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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) November 7, 1996
(October 17, 1996)
GLIMCHER REALTY TRUST
(Exact Name of Registrant as Specified in Charter)
Maryland 1-12482 31-1390518
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
20 South Third Street, Columbus, Ohio 43215
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (614) 621-9000
(Former Name or Former Address, if Changed Since Last Report)
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<PAGE>
Item 2. Acquisition or Disposition of Assets.
On October 17, 1996, Glimcher Properties Limited Partnership, a
Delaware limited partnership (the "Operating Partnership") of which
Glimcher Realty Trust (the "Company") owns, directly or indirectly, an
aggregate of an 89.4% interest as a limited partner and as the sole
stockholder of the corporate general partner of the Operating
Partnership, acquired 22 community shopping centers from Retail Property
Investors, Inc. The 22 Wal-mart anchored properties (the "Properties")
are located in nine central and eastern states and contain an aggregate
of approximately 4.4 million square feet of retail space. The purchase
price of the Properties was $197 million, which was the estimated value
of the Properties and was paid (i) by the assumption by the Operating
Partnership of debt of approximately $117.1 million secured by first
mortgage liens on 16 of the Properties having a weighted average
effective interest rate of approximately 8.4% with debt maturities of
6.0% in 1997, 30.0% in 1999, 35.0% in 2000 and 29.0% between 2001 and
2010, and (ii) approximately $79.9 million in cash. The cash portion of
the purchase price was obtained by the Company by borrowing (i)
approximately $34.4 million from The Huntington National Bank and Key
Bank pursuant to a loan which is secured by first mortgage liens on six
of the Properties and matures on October 17, 1997, unless the Operating
Partnership elects to exercise its option to renew such financing for an
additional year, and pursuant to which interest is payable at the rate of
LIBOR plus 175 basis points, and (ii) approximately $45.5 million under
the Operating Partnership's credit facility with The Huntington National
Bank and Key Bank, as agents, which currently bears interest at a rate of
LIBOR plus 175 basis points per annum. Additional information regarding
the Properties is set forth below.
Year Square
Property Location Built Footage Occupancy
- ----------- ---------- ----- ------- ---------
Applewood Village Fremont, Ohio 1989 140,039 49.4%
Artesian Square Martinsville, Indiana 1989 177,428 98.0%
Audubon Village Henderson, Kentucky 1989 124,592 91.2%
Aviation Plaza Oshkosh, Wisconsin 1989 174,715 98.3%
Barren River Plaza Glascow, Kentucky 1990 234,795 99.4%
College Plaza Bluefield, Virginia 1992 178,431 100.0%
Cross Creek Plaza Beaufort,
South Carolina 1989 237,765 96.4%
Crossing Meadows Onalaska, Wisconsin 1990 233,984 100.0%
Crossroads Centre Knoxville, Tennessee 1989 242,230 98.4%
Cumberland Crossing LaFollete, Tennessee 1990 144,734 100.0%
Cypress Bay Plaza Morehead City,
North Carolina 1989 259,558 96.9%
East Pointe Plaza Columbia,
South Carolina 1989 279,261 99.1%
<PAGE>
Year Square
Property Location Built Footage Occupancy
- --------- -------- ------ ------- ---------
Franklin Square Spartanburg,
South Carolina 1987 237,062 100.0%
Lexington Parkway Lexington,
Plaza North Carolina 1990 210,190 96.2%
Logan Plaza Russellville, Kentucky 1988 114,748 96.3%
Marion Towne Center Marion, South Carolina 1992 156,543 95.7%
Piedmont Plaza Greenwood,
South Carolina 1989 249,052 99.4%
Roane County Plaza Rockwood, Tennessee 1990 160,198 100.0%
Southside Plaza Sanford,
North Carolina 1991 172,293 100.0%
Sycamore Square Ashland City,
Tennessee 1988 93,304 89.2%
Village Plaza Augusta, Georgia 1988 490,970 99.7%
Walterboro Walterboro,
South Carolina 1989 132,130 97.0%
4,444,022
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Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(a) and (b) Financial Statements of Businesses Acquired and
Pro Forma Financial Information.
The purchase price of the Properties exceeds ten percent
(10%) of the assets of the Company. Audited financial statements
relative to the Properties and pro forma condensed financial information
reflecting the acquisition of the Properties will be filed by the Company
under cover of Form 8-K/A as soon as practicable, but not later than
December 16, 1996.
(c) Exhibits.
10 Purchase and Sale Agreement by and among the Company and
Retail Property Investors, Inc., PaineWebber Retail
Property Investments, Ltd., PaineWebber Retail Property
Investments Joint Venture, PaineWebber College Plaza,
L.P., and PaineWebber Marion Towne, L.P., dated as of
March 11, 1996, as amended.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Date: November 7, 1996
GLIMCHER REALTY TRUST
By: /s/ Terry Schreiner
--------------------------
Terry Schreiner,
Senior Vice President and
Chief Financial Officer
<PAGE>
GLIMCHER REALTY TRUST
INDEX TO EXHIBITS
EXHIBIT PAGE
10 Purchase and Sale Agreement by and among the Company and Retail
Property Investors, Inc., PaineWebber Retail Property Investments,
Ltd., PaineWebber Retail Property Investments Joint Venture,
PaineWebber College Plaza, L.P., and PaineWebber Marion Towne, L.P.,
dated as of March 11, 1996, as amended.<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND AMONG
GLIMCHER REALTY TRUST, as Purchaser
and
RETAIL PROPERTY INVESTORS, INC.,
PAINEWEBBER RETAIL PROPERTY INVESTMENTS, LTD.,
PAINEWEBBER RETAIL PROPERTY INVESTMENTS JOINT VENTURE,
PAINEWEBBER COLLEGE PLAZA, L.P. and
PAINEWEBBER MARION TOWNE, L.P., collectively, as Sellers
<PAGE>
TABLE OF CONTENTS
1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
3. Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . .9
3.1 Purchase Price.. . . . . . . . . . . . . . . . . . . . . . . .9
3.2 Allocation of Purchase Price . . . . . . . . . . . . . . . . 10
4. Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.1 Title Insurance. . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Other Information. . . . . . . . . . . . . . . . . . . . . . 10
4.3 Surveys. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.4 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.5 Notice of Material Concern . . . . . . . . . . . . . . . . . 12
4.6 Failure to Deliver Notice of Material Concern. . . . . . . . 13
5. Deposit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1 Immediately Available Funds. . . . . . . . . . . . . . . . . 13
5.2 Letter of Credit . . . . . . . . . . . . . . . . . . . . . . 13
5.3 Failure to Make Deposit. . . . . . . . . . . . . . . . . . . 13
6. Representations and Warranties of Sellers.. . . . . . . . . . . . 14
6.1 Representations and Warranties . . . . . . . . . . . . . . . 14
6.2 Survival of Representations and Warranties . . . . . . . . . 14
6.3 Indemnification by PaineWebber . . . . . . . . . . . . . . . 14
6.4 Limitations on Indemnification by PaineWebber. . . . . . . . 15
6.5 Notice; Defense of Claims. . . . . . . . . . . . . . . . . . 15
7. Representations and Warranties of Purchaser.. . . . . . . . . . . 16
7.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . 16
7.2 Due Authorization. . . . . . . . . . . . . . . . . . . . . . 16
7.3 REIT Status. . . . . . . . . . . . . . . . . . . . . . . . . 16
7.4 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.5 Restoration of Properties. . . . . . . . . . . . . . . . . . 17
7.6 No Conflict. . . . . . . . . . . . . . . . . . . . . . . . . 17
7.7 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . 18
8. Covenants of Purchaser and Sellers. . . . . . . . . . . . . . . . 18
8.1 Sellers' Operation of the Properties . . . . . . . . . . . . 18
8.2 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3 Existing Indebtedness. . . . . . . . . . . . . . . . . . . . 20
8.4 Sellers' Agreement Regarding Acquisition Proposals . . . . . 20
8.5 Shareholder Meeting and Proxy. . . . . . . . . . . . . . . . 22
8.6 Estoppel Certificates. . . . . . . . . . . . . . . . . . . . 23
8.7 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 23
8.8 Confidentiality Agreement. . . . . . . . . . . . . . . . . . 24
9. Escrow Closing, Deliveries, Disclaimer of Warranties. . . . . . . 24
9.1 Escrow Closing . . . . . . . . . . . . . . . . . . . . . . . 24
9.2 Sellers' Deliveries at the Escrow Closing. . . . . . . . . . 25
9.3 Purchaser's Deliveries at the Escrow Closing . . . . . . . . 27
9.4 Escrow.. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.5 Disclaimer of Warranties; Limitation of Liability. . . . . . 28
10. Conditions to Obligations to Close into Escrow. . . . . . . . . . 28
10.1 Conditions to Obligation of Purchaser. . . . . . . . . . . . 28
10.2 Conditions to Obligations of Sellers . . . . . . . . . . . . 29
10.3 Conditions to Release from Escrow. . . . . . . . . . . . . . 30
11. Defaults and Remedies . . . . . . . . . . . . . . . . . . . . . . 31
11.1 Sellers' Default . . . . . . . . . . . . . . . . . . . . . . 31
11.2 Purchaser's Default. . . . . . . . . . . . . . . . . . . . . 31
12. Termination and Effect of Termination . . . . . . . . . . . . . . 32
12.1 Termination Prior to Escrow Closing . . . . . . . . . . 32
12.2 Effect of Termination prior to Escrow Closing. . . . . . . . 33
12.3 Termination After Escrow Closing . . . . . . . . . . . . . . 34
12.4 Effect of Termination After Escrow Closing . . . . . . . . . 34
12.5 Liquidated Damages . . . . . . . . . . . . . . . . . . . . . 36
13. Prorations and Adjustments at Escrow Closing. . . . . . . . . . . 38
13.1 Taxes and Assessments. . . . . . . . . . . . . . . . . . . . 38
13.2 Rents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
13.3 Security Deposits. . . . . . . . . . . . . . . . . . . . . . 40
13.4 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . 40
13.5 Other Income and Expenses. . . . . . . . . . . . . . . . . . 40
13.6 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . 40
13.7 Payments during Escrow Period. . . . . . . . . . . . . . . . 40
13.8 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
13.9 Post Closing Adjustment. . . . . . . . . . . . . . . . . . . 41
14. Fees and Commissions. . . . . . . . . . . . . . . . . . . . . . . 41
15. Survival of Provisions. . . . . . . . . . . . . . . . . . . . . . 42
16. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
17. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . 43
18. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . 43
19. Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
20. No Third-Party Beneficiaries. . . . . . . . . . . . . . . . . . . 43
21. No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 44
22. Deposit or Escrowed Purchase Price. . . . . . . . . . . . . . . . 44
23. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 44
24. Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
25. Regulatory Filings. . . . . . . . . . . . . . . . . . . . . . . . 45
26. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
27. Liability of Sellers. . . . . . . . . . . . . . . . . . . . . . . 46
EXHIBITS
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EXHIBIT A-1 - List of Improvements
EXHIBIT A-2 - Legal Description of Tracts
EXHIBIT B - Form of Letter of Credit
EXHIBIT C - Deposit Escrow Agreement
EXHIBIT D - Closing Escrow Agreement
EXHIBIT E - Management Agreement
EXHIBIT F - Form of Purchaser's Tenant Estoppel Certificate
SCHEDULES
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SCHEDULE 2a - Assumed Indebtedness
SCHEDULE 2o(m) - Option Parcel Reimbursement and Adjustment
SCHEDULE 2p - Prepaid Indebtedness
SCHEDULE 3.2 - Allocation of Purchase Price
SCHEDULE 4.2 - Locations; Index of Sellers' Supplemental Information
Deliveries
SCHEDULE 4.5 - Known Conditions
SCHEDULE 6.1 - Sellers' Representations and Warranties
SCHEDULE 6.7 - Leases
SCHEDULE 6.8 - Schedule of Tenant Defaults and Landlord Work
SCHEDULE 6.9 - Initial Rent Rolls
SCHEDULE 6.10 - Leasing Commissions
SCHEDULE 6.12 - Service Contracts
SCHEDULE 6.17 - Environmental Matters
SCHEDULE 6.18 - Schedule of Insurance Coverages
SCHEDULE 6.19 - Litigation
SCHEDULE 6.26 - Material Guaranties and Warranties
SCHEDULE 6.27a - Existing Indebtedness Documents
SCHEDULE 6.27b - Outstanding Principal Balance
SCHEDULE 6.32 - Option Agreements
SCHEDULE 8.2 - Leasing Guidelines
SCHEDULE 8.3a - Assumed Indebtedness which may be modified
SCHEDULE 10.1 - Estoppel Carve Out
SCHEDULE 24(a) - Form of Initial RPI Press Release
SCHEDULE 24(b) - Form of Initial Glimcher Press Release
<PAGE>
PURCHASE AND SALE AGREEMENT
This Agreement dated as of March ___, 1996 (this "Agreement") is by
and among GLIMCHER REALTY TRUST, a Maryland real estate investment trust
("Purchaser"), RETAIL PROPERTY INVESTORS, INC., a Virginia corporation
("RPI"), PAINEWEBBER RETAIL PROPERTY INVESTMENTS, LTD., a Texas limited
partnership ("PWRPI"), PAINEWEBBER RETAIL PROPERTY INVESTMENTS JOINT
VENTURE, a Texas joint venture ("JV"), PAINEWEBBER COLLEGE PLAZA, L.P., a
Texas limited partnership ("College"), and PAINEWEBBER MARION TOWNE,
L.P., a Texas limited partnership ("Marion"). RPI, PWRPI, JV, College
and Marion are referred to herein individually as "Seller" and
collectively as "Sellers."
1. Introduction. Sellers are the owners of the Properties, as
hereinafter defined. Purchaser has responded to a request from Lehman,
as hereinafter defined, for offers to acquire all of the real estate
assets of Sellers. Purchaser has been selected as the entity with which
Sellers will enter into a definitive purchase agreement. Sellers desire
to enter into this Agreement to sell the Properties to Purchaser on the
terms and conditions herein contained and Purchaser desires to enter into
this Agreement to acquire the Properties from Sellers on the terms and
conditions herein contained. Upon execution and delivery of this
Agreement and making the Deposit, as hereinafter defined, the parties
hereto shall each act in good faith and deal fairly with each other with
respect to the matters contained in this Agreement.
2. Definitions. In addition to other terms defined herein, the
following terms have the following meanings when used in this Agreement:
"Acquisition Proposal." "Acquisition Proposal" shall have the
meaning set forth in Section 8.4(a).
"Additional Rents." "Additional Rents" shall have the meaning
set forth in Section 13.2.
"Agreement." "Agreement" shall have the meaning set forth in
the first paragraph of this Agreement.
"Anchor Tenants." "Anchor Tenants" shall refer to any tenant
under a Lease in any Project who rents and occupies at least 20,000
square feet of gross leasable area.
"Assumed Indebtedness." "Assumed Indebtedness" shall
refer to the then current outstanding principal balance of the
indebtedness under those loans made to PWRPI, JV, College,
Marion or RPI set forth on Schedule 2a attached hereto, as the
same may be updated and amended pursuant to the terms and
conditions of this Agreement.
"Basic Rents." "Basic Rents" shall have the meaning set forth
in Section 13.2.
"Bear." "Bear" shall refer to Bear Stearns & Co., Inc.
"Business Day." "Business Day" shall mean any day other than a
Saturday, Sunday, or other day on which commercial banks in New York
are not open for business.
"Closing." "Closing" shall mean the adjustment of the Escrowed
Purchase Price, the release to Sellers out of escrow of the Escrowed
Purchase Price (as adjusted) and the delivery of the closing
documents out of escrow as set forth in the Closing Escrow
Agreement.
"Closing Date." "Closing Date" shall mean the date on which the
Escrowed Purchase Price is adjusted under Section 13.8 below and
released out of escrow to Sellers and the closing documents are
delivered as set forth in the Closing Escrow Agreement.
"Closing Escrow Agent." "Closing Escrow Agent" shall mean
Lawyers Title Insurance Corporation and any substitute or successor
appointed under the terms and conditions of the Closing Escrow
Agreement.
"Closing Escrow Agreement." "Closing Escrow Agreement" shall
have the meaning set forth in Section 9.1.
"Code." "Code" shall refer to the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
thereunder.
"College." "College" shall have the meaning set forth in the
first paragraph of this Agreement.
"Confidentiality Agreement." "Confidentiality Agreement" shall
refer to the confidentiality agreement by and between RPI and
Glimcher Properties Limited Partnership, dated May 11, 1995.
"Deposit." "Deposit" shall have the meaning set forth in
Section 3.1.
"Deposit Escrow Agent." "Deposit Escrow Agent" shall mean
Lawyers Title Insurance Corporation and any substitute or successor
appointed under the terms and conditions of the Deposit Escrow
Agreement.
"Deposit Escrow Agreement." "Deposit Escrow Agreement" shall
have the meaning set forth in Section 5.1.
"Effective Date." "Effective Date" of this Agreement
shall mean the date first above written.
"Escrow Closing." "Escrow Closing" shall have the meaning set
forth in Section 9.1.
"Escrow Closing Date." "Escrow Closing Date" shall have the
meaning set forth in Section 9.1.
"Escrowed Purchase Price." "Escrowed Purchase Price" shall have
the meaning set forth in Section 3.1.
"Estoppel Certificates." "Estoppel Certificates" shall have
the meaning set forth in Section 8.6.
"Exchange Act." "Exchange Act" shall refer to the Securities
Exchange Act of 1934, as amended from time to time, and the rules
and regulations promulgated thereunder.
"Existing Indebtedness." "Existing Indebtedness" shall
mean the Prepaid Indebtedness and the Assumed Indebtedness.
"Existing Indebtedness Documents." "Existing Indebtedness
Documents" shall mean all instruments evidencing or securing
Existing Indebtedness.
"Final Rent Rolls." "Final Rent Rolls" shall have the meaning
set forth in Section 9.2.
"Improvements." "Improvements" shall refer to the
shopping centers listed by name on Exhibit A-1 attached hereto.
The Improvements are located on the Tracts.
"Indemnification Cut-off Date." "Indemnification Cut-off Date"
shall have the meaning set forth in Section 6.4.
"Initial Rent Rolls." "Initial Rent Rolls" shall have the
meaning set forth in Section 4.2.
"IRS." "IRS" shall have the meaning set forth in Section 12.5.
"JV." "JV" shall have the meaning set forth in the first
paragraph of this Agreement.
"Leases." "Leases" shall mean all written leases (including
amendments thereto) (i) referenced on Schedule 6.7, (ii) entered
into pursuant to Section 8.2, and/or (iii) entered into pursuant to
and in accordance with the terms and conditions contained in the
Management Agreement.
"Leasing Costs." "Leasing Costs" shall have the meaning set
forth in Section 8.2.
"Leasing Guidelines." "Leasing Guidelines" shall have the
meaning set forth in Section 8.2.
"Legal Counsel." "Legal Counsel" shall have the meaning set
forth in Section 8.4.
"Lehman." "Lehman" shall refer to Lehman Brothers, Inc.
"Liquidated Damage Amount." "Liquidated Damage Amount" shall
have the meaning set forth in Section 12.5.
"Management Agreement." "Management Agreement" shall refer to
the Exclusive Commercial Property Management Agreement by and among
Sellers, Purchaser and Manager in the form attached hereto as
Exhibit E.
"Manager." "Manager" shall refer to Purchaser's affiliate,
Glimcher Properties Limited Partnership.
"Marion." "Marion" shall have the meaning set forth in
the first paragraph of this Agreement.
"Material Concern." A "Material Concern" means a concern
of Purchaser (other than any matter listed on Schedule 4.5
hereof) with regard to material engineering, structural,
environmental and/or title matters concerning the Properties
and/or material facts concerning the Assumed Indebtedness, the
Leases, tenancies or rents and/or prepayment premiums on
Prepaid Indebtedness.
"Notice of Material Concern." "Notice of Material Concern"
shall have the meaning set forth in Section 4.5.
"Option Agreements." "Option Agreements" shall mean the
agreements listed on Schedule 6.32.
"Option Parcels." "Option Parcels" shall have the meaning set
forth in clause (m) of the definition of Other Interests.
"Other Interests." "Other Interests" shall mean the rights,
title and interests of Sellers in and to the following:
(a) Any catalogs, booklets, manuals, files, logs,
records, correspondence, purchaser prospect lists, tenant lists,
tenant prospect lists and other mailing lists, sales brochures and
materials, leasing brochures and materials, advertisement materials
and other items, including without limitation, title information,
soil, engineering and environmental inspections, studies and
reports, and similar inspections with respect to the sale,
management, leasing, promotion, ownership, maintenance, use,
occupancy and operation of the Projects;
(b) Any name, trade name, trademark, service mark or logo
(and all goodwill associated therewith) by which the Projects or any
part thereof may be known or which may be used in connection with
the Projects, and all other fictitious names used on the date hereof
or which Sellers have the right to use in connection with the
ownership, use, occupancy or operation of the Projects
(collectively, "Names") together with all registrations, if any, for
such Names;
(c) All tenant security deposits held by Sellers and any
bank or other depository accounts relating thereto, except to the
extent that (i) the same have been forfeited or applied against
rents prior to the Effective Date or (ii) the terms of the Lease in
question require that such security deposit be applied against rents
for a period following the date of this Agreement (but prior to the
Escrow Closing), other than on account of the default of the tenant
thereunder;
(d) Any bond, guaranty, warranty or repair agreements
existing and outstanding on the Effective Date (and any additional
bond, guaranty, warranty or repair agreements existing and
outstanding at the date of the Closing) concerning the Projects or
any part thereof, including without limitation, any bond, guaranty
or warranty (including, any fidelity bonds) relating to
construction, use, maintenance, occupancy or operation of the
Improvements and the Personalty;
(e) Any licenses, permits, franchise approvals and
certificates of any governmental authorities required or used in or
relating to the ownership, use, maintenance, occupancy or operation
of any part of the Projects;
(f) Any surveys of, and plans or specifications relating
to, the Projects;
(g) Any unrecorded utility agreements including any
deposits made thereunder;
(h) The Service Contracts (as hereinafter defined);
(i) The Leases;
(j) Any unpaid awards for any taking by condemnation or
any damage to the Projects by reason of a change of grade of any
street or highway, or any award paid to any Seller and not used or
applied by Sellers to the restoration of the Projects; provided,
however, that in the event of a temporary taking occurring between
the Effective Date and the Escrow Closing Date, the Other Interests
shall not include that portion of the award for such taking which is
attributable to the period prior to the Escrow Closing Date;
(k) Any unpaid proceeds for any unrepaired damage to the
Projects by reason of fire or other casualty occurring after the
Effective Date, or any proceeds paid to Sellers in connection with
any fire or other casualty occurring after the Effective Date and
not used or applied by Sellers to the restoration of the Projects;
(l) Any development rights with respect to the Projects;
and
(m) Any options or expansion parcels which exist on the
Closing Date, if any (the "Option Parcels"), subject to the
adjustments and reimbursements described on Schedule 2o(m) attached
hereto.
"Outside Date." "Outside Date" shall mean October 31, 1996;
provided, however, that Sellers and Purchaser may, by mutual
agreement, extend the Outside Date to a date not later than December
31, 1996.
"PaineWebber." "PaineWebber" shall mean PaineWebber
Incorporated.
"Past Due Rent." "Past Due Rent" shall have the meaning set
forth in Section 13.2.
"Percentage Rents." "Percentage Rents" shall have the meaning
set forth in Section 13.2.
"Pearson." "Pearson" shall mean Pearson Partners, Inc.
"Permitted Exceptions." "Permitted Exceptions" shall mean
all liens and encumbrances and other matters of record or shown
on the Survey (as hereinafter defined) for each Project as of
the expiration of the Study Period, unless objected to by
Purchaser in writing prior to the lapse of the Study Period
pursuant to Section 4.5.
"Personalty." "Personalty" shall mean the rights, title
and interests of Sellers in and to all fixtures, machinery,
equipment, furnishings, appliances, supplies, operational
records and other personal property owned by any Seller and
used in connection with the operation of a Project, including,
without limitation, all fittings, heating, air cooling, air
conditioning, freezing, lighting, laundry, incinerating, and
power equipment and apparatus; all engines, pipes, pumps,
tanks, motors, conduits, switch boards, plumbing, lifting,
cleaning, fire prevention, fire extinguishing and refrigerating
equipment and apparatus; all furnaces, oil burners or units
thereof; all appliances, vacuum cleaning systems, awnings,
screens, storm doors and windows, cabinets, partitions, ducts
and compressors, furniture and furnishings, hot water heaters,
garbage receptacles and containers above and below ground,
janitorial supplies, landscaping, materials, lawn mowers,
tools, vehicles and articles of a nature similar to the
foregoing; and all future additions to or substitutions for the
foregoing, or any part thereof, between the Effective Date and
the Closing Date and all other personal property upon, on the
Effective Date, or thereafter placed on any Project which is
used in connection with the operation of such Project and owned
by any Seller and all warranties and guarantees to and right of
action of Sellers therefor, if any.
"Prepaid Indebtedness." "Prepaid Indebtedness" shall refer to
the then current outstanding principal balance of the indebtedness
under those loans made to PWRPI, JV, College, Marion or RPI set
forth on Schedule 2p attached hereto, as the same may be updated and
amended pursuant to the terms and conditions of this Agreement.
"Projects." "Projects" refers to the Tracts and the
Improvements.
"Properties." "Properties" means, collectively, the
Projects, the Personalty and the Other Interests.
"Proxy Statement." "Proxy Statement" means the Proxy
Statement to be delivered to the shareholders of RPI for the
purpose of soliciting their approval of this Agreement and the
consummation of the transactions contemplated herein.
"Purchase Price." The aggregate purchase price of all
Properties, as more particularly described in Section 3.1.
"Purchaser." "Purchaser" shall have the meaning set forth in
the first paragraph of this Agreement.
"Purchaser Indemnified Party" and "Purchaser Indemnified
Parties." "Purchaser Indemnified Party" and "Purchaser Indemnified
Parties" shall have the meanings set forth in Section 6.3.
"Purchaser's Expenses." "Purchaser's Expenses" shall have
the meaning set forth in Section 11.1.
"Purchaser's Title Commitments." "Purchaser's Title
Commitments" shall have the meaning set forth in Section 4.4.
"PW Response." "PW Response" shall have the meaning set forth
in Section 6.5.
"PWRPI." "PWRPI" shall have the meaning set forth in the
first paragraph of this Agreement.
"Qualifying Income." "Qualifying Income" shall have the
meaning set forth in Section 12.5.
"RPI." "RPI" shall have the meaning set forth in the
first paragraph of this Agreement.
"SEC." "SEC" shall have the meaning set forth in Section 8.5.
"Seller" and "Sellers." "Seller" and "Sellers" shall have the
meanings set forth in the first paragraph of this Agreement.
"Sellers' Due Diligence Deliveries." "Sellers' Due
Diligence Deliveries" shall have the meaning set forth in
Section 4.2.
"Sellers' Expenses." "Sellers' Expenses" shall have the
meaning set forth in Section 11.2.
"Sellers' Title Documents." "Sellers' Title Documents"
shall have the meaning set forth in Section 4.1.
"Service Contracts." "Service Contracts" shall mean all
contracts, agreements and the like referenced on Schedule 6.12
attached hereto.
"Study Period." "Study Period" shall refer to the period
commencing on the Effective Date and ending at 5:00 P.M.,
E.S.T., on the sixtieth (60th) day after the Effective Date;
provided, however, that in the event the sixtieth (60th) day
after the Effective Date is not a Business Day, at 5:00 P.M.
E.S.T. on the next succeeding Business Day.
"Surveys." "Surveys" shall have the meaning set forth in
Section 4.3.
"Tracts." "Tracts" shall mean the tracts of real property
described in Exhibit A-2 attached hereto, together with all
easements, privileges, right-of-ways and appurtenances
pertaining to or accruing to the benefit of the Properties.
3. Purchase and Sale. Subject to and on the terms and conditions
set forth herein, Purchaser agrees to purchase from Sellers, and each
Seller agrees to sell to Purchaser, fee simple title in and to the
Properties owned by such Seller, subject only to the Permitted
Exceptions, the Leases, the Management Agreement and any encumbrance
created by or consented to in writing by Purchaser.
3.1 Purchase Price. The Purchase Price for the Properties
shall be Two Hundred Three Million Dollars ($203,000,000.00), which,
subject to the terms and conditions hereinafter set forth, shall be
paid as follows:
(a) On the Effective Date, Purchaser shall deliver to
Deposit Escrow Agent either (i) Two Million Dollars ($2,000,000.00)
in immediately available federal funds to be held in escrow in
accordance with the provisions of Section 5 hereof or (ii) an
irrevocable, standby letter of credit issued by The Huntington
National Bank (or such other financial institution as may be
acceptable to Sellers, in their sole and absolute discretion) with
an expiration date not earlier than the ninety (90) days after the
Effective Date; provided, however, that Purchaser shall be obligated
to extend the expiration thereof or make the deposit referenced in
clause (i) above if this Agreement has not been terminated and the
Escrow Closing has not occurred, in the face amount of Two Million
Dollars ($2,000,000.00), together with any other documents required
to be delivered under the Deposit Escrow Agreement, which letter of
credit shall be in the form attached hereto as Exhibit B (the
"Deposit"), to be held in escrow in accordance with the provisions
of Section 5 hereof.
(b) On the Escrow Closing Date, Purchaser shall deliver
to Closing Escrow Agent, at Purchaser's option, by wire transfer of
immediately available federal funds and/or in the form of an
irrevocable, standby letter of credit issued by The Huntington
National Bank (or such other financial institution as may be
acceptable to Sellers, in their sole and absolute discretion) with
an expiration date not earlier than the Outside Date that in the
aggregate are an amount (the "Escrowed Purchase Price") equal to the
Purchase Price less any portion of the Deposit made in immediately
available federal funds less the then outstanding principal balance
of the Assumed Indebtedness plus all of Purchaser's closing costs
described in Section 13.6 below. On the Escrow Closing Date,
Purchaser shall be entitled to receive from Deposit Escrow Agent any
letter of credit delivered as part of the Deposit.
(c) As a material part of the Purchase Price, at the
Closing, Purchaser shall (A) acquire title to the Properties subject
to the Assumed Indebtedness and (B) assume and agree to pay (x) all
prepayment premiums on Prepaid Indebtedness and (y) such other costs
and expenses referenced in Section 13.6 below that are to be paid by
Purchaser.
(d) The Escrowed Purchase Price shall, upon satisfaction
or waiver of the conditions precedent to release from escrow listed
in Section 10.3 hereof and in the Closing Escrow Agreement, be
adjusted as described in Section 13.8 below and shall be disbursed
in accordance with the terms and conditions of the Closing Escrow
Agreement.
(e) Time is of the essence of each and every provision of
this Agreement.
3.2 Allocation of Purchase Price. The Purchase Price (and all
other capitalized costs and other amounts treated as purchase price
for federal income tax purposes) shall be allocated among the
Properties as agreed by the parties and set forth in Schedule 3.2.
The values used to allocate the Purchase Price among the Properties
have been agreed upon solely for federal, state and local tax
reporting purposes. The Purchaser and Sellers agree to file IRS
Form 8594 and any replacement or supplement thereto, based upon such
agreed upon allocation.
4. Due Diligence.
4.1 Title Insurance. To the extent Sellers have not already
delivered the same to Purchaser, Sellers shall deliver to Purchaser
copies of its existing policies of title insurance (together with
copies of all documents listed as exceptions therein, to the extent
copies of such documents are in Sellers' possession) (collectively,
"Sellers' Title Documents") within five (5) Business Days after the
Effective Date. Sellers shall have no obligation to obtain title
updates or commitments for Purchaser.
4.2 Other Information. To the extent Sellers have not already
delivered the same to Purchaser, Sellers shall deliver, or make
available to Purchaser in the locations indicated on Schedule 4.2,
no later than five (5) Business Days after the Effective Date, the
following (collectively, along with Sellers' Title Documents and the
Surveys, "Sellers' Due Diligence Deliveries"):
(a) Rent rolls for the Projects dated no earlier
than January 31, 1996 (the "Initial Rent Rolls") together with
a list of delinquencies and a detailed aging report, each dated
as of the date of the applicable Initial Rent Roll;
(b) Copies of any plans and specifications in
Sellers' possession for the Improvements or portions thereof,
which are delivered to Purchaser without recourse to, or
warranty by, Sellers of any kind, other than any representation
or warranty contained in Section 6 below;
(c) Copies of Service Contracts in Sellers'
possession, including any modifications or amendments thereto;
(d) Copies of all (i) annual operating statements
for the Projects for fiscal years ending August 31, 1993,
August 31, 1994 and August 31, 1995 and (ii) monthly and
quarterly operating statements for the Projects from August 31,
1994 through January 31, 1996;
(e) Copies of the ad valorem and personal property
tax statements for the Properties for calendar or fiscal year
1995 and, to the extent Sellers have copies in their
possession, calendar or fiscal years 1993, 1994 and 1996;
(f) Copies of certificates of insurance or policies
evidencing the property insurance maintained by Sellers
covering the Properties;
(g) Copies of all Existing Indebtedness Documents;
(h) Copies of all utility bills for the Projects
(including gas, water and electricity) for the twelve (12) full
calendar months immediately preceding the Effective Date;
(i) Copies of all Leases and Option Agreements;
(j) Copies of any environmental, engineering and/or
other property inspection reports concerning the Properties in
Sellers' possession, which reports are delivered to Purchaser
without recourse to, or warranty by, Sellers of any kind, other
than any representation or warranty contained in Section 6
below;
(k) Copies of all organizational documents of
Sellers;
(l) Copies of all reports filed by Sellers with the
SEC since August 31, 1995;
(m) Copies of documents relating to any litigation
with respect to one or more of the Projects to which any Seller
is a party; and
(n) Such other documents and instruments set forth on
Schedule 4.2.
In no event shall the failure by Sellers to have delivered or
made available every item of Sellers' Due Diligence Deliveries to
Purchaser be deemed to toll the Study Period or to be a default of
Sellers hereunder. Purchaser hereby agrees to coordinate requests
and/or questions regarding Sellers' Due Diligence Deliveries by
making written requests of Mark Dunne or such other authorized
individual which Sellers notify Purchaser of in writing. Purchaser
shall not be authorized to contact Sellers' agents, employees,
attorneys or managers without making arrangements through Sellers'
authorized representative. Sellers shall cooperate with Purchaser
by promptly providing or making available in the locations set forth
on Schedule 4.2 any omitted Sellers' Due Diligence Deliveries and
other information regarding the Projects which is brought to
Sellers' attention or discovered by Sellers after the Effective
Date.
4.3 Surveys. To the extent Sellers have not already delivered
the same to Purchaser, within five (5) Business Days after the
Effective Date, Sellers shall provide Purchaser with copies of
Sellers' most current as-built surveys of the Projects (the
"Surveys"), which are delivered without recourse to, or warranty by,
Sellers of any kind, other than any representation or warranty
contained in Section 6 below.
4.4 Inspection. From the Effective Date to the earlier to
occur of (i) any termination of this Agreement or (ii) the
expiration of the Study Period, Purchaser shall use diligent efforts
to inspect the Properties during normal business hours upon two (2)
Business Days' prior written notice to Sellers, review Sellers' Due
Diligence Deliveries and review any of Sellers' books, records and
general correspondence relating to the Properties and such other
information made available to Purchaser; provided, however, that, in
carrying out any such inspection of the Properties, Purchaser (i)
shall obtain Sellers' prior written consent to perform physical
testing at the Properties (which consent shall not be unreasonably
withheld or delayed) and (ii) shall not unreasonably interfere with
the rights of any tenant or other occupant of the Properties in
violation of the Lease or other agreement by which such tenant or
occupant occupies space in the Properties. Purchaser shall restore
the Properties to their original condition following any inspection
or testing and shall commit no act, nor permit any agent of
Purchaser to commit an act, that would impair or void any
manufacturer's warranty. In exercising Purchaser's diligence,
Purchaser shall obtain title commitments for each of the Projects
from one or more nationally recognized title insurance companies
("Purchaser's Title Commitments"). Sellers acknowledge that
Purchaser may, upon reasonable prior written notice, interview the
tenants of the Properties. Sellers acknowledge that Purchaser may
communicate with the holders of the Existing Indebtedness regarding
the prepayment or assumption thereof, as the case may be. Sellers
agree, upon reasonable prior written notice, to use their reasonable
efforts to make available to Purchaser the managers of the
Properties and such other persons employed by or under contract with
any Seller who have knowledge of the operation of the Properties.
Sellers shall be entitled to have a representative present during
all inspection and testing of the Properties and, at Sellers'
option, present at or included in interviews with tenants conducted
at any location other than the Properties, with managers of the
Properties, with holders of the Existing Indebtedness or with such
other persons who have knowledge of the operation of the Properties.
4.5 Notice of Material Concern. In the event Purchaser's
diligence reveals matters which are of a Material Concern to
Purchaser, Purchaser shall notify Sellers in writing within five (5)
Business Days of discovery of the matter of Material Concern, and in
any event, Purchaser shall notify Sellers in writing on or before
the expiration of the Study Period ("Notice of Material Concern").
In the event that Purchaser does not obtain updated surveys on the
Projects during the Study Period, then in no event shall any title
company's failure to delete survey-related exceptions be deemed to
be a Material Concern to Purchaser. If Sellers receive a Notice of
Material Concern prior to the expiration of the Study Period and
Sellers and Purchaser are unable to agree, prior to the Escrow
Closing Date, on resolution of such matters or if Sellers receive a
Notice of Material Concern after the expiration of the Study Period
but prior to the Escrow Closing Date with respect to any Material
Concern which arises after the expiration of the Study Period and
Sellers and Purchaser are unable to agree, prior to the Escrow
Closing Date, on resolution of such matter, this Agreement
automatically shall terminate and Purchaser promptly shall receive
the Deposit, together with all interest earned thereon, if any, and
neither party shall have any further recourse to the other under
this Agreement. Purchaser hereby acknowledges that it has taken the
matters described on Schedule 4.5 into account in the Purchase
Price, and therefore, the matters listed on Schedule 4.5 attached
hereto are not matters of Material Concern for which a valid Notice
of Material Concern may be given. Any Notice of Material Concern
that relates to any matters listed on Schedule 4.5 shall be deemed
to be void with respect to matters listed on Schedule 4.5.
4.6 Failure to Deliver Notice of Material Concern. Subject to
the provisions of Sections 11 and 12 below, in the event there is no
Notice of Material Concern given or if given, the matters listed
therein relate solely to matters listed on Schedule 4.5 or are
resolved by mutual agreement of Sellers and Purchaser, the Deposit
shall be and become nonrefundable and all of Purchaser's rights to
terminate this Agreement as a result of any matter contained in
Sellers' Due Diligence Deliveries, or found by or revealed to
Purchaser during the Study Period as a result of Purchaser's
inspection of the Properties or otherwise found or discovered in any
reports generated by or for Purchaser during the Study Period shall
be deemed to be waived.
5. Deposit.
5.1 Immediately Available Funds. To the extent any portion
of the Deposit is made in immediately available funds, such funds
and all interest earned thereon shall be held in escrow and
disbursed by Deposit Escrow Agent in accordance with the escrow
agreement attached hereto as Exhibit C (the "Deposit Escrow
Agreement").
5.2 Letter of Credit. To the extent any portion of the
Deposit is made with a letter of credit in accordance with
Section 3.1(a) above, such letter of credit shall be held by Deposit
Escrow Agent in accordance with the terms of the Deposit Escrow
Agreement and shall be returned to Purchaser in accordance with the
terms of the Deposit Escrow Agreement.
5.3 Failure to Make Deposit. In the event Purchaser does not
timely make the Deposit, this Agreement shall be void and shall not
become effective.
6. Representations and Warranties of Sellers.
6.1 Representations and Warranties. Sellers hereby jointly
and severally represent, warrant and agree that, as of the Effective
Date and as of the Escrow Closing Date, the representations and
warranties set forth as items 6.1 through 6.29 and 6.32 on Schedule
6.1 attached hereto are (or shall be, as the case may be) true and
correct (except as otherwise disclosed to Purchaser during the Study
Period as a result of any matter contained in Seller's Due Diligence
Deliveries, documents, books, records, correspondence and other
written information delivered or made available to Purchaser in the
locations set forth on Schedule 4.2, Purchaser's investigations or
pursuant to any estoppel certificate or otherwise) and in each case
subject to the qualifications contained in the introductory
paragraph of Schedule 6.1. Sellers hereby jointly and severally
represent and warrant that as of the Closing Date the
representations and warranties set forth in items 6.1 through 6.6
and items 6.28, 6.29 and 6.32 of Schedule 6.1 shall be true and
correct. PaineWebber hereby represents and warrants that as of the
Effective Date, as of the Escrow Closing Date and as of the Closing
Date the representations and warranties set forth in items 6.30 and
6.31 of Schedule 6.1 are or shall be true and correct, as the case
may be. In no event shall Purchaser have any recourse to any Seller
after the Escrow Closing Date for any such breach of representations
or warranties under this Agreement, and Purchaser hereby agrees to
look solely to PaineWebber for any such breach of representations
and warranties as provided in Section 6.3 of this Agreement.
6.2 Survival of Representations and Warranties. Subject to
the provisions of Sections 6.1, 6.3, 6.4 and 6.5, each of the
representations and warranties set forth on Schedule 6.1 shall,
unless otherwise so provided for in Schedule 6.1, survive the Escrow
Closing Date but only through the Indemnification Cut-Off Date (as
hereinafter defined).
6.3 Indemnification by PaineWebber. Subject to the terms of
this Agreement, PaineWebber agrees, if the Closing occurs, to
indemnify and hold Purchaser and its respective subsidiaries and
affiliates and persons serving as trustees, officers or directors
thereof (individually a "Purchaser Indemnified Party" and
collectively the "Purchaser Indemnified Parties") harmless from and
against any damages, liabilities, losses, taxes, fines, penalties,
cost, and expenses (including, without limitation, reasonable fees
of counsel) of any kind or nature whatsoever (whether or not arising
out of third-party claims and including all amounts paid in
investigation, defense or settlement of the foregoing) which (i) may
be sustained or suffered by any of them arising out of or based upon
any representation or warranty set forth on Schedule 6.1 (subject to
the standard contained in the introductory paragraph of Schedule
6.1) being inaccurate on the Escrow Closing Date and/or the Closing
Date, if such representation or warranty is made as of the Closing
Date under Section 6.1 above, as the case may be, or (ii) arise as a
result of Sellers not maintaining their legal existence and/or not
having the financial ability to make the post-Closing adjustments
described in Section 13 or to satisfy the indemnification
obligations contained in Section 14.
6.4 Limitations on Indemnification by PaineWebber.
Notwithstanding the foregoing, the right of Purchaser Indemnified
Parties to indemnification under Section 6.3 shall be enforceable
only with respect to (i) claims asserted or made by any Purchaser
Indemnified Party in accordance with Section 6.5 prior to the date
which is one year from the Escrow Closing Date (the "Indemnification
Cut-Off Date") and (ii) matters for which estoppel certificates were
not delivered at the Escrow Closing.
6.5 Notice; Defense of Claims. A Purchaser Indemnified Party
may make claims for indemnification hereunder by giving written
notice thereof to PaineWebber prior to the Indemnification Cut-Off
Date. If indemnification is sought for a claim or liability
asserted by a third party, the Purchaser Indemnified Party must also
give written notice thereof to PaineWebber promptly after it
receives notice of the claim or liability being asserted, but in
each event prior to the Indemnification Cut-Off Date. Such notice
shall summarize the basis for the claim for indemnification and any
claim or liability being asserted by a third party. Within ten (10)
Business Days after receiving such notice, PaineWebber shall give
written notice to the Purchaser Indemnified Party (the "PW
Response") stating whether it disputes the claim for indemnification
and whether it will defend against any third party claim or
liability at its own cost and expense. If PaineWebber disputes its
obligation of indemnification or defense of a claim or liability,
written notice of which is given by PaineWebber in accordance with
the terms of this Agreement, PaineWebber's obligation of
indemnification and defense shall automatically terminate unless
(i) a lawsuit regarding such claim or liability is filed with a
court of competent jurisdiction prior to the Indemnification Cutoff
Date or within twenty (20) Business Days after the date of the PW
Response, whichever is later, and (ii) such court of competent
jurisdiction (subject to appeal by PaineWebber) determines that
PaineWebber is obligated to provide indemnification for and to
defend such claim or liability. PaineWebber shall be entitled to
direct the defense against a third party claim or liability with
counsel selected by it (subject to the consent of the Purchaser
Indemnified Party who made the claim for indemnification, which
consent shall not be unreasonably withheld or delayed) as long as
PaineWebber is conducting a good faith and diligent defense.
PaineWebber shall have the right to compromise or settle any claim
against a Purchaser Indemnified Party with respect to which
PaineWebber has undertaken the defense, if the remedy sought is
monetary damages and/or equitable relief. If there is criminal
liability sought, PaineWebber cannot settle without the Purchaser
Indemnified Party's prior written consent. In all cases where
PaineWebber settles, PaineWebber must use its best efforts to obtain
a release of the Purchaser Indemnified Party or other adequate
protection or assurances. Nothing contained herein shall be deemed
to grant authority to PaineWebber to commit or obligate any
Purchaser Indemnified Party to any obligation, liability or
restraint. The Purchaser Indemnified Party shall at all times have
the right to participate fully in the defense of a third party claim
or liability directly or through counsel (at its own expense from
and after the date PaineWebber notifies such Purchaser Indemnified
Party that it will undertake such defense); provided, however, that
if the named parties to the action or proceeding include both
Sellers and the Purchaser Indemnified Party and PaineWebber is
advised that representation of both parties by the same counsel
would be inappropriate under applicable standards of professional
conduct, the Purchaser Indemnified Party may engage separate counsel
at the expense of PaineWebber but in no event shall PaineWebber be
obligated to indemnify Purchaser Indemnified Parties for the cost
and expense of more than one such counsel. If no such notice of
intent to dispute and defend a third party claim or liability is
given by PaineWebber, or if such good faith and diligent defense is
not being or ceases to be conducted by PaineWebber, the Purchaser
Indemnified Party shall have the right, at the expense of
PaineWebber, to undertake the defense of such claim or liability
(with counsel selected by the Purchaser Indemnified Party), and to
compromise or settle it, exercising reasonable business judgment, so
long as neither Sellers nor PaineWebber are defendants in such
action. If either Sellers or PaineWebber are defendants in any such
action and criminal liability is sought, the Purchaser Indemnified
Party cannot settle without PaineWebber's prior written consent. In
all cases where the Purchaser Indemnified Party settles, the
Purchaser Indemnified Party must use its best efforts to obtain a
release of all Sellers and PaineWebber if such Sellers or
PaineWebber are a defendant in such action or other adequate
protection or assurances. If the third party claim or liability is
one that by its nature cannot be defended solely by PaineWebber,
then the Purchaser Indemnified Party shall make available such
information and assistance as PaineWebber may reasonably request and
shall cooperate with PaineWebber in such defense, at the expense of
PaineWebber.
7. Representations and Warranties of Purchaser. Purchaser
represents, warrants and agrees that, as of the Effective Date of this
Agreement and as of the Escrow Closing Date:
7.1 Organization. Purchaser is a real estate investment trust
duly organized and validly existing under the laws of the State of
Maryland and has all requisite power and authority to enter into
this Agreement and to perform its obligations hereunder.
7.2 Due Authorization. This Agreement has been duly
authorized, executed and delivered by Purchaser and constitutes a
legal, valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, and the consent of
no person, including, but not limited to, directors, shareholders,
partners or creditors of Purchaser, is required for Purchaser to
execute, deliver or perform its obligations under this Agreement.
7.3 REIT Status. The Purchaser has elected to be treated as a
real estate investment trust within the meaning of Sections 856-860
of the Code, and has satisfied the requirements of the Code and all
regulations promulgated thereunder to maintain its status as a real
estate investment trust for the years 1993 and 1994 and has operated
and intends to continue to operate in such manner as to qualify as a
real estate investment trust for 1995 and 1996.
7.4 Indemnity. Purchaser shall indemnify and hold harmless
each Seller from and against any mechanics' and materialmen's liens
and other liens or claims, suits, actions, debts, liabilities,
damages, costs, charges and expenses, including court costs and
reasonable attorneys' fees, which any such Seller may suffer or
incur by reason of any action or inaction of Purchaser prior to the
Escrow Closing Date in connection with Purchaser's, Purchaser's
agents, or Purchaser's contractors, entry onto, inspection or
physical testing of the Properties. This indemnification shall
survive the termination of this Agreement, notwithstanding anything
else to the contrary contained herein. Any such Seller may make
claims for indemnification hereunder by giving written notice
thereof to Purchaser. If indemnification is sought for a claim or
liability asserted by a third party, Sellers must also give written
notice thereof to Purchaser promptly after they receive notice of
the claim or liability being asserted. The notice must summarize
the basis for the claim for indemnification and any claims or
liability being asserted by a third party. Purchaser shall be
entitled to direct the defense against the third party claim or
liability with counsel selected by it (subject to the consent of the
applicable Sellers, which consent shall not be unreasonably withheld
or delayed) as long as Purchaser is conducting a good faith and
diligent defense. Purchaser shall have the right to compromise or
settle any claim against Sellers with respect to which Purchaser has
undertaken the defense, if the remedy sought is monetary damages
and/or equitable relief. If there is criminal liability sought,
Purchaser cannot settle without Sellers' prior written consent. In
all cases where Purchaser settles, Purchaser must use its best
efforts to obtain a release of the applicable Sellers or other
adequate protection or assurances. Nothing contained herein shall
be deemed to grant authority to Purchaser to commit or obligate
Sellers to any obligation, liability or restraint. If any third
party claim or liability is one that by its nature cannot be
defended solely by Purchaser, then the applicable Sellers shall make
available such information and assistance as Purchaser may
reasonably request and shall cooperate with Purchaser in such
defense, at the expense of Purchaser.
7.5 Restoration of Properties. Purchaser shall restore or
shall cause the Properties to be restored to substantially the
condition existing prior to any tests or studies conducted or caused
to be conducted by Purchaser if any damage or change in condition of
the Properties results from such tests or studies. Such obligation
shall survive the termination of this Agreement notwithstanding
anything else to the contrary contained herein.
7.6 No Conflict. Purchaser has the requisite power and
authority to enter into this Agreement and to create thereby the
binding obligation of Purchaser and to perform its obligations
hereunder, in each case, without the consent or approval of any
other persons or entities. The execution and delivery by Purchaser
of this Agreement does not, and the performance by Purchaser of its
covenants and agreements under this Agreement, will not (a) violate
any material requirement of applicable law, (b) violate or
contravene any provision of Purchaser's organizational documents or
any law, rule, regulation, order, writ, judgment, decree,
determination or award applicable to Purchaser or (c) violate,
contravene or result in a breach of or constitute a default under
any indenture, lease, loan or other agreement or any instrument to
which Purchaser is party or by which its properties may be bound or
affected.
7.7 Bankruptcy. No bankruptcy, insolvency, rearrangement or
similar action involving Purchaser whether voluntary or involuntary,
is pending or to Purchaser's actual knowledge, threatened; and
Purchaser has no intention of filing any such action or proceeding.
8. Covenants of Purchaser and Sellers.
8.1 Sellers' Operation of the Properties. Between the
Effective Date and the Escrow Closing Date or any earlier
termination of this Agreement, Sellers shall (a) continue to
maintain and to make all ordinary and non-structural repairs and
replacements to the Projects so as to keep them in substantially
their present condition (reasonable wear and tear and damage by
casualty and eminent domain excepted), (b) continue to expend funds
for advertising and capital improvements with respect to the
Projects in accordance with Sellers' existing plans, budgets and pro
formas for fiscal year ending August 31, 1996, (c) maintain in full
force and effect the insurance described on Schedule 6.18, (d) not
enter into any new Service Contract or modify existing Service
Contracts unless same may be terminated by Sellers without penalty
on thirty (30) days (or less) notice unless not practicable, in
which case Sellers shall request Purchaser's consent therefor in
writing and Purchaser shall not unreasonably withhold or delay its
consent thereto, (e) not allow material agreements necessary to
operate the Properties to expire without replacing the same after
obtaining Purchaser's prior written consent therefor, which consent
shall not be unreasonably withheld or delayed, (f) perform all of
its obligations under the Existing Indebtedness, (g) not apply
security deposits to cure defaults of tenants except in the case of
those Leases terminated prior to the Escrow Closing Date or where
the Lease otherwise requires. Beginning on the Escrow Closing Date,
operation of the Properties shall be governed by the Management
Agreement, (h) deliver to Purchaser within ten (10) days after the
last day of each month during such period rent rolls for the
Projects dated as of the last day of each month during such period
together with a list of delinquencies and a detailed aging report,
(i) deliver to Purchaser within ten (10) days after the last day of
each month during such period monthly and quarterly operating
statements for the Projects for the period from and after February
1, 1996, and (j) promptly deliver to Purchaser copies of all
publicly available reports filed by Sellers with the SEC during such
period.
8.2 Leases. Between the Effective Date and the Escrow Closing
Date, unless this Agreement is terminated as provided hereunder,
Sellers shall not, without the written consent of Purchaser, which
consent may be withheld in Purchaser's sole discretion, effect any
change in any Lease or enter into any new Lease which does not
comply with the leasing guidelines set forth on Schedule 8.2 (the
"Leasing Guidelines"). Sellers shall keep Purchaser informed and
shall consult with Purchaser regarding negotiations with respect to
new Leases and amendments to, and assignments of, existing Leases.
Sellers shall provide copies of all executed agreements (together
with copies of all contracts, plans and specifications for any
tenant improvements contemplated thereunder) to Purchaser promptly
after the execution thereof. Schedule 6.7 shall be deemed to be
amended to include any Leases or amendments entered into in
accordance with the terms of this Section 8.2. Sellers shall not
grant consent to any assignment of a Lease for which Sellers have
discretionary ability to so consent, without Purchaser's prior
written consent, which consent shall not be unreasonably withheld or
delayed. Sellers shall notify Purchaser of all notices of
assignment and all requests for consent to assignment. Although
Sellers have agreed to keep Purchaser informed and consult with
Purchaser regarding negotiations of new Leases and/or Lease
modification, Sellers shall have the unilateral right to amend or
enter into any Lease which complies with the Leasing Guidelines.
When seeking consent to a new or modified Lease, Sellers shall
provide notice of the identity of the tenant, a term sheet or letter
of intent containing material business terms (including base rent,
percentage rent, co-tenancy requirements, exclusive requirements,
expense base, concessions, tenant improvement allowances, brokerage
commissions, expansion and extension options and copies of all
contracts, plans and specifications for the contemplated tenant
improvements) and whatever credit and background information, if
any, Sellers then possess with respect to such tenant. Purchaser
shall be deemed to have consented to any proposed new Lease or Lease
modification which does not meet the Leasing Guidelines if it has
not responded to Sellers within five (5) Business Days after receipt
of such information. Purchaser hereby designates Herbert Glimcher,
David Glimcher and Fred Zantello as individuals who, acting singly,
will each be authorized to grant approvals under this Section 8.2.
Notwithstanding any provision of this Section 8.2 to the contrary,
Sellers may, without the prior written consent of the Purchaser,
cancel or terminate any Lease or commence collection, unlawful
detainer or other remedial action against any tenant upon the
occurrence of a default by the tenant under said Lease. Sellers
shall promptly notify Purchaser of any such termination or remedial
action.
In the event Purchaser consents in writing to a new Lease or an
amendment to any existing Lease, the tenant improvement costs,
leasing commissions and similar leasing expenses thereunder (the
"Leasing Costs") that are actually incurred by Sellers on or prior
to the Escrow Closing Date shall be added to the Escrowed Purchase
Price. With respect to Leases entered into prior to the Escrow
Closing Date for which Purchaser's consent has not been obtained,
the tenant improvement costs, leasing commissions and similar
leasing expenses thereunder shall be paid by Sellers (regardless of
when such costs are incurred). Beginning on the Escrow Closing
Date, decisions with respect to leasing matters and responsibility
for expenses incurred in connection with Leases and/or Lease
modifications entered into after the Escrow Closing Date shall be
allocated between Purchaser and Sellers as provided in the
Management Agreement.
8.3 Existing Indebtedness. Schedule 8.3a attached hereto lists
loans which are included in the definition of Assumed Indebtedness
and which Sellers may revise prior to the Closing Date to address
the items listed in Schedule 8.3a. All such revisions will be on
the terms and conditions set forth on Schedule 8.3a, without
adjustment to the Purchase Price. Sellers shall forward all drafts
of documentation evidencing such revisions and shall consult with
Purchaser regarding such drafts and the status of such negotiations.
Sellers shall provide Purchaser with copies of all executed
agreements promptly after the execution thereof. Except as
specifically provided above, prior to the Closing Date, if this
Agreement shall not have been terminated as provided hereunder,
Sellers shall not, without the prior written consent of Purchaser,
which consent may be withheld in Purchaser's sole discretion,
otherwise modify, alter or amend the terms of any Assumed
Indebtedness. When seeking consent for any such other amendment to
the Assumed Indebtedness, Sellers shall provide copies of the
proposed terms and conditions and documentation to evidence such
amendment. Purchaser shall be deemed to have rejected any such
amendment if it has not responded to Sellers within five (5)
Business Days after receipt of such information. Purchaser hereby
designates Herbert Glimcher, David Glimcher and Fred Zantello as
individuals who, acting singly, will each be authorized to grant
approvals under this Section 8.3. Sellers shall be entitled to
request waivers of defaults under the Existing Indebtedness without
prior written consent of the Purchaser.
8.4 Sellers' Agreement Regarding Acquisition Proposals.
(a) Unless and until this Agreement and, if
applicable, the Closing Escrow Agreement shall have been
terminated, Sellers hereby covenant and agree that prior to the
Closing Date, Sellers and PaineWebber shall not, nor shall
Sellers or PaineWebber authorize any officer, director, partner
or employee, investment banker, attorney or other advisor or
representative of any Seller or PaineWebber to, directly or
indirectly, solicit, initiate or knowingly encourage the
submission of, any Acquisition Proposal. For purposes of this
Agreement, "Acquisition Proposal" means (i) any proposal for a
merger or other business combination involving RPI or any other
Seller or (ii) any proposal to acquire in any manner, directly
or indirectly, including, without limitation, by tender offer,
exchange offer or similar transaction, more than 15% of (a) the
capital stock of RPI or any other Seller which is a
corporation, (b) the partnership interests of any Seller which
is a partnership, or (c) the consolidated assets of Sellers,
other than the transactions contemplated by this Agreement.
(b) Notwithstanding any provision of this Agreement
to the contrary: (i) Sellers may participate in discussions or
negotiations with, and may furnish information to any third
party which (without any solicitation, initiation or
encouragement in violation of Section 8.4(a)) seeks to engage
in such discussions or negotiations or requests such
information, if the Board of Directors of RPI determines, based
on the advice of Goodwin, Procter & Hoar or Campbell & Riggs as
counsel to RPI or Hutchins, Wheeler & Dittmar as counsel to the
independent directors of RPI or such other legal counsel which
RPI or the independent directors of RPI may select and which
other legal counsel are reasonably acceptable to Purchaser
("Legal Counsel"), that failing to engage in such discussions
or negotiations or to provide such information would reasonably
be expected to violate the fiduciary duties of the Board of
Directors of RPI to the stockholders of RPI; and (ii) the Board
of Directors of RPI may take and disclose to RPI's stockholders
a position contemplated by Rules 14e-2 and 14a-9 promulgated
under the Exchange Act with respect to any tender offer and may
make such disclosure to the stockholders of RPI as may be
required under applicable law; provided, that the Board of
Directors of RPI shall not recommend that the stockholders of
RPI tender their shares unless such recommendation is permitted
by Section 8.4(c).
(c) Notwithstanding anything to the contrary in this
Agreement, the Board of Directors of RPI shall be permitted from
time to time to take the following actions in the circumstances
described below: (i) to withdraw or modify its approval or
recommendation of this Agreement or the transactions contemplated
hereby in a manner adverse to Purchaser; (ii) to approve or
recommend or enter into an agreement with respect to an Acquisition
Proposal; or (iii) to terminate this Agreement, if, in each case:
(A) an Acquisition Proposal is commenced, publicly proposed,
publicly disclosed or otherwise communicated to RPI and (B) the
Board of Directors of RPI determines, based on the advice of Legal
Counsel, that such action is required in order to comply with its
fiduciary duties to the stockholders of RPI. No such action by the
Board of Directors of RPI shall constitute a breach of this
Agreement by RPI or any Seller.
(d) In the event the Board of Directors of RPI is
prepared to accept an Acquisition Proposal (other than an
Acquisition Proposal which is in the form of a tender offer,
exchange offer or similar transaction), the Board of Directors
of RPI shall so notify Purchaser at least forty-eight (48)
hours prior to terminating this Agreement or the Closing Escrow
Agreement, if applicable, and entering into a definitive
agreement with respect to such Acquisition Proposal.
Notwithstanding anything set forth in Sections 7(iii) and 7(v)
of the Confidentiality Agreement and without being in breach
thereof, Purchaser shall have the right to communicate and
discuss with Sellers and their officers and directors proposed
modifications of the terms and conditions set forth in this
Agreement for the purchase of the Properties, but not to
communicate or discuss with, or make any written or oral
proposal or offer to, any of Sellers' other employees or
shareholders with respect thereto. Nothing contained in this
Section 8.4(d) shall be construed to permit Purchaser
(hereunder and under the Confidentiality Agreement), and
Purchaser hereby agrees not, (i) to seek to advise, encourage,
or influence any person with respect to the voting of any
securities of RPI, or induce, attempt to induce or in any
manner assist any other person in initiating any stockholder
proposal or a tender or exchange offer for securities of RPI or
any change of control of RPI, or for the purpose of convening a
stockholders' meeting of RPI; or (ii) to make any public
announcement or make any written or oral proposal or invitation
to discuss any possibility, intention, plan or arrangement,
relating to a tender or exchange offer for securities of RPI or
a business combination (or other similar transaction which
would result in a change of control), sale of assets (other
than as provided in the immediately preceding sentence),
liquidation or other extraordinary corporate transaction
between Purchaser or any of Purchaser's affiliates and any of
the Sellers or take any action that might require RPI to make a
public announcement regarding any of the foregoing, except, in
each case, as provided in Section 7 of the Confidentiality
Agreement.
8.5 Shareholder Meeting and Proxy. RPI shall take all action
necessary in accordance with applicable law and its organizational
documents to convene a meeting of its stockholders as promptly as
practicable to consider and vote upon the approval of this Agreement
and the transactions contemplated hereby. The Board of Directors of
RPI shall recommend that its stockholders approve this Agreement and
the transactions contemplated hereby, and RPI shall use its
reasonable efforts to obtain such approval, including, without
limitation, by timely mailing the proxy statement described below to
its stockholders; provided, however, that nothing contained in this
Section 8.5 shall prohibit the Board of Directors of RPI from
failing to: (i) convene such meeting, (ii) make such recommendation
or (iii) use its reasonable efforts to obtain such approval if the
Board of Directors of RPI has determined, after consultation with
and based upon the advice of Legal Counsel, that convening such
meeting, making such recommendation or using its reasonable efforts
to obtain such approval would reasonably be expected to violate the
fiduciary duties of the Board of Directors of RPI to its
stockholders. In the event that the stockholders of RPI do not
approve this Agreement or the transactions contemplated hereby, the
failure to obtain such approval shall not be a default by Sellers
under this Agreement if Sellers have complied with the foregoing
provisions of this Section 8.5. Notwithstanding the recommendation
of approval by the Board of Directors, the Board of Directors of RPI
shall be entitled to disclose all risks of and alternatives to the
transaction. RPI shall promptly prepare and, after the Escrow
Closing Date, file with the Securities and Exchange Commission (the
"SEC") a proxy statement pursuant to Section 14 of the Exchange Act
with respect to the meeting of the stockholders of RPI in connection
with the sale of the Properties to Purchaser (the "Proxy
Statement"). RPI will cause the Proxy Statement to comply as to
form in all material respects with the applicable provisions of the
Exchange Act. Purchaser shall furnish all information about itself
and its business and operations and all necessary financial
information to RPI and its counsel as RPI may reasonably request in
connection with the preparation of the Proxy Statement. Purchaser
agrees that the information provided by it for inclusion in the
Proxy Statement and each amendment or supplement thereto, at the
time of mailing thereof and at the time of the meeting of
stockholders of RPI, will not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Purchaser
shall promptly furnish RPI with any such information necessary to
correct any statement in the Proxy Statement or any amendment or
supplement thereto that has become false or misleading. RPI will
advise and deliver copies to Purchaser of any request by the SEC for
amendment of the Proxy Statement or comments thereon and responses
thereto or requests by the SEC for additional information, promptly
after RPI receives notice thereof.
8.6 Estoppel Certificates. Within fifteen (15) days after the
Effective Date, Sellers shall request estoppel certificates (the
"Estoppel Certificates") from all tenants of the Projects, in each
case, in the form attached to or required by the applicable Lease,
or the form commonly used by the applicable tenant or, if no form is
attached to or required by the Lease or commonly used by the
applicable tenant, in the form attached hereto as Exhibit F.
Sellers shall use good faith efforts to obtain Estoppel Certificates
from all tenants of the Projects; provided, however, that nothing
contained herein shall require Sellers to pay money to any tenant,
commence litigation, threaten litigation or otherwise adversely
affect relations with tenants. Sellers shall promptly provide
Purchaser with a copy of all Estoppel Certificates received by
Sellers and shall notify Purchaser of any tenant that refuses to
deliver an Estoppel Certificate and the reason for such refusal, if
known. Nothing contained in this Section 8.6 is intended to change
the percentage of Estoppel Certificates required to be delivered
under Section 10.1(d).
8.7 Indebtedness. Purchaser and Sellers shall each use
reasonable efforts to obtain the consent of the holders of the
Assumed Indebtedness to the transactions contemplated herein
(including, but not limited to the change in manager, the Escrow
Closing, and the transfer of the Projects to the Purchaser) and to
the release of the applicable Seller (and any other obligor
thereunder or guarantor thereof) from liability under the Assumed
Indebtedness. Purchaser and Sellers shall also each use reasonable
efforts to cause the holders of the Assumed Indebtedness to deliver
estoppel certificates with respect to the status of the Assumed
Indebtedness. In the event, despite such reasonable efforts, the
holder of any Assumed Indebtedness is unwilling to so release the
applicable Seller (and any other obligor thereunder or guarantor
thereof) and the failure to obtain the release prevents the
liquidation of any Seller or has the effect of requiring the
establishment or increase in reserves upon liquidation of any
Seller, this Agreement shall terminate and Purchaser shall be
entitled to a return of the Deposit. Purchaser and Sellers shall
each use reasonable efforts to obtain the consent of the holders of
the Prepaid Indebtedness to the change in manager, in the event a
change in manager of the applicable Project requires the consent of
the holder of such Prepaid Indebtedness or would constitute a
default or an event of default under such Prepaid Indebtedness. In
the event, despite such reasonable efforts, the holder of any
Prepaid Indebtedness whose consent is required as set forth above is
unwilling to consent to the change in manager, any Seller,
PaineWebber, and Purchaser may each, in the order listed herein,
attempt to purchase such Prepaid Indebtedness, failing such
purchase, this Agreement may be terminated by Purchaser or Sellers,
and the Purchaser shall be entitled to a return of the Deposit.
Purchaser and Sellers shall also use reasonable efforts to obtain
payoff letters from the holders of the Prepaid Indebtedness
containing a calculation of prepayment premiums, if any.
8.8 Confidentiality Agreement. Purchaser understands and
agrees that it is still bound by and subject to the terms of the
Confidentiality Agreement (subject to the modifications thereof
contained in Section 8.4(d) above), the terms and conditions of
which are incorporated herein by this reference. In addition,
during the period in which the provisions of Section 8.5 above are
applicable, Purchaser hereby covenants and agrees that it will not,
nor will it permit or allow, directly or indirectly, any officer,
director or employee of or any investment banker, attorney or other
advisor or representative of Purchaser to request RPI or the Board
of Directors of RPI, directly or indirectly, to amend or waive
Section 7 or Section 8 of the Confidentiality Agreement. Any
material breach by Purchaser of the Confidentiality Agreement or
this Section 8.8 shall constitute a default by Purchaser hereunder.
9. Escrow Closing, Deliveries, Disclaimer of Warranties.
9.1 Escrow Closing. Subject to the terms of this Agreement,
Sellers and the Purchaser have agreed to close the purchase and sale
of the Properties in escrow (the "Escrow Closing") at the offices of
Goodwin, Procter & Hoar, Exchange Place, Boston, MA (or such other
place as may be mutually agreed to by Sellers and Purchaser) at
10:00 A.M. Boston time on the first (1st) Business Day following the
expiration of the Study Period (the "Escrow Closing Date"), or such
other date and time as may be mutually agreed upon in writing by
Sellers and Purchaser; provided, however, that Sellers and Purchaser
shall each have the right to one extension of the Escrow Closing
Date without cost or penalty for a period of up to five (5) Business
Days by notice to the other for the exclusive purpose of satisfying
the conditions contained in Sections 10.1 and 10.2 below. The
Escrow Closing and the delivery of documents and funds required
under Sections 9.2 and 9.3 below shall be effectuated by the use of
a single escrow agreement substantially in the form attached hereto
as Exhibit D (the "Closing Escrow Agreement").
9.2 Sellers' Deliveries at the Escrow Closing. At the Escrow
Closing, Sellers shall deliver the following (collectively, the
"Sellers' Escrow Closing Deliveries") to the Closing Escrow Agent to
be held by the Closing Escrow Agent, subject to the terms and
conditions of the Closing Escrow Agreement:
(a) Special Warranty Deeds in form acceptable to
Purchaser, conveying good and indefeasible title in fee simple
to the Properties free and clear of any and all liens, leases,
tenancies, encumbrances, conditions, easements, assessments,
restrictions, and other conditions except for the Permitted
Exceptions, the Leases, the Service Contracts, the Management
Agreement and any encumbrance created, caused or consented to
in writing by Purchaser.
(b) Assignment and Assumption Agreements for the
Leases and Assignment Agreements for the Service Contracts,
Management Agreement, licenses, warranties and approvals and
Indemnity Agreements for the Assumed Indebtedness, Service
Contracts, Management Agreement, licenses, warranties and
approvals.
(c) Original counterparts of the Option Agreements,
Leases and Service Contracts and documents evidencing and/or
securing Assumed Indebtedness, in each case, to the extent in
Sellers' possession, or copies thereof if originals are
unavailable and copies thereof have not been previously
delivered to Purchaser.
(d) Affidavits in form and substance satisfactory to
Purchaser stating each Seller's taxpayer identification number
and that such Seller is not a "Foreign Person" as provided in
Section 1445 of the Code.
(e) Evidence of each Seller's capacity and authority
(subject only to the affirmative vote of the shareholders of
RPI holding two-thirds in interest of the shares of RPI's
common stock entitled to vote on such matter) to enter into and
close this transaction, and evidence of PaineWebber's capacity
and authority to enter into and close this transaction.
(f) An opinion of counsel to PaineWebber in form and
substance satisfactory to Purchaser and its counsel opining as to
the enforceability of this Agreement with respect to PaineWebber's
obligations hereunder and the authorization of PaineWebber to enter
into this Agreement and perform its obligations hereunder.
(g) An opinion of counsel to Sellers in form and
substance satisfactory to Purchaser and its counsel opining as to
the enforceability of this Agreement with respect to Sellers and the
authorization of Sellers to enter into this Agreement and to perform
their respective obligations hereunder.
(h) Affidavits addressed to the Closing Escrow Agent
or the applicable title insurance company (in each case dated
as of the Escrow Closing Date) regarding parties in possession
and mechanics liens and such other affidavits, indemnities and
certificates as are customarily and reasonably required by the
Closing Escrow Agent or the applicable title insurance company
in transactions of a similar size and nature including, without
limitation, gap indemnities with respect to matters created by,
consented to or caused by Sellers.
(i) Rent rolls for the Projects dated no earlier
than one (1) Business Day prior to the Escrow Closing Date (the
"Final Rent Rolls") together with a list of delinquencies with
a detailed aging report.
(j) The Estoppel Certificates which are received as
a result of the requests required under Section 8.6 above.
(k) Notices, dated as of the Escrow Closing Date,
addressed to all tenants under the Leases and all vendors under
all contracts and all holders of Existing Indebtedness
regarding the change in manager for the Projects.
(l) Notices, dated in blank, addressed to tenants under
the Leases and all vendors under all contracts and all holders of
Assumed Indebtedness regarding the sale of the Projects.
(m) All bills with respect to the Projects for 1996
and other current lease years and such other information as
shall allow Purchaser to bill tenants for Additional Rents
under the Leases.
(n) Such other documents, affidavits and
certificates as are customarily and reasonably required in
transactions of a similar size and nature or in a jurisdiction
in which the applicable Property is located.
(o) Such documents as are reasonably required to
convey Sellers' interest in the Option Parcels.
(p) Transfer tax returns, if any.
(q) Settlement statements.
(r) Such documents as are reasonably required to
substitute Purchaser as the party in interest in any tax appeal.
9.3 Purchaser's Deliveries at the Escrow Closing. At the
Escrow Closing, Purchaser shall deliver the following (collectively,
the "Purchaser's Escrow Closing Deliveries") to the Closing Escrow
Agent to be held by the Closing Escrow Agent, subject to the terms
and conditions of the Closing Escrow Agreement:
(a) The Escrowed Purchase Price (as adjusted
hereunder) and all closing costs for which Purchaser is
responsible (including, without limitation, all prepayment fees
which would be due under the Prepaid Indebtedness as of the
Escrow Closing Date if such loans were in fact paid on such
date).
(b) To the extent obtained from the holders thereof,
evidence of releases of Sellers and other obligors and
guarantors from all obligations under the Assumed Indebtedness.
(c) Evidence of consent of the holders of the Existing
Indebtedness to the transactions contemplated hereby (to the extent
required as set forth in Section 8.7), estoppel certificates from
holders of the Assumed Indebtedness and payoff letters from the
holders of the Prepaid Indebtedness.
(d) Assignment and Assumption Agreements for the
Leases and Assignment Agreements for the Service Contracts,
Management Agreement, licenses, warranties and approvals and
Indemnity Agreements for the Assumed Indebtedness, the Service
Contracts, Management Agreement, licenses, warranties and
approvals.
(e) Evidence of Purchaser's capacity and authority to
enter into and close this transaction.
(f) An opinion of counsel to Purchaser in form and
substance satisfactory to Sellers and Legal Counsel opining as
to the enforceability of this Agreement with respect to
Purchaser and the authorization of Purchaser to enter into this
Agreement and to perform its obligations hereunder.
(g) Forms of Affidavits addressed to the Closing
Escrow Agent or the applicable title insurance company (in each
case with regard to the period from the Escrow Closing Date to
the date of recording of the deeds) regarding parties in
possession and mechanics liens and such other affidavits,
indemnities and certificates as are currently and reasonably
required by the Closing Escrow Agent or the applicable title
insurance company in transactions of a similar size and nature,
including, without limitation, gap indemnities with respect to
matters created or caused by Purchaser.
(h) Such other documents, affidavits and
certificates as are customarily and reasonably required in
transactions of a similar size and nature or in a jurisdiction
in which the applicable Property is located.
(i) Transfer tax returns, if any.
(j) Settlement statements.
9.4 Escrow. All deeds, agreements, documents, funds, letters
of credit, affidavits and indemnities deposited in escrow with the
Closing Escrow Agent in connection with the Escrow Closing shall be
held and disbursed by the Closing Escrow Agent strictly in
accordance with the terms and conditions of the Closing Escrow
Agreement and the terms and conditions hereof, if applicable.
9.5 Disclaimer of Warranties; Limitation of Liability.
Notwithstanding anything to the contrary contained in this Agreement
or any document related hereto, except as otherwise specifically
provided in this Section 9.5 to the contrary, Purchaser and Sellers
acknowledge and Purchaser agrees that the Properties will be sold to
Purchaser in the condition the Properties are in on the Escrow
Closing Date "AS IS, WHERE IS", with all faults, and without any
warranty, express or implied, as to fitness, habitability, use,
merchantability, quality of construction, workmanship, or otherwise.
Purchaser represents and warrants to Sellers that Purchaser is
entering into this Agreement and shall purchase the Properties
(subject to the terms hereof) solely on the basis of Purchaser's own
independent investigations without relying upon any statement,
information or projection made or furnished by Sellers, their
agents, employees or contractors except for the representations and
warranties made herein by Sellers and in no event shall any Seller
or PaineWebber be liable to Purchaser for any consequential damages
related thereto.
10. Conditions to Obligations to Close into Escrow.
10.1 Conditions to Obligation of Purchaser. The obligation of
Purchaser to consummate the transactions to be performed by it in
connection with the Escrow Closing is subject to satisfaction of the
following conditions:
(a) The representations and warranties of Sellers
referred to in Section 6 above shall be true and correct in all
material respects at and as of the Escrow Closing Date.
(b) Each Seller and PaineWebber shall have furnished
Purchaser evidence that each such Seller and PaineWebber is in
existence and in good standing under the laws of the state of
its organization.
(c) Sellers shall have executed and delivered the
Management Agreement and the Closing Escrow Agreement,
delivered the documents set forth in Section 9.2 hereof and
otherwise complied with their covenants in this Agreement.
(d) Sellers shall have furnished Estoppel
Certificates from (i) all Anchor Tenants, other than those
Anchor Tenants listed on Schedule 10.1 attached hereto and
(ii) at least seventy-five percent (75%) of non-Anchor Tenants
in each Project, in each case in the form attached to or
required by the applicable Lease, in the form then commonly
used by the applicable Tenant or if no form is attached to or
required by the Lease, or commonly used by the applicable
Tenant, in the form attached hereto as Exhibit F (with such
reasonable modifications to such form as may be required by
such tenant). Failure of Sellers to satisfy the conditions
contained in this Section 10.1(d) shall be deemed to be a
failure of a condition precedent and shall not constitute a
default hereunder.
(e) Sellers shall have received all consents described in
Section 8.7 above. Failure of Sellers to satisfy the conditions
contained in this Section 10.1(e) shall be deemed a failure of a
condition precedent and shall not constitute a default hereunder.
10.2 Conditions to Obligations of Sellers. The obligations of
Sellers to consummate the transactions to be performed by them in
connection with the Escrow Closing are subject to satisfaction of
the following conditions:
(a) The representations and warranties of Purchaser
set forth in Section 7 above shall be true and correct in all
material respects at and as of the Escrow Closing Date.
(b) Purchaser shall have furnished Sellers evidence
that Purchaser is in existence and in good standing under the
laws of the State of Maryland.
(c) Purchaser shall have executed and delivered the
Management Agreement and the Closing Escrow Agreement,
delivered the Escrowed Purchase Price and the documents set
forth in Section 9.3 and otherwise complied with its covenants
in this Agreement.
(d) Sellers shall have received evidence of the
releases under the Assumed Indebtedness of the applicable
Seller (and any other obligor thereunder or guarantor thereof)
or shall have received evidence (which may be in the form of an
opinion of counsel to Sellers) that the failure to obtain any
such release does not prevent the liquidation of any Seller and
will not have the effect of requiring or increasing reserves to
be held upon liquidation of any Seller. Failure of Sellers to
satisfy the conditions contained in this Section 10.2(d) shall
be deemed to be a failure of a condition precedent and shall
not constitute or default hereunder.
(e) Sellers shall have received all consents described in
Section 8.7 above. Failure of Sellers to satisfy the conditions
contained in this Section 10.2(e) shall be deemed to be a failure of
a condition precedent and shall not constitute or default hereunder.
10.3 Conditions to Release from Escrow. Upon the execution and
delivery of the Closing Escrow Agreement and the occurrence of the
Escrow Closing, the Closing Escrow Agreement shall provide that the
provisions in Section 12.3 shall constitute the sole conditions
under which the Closing Escrow Agreement may be terminated. The
Closing Escrow Agreement shall also provide that upon delivery of
(x) evidence of the approval of this Agreement and the transactions
contemplated hereby by the stockholders of RPI holding two-thirds in
interest of the shares of RPI's common stock entitled to vote on
such matter at a duly convened meeting of stockholders and (y) the
executed opinion of counsel to Sellers in the form delivered at the
Escrow Closing pursuant to Section 9.2(g), the Escrowed Purchase
Price shall be adjusted pursuant to Section 13.8 and disbursed in
accordance with the Closing Escrow Agreement. The Closing Escrow
Agreement shall also provide (i) that Purchaser shall be obligated
to provide the Closing Escrow Agent on or before the Closing Date
with immediately available funds (which funds shall be deemed to be
added to and included under the definition of the Escrowed Purchase
Price) necessary to pay (A) net increases in prepayment premiums, if
any, for Prepaid Indebtedness, and (B) the Interest Factor, (ii)
that the deeds and other title documents shall be recorded, (iii)
that the remaining documents shall be delivered in accordance with
the Closing Escrow Agreement, (iv) Closing Escrow Agent shall date
the notices to tenants, vendors and holders of Assumed Indebtedness
and (v) that Sellers shall update exhibits to the agreements listed
in Section 9.2(b). In the event immediately available federal funds
are held in escrow under the Closing Escrow Agreement, (a) Purchaser
shall be entitled to the interest earned on the portion of the
Escrowed Purchase Price which will be paid to parties other than
Sellers, and (b) Sellers shall be entitled to the interest on the
remaining portion of the Escrowed Purchase Price. In the event
immediately available federal funds are not held in escrow under the
Closing Escrow Agreement Purchaser shall pay to Sellers at Closing
an amount (the "Interest Factor") equal to the product of that
portion of the Escrowed Purchase Price paid to Sellers at the
Closing multiplied by an interest rate per annum equal to the six
(6) month U.S. Treasury Bill rate published in the Wall Street
Journal on the Escrow Closing Date for the number of days from the
Escrow Closing Date through and including the Closing Date.
11. Defaults and Remedies.
11.1 Sellers' Default.
(a) Except as otherwise specifically provided herein, in
the event that this Agreement is not terminated prior to the Escrow
Closing Date and the Escrow Closing is not consummated due to
default by Sellers under this Agreement, Purchaser shall have the
election of one of the following remedies as Purchaser's sole and
exclusive remedy hereunder at law or in equity: (i) to terminate
this Agreement by giving written notice to Sellers, Deposit Escrow
Agent, as the case may be, in which event the Deposit shall be
returned to Purchaser by Deposit Escrow Agent after notification of
such cancellation, and Sellers promptly shall pay to Purchaser
$2,000,000 as liquidated damages and neither Sellers nor Purchaser
shall have any further duties or obligations hereunder or (ii) to
seek specific performance of Sellers' obligations under this
Agreement in a court of competent jurisdiction.
(b) After the Escrow Closing, in the event Sellers are in
default under this Agreement or the Closing Escrow Agreement,
Purchaser shall have the election of one of the following remedies
as Purchaser's sole and exclusive remedy hereunder at law or in
equity: (i) to terminate this Agreement by giving written notice to
Sellers and Closing Escrow Agent in which event the Escrowed
Purchase Price shall be returned to Purchaser by Closing Escrow
Agent after notification of such cancellation, and Sellers shall
promptly pay to Purchaser $3,000,000.00 as liquidated damages and up
to an additional $500,000 as reimbursement of Purchaser's reasonable
and documented out-of-pocket, third-party expenses incurred in
connection herewith, including, without limitation, fees and
disbursements of accountants, attorneys and investment bankers
("Purchaser's Expenses"), and neither Sellers nor Purchaser shall
have any further duties or obligations hereunder or (ii) to seek
specific performance of Sellers' obligations under this Agreement
and/or the Closing Escrow Agreement, as the case may be, in a court
of competent jurisdiction.
11.2 Purchaser's Default. In the event that this Agreement is
not terminated prior to the Escrow Closing Date and the Escrow
Closing is not consummated due to default by Purchaser under this
Agreement, upon written notice from Sellers to Purchaser and Deposit
Escrow Agent, this Agreement shall terminate, and Sellers shall be
entitled to receive the Deposit as liquidated damages as the sole
and exclusive remedy at law or in equity. After the Escrow Closing,
in the event Purchaser is in default under this Agreement or the
Closing Escrow Agreement, Sellers shall have the election of one of
the following remedies as Sellers' sole and exclusive remedy
hereunder at law or in equity: (i) to terminate this Agreement by
giving written notice to Purchaser and Closing Escrow Agent, in
which event Sellers shall be entitled to receive out of the Escrowed
Purchase Price $3,000,000.00 as liquidated damages and up to an
additional $500,000.00 for the reimbursement of Sellers' reasonable
and documented out-of-pocket, third party costs and expenses
incurred in connection herewith, including, without limitation, fees
and disbursements of accountants, attorneys, proxy solicitors and
investment bankers ("Sellers' Expenses"), Purchaser shall be
entitled to receive the balance of the Escrowed Purchase Price, and
neither Sellers nor Purchaser shall have any further duties or
obligations hereunder or (ii) to seek specific performance of
Purchaser's obligations under this Agreement and/or the Closing
Escrow Agreement, as the case may be, in a court of competent
jurisdiction.
12. Termination and Effect of Termination.
12.1 Termination Prior to Escrow Closing. At any time
prior to the Escrow Closing Date, this Agreement may be terminated
as follows:
(a) by mutual written consent of Purchaser and
Sellers;
(b) by Purchaser or Sellers if any United States
federal or state court of competent jurisdiction or other
governmental entity shall have issued an order, decree or
ruling or taken any other action restraining, enjoining or
otherwise prohibiting the purchase and sale of any of the
Properties and such order, decree, ruling or other action shall
have become final and non-appealable, provided that the party
seeking to terminate shall have used its reasonable efforts to
appeal such order, decree, ruling or other action unless such
order, decree, ruling or other action was against or with
respect to the non-terminating party, in which event no such
reasonable efforts shall be required;
(c) by Purchaser upon (i) a material breach of a
material representation, warranty, covenant or agreement on the
part of Sellers set forth in this Agreement, or if any material
representation or warranty of Sellers shall have become
materially untrue, in either case, after written notice from
Purchaser and a reasonable period to cure such breach (in any
event not less than thirty (30) days and for such longer period
as is reasonably required to so cure; provided, that Sellers
have commenced such cure and are diligently pursuing the same),
such that the condition set forth in Section 10.1(a) would be
incapable of being satisfied by the Escrow Closing Date, (ii)
delivery of a valid Notice of Material Concern which is not
resolved by mutual agreement prior to the Escrow Closing Date
or (iii) an event of bankruptcy, receivership or other similar
event of any Seller or any filing with respect thereto;
(d) by Sellers upon (i) a material breach of a
material representation, warranty, covenant or agreement on the
part of Purchaser set forth in this Agreement, or if any
material representation or warranty of Purchaser shall have
become materially untrue, in either case, after written notice
from Sellers and a reasonable period to cure such breach (in
any event not less than thirty (30) days and for such longer
period as is reasonably required to so cure; provided, that
Purchaser has commenced such cure and is diligently pursuing
the same), such that the conditions set forth in Section
10.2(a) would be incapable of being satisfied by the Escrow
Closing Date or (ii) an event of bankruptcy, receivership or
other similar event of Purchaser or any filing with respect
thereto;
(e) by Purchaser or Sellers, if the Board of
Directors of RPI recommends to RPI's stockholders approval or
acceptance of an Acquisition Proposal by a person other than
Purchaser; or
(f) by Purchaser if the debt rating of Wal-Mart is
reduced to BBB or lower by Standard & Poor's Rating Group or
their successors or to Baa3 or lower by Moody's Investors
Service, Inc. or their successors.
12.2 Effect of Termination prior to Escrow Closing.
(a) In the event of the termination of this
Agreement pursuant to Section 12.1, this Agreement shall
forthwith become void and have no effect (except as otherwise
expressly provided herein), without any liability on the part
of any party hereto or its partners, affiliates, directors,
trustees, holders of beneficial interest, officers or
stockholders and all rights and obligations of any party hereto
shall cease; provided, however, that the provisions of this
Section 12.2 shall survive such termination. Except as
otherwise provided in this Agreement, upon such termination,
Deposit Escrow Agent shall promptly return the Deposit to
Purchaser.
(b) If Purchaser terminates this Agreement pursuant to
Section 12.1(c)(i) or Section 12.1(c)(iii), Purchaser shall be
entitled to the remedy provided in Section 11.1(i). Any payment
required by this subsection shall be payable by Sellers within three
(3) Business Days after demand by Purchaser.
(c) If Sellers terminate this Agreement pursuant to
Section 12.1(d), Sellers shall be entitled to receive the Deposit,
together with interest thereon, if any.
(d) If Purchaser or Sellers terminate this Agreement
pursuant to Section 12.1(e), Sellers shall pay Purchaser
$3,000,000.00 as liquidated damages which shall be deemed to
include payment for all of Purchaser's Expenses, and this shall
be Purchaser's sole and exclusive remedy under this Agreement,
it being understood that Section 11.1 shall not apply, and
Purchaser shall be entitled to any payment required under this
subsection within three (3) Business Days after demand by
Purchaser; provided, however, if this payment is made (either
directly to Purchaser or in escrow as provided in Section 12.5
below) and Sellers and Purchaser subsequently enter into a new
agreement for the purchase of the Properties, then the purchase
price payable thereunder in the absence of this provision shall
be increased in the amount of $3,000,000.00.
12.3 Termination After Escrow Closing. After the Escrow
Closing, this Agreement and the Closing Escrow Agreement may only be
terminated for any one of the following reasons:
(a) By mutual written agreement of Purchaser and
Sellers.
(b) By Purchaser or Sellers if any United States
federal or state court of competent jurisdiction or other
governmental entity shall have issued an order, decree or
ruling or taken any other action, restraining or otherwise
prohibiting the delivery or recordation, as the case may be, of
the documents deposited in escrow at the Escrow Closing and/or
the payment to Sellers of the Escrowed Purchase Price and such
order, decree, ruling or other action shall have become final
and non-appealable; provided that the party seeking to
terminate shall have used its reasonable efforts to appeal such
order, decree, ruling or other action, unless such order,
decree, ruling or other action was against or with respect to
the non-terminating party, in which event no such reasonable
efforts shall be required.
(c) By Purchaser or Sellers if this Agreement and
the transactions contemplated hereby shall have failed to
receive the affirmative vote of the stockholders of RPI holding
two-thirds in interest of the shares of RPI's common stock
entitled to vote on such matter at a duly convened annual
meeting of stockholders or a special meeting of stockholders
duly convened for that purpose.
(d) By Purchaser if an event of bankruptcy,
receivership or other similar event of any Seller occurs.
(e) By Sellers if an event of bankruptcy,
receivership or other similar event of Purchaser occurs.
(f) By Purchaser or Sellers, if the Board of Directors of
RPI (i) does not recommend to the stockholders of RPI approval of
this Agreement and the transactions contemplated hereby or withdraws
any such recommendation or (ii) recommends to RPI's stockholders
approval or acceptance of an Acquisition Proposal by a person other
than Purchaser.
(g) By Purchaser or Sellers if no vote of the
stockholders of RPI has occurred on or before the Outside Date.
12.4 Effect of Termination After Escrow Closing.
(a) In the event of the termination of this Agreement
pursuant to Section 12.3, this Agreement and the Closing Escrow
Agreement shall forthwith terminate and become void and have no
force or effect (except as otherwise expressly provided herein and
therein), without any liability on the part of any parties hereto or
their partners, affiliates, directors, trustees, holders of
beneficial interest, officers, or stockholders and all rights and
obligations of any party hereto shall cease; provided, however, that
the provisions of this Section 12.4 shall survive such termination.
Upon such termination, (i) the Closing Escrow Agent shall deliver
the Escrowed Purchase Price together with all interest thereon to
the Purchaser, (ii) the documents deposited in Escrow at the Closing
Escrow shall be returned to the party which deposited the same (or
shall be destroyed if executed by more than one party), (iii) the
Management Agreement shall continue in full force and effect in
accordance with the terms thereof and (iv) Sellers shall reimburse
Purchaser for Lease Costs and Advances, as defined in the Management
Agreement, as provided in the Management Agreement.
(b) If Purchaser or Sellers terminate this Agreement
pursuant to Section 12.3(c), then PaineWebber shall pay
Purchaser (i) one-half of Purchaser's reasonable, documented,
out-of-pocket, third party expenses but in no event shall
PaineWebber be obligated to pay Purchaser more than
$1,000,000.00 and (ii) (A) to the extent the Escrowed Purchase
Price is held in immediately available funds as a result of
Sellers' request that the Closing Escrow Agent draw on a letter
of credit held under the Closing Escrow Agreement, the amount
by which Purchaser's actual interest expense on such funds
exceeds the interest actually earned on such amount, or (B) to
the extent any portion of the Escrowed Purchase Price is held
in immediately available funds as a result of Purchaser's
election under Section 3.1(b), one-half of the amount by which
Purchaser's actual interest expense on such funds exceeds the
amount of interest actually earned on such amount up to a
maximum of $500,000.00 and Purchaser shall have no further
recourse against Sellers or PaineWebber at law or in equity, it
being understood that Section 11.1 shall not apply. Any
payment required under this subsection shall be payable by
PaineWebber to Purchaser within three (3) Business Days after
demand by Purchaser.
(c) If Purchaser terminates this Agreement pursuant to
Section 12.3(d), Purchaser shall be entitled to the remedy described
in Section 11.1(i). Any payment required under this subsection
shall be payable by Sellers within three (3) Business Days after
demand by Purchaser.
(d) If Sellers terminate this Agreement pursuant to
Section 12.3(e), Sellers shall be entitled to the remedy described
in the ultimate sentence of Section 11.2.
(e) If Purchaser or Sellers terminate this Agreement
pursuant to Section 12.3(f) and, in the event of termination
pursuant to subsection (i) of such Section 12.3(f), RPI enters into
a definitive purchase agreement (notwithstanding the fact that such
agreement may be subject to contingencies and/or conditions, such
as, by way of example and not limitation, a due diligence period
and/or shareholder approval) with respect to an Acquisition Proposal
by a person other than Purchaser at any time prior to six (6) months
after the Outside Date, Sellers shall pay Purchaser $4,000,000.00 as
liquidated damages which shall be deemed to include payment for all
of Purchaser's Expenses, and this shall be Purchaser's sole and
exclusive remedy at law or in equity under this Agreement, it being
understood that Section 11.1 shall not apply, and Purchaser shall be
entitled to any payment required under this subsection within three
(3) Business Days after demand by Purchaser; provided, however,
that, in the event of termination pursuant to Section 12.3(f)(i),
Sellers shall not pay Purchaser and Purchaser shall not be entitled
to any such liquidated damages in the event the Board of Directors
of RPI reasonably determines that Purchaser is unlikely to be able
to perform any of its material obligations under this Agreement in a
timely manner (the "Fiduciary Standard") and provides an officer's
certificate to Purchaser to that effect. Sellers shall have the
burden of proof in a challenge by Purchaser that the Fiduciary
Standard has not been met by RPI's Board of Directors. Purchaser and
Sellers further agree that Purchaser's performance of its material
obligations hereunder will be deemed not to be able to be timely
performed unless Purchaser is able to perform its material
obligations within fourteen (14) days after the meeting of the
stockholders of RPI referenced in Section 8.5 hereof. Sellers shall
have no obligation to postpone or otherwise reschedule such meeting
of stockholders for any reason whatsoever in order to enable
Purchaser to timely perform its obligations hereunder. In the event
payment is made pursuant to this subsection 12.4(e) (either directly
to Purchaser or in escrow as provided in Section 12.5 below), and
Sellers and Purchaser subsequently enter into a new agreement for
the purchase of the Properties, then the purchase price payable
thereunder shall be increased in the amount of $4,000,000.00.
12.5 Liquidated Damages.
(a) The parties acknowledge and agree that the provisions
for payment of Purchaser's Expenses and Sellers' Expenses and
liquidated damages are included herein in order to induce each party
to enter into this Agreement and to reimburse each respective party
for incurring the costs and expenses related to entering into this
Agreement and consummating the transactions contemplated by this
Agreement. The parties hereto agree that the payment of Purchaser's
Expenses and/or liquidated damages, as the case may be, by Sellers
to Purchaser shall constitute liquidated damages with respect to any
claim for damages or any other claim which Purchaser would otherwise
be entitled to assert against Sellers with respect to this Agreement
and the transactions contemplated hereby and shall constitute the
only remedy at law or in equity to which Purchaser shall be entitled
in connection therewith. The parties further agree that the receipt
of the Deposit by Sellers and the payment of Sellers' Expenses by
Purchaser to Sellers shall constitute liquidated damages with
respect to any claim for damages or any other claim which Sellers
would otherwise be entitled to assert against Purchasers with
respect to this Agreement and the transactions contemplated hereby
and shall constitute the only remedy at law or in equity to which
Sellers shall be entitled in connection therewith. Except for
nonpayment of the amounts set forth in this Section 12, the parties
hereby agree that in no event shall either party seek or obtain any
recovery or judgment against any of the other party's assets or
against any of the other party's partners (or their constituent
partners) or any director, officer, employee or shareholder of any
of the foregoing. The parties hereby agree that in no event shall
either party be entitled to seek or obtain any other damages of any
kind, including, without limitation, consequential, indirect or
punitive damages.
(b) In the event that Sellers are obligated to pay
Purchaser the amounts set forth in subsections 12.2(b), 12.2(d),
12.4(b) or 12.4(e) (in each case, the "Liquidated Damage Amount"),
Sellers shall pay to Purchaser an amount equal to the lesser of (i)
the Liquidated Damage Amount or (ii) the sum of (A) the maximum
amount that can be paid to Purchaser without causing Purchaser to
fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of
the Code, determined as if the payment of such amount did not
constitute income described in Section 856(c)(2)(A)-(H) and
856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as determined by
Purchaser's certified public accountants, plus (B) in the event
Purchaser receives either (x) a letter from Purchaser's counsel
indicating that Purchaser has received a ruling from the Internal
Revenue Service (the "IRS") described in clauses (ii) or (iii) of
the following paragraph, or (y) an opinion from Purchaser's counsel
as described in clause (iv) of the following paragraph, an amount
equal to the Liquidated Damage Amount less the amount payable under
clause (A) above and the balance (the "Balance") shall be deposited
in escrow in accordance with the next succeeding sentence. Sellers
shall deposit into escrow an amount in immediately available federal
funds equal to the Balance, with an escrow agent selected by
Purchaser (reasonably acceptable to Sellers) and on such terms
(subject to the terms of the following paragraph) as shall be agreed
upon by Purchaser and the escrow agent. All payments by Sellers
pursuant to this paragraph shall be made by wire transfer or bank
check within three (3) Business Days after demand by Purchaser.
Payment to the Purchaser of the Liquidated Damage Amount or deposit
into escrow of an amount equal to the Liquidated Damage Amount, as
the case may be, shall satisfy Sellers' obligations in full under
the terms and conditions of this Section 12.5(b).
The escrow agreement shall provide that the amount in escrow or
any portion thereof shall not be released to Purchaser unless the
escrow agent receives any one or combination of the following: (i)
a letter from Purchaser's certified public accountants indicating
the maximum amount that can be paid by the escrow agent to Purchaser
without causing Purchaser to fail to meet the requirements of
Sections 856(c)(2) and 856(c)(3) of the Code, determined as if the
payment of such amount did not constitute Qualifying Income, or a
subsequent letter revising such amount, in which case the escrow
agent shall release such amount to Purchaser, (ii) a letter from
Purchaser's counsel indicating that Purchaser received a ruling from
the IRS holding that the receipt by Purchaser of the Liquidated
Damage Amount would either constitute Qualifying Income or would be
excluded from gross income within the meaning of Sections 856(c)(2)
and 856(c)(3) of the Code, in which case the escrow agent shall
release the remainder of the Liquidated Damage Amount to Purchaser,
(iii) a letter from Purchaser's counsel indicating that Purchaser
received a ruling from the IRS holding that the receipt by Purchaser
of the remaining balance of the Liquidated Damage Amount following
the receipt of and pursuant to such ruling would not be deemed
constructively received prior thereto or (iv) an opinion of
Purchaser's legal counsel to the effect that the receipt by
Purchaser of the Liquidated Damage Amount would either constitute
Qualifying Income or would be excluded from gross income within the
meaning of Sections 856(c)(2) and 856(c)(3) of the Code, in which
case the escrow agent shall release the remainder of the Liquidated
Damage Amount to Purchaser. Sellers agree to amend this paragraph
and the immediately preceding paragraph at the request of Purchaser
in order (x) to maximize the portion of the Liquidated Damage Amount
that may be distributed to Purchaser hereunder without causing
Purchaser to fail to meet the requirements of Sections 856(c)(2) and
856(c)(3) of the Code or (y) to improve Purchaser's chances of
securing a favorable ruling described in this Section 12.2(b),
provided that no such amendment may result in any additional cost or
expense to Sellers or prevent the liquidation of any Seller or cause
any Seller to maintain or increase any reserves upon liquidation.
The escrow agreement shall also provide that any portion of the
Liquidated Damage Amount then held in escrow after the expiration of
five (5) years from the date of such escrow shall be released by the
escrow agent to Sellers, if then in existence, and if not then in
existence, as directed by PaineWebber. Sellers shall not be a party
(other than a contingent beneficiary) to such escrow agreement and
shall not bear any cost of or have liability resulting from the
escrow agreement.
13. Prorations and Adjustments at Escrow Closing. On the Escrow
Closing Date, in addition to any adjustments expressly provided for in
this Agreement, the following items relating to the Properties shall be
adjusted or prorated between Purchaser and Sellers (without affecting the
Escrowed Purchase Price). The provisions of Section 13 shall survive the
Closing.
13.1 Taxes and Assessments. All real and personal property
taxes and assessments with respect to the Projects shall have been
paid by Sellers (or Wal-Mart, or such other Anchor Tenant which is
responsible for the direct payment thereof, as the case may be)
through the fiscal year prior to the tax fiscal year in which the
Escrow Closing Date occurs. With regard to real and personal
property taxes and assessments for the tax fiscal year in which the
Escrow Closing Date occurs, the parties agree that there will be
proration of such taxes which are not paid directly by Wal-Mart or
such other Anchor Tenant between Purchaser and Sellers at Escrow
Closing, with Sellers liable for taxes for the tax fiscal year in
which the Escrow Closing occurs up to the Escrow Closing Date and if
the Closing occurs, Purchaser liable for such taxes on and after the
Escrow Closing Date. If tax assessments for the tax fiscal year
during which the Escrow Closing Date occurs are not then finally
determined, then the tax figures for the immediately preceding tax
fiscal year shall be used for the purposes of prorating taxes on the
Escrow Closing Date and within ten (10) Business Days after receipt
of information setting forth the actual taxes for the tax fiscal
year in which the Escrow Closing occurs, Purchaser and Seller shall
further adjust for the taxes.
13.2 Rents. Sellers and Purchaser shall prorate at Escrow
Closing all base or fixed rents ("Basic Rents") and any escalations
or pass through of operating and other similar expenses ("Additional
Rents") received from all tenants and occupants of the Properties as
of the Escrow Closing Date.
Amounts payable by tenants and occupants of the Properties
relating to sales made or gross receipts realized during the year in
which the Escrow Closing Date occurs ("Percentage Rents") shall not
be adjusted for at Escrow Closing but rather shall be adjusted
within thirty (30) days of receipt of such amounts from the
applicable tenants of the Projects. Percentage Rent shall be
adjusted as of the Escrow Closing Date based on the number of days
of ownership.
All Basic Rents, Additional Rents and Percentage Rents
uncollected as of the Escrow Closing Date and owed by tenants
or occupants of the Properties on the Escrow Closing Date for
any period during the three (3) months immediately preceding
the Escrow Closing Date (collectively, the "Past Due Rent") or
any monies due under promissory notes for aged receivables,
shall be reimbursed to Sellers by Purchaser following
Purchaser's collection of such Past Due Rents or any monies due
under promissory notes for aged receivables, provided that all
Basic Rents, Additional Rents and Percentage Rents collected by
Purchaser shall be applied first to the month in which the
Escrow Closing occurs, then to the current rents due and
finally to Past Due Rent. All Additional Rents collected by
Purchaser on an annual basis shall be applied first to the year
in which the Escrow Closing occurs then to Past Due Rent.
Purchaser shall use reasonable efforts to collect such Past Due
Rent or any monies due under promissory notes for aged
receivables in the usual course of operation of the Properties,
and any such uncollected Past Due Rent or any monies due under
promissory notes for aged receivables collected by Purchaser
after the Closing shall be paid to Sellers within ten (10)
Business Days following the end of the month in which
collection thereof occurred, after deducting the reasonable
expenses incurred in connection with the collection thereof.
Sellers shall retain all rights relating to all past due
Basic Rents, Additional Rents and Percentage Rents owed by non-
occupants of the Properties on the Escrow Closing Date for any
period prior to the Escrow Closing Date (including the right to
collect such rents and charges), and there shall be no
proration of the same as between Sellers and Purchaser.
13.3 Security Deposits. Sellers shall deposit, in segregated
accounts established under the Management Agreement, the amount of
any and all deposits paid to Sellers by tenants of the Properties,
including without limitation, all rental, security, cleaning,
utility, key, damage and other deposits, together with interest
thereon which is due to any tenant of the Properties under the
provisions of its lease or applicable law.
13.4 Utilities. Charges for water, electricity, sewer, gas,
telephone and all other utilities shall be apportioned between
Purchaser and Sellers (without adjustment to the Escrowed Purchase
Price) as of the Escrow Closing Date based on meter readings, if
reasonably available, or, if not so available on a per diem, based
upon the bill therefor for the month immediately preceding the month
in which the Escrow Closing Date occurs with an appropriate
adjustment, if necessary once the actual bill is received. All such
utility adjustments shall be effectuated under the Management
Agreement.
13.5 Other Income and Expenses. All other income and ordinary
operating expenses of the Projects, including without limitation,
interest and amortization under Existing Indebtedness, public
utility charges to the extent not adjusted pursuant to Section 13.4
above, maintenance, interest and principal on the Existing
Indebtedness accruing on and after the Escrow Closing Date and other
service charges, shall be prorated at the Escrow Closing effective
as of the Escrow Closing Date (without adjustment of the Escrowed
Purchase Price).
13.6 Closing Costs. As a material part of the consideration
hereunder, as part of the Escrowed Purchased Price, Purchaser shall
be responsible for the payment of any and all assumption fees,
consent fees, mortgage taxes, and any and all other costs and
expenses which may be due in connection with the acquisition of the
Properties subject to the Assumed Indebtedness. In addition,
Purchaser shall be responsible for the payment of any and all
prepayment fees due under the Prepaid Indebtedness. Sellers shall
pay transfer taxes and any other taxes imposed by the jurisdictions
in which the Properties are located as a result of the transfers of
title to the Properties from Sellers to Purchaser, and the amount
thereof shall, at Closing, at Sellers' option, either be paid by
Sellers to the Closing Escrow Agent or deducted from the Escrowed
Purchase Price and paid by Purchaser.
13.7 Payments during Escrow Period. Income of the Projects
received from and after the Escrow Closing Date and expenses of the
Projects incurred from and after the Escrow Closing shall be
allocated between Sellers and Purchaser as set forth in the
Management Agreement.
13.8 Closing. Upon satisfaction of the conditions to Closing
contained in Section 10.3 above, the Closing Escrow Agent shall
disburse funds held in escrow in accordance with this Agreement and
the Closing Escrow Agreement and shall distribute all documents in
accordance with the Closing Escrow Agreement and, if applicable,
this Agreement. Except as otherwise provided herein or in the
Management Agreement, there shall be no other adjustments. The
Closing Escrow Agreement shall provide that the Escrowed Purchase
Price, together with any additional payments required under this
Section 13.8, shall be disbursed (i) to satisfy the Prepaid
Indebtedness and the closing costs referenced in Section 13.6, and
(ii) the balance, together with all interest earned, if any, on the
Escrowed Purchase Price from the Escrow Closing Date through the
date the same is disbursed to Sellers, shall be disbursed to
Sellers. Notwithstanding the previous sentence, in the event the
Manager reasonably disputes the incentive management fee payable
pursuant to Section 6E of the Management Agreement, the amount in
dispute (the "Holdback Amount") shall be withheld from the amounts
paid to Sellers and shall be held in escrow by the Closing Escrow
Agent pursuant to the Closing Escrow Agreement. The Holdback Amount
shall be disbursed as directed by mutual agreement of Purchaser and
Sellers unless Purchaser and Sellers are unable to so agree on such
disbursement within thirty (30) days after the Closing, in which
case Closing Escrow Agent shall deposit the Holdback Amount with a
court of competent jurisdiction to be thereafter disbursed as
directed by such court.
13.9 Post Closing Adjustment. Notwithstanding the provisions of
this Section 13 to the contrary, Sellers and Purchaser agree on or
before February 15, 1997 to adjust any amounts required to be
adjusted pursuant to this Section 13 which were not previously
adjusted.
14. Fees and Commissions. Purchaser has engaged Bear and Pearson
as its financial advisers in connection with this Agreement, and
Purchaser shall be solely responsible for the fees and expenses of Bear
and Pearson. Sellers have engaged Lehman as their financial adviser, and
Sellers shall be solely responsible for the fees and expenses of Lehman.
Purchaser hereby represents and warrants to each Seller that Purchaser
has not contacted or entered into any agreement with any real estate
broker, agent, finder, or any other party in connection with the
transactions contemplated by this Agreement (other than Bear, Pearson and
Lehman). Purchaser further represents and warrants that it has not taken
any action other than the execution and delivery of this Agreement which
could, if any Seller has an exclusive agreement to sell the Properties
result in any such fees or commissions being payable; provided, however,
that Purchaser has no knowledge of any such agreement. Purchaser hereby
indemnifies and agrees to hold harmless each Seller from any loss,
liability, damage, cost, or expense (including reasonable attorneys' fees
and court costs) due to Bear or Pearson or which arise as a result of a
breach of the representation and warranty made by Purchaser herein.
Sellers hereby represent and warrant to Purchaser that Sellers have not
contacted or entered into any agreement with any real estate broker,
agent, finder or any other party in connection with the transactions
contemplated by this Agreement (other than Bear and Lehman), and that
they have not taken any action which would result in any real estate
brokers, finders or other fees or commissions being due or payable to any
other party with respect to the transactions contemplated hereby.
Sellers hereby indemnify and agree to hold harmless Purchaser from any
loss, liability, damage, cost or expense (including reasonable attorneys'
fees and court costs) due to Lehman or which arise as a result of a
breach of a representation and warranty made by Seller herein. The
indemnities set forth in this Sections 13 and 14 shall survive the
Closing.
15. Survival of Provisions. Sections 7.4, 7.5 and 12.4 of this
Agreement survive termination of this Agreement or the Escrow Closing
Date, as applicable. Section 12.2 of this Agreement survives termination
of this Agreement prior to the Escrow Closing Date. Section 6.2 of this
Agreement survives the Escrow Closing Date through the Indemnification
Cut-Off Date, and Section 14 of this Agreement survive the Closing.
16. Notices. Any notice permitted or required hereunder shall be
in writing and shall be sent either by United States Mail, certified with
return receipt requested, postage prepaid, properly addressed, by hand
delivery, or by reputable overnight courier service and shall be deemed
given upon receipt or refusal to accept receipt, in each case, addressed:
To Purchaser: Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
Attn: Herbert Glimcher, Chairman
Fred A. Zantello
Copies to: Robinson Silverman
Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attn: Alan S. Pearce, Esq.
To Sellers: Retail Property Investors, Inc.
PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, Massachusetts 02110
Attn: Lawrence A. Cohen, President and CEO
Copies to: Goodwin, Procter & Hoar
Exchange Place
Boston MA 02109
Attn: Gilbert G. Menna, P.C.
Campbell & Riggs
1980 Post Oak Boulevard
Suite 2300
Houston, Texas 77056
Attn: Carole R. Riggs, Esq.
To PaineWebber: PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Attn: Terrence E. Fancher,
Managing Director
Copies to: Fried, Frank, Harris, Shriver &
Jacobson
1001 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20004
Attn: Matt T. Morley, Esq.
Any party by written notice to the other parties hereto may
designate a new or different address for receipt of subsequent notices.
17. Applicable Law. This Agreement shall be governed by and
interpreted in accordance with the internal laws of the State of New York
(without regard to the conflict of laws provisions thereof) and the
applicable federal laws of the United States of America and such laws
shall govern the validity, construction, enforcement, and interpretation
of this Agreement.
18. Attorneys' Fees. Any party to this Agreement who is the
prevailing party in any legal proceeding against any other party to this
Agreement brought under or in relation to this Agreement or transaction
shall be additionally entitled to recover court costs and reasonable
attorneys' fees from the non-prevailing party.
19. Construction. The parties acknowledge that each party and its
legal counsel have reviewed and revised this Agreement and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any other documents evidencing the
consummation of the transactions described herein, or any amendments,
annexes or exhibits hereto or thereto.
20. No Third-Party Beneficiaries. This Agreement shall, subject to
the limitations on assignability herein set forth, inure to the benefit
of the parties hereto and their successors and assigns. No agreement
herein contained shall inure to the benefit of any person or entity not a
party to this Agreement except any assignee of any party hereto pursuant
to a written assignment permitted by the terms of this Agreement.
21. No Assignment. This Agreement may not be assigned by any party
hereto without the prior written consent of all the other parties hereto,
and any purported assignment without such consent shall be null and void.
Notwithstanding the foregoing, Purchaser may assign this Agreement prior
to the Escrow Closing Date without Sellers' consent to any entities
wholly owned, directly or indirectly, by Purchaser provided notice
thereof is given to Sellers prior to the Escrow Closing Date. In
addition, Purchaser may designate one or more such entities to acquire
title to any of the Properties by notice to Sellers prior to the Escrow
Closing Date. In either such event, Purchaser shall remain primarily
liable for all obligations hereunder including those that survive the
termination of the Agreement or Closing.
22. Deposit or Escrowed Purchase Price. In the event any party
hereto becomes entitled to the Deposit or a portion of the Escrowed
Purchase Price, as the case may be, in accordance with the terms of this
Agreement and any other party hereto (or representatives for the other
party) fails or refuses to deliver an instruction letter to the Deposit
Escrow Agent or the Closing Escrow Agent, as the case may be, directing a
disbursement of the Deposit or a portion of the Escrowed Purchase Price,
as the case may be, after written request from the party entitled
thereto, such escrow agent may deliver the Deposit or such portion of the
Escrowed Purchase Price, as the case may be, into a court of competent
jurisdiction in an interpleader action, and the prevailing party in such
interpleader action, as well as such escrow agent as the interpleading
party, shall be entitled to a reimbursement of court costs and reasonable
attorneys' fees incurred in connection with such action from the non-
prevailing party, upon the final order of the court with appropriate
jurisdiction stating that such other party is entitled to a disbursement
of the Deposit or a portion of the Escrowed Purchase Price, as the case
may be.
23. Entire Agreement. This Agreement, the Deposit Escrow Agreement
and any letter agreements entered into contemporaneously with this
Agreement, including the Schedules and Exhibits attached hereto, and the
Confidentiality Agreement embody the entire agreement between the parties
with regard to the subject matter hereof and cannot be varied except by
the written agreement of the parties.
24. Publicity. RPI currently intends on issuing a press release on
or after the Effective Date in the form of Schedule 24(a) attached
hereto. Purchaser currently intends on issuing a press release on or
after the Effective Date in the form of Schedule 24(b) attached hereto.
Purchaser and Sellers shall thereafter consult with each other before
issuing any press release or otherwise making any public statements with
respect to this Agreement or any transaction contemplated herein and
shall not issue any such press release or make any such public statement
without the prior written consent of the other party, which consent shall
not be unreasonably withheld; provided, however, that a party may,
without the prior written consent of the other party, issue such press
release or make such public statement as may be legally necessary for
securities filings, or as required by law or the rules of any applicable
stock exchange if it has used its reasonable efforts to consult with the
other party and to obtain such party's consent but has been unable to do
so in a timely manner. Except with regard to any press release issued
pursuant hereto, Purchaser and Sellers shall keep confidential all
negotiations and terms regarding this Agreement and the transactions
contemplated hereunder (including the existence hereof), except as
legally necessary for securities filings, compliance with the rules and
regulations of any applicable stock exchange and reporting, legal,
accounting and financing purposes. In the event this Agreement is
terminated prior to the Closing, Purchaser agrees to return to Sellers
all information and documents provided to Purchaser by Sellers under this
Agreement and, to the extent Sellers reimburse Purchaser for costs
incurred in connection with Purchaser's due diligence, to furnish Sellers
copies of all reports, appraisals and memoranda obtained or created by
Purchaser or Purchaser's agents in connection with Purchaser's due
diligence investigation of the Properties; provided, however, that if
Sellers terminate this Agreement because of Purchaser's default, Sellers
shall not be required to reimburse Purchaser for such costs.
25. Regulatory Filings. Purchaser and Sellers shall also use all
reasonable efforts to cooperate with one another in (i) determining the
filings which are required to be made prior to the Closing with, and
which consents, approvals, permits or authorizations are required to be
obtained prior to the Closing from, governmental or regulatory
authorities of the United States, the several states and foreign
jurisdictions and any third parties in connection with the execution and
delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement, (ii) timely making all such filings and
timely seeking and obtaining all such consents, approvals, permits or
authorizations and (iii) providing all information necessary for Sellers'
preparation and filing of any reports which may be required by the
Exchange Act, except that Purchaser shall only be required to provide
information regarding itself.
26. Exculpation. (a) This Agreement and all documents, agreements,
understandings and arrangements relating to the transactions contemplated
hereby have been or will be executed or entered into on behalf of
Purchaser by the undersigned, in his capacity as an officer or trustee of
Purchaser, which has been formed as a Maryland real estate investment
trust, pursuant to a Declaration of Trust of Purchaser dated as of
September 1, 1993, as amended and restated, and not individually, and
neither the trustees, officers nor shareholders of Purchaser shall be
bound or have any personal liability hereunder or thereunder. Sellers
shall look solely to the assets of Purchaser for satisfaction of any
liability of Purchaser in respect hereof, and all documents, agreements,
understandings and arrangements relating hereto, and will not seek
recourse or commence any action against any of the trustees, officers or
shareholders of Purchaser or any of their personal assets for the
performance or payment of any obligation of Purchaser hereunder or
thereunder. The foregoing shall also apply to any future documents,
agreements, understandings, arrangements and transactions hereunder
between Purchaser and Sellers and/or PaineWebber.
(b) This Agreement and all documents, agreements,
understandings and arrangements relating to the transactions contemplated
hereby have been or will be executed or entered into on behalf of each of
the Sellers and of PaineWebber by the undersigned, in their respective
capacities as an officer of such Seller and PaineWebber and not
individually, and neither the trustees, partners, directors, officers nor
shareholders of any of the Sellers or PaineWebber shall be bound or have
any personal liability hereunder or thereafter. Purchaser shall look
solely to the assets of Sellers, and in certain express instances set
forth herein, of PaineWebber, for satisfaction of any liability of
Sellers or PaineWebber in respect hereof, and all documents, agreements,
understandings and arrangements relating hereto, and will not seek
recourse or commence any action against any of the trustees, partners,
directors, officers or shareholders of any of the Sellers or PaineWebber
or any of their personal assets for the performance or payment of any
obligation of any of the Sellers or PaineWebber hereunder or thereunder.
The foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions hereunder between Purchaser
and Sellers and/or PaineWebber.
27. Liability of Sellers. Except as otherwise set forth herein,
the obligations of Sellers hereunder shall be joint and several, and
Purchaser may pursue any one or more Sellers without pursuing all Sellers
to obtain the remedies set forth herein; provided that such remedies
shall not be cumulative.
IN WITNESS WHEREOF, the undersigned have executed this Purchase and
Sale Agreement as of the Effective Date.
GLIMCHER REALTY TRUST
By:/s/ Herbert Glimcher
--------------------------
Name: Herbert Glimcher
Title: Chairman
<PAGE>
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
-------------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and
President
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-----------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and
President
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-----------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and
President
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
---------------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and
President
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and
President
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and
President
The undersigned hereby executes, delivers and joins in this
Agreement for the sole purpose of binding itself to Purchaser with
respect to the undersigned's obligations set forth in the
provisions of Sections 6, 8.4(a) and 12.4(b) of this Agreement.
PAINEWEBBER INCORPORATED
By:/s/ Terrence E. Fancher
-----------------------------
Name: Terrence E. Fancher
Title: Managing Director
The undersigned Deposit Escrow Agent executes this
Agreement for the sole purpose of (a) acknowledging receipt
of the Deposit and a fully-executed copy of this Agreement
and (b) agreeing to hold the Deposit in accordance with the
terms and conditions hereof and of the Deposit Escrow
Agreement.
LAWYERS TITLE INSURANCE
CORPORATION
By: /s/ Michael T. Bebon
--------------------------
Name: Michael T. Bebon
Title: Vice President
Date: March 12, 1996
EXHIBIT 10
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
March 11, 1996
Retail Property Investors, Inc.
PaineWebber Retail Property Investors, Ltd.
PaineWebber Retail Property Investments
Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, MA 02110
RE: Purchase and Sale Agreement
---------------------------
Gentlemen:
Reference is made to the Purchase and Sale Agreement among
us dated as of the date hereof (the "Sale Agreement"). All
initially capitalized terms used herein shall have the
meanings set forth in the Sale Agreement.
1. Indebtedness. The Sale Agreement provides that
the sale of the Properties will be subject to the Assumed
Indebtedness. Notwithstanding the provisions of the Sale
Agreement to the contrary, (a) in the event that the holder
of any Assumed Indebtedness requires that Purchaser assume
such Assumed Indebtedness as a condition to such holder's
consent to the transactions contemplated by the Sale
Agreement, Purchaser will, as of the Escrow Closing Date,
assume such Assumed Indebtedness if the Closing occurs and
(b) notwithstanding the provisions of Sections 8.7 and
10.2(d) of the Sale Agreement, neither Sellers nor Purchaser
shall have the right to terminate the Sale Agreement by
reason of the unwillingness of any such holder of Assumed
Indebtedness to release the applicable Seller (or any other
obligor or guarantor thereunder) from the obligations under
such Assumed Indebtedness and (c) if the holder of any
Assumed Indebtedness does not so release the applicable
Seller (or any other obligor or guarantor thereunder),
Purchaser shall, if the Closing occurs, as of the Escrow
Closing Date (x) assume such Assumed Indebtedness and (y)
indemnify, defend and hold the Sellers (and any other obligor
or guarantor thereunder) harmless from and against any and
all claims, losses, demands or causes of action arising under
the Assumed Indebtedness. Sellers shall retain the ability
to terminate the Sale Agreement if the holder of any Assumed
Indebtedness asserts any claims or makes any additional
demands or imposes any additional conditions on Sellers
which, in Sellers' reasonable business judgment would prevent
any Seller from liquidating or require Sellers to maintain or
increase reserves upon liquidation.
In the event the Existing Indebtedness with respect to
Aviation Plaza or Crossing Meadows is not assumable, such
Existing Indebtedness shall automatically become Prepaid
Indebtedness and Schedules 2a and 2p shall be deemed to be
automatically revised accordingly. Purchaser has the right
to cause any Assumed Indebtedness to be Prepaid Indebtedness
and any Prepaid Indebtedness to be Assumed Indebtedness (and
Schedules 2a and 2p shall be deemed to be automatically
revised accordingly).
2. Claims by Sellers. In the event claims,
demands, suits or legal proceedings instituted by any of the
Sellers are not resolved prior to the Escrow Closing Date (i)
the Sellers shall continue the prosecution thereof and shall
receive any awards or benefits resulting from the resolution
of such claim, demand, suit or legal proceeding if the
Sellers have substantially corrected the problem which is the
basis of such claim by the Escrow Closing Date; and (ii) the
Purchaser may assume the prosecution thereof and shall
receive any awards or benefits resulting from the resolution
of such claim, demand, suit or legal proceeding if the
Sellers have not substantially corrected the problem which is
the basis of such claim by the Escrow Closing Date. In the
event claims, demands, suits or legal proceeding instituted
by any of the Sellers are not resolved prior to the Closing
Date, Sellers shall cooperate with Purchaser to substitute
Purchaser as plaintiff in actions listed in clause (ii) in
the preceding sentence within a reasonable period of time
after the Closing Date.
3. Closing Escrow Agreement. During the Study
Period, Purchaser and Sellers agree to endeavor to cause
Closing Escrow Agent to execute the Closing Escrow Agreement
and to negotiate in good faith any changes thereto required
by Closing Escrow Agent.
4. Termination of Management Agreements. The
obligation of Purchaser to consummate the transactions to be
performed by it in connection with the Escrow Closing is
subject to Sellers having terminated all managers of the
Projects.
5. Covenant Regarding Encumbrances. From and after
the date hereof, Sellers hereby covenant and agree not to
voluntarily encumber the Projects (specifically excluding
leases permitted under the Sale Agreement and revisions to
Existing Indebtedness permitted under the Sale Agreement);
provided, however, that the Sellers may voluntarily encumber
any Project during the Study Period with the consent of the
Purchaser or if such encumbrance is removed on or before the
Escrow Closing Date.
6. Mechanic's Liens and Title. Sellers hereby
agree to discharge, bond over or provide other affirmative
title coverage for any mechanics' liens or other
materialmens' liens disclosed in the schedules to the Sale
Agreement or which appear of record on or before the Escrow
Closing Date. Notwithstanding the provisions of the Sale
Agreement to the contrary, (a) Sellers shall not be required
to give a gap indemnification to the title company, and (b)
Sellers (or, if Sellers have liquidated or are not able to
meet their financial obligations, PaineWebber) hereby agree
to indemnify, defend and hold Purchaser harmless from and
against any damages, liabilities, losses, taxes, fines,
penalties, costs and expenses (including, without limitation,
reasonable fees of counsel) incurred by Purchaser as a result
of (i) matters appearing of record after the Escrow Closing
Date which arose prior to the Escrow Closing Date and are not
related to matters for which the Purchaser is responsible
under the Sale Agreement, and/or (ii) matters appearing of
record after the Escrow Closing Date but before the Closing
Date regardless of when they arose which are not (A) related
to the Projects or (B) Purchaser's responsibility under the
Sale Agreement. The indemnification set forth in the
previous sentence is subject to the provisions of Sections
6.4 and 6.5 of the Sale Agreement as if the indemnification
arose under Section 6.3 of the Sale Agreement with all such
Sections applying to Sellers and PaineWebber (mutatis
mutandis where necessary).
Very truly yours,
GLIMCHER REALTY TRUST
By: /s/ Herbert Glimcher
-------------------------
Name: Herbert Glimcher
Title: Chairman
AGREED TO AND ACKNOWLEDGED BY:
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer
and President
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
--------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer
and President
<PAGE>
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
----------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer
and President
By: PaineWebber Properties Incorporated,
a Venturer thereof
By:/s/ Lawrence A. Cohen
--------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer
and President
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
--------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer
and President
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer
and President
The provisions of paragraph 6 above are hereby
acknowledged and agreed to:
PAINEWEBBER INCORPORATED
By:/s/ Terrence E. Fancher
------------------------
Name: Terrence E. Fancher
Title: Managing Director
<PAGE>
Retail Property Investors, Inc.
PaineWebber Retail Property Investors, Ltd.
PaineWebber Retail Property Investments Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, MA 02110
May 12, 1996
BY HAND
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
Attn: Herbert Glimcher, Chairman
and Fred A. Zantello
and
Lawyers Title Insurance Corporation
708 Third Avenue
New York, New York 10017
Attn: Kathryn Andriko, Esq.
RE: Extension under that certain Purchase and Sale Agreement
(the "Sale Agreement") dated as of March 11, 1996 by and
among Retail Property Investors, Inc., et al
(collectively, the "Sellers") and Glimcher Realty Trust
(the "Purchaser")
Ladies and Gentlemen:
Reference is made to (a) the Sale Agreement and (b) that
certain Deposit Escrow Agreement (the "Deposit Escrow Agent")
dated as of March 11, 1996 by and among the Sellers, Purchaser and
Lawyers Title Insurance Corporation (the "Deposit Escrow Agent").
All initially capitalized terms used herein shall have the
meanings set forth in the Sale Agreement.
The Study Period expired at 5:00 pm on May 10, 1996. The
Purchaser has given certain Notices of Material Concern with
regard to (i) certain debt related matters, (ii) certain lease and
revenue related matters and (iii) certain structural related
matters (collectively, the "Material Concerns"). Sellers and
Purchaser are in the process of attempting to resolve the Material
Concerns.
Under the terms of the Sale Agreement, unless all Material
Concerns are resolved by 10:00 am on the Business Day following
the expiration of the Study Period, the Sale Agreement terminates.
Purchaser and Sellers desire to attempt to resolve the material
concerns. Sellers and Purchaser hereby acknowledge and agree that
the execution and delivery of this extension does not waive any
claims which any party may have against the other whether or not
such claim arose prior to the execution of this extension.
Purchaser and Sellers hereby agree to delete the first
sentence of Section 9.1 of the Sale Agreement and replace the
following therefor: (changes from Sale Agreement shown in italics)
Subject to the terms of this Agreement, Sellers and the
Purchaser have agreed to close the purchase and sale of the
Properties in escrow (the "Escrow Closing") at the offices of
Goodwin, Procter & Hoar, Exchange Place, Boston, MA (or such
other place as may be mutually agreed to by Sellers and
Purchaser) at 5:00 pm Boston time on the Second (2nd)
Business Day following the expiration of the Study Period
(the "Escrow Closing Date"), or such other date and time as
may be mutually agreed upon in writing by Sellers and
Purchaser; provided, however, that if all Material Concerns
have been resolved on or before the Escrow Closing Date,
Sellers and Purchaser shall each have the right to one
extension of the date on which the Escrow Closing will occur
without cost or penalty for a period of up to five (5)
Business Days by notice to the other for the exclusive
purpose of satisfying the conditions contained in
Sections 10.1 and 10.2 below.
Sellers and Purchaser hereby agree to amend Section 16 of the
Sale Agreement and Section 7 of the Deposit Escrow Agreement to
include delivery of notices by facsimile if sent to the addressee
at the number indicated below and also concurrently sent by one of
the methods listed in Section 16 of the Sale Agreement and Section
7 of the Deposit Escrow Agreement, respectively:
If to Purchaser: Attn: Herbert Glimcher and Fred Zantello (614)
621-9321
If to Robinson Silverman Pearce Aronsohn & Berman LLP: Attn: Alan
Pearce (212) 541-4630
If to Sellers: Attn: Lawrence A. Cohen (212) 713-1372
If to Goodwin, Procter & Hoar: Attn: Gilbert G. Menna, P.C. (617)
523-1231
If to Campbell & Riggs: Attn: Carole Riggs (713) 621-5453
If to PaineWebber: Attn: Terrence Fancher (212) 713-7949
If to Fried, Frank, Harris, Shriver & Jacobson: Attn: Matt Morley
(202) 639-7003
Except as expressly modified herein the Sale Agreement and
the Deposit Escrow Agreement are hereby ratified and confirmed in
all respects.
This letter agreement is executed as an instrument under seal
in one or more counterparts, each of which shall be deemed to be
an original and all of which shall constitute one and the same
instrument.
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and President
<PAGE>
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and President
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and President
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and President
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
--------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and President
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: Chief Executive Officer and President
Acknowledged and agreed to:
PAINEWEBBER INCORPORATED
By:/s/ Terrence E. Fancher
---------------------------
Name: Terrence E. Fancher
Title: Managing Director
Acknowledged and agreed to:
GLIMCHER REALTY TRUST
By:/s/ Herbert Glimcher
------------------------
Name: Herbert Glimcher
Title: Chairman
<PAGE>
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
As of May 14, 1996
Retail Property Investors, Inc.
PaineWebber Retail Property Investors, Ltd.
PaineWebber Retail Property Investments
Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, MA 02110
Re: Amendment to Purchase and Sale Agreement (the "Sale
Agreement") dated as of March 11, 1996 by and among
Retail Property Investors, Inc., et al (collectively,
the "Sellers") and Glimcher Realty Trust (the
"Purchaser")
Gentlemen:
Reference is made to (a) the Sale Agreement and (b) that
certain Deposit Escrow Agreement (the "Deposit Escrow Agent")
dated as of March 11, 1996 by and among the Sellers, Purchaser and
Lawyers Title Insurance Corporation (the "Deposit Escrow Agent").
All initially capitalized terms used herein shall have the
meanings set forth in the Sale Agreement.
The Study Period expired at 5:00 pm on May 10, 1996. The
Purchaser has given certain Notices of Material Concern with
regard to (i) certain debt related matters, (ii) certain lease and
revenue related matters (including issues related to tenant
estoppel certificates) and (iii) certain structural related
matters (collectively, the "Material Concerns"). Sellers and
Purchaser extended to May 14, 1996 the Escrow Closing Date
pursuant to that certain letter agreement dated May 12, 1996. In
consideration of the resolution of the Material Concerns, Sellers
and Purchaser have agreed to amend the Sale Agreement on the terms
and conditions herein contained.
Sellers and Purchaser have agreed that for purposes of
raising Material Concerns and for calculating "Cash Flow" during
the "Initial Term" (as such terms are defined in the Management
Agreement) of the Management Agreement, the Escrow Closing Date
shall be deemed to be May 14, 1996.
Schedules 2(a) and 2(p) to the Sale Agreement are hereby
deleted and Schedules 2(a.1) and 2(p.1) attached hereto are
replaced therefor.
Schedule 3.2 and the first and second sentences of Section
3.2 of the Sale Agreement are hereby deleted and the following
replaced therefor:
The Purchase Price (and all other capitalized costs and
other amounts treated as purchase price for federal
income tax purposes) shall be allocated among the
Properties (solely for federal, state and local tax
reporting purposes) as indicated by the Purchaser at the
Escrow Closing with the prior consent of the Sellers,
which consent will not be unreasonably withheld.
The first clause of Section 3.1 of the Sale Agreement is
hereby deleted and the following replaced therefor:
3.1 Purchase Price. The Purchase Price for the
Properties shall be One Hundred Ninety Seven Million
Dollars ($197,000,000.00), which, subject to the terms
and conditions hereinafter set forth, shall be paid as
follows:
The first sentence of Section 9.1 of the Sale Agreement is
hereby deleted and the following replaced therefor:
The Escrow Closing shall occur at the offices of
Goodwin Procter & Hoar LLP, Exchange Place, Boston,
MA at 10:00 am on May 30, 1996 (or such other date,
time and place as may be mutually agreed upon by
Sellers and Purchaser) (except as provided above,
the "Escrow Closing Date"); provided, however, that
Sellers and Purchaser shall each have the right to
one extension of the date on which the Escrow
Closing would occur without cost or penalty for a
period of up to five (5) Business Days by notice to
the other for the exclusive purpose of satisfying
the conditions contained in Sections 10.1 and 10.2
below.
In the event the Escrow Closing has not occurred on or before
June 6, 1996 Purchaser shall extend the expiration of the Letter
of Credit representing the Deposit to not sooner than ten (10)
Business Days after the then anticipated date on which the Escrow
Closing would occur. If the Letter of Credit has not been so
extended on or before June 7, 1996, Sellers and Purchaser each
hereby direct the Deposit Escrow Agent to draw upon the Letter of
Credit and hold the proceeds thereof in escrow under the terms of
the Deposit Escrow Agreement.
Notwithstanding the terms and conditions of the Sale
Agreement and this Amendment to the contrary, Sellers agree to
work with Purchaser and to cause their certified public
accountants, lawyers and tax advisors to work with Purchaser and
Purchaser's certified public accountants, lawyers and tax advisors
in an effort to increase the Purchase Price (to be finally
determined on or before the Escrow Closing Date) by up to
$4,000,000, with the amount of any such increase to be deposited
into escrow at Closing for Purchaser to make capital expenditures
to the Properties; provided, however, that the failure to reach
mutually acceptable agreement on such an increase in the Purchase
Price shall not be a condition precedent to performance or default
by either party under the Sale Agreement. Nothing contained in
this paragraph is intended to change the net proceeds which would
be payable to Sellers at Closing.
Purchaser has conducted extensive investigations during the
Study Period and Sellers and Purchaser therefore each acknowledge
and agree that all existing Material Concerns have been resolved
by mutual agreement pursuant to this amendment and no further
Material Concerns may be raised under the Sale Agreement (except
to the extent the holders of the Existing Indebtedness on
Crossroads Center and/or Logan Place require prepayment of
principal (exclusive of premiums thereon, if any) in amounts
materially greater than those set forth on Schedule 2(p.1)).
Purchaser has consented to the Sellers entering into the
those certain Amendment to Mortgage and Release of Cross
Collateralization Agreements with respect to the Properties which
were subject to Existing Indebtedness held by Aetna on the date of
the Sale Agreement, substantially in the form forwarded by
Campbell and Riggs to Fred Zantello under cover dated April 26,
1996 (the "Aetna Amendments"). Sellers agree to execute and
deliver the Aetna Amendments on or before the Escrow Closing.
Sellers shall authorize and approve, under the terms of the
Management Agreement, the Manager entering into contracts to
perform the work described on the excerpt from the Fiscal 1996
Annual Budget attached hereto (the "Capital Budget"). The
contracts shall be in amounts not to exceed the then unexpended
amount budgeted therefor in the Capital Budget. Sellers shall
cause the invoices rendered under such contracts to be paid
outside of the calculation of "Cash Flow" under the Management
Agreement. Nothing contained in this paragraph is intended
otherwise to change the duties and obligations of the parties
under the Management Agreement.
Sellers hereby covenant and agree to use their diligent
efforts to obtain consent of the holders of the applicable Assumed
Indebtedness and if such consent is obtained, to convey Applewood
and Piedmont to the holder of the Assumed Indebtedness on each
such Property at or prior to Closing in satisfaction of the
Assumed Indebtedness secured exclusively by such Property;
provided, however, that such diligent efforts shall not require
Sellers to threaten or commence litigation or expend funds and
shall in all cases be without liability to Sellers and without
continuing liability to Sellers (i.e. the debt shall be satisfied
as if it were Prepaid Indebtedness). Although the net proceeds
payable to Sellers will not change, if such transactions are
accomplished, the Purchase Price under such a scenario would be
reduced by the amount of the then outstanding principal balance of
the Assumed Indebtedness secured exclusively by such Property and
the Purchaser shall not assume the loans secured by the applicable
Property and Schedule 2(a.1) shall be deemed to be revised
accordingly. Purchaser's obligations under the Sale Agreement are
not conditioned on the accomplishment by Sellers of the conveyance
referenced in the first sentence of this paragraph.
Sellers hereby covenant and agree to cause those portions of
the roofs on Barren River Plaza and Applewood (if conveyed to
Purchaser) that contain phenolic foam insulation to be repaired or
to have a repair program in place at Closing, in each case in
accordance with the recommendations of a roofing engineer mutually
acceptable to Sellers and Purchaser. Sellers shall cause the
costs for such repairs to be paid outside of the calculation of
"Cash Flow" under the Management Agreement, in the event such
repairs are made prior to the Closing, and if such repairs are
made on or after the Closing, at no cost to Purchaser. Sellers
intend to pursue warranty claims with manufacturers of the
phenolic foam insulation. Purchaser hereby acknowledges and
agrees that Sellers shall be entitled to retain any and all claims
against such manufacturers, Purchaser shall assign any such claims
to Sellers to the extent necessary to enable Sellers to pursue
such claims after the Closing, and Purchaser shall cooperate with
Sellers in the pursuit of such claims. In the event Purchasers
receives any payments from such manufacturers for such claims, all
such receipts shall be remitted to Sellers.
The provisions of Section 26 of the Sale Agreement are hereby
incorporated herein by this reference.
The following is hereby added to the end of Section 8.7:
Purchaser shall have the right to contact holders
of the Existing Indebtedness after the Escrow
Closing Date in an effort to negotiate
modifications to such Existing Indebtedness;
provided, however, that Sellers shall not be
obligated to execute any documents in connection
with such negotiations or proposed modifications
and no such modifications shall be effective unless
the Closing occurs. Purchaser shall notify Sellers
at least five (5) days prior to any contact with
the holders of any Existing Indebtedness and shall
keep Sellers informed about the substance of the
proposed negotiations and shall forward drafts of
any proposed modifications to Sellers and shall
consult with Sellers regarding such drafts and the
status of such negotiations.
Except as expressly modified herein, the Sale Agreement and
the Deposit Escrow Agreement are hereby ratified and confirmed in
all respects.
This letter agreement is executed as an instrument under seal
in one or more counterparts, each of which shall be deemed to be
an original and all of which shall constitute one and the same
instrument.
GLIMCHER REALTY TRUST
By: /s/ Herbert Glimcher
----------------------
Name: Herbert Glimcher
Title: Chairman
AGREED TO AND ACKNOWLEDGED BY:
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
---------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-----------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
Acknowledged and Agreed to:
PAINEWEBBER INCORPORATED
By: /s/ Terrence E. Fancher
----------------------------
Name: Terrence E. Fancher
Title: Managing Director
<PAGE>
Schedule 2(a.1)
Loan Lender
(referenced by associated property)
Applewood Village Modern Woodman
Artesian Square Travelers
Audubon Village Royal
Aviation Plaza General American
Barren River Plaza Nationwide*
Crossing Meadows General American
Crossroads Center Aetna**
Cumberland Crossing Nationwide*
East Pointe Plaza Nationwide*
Lexington Parkway Plaza Royal
Logan Place Travelers**
Marion Towne Center IDS Financial*
Piedmont Plaza Travelers
Roane County Plaza Royal
Village Plaza Aetna
Southside Plaza Lincoln National
*Interest Rates were reset per Larry Cohen's Letter
**Principal Reductions required per Schedule 2(p.1)
<PAGE>
Schedule 2(p.1)
Prepaid Indebtedness
Loan Lender Principal Payoff Required
(referenced by associated (exclusive of prepayment
property) premium)
College Plaza First Union Full Payoff
Cross Creek Plaza ITT Full Payoff
Cypress Bay Plaza ITT Full Payoff
Franklin Square First Union Full Payoff
Walterboro Plaza ITT Full Payoff
Sycamore AetnaFull Payoff
Crossroads Center Aetna ($740,000 principal
reduction required)
Logan Place Travelers ($1,315,000 principal
reduction required)
<PAGE>
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
May 30, 1996
Retail Property Investors, Inc.
PaineWebber Retail Property Investors, Ltd.
PaineWebber Retail Property Investments
Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, MA 02110
Re: Amendment to Purchase and Sale Agreement (the "Sale
Agreement") dated as of March 11, 1996 by and among Retail
Property Investors, Inc., et al (collectively, the "Sellers")
and Glimcher Realty Trust (the "Purchaser")
Gentlemen:
Reference is made to (a) the Sale Agreement, as amended by Letter
Agreement (the "First Amendment") dated as of May 14, 1996 and (b) that
certain Deposit Escrow Agreement (the "Deposit Escrow Agent") dated as
of March 11, 1996 by and among the Sellers, Purchaser and Lawyers Title
Insurance Corporation (the "Deposit Escrow Agent"). All initially
capitalized terms used herein shall have the meanings set forth in the
Sale Agreement.
By mutual agreement, the first sentence of Section 9.1 of the Sale
Agreement is hereby deleted and the following replaced therefor:
The Escrow Closing shall occur at the offices of Goodwin
Procter & Hoar LLP, Exchange Place, Boston, MA at 10:00
am on June 6, 1996 (or such other date, time and place as
may be mutually agreed upon by Sellers and Purchaser)
(except as provided in the First Amendment, the "Escrow
Closing Date"); provided, however, that Sellers and
Purchaser shall each have the right to one extension of
the date on which the Escrow Closing would occur without
cost or penalty for a period of up to five (5) Business
Days by notice to the other for the exclusive purpose of
satisfying the conditions contained in Sections 10.1 and
10.2 below.
In the event the Escrow Closing has not occurred on or before June
6, 1996 Purchaser shall extend the expiration of the Letter of Credit
representing the Deposit to not sooner than ten (10) Business Days after
the then anticipated date on which the Escrow Closing would occur. If
the Letter of Credit has not been so extended on or before June 7, 1996,
Sellers and Purchaser each hereby direct the Deposit Escrow Agent to
draw upon the Letter of Credit and hold the proceeds thereof in escrow
under the terms of the Deposit Escrow Agreement.
This letter agreement is executed as an instrument under seal in
one or more counterparts, each of which shall be deemed to be an
original and all of which shall constitute one and the same instrument.
GLIMCHER REALTY TRUST
By: /s/ Herbert Glimcher
---------------------
Name: Herbert Glimcher
Title: Chairman
<PAGE>
AGREED TO AND ACKNOWLEDGED BY:
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
---------------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
------------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
Acknowledged and Agreed to:
PAINEWEBBER INCORPORATED
By: /s/ Terrence E. Fancher
---------------------------
Name: Terrence E. Fancher
Title: Managing Director<PAGE>
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
June 6, 1996
Retail Property Investors, Inc.
PaineWebber Retail Property Investors, Ltd.
PaineWebber Retail Property Investments
Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, MA 02110
Re: Amendment to Purchase and Sale Agreement (the "Sale
Agreement") dated as of March 11, 1996 by and among Retail
Property Investors, Inc., et al (collectively, the "Sellers")
and Glimcher Realty Trust (the "Purchaser")
Gentlemen:
Reference is made to (a) the Sale Agreement, as amended to date and
(b) that certain Deposit Escrow Agreement (the "Deposit Escrow Agent")
dated as of March 11, 1996 by and among the Sellers, Purchaser and
Lawyers Title Insurance Corporation (the "Deposit Escrow Agent"). All
initially capitalized terms used herein shall have the meanings set
forth in the Sale Agreement.
By mutual agreement, the first sentence of Section 9.1 of the Sale
Agreement is hereby deleted and the following replaced therefor:
The Escrow Closing shall occur at the offices of Goodwin
Procter & Hoar LLP, Exchange Place, Boston, MA at 10:00
am on June 13, 1996 (or such other date, time and place
as may be mutually agreed upon by Sellers and Purchaser)
(except as provided in the First Amendment, the "Escrow
Closing Date"); provided, however, that Sellers and
Purchaser shall each have the right to one extension of
the date on which the Escrow Closing would occur without
cost or penalty for a period of up to five (5) Business
Days by notice to the other for the exclusive purpose of
satisfying the conditions contained in Sections 10.1 and
10.2 below.
Attached hereto as Exhibit 1 is a copy of the extension of the
expiration date of the Letter of Credit, the original of which has been
delivered to the Deposit Escrow Agent under the terms and conditions of
the Deposit Escrow Agreement. Execution of this letter agreement and
delivery of an executed copy hereof to the Deposit Escrow Agent shall
constitute the mutual written notice and instruction to the Deposit
Escrow Agent regarding the extension of the expiration date of the
Letter of Credit and of the change in the Escrow Closing Date.
This letter agreement is executed as an instrument under seal in
one or more counterparts, each of which shall be deemed to be an
original and all of which shall constitute one and the same instrument.
GLIMCHER REALTY TRUST
By: /s/ George A. Schmidt
---------------------------
Name: George A. Schmidt
Title: Secretary
<PAGE>
AGREED TO AND ACKNOWLEDGED BY:
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
Acknowledged and Agreed to:
PAINEWEBBER INCORPORATED
By: /s/ Terrence E. Fancher
--------------------------
Name: Terrence E. Fancher
Title: Managing Director
<PAGE>
Exhibit 1
Copy of the Instrument Extending the Expiration Date of the Letter
of Credit
<PAGE>
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
June 13, 1996
Retail Property Investors, Inc.
PaineWebber Retail Property Investors, Ltd.
PaineWebber Retail Property Investments
Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, MA 02110
Re: Amendment to Purchase and Sale Agreement
(as amended to date, the "Sale
Agreement") dated as of March 11, 1996 by
and among Retail Property Investors,
Inc., et al (collectively, the "Sellers")
and Glimcher Realty Trust (the
"Purchaser")
Gentlemen:
Reference is made to (a) the Sale Agreement and (b) that
certain Deposit Escrow Agreement (the "Deposit Escrow Agent")
dated as of March 11, 1996 by and among the Sellers, Purchaser and
Lawyers Title Insurance Corporation (the "Deposit Escrow Agent").
All initially capitalized terms used herein shall have the
meanings set forth in the Sale Agreement.
By mutual agreement, the first sentence of Section 9.1 of the
Sale Agreement is hereby deleted and the following replaced
therefor:
The Escrow Closing shall occur at the offices of
Goodwin Procter & Hoar LLP, Exchange Place,
Boston, MA at 10:00 am on June 20, 1996 (or such
other date, time and place as may be mutually
agreed upon by Sellers and Purchaser) (except as
provided in the First Amendment, the "Escrow
Closing Date"); provided, however, that for the
exclusive purpose of satisfying the conditions
contained in Sections 10.1 and 10.2 below, either
Sellers or Purchaser shall have the right to extend
the date on which the Escrow Closing would occur
without cost or penalty to not later than June 27,
1996 by written notice to the other.
Section 3.1(b) of the Sale Agreement is hereby deleted and
the following paragraph replaced therefor:
(b) On the Escrow Closing Date, Purchaser shall deliver
to Closing Escrow Agent, at Purchaser's option, by wire
transfer of immediately available federal funds and/or
in the form of an irrevocable, standby letter of credit
issued by The Huntington National Bank (or such other
financial institution as may be acceptable to Sellers,
in their sole and absolute discretion) with an
expiration date not earlier than the Outside Date that
in the aggregate are an amount (the "Escrowed Purchase
Price") equal to the Purchase Price less any portion of
the Deposit made in immediately available federal funds
which are delivered to the Closing Escrow Agent as part
of the Escrow Closing Cash Deposit under the terms and
conditions of the Closing Escrow Agreement less the
principal balance of the Assumed Indebtedness
outstanding on the date upon which the Escrow Closing
occurs plus all of Purchaser's closing costs described
in Section 13.6 below. On the Escrow Closing Date,
Purchaser shall be entitled to receive from Deposit
Escrow Agent any letter of credit delivered as part of
the Deposit.
Sellers and Purchaser hereby agree that the third paragraph
of that certain letter agreement among the Purchaser and the
Sellers dated as of May 14, 1996 is hereby deleted.
Sellers and Purchaser hereby agree that the following shall
be added to section 6E of the Management Agreement to be executed
at the Escrow Closing: ", together with the Cash Flow attributed
to the period from May 14, 1996 through the Escrow Closing Date;
provided, however, that if the Escrow Closing does not commence on
June 20, 1996 the Cash Flow attributed to the period from June 20,
1996 through the Escrow Closing Date shall be excluded."
Execution of this letter agreement and delivery of an
executed copy hereof to the Deposit Escrow Agent shall constitute
the mutual written notice to the Deposit Escrow Agent regarding
the change in the Escrow Closing Date.
This letter agreement is executed as an instrument under seal
in one or more counterparts, each of which shall be deemed to be
an original and all of which shall constitute one and the same
instrument.
GLIMCHER REALTY TRUST
By: /s/ Herbert Glimcher
------------------------
Name: Herbert Glimcher
Title: Chairman
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
<PAGE>
AGREED TO AND ACKNOWLEDGED BY:
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
---------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
Acknowledged and Agreed to:
PAINEWEBBER INCORPORATED
By: /s/ Terrence E. Fancher
--------------------------
Name: Terrence E. Fancher
Title: Managing Director
<PAGE>
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
June 19, 1996
Retail Property Investors, Inc.
PaineWebber Retail Property Investors, Ltd.
PaineWebber Retail Property Investments
Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, MA 02110
Re: Amendment to Purchase and Sale Agreement (as
amended to date, the "Sale Agreement") dated
as of March 11, 1996 by and among Retail
Property Investors, Inc., et al (collectively,
the "Sellers") and Glimcher Realty Trust (the
"Purchaser")
Gentlemen:
Reference is made to (a) the Sale Agreement and (b) that
certain Deposit Escrow Agreement (the "Deposit Escrow Agent")
dated as of March 11, 1996 by and among the Sellers, Purchaser and
Lawyers Title Insurance Corporation (the "Deposit Escrow Agent").
All initially capitalized terms used herein shall have the
meanings set forth in the Sale Agreement.
Sellers and Purchaser hereby mutually agree to commence the
Escrow Closing on June 24, 1996 in the offices of Goodwin Procter
& Hoar LLP, Exchange Place, Boston, MA at 10:00 am; provided,
however, that nothing contained herein is intended to extend the
Escrow Closing Date, time remaining of the essence of the Sale
Agreement.
By mutual agreement, the first sentence of Section 9.1 of the
Sale Agreement is hereby deleted and the following replaced
therefor:
The Escrow Closing shall occur at the offices of
Goodwin Procter & Hoar LLP, Exchange Place,
Boston, MA at 10:00 am on June 27, 1996 (or such
other date, time and place as may be mutually
agreed upon by Sellers and Purchaser) (the "Escrow
Closing Date").
Sellers and Purchaser hereby agree that the final clause of
Section 6E of the Management Agreement to be executed at the
Escrow Closing (added by letter agreement dated June 13, 1996)
shall be as follows: ", together with the Cash Flow attributed to
the period from May 14, 1996 through the Escrow Closing Date."
Sellers and Purchaser hereby agree that the last two
sentences of Section 10.3 of the Sale Agreement are hereby deleted
and the following are replaced therefor:
In the event immediately available federal funds are
held in escrow under the Closing Escrow Agreement, (a)
Purchaser shall be entitled to the interest earned on
the portion of the Escrowed Purchase Price which will be
paid to parties other than Sellers, and (b) Sellers
shall be entitled to the interest on the remaining
portion of the Escrowed Purchase Price with interest
being deemed to begin to accrue as of June 20, 1996. In
the event immediately available federal funds are not
held in escrow under the Closing Escrow Agreement
Purchaser shall pay to Sellers at Closing an amount (the
"Interest Factor") equal to the product of that portion
of the Escrowed Purchase Price paid to Sellers at the
Closing multiplied by an interest rate per annum equal
to the six (6) month U.S. Treasury Bill rate published
in the Wall Street Journal on June 20, 1996 for the
number of days from June 20, 1996 through and including
the Closing Date.
Sellers and Purchaser hereby delete Section 13.2 of the Sale
Agreement and replace the following therefor:
13.2 Rents. Sellers and Purchaser shall prorate at
Escrow Closing all base or fixed rents ("Basic Rents")
and any escalations or pass through of operating and
other similar expenses ("Additional Rents") and any
prepaid Basic Rents or Additional Rents received from
all tenants and occupants of the Properties as of the
Escrow Closing Date for the month in which the Escrow
Closing occurs.
All prorations and adjustments made hereunder will
be made based upon the number of days of ownership of
each party in the period to which the payment or billing
relates, treating the Escrow Closing Date as the date of
transfer of ownership if the Closing occurs.
Amounts payable by tenants and occupants of the
Properties relating to sales made or gross receipts
realized during the year in which the Escrow Closing
Date occurs ("Percentage Rents") shall not be adjusted
for at Escrow Closing but rather shall be adjusted
within thirty (30) days of receipt of such amounts from
the applicable tenants of the Projects.
In addition, (i) all Basic Rents, Additional Rents
and Percentage Rents uncollected as of the Escrow
Closing Date and owed by tenants or occupants of the
Properties on the Escrow Closing Date for any period
during the three (3) months immediately preceding the
Escrow Closing Date, (ii) any monies due under
promissory notes owed by tenants or occupants of the
Properties which are not included in clause (i) and
(iii) of this paragraph, a list of which is attached
hereto and (iii) any monies otherwise due to Sellers for
aged receivables listed on the May 31, 1996 Aged Account
Receivable Report, a property level summary of which is
attached hereto (collectively, (i), (ii) and (iii), the
"Past Due Rent"), shall be reimbursed to Sellers by
Purchaser following Purchaser's collection thereof,
provided that all Basic Rents, Additional Rents and
Percentage Rents collected by Purchaser shall be applied
first to the month in which the Escrow Closing occurs
(if not previously collected), then to the current rents
due and payable and finally to Past Due Rent; provided,
however, that for purposes of the foregoing application,
prepayments of Basic Rents, Additional Rents and
Percentage Rents shall be applied to the immediately
succeeding month prior to being applied to Past Due
Rent.
All Additional Rents collected by Purchaser on and
after the Escrow Closing Date which are not due and
payable on the Escrow Closing Date shall be prorated
based upon the number of days in the period to which the
payment or billing therefor relates. Purchaser shall
use reasonable efforts to collect (i) all Past Due Rent
and (ii) all Additional Rents on and after the Escrow
Closing Date which are not due and payable on the Escrow
Closing Date in the usual course of operation of the
Properties, and any such amounts shall be paid to
Sellers within ten (10) Business Days following the end
of the month in which collection thereof occurred, after
deducting the reasonable expenses incurred in connection
with the collection thereof.
Sellers shall retain all rights relating to
all Basic Rents, Additional Rents and Percentage
Rents not included in Past Due Rents which are owed
by non-occupants of the Properties on the Escrow
Closing Date for any period prior to the Escrow
Closing Date (including the right to collect such
rents and charges), and there shall be no proration
of the same as between Sellers and Purchaser. If
any such amounts are paid to Purchaser they shall
be promptly remitted to Sellers.
Execution of this letter agreement and delivery of an
executed copy hereof to the Deposit Escrow Agent shall constitute
the mutual written notice to the Deposit Escrow Agent regarding
the change in the Escrow Closing Date and the commencement of the
Escrow Closing.
This letter agreement is executed as an instrument under seal
in one or more counterparts, each of which shall be deemed to be
an original and all of which shall constitute one and the same
instrument.
By: /s/ Herbert Glimcher
-------------------------
Name: Herbert Glimcher
Title: Chairman
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
<PAGE>
AGREED TO AND ACKNOWLEDGED BY:
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
Acknowledged and Agreed to:
PAINEWEBBER INCORPORATED
By: /s/ Terrence E. Fancher
----------------------------
Name: Terrence E. Fancher
Title: Managing Director
<PAGE>
Any dispute subject to the provisions of this section shall be
finally settled by arbitration conducted expeditiously in
accordance with the Center for Public Resources Rules for
Nonadministered Arbitration of Business Disputes (the "CPR
Rules"). The Center for Public Resources shall appoint a neutral
advisor from its National CPR Panel. The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. Sections
1-16, and judgment upon the award rendered by the arbitrators may
be entered by any court having jurisdiction thereof. The place of
arbitration shall be Boston, Massachusetts.
Such proceedings shall be administered by the neutral advisor
in accordance with the CPR Rules as he/she deems appropriate,
however, such proceedings shall be guided by the following agreed
upon procedures:
i. mandatory exchange of all relevant documents, to be
accomplished within ten (10) days of the initiation of
the procedure;
ii# no other discovery;
iii. hearings before the neutral advisor which shall
consist of a summary presentation by each side
of not more than three hours; such hearings to
take place on one or two days at a maximum and
if at all possible shall take place not longer
than twenty (20) days after the initial request
for arbitration; and
iv. decision to be rendered not more than ten (10) days
following such hearings.
<PAGE>
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
June 27, 1996
Retail Property Investors, Inc.
PaineWebber Property Investors, Ltd.
PaineWebber Retail Property
Investments Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street
Boston, MA 02110
Re: Purchase and Sale Agreement dated as of March 11, 1996
by and among Retail Property Investors, Inc., et al.
and Glimcher Realty Trust ("GRT"), as amended and as
assigned by GRT to Glimcher Properties Limited
Partnership
(the "Sale Agreement")
Gentlemen:
Reference is made to the above-mentioned Sale Agreement. All
initially capitalized terms used herein shall have the meanings
set forth in the Sale Agreement. We have agreed, as set forth in
the May 14, 1996 Letter Agreement modifying the Sale Agreement,
that the Purchase Price shall be allocated among the Properties
(solely for federal, state and local tax reporting purposes) as
set forth on the attached Schedule.
Please execute this letter in the place indicated below to
confirm that the foregoing represents our mutual understanding.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation,
general partner
By: /s/ Fred A. Zantello
------------------------
Name: Fred A. Zantello
Title: Executive Vice President
AGREED TO AND ACKNOWLEDGED BY:
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
----------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
<PAGE>
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
June 27, 1996
Retail Property Investors, Inc.
PaineWebber Property Investors, Ltd.
PaineWebber Retail Property
Investments Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street
Boston, MA 02110
Re: Purchase and Sale Agreement dated as
of March 11, 1996 by and among
Retail Property Investors, Inc., et
al. and Glimcher Realty Trust
("GRT"), as amended and as assigned
by GRT to Glimcher Properties
Limited Partnership (the "Sale
Agreement")
Gentlemen:
Reference is made to the above-mentioned Sale Agreement. All
initially capitalized terms used herein shall have the meanings
set forth in the Sale Agreement. We have agreed, as set forth in
the May 14, 1996 Letter Agreement modifying the Sale Agreement,
that the Purchase Price shall be allocated among the Properties
(solely for federal, state and local tax reporting purposes) as
set forth on the attached Schedule.
<PAGE>
Please execute this letter in the place indicated below to
confirm that the foregoing represents our mutual understanding.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation,
general partner
By: /s/ Fred A. Zantello
---------------------
Name: Fred A. Zantello
Title: Executive Vice President
AGREED TO AND ACKNOWLEDGED BY:
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Lawrence A. Cohen
----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Lawrence A. Cohen
-------------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
-----------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
---------------------
Name: Lawrence A. Cohen
Title: President and Chief Executive Officer
<PAGE>
Schedule 3.2
Allocation of Purchase Price
Property Allocation of
Purchase Price for Tax Purposes
Artesian Square 7,033,595
Audobon Village 5,614,525
Aviation Plaza 8,553,531
Barren River 11,267,573
Crossing Meadows 12,446,694
Crossroads Centre 8,283,772
Cumberland Crossing 6,729,637
East Pointe Plaza 12,129,256
Lexington Parkway 9,453,598
Logan Place 3,368,504
Marion Towne Center 7,264,482
Roane County Plaza 5,880,169
Southside Plaza 9,262,160
Village Plaza 23,408,448
College Plaza 10,328,415
Cross Creek Plaza 12,708,525
Cypress Bay Plaza 10,795,423
Franklin Square 9,380,038
Sycamore Square 3,092,717
Walterboro 6,006,150
Applewood Village 3,867,787
Piedmont Plaza 10,125,000
Total: 196,999,999
<PAGE>
Glimcher Realty Trust
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
October 16, 1996
Retail Property Investors, Inc.
PaineWebber Retail Property Investors, Ltd.
PaineWebber Retail Property Investments
Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street, 16th Floor
Boston, MA 02110
Re: Purchase and Sale Agreement (as amended to date, the
"Sale Agreement") dated as of March 11, 1996 by and
among Retail Property Investors, Inc., et al
(collectively, the "Sellers") and Glimcher Realty Trust
(the "GRT")
Gentlemen:
Reference is made to (a) the Sale Agreement and (b) that
certain Closing Escrow Agreement (the "Closing Escrow Agreement")
dated as of June 27, 1996 by and among the Sellers, GRT, Glimcher
Properties Limited Partnership (the "Purchaser") and Lawyers Title
Insurance Corporation (the "Closing Escrow Agent"). Each
initially capitalized term used herein and not otherwise defined
shall have the meaning ascribed thereto in the Closing Escrow
Agreement.
The Sellers' Closing Notice has been given and the Closing
Escrow Agent has been instructed to complete the Equity
Disbursement and to thereafter take the actions described on
Schedule B-2 to the Closing Escrow Agreement, each as modified by
the Closing Statement attached hereto as Schedule 2. Closing
Escrow Agent agrees to make the Equity Disbursement in accordance
with the instructions listed on Schedule 1 attached hereto.
Sellers, Purchaser and GRT hereby agree upon the adjustments
contained in the settlement statement attached hereto as Schedule
2 (the "Closing Statement").
Purchaser and GRT have instructed the applicable Seller to
execute and deliver the lease amendments listed on Schedule 3
attached hereto (in the form attached to the June 27, 1996 letter
agreement constituting part of the Sale Agreement (the "June 27
Amendment")). The applicable Seller shall execute and deliver
such lease amendments in full satisfaction of Sellers' obligations
with respect to those lease amendments under the June 27
Amendment. Purchaser and GRT recognize that the holders of the
Assumed Indebtedness listed on Schedule 3 have not consented to
the execution and delivery of the applicable lease amendment and
Purchaser and GRT hereby acknowledge and agree that the execution
and delivery of the lease amendments together with all
consequences thereof is and shall be Purchaser's sole
responsibility. GRT hereby agrees that any damages and/or
liabilities incurred by Sellers by reason of the applicable
Seller's execution of such lease amendments are hereby included in
GRT's obligation to indemnify, defend and hold Sellers harmless
under that certain Indemnification Agreement dated June 27, 1996
from GRT to Sellers (the "Indemnification Agreement").
Purchaser and GRT recognize that the holder of the Assumed
Indebtedness on Applewood has required that the management be
retained by Regency unless and until a comparable level of
management ability is demonstrated by the new ownership.
Purchaser and GRT hereby acknowledge and agree that the failure to
comply with such holder's requirement together with all
consequences thereof is and shall be Purchaser's sole
responsibility. GRT hereby agrees that any damages and/or
liabilities incurred by Sellers by reason of the Purchaser's
failure to comply with the holder's requirements are hereby
included in GRT's obligation to indemnify, defend and hold Sellers
harmless under the Indemnification Agreement.
Purchaser hereby acknowledges receipt of an appropriate
credit in the Closing Statement as complete and full compensation
for the Sellers' liability arising from the existence of phenolic
foam insulation at the Properties known as Barren River Plaza and
Applewood and hereby releases and waives any right or claim that
Purchaser might have under the Sale Agreement or the Management
Agreement or otherwise against the Sellers arising from the
existence of phenolic foam insulation at such Properties. Sellers
hereby assign and transfer to Purchaser for the benefit of
Purchaser any and all rights or claims held by Sellers under any
warranty, express or implied, or otherwise arising from the
existence of phenolic foam insulation at the Properties known as
Barren River Plaza and Applewood. To the extent Sellers,
Purchaser and the manufacturer of the phenolic foam insulation
have not entered into a written agreement regarding the
remediation thereof, Purchaser is entitled to negotiate directly
with the manufacturer and Sellers have no further obligations with
respect thereto.
Purchaser hereby acknowledges receipt of an appropriate
credit in the Closing Statement as complete and full compensation
under the Sale Agreement and the Management Agreement for the
Sellers' responsibility for expenditures under the Capital Budget
(as defined in the Sale Agreement).
Sellers acknowledge and agree that Net Cash Flow under the
Management Agreement has been reconciled and agreed upon through
July 31, 1996 outside of the Closing Statement. Within five (5)
Business Days after the date hereof Purchaser shall calculate the
Net Cash Flow for the months of August and September, 1996,
provide the Sellers with all backup therefor and remit Past Due
Rents to Sellers in accordance with the terms of the Sale
Agreement. Within fifteen (15) days after October 31, 1996
Purchaser shall calculate the Net Cash Flow for the month of
October, 1996, provide Sellers with all back up therefor and remit
Past Due Rents (to the extent collected) to Sellers in accordance
with the terms of the Sale Agreement. To the extent that
adjustments and prorations have not been made for such items on
the Closing Statement, Net Cash Flow shall be calculated and
Purchaser shall be entitled to retain such Net Cash Flow
(consistent with the prior calculations of Net Cash Flow) in
accordance with the terms of the Sale Agreement and the Management
Agreement. Purchaser agrees to provide Sellers with evidence of
its reasonable efforts to collect all Past Due Rent (i.e., provide
copies of letters to tenants and provide copies of reports
regarding follow up phone calls and cash receipts and aged
delinquency reports etc.).
Purchaser and Sellers have agreed that Closing Escrow Agent
shall hold out of the Equity Distribution 150% of the amount of
the mechanic's lien listed on Schedule 4 attached hereto in
escrow pending resolution or release of the lien. Sellers believe
that the obligation to satisfy the lien is the tenant's
obligation. Purchaser agrees to use diligent efforts to cause the
tenant to satisfy or discharge the lien (but Purchaser shall not
be required to incur any expense, commence any litigation or
terminate the lease). In the event, despite such diligent
efforts, such tenant has not satisfied or discharged or caused the
satisfaction or discharge of the lien within thirty (30) days from
the date hereof, Sellers shall have the right to sue the tenant.
Purchaser agrees to cooperate, at Sellers' expense, with Sellers
in the pursuit of any such suit. In the event the lien has been
satisfied or discharged on or before December 31, 1996, Closing
Escrow Agent shall return said escrow to Sellers within five (5)
business days of the resolution thereof. In the event the lien
has not been satisfied or discharged on or before December 31,
1996, Closing Escrow Agent shall have the right to pay said lien
from said escrow. In any event, after the payment or satisfaction
of the lien, the Closing Escrow Agent shall return any escrow
balance to the Sellers or their designee. In the event the lien
is satisfied or discharged out of the escrow established
hereunder, Purchaser shall use diligent efforts (but Purchaser
shall not be required to incur any expense, commence any
litigation or terminate the lease) to seek reimbursement from said
tenant and upon receipt of such reimbursement shall promptly
reimburse Sellers or their designee.
Sellers have (at their cost and expense) previously delivered
to Purchaser and/or GRT copies of leases, contracts, plans and
specifications for the Properties. Purchaser has requested that
the Sellers' original counterparts be delivered to the Purchaser.
To the extent that Sellers have originals of such documents and
materials, they will deliver such originals to Purchaser.
Purchaser hereby agrees to use its diligent efforts to return
copies of the leases, contracts, plans and specifications to the
Sellers. To the extent that Purchaser does not return such
copies, Purchaser hereby agrees to provide copies of any and all
such documents and materials to Sellers promptly after written
request therefor.
This letter agreement is executed as an instrument under seal
in one or more counterparts, each of which shall be deemed to be
an original and all of which shall constitute one and the same
instrument.
GLIMCHER REALTY TRUST
By: /s/ George A. Schmidt
-------------------------
Name: George A. Schmidt, Secretary
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation,
general partner
By: /s/ George A. Schmidt
----------------------------
Name: George A. Schmidt, Secretary
Acknowledged and Agreed:
LAWYERS TITLE INSURANCE CORPORATION
By: /s/ Christopher J. Bruno
-------------------------
Name: Christopher J. Bruno
Title: Counsel
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
<PAGE>
RETAIL PROPERTY INVESTORS, INC.
By: /s/ Walter V. Arnold
------------------------
Name: Walter V. Arnold
Title: Senior Vice President
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS, LTD.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Lawrence A. Cohen
------------------------
Name: Walter V. Arnold
Title: Senior Vice President
PAINEWEBBER RETAIL PROPERTY
INVESTMENTS JOINT VENTURE
By: Retail Property Investors, Inc.,
a Venturer thereof
By: /s/ Walter V. Arnold
-------------------------
Name: Walter V. Arnold
Title: Senior Vice President
By: PaineWebber Properties Incorporated,
a Venturer thereof
By: /s/ Walter V. Arnold
------------------------
Name: Walter V. Arnold
Title: Senior Vice President
PAINEWEBBER COLLEGE PLAZA, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Walter V. Arnold
-----------------------
Name: Walter V. Arnold
Title: Senior Vice President
PAINEWEBBER MARION TOWNE, L.P.
By: Retail Property Investors, Inc.,
General Partner
By: /s/ Walter V. Arnold
-----------------------
Name: Walter V. Arnold
Title: Senior Vice President
<PAGE>
Schedule 1
Disbursement Instructions attached hereto
$36,370,502.72 disbursement to RPI in accordance with the
wire instructions attached hereto in the amount contained in the
Closing Statement attached hereto as Schedule 2.
<PAGE>
Schedule 2
Closing Statement attached hereto
Third party disbursements are contained on page 3 of the
Closing Statement attached hereto.
<PAGE>
Schedule 3
Lease Amendments
Property Lease Amendment Holder of
Assumed Indebtedness
Artesian Square Fourth Amendment to Lease Travelers
Agreement
East Pointe Plaza Third Amendment to Lease Nationwide
Agreement
<PAGE>
Schedule 4
Description of Mechanic's Lien
Sam Givens, d/b/a Captain Sam's Seafood Restaurant -
Walterboro Plaza, S.C.
<PAGE>
Glimcher Properties Limited Partnership
20 South Third Street
Columbus, Ohio 43215
October 17, 1996
Retail Property Investors, Inc.
PaineWebber Property Investors, Ltd.
PaineWebber Retail Property
Investments Joint Venture
PaineWebber College Plaza, L.P.
PaineWebber Marion Towne, L.P.
c/o PaineWebber Properties Incorporated
265 Franklin Street
Boston, MA 02110
Re: Purchase and Sale Agreement dated as
of March 11, 1996 by and among
Retail Property Investors, Inc., et
al. and Glimcher Realty Trust
("GRT"), as amended and as assigned
by GRT to Glimcher Properties
Limited Partnership (the "Sale
Agreement")
Gentlemen:
Reference is made to the above-mentioned Sale Agreement. All
initially capitalized terms used herein shall have the meanings
set forth in the Sale Agreement. Our prior agreement dated June
27, 1996 to the contrary notwithstanding, we have agreed, as set
forth in the May 14, 1996 Letter Agreement modifying the Sale
Agreement, that the Purchase Price shall be allocated among the
Properties (solely for federal, state and local tax reporting
purposes) as set forth on the attached Schedule.
Please execute this letter in the place indicated below to
confirm that the foregoing represents our mutual understanding.
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
By: Glimcher Properties Corporation,
general partner
By: /s/ George A. Schmidt
----------------------
Name: George A. Schmidt
Title: Secretary
[Remainder of Page Intentionally Blank]
<PAGE>
Allocation of Purchase Price as of Closing
Property Allocation of Purchase
Price for Tax Purposes
Artesian Square 7,233,595
Audobon Village 5,814,525
Aviation Plaza 8,753,531
Barren River 11,667,573
Crossing Meadows 12,846,694
Crossroads Centre 8,483,772
Cumberland Crossing 6,929,637
East Pointe Plaza 12,129,256
Lexington Parkway 9,653,598
Logan Place 3,468,504
Marion Towne Center 7,264,482
Roane County Plaza 6,080,169
Southside Plaza 9,262,160
Village Plaza 21,108,448
College Plaza 10,328,415
Cross Creek Plaza 12,708,525
Cypress Bay Plaza 10,795,423
Franklin Square 9,380,038
Sycamore Square 3,092,717
Walterboro 6,006,150
Applewood Village 3,867,787
Piedmont Plaza 10,125,000
Total: 196,999,999
