have any obligation to the other, except for the Surviving
Covenants. If
Purchaser does not provide such notice of termination on or before
the last day
of the Feasibility Period, then Purchaser shall be deemed to have
determined to
proceed with the acquisition despite any risks disclosed by
Purchaser's Tests
and Studies, and this Agreement shall remain in full force and
effect.
If
this Agreement is terminated for any reason, Purchaser and its
representatives will promptly return to Seller all written
materials, including
all provided due diligence materials and leases, and copies of
third party
inspection reports, pertaining to this Agreement, within five (5)
business days
of such termination. The obligations of this paragraph shall
survive termination
of this Agreement.
5.4
Survey Contingency. Seller has obtained and shall deliver to
Purchaser,
at Seller's sole cost and expense, an ALTA as-built survey of the
Property,
certified as having been made in accordance with Accuracy Standards
and Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys, as
adopted in
1992, including items 1-4 and 7-13 of Table A (the "Survey").
Seller agrees to
add to the Survey, at Seller's sole cost and expense, Purchaser and
Purchaser's
Lender as addressees of the surveyor's certification and such
additional details
as are required in the commercially reasonable discretion of
Purchaser's lender.
Purchaser's obligation to purchase the Property is subject to its
approval, on
or prior to the last day of the Feasibility Period, of the
Survey.
17
<PAGE>
Purchaser shall have ten (10) business days after receipt, to state
in
writing any objections Purchaser has to any condition of the
Property shown on
the Survey, including any objection to the boundaries set forth in
the Survey
and to the legal description (the "Notice of Survey Objections").
This
contingency shall be deemed satisfied or waived if a Notice of
Survey Objections
is not received by Seller on or before such date. The Notice of
Survey
Objections shall state all of Purchaser's objections with specific
reference to
the Survey. Within five (5) Business Days after receipt of the
Notice of Survey
Objections, Seller shall give written notice to Purchaser stating
as to each
objection which one of the following responses it has elected: (i)
to cure such
objection, in which case Seller shall be deemed to have covenanted
to cure such
objection, and failure to effect such cure by the Closing Date
shall constitute
a default under this Agreement by Seller; or (ii) to use
commercially reasonable
efforts to cure such objection, in which case Seller shall be
deemed to have
covenanted to use commercially reasonable efforts to effect such
cure, but
provided that Seller uses such efforts, cure of the objection by
the Closing
Date shall be a condition of the Closing, not a covenant of Seller,
and failure
to effect such cure after using commercially reasonable efforts to
do so shall
not constitute a default by Seller; or (iii) not to cure such
objection, in
which case Purchaser shall have the right immediately, or at any
time thereafter
up to 5:00 P.M. Central Time the last day of the Feasibility
Period, to
terminate this Agreement, in which case the Deposit shall be
returned to
Purchaser and neither party shall have any further rights or duties
hereunder
except for the Surviving Covenants. If Purchaser does not terminate
this
Agreement as a result of failure of Seller to cure any such
objection of
Purchaser where Seller has made an election under part (ii) or part
(iii),
above, or if Purchaser closes the Transaction despite Seller's
failure to cure
any such objection of Purchaser where Seller has made an election
under part
18
<PAGE>
(i), above, then in either case Purchaser shall be deemed to have
waived such
objection. If Seller fails to make an election as provided above,
then Seller
shall be deemed to have made an election under part (iii) as to
each such
objection for which an election was not made.
5.5
Title Contingency. Seller shall cause Stewart Title Guaranty
Company,
1980 Post Oak Blvd., Suite 610, Houston, Texas 77056, Attn: Lynn
Babineaux, Toll
Free Phone: 800-729-1906, Direct Fax: (832) 553-7490, Email:
lbabineau@stewart.com (the "Title Company"), payable in accordance
with Section
4.10 hereof, to issue to Purchaser, a commitment for an Owner's
Title Insurance
Policy on ALTA Form B 1992 or similar form (the "Title
Commitment"). Purchaser's
obligation to purchase the Property is subject to its approval, on
or prior to
the last day of the Feasibility Period, of the Title Commitment and
there being
no changes to the status of Title so that the Title Company may
issue an Owner's
Title Insurance Policy at Closing subject only to the exceptions
contained in
the Title Commitment approved prior to the end of the Feasibility
Period. The
Title Company shall also provide Seller with a copy of the Title
Commitment and
legible copies of the encumbrances. Stewart Title Guaranty Company
shall receive
a minimum of fifty cents per thousand dollars of Purchase Price for
issuance of
the Owner's Title Insurance Policy.
Purchaser shall have until ten (10) business days after receipt to
state in
writing any objections Purchaser has to Seller's title (the "Notice
of Title
Objections"). This contingency shall be deemed satisfied or waived
if a Notice
of Title Objections is not received by Seller on or before such
date. The Notice
of Title Objections shall state all of Purchaser's objections to
Seller's title
as set forth in the Title Commitment with reasonable
specificity.
19
<PAGE>
Within five (5)
Business Days after receipt of the Notice of Title
Objections, Seller shall give written notice to Purchaser stating
as to each
objection which one of the following responses it has elected: (i)
to cure the
objection, in which case Seller shall be deemed to have covenanted
to cure such
objection, and failure to effect such cure by the Closing Date
shall constitute
a default under this Agreement by Seller; or (ii) to use
commercially reasonable
efforts to cure such objection, in which case Seller shall be
deemed to have
covenanted to use commercially reasonable efforts to effect such
cure, but
provided that Seller uses such efforts, cure of the objection by
the Closing
Date shall be a condition of the closing, not a covenant of Seller,
and failure
to effect such cure after using commercially reasonable efforts to
do so shall
not constitute a default by Seller; or (iii) not to cure such
objection, in
which case Purchaser shall have the right immediately, or at any
time thereafter
up to the last day of the Feasibility Period, to terminate this
Agreement, in
which case the Deposit shall be returned to Purchaser and neither
party shall
have any further rights or duties hereunder except for the
Surviving Covenants.
If Purchaser does not terminate this Agreement as a result of
failure of Seller
to cure any such objection of Purchaser where Seller has made an
election under
part (ii) or part (iii), above, or if Purchaser closes the
Transaction despite
Seller's failure to cure any such objection of Purchaser where
Seller has made
an election under part (i), above, then in either case Purchaser
shall be deemed
to have waived such objection. If Seller fails to make an election
as provided
above, then Seller shall be deemed to have made an election under
part (iii) as
to each such objection for which an election was not made.
Notwithstanding the foregoing, however, under all circumstances,
Seller
shall be obligated to satisfy, discharge, and release any and all
mortgages,
lease assignments, financing statements, and other monetary liens
(other than
liens for taxes that are not yet due and payable) on the Property,
as identified
20
<PAGE>
in the Title Commitment, on or prior to the Closing Date. If such
monetary liens
are not satisfied prior to the Closing Date, then they shall be
satisfied from
the proceeds of sale.
Notwithstanding that property descriptions, lists of appurtenant
rights,
and lists of encumbrances may be attached to this Agreement as
exhibits or are
attached to forms of documents attached as exhibits, such
descriptions and lists
are not approved by Purchaser and are subject to review as part of
the title
contingency set forth in this Section 5.5.
5.6
Estoppels; SNDAs. Seller shall use good faith efforts (not
involving
the payment of money to any tenant) to obtain execution and
delivery (not later
than the three days prior to the expiration of the Feasibility
Period) of a
Tenant estoppel from J.C. Penney Company, Inc. and from Hollywood
Theaters
substantially in the form of Exhibit F-1, attached hereto and
incorporated
herein, anchor estoppels from each of Dillard's, May, and Mervyn
substantially
in the form of Exhibit F-2, attached hereto and incorporated herein
(the "Anchor
Estoppels"), and tenant estoppels from at least seventy five
percent (75%), as
measured by floor area, of the other permanent (defined as tenants
having a term
of one year or longer) tenants leasing and occupying space in the
Building (but
not from tenants under temporary leases or licenses) (the "Estoppel
Tenants")
substantially in the form of Exhibit F-3, attached hereto and
incorporated
herein (the "Tenant Estoppels") (the Penney Estoppel, the Hollywood
Theaters
Estoppel, the Anchor Estoppels, and the Estoppel Tenants,
collectively, the
"Required Estoppels"). Seller will submit to J.C. Penney, Hollywood
Theater, the
Anchors and the other tenants, Estoppels in the forms attached
hereto and will
use such good faith efforts to obtain signed Estoppels
substantially in those
21
<PAGE>
forms. While Seller is obligated to use good faith efforts to
obtain the
Required Estoppels, Seller shall not be in default under this
Agreement if
Seller, despite using good faith efforts to obtain same, is unable
to deliver
the Required Estoppels. Rather, it shall be a condition of the
Closing (for
which Purchaser's sole remedy in the event of failure of such
condition in spite
of Seller's good faith efforts to obtain the Estoppels shall be to
terminate the
Purchase Agreement and receive a refund of the Deposit) that Seller
deliver the
Required Estoppels provided that the parties may agree to a
reasonable extension
of the Closing Date for Seller to obtain and deliver the Required
Estoppels. If
Seller fails to deliver Tenant Estoppels from tenants representing
ninety
percent (90%) of the space leased to all Estoppel Tenants (as
measured by floor
area), then Seller shall provide a certificate to Purchaser
certifying as to the
statements in the Tenant Estoppel form for any tenants that fail to
execute
estoppels, up to said ninety percent (90%).
In
addition, Seller will submit to J.C. Penney, Hollywood Theater and
all
Estoppel Tenants subordination, nondisturbance and attornment
agreements
("SNDAs") in the form required by Purchaser's lender, or otherwise
mutually
acceptable to Purchaser and Seller, and will reasonably cooperate
with Purchaser
to try to obtain executed SNDAs. Delivery of SNDAs shall not be a
covenant of
Seller.
5.7
Service Contracts. In connection with its document review under
Section
5.1 hereof, on or prior to the last day of the Feasibility Period,
Purchaser may
direct Seller to terminate any service and maintenance contracts
that Purchaser
does not want to assume. All termination fees and other costs of
termination
shall be paid by Purchaser. Notwithstanding the foregoing, however,
Seller shall
terminate the Management and Leasing Agreement as of the Closing
Date, at
Seller's sole cost and expense.
22
<PAGE>
5.8
Additional Conditions of Closing. The duty of Purchaser to close
shall
be contingent upon satisfaction of the following conditions on or
prior to the
Closing Date (but satisfaction of such conditions shall not be a
covenant of
Seller).
5.8.1 Consents of Third Parties. All third parties having the
contractual right to do so, shall have consented to and approved
the
transaction contemplated by the Agreement. Seller shall pay any
fees or
expenses of any such third party in connection with any such
consent, to
the
extent required to do so by the applicable Agreements.
5.8.2 Licenses. All permits and licenses necessary to allow the
Property to continue to operate after the closing in the same
manner as
presently being operated shall have been obtained by Purchaser or
its
agents.
5.8.3 No Adverse Change; Representations; Covenants. There shall
not
be
any change in the zoning of the Property following the expiration
of the
Feasibility Period that materially adversely affects the ability
of
Purchaser to use the Property for the purposes for which it is
currently
being used. If the Property is a non-conforming structure or is
subject to
a
variance, there shall not have occurred any event following the
expiration of the Feasibility Period that would interfere with
Purchaser's
continued use of such non-conforming structure or variance. If any
of the
representations in the Agreement is not true, Seller shall qualify
such
representation at the Closing, but Purchaser shall not have a right
to
terminate the Agreement unless the facts causing such qualification
would
have
a material adverse effect on the Property or the Purchaser
following
the
Closing.
23
<PAGE>
5.8.4 Governmental Consents and Approvals. All requisite filings
shall
have
been made with, and all requisite consents and approvals for the
sale
of
the Property shall have been obtained from, all applicable
regulatory
and
other governmental authorities and third parties, including,
without
limitation, any required approval under the Hart-Scott-Rodino
Antitrust
Improvements Act of 1976, as amended.
5.8.5 Free and Clear. Fee simple title to the Property shall be
delivered to Purchaser subject only to the Permitted Exceptions,
as
conclusively evidenced by the commitment of the Title Company to
issue the
Title Policy so insuring.
5.8.6 Management Contracts. On the closing date, there shall be
no
management or leasing agreements or contracts, whether written or
oral,
covering, applying to or encumbering the Property. Further,
Purchaser shall
have
no obligations, financial or otherwise, to Seller's management
and
leasing agents for any reason.
Article VI.
Loss due to Casualty or Condemnation
------------------------------------
6.1
Loss due to Condemnation. In the event of a condemnation of all or
a
Substantial Portion (as hereinafter defined) of the Real Property
which
condemnation shall or would render a Substantial Portion of the
Real Property
untenantable or would result in the Real Property not having
sufficient parking
to comply with applicable law or the specific requirements of the
REA or any
Lease, Purchaser may, upon written notice to Seller given within
ten (10) days
of receipt of notice of such event, cancel this Agreement, in which
event Seller
shall instruct the Escrow Holder to return the Deposit, this
Agreement shall
terminate and neither party shall have any rights or obligations
hereunder
except for the Surviving Covenants. In the event that Purchaser
does not elect
24
<PAGE>
to terminate, or if the condemnation affects less than a
Substantial Portion or
does not materially affect the parking area, then this Agreement
shall remain in
full force and effect, and Seller shall be entitled to all monies
received or
collected by reason of such condemnation prior to Closing. In such
event, the
transaction hereby contemplated shall close in accordance with the
terms and
conditions of this Agreement, except that there will be an
abatement of the
Purchase Price equal to the amount of the gross proceeds received
by Seller by
reason of such condemnation prior to Closing; provided, however,
that if any
separate award is made for costs and attorney's fees, Seller shall
be entitled
to retain such separate award. If the condemnation proceeding shall
not have
been concluded prior to the Closing, then there shall be no
abatement of the
Purchase Price and Seller shall assign any interest it has in the
pending award
to Purchaser. For purposes of this Section 6.1, a Substantial
Portion shall mean
a condemnation of the Real Property in excess of Five Million
Dollars
($5,000,000) in value of the Real Property.
6.2
Loss due to Casualty. In the event of Substantial Loss or Damage
(as
hereinafter defined) to the Real Property by fire or other casualty
(not
resulting from acts of Purchaser), Purchaser may, upon written
notice to Seller
given within ten (10) days of receipt of notice of such event,
cancel this
Agreement in which event Seller shall instruct the Escrow Holder to
return the
Deposit to Purchaser and this Agreement shall terminate and neither
party shall
have any rights or obligations hereunder except for the Surviving
Covenants. In
the event that Purchaser does not elect to terminate, or if the
casualty results
in less than Substantial Loss or Damage, then this Agreement shall
remain in
full force and effect and Seller shall be entitled to all insurance
proceeds
received or collected by reason of such damage or loss, whereupon
the
transaction hereby contemplated shall close in accordance with the
terms and
conditions of this Agreement except that there will be abatement of
the Purchase
Price equal to the amount of the gross proceeds, plus Seller's
deductible,
25
<PAGE>
provided that such abatement will be reduced by the amount expended
by Seller in
accordance with Article VII hereof for restoration of the Property
following the
casualty, and provided, further, that such abatement will be
further reduced by
the amount that the gross proceeds include any separate award for
costs
(including preservation costs) and attorney's fees. If the casualty
insurance
loss settlement shall not have been concluded prior to the Closing,
then there
shall be an abatement of the Purchase Price in the amount of
Seller's deductible
and Seller shall assign any interest it has in the pending
insurance settlement
to Purchaser. Alternatively, Purchaser may, in its discretion, have
Seller
repair or replace the damaged Property, and there shall be no
abatement of the
Purchase Price in such case. However, Purchaser shall not be
entitled to require
Seller to effect repair or replacement unless the loss is entirely
covered by
insurance (except for any applicable deductible) and the repair or
replacement
will take no more than three (3) months to complete. For purposes
of this
Section 6.2, "Substantial Loss or Damage" shall mean loss or damage
to the
parking and/or any portion of the Building the cost for repair of
which exceeds,
Five Million Dollars ($5,000,000) of the value of the Real
Property.
Article VII.
Operation and Maintenance of the Property
-----------------------------------------
7.1
Maintenance, Operation and Insurance. Between the time of execution
of
this Agreement and the Closing, Seller shall pay its obligations
and operate the
Property in the ordinary course of business, shall not enter into
any
transactions outside the ordinary course of business, shall keep
the Real
Property insured for 100% of replacement cost (less any applicable
deductible),
shall maintain the Property in good condition and repair,
reasonable wear and
tear excepted, shall use its best efforts to preserve and retain
the future
development capacity of the Property in its present condition,
shall perform all
26
<PAGE>
work required to be done under the terms of any lease or agreement
relating to
the Property, and shall timely make all repairs, maintenance and
replacements of
equipment or improvements, the same as though Seller were retaining
the
Property; except that Seller shall have no duty to continue any
capital
improvement, renovation, or re-tenanting programs and in the event
of a fire or
other casualty, damage or loss, Seller shall have no duty to repair
said damage
except as otherwise provided in Section 6.2 of this Agreement.
However, Seller
may repair any such damage with Purchaser's prior, written approval
and may,
without Purchaser's approval, repair damage where such repair is
necessary in
Seller's reasonable opinion to preserve and protect the health and
safety of
tenants of the Property or to preserve the Property from imminent
risk of
further damage or if required to do so by Seller's insurance
carrier. Any such
emergency repairs shall be reported to Purchaser within 48 hours of
their
completion.
7.2
Leasing. During the period from the Effective Date until the
Closing
Date, Seller shall not lease any portion of the Real Property or
amend or
terminate any existing lease without first obtaining Purchaser's
written
approval, which approval, if requested prior to the expiration of
the
Feasibility Period shall not be unreasonably denied or delayed but,
which
approval, after expiration of the Feasibility Period shall be in
Purchaser's
sole discretion. The foregoing to the contrary notwithstanding,
Seller may
proceed to enter into new leases with the tenants and at the
business terms
listed on Exhibit "N" attached hereto and incorporated herein (each
such lease
with the listed tenants in Exhibit N hereafter a "Required New
Lease").
Purchaser shall have five (5) business days from the date Seller
provides
Purchaser with the business terms of the new lease, or modification
or
termination of any existing lease, together with any information
reasonably
requested by Purchaser regarding such tenant, to approve or reject
such lease,
27
<PAGE>
modification or termination. If Purchaser fails to respond within
said time
period, it shall be deemed to have approved said lease,
modification or
termination, as applicable. Following Closing, Purchaser will be
obligated to
pay any leasing costs for any new lease approved by Purchaser
provided that
Seller shall be responsible for all Leasing Costs associated with
any Required
New Lease and Purchaser shall be entitled to a credit against the
Purchase Price
for any Leasing Costs for any Required New Lease that remains
unpaid at Closing.
Prior to Closing, Seller shall be entitled, without Purchaser's
consent or
approval, to enter into leases or licenses with a term of one (1)
year or less
("Temporary Leases") or licenses of space that are terminable on
thirty (30)
days notice. Subsequent to the expiration of the Feasibility Date,
without the
consent of Purchaser, Seller shall not apply any security deposits
held against
rents owed by any tenant.
7.3
Required New Leases. In the event that Seller has not entered into
a
fully executed and enforceable lease with each of the Required New
Lease tenants
identified in Exhibit "N", at Closing, Purchaser shall receive a
credit against
the Purchase Price equal to the Leasing Cost for each respective
Required New
Lease for which a fully executed and enforceable lease has not been
entered into
by Seller. In addition, to the extent that as of the Closing date
any Required
New Lease tenant signed a new lease but has not opened and
commenced the payment
of fixed minimum rent under its executed lease, Purchaser shall
receive a credit
against the Purchase Price equal to the amount of fixed minimum
rent that such
tenant would have been obligated to pay if open between the Closing
Date and the
required rental commencement date under the said lease, up to a
maximum of one
(1) year.
In
the event that a particular Required New Lease is not executed
by
Closing, in addition to the Purchaser receiving a credit for the
unpaid Leasing
Costs associated with that Required New Lease, Seller shall also
enter into a
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master lease with the Purchaser for that particular space under the
following
terms: 1) The rent payable by Seller shall be the stated Minimum
rent described
in the particular Required New Lease only; 2) Seller shall not pay
any
additional rents, charges or cost recoveries; 3) The term of each
master lease
shall be for a maximum of five years from the date of the Closing;
4) Rent shall
be payable monthly in advance; 5) The master lease for a particular
Required New
Lease shall terminate without further obligation of the Seller upon
the first to
occur of the following: a) Purchaser executes the Required New
Lease; b)
Purchaser executes a lease with the Required New Lease tenant in
another space
in the Property; c) Purchaser executes a lease with any tenant in
all or part of
the particular Required New Lease space; or d) the expiration of
five years from
the Closing Date.
Article VIII.
Broker
------
Purchaser and Seller represent to each other that they have dealt
with no
agent or broker who in any way has participated as a procuring
cause of the sale
of the Property, except Granite Partners, L.L.C. or its affiliate
("Broker").
Seller shall pay a commission to Broker at the Closing pursuant to
a separate
brokerage agreement between Seller and Broker. Purchaser and Seller
each agree
to defend, indemnify and hold harmless the other for any and all
judgments,
costs of suit, attorneys' fees, and other reasonable expenses which
the other
may incur by reason of any action or claim against the other by any
broker,
agent, or finder with whom the indemnifying party has dealt arising
out of this
Agreement or any subsequent sale of the Property to Purchaser
except for the
above-described commissions, which shall be paid by Seller at the
Closing. The
provisions of this Article VIII shall survive the Closing and any
termination of
this Agreement.
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Article IX.
Representations and Warranties
------------------------------
9.1
Limitations on Representations and Warranties. Purchaser hereby
agrees
and acknowledges that, except as set forth in Section 9.2 below,
neither Seller
nor any agent, attorney, employee or representative of Seller has
made any
representation whatsoever regarding the subject matter of this
sale, or any part
thereof, including (without limiting the generality of the
foregoing)
representations as to the physical nature or condition of the
Property or the
capabilities thereof, and that Purchaser, in executing, delivering
and/or
performing this Agreement, does not rely upon any statement and/or
information
to whomever made or given, directly or indirectly, orally or in
writing, by any
individual, firm or corporation. PURCHASER AGREES TO TAKE THE REAL
PROPERTY AND
THE PERSONAL PROPERTY "AS IS," "WHERE IS" AND WITH "ALL FAULTS" AS
OF THE DATE
HEREOF, AND AS OF THE DATE OF CLOSING, REASONABLE WEAR AND TEAR,
AND MINOR
DAMAGE CAUSED BY THE REMOVAL OF ANY PERSONAL PROPERTY OR FIXTURES
NOT INCLUDED
IN THIS SALE, EXCEPTED. EXCEPT AS SET FORTH IN SECTION 9.2 BELOW,
SELLER MAKES
NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION OF
THE PROPERTY OR
THE SUITABILITY THEREOF FOR ANY PURPOSE FOR WHICH PURCHASER MAY
DESIRE TO USE
IT. SELLER HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES OF
MERCHANTABILITY AND/OR
FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER WARRANTIES OR
REPRESENTATIONS AS
TO THE PHYSICAL CONDITION OF THE PROPERTY. PURCHASER, BY ACCEPTANCE
OF THE DEED,
AGREES THAT IT HAS INSPECTED THE PROPERTY AND ACCEPTS SAME "AS IS",
"WHERE IS"
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AND "WITH ALL FAULTS". Notwithstanding anything contained in this
Agreement or
according to the doctrine or merger or any other legal principal to
the
contrary, the disclaimers contained in this paragraph 9.1 will
survive the
Closing.
Purchaser understands that any financial statements and data,
including,
without limitation, gross rental income, operating expenses and
cash flow
statements, to be made available by Seller to Purchaser, will be
unaudited
financial statements and data not prepared or reviewed by
independent public
accountants, and that Seller makes no representation as to the
accuracy or
completeness thereof, except that such financial statements were
prepared in the
regular course of Seller's business.
9.2
Representations and Warranties. Seller makes the following
representations and warranties and agrees that Purchaser's
obligations under
this Agreement are conditioned upon the truth and accuracy of
such
representations and warranties, both as of this date and as of the
date of the
Closing:
(a)
Subject to the provisions of Section 12.14 hereof, Seller has
the
corporate power and authority to enter into this Agreement and
convey the
Property to Purchaser, and COYOTE TULSA MALL, L.L.C., a Delaware
limited
liability company is authorized to execute this Agreement and the
other
documents referred to herein and to perform hereunder and
thereunder on behalf
of Seller;
(b)
To the best of Seller's knowledge, Seller has received no notice of
any
existing, pending or threatened litigation, governmental
investigation,
administrative proceeding or condemnation or sale in lieu thereof,
with respect
to any portion of the Real Property, except as noted on Exhibit I
attached
hereto and incorporated herein;
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(c)
Except for those tenants and licensees in possession of the
Real
Property under written leases or license agreements for space in
the Real
Property, as shown in the Rent Roll, to the best of Seller's
knowledge there are
no parties in possession of, or claiming any right to possession of
any portion
of the Real Property as lessees, tenants at sufferance, licensees,
trespassers
or otherwise;
(d)
There are no attachments or executions affecting the Property,
and
there are no general assignments for the benefit of creditors or
voluntary or
involuntary proceedings in bankruptcy, pending or, to the best of
Seller's
knowledge, threatened, against Seller;
(e)
During the period of Seller's ownership of the Real Property,
Seller
has not itself, and to the best of Seller's knowledge no prior
owner or current
or prior tenant or other occupant of all or any part of the Real
Property at any
time has, used, generated, processed, stored, disposed of, or
transported
Hazardous Materials (hereinafter defined) on, from, or affecting
the Real
Property in any manner that violates any of the Environmental Laws
(hereinafter
defined).
"Hazardous Materials" shall mean and include those elements,
materials,
compounds, mixtures or substances which are now or hereafter
contained in any
list of hazardous substances adopted by the United States
Environmental
Protection Agency (the "EPA") or any list of toxic pollutants
designated by
Congress or the EPA or which are defined as hazardous, toxic,
pollutant,
infectious, flammable or radioactive by any of the Environmental
Laws
(hereinafter defined), and, whether or not included in such lists,
shall be
deemed to include all products or substances which are or contain
petroleum,
natural gas, natural gas liquids, asbestos, and polychlorinated
biphenyls.
32
<PAGE>
"Environmental Laws" shall mean and include any Federal, State, or
local
statute, law, ordinance, code, rule, regulation, order, or decree
regulating,
relating to, or imposing liability or standards of conduct
concerning, any
hazardous, toxic, or dangerous waste, substance, element, compound,
mixture or
material, as now or at any time hereafter in effect including,
without
limitation, the Federal Comprehensive Environmental Response,
Compensation and
Liability Act, as amended, 42 U.S.C. ss.ss.9601 et seq., the
Superfund
Amendments and Reauthorization Act, 42 U.S.C. ss.ss.9601 et. Seq.,
the Federal
Toxic Substances Control Act, 15 U.S.C. ss.ss.2601 et seq. seq.,
the Federal
Resource Conservation and Recovery Act as amended, 42 U.S.C.
ss.ss.6901 et seq.
seq., the Federal Hazardous Material Transportation Act, 49 U.S.C.
ss.ss.1801 et
seq. seq., the Federal Clean Air Act 42 U.S.C. ss.7401 et seq.
seq., the Federal
Water Pollution Control Act, 33 U.S.C. ss.1251 et seq. seq., the
River and
Harbors Act of 1899, 33 U.S.C. ss.ss.401 et seq. seq., and all
rules and
regulations of the any governmental authorities under such
laws.
Notwithstanding anything contained herein to the contrary,
"Hazardous
Materials" shall not include any ordinary use and incidental
storage of small
and insignificant amounts of substances reasonably necessary for
the regular and
ordinary maintenance of the Property, or consumed in the repair and
ordinary use
of common office business machines, nor to gasoline, oil, and other
automotive
fluids to the extent that they are contained in the common and
ordinary manner
in motor vehicles visiting the Real Property, in each case provided
that the
same do not constitute, give rise to, or create any substantial
risk of any
violation of any requirements of any Environmental Law.
(f)
The service and maintenance contracts ("Service Contracts")
described
on Exhibit J attached hereto and incorporated herein are the only
such contracts
in effect for the Property; and
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(g)
Seller is not, and will not be, a person or entity with whom
Purchaser
is restricted from doing business under the Uniting and
Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of
2001, H.R. 3162, Public Law 107-56 (commonly known as the "USA
Patriot Act") and
Executive Order Number 13224 on Terrorism Financing, effective
September 24,
2001 and regulations promulgated pursuant thereto (collectively,
"Anti Terrorism
Laws"), including without limitation persons and entities named on
the Office of
Foreign Asset Control Specially Designated Nationals and Blocked
Persons List.
9.3
Seller's Knowledge. Whenever the term "to the best of Seller's
knowledge" is used in this Agreement or in any representations and
warranties
given to Purchaser at Closing, such knowledge shall be the actual
knowledge of
Michael E. Rulli, Chief Executive Officer, and Robert D. Lee,
President (the
"Key Person"). Seller shall have no duty to conduct any further
inquiry in
making any such representations and warranties, and no knowledge of
any other
person shall be imputed to the Key Person. Purchaser acknowledges
that Seller is
not a hands-on Owner, and employs third-party management to oversee
the daily
operations of the Property and that Seller has limited information
and knowledge
pertaining to the Property.
9.4
Survival. All representations and warranties contained in Section
9.2
will survive the Closing of this transaction (but only as to the
status of facts
as they exist as of the Closing, it being understood that Seller
makes no
representations or warranties which would apply to changes or other
matters
occurring after the Closing), but shall expire on the date twelve
(12) months
from the date of Closing, and no action on such representations
and
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