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Exhibit 10.1
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
BETWEEN
EXCEL LEGACY CORPORATION,
A DELAWARE CORPORATION
"SELLER"
AND
J.E.M.B. REALTY CORP.,
A NEW YORK CORPORATION
"PURCHASER"
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS............................................................................................1
ARTICLE II. PURCHASE AND SALE; PURCHASE PRICE; AND ESCROW.........................................................4
Section 2.01 Purchase and Sale of Property..................................................................4
(a) Real Property..........................................................................................4
(b) Personal Property......................................................................................4
(c) Leases.................................................................................................5
Section 2.02 Purchase Price.................................................................................5
(a) Earnest Money Deposit..................................................................................5
Section 2.03 Escrow.........................................................................................5
ARTICLE III. DOCUMENT AND PHYSICAL INSPECTION.....................................................................6
Section 3.01 Delivery of Information........................................................................6
(a) Title Commitment.......................................................................................6
(b) Lease..................................................................................................6
(c) Survey.................................................................................................6
(d) Environmental Report...................................................................................6
(e) Financial Operating History............................................................................6
(f) Certificate of Insurance...............................................................................6
(g) Estoppel Certificates..................................................................................6
Section 3.02 Inspection Period..............................................................................7
Section 3.03 Due Diligence Items Inspection; Cure; Termination..............................................7
Section 3.04 Physical Inspection............................................................................7
Section 3.05 Governmental Approvals.........................................................................7
ARTICLE IV. REPRESENTATIONS AND WARRANTIES........................................................................8
Section 4.01 Representations and Warranties of Seller.......................................................8
(a) Power and Authority....................................................................................8
(b) Organization...........................................................................................8
(c) Liabilities; Litigation................................................................................8
(d) Leases.................................................................................................8
(e) Violation of Laws/Agreements...........................................................................8
(f) Non-foreign Status.....................................................................................8
(g) Environmental Laws.....................................................................................8
Section 4.02 Knowledge of Seller............................................................................9
Section 4.03 Representations and Warranties of Purchaser....................................................9
(a) Organization...........................................................................................9
(b) Power and Authority....................................................................................9
(c) "AS IS"Purchase........................................................................................9
ARTICLE V. COVENANTS AND AGREEMENTS..............................................................................10
Section 5.01 Continuity of Operations......................................................................10
Section 5.02 Maintenance...................................................................................10
Section 5.03 Existing Encumbrances and Liens...............................................................10
Section 5.04 New Encumbrances..............................................................................11
Section 5.05 Easement......................................................................................11
Section 5.06 License Agreement.............................................................................11
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ARTICLE VI. CONDITIONS PRECEDENT TO CLOSING...............................................................11
Section 6.01 Conditions to Obligations of Purchaser........................................................11
(a) Representations and Warranties........................................................................11
(b) Delivery of Items.....................................................................................11
(c) Performance of Covenants, Obligations and Agreements..................................................11
(d) Title Policy..........................................................................................11
Section 6.02 Conditions to Obligations of Seller...........................................................12
(a) Representations and Warranties........................................................................12
(b) Delivery of Items.....................................................................................12
(c) Performance of Covenants, Obligations and Agreements..................................................12
ARTICLE VII. RISK OF LOSS........................................................................................12
Section 7.01 Minor Loss....................................................................................12
Section 7.02 Major Loss....................................................................................12
Section 7.03 Deductibles...................................................................................13
ARTICLE VIII. CLOSING; CLOSING DELIVERIES........................................................................13
Section 8.01 The Closing...................................................................................13
Section 8.02 Seller's Deliveries at Closing................................................................13
(a) Deed(s)...............................................................................................14
(b) Quitclaim Bill of Sale................................................................................14
(c) Assignment and Assumption of Leases and Security Deposits.............................................14
(d) Assignment and Assumption of Licenses.................................................................14
(e) Easement Agreement....................................................................................14
(f) Declaration of Restrictions...........................................................................14
(g) Estoppel Certificate..................................................................................14
(h) Seller's Affidavits...................................................................................14
(i) Certificate of Non-foreign Status.....................................................................14
(j) Closing Statement.....................................................................................14
Section 8.03 Purchaser's Deliveries at Closing.............................................................14
(a) Closing Deposit.......................................................................................14
(b) Assignment and Assumption of Leases and Security Deposits.............................................15
(c) Easement Agreement....................................................................................15
(d) Assignment and Assumption of Licenses.................................................................15
(e) Evidence of Authority.................................................................................15
(f) Closing Statement.....................................................................................15
Section 8.04 Prorations, Costs and Expenses................................................................15
(a) Prorations and Adjustments............................................................................15
(b) Seller's Closing Costs................................................................................16
(c) Purchaser's Closing Costs.............................................................................16
Section 8.05 Failure of Closing Conditions.................................................................16
Section 8.06 Distribution of Funds and Documents...........................................................17
ARTICLE IX. BROKERS..............................................................................................17
Section 9.01 Brokers.......................................................................................17
ARTICLE X. DEFAULT; REMEDIES.....................................................................................18
Section 10.01 Seller's Pre-Closing Default; Purchaser's Remedies............................................18
Section 10.02 Purchaser's Pre-Closing Default; Seller's Remedies............................................18
Section 10.03 Seller's Post-Closing Default; Purchaser's Remedies...........................................19
ARTICLE XI. POST-CLOSING OBLIGATIONS.............................................................................19
Section 11.01 IMAX Theater..................................................................................19
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Section 11.02 Covenant Against Competition..................................................................19
Section 11.03 Contingent Payment............................................................................20
ARTICLE XII. MISCELLANEOUS.......................................................................................20
Section 12.01 Notices.......................................................................................20
(a) Seller's Address......................................................................................20
(b) Purchaser's Address...................................................................................21
(c) Escrow Agent's Address................................................................................21
Section 12.02 1031 Exchange.................................................................................21
Section 12.03 Further Assurances............................................................................21
Section 12.04 Survival of Seller's Representations, Warranties and Covenants................................22
Section 12.05 Possession....................................................................................22
Section 12.06 Termination...................................................................................22
Section 12.07 Assignability.................................................................................23
Section 12.08 Waiver........................................................................................23
Section 12.09 Attorneys Fees and Legal Expenses.............................................................23
Section 12.10 Entire Agreement..............................................................................23
Section 12.11 Section Headings..............................................................................23
Section 12.12 Binding Effect................................................................................23
Section 12.13 Time..........................................................................................23
Section 12.14 Gender and Number.............................................................................23
Section 12.15 Counterpart...................................................................................24
Section 12.16 Applicable Law................................................................................24
Section 12.17 Receipt of Executed Copies....................................................................24
Section 12.18 Exhibits; Section References..................................................................24
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PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
(SHOPPING CENTER)
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (Shopping
Center) (this "Agreement") is made as of the 3rd day of May, 2000, by and
between EXCEL LEGACY CORPORATION, a Delaware corporation, (the "Seller"), and
J.E.M.B. REALTY CORP., a New York corporation (the "Purchaser").
RECITALS
WHEREAS, Seller owns the Property (defined below); and
WHEREAS, Seller desires to sell, convey, assign, transfer and deliver
to Purchaser and Purchaser desires to purchase from Seller the Property on the
terms and conditions contained herein.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION of Ten Dollars ($10.00) and the mutual
covenants, agreements, representations and warranties herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Seller covenant and agree as follows:
ARTICLE I.
DEFINITIONS
In addition to those terms defined elsewhere in this Agreement, the
following terms have the meanings set forth below:
"Acceptable Tax Clearance Certificate" shall have the meaning given to
such term in Section 3.06.
"Agreement" means this Purchase and Sale Agreement and Escrow
Instructions dated as of the 3rd day of May, 2000, by and between Seller and
Purchaser.
"A.L.T.A." means the American Land Title Association.
"Assignment of Leases" shall have the meaning given to such term in
Section 8.02(c).
"Assignment of Licenses" shall have the meaning given to such term in
Section 8.02(d).
"Broker" shall have the meaning given to such term in Article IX
hereof.
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"Business Day" means any calendar day other than a Saturday, Sunday or
other day on which Federal Banks in Arizona or New York are authorized to close.
"Certificate of Insurance" shall have the meaning given to such term in
Section 3.01(g).
"City" means the City of Scottsdale.
"Closing" shall have the meaning given to such term in Section 8.01.
"Closing Date" means the day on which the Closing actually occurs.
"Closing Deadline" means July 5, 2000.
"Closing Deposit" shall have the meaning given to such term in Section
2.02(b).
"Code" means the Internal Revenue Code of 1986, as amended.
"Declaration" shall have the meaning given to such term in Section
8.02(f).
"Deed" shall have the meaning given to such term in Section 8.02(a).
"Earnest Money Deposit" shall have the meaning given to such term in
Section 2.02(a).
"Effective Date" means the later of the date this Agreement is executed
by Seller or Purchaser as such dates appear after each party's signature herein
below.
"Escrow" shall have the meaning given to such term in Section 2.03.
"Escrow Agent" means Lawyers Title Insurance Corporation located at
2425 East Camelback Road, Seventh Floor, Phoenix, Arizona 85016.
"Estoppel Certificate" shall have the meaning given to such term in
Section 3.01(h).
"General Provisions" shall have the meaning given to such term in
Section 2.03.
"Grantee Easement" shall have the meaning given to such term in Section
5.05.
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"Grantee Easement Agreement" shall have the meaning given to such term
in Section 5.05.
"Grantee Easement Parcel" shall have the meaning given to such term in
Section 5.05.
"Grantor Easement" shall have the meaning given to such term in Section
5.05.
"Grantor Easement Agreement" shall have the meaning given to such term
in Section 5.05.
"Grantor Easement Parcel" shall have the meaning given to such term in
Section 5.05.
"IMAX Agreement" shall have the meaning given to such term in Section
11.01.
"Improvements" means all buildings, structures, fixtures and other
improvements located on, over and under the Land or within the Licensed Parcels,
which are owned by Seller, including, but not limited to, the heating,
ventilating, air conditioning, lighting, plumbing, water, electrical, gas and
sewer fixtures, equipment and systems located thereon and the landscaping
thereon.
"Land" means that certain parcel of real property, owned by Seller, and
consisting of approximately seven and seven hundred and ninety-four thousandths
acres (7.794) acres, consisting of two lots, one lot known as the Galleria Site,
located at the northeast corner of Civic Center Boulevard and Fifth Avenue, and
the other lot known as the Fifth Avenue Site, located at the northeast corner of
Fifth Avenue and Scottsdale Road, Scottsdale, County of Maricopa, State of
Arizona, which lots are more particularly described as Parcel No. 1 and Parcel
No. 2, respectively, in EXHIBIT "A."
"Leases" means all leases or other agreements under which persons or
entities rent or occupy space in the Property.
"License Agreement" means that certain License Agreement executed April
4, 1988 originally between the City of Scottsdale, Arizona, an Arizona municipal
corporation, as licensor, and Scottsdale Galleria Limited Partnership, an
Arizona limited partnership, as licensee, which was recorded in the official
records of Maricopa County as Document 89-407772.
"Licensed Parcels" means an air space parcel and a subsurface parcel
above and below a segment of Civic Center Boulevard, located in the City of
Scottsdale, County of Maricopa, State of Arizona, and as more specifically
described as Parcel No. 3 and Parcel No. 4, respectively, in EXHIBIT "A."
"Personal Property" shall have the meaning given to such term in
Section 2.01(b).
"Phase I Audit" shall have the meaning given to such term in Section
3.01(d).
"Property" shall have the meaning given to such term in Section 2.01.
"Purchase Price" shall have the meaning given to such term in Section
2.02.
"Purchaser" means J.E.M.B. Realty Corp., a New York corporation.
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"Real Property" shall have the meaning given to such term in Section
2.01(a).
"Seller" means Excel Legacy Corporation, a Delaware corporation.
"Seller Delivered Items" shall have the meaning given to such term in
Section 3.01.
"Survey" shall have the meaning given to such term in Section 3.01(c).
"Tenants" means the persons and entities renting or occupying space in
the Property under the Leases.
"Termination Notice" shall have the meaning given to such term in
Section 3.03(ii).
"Title Commitment" shall have the meaning given to such term in Section
3.01(a).
"Title Company" means Lawyers Title Insurance Corporation.
"Title Policy" shall have the meaning given to such term in Section
6.01(d).
ARTICLE II.
PURCHASE AND SALE; PURCHASE PRICE; AND ESCROW
Section 2.01 PURCHASE AND SALE OF PROPERTY. Subject to the terms and
conditions set forth in this Agreement, Seller agrees to sell, convey, assign,
transfer and deliver to Purchaser and Purchaser agrees to purchase from Seller
all of the following (collectively, the "Property"):
(a) REAL PROPERTY. The Land, the Improvements and the Grantee
Easement, together with Seller's interest in the Licensed Parcels as the
licensee under the License Agreement and Seller's interest in and to: (i) all
easements, rights-of-way, licenses and other real property interests or water
rights relating or appurtenant to the Land and/or the Licensed Parcels; (ii) all
sewer, septic and waste disposal rights and interests applicable or appurtenant
to and/or used in connection with the operation of the Improvements; and (iii)
any streets, roads, alleys or other public ways adjoining or serving the Land
(collectively, the "Real Property").
(b) PERSONAL PROPERTY. Seller's interest, if any, in and to:
(i) the fixtures, equipment, furnishings and furniture (including office and
maintenance equipment, replacement parts, supplies and tools, if any); and (ii)
all tangible and intangible personalty (including any operating records), in
either case ((i) or (ii)), existing on the Effective Date and located on or
within the Real Property and used in connection with the Improvements, but
excluding the personal property identified in EXHIBIT "G"; and (iii) all
warranties, licenses and other intangible property existing on the Effective
Date and used in the operation of the Improvements, the Land or the Licensed
Parcels, if any (the items described in clauses (i), (ii) and (iii),
collectively, the "Personal Property").
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(c) LEASES. The Leases, together with all unapplied deposits
and other collateral therefor, all guarantees of the obligations of Tenants and
other related agreements by third parties and (except to the extent otherwise
expressly set forth in Section 8.04(a)(i) in respect of claims retained by
Seller for past due rentals) all rentals, security and other deposits,
receivables, reimbursements and other items payable by Tenants and all claims
against Tenants.
Section 2.02 PURCHASE PRICE. The total purchase price for the Property
(the "Purchase Price") shall be Twenty Nine Million ($29,000,000). The Purchase
Price shall be payable at the Closing, as follows:
(a) EARNEST MONEY DEPOSIT. On the date hereof, Purchaser shall
pay Three Million Dollars ($3,000,000) to Seller by wire transfer as earnest
money (the "Earnest Money Deposit"). Purchaser hereby agrees that Purchaser had
sufficient time to conduct a Feasibility Analysis with respect to its
acquisition of the Property, and as such the Earnest Money Deposit shall not be
refundable to Purchaser under any circumstance, except as provided in Section
7.02, Section 10.01 or Section 12.06. The Earnest Money Deposit shall constitute
consideration for Seller's agreement not to enter into an agreement to sell the
Property to any other Person until the Closing Deadline. Purchaser and Seller
acknowledge that Seller's right to retain the Earnest Money Deposit is unrelated
to any breach of this Agreement by Purchaser and is instead a payment of a fee
for Seller's agreement to enter into this Agreement with Purchaser. The Earnest
Money Deposit shall, however, be credited to Purchaser's account if and when the
Closing occurs.
(b) CLOSING DEPOSIT. The balance of the Purchase Price shall
be paid in immediately available funds by Purchaser to Escrow Agent and
distributed by Escrow Agent to Seller at the Closing in accordance with the
terms and conditions set forth in this Agreement (the "Closing Deposit").
Section 2.03 ESCROW. Within three (3) days following the Effective Date
Seller and Purchaser shall deposit a fully executed counterpart original of this
Agreement with Escrow Agent and open an escrow (the "Escrow") with Escrow Agent.
Upon such delivery, this Agreement shall constitute joint escrow instructions to
Escrow Agent, which joint escrow instructions shall supersede all prior escrow
instructions related to the Escrow and shall govern the Escrow. The General
Provisions of Escrow, which are attached as EXHIBIT "B" to this Agreement
("General Provisions"), are hereby incorporated in and made a part of this
Agreement, and Seller and Purchaser hereby expressly agree to the General
Provisions. Additionally, in the event neither Seller nor Purchaser have elected
to terminate this Agreement pursuant to the terms and conditions hereof, Seller
and Purchaser hereby agree to promptly execute and deliver to Escrow Agent any
additional or supplementary escrow instructions as may be reasonably necessary
or convenient to consummate the transaction contemplated by this Agreement;
provided, however, that such instructions shall not supersede this Agreement,
and in all cases this Agreement shall control unless such Seller and Purchaser
agree otherwise.
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ARTICLE III.
DOCUMENT AND PHYSICAL INSPECTION
Section 3.01 DELIVERY OF INFORMATION. To facilitate Purchaser's due
diligence review and investigation of the Property, Purchaser hereby
acknowledges and agrees that Seller had delivered the following documents (the
"Seller Delivered Items") to Purchaser on or before the date hereof:
(a) TITLE COMMITMENT. A commitment for title insurance dated
January 16, 2000, Case No. 00604260, and a proforma issued on April 18, 2000, in
each case prepared and issued by the Title Company, together with a copy of all
documents referred to as exceptions therein (together, the "Title Commitment").
However, Purchaser acknowledges that the title commitment, proforma and other
title information referenced in this paragraph was issued for the benefit of
another party and not Purchaser.
(b) LEASE. A copy of each of the Leases.
(c) SURVEY. A copy of the most recent A.L.T.A. survey of the
Land and the Improvements in Seller's possession prepared by Neil/McGill
Registered Land Surveyor, Job Number 364-00-014, which is dated, March 3, 2000
(the "Survey").
(d) ENVIRONMENTAL REPORT. A copy of the most recent phase I
Environmental Audit with respect to the Property in Seller's possession, which
is a report completed by Building Diagnostics, Ltd. dated May 14, 1996 and an
update thereto report dated February 24, 2000 (the "Phase I Audit").
(e) FINANCIAL OPERATING HISTORY. An estimated financial
operating statement as of September 30, 1999 regarding the Property.
(f) CERTIFICATE OF INSURANCE. A copy of a certificate
evidencing the current property insurance maintained by Seller for the Property
(the "Certificate of Insurance").
(g) ESTOPPEL CERTIFICATES. An estoppel certificate for each
Lease that has been executed by Seller or the respective Tenant (the "Estoppel
Certificates").
Seller has provided the Seller Delivered Items to Purchaser as
an accommodation, and Seller makes no representation or warranty as to their
completeness or accuracy, except that Seller hereby represents and warrants to
Purchaser that to Seller's knowledge, Seller has provided to Purchaser true and
correct copies of the Title Commitment, the Leases, the Survey, the Phase I
Audit and the Certificate of Insurance. Seller shall have no obligation to
supplement or update any of the Seller Delivered Items, except that Seller shall
have the obligation to update the Estoppel Certificates at the Closing with a
new Estoppel Certificate for each Lease, but no statement in any Estoppel
Certificate shall excuse Purchaser's obligations to close nor otherwise affect
Purchaser's obligations hereunder unless the respective Lease has been modified
by Seller.
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Any additional items which Purchaser requires to complete its due diligence and
investigation of the Property are to be procured by Purchaser, at Purchaser's
expense.
Section 3.02 INSPECTION PERIOD. Purchaser acknowledges that Purchaser
has had sufficient time and access to the Property to conduct and complete an
investigation and inspection of all matters pertaining to the Property and
Purchaser's purchase thereof, including, but not limited to, the financial
feasibility of Purchaser's proposed use of the Property, the Seller Delivered
Items and the physical inspection of the Property which physical inspection of
the Property is described in Section 3.04.
Section 3.03 DUE DILIGENCE ITEMS INSPECTION; CURE; TERMINATION.
Purchaser acknowledges that Purchaser is satisfied with all of the Seller
Delivered Items and its review thereof and every other aspect of its due
diligence concerning an investigation or investigation of the Property.
Section 3.04 PHYSICAL INSPECTION. Seller has afforded Purchaser and its
representatives the right to inspect the Property. Purchaser acknowledges that
Purchaser has, at Purchaser's sole cost and expense, conducted all tests and
inspections, including environmental inspections, samplings, surveys, structural
and engineering inspections, and examined all of the maintenance and other
records in Seller's possession relating to the Property, all as and to the
extent deemed appropriate by Purchaser, in its sole discretion, for Purchaser's
acquisition of the Property on an "as-is" basis, except for the express
representations set forth in this Agreement. Purchaser shall be entitled to
undertake additional tests and inspections before the Closing; provided that
Purchaser shall not be entitled to perform any invasive testing on the Property
(including, without limitation, any phase II environmental testing) and
Purchaser shall not undertake any other tests or inspection that will modify or
alter the Property in any way without Seller's prior written consent in each
instance, which consent may be withheld in Seller's sole and absolute
discretion. Purchaser shall indemnify and hold harmless Seller against any
damage caused to the Property, personal injury or any damage caused to a
Tenant's property resulting from any of the activities which Purchaser conducts
or has conducted at the Property as outlined herein and shall immediately pay
for and repair any such damage which Purchaser may cause to the Property, which
indemnity shall survive the Closing.
Section 3.05 GOVERNMENTAL APPROVALS. Purchaser's obligation to proceed
with the Closing is NOT contingent upon receipt of any governmental approval or
subsidy or any other action or failure to act by a governmental agency. However,
if Seller is unable to deliver a tax clearance certificate from the State of
Arizona and the City of Scottsdale confirming Seller's payment of all required
sales and state income taxes (together, the "Acceptable Tax Clearance
Certificates") before the Closing, then Seller hereby indemnifies Purchaser for
claims arising out of Seller's payment of, or failure to pay, its sales and
state income tax obligations until such time as Seller delivers the Acceptable
Tax Clearance Certificates to Purchaser.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.01 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants the following representations and warranties:
(a) POWER AND AUTHORITY. Seller has the requisite power and
authority to enter into and perform the terms of this Agreement. The execution
and delivery of this Agreement and the consummation of the transaction
contemplated hereby have been duly authorized by all necessary parties and no
other proceeding on the part of Seller is necessary in order to permit Seller to
consummate the transaction contemplated hereby. This Agreement has been duly
executed and delivered by Seller and (assuming valid execution and delivery on
the part of Purchaser) is a legal, valid and binding obligation of Seller and
enforceable against it in accordance with the terms hereof.
(b) ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware.
(c) LIABILITIES; LITIGATION. To the best knowledge of Seller,
except for the controversy and dispute regarding the IMAX Agreement and any
other controversy or dispute disclosed on Schedule 4.01, there is no existing or
pending action, suit or proceeding with respect to any aspect of the Property
nor is there any claim that Seller is in default under any agreement (including
the License Agreement), contract of sale, option to purchase or right of first
refusal with respect to any aspect of the Property nor have any such actions,
suits or proceedings been threatened or asserted.
(d) LEASES. To the knowledge of Seller, there are no Leases
other than the Leases that have been delivered to Purchaser. Such Leases are
described on Schedule 4.01(d).
(e) VIOLATION OF LAWS/AGREEMENTS. To the knowledge of Seller,
Seller has received no written notice from any federal, state or local
governmental authority of any claimed violation of laws with respect to the
Property, nor has Seller received any written notice from any such authority of
any claimed violation of the License Agreement.
(f) NON-FOREIGN STATUS. Seller is not a "foreign person"
within the meaning of Section 1445 of the Code.
(g) ENVIRONMENTAL LAWS. To the actual knowledge of Mark T.
Burton, which is based solely on his review of the Phase I Audit, except as
disclosed in the Phase I Audit, the Property does not violate any federal, state
or local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability for standards of conduct
concerning any hazardous, toxic, or dangerous wastes, substances or materials,
as now in effect. Seller has not received any written notice from any
governmental authority that the Property violates any environmental law.
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Section 4.02 KNOWLEDGE OF SELLER. For purposes of this Agreement and
any document delivered at Closing, whenever the phrase "to the best of Seller's
knowledge" or the "knowledge" of Seller or words of similar import are used,
they shall be deemed to refer only to the actual knowledge of Mark T. Burton,
and not any implied, imputed or constructive knowledge, without any requirement
of independent investigation having been made or any duty to investigate.
Section 4.03 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
hereby represents and warrants the following representations and warranties:
(a) ORGANIZATION. Purchaser is a limited liability company
duly organized, validly existing and in good standing under the laws of the
state of Delaware.
(b) POWER AND AUTHORITY. Purchaser now has, and at Closing
will have, the requisite power and authority to enter into and perform the terms
of this Agreement. The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly authorized by
all necessary parties and no other proceeding on the part of Purchaser is
necessary in order to permit Purchaser to consummate the transaction
contemplated hereby. This Agreement has been duly executed and delivered by
Purchaser and (assuming valid execution and delivery on the part of Seller) is a
legal, valid and binding obligation of Purchaser and enforceable against it in
accordance with the terms hereof.
(c) "AS IS" PURCHASE.
(i) Purchaser is deemed to have inspected the
Property and analyzed the feasibility of its acquisition and use, and
specifically agreed to take the Property "AS IS, WHERE IS," subject only to the
express terms and conditions of this Agreement. This "AS IS, WHERE IS" condition
includes, but is not limited to, and Purchaser acknowledges that, except as may
otherwise be specifically set forth elsewhere in this Agreement, neither Seller
nor any of its consultants, brokers or agents have made any other
representations or warranties of any kind upon which Purchaser is relying as to
any matters concerning the Property, including, but not limited to, (i) soils
and geological condition, topography, area and configuration, (ii) availability
of utilities, public access and fire and police protection, (iii) applicable
planning, zoning and subdivision statutes, ordinances, regulations and permits,
(iv) any easement, license or encroachment which is not a matter of public
record, whether or not visible upon inspection of the Property, (v) the physical
condition of the Property, and (vi) any other matter relating to the Property or
to the development, management and operation thereof, including, but not limited
to, hazardous substances or materials, value, feasibility, cost, governmental
regulations, permits and fees, fire hazard, marketing and investment return.
Except with respect to the express representations and warranties of Seller set
forth herein, Purchaser hereby releases Seller from any and all liability in
connection with any claims which Purchaser may have against Seller, and
Purchaser hereby agrees not to assert any claims for damage, loss, compensation,
contribution, cost recovery or otherwise, against Seller, whether in tort,
contract or otherwise, relating directly
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or indirectly to the existence of asbestos or hazardous substances or materials
on, or the environmental conditions of, the Property, or arising under any
environmental law, or relating in any way to the quality of the indoor or
outdoor environment of the Property (including CERCLA), except to the extent
such liability or claim arises from (A) a matter that occurred while Seller
owned the Property or (B) a breach of any express representation or warranty of
Seller herein.. This release is not intended to limit Purchaser's claims and
rights against any of Seller's predecessor owners of the Property. This release
shall survive the Closing.
(ii) To the extent that Seller has provided to
Purchaser any 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 is unaudited and has been
provided to Purchaser at Purchaser's request solely as illustrative material.
Except as may be specifically set forth elsewhere in this Agreement, Seller
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 allocation 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, except as may be specifically set forth
elsewhere in this Agreement, releases Seller from any liability with respect to
such historical financial information.
ARTICLE V.
COVENANTS AND AGREEMENTS
During the period from and after the Effective Date through the
Closing, Seller hereby covenants and agrees as follows:
Section 5.01 CONTINUITY OF OPERATIONS. Seller shall carry on the
business of Seller with respect to the Property in substantially the same manner
as Seller has heretofore conducted such business and will not introduce any new
method of management, operation or accounting with respect to the Property.
Section 5.02 MAINTENANCE. Seller shall maintain the Property in its
present condition, subject to normal wear and tear, and, without limiting the
foregoing, Seller shall not diminish the quality or quantity of maintenance and
upkeep services heretofore provided to the Property.
Section 5.03 EXISTING ENCUMBRANCES AND LIENS. Seller shall pay off, in
full, any and all existing loans secured by any lien or encumbrance on the
Property (other than the Grantee Easement Parcel), or cause such lien or
encumbrance to be released as to the Property (other than the Grantee Easement
Parcel), on or before the Closing Deadline, and no lien or encumbrance on the
Property (other than the Grantee Easement Parcel) shall secure any loan at
Closing. Seller shall pay off, in full, any and all existing loans secured by
any lien or encumbrance on the Grantee Easement Parcel, or cause such lien or
encumbrance to be released as to the Grantee
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Easement Parcel or to be made subordinate to the Grantee Easement, on or before
the Closing Deadline.
Section 5.04 NEW ENCUMBRANCES. Seller shall not grant or permit any new
encumbrances on or about the Property, including, but not limited to, any new
service or other contracts, title matters or leases or amendments thereto,
without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld or delayed; provided, that, Seller may enter into or
modify service contracts that are terminable on thirty (30) days' notice without
Purchaser's prior consent.
Section 5.05 EASEMENT. In connection with the Closing, Seller shall
grant to Purchaser a non-exclusive easement (the "Grantee Easement"), and
Purchaser shall grant to Seller a non-exclusive easement, the ("Grantor
Easement"), for vehicular access and underground utilities pursuant to, and as
more particularity set forth on, an Easement Agreement (the "Easement
Agreement") in the form of EXHIBIT "E.
Section 5.06 LICENSE AGREEMENT. Before the Closing, Seller shall pay
all amounts owed by Seller under the License Agreement.
ARTICLE VI.
CONDITIONS PRECEDENT TO CLOSING
Section 6.01 CONDITIONS TO OBLIGATIONS OF PURCHASER. The Closing, and
Purchaser's obligation to purchase the Property, are subject to the
satisfaction, prior to the Closing Date, of all of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties of Seller (excluding the representation and warranty set forth in
Section 4.01(g) which need not be true and correct) set forth in this Agreement
shall be true and correct in all material respects on the Closing Date as though
made at the Closing.
(b) DELIVERY OF ITEMS. Seller shall have delivered all items
required to be delivered by or in behalf of Seller under Section 8.02.
(c) PERFORMANCE OF COVENANTS, OBLIGATIONS AND AGREEMENTS.
Seller shall have performed all of the covenants, obligations and agreements
under this Agreement to be performed by Seller on or before the Closing.
(d) TITLE POLICY. The Title Company shall be unconditionally
prepared to deliver the Title Company's extended coverage 1992 A.L.T.A. Owner's
Policy of Title Insurance (the "Title Policy") dated as of the Closing Date to
Purchaser, insuring Purchaser in an amount equal to the Purchase Price, and
showing good and marketable fee simple title to the Land, a licensee's interest
in the Licensed Parcels, and a grantee's interest in the Grantee Easement, all
vested in Purchaser free and clear of all covenants, conditions, rights, rights
of way, easements,
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liens, encumbrances, or other matters affecting title to or use of the Land, the
Licensed Parcels, or the Grantee Easement Parcel except:
(i) The customary printed exclusions contained in
Purchaser's Title Policy;
(ii) The exceptions shown in the Title Commitment
(but excluding any liens or encumbrances that secure any loan); and
(iii) All other matters caused or approved by
Purchaser.
Purchaser may waive any of the conditions set forth in this
Section 6.01 by delivery of written notice to Seller and Escrow Agent. Escrow
Agent shall assume that each of the conditions set forth in Section 6.01(a) or
in Section 6.01(c) shall have been satisfied on the Closing Deadline, unless
Purchaser shall have delivered written notice to the contrary to Escrow Agent
before the Closing Deadline.
Section 6.02 CONDITIONS TO OBLIGATIONS OF SELLER. The Closing, and
Seller's obligation to sell, convey, assign, transfer and deliver the Property
to Purchaser, are subject to the satisfaction, prior to or at the Closing Date,
of all of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties of Purchaser set forth in this Agreement shall be true and
correct in all material respects on the Closing Date as though made at the time
of Closing.
(b) DELIVERY OF ITEMS. Purchaser shall have delivered all
items required to be delivered by or in behalf of Purchaser under Section 8.03.
(c) PERFORMANCE OF COVENANTS, OBLIGATIONS AND AGREEMENTS.
Purchaser shall have performed all of the covenants, obligations and agreements
of Purchaser under this Agreement to be performed by Purchaser prior to the
Closing.
Seller may waive any of the conditions set forth in this
Section 6.02 by delivery of written notice thereof to Purchaser and Escrow
Agent. Escrow Agent shall assume that each of the representations and warranties
set forth in Section 6.02(a) or Section 6.02(c) shall have been satisfied on or
before the Closing Deadline, unless Seller shall have delivered written notice
to the contrary to Escrow Agent before the Closing Deadline.
ARTICLE VII.
RISK OF LOSS
Section 7.01 MINOR LOSS. Purchaser shall be bound to purchase the
Property for the full Purchase Price as required by the terms hereof, without
regard to the occurrence or effect of any damage to the Property or destruction
of any of the Improvements or condemnation of any
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portion of the Property; provided, that (a) the cost to repair any such damage
or destruction, or the diminution of value of the remaining Property as a result
of a partial condemnation, is less than or equal to ten percent (10%) of the
Purchase Price, and (b) upon the Closing, there shall be a credit against the
Purchase Price due hereunder equal to the amount of any insurance proceeds or
condemnation awards collected by Seller as a result of any such damage or
destruction or condemnation, less any sums expended by Seller toward the
restoration or repair of the Property, and, if the proceeds or awards have not
been collected as of the Closing, then such proceeds or awards shall be assigned
to Purchaser, except to the extent needed to reimburse Seller for sums expended
to repair or restore the Property.
Section 7.02 MAJOR LOSS. If the amount of damage or destruction or
condemnation, as specified above, exceeds ten percent (10%) of the Purchase
Price, then Purchaser may, at its option to be exercised within five (5) days of
Seller's notice of the occurrence of such damage or destruction or condemnation,
elect to either (a) terminate this Agreement in its entirety, or (b) consummate
the transaction contemplated by this Agreement for the full Purchase Price as
required by the terms hereof. If Purchaser elects to terminate this Agreement,
then upon Seller's receipt of Purchaser's notice within said five (5) day
period, Purchaser shall be entitled to an immediate return of the Earnest Money
Deposit and neither party shall have any further obligation one to the other,
except as otherwise set forth herein. If Purchaser fails to provide such notice
within said five (5) day period, or Purchaser elects to proceed with the
purchase of the Property, then upon the Closing, there shall be a credit against
the Purchase Price due hereunder equal to the amount of any insurance proceeds
or condemnation awards collected by Seller as a result of any such damage or
destruction or condemnation, less any sums expended by Seller toward the
restoration or repair of the Property, and, if the proceeds or awards have not
been collected as of the Closing, then such proceeds or awards shall be assigned
to Purchaser, except to the extent needed to reimburse Seller for sums expended
to repair or restore the Property.
Section 7.03 DEDUCTIBLES. In the event that Purchaser is required to or
elects to purchase the Property following any damage or destruction or
condemnation of the Property pursuant to Section 7.01 or Section 7.02 above,
Seller shall also provide Purchaser with a credit against the Purchase Price in
an amount equal to any deductible.
ARTICLE VIII.
CLOSING; CLOSING DELIVERIES
Section 8.01 THE CLOSING. Escrow Holder shall close the Escrow (the
"Closing") in Phoenix, Arizona, as soon as all conditions of all conditions to
Closing set forth in Article VI have been satisfied or waived in accordance with
Article VI by (a) filing for record the Declaration, followed by the Deed,
followed by the Easement Agreement and such other documents as may be necessary
to procure Purchaser's Title Policy and then (b) delivering funds and documents
as set forth herein.
Section 8.02 SELLER'S DELIVERIES AT CLOSING. Before the Closing
Deadline, Seller shall deliver to Escrow Agent the following items:
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(a) DEED(S). One (1) counterpart original of a deed in the
form of EXHIBIT "I" (the "Deed"), duly executed by Seller and acknowledged
before a notary public.
(b) QUITCLAIM BILL OF SALE. One (1) original of a Quitclaim
Bill of Sale in the form of EXHIBIT "C", duly executed by Seller.
(c) ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS.
Two (2) counterpart originals of the Assignment and Assumption of Leases and
Security Deposits in the form of EXHIBIT "D" (the "Assignment of Leases"), duly
executed by Seller.
(d) ASSIGNMENT AND ASSUMPTION OF LICENSES. Two (2) counterpart
originals of the Assignment and Assumption of Licenses in the form of EXHIBIT
"J" (the "Assignment of Licenses"), duly executed by Seller.
(e) EASEMENT AGREEMENT. Two (2) counterpart originals of the
Easement Agreement, duly executed by Seller and acknowledged before a notary
public.
(f) DECLARATION OF RESTRICTIONS. One (1) original of a
declaration of restrictions in the form of EXHIBIT "L", duly executed by Seller
and acknowledged before a notary public (the "Declaration").
(g) ESTOPPEL CERTIFICATE. The original Estoppel Certificates
together with the updates as required in accordance with the terms of this
Agreement.
(h) SELLER'S AFFIDAVITS. (a) An affidavit declaring that, to
the best of Seller's knowledge, all charges related to the Property, as of the
Closing Date, have been paid current, excluding any charges that may be owed by
the Tenant; and (b) evidence that those acting for the Seller have full
authority to consummate the transaction contemplated by this Agreement, as
modified through Closing.
(i) CERTIFICATE OF NON-FOREIGN STATUS. A certificate that
Seller is not a "foreign person" within the meaning of Section 1445 of the Code.
(j) CLOSING STATEMENT. Seller's duly executed closing
statement.
Section 8.03 PURCHASER'S DELIVERIES AT CLOSING. Before the Closing Date
Deadline, Purchaser shall deliver to Escrow Agent the following items:
(a) CLOSING DEPOSIT. The Closing Deposit pursuant to Section
2.02(b). The Purchase Price shall be credited by the Earnest Money Deposit
previously deposited by Purchaser with Escrow Agent pursuant to Section 2.02(a),
plus or minus any other credits, prorations or charges as set forth in this
Agreement.
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(b) ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS.
Two (2) counterpart originals of the Assignment of Leases, duly executed by
Purchaser.
(c) EASEMENT AGREEMENT. Two (2) counterpart originals of the
Easement Agreement, duly executed by Purchaser and acknowledged before a notary
public.
(d) ASSIGNMENT AND ASSUMPTION OF LICENSES. Two (2) counterpart
originals of the Assignment of Licenses, duly executed by Purchaser.
(e) EVIDENCE OF AUTHORITY. Evidence acceptable to Escrow Agent
that those acting for the Purchaser have full authority to consummate the
transaction contemplated by this Agreement, as modified through Closing
(including, but not limited to, certified copies of the corporate or other
resolutions authorizing the transaction contemplated by this Agreement).
(f) CLOSING STATEMENT. Purchaser's duly executed closing
statement.
Section 8.04 PRORATIONS, COSTS AND EXPENSES.
(a) PRORATIONS AND ADJUSTMENTS. The following adjustments and
prorations shall be made as of the Closing Date. Such adjustments and prorations
shall be made on the basis of a 365-day year, with the Closing Date considered
to be for the benefit of the Purchaser, in accordance with the following
provisions:
(i) RENTS. All rentals, receipts and other revenues
(including, but not limited to, common area maintenance, real property tax,
insurance and other reimbursement revenues, if applicable), as, if and when
received by Seller, which are allocable to the period from and after the Closing
Date shall be credited to Purchaser. After the Closing Date, all payments from
Tenants received by Purchaser and/or Seller shall be applied first to monies due
to Seller covering any obligation for any period prior to the Closing Date,
secondly, if no monies are due to Seller, to Purchaser. Seller, upon receipt of
any payment from a Tenant after the Closing Date, shall promptly remit to
Purchaser Purchaser's appropriate proportionate share of any such payment.
Purchaser, upon receipt of any payment from a Tenant after the Closing Date,
shall promptly remit to Seller Seller's appropriate proportionate share of any
such payment. Seller retains its rights in and to past due rentals and other
amounts.
(ii) EXPENSES. All expenses paid for by Seller for
the month of Closing relating to the operation, management and repair of the
Property shall be prorated between Seller and Purchaser.
(iii) REAL AND PERSONAL PROPERTY TAXES AND
ASSESSMENTS. All general and special real and personal property taxes and
assessments based on the regular tax bill for the current fiscal year, not yet
due and payable (or, if such tax bill has not been issued as of the Closing
Date, the regular tax bill for the fiscal year immediately preceding the current
fiscal year), shall be prorated between Seller and Purchaser at the Closing.
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(iv) SECURITY DEPOSITS. Tenant security deposits and
other refundable tenant deposits under the Leases shall be credited to Purchaser
at Closing.
(v) FINAL ACCOUNTING. Seller and Purchaser
acknowledge and agree that on the Closing Date Seller and Purchaser may not have
sufficient information to conduct and complete a final proration of all items
subject to proration pursuant to this Section 8.04. Accordingly, Seller and
Purchaser agree that as soon as is practicable, after the Closing Date, Seller
and Purchaser shall make a final accounting of all rental charges (including,
but not limited to, percentage rents and tenant reimbursements), expenses, real
property taxes and assessments and other income and charges relating to the
Property. In the event it is determined, pursuant to such final accounting, that
any amounts are due and owing by Seller to Purchaser, then Seller shall cause
such amounts to be paid to Purchaser on or before ten (10) days after such final
accounting is completed. In the event it is determined, pursuant to such final
accounting, that any amounts are due and owing by Purchaser to Seller, then
Purchaser shall cause such amounts to be paid to Seller on or before ten (10)
days after such final accounting is completed.
(b) SELLER'S CLOSING COSTS. At Closing, Seller shall pay (i)
Seller's share of prorations; (ii) the premium for the Title Policy (without any
additional charges for endorsements requested by Purchaser); and (iii) Seller's
attorneys' fees.
(c) PURCHASER'S CLOSING COSTS. At Closing, Purchaser shall pay
(i) all recording costs and documentary transfer or taxes, deed stamps and other
costs payable in connection with the recordation of the Deed and the conveyance
of the Real Property; (ii) the cost of any endorsements to the Title Policy;
(iii) all costs associated with environmental reports or inspections (other than
the Phase I Audit), including any update to the Phase I Audit, (iv) all costs
relating to any update of the Survey; (v) any and all costs relating to
Purchaser's financing; (vi) the Escrow Agent's fees and costs associated with
the Escrow; (vii) Purchaser's share of prorations; and (viii) Purchaser's
attorneys' fees.
Section 8.05 FAILURE OF CLOSING CONDITIONS.
(a) If the Closing does not occur on or before the Closing
Deadline because any of the conditions set forth in Section 6.02 have not been
satisfied, then Seller shall have the right to terminate this Agreement and the
Escrow (provided that Seller is not in default) at any time before the Closing
actually occurs by delivery of written notice thereof to Purchaser and Escrow
Agent, and thereafter Section 12.06 shall govern the rights and obligations of
Seller and Purchaser; PROVIDED, HOWEVER, if Seller is entitled to exercise its
remedies under Section 10.02, then Seller may do so in accordance with Section
10.02 in lieu of proceeding under this Section 8.05.
(b) If the Closing does not occur on or before the Closing
Deadline because any of the conditions set forth in Section 6.01 have not been
satisfied, then Purchaser shall have the right to terminate this Agreement and
the Escrow (provided that Purchaser is not in default)
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at any time before the Closing actually occurs by delivery of written notice
thereof to Seller and Escrow Agent, and thereafter Section 12.06 shall govern
the rights and obligations of Seller and Purchaser; PROVIDED, HOWEVER, if
Purchaser is entitled to exercise its remedies under Section 10.01, then
Purchaser may do so in accordance with Section 10.01 in lieu of proceeding under
this Section 8.05.
Section 8.06 DISTRIBUTION OF FUNDS AND DOCUMENTS.
(a) Escrow Agent shall, at the Closing, disburse (i) to
Seller, or order, the Earnest Money Deposit and the balance of the Purchase
Price, plus or minus any appropriate prorations or other charges, and (ii) to
Purchaser, or order, any excess funds theretofore delivered to Escrow Agent by
Purchaser.
(b) Escrow Agent shall cause the recorder's office to mail the
Deed (and each other document which is herein expressed to be, or by general
usage is, recorded) after recordation, to the grantee, beneficiary or person (i)
acquiring rights under said document, or (ii) for whose benefit said document
was acquired. Escrow Agent shall further provide promptly to each of Purchaser
and Seller conformed copies of all such recorded documents bearing the pertinent
recording data.
(c) Escrow Agent shall, at the Closing, deliver by United
States mail (or hold for personal pickup, if requested) each non-recorded
document received hereunder by Escrow Agent, to the payee or person (i)
acquiring rights under said document, or (ii) for whose benefit said document
was acquired.
ARTICLE IX.
BROKERS
Section 9.01 BROKERS. Seller and Purchaser each specifically
acknowledge that there are no real estate commissions due in relation to the
transaction contemplated by this Agreement, except that Purchaser and Seller
shall each pay to Larry Russo (the "Broker") a brokerage commission equal to One
Hundred Forty-Five Thousand Dollars ($145,000) each through Escrow at Closing in
the event the Closing occurs according to the terms and conditions hereof. Each
party hereto agrees to indemnify, defend and hold harmless the other party from
and against any and all losses, liens, claims, judgments, liabilities, costs,
expenses or damages (including reasonable attorneys' fees and court costs) of
any kind or character arising out of or resulting from any agreement,
arrangement or understanding alleged to have been made by such party or on its
behalf with any broker or finder in connection with this Agreement or the
transaction contemplated hereby.
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ARTICLE X.
DEFAULT; REMEDIES
Section 10.01 SELLER'S PRE-CLOSING DEFAULT; PURCHASER'S REMEDIES. If
Seller materially defaults in performing any of Seller's obligations under this
Agreement for any reason, or if any of the representations or warranties of
Seller herein are determined to be untrue at Closing in any material respect,
Purchaser may, as its sole and exclusive remedies, elect to either: (a) if
Seller fails to cure such default or breach of its representation and warranties
within three (3) Business Days after Purchaser delivers written notice of such
default or breach to Seller, terminate this Agreement and receive a full and
immediate refund of the Earnest Money Deposit and neither Seller nor Purchaser
shall have any further rights, obligations or liabilities under this Agreement,
except as otherwise set forth herein; or (b) diligently seek to enforce the
equitable remedy of specific performance of this Agreement; PROVIDED, HOWEVER,
if Purchaser diligently seeks to enforce the equitable remedy of specific
performance of this Agreement, but, because Seller sells the Property to a BONA
FIDE purchaser or Seller files a petition in bankruptcy, Purchaser is unable to
obtain such equitable remedy, then Purchaser's remedies under this Agreement
shall not be limited by this Section 10.01.
Section 10.02 PURCHASER'S PRE-CLOSING DEFAULT; SELLER'S REMEDIES. If
Purchaser defaults in the closing of the transaction contemplated by this
Agreement or in performing any of Purchaser's covenants or obligations
hereunder, other than due to Seller's default or cause, or if any of the
representations or warranties of Purchaser herein are determined to have been
untrue when made in any material respect, then Seller may, as its sole and
exclusive right and remedy, terminate this Agreement and retain the Earnest
Money Deposit and all interest earned thereon as liquidated damages, and
thereafter neither party shall have any further rights, obligations or
liabilities hereunder, except as otherwise set forth in this Agreement.
PURCHASER, BY ITS INITIALS FOLLOWING THIS SECTION, AND SELLER, BY ITS INITIALS
FOLLOWING THIS SECTION, AGREE THAT IF THE ESCROW FAILS TO CLOSE DUE TO
PURCHASER'S DEFAULT UNDER THIS AGREEMENT, THEN THE EARNEST MONEY DEPOSIT AND ALL
INTEREST EARNED THEREON SHALL CONSTITUTE LIQUIDATED DAMAGES TO SELLER, THE
PAYMENT OF WHICH SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY
FOR SUCH DEFAULT. SELLER AND PURCHASER AGREE THAT THE AFORESAID SUM IS A
REASONABLE AMOUNT FOR LIQUIDATED DAMAGES UNDER THE CIRCUMSTANCES EXISTING AT THE
TIME THIS AGREEMENT IS ENTERED INTO AND IS NOT INTENDED TO BE A PENALTY FOR
PURCHASER'S DEFAULT.
SELLER: PURCHASER:
------------- -------------
As material consideration for each party's agreement to the provisions
of this Section 10.02, each party hereby agrees to waive any and all rights
whatsoever to contest the validity of this Section 10.02 for any reason
whatsoever, including, but not limited to, that such provision
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was unreasonable under circumstances existing at the time this Agreement was
made. The provisions of Section 10.02 are specifically intended to survive the
Closing.
Section 10.03 SELLER'S POST-CLOSING DEFAULT; PURCHASER'S REMEDIES.
Notwithstanding anything to the contrary contained in this Agreement or in any
document executed in connection herewith, if the Closing shall have occurred,
then the aggregate liability of Seller arising pursuant to or in connection with
the representations, warranties, indemnification undertakings (if any),
covenants or other obligations (whether express or implied) of Seller under this
Agreement or any document executed in connection herewith (other than the
Easement Agreement) shall not exceed One Million Five Hundred Thousand Dollars
($1,500,000).
ARTICLE XI.
POST-CLOSING OBLIGATIONS
Section 11.01 IMAX THEATER. Notwithstanding any other provision of this
Agreement, with respect to the Agreement dated February 20, 1990 between the
City and the Galleria Limited Partnership (the "IMAX Agreement"):
(a) Seller and Purchaser each shall have the right to contest,
at its sole cost, whether the IMAX Agreement encumbers the Property or is
otherwise a continuing obligation of Seller and/or Purchaser. Purchaser and
Seller shall cooperate to attempt to achieve a negotiated resolution with the
City whereby the IMAX Agreement is terminated (either concurrently with or
within sixty (60) days following the Closing) in consideration for (i)
Purchaser's donation of the space that formerly was used as the IMAX theater to
the City or another civic or cultural entity approved by the City, and (ii)
Seller's payment to the City of cash in an amount equal to fifty percent (50%)
of the amount that is due and unpaid under the IMAX Agreement as of the Closing,
minus One Hundred Seventy Thousand Dollars ($170,000).
(b) If Purchaser and Seller are unable to achieve a negotiated
resolution with the City whereby the IMAX Agreement is terminated, but it is
subsequently established, whether by litigation or agreement executed by Seller
and Purchaser, that the IMAX Agreement does encumber the Property or is
otherwise a continuing obligation of Seller and/or Purchaser, then Seller shall
be obligated to pay all amounts due to the City under the IMAX Agreement as of
the Closing, plus any additional amounts due to the City of Scottsdale under the
IMAX Agreement following the Closing, until such time as the One Million Eight
Hundred Thousand Dollars ($1,800,000) "minimum amount" described in section 3 of
the IMAX Agreement has been paid (including payments made by Seller's
predecessors), and Purchaser shall be obligated to pay all additional amounts,
if any, due to the City under the IMAX Agreement.
Section 11.02 COVENANT AGAINST COMPETITION. Seller, or one or more
affiliates of Seller, intend to develop one or more movie theaters in the
vicinity of the Property. To avoid competing with Seller's contemplated
development, Purchaser shall neither (a) develop or lease more than 62,000 net
rentable square feet of retail space within the Real Property for the first ten
(10) years after the Closing, nor (b) develop or lease more than seven (7) movie
theater screens
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within the Real Property, nor (c) allow the portion of the Property that
formerly was used as an IMAX theater to be used as any type of movie theater,
including an IMAX theater nor (d) develop or lease more than 150,000 net
rentable square feet of retail space within the Real Property at any time nor
permit more than 150,000 net rentable square feet within the Property to be used
as retail space at any time within twenty (20) years after the Closing Date. If
Purchaser elects to develop up to seven (7) movie theater screens in the
Project, then those movie theater screens must be operated, if at all,
exclusively as venues for Deep Discount Movie Showings, for a period of ten (10)
years following the Closing (the "Deep Discount Movie Showings Restriction").
Purchaser acknowledges that Seller would not be willing to sell the Property to
Purchaser if Purchaser were unwilling to agree to the foregoing covenant against
competition, and that Seller would not have an adequate remedy in damages if
Purchaser were to breach the foregoing covenant against competition. Seller may
specifically enforce the foregoing covenant against competition. As used herein,
"Deep Discount Movie Showings" shall mean, in any year, movie showings, (a) the
admission charges for which do not exceed twenty-five percent (25%) of the
median undiscounted admission charge for movies in Scottsdale, Arizona, for the
previous year or (b) which are under the management and auspices of a
governmental subdivision, on a non-commercial basis and for student audiences
only. Except with respect to the Deep Discount Movie Showings Restriction, as
described above, the foregoing obligations shall survive for twenty (20) years.
Section 11.03 CONTINGENT PAYMENT. Within ten (10) days after any
Qualifying Sale is effective, Purchaser shall pay to Seller an amount of cash
equal to any Net Proceeds of such Qualifying Sale. Any Qualifying Sale must be
in cash.
ARTICLE XII.
MISCELLANEOUS
Section 12.01 NOTICES. Any notice, request, demand or other
communication required or permitted hereunder shall be given in writing and sent
by (a) personal delivery; (b) overnight nationwide delivery service with proof
of delivery; (c) registered or certified mail, return receipt requested, postage
prepaid; or (d) facsimile transmission and addressed to the parties at the
addresses indicated below (or to any other address designated by Seller or
Purchaser in writing and given in the manner set forth herein).
(a) SELLER'S ADDRESS. If to Seller, at the following address:
Excel Legacy Corporation
801 South 500 East, Suite 201
West Bountiful, Utah 84010
Attention: Mark T. Burton
Telephone (801) 294-2400
Facsimile (801) 294-7479
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(b) PURCHASER'S ADDRESS. If to Purchaser, at the following
address:
J.E.M.B. Realty Corp.
150 Broadway
New York, New York 10038
Attention: Morris Bailey
Telephone: (212) 608-0780
Facsimile: (212) 964-7149
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Jonathan L. Mechanic
Telephone: (212) 859-8222
Facsimile: (212) 859-4000
(c) ESCROW AGENT'S ADDRESS. If to Escrow Agent, at the
following address:
Lawyers Title Insurance Company
2425 East Camelback Road, Seventh Floor
Phoenix, Arizona 85016
Attention: Judy Sorenson
Any notice or communication given in accordance with the
foregoing shall be deemed to have been given as of the date of the confirmed
receipt of the facsimile, or as of the date of delivery (if hand or courier
delivered), or as of three (3) days after mailing (if mailed registered or
certified, return receipt requested, postage prepaid).
Section 12.02 1031 EXCHANGE. Purchaser hereby agrees to cooperate with
Seller at no cost to Purchaser in accommodating Seller in conducting a 1031
Tax-Free Exchange relating to this transaction in the event Seller elects to
conduct said exchange. Purchaser will neither be required to take title to any
property other than the Property nor be required to incur any liability with
respect to any other property. Seller shall indemnify, defend and hold harmless
Purchaser from any claim, lawsuit, action, damage, loss, liability, cost or
expense that arises out of any such 1031 exchange.
Section 12.03 FURTHER ASSURANCES. Seller and Purchaser agree that each
party will, at any time prior to, at, or after the Closing, duly execute and
deliver to the other party any additional documents and instruments which either
Purchaser or Seller reasonably determine are necessary in connection with the
consummation of this Agreement and the failure of either party to demand such
document or instrument at or before the Closing shall not alleviate the
obligation of the other party to execute and deliver the same at any time upon
request of Purchaser or Seller.
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Section 12.04 SURVIVAL OF SELLER'S REPRESENTATIONS, WARRANTIES AND
COVENANTS. All of the representations, warranties and covenants of Seller set
forth in this Agreement (except as set forth in Article XI of this Agreement)
shall survive the Closing for a period not to exceed one hundred eighty (180)
calendar days from and after the Closing Date. Any claim by Purchaser that any
representation or warranty by Seller set forth in this Agreement shall have been
untrue or incorrect in any respect or that Seller shall have breached any
covenant of Seller set forth in this Agreement (except as set forth in Article
XI of this Agreement) in any respect shall be barred and waived unless Purchaser
commences litigation with respect to such claim on or before the end of such one
hundred eighty (180) day period.
Section 12.05 POSSESSION. Purchaser shall be entitled to full
possession of the Property at Closing, subject to the rights of Tenants under
the Leases.
Section 12.06 TERMINATION.
(a) In the event this Agreement is terminated by Purchaser or
Seller according to its rights hereunder and neither Purchaser nor Seller is
then in default, this Agreement shall terminate, Seller and Purchaser shall have
no further rights, obligations or liabilities one to the other hereunder, except
as provided in Section 9.01 and Section 12.06(b), and except that Purchaser's
obligations under Section 3.04 and Section 12.09 shall survive such termination,
and the Earnest Money Deposit shall be immediately returned to Purchaser, unless
such termination results from a breach by Purchaser. If Purchaser or Seller is
then in default hereunder, then Purchaser and Seller shall have their respective
rights or obligations under Article X, in addition to any rights or obligations
under Section 12.06(b) or Section 12.09.
(b) If this Agreement terminates before the Closing for any
reason other than a default hereunder by Seller, including as a result of
Purchaser's termination of this Agreement pursuant to Section 3.03, then (i)
Purchaser shall deliver to Seller any documents and materials related to the
Property previously delivered by Seller to Purchaser (including the Seller
Delivered Items and any copies or reproductions of such documents and
materials), and (ii) Purchaser shall deliver to Seller, and shall be deemed to
have assigned to Seller, without the execution of any additional documents, but
without any representation or warranty as to the ability of Seller to rely
thereon, or as to the completeness or accuracy thereof, all of Purchaser's
right, title and interest in all surveys, studies, reports, governmental
applications, permits, maps, plans, specifications and other documents in
Purchaser's possession or that it has made or contracted to be made respecting
the Property, including without limitation all engineering reports, soil tests,
seismic studies, environmental reports, grading, flood control and drainage
plans, design renderings, surveys, market analyses, feasibility studies, and all
correspondence with governmental agencies and their personnel concerning the
same. The foregoing assignment of rights by Purchaser shall in no way be
construed to place upon Seller any obligation or liability to any party
preparing or otherwise working on said documents, and Purchaser shall take such
actions and make such payments as may be necessary to deliver clear title to
such documents to Seller, and to preclude
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any claim of any nature against Seller or the Property for any sums owing on
account of the preparation or making of such documents.
Section 12.07 ASSIGNABILITY. Purchaser may assign its rights under this
Agreement and the Escrow without Seller's consent in connection with the Closing
to any entity at least twenty-five percent (25%) of the equity interests in
which are owned by Purchaser or Joseph Jerome, Raymond Chalme, Morris Bailey,
their spouses or any trust for the benefit of them or their children. Except as
provided in the foregoing sentence, Purchaser may not assign this Agreement
without the prior written consent of Seller. If Purchaser assigns this Agreement
with Seller's written consent, Purchaser shall remain obligated to perform all
of the terms and conditions of this Agreement as set forth herein.
Section 12.08 WAIVER. Failure by Purchaser or Seller to insist upon or
enforce any of their rights shall not constitute a waiver thereof and nothing
shall constitute a waiver of Purchaser's rights to insist upon strict compliance
with the provision hereof. Either party hereto may waive the benefit of any
provision or condition for its benefit contained in this Agreement.
Section 12.09 ATTORNEYS FEES AND LEGAL EXPENSES. In the event of any
litigation between the parties hereto, concerning any breach of any of the
covenants or agreements contained herein, or any material inaccuracies in any of
the representations or warranties on the part of either party arising out of
this Agreement, the prevailing party shall be entitled to reasonable attorneys
fees and legal expenses, including, but not limited to, court costs.
Section 12.10 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the parties hereto, and supersedes any prior understandings or
written or oral agreements between the parties concerning the Property. This
Agreement cannot be varied, modified, amended, altered or terminated, except by
written agreement executed by the parties.
Section 12.11 SECTION HEADINGS. The section headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several sections hereof.
Section 12.12 BINDING EFFECT. The terms and provisions of this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, legal representatives, successors and assigns.
Section 12.13 TIME. Time is of the essence in the performance of each
party's obligations, under this Agreement. Any reference to any time in this
Agreement shall be a reference to Mountain Standard Time.
Section 12.14 GENDER AND NUMBER. Within this Agreement words of any
gender shall be held and construed to include any other gender and words in the
singular number shall be held and construed to include the plural, unless the
context otherwise requires.
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Section 12.15 COUNTERPART. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same instrument.
Section 12.16 APPLICABLE LAW. This Agreement shall be governed by and
construed under the laws of the state in which the Property is located.
Section 12.17 RECEIPT OF EXECUTED COPIES. This Agreement may be
terminated by Seller in its entirety, at the option of Seller, if this Agreement
is not executed by Purchaser with a copy being received by facsimile by Seller
by no later than one (1) day after this Agreement has been executed by Seller.
In addition, this Agreement may be terminated in its entirety, at the option of
Seller, if an original fully executed copy of the Agreement is not received by
Seller by no later than three (3) days after the date this Agreement has been
executed by Seller.
Section 12.18 EXHIBITS; SECTION REFERENCES. Except as otherwise set
forth in this Agreement: (a) all references to "Exhibits" shall be references to
the Exhibits attached to this Agreement, each of which shall be deemed
incorporated into this Agreement and (b) all references in this Agreement to
specific Sections shall be to Sections of this Agreement.
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<PAGE>
IN WITNESS, WHEREOF, Purchaser and Seller have executed this Agreement
on the dates set forth below.
SELLER:
EXCEL LEGACY CORPORATION, A DELAWARE CORPORATION
By: /s/ Mark T. Burton
-------------------------------------------
Mark T. Burton
Its: Senior Vice President
-------------------------------------------
Date: 05/04/00
-------------------------------------------
PURCHASER:
J.E.M.B. REALTY CORP., A NEW YORK CORPORATION
By: /s/ Joseph Jerome
-------------------------------------------
Its: President
-------------------------------------------
Date: 05/04/00
-------------------------------------------
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AMENDMENT NO. 1 TO PURCHASE AND
SALE AGREEMENT AND ESCROW INSTRUCTIONS
This AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT AND ESCROW
instructions is made as of the 4th day of May, 2000, by and between EXCEL LEGACY
CORPORATION, a Delaware corporation, (the "Seller"), and J.E.M.B. REALTY CORP.,
a New York corporation (the "Purchaser").
RECITALS
WHEREAS, Purchaser and Seller are the parties to that certain Purchase
and Sale Agreement and Escrow Instructions made as of May 3, 2000 (the "Original
Agreement")
WHEREAS, Purchase and Seller desire to amend the Original Agreement in
certain respects.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION of Ten Dollars ($10.00) and the mutual
covenants, agreements, representations and warranties herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Seller covenant and agree as follows:
1. Section 2.02(a) of the Original Agreement is deleted and replaced
with a new Section 2.02(a) as follows:
(a) EARNEST MONEY DEPOSIT. On May 4, 2000, Purchaser
shall pay One Million Five Hundred Thousand Dollars ($1,500,000) to
Seller by wire transfer as earnest money (the "Initial Deposit"). 0n or
before June 3, 2000, Purchase shall pay an additional One Million Five
Hundred Thousand Dollars ($1,500,000) to Seller by wire transfer as
additional earnest money (together with the Initial Deposit, the
"Earnest Money Deposit") Purchaser hereby agrees that Purchaser had
sufficient time to conduct a Feasibility Analysis with respect to its
acquisition of the Property, and as such the Earnest Money Deposit
shall not be refundable to Purchaser under any circumstance. except as
provided in Section 7.02, Section 10.01 or Section 12.06. The Earnest
Money Deposit shall constitute consideration for Seller's agreement not
to enter into an agreement to sell the Property to any other Person
until the Closing Deadline. Purchaser and Seller acknowledge that
Seller's right to retain the Earnest Money Deposit is unrelated to any
breach of this Agreement by Purchaser and is instead a payment of fee
for Seller's agreement to enter into this Agreement with Purchaser. The
Earnest Money Deposit shall, however, be credited to Purchaser's
account if and when the Closing occurs.
2. Section 3.0 1(a), (1,), (c) and (d) of the Original Agreement are
hereby deleted and replaced with new Sections 3.01(a), (b), (c) and (d) as
follows:
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(a) TITLE COMMITMENT. A commitment for title
insurance dated January 16, 2000, Case No. 00604260, and a pro forma
issued on April 18, 2000, in each case prepared and issued by the Title
Company, together with a copy of all documents referred to as
exceptions therein (together, the "Title Commitment"). However,
Purchaser acknowledges that the title commitment, pro forma and other
title information referenced in this paragraph was issued for the
benefit of another party and not Purchaser.
(b) LEASE. A copy of each of the Leases.
(c) SURVEY. A copy of the most recent A.L.T.A. survey
of the Land and the Improvements in Seller's possession prepared by
Nei.1/McGill Registered Land Surveyor, Job Number 364-00-014, which is
dated, March 3, 2000 (the "Survey").
(d) ENVIRONMENTAL REPORT. A copy of the most recent
phase I Environmental Audit with respect to the Property in Seller's
possession, which is a report completed by Building Diagnostics, Ltd.
dated May 14, 1996 and an update thereto dated February 24, 2000 (the
"Phase I Audit").
3. Schedules 4.01 and 4.0 1(d) of the Original Agreement are hereby
replaced with the new Schedules 4.01 and the new Schedule 4.01(d) which are
attached hereto and incorporated herein by this reference.
4. PURCHASE PRICE. Section 2.02 is amended by deleting "Twenty Nine
Million ($29,000,000)" from the second line thereof and inserting "Twenty Eight
Million Seven Hundred Two Fifty ($28,750,000)" in lieu thereof.
5. BROKERS. Section 9.01 is amended by deleting the first sentence
thereof and inserting the following:
"Seller and Purchaser each specifically acknowledge that there are no
real estate commissions due in relation to the transaction contemplated by this
Agreement, except that Purchaser shall pay to Larry Russo (the "Broker") a
brokerage Escrow at Closing in the event the Closing occurs according to the
terms and conditions hereof."
6. COMPETITION. Section 11.02(a) is hereby amended by (a) deleting the
phrase "62,000 net rentable square feet of retail space" and inserting the
phrase "100,000 net rentable square feet of retail space" in lieu thereof and
(b) inserting at the end of said section "nor (e) permit any single user to use
more than 5,000 net rentable square feet of retail space located on the portion
of the Property located north of Civic Center Boulevard for retail purposes".
7. Section 11.03 is hereby deleted in its entirety.
8. Paragraph 1 of the Declaration is hereby amended by (a) deleting the
phrase "62,000 net rentable square feet of retail space" and inserting the
phrase "100,000 net rentable square feet of retail space" in lieu thereof in the
second and third lines thereof and (b) inserting the following sentence after
the first sentence thereof: "No single user shall be permitted to use more than
5,000 net rentable square feet of retail space located on the portion of the
Property
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located north of Civic Center Boulevard for retail purposes."
9. Except as provided above, the Original Agreement shall remain in
full force and effect.
10. This Amendment shall be governed by and interpreted in accordance
with the internal laws of the State of Arizona.
11. This Agreement may be executed in one or more counterparts, all of
which, taken together, shall constitute one and the same agreement.
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IN WITNESS, WHEREOF, Purchaser and Seller have executed this Agreement
on the dates set forth below.
SELLER:
EXCEL LEGACY CORPORATION, A
DELAWARE CORPORATION
By /s/ Mark T. Burton
----------------------------------------
Mark T. Burton
Its: Senior Vice President
-----------------------------------
Date: 05/04/00
-----------------------------------
PURCHASER
J.EMB. REALTY CORP., A NEW YORK
CORPORATION
By: /s/ Joseph Jerome
------------------------------------
Its: President
------------------------------------
Date: 05/04/00
------------------------------------
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