AGREEMENT OF PURCHASE AND SALE
among
SHOPCO MALLS L.P., the SELLER
and
BARKER PACIFIC GROUP, INC., the BUYER
As of September __, 1999
TABLE OF CONTENTS
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Page
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SALE, PURCHASE PRICE AND CLOSING . . . . . . . . . . . . . . . . . . . . . 5
Section 2.1 Sale of Asset. . . . . . . . . . . . . . . . . . . . . . 5
Section 2.2 Earnest Money. . . . . . . . . . . . . . . . . . . . . . 6
Section 2.3 The Closing . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER . . . . . . . . . . 8
Section 3.1 General Seller Representations and Warranties . . . . . 8
(a) Formation; Existence . . . . . . . . . . . . . . . . . . . 8
(b) Power and Authority . . . . . . . . . . . . . . . . . . . . 8
(c) No Consents . . . . . . . . . . . . . . . . . . . . . . . . 8
(d) No Conflicts . . . . . . . . . . . . . . . . . . . . . . . 8
(e) Foreign Person . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.2 Representations and Warranties of the Seller as to the
Asset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Ownership of the Asset . . . . . . . . . . . . . . . . . . 8
(b) Material Contracts . . . . . . . . . . . . . . . . . . . . 9
(c) Space Leases . . . . . . . . . . . . . . . . . . . . . . . 9
(d) Brokerage Commissions . . . . . . . . . . . . . . . . . . . 9
(e) Condemnation . . . . . . . . . . . . . . . . . . . . . . . 9
(f) Litigation . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.3 Covenants of the Seller Prior to Closing . . . . . . . . 10
(a) Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Operation . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) New Contracts . . . . . . . . . . . . . . . . . . . . . . . 10
(d) New Leases . . . . . . . . . . . . . . . . . . . . . . . . 10
(e) Litigation . . . . . . . . . . . . . . . . . . . . . . . . 11
(f) Sale of Personal Property . . . . . . . . . . . . . . . . . 11
(g) Performance Under Space Leases . . . . . . . . . . . . . . 12
(h) Subordination, Non-Disturbance and Attornment Agreements . . 12
Section 3.4 Survival of Representations and Warranties . . . . . . . 12
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BUYER . . . . . . . . . . 12
Section 4.1 Representations, Warranties and Covenants of the Buyer. 12
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(a) Formation; Existence . . . . . . . . . . . . . . . . . . . 12
(b) Power; Authority . . . . . . . . . . . . . . . . . . . . . 12
(c) No Consents . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) No Conflicts . . . . . . . . . . . . . . . . . . . . . . . 13
(e) Examination; No Contingencies . . . . . . . . . . . . . . . 13
(f) Good Faith Efforts . . . . . . . . . . . . . . . . . . . . 16
(g) Brokerage Commissions . . . . . . . . . . . . . . . . . . . 16
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CONDITIONS PRECEDENT TO CLOSING . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.1 Conditions Precedent To Seller's Obligations. . . . . . 16
Section 5.2 Conditions to the Buyer's Obligations. . . . . . . . . . 18
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
INSPECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 7.1 Right of Inspection. . . . . . . . . . . . . . . . . . . 21
Section 7.2 Due Diligence Period . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
TITLE AND PERMITTED EXCEPTIONS . . . . . . . . . . . . . . . . . . . . . . 22
Section 8.1 Permitted Exceptions . . . . . . . . . . . . . . . . . . 22
Section 8.2 Title Report . . . . . . . . . . . . . . . . . . . . . . 23
Section 8.3 Use of Purchase Price to Discharge Title Exceptions . . 23
Section 8.4 Inability to Convey . . . . . . . . . . . . . . . . . . 23
Section 8.5 Rights in Respect of Inability to Convey . . . . . . . . 24
Section 8.6 Voluntary Title Exceptions . . . . . . . . . . . . . . . 24
Section 8.7 The Buyer's Right to Accept Title . . . . . . . . . . . 25
Section 8.8 Cooperation . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
TRANSACTION COSTS; RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . 25
Section 9.1 Transaction Costs. . . . . . . . . . . . . . . . . . . . 25
Section 9.2 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.1 Fixed Rents. . . . . . . . . . . . . . . . . . . . . . 27
Section 10.2 Overage Rents. . . . . . . . . . . . . . . . . . . . . 28
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Section 10.3 Taxes and Assessments. . . . . . . . . . . . . . . . . 30
Section 10.4 Water and Sewer Charges. . . . . . . . . . . . . . . . 31
Section 10.5 Utility Charges. . . . . . . . . . . . . . . . . . . . 31
Section 10.6 Material Contracts. . . . . . . . . . . . . . . . . . . 32
Section 10.7 Leasing Costs . . . . . . . . . . . . . . . . . . . . . 32
Section 10.8 Miscellaneous Revenues. . . . . . . . . . . . . . . . . 32
Section 10.9 Supplies. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 10.10 Security Deposits. . . . . . . . . . . . . . . . . . . 33
Section 10.11 Employee Costs. . . . . . . . . . . . . . . . . . . . 33
Section 10.12 Other. . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 10.13 Re-Adjustment . . . . . . . . . . . . . . . . . . . . 33
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 11.1 Indemnification by the Seller . . . . . . . . . . . . . 33
Section 11.2 Indemnification by the Buyer . . . . . . . . . . . . . 34
Section 11.3 Survival . . . . . . . . . . . . . . . . . . . . . . . 34
Section 11.4 Indemnification as Sole Remedy . . . . . . . . . . . . 35
ARTICLE XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
TAX CERTIORARI PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 12.1 Prosecution and Settlement of Proceedings. . . . . . . 35
Section 12.2 Application of Refunds or Savings. . . . . . . . . . . 35
Section 12.3 Survival. . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 13.1 Default. . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 14.1 Exculpation of Seller. . . . . . . . . . . . . . . . . 36
Section 14.2 Brokers. . . . . . . . . . . . . . . . . . . . . . . . 37
Section 14.3 Confidentiality; Press Release,
IRS Reporting Requirements . . . . . . . . . . . . . 37
Section 14.4 Escrow Provisions . . . . . . . . . . . . . . . . . . 38
Section 14.5 Successors and Assigns; No Third-Party Beneficiaries . 39
Section 14.6 Assignment. . . . . . . . . . . . . . . . . . . . . . 39
Section 14.7 Further Assurances. . . . . . . . . . . . . . . . . . 39
Section 14.8 Notices. . . . . . . . . . . . . . . . . . . . . . . . 40
Section 14.9 Entire Agreement. . . . . . . . . . . . . . . . . . . 41
Section 14.10 Amendments. . . . . . . . . . . . . . . . . . . . . . 41
Section 14.11 No Waiver. . . . . . . . . . . . . . . . . . . . . . . 41
Section 14.12 Governing Law. . . . . . . . . . . . . . . . . . . . . 41
Section 14.13 Submission to Jurisdiction. . . . . . . . . . . . . . 41
Section 14.14 Severability. . . . . . . . . . . . . . . . . . . . . 42
Section 14.15 Section Headings. . . . . . . . . . . . . . . . . . . 42
Section 14.16 Counterparts. . . . . . . . . . . . . . . . . . . . . 42
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Section 14.17 Acceptance of Deed. . . . . . . . . . . . . . . . . . 42
Section 14.18 Construction. . . . . . . . . . . . . . . . . . . . . 42
Section 14.19 Recordation. . . . . . . . . . . . . . . . . . . . . . 42
Section 14.20 Waiver of Jury Trial. . . . . . . . . . . . . . . . . 43
Exhibits
Exhibit A - Assignment of Leases
Exhibit B - Assignment of Contracts
Exhibit C - Tenant Notices
Exhibit D - Special Warranty Deed
Exhibit E - Bill of Sale
Exhibit F - FIRPTA Certificate
Schedules
Schedule A - Legal Description
Schedule B - Existing Title Policy and Survey
Schedule C - Third Party Loan
Schedule D - Consents
Schedule E - Material Contracts
Schedule F - Space Leases
Schedule F-1 - Temporary Leases
Schedule G - Brokerage Commissions
Schedule H - Litigation
Schedule I - Buyer Consents
Schedule J - Security Deposits Held By the Seller
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AGREEMENT OF PURCHASE AND SALE
------------------------------
AGREEMENT OF PURCHASE AND SALE (this "Agreement"), made as of the
11th day of September, 1999 by and among SHOPCO MALLS L.P., a Delaware
limited partnership ("Seller"), and BARKER PACIFIC GROUP, INC., a Delaware
corporation ("Buyer"), and FIRST AMERICAN TITLE INSURANCE COMPANY, as escrow
agent ("Escrow Agent")
Background
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A. The Seller is the owner of the land described in Schedule A
attached hereto, together with the buildings and other improvements thereon
(collectively, the "Property"). The Property, together with the Asset-
Related Property (as defined below) with respect to the Property, shall be
referred to herein, collectively, as the "Asset".
B. The Seller desires to sell to the Buyer, and the Buyer desires
to purchase from the Seller, the Asset on the terms and conditions
hereinafter set forth.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Section 1.1 Defined Terms. The capitalized terms used herein
will have the following meanings.
"Additional Earnest Money" shall have the meaning assigned thereto
in subsection 2.2(b)(ii).
"Agreement" shall mean this Agreement of Purchase and Sale and all
amendments hereto, together with the exhibits and schedules attached hereto,
as the same may be amended, restated, supplemented or otherwise modified.
"Asset" shall have the meaning assigned thereto in "Background"
paragraph A.
"Asset File" shall mean the materials with respect to the Property
previously delivered to the Buyer or its representatives by or on behalf of
the Seller.
"Asset-Related Property" shall have the meaning assigned thereto in
subsection 2.1(b).
"Assignment of Contracts" shall have the meaning assigned thereto
in Article VI.
"Assignment of Leases" shall have the meaning assigned thereto in
Article VI.
"Bill of Sale" shall have the meaning assigned thereto in Article
VI.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banks are authorized or required by law to be closed in
New York City, New York.
"Buyer" shall have the meaning assigned thereto in the Preamble to
this Agreement.
"Closing" shall have the meaning assigned thereto in subsection
2.3(a).
"Closing Date" shall have the meaning assigned thereto in
subsection 2.3(a).
"Condition of the Assets" shall have the meaning assigned thereto
in subsection 4.1(e)(ii).
"Deed" shall have the meaning assigned thereto in Article VI.
"Due Diligence Expiration Date" shall have the meaning assigned
thereto in subsection 7.2(a).
"Earnest Money" shall have the meaning assigned thereto in
subsection 2.2(b).
"Escrow Account" shall have the meaning assigned thereto in
subsection 14.5(a).
"Escrow Agent" shall have the meaning assigned thereto in
subsection 2.2(b)(i).
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"Existing Survey" shall mean the survey with respect to the
Property listed on Schedule B attached hereto.
"Existing Title Policy" shall mean the title commitment with
respect to the Property listed on Schedule B attached hereto.
"Fixed Rents" shall have the meaning assigned thereto in subsection
10.1(a).
"Hazardous Materials" shall have the meaning assigned thereto in
subsection 4.1(e)(ii)(A).
"Initial Earnest Money" shall have the meaning assigned thereto in
subsection 2.2(b)(i).
"Insignia" shall mean Insignia/ESG, Inc.
"IRS" shall mean the Internal Revenue Service.
"IRS Reporting Requirements" shall have the meaning assigned
thereto in subsection 14.4(b).
"Lender" shall mean Metropolitan Life Insurance Company.
"Limited Partner Approval" shall mean approval to the transaction
by over 66.66% of the limited partners of Shopco Regional Malls, L.P.
"Material Contracts" shall have the meaning assigned thereto in
subsection 3.2(b).
"Overage Rent" shall have the meaning assigned thereto in
subsection 10.2(a).
"Permitted Exceptions" shall mean (i) the Space Leases and
Temporary Leases affecting the Property and any Space Leases, and Temporary
Leases entered into after the date, and in accordance with the terms, of this
Agreement, (ii) liens for current real estate taxes which are not yet due and
payable, (iii) standard exceptions and provisions contained in forms of title
insurance policies, (iv) subject to the adjustments provided for herein, any
service, installation, connection or maintenance charge due after Closing and
charges for sewer, water, electricity, telephone, cable television or gas,
(v) rights of vendors and holders of security interests on personal property
installed on the Property by tenants and rights of tenants to remove trade
fixtures at the expiration of the term of the Space Leases of such tenants,
(vi) matters contained in the updated title commitment or survey with respect
to the Property obtained by the Buyer as required under Section 8.2 which
matters do not qualify as Permitted Exceptions under one of the other clauses
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of this definition and with respect to which either (A) the Buyer has not
raised an objection within the time period required in Section 8.2 or (B) the
Buyer has raised an objection within the time period required in Section 8.2
and the Seller has not agreed to cause such title exception to be removed
prior to Closing, and (vii) any other restrictions, easements, encumbrances
and other exceptions encumbering the Property which do not individually
materially interfere with the continued use of the relevant Property (the
matters described in clauses (i) through (vi) above, collectively, the
"Permitted Exceptions").
"Person" shall mean a natural person, partnership, limited
partnership, limited liability company, corporation, trust, estate,
association, unincorporated association or other entity.
"Property" shall have the meaning assigned thereto in "Background"
paragraph A.
"Purchase Price" shall have the meaning assigned thereto in
subsection 2.2(a).
"Reporting Person" shall have the meaning assigned thereto in
subsection 14.4(b).
"Seller" shall have the meaning assigned thereto in the Preamble to
this Agreement.
"Seller-Related Entities" shall have the meaning assigned thereto
in subsection 10.2.
"Seller's Knowledge" shall mean the actual knowledge of the Seller
based upon the actual knowledge of Michael T. Marron, without any duty on the
part of any such executive officer or other Person to conduct any independent
investigation or make any inquiry of any Person.
"Space Lease" shall have the meaning assigned thereto in subsection
3.2(c).
"Temporary Lease" shall have the meaning assigned thereto in
subsection 3.2(c).
"Tenant Notices" shall have the meaning assigned thereto in Article
VI.
"Third Party Loan" shall mean the loan described on Schedule C
attached hereto.
"TI Costs" shall have the meaning assigned thereto in Section 10.7.
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"Voluntary Title Exceptions" shall mean with respect to the
Property, title exceptions affecting the Property that are knowingly and
intentionally created by the Seller after the date of this Agreement through
the execution by the Seller of one or more instruments creating or granting
such title exceptions; provided, however, that the term "Voluntary Title
Exceptions" as used in this Agreement shall not include the following: (a)
any Permitted Exceptions; (b) Space Leases or Temporary Leases for the
Property or any title exception created pursuant to a Space Lease or a
Temporary Lease for the Property by the tenant thereunder; (c) any title
exceptions that are approved, waived or deemed to have been approved or
waived by the Buyer or that are created in accordance with the provisions of
this Agreement; (d) any title exceptions which, pursuant to a Space Lease or
a Temporary Lease for the Property or otherwise, are to be discharged by a
tenant or occupant of the Property; (e) mechanic's or materialman's liens or
(f) any federal, state county and municipal tax liens.
ARTICLE II
SALE, PURCHASE PRICE AND CLOSING
--------------------------------
Section 2.1 Sale of Asset. (a) On the Closing Date and pursuant
to the terms and subject to the conditions set forth in this Agreement, the
Seller shall sell to the Buyer, and the Buyer shall purchase from the Seller,
the Asset.
(b) The transfer of the Asset to the Buyer shall include the
transfer of all Asset-Related Property with respect to the Asset. For
purposes of this Agreement, "Asset-Related Property" shall mean all of the
Seller's right, title and interest in and to (A) all easements, covenants and
other rights appurtenant to the Property and all right, title and interest of
the Seller, if any, in and to any land lying in the bed of any street, road,
avenue or alley, open or closed, in front of or adjoining the Property and to
the center line thereof, (B) all furniture, fixtures, equipment and other
personal property (except items owned or leased by tenants or which are
leased by the Seller) which are now, or may hereafter prior to the Closing
Date be, placed in or attached to the Property, (C) to the extent they may be
transferred under applicable law, all licenses, permits and authorizations
presently issued in connection with the operation of all or any part of the
Property as it is presently being operated, (D) to the extent assignable, all
warranties, if any, issued to the Seller by any manufacturer or contractor in
connection with construction or installation of equipment or any component of
the improvements included as part of the Property, (E) to the extent
assignable, all service, supply and maintenance contracts (if any) held by
the Seller with respect to the Property and its mechanical equipment,
elevators and other elements, (F) to the extent assignable, all trade names
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and general intangibles relating to the Property and (G) all leases,
licenses, contracts and other agreements, to the extent transferable, for the
use and occupancy of all or any part of the Property and all security and
escrow deposits held by the Seller in connection with any such leases,
licenses, contracts and other agreements.
Section 2.2 Earnest Money. (a) The consideration for the Asset
shall be equal to Thirty-Four Million Six Hundred and Eighty Thousand Dollars
($34,680,000) (the "Purchase Price"), which shall be paid by the Buyer to the
Seller at the Closing by wire transfer of funds, provided that such amount
shall be reduced by the Earnest Money (as defined below) and adjusted for
Closing adjustments as described in Article X below.
(b) The Purchase Price shall be paid to the Seller as follows:
(i) upon execution of this Agreement, the Buyer shall deposit with
Escrow Agent an amount equal to Two Hundred Thousand Dollars ($200,000)
(together with any interest earned thereon, the "Initial Earnest Money")
in immediately available funds by wire transfer to such account as
Escrow Agent shall designate to Escrow Agent.
(ii) on or before the Due Diligence Expiration Date (as
hereinafter defined), unless this Agreement is terminated pursuant to
the terms of Article VII or as may be otherwise provided in this
Agreement, Buyer shall deposit with Escrow Agent by wire transfer of
immediately available funds, an additional downpayment in the amount of
$200,000 (the "Additional Earnest Money"). The Initial Earnest Money
and all interest earned thereon, and, as of the Due Diligence Expiration
Date, the Additional Earnest Money and all interest earned thereon,
shall be hereinafter referred to as the Earnest Money.
The Earnest Money shall be held in escrow in accordance with the
provisions of Section 14.4 and shall be nonrefundable to the Buyer
except if all of the conditions set forth in Section 5.2 have not been
met by the Closing Date or otherwise as set forth in Article VII below.
(iii) on the Closing Date, (A) the Buyer shall deliver the
remainder of the Purchase Price to the Seller in immediately available
funds by wire transfer to such account or accounts that the Seller shall
designate to the Buyer and (B) the Escrow Agent shall deliver the
Earnest Money to Seller by wire transfer to such account or accounts
that Seller shall designate to Buyer.
(c) No adjustment shall be made to the Purchase Price except as
explicitly set forth in this Agreement.
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Section 2.3 The Closing. (a) The closing of the sale and purchase
of the Asset (the "Closing") shall take place on (i) the day that is thirty
(30) business days after the Due Diligence Expiration Date or (ii) on an
earlier date suggested by Buyer and reasonably acceptable to Seller (the
"Closing Date").
(b) Seller shall have the right from time to time to extend the
Closing Date for a total of sixty (60) days after the contemplated Closing
Date pending (i) Limited Partner Approval and (ii) Lender's scheduling of a
Closing. Buyer shall have the right from time to time to extend the Closing
Date for a total of sixty (60) days after the contemplated Closing Date if
required by Buyer's lender in connection with Buyer's financing of the
Purchase Price. Notwithstanding the foregoing, in the event the Closing has
not occurred on the date that is ninety (90) after the original Closing Date,
the Closing shall be held on such ninetieth day, TIME BEING OF THE ESSENCE
WITH RESPECT THERETO.
(c) The Closing shall be held on the Closing Date at 10:00 A.M. at
the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York,
New York, or at such other location agreed upon by the parties hereto.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER
-------------------------------------------------------
Section 3.1 General Seller Representations and Warranties. The
Seller hereby represents, warrants and covenants to the Buyer as of the date
hereof and as of the Closing Date as follows:
(a) Formation; Existence. It is a limited partnership, duly
formed, validly existing and in good standing under the laws of the
state of Delaware. Seller either is or as of Closing will be qualified
to do business and be in good standing under the laws of the State of
Maryland.
(b) Power and Authority. It has all requisite power and authority
to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of the
transactions provided for in this Agreement have been duly authorized by
all necessary action on its part. This Agreement has been duly executed
and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights and
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by general principles of equity (whether applied in a proceeding at law
or in equity).
(c) No Consents. Except (i) as set forth in Schedule D and (ii)
for any consent, license, approval, order, permit, authorization,
registration, filing or declaration, the failure of which to obtain will
not materially adversely effect (A) the Seller's ability to consummate
the transactions contemplated by this Agreement, (B) the ownership of
the Asset or (C) the operation of the Property, no consent, license,
approval, order, permit or authorization of, or registration, filing or
declaration with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, is
required to be obtained or made in connection with the execution,
delivery and performance of this Agreement or any of the transactions
required or contemplated hereby.
(d) No Conflicts. To the Seller's Knowledge, the execution,
delivery and compliance with, and performance of the terms and
provisions of, this Agreement, and the sale of the Asset, will not (i)
except with respect to the consent disclosed on Schedule D hereto,
conflict with or result in any violation of its organizational
documents, (ii) except with respect to the consent disclosed on Schedule
D hereto, conflict with or result in any violation of any provision of
any bond, note or other instrument of indebtedness, contract, indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party in its individual capacity, or (iii)
violate any existing term or provision of any order, writ, judgment,
injunction, decree, statute, law, rule or regulation applicable to it or
its assets or properties except, in each case, for any conflict or
violation which (A) will not materially adversely effect (1) the
Seller's ability to consummate the transactions contemplated by this
Agreement, (2) the ownership of the Asset or (3) the operation of the
Property or (B) arises under the documents evidencing or securing the
Third Party Loan (which Third Party Loan documents shall be released on
or before Closing).
(e) Foreign Person. The Seller is not a "foreign person" as
defined in Internal Revenue Code Section 1445 and the regulations issued
thereunder.
Section 3.2 Representations and Warranties of the Seller as to the
Asset. The Seller hereby represents, warrants and covenants to the Buyer as
of the date hereof and as of the Closing Date, as follows:
(a) Ownership of the Asset. It is the owner and holder of the
Asset and the Asset is held by it free and clear of any lien, pledge,
charge, security interest, encumbrance, title retention agreement,
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adverse claim or restriction except for the Permitted Exceptions and
possible security interests which will be terminated prior to the
Closing. It has the right to sell the Asset pursuant to the terms of
this Agreement. Upon transfer of the Property by it to the Buyer and
upon delivery by the Buyer to the Seller of the Purchase Price, the
Buyer will receive the Property free and clear of any encumbrances
(other than the Permitted Exceptions and any encumbrances arising from
acts of the Buyer or its affiliates). It has not prior to the date
hereof sold (or entered into an agreement to sell) the Asset (except for
the possible granting of security interests, all of which will either be
terminated prior to, or taken subject to by Buyer at, the Closing).
(b) Material Contracts. To the Seller's Knowledge, all material
service, maintenance, supply, construction, development and management
contracts ("Material Contracts") affecting the Property are set forth on
Schedule E attached hereto and the same have not been modified or
amended, except as shown in such documents. To Seller's Knowledge, all
Material Contracts are terminable upon thirty days notice.
(c) Space Leases. With respect to the leases listed on Schedule F
attached hereto (the "Space Leases"), to the Seller's Knowledge such
Space Leases constitute all the leases of space for over 1000 square
feet relating to the Property under which the Seller is the holder of
the landlord's interest. True copies of the Space Leases have been
delivered or made available to the Buyer. With respect to the leases
listed on Schedule F-1 attached hereto ("Temporary Leases"), to the
Seller's knowledge, such Temporary Leases constitute all of the leases
of space under 1,000 square feet which the Seller is the holder of
landlord's interest.
(d) Brokerage Commissions. To the Seller's Knowledge, there
are no brokerage commissions or finders' fees payable by the
landlord with respect to the current or any renewal term of any of
the Space Leases or Temporary Leases other than those set forth on
Schedule G attached hereto and the Seller has no agreement with any
broker with respect to any renewal term of any Space Lease or
Temporary Lease except as set forth in Schedule G.
(e) Condemnation. To the Seller's Knowledge, the Seller
knows of no pending condemnation or similar proceedings affecting
the Property, nor does the Seller have knowledge that any such
action is threatened or contemplated.
(f) Litigation. To the Seller's Knowledge, except as
disclosed in Schedule H attached hereto, there are no actions,
suits or proceedings pending against or affecting the Asset in any
court or before or by an arbitration tribunal or regulatory
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commission, department or agency which, if adversely determined,
would materially adversely affect (1) the Seller's ability to
consummate the transactions contemplated by this Agreement, (2) the
ownership of the Asset or (3) the operation of the Property.
Section 3.3 Covenants of the Seller Prior to Closing. Until
Closing, the Seller or the Seller's agents shall:
(a) Insurance. Keep the Property insured against fire and
other hazards covered by the insurance policies maintained by the
Seller on the date of this Agreement.
(b) Operation. Operate and maintain the Property in a
businesslike manner and substantially in accordance with the
Seller's past practices with respect to the Property.
(c) New Contracts. Enter into third party contracts relating
to the Property, provided that, without the prior written consent
of the Buyer, which consent shall not be unreasonably withheld, the
Seller will not enter into any new third party contracts unless any
such contract (i) is necessary as a result of an emergency at the
Property, or (ii) is a contract other than a construction contract
being entered into for improvements contemplated by any proposed
Space Lease or Temporary Lease (not entered into prior to the date
hereof). If the Seller enters into any third party contracts after
the date of this Agreement, then the Seller shall promptly provide
written notice and a copy thereof to the Buyer and unless such
contract required the Buyer's approval pursuant to this paragraph
and such approval was not obtained, the Buyer shall assume such
contract at Closing, such contract shall be deemed added to
Schedule E attached hereto and Schedule E shall be deemed amended
at the Closing to include such contracts. If a new contract
requires the Buyer's approval and the Buyer does not object within
five (5) Business Days after receipt of a copy of such contract,
then the Buyer shall be deemed to have approved such contract.
Additionally, provided that Seller shall be under no obligation to
terminate, or deliver any notice of termination of, any Contracts
prior to the Closing and Seller shall not be required to deliver
any payments to any parties to any Contracts, Seller shall
coordinate with, and assist Buyer in preparing for the termination
of any Contracts Buyer desires to deliver notices of termination
for on the Closing Date.
(d) New Leases. (i) Continue its present rental program and
efforts at the Property to rent vacant space, provided that without
the prior consent of the Buyer, which consent shall not be
unreasonably withheld, the Seller will not execute any new Space
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Lease or Temporary Lease or amend, terminate or accept the
surrender of any existing tenancies or approve any subleases all
with respect to premises except that the Seller is authorized to
(i) accept the termination of Space Leases and Temporary Leases at
the end of their existing terms, (ii) enter into Space Leases and
Temporary Leases with any of the tenants listed on Schedule I with
respect to the specified space in the Property and (iii) amend,
extend or renew any existing Space Lease or Temporary Lease
provided that such amendment, extension or renewal is with any of
the tenants listed on Schedule I. If a new Space Lease or
Temporary Lease or an amendment, renewal or extension of an
existing Space Lease or Temporary Lease requires the Buyer's
consent and the Buyer does not object within five (5) Business Days
after receipt of a copy of such lease, amendment, extension or
renewal, then the Buyer shall be deemed to have approved such Space
Lease or Temporary Lease.
(ii) If Seller enters into any Temporary Leases or any Space
Leases after the date of this Agreement, then (unless Buyer's approval
was required pursuant to this subsection (d) and such approval was not
obtained), the Buyer shall assume such Temporary Leases and such Space
Leases at Closing, such Temporary Leases and such Space Leases shall be
deemed added to Schedule F and Schedule F-1 hereto, as applicable, and
such Schedules shall be deemed amended at the Closing to include such
Temporary Leases and such Space Leases.
(e) Litigation. The Seller will advise the Buyer promptly of
any litigation, arbitration proceeding or administrative hearing
(including condemnation) before any governmental agency which
affects any Asset in any material respect, which is instituted
after the date of this Agreement and which, if adversely
determined, would materially adversely affect (1) the Seller's
ability to consummate the transactions contemplated by this
Agreement, (2) the ownership of the Asset or (3) the operation of
the Property.
(f) Sale of Personal Property. The Seller will not transfer
or dispose of, or permit to be sold, transferred or otherwise
disposed of, any item or group of items constituting personal
property associated with the Property, except for the use and
consumption of inventory, office and other supplies and spare
parts, and the replacement of worn out, obsolete and defective
tools, equipment and appliances, in the ordinary course of
business.
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(g) Performance Under Space Leases. The Seller will perform,
or cause its agents to perform, all obligations of landlord or
lessor under the Temporary Leases and the Space Leases.
(h) Subordination, Non-Disturbance and Attornment Agreements.
Seller shall, prior to Closing, cooperate with Buyer, at no cost or
expense to Seller, in connection with delivering to tenants under
Space Leases and Temporary Leases subordination, non-disturbance
and attornment agreements to be executed in connection with Buyer's
financing of the Purchase Price.
Section 3.4 Survival of Representations and Warranties. The
representations and warranties of Seller contained in Sections 3.1 and 3.2
hereof shall survive the Closing subject to the limitations set forth in
Article XI hereof.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BUYER
------------------------------------------------------
Section 4.1 Representations, Warranties and Covenants of the
Buyer. The Buyer hereby represents, warrants and covenants to the Seller as
of the date hereof and as of the Closing Date as follows:
(a) Formation; Existence. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware.
(b) Power; Authority. The Buyer has all requisite power and
authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement, the
purchase of the Asset and the consummation of the transactions
provided for herein have been duly authorized by all necessary
action on the part of the Buyer. This Agreement has been duly
executed and delivered by the Buyer and constitutes the legal,
valid and binding obligation of the Buyer enforceable against the
Buyer in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights and by general
principles of equity (whether applied in a proceeding at law or in
equity).
(c) No Consents. No consent, license, approval, order,
permit or authorization of, or registration, filing or declaration
with, any court, administrative agency or commission or other
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governmental authority or instrumentality, domestic or foreign, is
required to be obtained or made in connection with the execution,
delivery and performance of this Agreement or any of the
transactions required or contemplated hereby.
(d) No Conflicts. The execution, delivery and compliance
with, and performance of the terms and provisions of, this
Agreement, and the purchase of the Asset, will not (a) conflict
with or result in any violation of its organizational documents,
(b) conflict with or result in any violation of any provision of
any bond, note or other instrument of indebtedness, contract,
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party in its individual
capacity, or (c) violate any existing term or provision of any
order, writ, judgment, injunction, decree, statute, law, rule or
regulation applicable to it or its assets or properties.
(e) Examination; No Contingencies. (i) Except as provided
in Article VII below, before entering into this Agreement, the
Buyer has made such examination of the Asset and all other matters
affecting or relating to the transactions contemplated hereunder as
the Buyer has deemed necessary. In entering into this Agreement,
the Buyer has not been induced by and has not relied upon any
written or oral representations, warranties or statements, whether
express or implied, made by the Seller, any partner of Seller, or
any agent, employee, or other representative of any of the
foregoing or by any broker or any other person representing or
purporting to represent the Seller, with respect to the Asset, the
Condition of the Asset or any other matter affecting or relating to
the transactions contemplated hereby, other than those expressly
set forth in this Agreement. The Buyer's obligations under this
Agreement shall not be subject to any contingencies, diligence or
conditions except as expressly set forth in this Agreement. The
Buyer acknowledges and agrees that, except as expressly set forth
herein, the Seller makes no representations or warranties
whatsoever, whether express or implied or arising by operation of
law, with respect to the Asset or the Condition of the Asset. The
Buyer agrees that the Asset will be sold and conveyed to (and
accepted by) the Buyer at the Closing in the then existing
condition of the Asset, AS IS, WHERE IS, WITH ALL FAULTS, AND
WITHOUT ANY WRITTEN OR VERBAL REPRESENTATIONS OR WARRANTIES
WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR ARISING BY OPERATION OF
LAW, other than representations and warranties of the Seller
expressly set forth in this Agreement. Without limiting the
generality of the foregoing, except for the representations and
warranties of the Seller contained in this Agreement, the
transactions contemplated by this Agreement are without statutory,
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express or implied warranty, representation, agreement, statement
or expression of opinion of or with respect to (A) the Condition of
the Asset or any aspect thereof, including, without limitation, any
and all statutory, express or implied representations or warranties
related to the suitability for habitation, merchantability, or
fitness for a particular purpose, (B) the nature or quality of
construction, structural design or engineering of the improvements
included in the Property, (C) the quality of labor or materials
included in the improvements included in the Property, (D) the soil
conditions, drainage, topographical features, flora, fauna, or
other conditions of or which affect the Property, (E) any
conditions at or which affect the Property with respect to a
particular use, purpose, development, potential or otherwise, (F)
areas, size, shape, configuration, location, access, capacity,
quantity, quality, cash flow, expenses, value, condition, make,
model, composition, accuracy, completeness, applicability,
assignability, enforceability, exclusivity, usefulness,
authenticity or amount, (G) any statutory, express or implied
representations or warranties created by any affirmation of fact or
promise, by any description of the Asset or by operation of law,
(H) any environmental, botanical, zoological, hydrological,
geological, meteorological, structural, or other condition or
hazard or the absence thereof heretofore, now or hereafter
affecting in any manner the Property and (I) all other statutory,
express or implied representations or warranties by the Seller
whatsoever. The Buyer acknowledges that the Buyer has knowledge
and expertise in financial and business matters that enable the
Buyer to evaluate the merits and risks of the transactions
contemplated by this Agreement.
(ii) For purposes of this Agreement, the term "Condition of
the Asset" means the following matters:
(A) Physical Condition of the Property. The
quality, nature and adequacy of the physical condition of
the Property, including, without limitation, the quality
of the design, labor and materials used to construct the
improvements included in the Property; the condition of
structural elements, foundations, roofs, glass,
mechanical, plumbing, electrical, HVAC, sewage, and
utility components and systems; the capacity or
availability of sewer, water, or other utilities; the
geology, flora, fauna, soils, subsurface conditions,
groundwater, landscaping, and irrigation of or with
respect to the Property, the location of the Property in
or near any special taxing district, flood hazard zone,
wetlands area, protected habitat, geological fault or
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subsidence zone, hazardous waste disposal or clean-up
site, or other special area, the existence, location, or
condition of ingress, egress, access, and parking; the
condition of the personal property and any fixtures; and
the presence of any asbestos or other Hazardous
Materials, dangerous, or toxic substance, material or
waste in, on, under or about the Property and the
improvements located thereon. "Hazardous Materials"
means (A) those substances included within the
definitions of any one or more of the terms "hazardous
substances," "toxic pollutants", "hazardous materials",
"toxic substances", and "hazardous waste" in the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq. (as
amended), the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. Sections 1801 et seq., the Resource
Conservation and Recovery Act of 1976 as amended, 42
U.S.C. Section 6901 et seq., Section 311 of the Clean
Water Act and any similar state laws or any regulations
issued under any such laws and (B) petroleum, radon gas,
lead based paint, asbestos or asbestos containing
material and polychlorinated biphenyls.
(B) Adequacy of the Asset. The economic feasibility,
cash flow and expenses of the Asset, and habitability,
merchantability, fitness, suitability and adequacy of the
Property for any particular use or purpose.
(C) Legal Compliance of the Asset. The compliance or
non-compliance of the Seller or the operation of the Property
or any part thereof in accordance with, and the contents of,
(i) all codes, laws, ordinances, regulations, agreements,
licenses, permits, approvals and applications of or with any
governmental authorities asserting jurisdiction over the
Property, including, without limitation, those relating to
zoning, building, public works, parking, fire and police
access, handicap access, life safety, subdivision and
subdivision sales, and Hazardous Materials, dangerous, and
toxic substances, materials, conditions or waste, including,
without limitation, the presence of Hazardous Materials in,
on, under or about the Property that would cause state or
federal agencies to order a clean up of the Property under any
applicable legal requirements and (ii) all agreements,
covenants, conditions, restrictions (public or private),
condominium plans, development agreements, site plans,
building permits, building rules, and other instruments and
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documents governing or affecting the use, management, and
operation of the Property.
(D) Matters Disclosed in the Scheduled Documents and
Asset File. Those matters referred to in this Agreement and
the documents listed on the Schedules attached hereto and the
matters disclosed in the Asset File.
(E) Insurance. The availability, cost, terms and
coverage of liability, hazard, comprehensive and any other
insurance of or with respect to the Property.
(F) Condition of Title. The condition of title to the
Property, including, without limitation, vesting, legal
description, matters affecting title, title defects, liens,
encumbrances, boundaries, encroachments, mineral rights,
options, easements, and access; violations of restrictive
covenants, zoning ordinances, setback lines, or development
agreements; the availability, cost, and coverage of title
insurance; leases, rental agreements, occupancy agreements,
rights of parties in possession of, using, or occupying the
Property; and standby fees, taxes, bonds and assessments.
(f) Good Faith Efforts. The Buyer shall use its good faith
efforts to consummate the Closing and fulfill each of its
obligations hereunder.
(g) Brokerage Commissions. Effective upon the Closing, the
Buyer assumes all obligations of the Seller to pay the brokerage
commissions listed on Schedule G, which obligation shall survive
the Closing and shall be confirmed in writing by the Buyer upon
request by the Seller.
Section 4.2 Survival of Representations and Warranties. The
representations and warranties of Buyer contained in Section 4.1 shall
survive the Closing of this Agreement, subject to the limitations set forth
in Article XI hereof.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
Section 5.1 Conditions Precedent To Seller's Obligations. The
obligation of the Seller to consummate the transfer of the Asset to the Buyer
on the Closing Date is subject to the satisfaction (or waiver by the Seller)
as of the Closing of the following conditions:
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(a) Each of the representations and warranties made by the
Buyer in this Agreement shall be true and correct in all material
respects when made and on and as of the Closing Date as though such
representations and warranties were made on and as of the Closing
Date.
(b) The Buyer shall have performed or complied in all material
respects with each obligation and covenant required by this Agreement to
be performed or complied with by the Buyer on or before the Closing.
(c) No order or injunction of any court or administrative
agency of competent jurisdiction nor any statute, rule, regulation
or executive order promulgated by any governmental authority of
competent jurisdiction shall be in effect as of the Closing which
restrains or prohibits the transfer of the Asset or the
consummation of any other transaction contemplated hereby.
(d) No action, suit or other proceeding shall be pending which
shall have been brought by any person or entity (other than the
parties hereto and their affiliates) (i) to restrain, prohibit or
change in any material respect the purchase and sale of the Asset
or the consummation of any other transaction contemplated hereby or
(ii) seeking material damages with respect to such purchase and
sale or any other transaction contemplated hereby.
(e) The Seller shall have received all of the documents required
to be delivered by the Buyer under Article VI.
(f) The Seller shall have received the Purchase Price in
accordance with subsection 2.2(b) and all other amounts due to the
Seller hereunder.
(g) The Seller shall have received Limited Partner Approval.
Notwithstanding the foregoing, in the event that Seller is unable to
transfer the Asset to Buyer as a result of its failure to obtain Limited
Partner Consent for any reason other than the default of Buyer or the
wilful acts or a misrepresentation of Buyer and Buyer has performed all
of its obligations under this Agreement, then (i) this Agreement (except
for those provisions hereof which by their terms are to survive a
termination of this Agreement) shall be terminated as of the date that
Seller notifies Buyer in writing that it is unable to obtain the Limited
Partner Approval, (ii) the Earnest Money shall be returned to Buyer and
(iii) Seller shall pay to Buyer a break-up fee in an amount equal to
$100,000. Upon a termination of this Agreement as provided for in this
Section 5.1(g), neither party hereto shall have any further rights or
obligations hereunder except for those provisions which expressly
survive the termination hereof.
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Section 5.2 Conditions to the Buyer's Obligations. The obligation of
the Buyer to purchase and pay for the Asset is subject to the satisfaction
(or waiver by the Buyer) as of the Closing of the following conditions:
(a) Each of the representations and warranties made by the
Seller in this Agreement shall be true and correct in all material
respects when made and on and as of the Closing Date as though such
representations and warranties were made on and as of Closing Date.
(b) The Seller shall have performed or complied in all material
respects with each obligation and covenant required by this Agreement to
be performed or complied with by the Seller on or before the Closing.
(c) No order or injunction of any court or administrative
agency of competent jurisdiction nor any statute, rule, regulation
or executive order promulgated by any governmental authority of
competent jurisdiction shall be in effect as of the Closing which
restrains or prohibits the transfer of the Asset or the
consummation of any other transaction contemplated hereby.
(d) No action, suit or other proceeding shall be pending
which shall have been brought by any person or entity (other than
the parties hereto and their affiliates) (i) to restrain, prohibit
or change in any material respect the purchase and sale of the
Asset or the consummation of any other transaction contemplated
hereby or (ii) seeking material damages with respect to such
purchase and sale or any other transaction contemplated hereby.
(e) Title to the Property shall be delivered to the Buyer in the
manner required under Section 8.1.
(f) Seller shall, on or before the Closing Date, acquire from
tenants under Space Leases of over 1000 square feet, which tenants
occupy, in the aggregate, 80% of the square feet of the Property
occupied by all tenants under Space Leases of over 1000 square feet,
tenant estoppel certificates (a) substantially in the form of Exhibit G
attached hereto and made a part hereof or (b) to the extent that any
such tenant is not required to execute an Estoppel Certificate in the
Form of Exhibit G, then either (i) an estoppel certificate from Seller
in the form of Exhibit G or (ii) an estoppel certificate from such
tenant certifying only as to those matters which the tenant is required
to certify to under the terms of its Space Lease (collectively, the
"Tenant Estoppel Certificates"). In the event that any Tenant Estoppel
Certificates are executed by Seller (a "Seller Estoppel"), Seller agrees
to indemnify Buyer and hold Buyer harmless from any and all losses,
liabilities, claims, costs and expenses, including reasonable attorneys'
fees, incurred by Buyer after Closing as a direct result of, and only to
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the extent same directly results from, a false statement made by Seller
in said Seller Estoppel. Seller agrees to use good faith efforts to
acquire tenant Estoppel Certificates from Tenants occupying spaces of
less than 1,000 square feet pursuant to Temporary Space Leases.
ARTICLE VI
CLOSING DELIVERIES
------------------
(a) The Buyer shall deliver the following documents at
Closing:
(i) with respect to the Property:
(A) an assignment and assumption of landlord's interest in
leases (an "Assignment of Leases") duly executed by the Buyer in
substantially the form of Exhibit A hereto;
(B) an assignment and assumption of contracts (an
"Assignment of Contracts") duly executed by the Buyer in
substantially the form of Exhibit B hereto; and
(C) notice letters ("Tenant Notices") duly executed by the
Buyer, in the form of Exhibit C attached hereto. Such notice
letters shall be retained by the Seller and delivered by the Seller
to each tenant and other such entity promptly following Closing.
(ii) with respect to the transactions contemplated hereunder:
(A) such other assignments, instruments of transfer, and
other documents as the Seller may reasonably require in order to
complete the transactions contemplated hereunder or to evidence
compliance by the Buyer with the covenants, agreements,
representations and warranties made by it hereunder, in each case,
duly executed by the Buyer;
(B) a duly executed and sworn Secretary's Certificate
from the Buyer (or the general partners of the Buyer, where
appropriate) certifying that the Buyer has taken all necessary
action to authorize the execution of all documents being
delivered hereunder and the consummation of all of the
transactions contemplated hereby and that such authorization
has not been revoked, modified or amended;
(C) an executed and acknowledged Incumbency Certificate
from the Buyer (or the general partners of the Buyer, where
appropriate) certifying the authority of the officers of the
Buyer (or the general partner of the Buyer, where appropriate)
to execute this Agreement and the other documents delivered by
the Buyer to the Seller at the Closing; and
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(D) all consents, approvals or waivers listed on
Schedule I on terms satisfactory to the Seller.
(b) The Seller shall deliver the following documents at
Closing:
(i) with respect to the Property:
(A) a special warranty deed (a "Deed") in
substantially the form of Exhibit D (with any necessary
modifications in order to conform with the local laws for
recording in the land records in the jurisdiction in
which the Property is located), duly executed by the
Seller, without recourse, which deed, upon proper
recording by the Buyer, shall be sufficient to transfer
and convey to the Buyer whatever rights in the Property
the Seller has acquired subject only to the Permitted
Exceptions;
(B) the Assignment of Leases duly executed by the
Seller, together with copies, and if available, originals
of the Space Leases referred to in such assignment;
(C) a bill of sale (a "Bill of Sale") duly executed
by the Seller in substantially the form of Exhibit E
hereto, relating to all fixtures, chattels, equipment and
articles of personal property owned by the relevant
Seller which are currently located upon or attached to
the Property;
(D) the Assignment of Contracts duly executed by
the Seller;
(E) all keys to the Property which are in the Seller's
possession;
(F) an affidavit that the Seller is not a "foreign
person" within the meaning of the Foreign Investment in Real
Property Tax Act of 1980, as amended, in substantially the
form of Exhibit F hereto; and
(G) Tenant Estoppel Certificates and/or Seller Estoppels in
satisfaction of Section 5.2(f) hereof.
(ii) with respect to the transactions contemplated hereunder:
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(A) such other assignments, instruments of transfer, and
other documents as the Buyer may reasonably require in order
to complete the transactions contemplated hereunder or to
evidence compliance by the Seller with the covenants,
agreements, representations and warranties made by it
hereunder;
(B) a duly executed and sworn Secretary's Certificate
from the Seller (or the general partners of the Seller, where
appropriate) certifying that the Seller has taken all
necessary action to authorize the execution of all documents
being delivered hereunder and the consummation of all of the
transactions contemplated hereby and that such authorization
has not been revoked, modified or amended; and
(C) an executed and acknowledged Incumbency Certificate
from the Seller (or the general partners of the Seller, where
appropriate) certifying the authority of the officers of the
Seller (or the general partner of the Seller, where
appropriate) to execute this Agreement and the other documents
delivered by the Seller to the Buyer at the Closing.
(iii) In the event any Asset-Related Property is not assignable
(such as a letter of credit that is not transferable), the Seller
shall use commercially reasonable efforts to provide the Buyer, at
no cost to the Seller, with the economic benefits of such property
by enforcing such pro
