EXHIBIT 10.1
CONIFER CROSSING
NORCROSS, GEORGIA
PURCHASE AND SALE
AGREEMENT
THIS PURCHASE AND
SALE AGREEMENT is made and entered into this 2
nd day of April, 2008, by and
between SIMPSON FINANCING LIMITED PARTNERSHIP , a Colorado
limited partnership (“ Seller ”) and FOWLER
PROPERTY ACQUISITIONS, LLC, a California limited liability
company (“ Purchaser ”).
W I T N
E S S E
T H :
WHEREAS, Seller is the owner of
certain real property located at 3383 Holcomb Bridge Road,
Norcross, Gwinnett County, Georgia which property is more
particularly described on Exhibit
“A” attached hereto and incorporated herein
by this reference (the “ Property ”);
and
WHEREAS, Seller has offered to sell
the Property to Purchaser and Purchaser has offered to purchase the
Property from Seller; and
WHEREAS, the parties desire to
provide for said purchase and sale on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, for and in
consideration of the foregoing premises, the mutual covenants and
agreements set forth herein and other good and valuable
consideration, all of which each party respectively agrees
constitutes sufficient consideration received at or before the
execution hereof, the parties hereto do hereby agree as
follows:
1. DEFINITIONS AND MEANINGS .
In addition to any other terms whose definitions are fixed and
defined by this Agreement, each of the following defined terms,
when used in this Agreement with an initial capital letter, shall
have the meaning ascribed thereto by this Section:
“ Additional Earnest Money
Deposit ” means (i) Three Hundred Fifty Thousand and
No/100 dollars ($350,000.00) to be deposited by Purchaser as
provided in Section 4 hereof; (ii) any sums deposited by
Purchaser in connection with exercising the Extension Options (as
hereinafter defined pursuant to Paragraph 7.1.2 hereof, and
(iii) all interest and income earned thereon while held in
escrow.
“ Agreement ”
means this Purchase and Sale Agreement, together with all exhibits
attached hereto, as same may be extended by mutual agreement of the
parties in writing.
“ Broker” means
Holliday Fenoglio Fowler, LP
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“ Closing ” means
the consummation of the purchase and sale contemplated by this
Agreement by the deliveries required under Section 7
hereof.
“ Closing Date ”
means the time and date, established under Subsection 7.1 hereof,
when the purchase and sale contemplated by this Agreement is to be
consummated, as such date may be extended by mutual agreement of
the parties or pursuant to the provisions of this
Agreement.
“ Due Diligence Items
” means those items, documents and matters listed or
described on Exhibit “D” attached
hereto and incorporated herein by this reference.
“ Earnest Money ”
means Five Hundred Thousand and No/100 Dollars ($500,000.00)
composed of the Initial Earnest Money Deposit and any Additional
Earnest Money Deposit and all interest and income earned thereon
while held in escrow.
“ Earnest Money Escrow
Agreement ” means an agreement among Seller, Purchaser
and Escrow Agent, in the form attached hereto as Exhibit
“C” and incorporated herein by this
reference, regarding the Earnest Money.
“ Escrow Agent ”
means the Fidelity National Title Insurance Company, having an
address of 200 Galleria Parkway, SE, Suite 2060, Atlanta, GA 30339,
Attention: Shawn Tidwell, Esq.
“ Execution Date
” means the date on which this Agreement is duly executed by
the last signing party, such date shall be inserted in the preamble
on the first page of this Agreement.
“ Initial Earnest Money
Deposit ” means One Hundred Fifty Thousand and No/100
Dollars ($150,000.00) to be deposited by Purchaser as provided in
Section 4 hereof and all interest and income earned thereon
while held in escrow.
“ Inspection Date
” means thirty (30) days from and after the Execution
Date.
“Permitted
Exceptions” means
any Title Matters to which Purchaser fails to object prior to the
Title Review Date or which Purchaser waives pursuant to
Section 5 hereof.
“ Personal Property
” means the items described in Exhibit
“G” attached hereto and incorporated herein
by this reference.
“ Purchase Price
” means the amount which Purchaser shall pay to consummate
the purchase and sale of the Property as provided in Subsection 3.1
hereof.
“ Tenant Leases ”
means those written leases, rental or occupancy agreements for
individual apartment units at the Property pursuant to which the
tenants listed on the Rent Roll are entitled to rent and occupy any
portion of the Property.
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“ Title Matter ”
and “ Title Matters ” mean any deeds to secure
debt, deeds of trust, mortgages, liens, financing statements,
security interests, easements, leases, restrictive covenants,
agreements, options, claims, clouds, encroachments, rights, taxes,
assessments, mechanics’ or materialmen’s liens
(inchoate or perfected), liens for federal or state income, estate
or inheritance taxes and other encumbrances of any nature
whatsoever, whether existing of record or otherwise, together with
any and all matters of any kind or description, including, without
limitation, matters of survey and any litigation or other
proceedings affecting the Property or Seller and which affects
title to the Property, or the ability, right, power and authority
of Seller to convey to Purchaser fee simple, good and marketable
and insurable title to the Property, in accordance with the terms
of this Agreement.
2. SALE AND PURCHASE . Seller
agrees to sell the Property to Purchaser on the terms and
conditions contained in this Agreement, and Purchaser agrees to
purchase the Property from Seller on the terms and conditions
contained in this Agreement.
3. PURCHASE PRICE/ASSUMPTION OF
LIABILITY .
3.1 Amount and Payment of
Purchase Price .
3.1.1 The Purchase Price for the
Property shall be Thirty-One Million Seven Hundred Fifty Thousand
and No/100 ($31,750,000), subject to adjustment as provided for in
Section 7 hereof.
3.1.2 At Closing, the Purchase Price
shall be paid by Purchaser to Seller in cash, by federal funds
check or by wire transfer of immediately available
funds.
3.2 Assumption of Liability .
Seller’s obligations under the contracts and agreements
listed on Exhibit “E” attached
hereto and incorporated herein by this reference which Purchaser
does not elect to have terminated by notice to Seller on or before
the Inspection Date shall be assumed by, and become the sole
responsibility of, Purchaser at Closing and pursuant to which
Purchaser will indemnify Seller for all assumed matters relevant to
the operation of the Property arising after Closing and Seller will
indemnify Purchaser for all assumed matters relevant to the
operation of the Property applicable to the period prior to
Closing.
4. EARNEST MONEY AND ESCROW
AGENT .
4.1 Initial Earnest Money
Deposit . Within five (5) business days after the
Execution Date, Purchaser shall deposit the sum of One Hundred
Fifty Thousand and No/100 Dollars ($150,000.00) with Escrow Agent
(the “ Initial Earnest Money Deposit
”).
4.2 Investment of Earnest
Money . Escrow Agent will promptly invest the Earnest Money and
disburse same in accordance with the terms, conditions and
provisions of this Agreement and the Earnest Money Escrow
Agreement.
4.3 Additional Earnest Money
Deposit . In the event Purchaser does not elect to terminate
this Agreement prior to the Inspection Date, within two
(2) business days after the Inspection Date, Purchaser shall
deposit the additional sum of Three Hundred
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Fifty Thousand and No/100 Dollars ($350,000.00)
with Escrow Agent (the “ Additional Earnest Money
Deposit ”). The Additional Earnest Money Deposit shall be
held along with the Initial Earnest Money Deposit and shall be
collectively referred to as the “ Earnest Money
.”
4.4 Application of Earnest
Money . In the event Purchaser does not elect to terminate this
Agreement on or before the Inspection Date pursuant to Subparagraph
13.1.2 hereof, the Earnest Money shall become non-refundable to
Purchaser except as provided in Section 13.1.2. Escrow Agent
will otherwise hold, disburse and apply the Earnest Money in
accordance with the Earnest Money Escrow Agreement.
5. TITLE EXAMINATION AND
OBJECTIONS .
5.1 Title Examination .
Within five (5) days after the Execution Date, Seller shall
arrange for Escrow Agent to prepare an owner’s title
insurance commitment for the Property (the “ Title
Commitment ”). On or before thirty (30) days from
the Execution Date (the “ Title Review Date ”),
Purchaser shall have Seller’s title to the Property examined
and the Property accurately surveyed and inspected and give written
notice to Seller of any Title Matters which are unacceptable to
Purchaser. If prior to the Title Review Date Purchaser fails to
give any such notice with respect to any Title Matters which are of
record as of such examination, then Purchaser shall be deemed to
have waived all objections to Seller’s title and to such
Title Matters and to have accepted the form and substance of the
survey. Seller agrees to reasonably cooperate with
Purchaser’s efforts to obtain estoppel certificates, in form
and substance reasonably satisfactory to Purchaser, from all
parties to any declarations, business park covenants or other
agreements materially affecting all or any portion of the Property,
each to the extent designated by Purchaser prior to the Title
Review Date, but delivery of such estoppels will not be a condition
to Purchaser’s obligation to proceed to Closing.
5.2 Failure of Seller to Correct
Objectionable Title Matters .
5.2.1 Within five (5) business
days after receiving a timely notice of objections, provided by
Purchaser pursuant to Subsection 5.1, Seller will, after review
such objections in good faith, and notify Purchaser in writing
which Title Matters Seller will attempt to cure, satisfy or remove,
provided however, after reviewing the objections in good faith,
Seller shall have no obligation to cure, satisfy or remove any
Title Matter objected to by Purchaser, except for those Title
Matters listed in Subsection 5.2.2 below. Seller’s failure to
so notify Purchaser will be deemed to be Seller’s notice that
it will not cure, satisfy or remove any Title Matters properly
objected to by Purchaser. In the event Seller elects to cure less
than all of the Title Matters properly objected to by Purchaser,
Purchaser shall have the option to (i) waive such objections
and proceed to Closing or (ii) terminate this Agreement within
five (5) business days from Seller’s notification that
Seller elects to cure less than all of the Title Matters properly
objected to by Purchaser. In the event such Title Matters that
Seller agrees to cure or has an obligation to cure pursuant to
Subsection 5.2.2 hereof, have not been cured, satisfied or removed
on or before the Closing Date, and are not of a nature customarily
cured or satisfied at Closing, then the Closing Date shall be
extended for a period not to exceed five (5) days to allow
Seller to cure such Title Matter(s); provided, however, that except
as provided in Subsection 5.2.2, in no event shall Seller be
required to expend any money in connection with the satisfaction,
correction or cure of (or efforts to satisfy, correct or cure)
Title Matters. Following such
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extension of the Closing Date, Seller’s
failure to cure, satisfy or remove any Title Matter it agrees to
cure pursuant to Subsection 5.2.2 hereof shall be a default
hereunder. Notwithstanding the foregoing, Purchaser shall not have
the right to request the termination of the Coinmach Laundry Lease
dated September 17, 1998.
5.2.2 Notwithstanding anything
herein to the contrary, Seller shall be obligated to remove or
discharge (i) any money charge, deed of trust, deed to secure
debt, mortgage or lien arising out of or relating to any contract
or agreement entered into by Seller, Seller’s agents or
contractors, and (ii) any other Title Matter which first
appears after the date of the Title Commitment and is intentionally
or voluntarily placed on the Property by Seller. Should Seller fail
to do so, Purchaser will be entitled to cure and remove such Title
Matter, and all of Purchaser’s cost and expense incurred in
connection with such cure shall be deducted from and credited
against the Purchase Price.
6. Seller’s Representations
and Warranties .
6.1 Seller’s
Representations and Warranties . Seller represents and warrants
to Purchaser, as follows:
6.1.1 Seller has the right, power
and authority to enter into this Agreement, and the right, power
and authority to convey the Property in accordance with the terms
and conditions of this Agreement. The execution and entry into this
Agreement, the execution and delivery of the documents and
instruments to be executed and delivered by Seller on the Closing
Date and the performance by Seller of Seller’s duties and
obligations under this Agreement and of all other acts necessary
for the full consummation of the purchase and sale of the Property
as contemplated herein, are not in violation of, and will not
create any adverse condition under, any contract, agreement or
other instrument to which Seller is a party, or any judicial order
or judgment of any nature by which Seller is bound. Seller is not a
single-purpose entity and has a tangible net worth, exclusive of
its interest in the Property, at least equal to the Cap Amount (as
hereinafter defined) and Seller agrees to maintain such minimum
tangible net worth at least through the survival period set forth
herein.
6.1.2 Except as set forth on Exhibit
6.1.2, Seller has received no written notice of any pending action
by any governmental authority or agency having the power of eminent
domain, which might result in any part of the Property being taken
by condemnation or conveyed in lieu thereof. Seller shall, promptly
upon receiving any such notice, give Purchaser written notice
thereof.
6.1.3 Except for routine rent
collection matters arising under any tenant leases with respect to
the Property, Seller has received no written notice of any action,
suit or proceeding pending or threatened in writing against, by or
affecting the Property or Seller’s right to transfer the
Property or the title of the Property.
6.1.4 To Seller’s knowledge,
the Rent Roll attached hereto as Exhibit
“F” and incorporated herein by this
reference is true, correct and complete in all material respects as
of the date set forth therein.
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6.1.5 At Closing Seller shall
terminate, and be responsible for any payments due with respect
thereto, all contracts affecting the Property, except for the
contracts and agreements listed or described on Exhibit
“E” attached hereto and incorporated herein
by this reference (the “ Service Contracts ”)
which, to the extent of any obligations arising thereunder after
Closing, shall be assumed by, and become the responsibility of,
Purchaser at Closing.
6.1.6 Seller has no knowledge and
has not received written notice of violation of any applicable
federal, state or local laws pertaining to environmental matters,
building codes or other uses of the Property nor of any violation
of any private declaration, covenant or restriction affecting the
Property.
6.1.7 Except as may be set forth in
any environmental report delivered by Seller to Purchaser as part
of the Due Diligence Items, Seller has no knowledge of any
Hazardous Materials (as hereinafter defined) which exist on or
about the Property, or of any conditions which exist which do or
may cause a violation of any Environmental Laws (as hereinafter
defined).
6.1.8 Attached hereto as
Exhibit “E” and incorporated
herein by this reference is a complete and accurate list of all of
the Service Contracts. To the best of Seller’s knowledge, all
such Service Contracts are and shall be in full force and effect in
accordance with their respective provisions; Seller has no
knowledge of, and has received no written notice of, any default,
or claim of default, on the part of any party to any of such
Service Contracts.
6.1.9 Except as otherwise disclosed
to Purchaser in writing, there are no on-site employees of Seller
at the Property, and after Closing, Purchaser is not obligated to
continue the employment of any of Seller’s or Seller’s
property manager’s employees and has no obligation or
liability whatsoever to any of Seller’s or Seller’s
property manager’s employees under any agreements between
Seller or Seller’s agent or property manager and its
employees.
6.1.10 Seller is not a foreign
person within the meaning of Section 1445 of the Internal
Revenue Code of 1986, as amended (the Foreign Investment and Real
Property Tax Act).
6.1.11 EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SUBSECTION 6.1 AND
THE DOCUMENTS DELIVERED AT CLOSING, IT IS UNDERSTOOD AND AGREED
THAT SELLER DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND
OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO
MATTERS OF TITLE (OTHER THAN SELLER’S WARRANTY OF TITLE SET
FORTH IN THE DEED (AS HEREINAFTER DEFINED) TO BE DELIVERED AT
CLOSING), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITIONS, AVAILABILITY OR ACCESS, INGRESS OR EGRESS, PROPERTY
VALUE, OPERATING HISTORY, GOVERNMENTAL APPROVALS, GOVERNMENTAL
REGULATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING
THE PROPERTY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN THIS SUBSECTION 6.1
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AND THE DOCUMENTS DELIVERED AT CLOSING,
PURCHASER AGREES THAT WITH RESPECT TO THE PROPERTY, PURCHASER HAS
NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR
INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR
SELLER’S AGENTS OR EMPLOYEES. PURCHASER REPRESENTS THAT IT IS
A KNOWLEDGEABLE, SOPHISTICATED AND EXPERIENCED PURCHASER OF REAL
ESTATE SIMILAR TO THE PROPERTY AND THAT IT IS RELYING ON ITS OWN
EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS, AND THAT
PURCHASER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE
PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON SAME, AND,
UPON CLOSING, ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT
NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY
NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND
INVESTIGATIONS EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN THIS SECTION 6 AND THE DOCUMENTS DELIVERED AT CLOSING,
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL
SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY “AS IS, WHERE IS,” WITH ALL FAULTS, AND THERE
ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO
OR AFFECTING THE PROPERTY BY SELLER OR ANY THIRD PARTY. THE TERMS
AND CONDITIONS OF THIS SUBSECTION 6.1 SHALL EXPRESSLY SURVIVE
CLOSING AND NOT MERGE THEREIN.
6.1.12 Without limiting Subsection
6.1.11, Purchaser acknowledges that, except as may otherwise be
specifically set forth elsewhere in this Agreement, neither Seller
nor its consultants, brokers or agents have made any
representations or warranties of any kind upon which Purchaser is
relying as to any matters concerning the Property or the Personal
Property, including, but not limited to, the condition of the land
or any improvements comprising the Property, the existence or
non-existence of Hazardous Materials, economic projections or
market studies concerning the Property, any development rights,
taxes, bonds, covenants, conditions and restrictions affecting the
Property, water or water rights, topography, drainage, soil,
subsoil of the Property, the utilities serving the Property or any
zoning or building laws, rules or regulations or Environmental Laws
(as hereinafter defined) affecting the Property. Except as set
forth in this Agreement, Seller makes no representation or warranty
that the Property complies with Title III of the Americans with
Disabilities Act or any fire code or building code. As used herein
“ Environmental Laws ” means all federal, state
and local statutes, codes, regulations, rules, ordinances, orders,
standards, permits, licenses, policies and requirements (including
consent decrees, judicial decisions and administrative orders)
relating to the protection, preservation, remediation or
conservation of the environment or worker health or safety, all as
amended or reauthorized, or as hereafter amended or reauthorized,
including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act (“ CERCLA
”), 42 U.S.C. § 9601, et seq ., the Resource
Conservation Recovery Act of 1976 (“ RCRA ”), 42
U.S.C. § 6901, et seq ., the Emergency Planning and
Community Right-to-Know Act (“ Right-to-Know Act
”), 42 U.S.C. § 11001, et seq ., the Clean Air
Act (“ CAA ”), 42 U.S.C. § 7401, et
seq ., the Federal Water Pollution Control Act (“
Clean Water Act ”), 33 U.S.C. § 1251, et
seq ., the Toxic Substances Control Act (“ TSCA
”), 15 U.S.C § 2601, et seq ., the Safe Drinking
Water Act (“ Safe Drinking Water Act ”), 42
U.S.C. § 300f, et seq ., the
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Atomic Energy Act (“ AEA ”),
42 U.S.C. § 2011, et seq ., the Occupational Safety and
Health Act (“ OSHA ”), 29 U.S.C. § 651,
et seq ., and the Hazardous Materials Transportation Act
(the “ Transportation Act ”), 49 U.S.C. §
1802, et seq . As used herein, “ Hazardous
Materials ” means (1) “hazardous
substances,” as defined by CERCLA; (2) “hazardous
wastes,” as defined by RCRA; (3) any radioactive
material including, without limitation, any source, special nuclear
or by-product material, as defined by AEA; (4) asbestos in any
form or condition; (5) polychlorinated biphenyls; and
(6) any other material, substance or waste to which liability
or standards of conduct may be imposed under any Environmental
Laws
6.1.13 Seller has provided to
Purchaser certain unaudited historical financial information
regarding the Property relating to certain periods of time in which
Seller owned the Property. Seller and Purchaser hereby acknowledge
that such information has been provided to Purchaser at
Purchaser’s request solely as illustrative material. Seller
represents only that such information is the same information
provided to Seller by the property manager and prepared by the
property manager and makes no representation or warranty that such
material is complete or accurate or that Purchaser will achieve
similar financial or other results with respect to the operations
of the Property, it being acknowledged by Purchaser that
Seller’s operation of the Property and allocations of
revenues or expenses may be vastly different than Purchaser may be
able to attain. Purchaser acknowledges that it is a sophisticated
and experienced Purchaser of real estate and further that Purchaser
has relied upon its own investigation and inquiry with respect to
the operation of the Property and releases and covenants not to sue
Seller and the Affiliates of Seller from any liability with respect
to such historical information, unless there has been fraud by
Seller in the preparation of the historical information.
6.1.14 To the extent that Seller may
provide to Purchaser the existing or other reports of third parties
regarding the condition of the Property (“ Existing Third
Party Reports ”), Seller makes no representation or
warranty concerning the accuracy or completeness of any report,
study or investigation regarding the Property which was prepared by
anyone other than Seller itself, including but not limited to the
Due Diligence Items. Furthermore, Purchaser acknowledges that it
will be purchasing the Property with all faults disclosed in the
Existing Third Party Reports delivered to Purchaser.
6.1.15 Notwithstanding anything
contained herein to the contrary, the terms of Subsections 6.1.11
through 6.1.15 (inclusive) shall survive Closing and the delivery
of the Deed and termination of this Agreement in
perpetuity.
Purchaser’s Initials
ME
Seller’s Initials
SDN
All representations and warranties
made in this Agreement by Seller shall survive Closing for a period
of six (6) months after the Closing Date, and upon expiration
thereof shall be of no further force or effect except to the extent
that with respect to any particular alleged breach, Purchaser gives
Seller written notice on or before six (6) months after the
Closing Date of such alleged breach with reasonable detail as to
the nature of such breach and files an action against Seller with
respect thereto within ninety (90) days after the giving of
such notice.
Notwithstanding anything to the
contrary contained in this Subsection 6.1, Seller shall have no
liability to Purchaser for the breach of any representation or
warranty made in this Agreement unless the loss resulting from
Seller’s breach of its representations
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and warranties exceeds, in the aggregate, Twenty
Five Thousand and No/100 Dollars ($25,000.00), in which event
Seller shall be liable for each dollar of damages resulting from
the breach or breaches of its representations and warranties, but
in no event shall Seller’s total liability for any such
breach or breaches exceed, in the aggregate, Five Hundred Thousand
and No/100 Dollars ($500,000.00) (the “ Cap Amount
”). In no event shall either party be liable for, nor shall
either party seek, any consequential, indirect or punitive damages;
and in no event shall any claim for a breach of any representation
or warranty of either party be actionable or payable if the breach
in question results from or is based on a condition, state of facts
or other matter which was known to the non-breaching party prior to
Closing or which was contained in the Due Diligence Material or in
any of Seller’s files, books or records made available to
Purchaser for inspection.
Notwithstanding anything to the
contrary contained herein, if, at Closing, Purchaser shall have
actual knowledge of facts that render any specific warranty, or
representation of Seller, then inaccurate or untrue, with respect
thereto, Purchaser shall be deemed to have waived any post Closing
cause of action or claim for damage against Seller arising out of
Seller’s breach of such representation or
warranty.
6.1.16 Knowledge Defined. All
references in this Agreement to the “knowledge of
Seller” or “to Seller’s knowledge” or any
words of similar import shall refer only to the actual knowledge of
Todd Pope, President of Simpson Property Group (“ SPG
”) an affiliate of Seller charged with the management of the
Property, Venita DeHaven, Senior Vice President of SPG. Seller
represents that such individuals have been actively involved in the
management of Seller’s business in respect of the Property in
the capacities set forth herein on behalf of SPG. The terms
“knowledge of Seller” or “to Seller’s
knowledge” or any words of similar import shall not be
construed, by imputation or otherwise, to refer to the knowledge of
Seller, or any affiliate of Seller, or to any other partner,
beneficial owner, officer, agent, manager, representative or
employee of Seller, or any of their respective affiliates, or to
impose on any of the indivi
