EXHIBIT 10.9 UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE is made as of this 30th day of October, 1997, by Ramco-Gershenson Properties Trust, a Massachusetts real estate investment trust, having its principal place of business and chief executive office at 27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034 (the "Guarantor"), in favor of BankBoston, N.A., as Agent on behalf of the Banks, having an office at 100 Federal Street, Boston, Massachusetts 02110 (the "Agent"). WHEREAS, the Guarantor is the general partner and owner of approximately 68.77% of the partnership interests of Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "Debtor"); and WHEREAS, the Agent (in its capacity as agent and in its capacity as a Bank) is entering into an Unsecured Term Loan Agreement of even date herewith (as the same may hereafter be amended, supplemented or modified from time to time, the "Term Loan Agreement") with the Guarantor and the Debtor, whereby the Debtor will become liable for the "Obligations" (as that term is defined in the Term Loan Agreement) including, without limitation, loans and other financial accommodations from the Banks (including the Agent in its capacity as a Bank thereunder) under the Term Loan Agreement of $45,000,000 (all Obligations being hereinafter referred to as the "Indebtedness"); and WHEREAS, it is a condition precedent to the effectiveness of the Term Loan Agreement that this Guaranty be executed and delivered by the Guarantor in favor of the Agent; and WHEREAS, the Guarantor will derive substantial benefit and advantage from the financial accommodations to the Debtor set forth in the Term Loan Agreement including the loans and advances made to the Debtor thereunder, and it will be to the Guarantor's direct interest and economic benefit to assist the Debtor in procuring said financial accommodations from the Banks; NOW, THEREFORE, for and in consideration of the premises and in order to induce the Agent and the Banks to enter into the Term Loan Agreement and the Banks to make loans thereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows (unless otherwise defined herein all capitalized terms used herein shall have their meanings as set forth in the Term Loan Agreement): 1. Guaranty of Payment. (a) The Guarantor hereby unconditionally guaranties the full and prompt payment to the Agent, on behalf of the Banks when due, upon demand, at maturity or by reason of acceleration or otherwise and at all times thereafter, of any and all of the Indebtedness.
(b) The Guarantor acknowledges that valuable consideration supports this Guaranty, including, without limitation, the consideration set forth in the recitals above as well as any commitment to lend, extension of credit or other financial accommodation, whether heretofore or hereafter made by the Banks to the Debtor; any extension, renewal or replacement of any of the Indebtedness; any forbearance with respect to any of the Indebtedness or otherwise; any cancellation of an existing guaranty; any purchase of any of the Debtor's assets by the Banks; or any other valuable consideration. (c) The Guarantor agrees that all payments under this Guaranty shall be made in United States currency and the same manner as provided for the Indebtedness. 2. The Banks' Costs and Expenses. The Guarantor agrees to pay on demand, if not paid by the Debtor, all reasonable costs and expenses of every
(b) The Guarantor acknowledges that valuable consideration supports this Guaranty, including, without limitation, the consideration set forth in the recitals above as well as any commitment to lend, extension of credit or other financial accommodation, whether heretofore or hereafter made by the Banks to the Debtor; any extension, renewal or replacement of any of the Indebtedness; any forbearance with respect to any of the Indebtedness or otherwise; any cancellation of an existing guaranty; any purchase of any of the Debtor's assets by the Banks; or any other valuable consideration. (c) The Guarantor agrees that all payments under this Guaranty shall be made in United States currency and the same manner as provided for the Indebtedness. 2. The Banks' Costs and Expenses. The Guarantor agrees to pay on demand, if not paid by the Debtor, all reasonable costs and expenses of every kind incurred by the Agent or the Banks: (a) in enforcing this Guaranty, (b) in collecting any of the Indebtedness from the Debtor or the Guarantor, (c) in realizing upon or protecting any collateral for this Guaranty or for payment of any of the Indebtedness, and (d) for any other purpose related to the Indebtedness or this Guaranty. "Costs and expenses" as used in the preceding sentence shall include, without limitation, the actual reasonable attorneys' fees incurred by the Agent or any Bank in retaining counsel for advice, suit, appeal, any insolvency or other proceedings under the United States Bankruptcy Code or otherwise, or for any purpose specified in the preceding sentence. 3. Nature of Guaranty: Continuing, Absolute and Unconditional. (a) This Guaranty is and is intended to be a continuing guaranty of payment of the Indebtedness, independent of and in addition to any other guaranty, indorsement, collateral or other agreement held by the Agent or the Banks therefor or with respect thereto, whether or not furnished by the Guarantor. The obligations of the Guarantor to repay the Indebtedness hereunder shall be unlimited. The Guarantor shall have no right of subrogation with respect to any payments made by the Guarantor hereunder, and hereby waives any benefit of, and any right to participate in, any security or collateral given to the Agent or the Banks to secure payment of the Indebtedness, until all of the Indebtedness outstanding or contracted or committed for (whether or not outstanding) is paid in full, and the Guarantor agrees that it will not take any action to enforce any obligations of the Debtor to the Guarantor prior to the Indebtedness being paid in full, provided that, in the event of the bankruptcy or insolvency of the Debtor, the Agent, on behalf of the Banks, shall be entitled notwithstanding the foregoing, to file in the name of the Guarantor or in its own name a claim for any and all indebtedness owing to the Guarantor by the Debtor, vote such claim and to apply the proceeds of any such claim to the Indebtedness. (b) Except as otherwise provided for in Section 8.7 of the Term Loan Agreement, for the further security of the Banks and without in any way diminishing the liability of the Guarantor, following the occurrence of an Event of Default under the Term Loan Agreement and -2-
acceleration of the Indebtedness, all debts and liabilities, present or future of the Debtor to the Guarantor and all monies received from the Debtor or for its account by the Guarantor in respect thereof shall be received in trust for the Banks and forthwith upon receipt shall be paid over to the Agent, on behalf of the Banks, until all of the Indebtedness has been paid in full. This assignment and postponement is independent of and severable from this Guaranty and shall remain in full effect whether or not the Guarantor is liable for any amount under this Guaranty. (c) This Guaranty is absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by the Guarantor to be the final, complete and exclusive expression of the guaranty agreement between the Guarantor and the Agent, on behalf of the Banks. No modification or amendment of any provision of this Guaranty shall be effective unless in writing and signed by a duly authorized officer of the Agent, on behalf of the Banks. (d) In the event of the business failure of Guarantor or if there shall be pending any bankruptcy or insolvency case or proceeding with respect to Guarantor under federal bankruptcy law or any other applicable law or in connection with the insolvency of Guarantor, or if a liquidator, receiver, or trustee shall have been appointed for
acceleration of the Indebtedness, all debts and liabilities, present or future of the Debtor to the Guarantor and all monies received from the Debtor or for its account by the Guarantor in respect thereof shall be received in trust for the Banks and forthwith upon receipt shall be paid over to the Agent, on behalf of the Banks, until all of the Indebtedness has been paid in full. This assignment and postponement is independent of and severable from this Guaranty and shall remain in full effect whether or not the Guarantor is liable for any amount under this Guaranty. (c) This Guaranty is absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by the Guarantor to be the final, complete and exclusive expression of the guaranty agreement between the Guarantor and the Agent, on behalf of the Banks. No modification or amendment of any provision of this Guaranty shall be effective unless in writing and signed by a duly authorized officer of the Agent, on behalf of the Banks. (d) In the event of the business failure of Guarantor or if there shall be pending any bankruptcy or insolvency case or proceeding with respect to Guarantor under federal bankruptcy law or any other applicable law or in connection with the insolvency of Guarantor, or if a liquidator, receiver, or trustee shall have been appointed for Guarantor or Guarantor's properties or assets, Agent on behalf of the Banks may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of Agent on behalf of the Banks allowed in any proceedings relative to Guarantor, or any of Guarantor's properties or assets, and, irrespective of whether the indebtedness or other obligations of Debtor guaranteed hereby shall then be due and payable, by declaration or otherwise, Agent on behalf of the Banks shall be entitled and empowered to file and prove a claim for the whole amount of any sums or sums owing with respect to the indebtedness or other obligations of Debtor guaranteed hereby, and to collect and receive any moneys or other property payable or deliverable on any such claim. Guarantor covenants and agrees that upon the commencement of a voluntary or involuntary bankruptcy proceeding by or against Debtor or any other guarantor, Guarantor shall not seek a supplemental stay or otherwise pursuant to 11 U.S.C. ss.105 or any other provision of the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law, or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, to stay, interdict, condition, reduce or inhibit the ability of Agent to enforce any rights of Agent against Guarantor by virtue of this Guaranty or otherwise. 4. Certain Rights and Obligations. (a) The Guarantor authorizes the Agent and the Banks, without notice, demand or any reservation of rights against the Guarantor and without affecting the Guarantor's obligations hereunder, from time to time: (i) to renew, extend, increase, accelerate or otherwise change the time for payment of, the terms of or the interest on the Indebtedness or any partthereof or grant other indulgences to the Debtor or others; (ii) to accept from any Person and hold collateral for the payment of the Indebtedness or any part thereof, and to modify, exchange, enforce or refrain from enforcing, or release, compromise, settle, waive, subordinate or surrender, with or without -3-
consideration, such collateral or any part thereof; (iii) to accept and hold any indorsement or guaranty of payment of the Indebtedness or any part thereof, and to discharge, release or substitute any such obligation of any such indorser or guarantor, or any Person who has given any security interest in any collateral as security for the payment of the Indebtedness or any part thereof, or any other Person in any way obligated to pay the Indebtedness or any part thereof, and to enforce or refrain from enforcing, or compromise or modify, the terms of any obligation of any such indorser, guarantor, or Person; (iv) to dispose of any and all collateral securing the Indebtedness in any manner as the Banks, in their sole discretion, may deem appropriate, and to direct the order or manner of such disposition and the enforcement of any and all endorsements and guaranties relating to the Indebtedness or any part thereof as the Banks in their sole discretion may determine; (v) except as otherwise provided in the Term Loan Agreement, to determine the manner, amount and time of application of payments and credits, if any, to be made on all or any part of any component or components of the Indebtedness (whether principal, interest, fees, costs, and expenses, or otherwise); and (vi) to take advantage or refrain from taking advantage of any security or accept or make or refrain from accepting or making any compositions or arrangements when and in such manner as the Agent or the Banks, in their sole discretion, may deem appropriate and generally do or refrain from doing any act or thing which might otherwise, at law or in equity, release the liability of Guarantor as a guarantor or surety in whole or in part, and in no case shall the Agent or the Banks be
consideration, such collateral or any part thereof; (iii) to accept and hold any indorsement or guaranty of payment of the Indebtedness or any part thereof, and to discharge, release or substitute any such obligation of any such indorser or guarantor, or any Person who has given any security interest in any collateral as security for the payment of the Indebtedness or any part thereof, or any other Person in any way obligated to pay the Indebtedness or any part thereof, and to enforce or refrain from enforcing, or compromise or modify, the terms of any obligation of any such indorser, guarantor, or Person; (iv) to dispose of any and all collateral securing the Indebtedness in any manner as the Banks, in their sole discretion, may deem appropriate, and to direct the order or manner of such disposition and the enforcement of any and all endorsements and guaranties relating to the Indebtedness or any part thereof as the Banks in their sole discretion may determine; (v) except as otherwise provided in the Term Loan Agreement, to determine the manner, amount and time of application of payments and credits, if any, to be made on all or any part of any component or components of the Indebtedness (whether principal, interest, fees, costs, and expenses, or otherwise); and (vi) to take advantage or refrain from taking advantage of any security or accept or make or refrain from accepting or making any compositions or arrangements when and in such manner as the Agent or the Banks, in their sole discretion, may deem appropriate and generally do or refrain from doing any act or thing which might otherwise, at law or in equity, release the liability of Guarantor as a guarantor or surety in whole or in part, and in no case shall the Agent or the Banks be responsible or shall the Guarantor be released either in whole or in part for any act or omission in connection with the Agent or the Banks having sold any security at an under value. (b) If any default shall be made in the payment of any of the Indebtedness and any grace period has expired with respect thereto, the Guarantor hereby agrees to pay the same in full to the extent hereinafter provided: (i) without deduction by reason of any setoff, defense (other than payment) or counterclaim of the Debtor; (ii) without requiring presentment, protest or notice of nonpayment or notice of default to the Guarantor, to the Debtor or to any other Person, except as required pursuant to the Term Loan Agreement; (iii) without demand for payment or proof of such demand or filing of claims with a court in the event of receivership, bankruptcy or reorganization of the Debtor; (iv) without requiring the Agent or the Banks to resort first to the Debtor (this being a guaranty of payment and not of collection) or to any other guaranty or any collateral which the Banks may hold; (v) without requiring notice of acceptance hereof or assent hereto by the Agent or the Banks; and (vi) without requiring notice that any of the Indebtedness has been incurred, extended or continued or of the reliance by the Agent or the Banks upon this Guaranty; all of which the Guarantor hereby waives. (c) The Guarantor's obligation hereunder shall not be affected by any of the following, all of which the Guarantor hereby waives: (i) any failure to perfect or continue the perfection of any security interest in or other lien on any collateral securing payment of any of the Indebtedness or the Guarantor's obligation hereunder; (ii) the invalidity, unenforceability, propriety of manner of enforcement of, or loss or change in priority of any such security interestor other lien or guaranty of the Indebtedness; (iii) any failure to protect, preserve or insure any such collateral; (iv) failure of the Guarantor to receive notice of any intended disposition of such collateral; (v) any defense arising by reason of the cessation from any cause whatsoever of liability of the Debtor, -4-
including, without limitation, any failure, negligence or omission by the Agent or the Banks in enforcing their claims against the Debtor; (vi) any release, settlement or compromise of any obligation of the Debtor, other than as a result of the payment of the Indebtedness; (vii) the invalidity or unenforceability of any of the Indebtedness; (viii) any change of ownership of the Debtor or the insolvency, bankruptcy or any other change in the legal status of the Debtor; (ix) any change in, or the imposition of, any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Indebtedness; (x) the existence of any claim, setoff or other rights which the Guarantor may have at any time against the Agent, any Bank or the Debtor in connection herewith or any unrelated transaction; (xi) the Banks' election, in any case instituted under chapter 11 of the United States Bankruptcy Code, of the application of section 1111(b)(2) of the United States Bankruptcy Code; (xii) any borrowing, use of cash collateral, or grant of a security interest by the Debtor, as debtor in possession, under sections 363 or 364 of the United States Bankruptcy Code; (xiii) the disallowance of all or any portion of any of the Banks' claims for repayment of the Indebtedness under sections 502 or 506 of the United States Bankruptcy Code; or (xiv) any other fact or circumstance which might otherwise constitute grounds at law or equity for the discharge or release of the Guarantor from its obligations hereunder, all whether or not the Guarantor shall have had notice or knowledge of any act or omission referred to
including, without limitation, any failure, negligence or omission by the Agent or the Banks in enforcing their claims against the Debtor; (vi) any release, settlement or compromise of any obligation of the Debtor, other than as a result of the payment of the Indebtedness; (vii) the invalidity or unenforceability of any of the Indebtedness; (viii) any change of ownership of the Debtor or the insolvency, bankruptcy or any other change in the legal status of the Debtor; (ix) any change in, or the imposition of, any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Indebtedness; (x) the existence of any claim, setoff or other rights which the Guarantor may have at any time against the Agent, any Bank or the Debtor in connection herewith or any unrelated transaction; (xi) the Banks' election, in any case instituted under chapter 11 of the United States Bankruptcy Code, of the application of section 1111(b)(2) of the United States Bankruptcy Code; (xii) any borrowing, use of cash collateral, or grant of a security interest by the Debtor, as debtor in possession, under sections 363 or 364 of the United States Bankruptcy Code; (xiii) the disallowance of all or any portion of any of the Banks' claims for repayment of the Indebtedness under sections 502 or 506 of the United States Bankruptcy Code; or (xiv) any other fact or circumstance which might otherwise constitute grounds at law or equity for the discharge or release of the Guarantor from its obligations hereunder, all whether or not the Guarantor shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (i) through (xiv) of this paragraph. 5. Representations and Warranties. The Guarantor further represents and warrants to the Agent and the Banks that: (i) it is a business trust duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has full power, authority and legal right to own its property and assets and to transact the business in which it is engaged; (ii) it has full power, authority and legal right to execute and deliver, and to perform its obligations under, this Guaranty, and has taken all necessary action to authorize the guarantee hereunder on the terms and conditions of this Guaranty and to authorize the execution, delivery and performance of this Guaranty; and (iii) this Guaranty has been duly executed and delivered by the Guarantor and constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms. 6. Security; Assets - Negative Pledge. The Guarantor warrants and represents to and covenants with the Agent and the Banks that: (i) the Guarantor has good, indefeasible and merchantable title to all of its assets, and (ii) the Guarantor shall not grant a security interest in or permit a lien, claim or encumbrance upon any of its assets in favor of any third party. 7. Termination. This Guaranty shall remain in full force and effect until all of the Indebtedness shall be finally and irrevocably paid in full and the commitments under the Term Loan Agreement shall have been terminated. Payment of all of the Indebtedness from time to time shall not operate -5-
as a discontinuance of this Guaranty. The Guarantor further agrees that, to the extent that the Debtor makes a payment or payments to the Agent or any of the Banks on the Indebtedness, or the Agent or the Banks receive any proceeds of collateral securing the Indebtedness which payment or receipt of proceeds or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be returned or repaid to the Debtor, its estate, trustee, receiver, debtor in possession or any other Person, including, without limitation, any Guarantor, under any insolvency or bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment, return or repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date when such initial payment, reduction or satisfaction occurred, and this Guaranty shall continue in full force notwithstanding any contrary action which may have been taken by the Agent or the Banks in reliance upon such payment, and any such contrary action so taken shall be without prejudice to the Agent's or the Banks' rights under this Guaranty and shall be deemed to have been conditioned upon such payment having become final and irrevocable.
as a discontinuance of this Guaranty. The Guarantor further agrees that, to the extent that the Debtor makes a payment or payments to the Agent or any of the Banks on the Indebtedness, or the Agent or the Banks receive any proceeds of collateral securing the Indebtedness which payment or receipt of proceeds or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be returned or repaid to the Debtor, its estate, trustee, receiver, debtor in possession or any other Person, including, without limitation, any Guarantor, under any insolvency or bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment, return or repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date when such initial payment, reduction or satisfaction occurred, and this Guaranty shall continue in full force notwithstanding any contrary action which may have been taken by the Agent or the Banks in reliance upon such payment, and any such contrary action so taken shall be without prejudice to the Agent's or the Banks' rights under this Guaranty and shall be deemed to have been conditioned upon such payment having become final and irrevocable. 8. Guaranty of Performance. The Guarantor also guaranties the full, prompt and unconditional performance of all obligations and agreements of every kind owed or hereafter to be owed by the Debtor to the Agent or the Banks. Every provision for the benefit of the Agent or the Banks contained in this Guaranty shall apply to the guaranty of performance given in this paragraph. 9. Assumption of Liens and Indebtedness. To the extent that the Guarantor has received or shall hereafter receive contributions to its capital consisting of assets of the Debtor that are subject, at the time of such contribution, to liens and security interests in favor of the Agent or the Banks in accordance with the Term Loan Agreement, the Guarantor hereby expressly agrees that (i) it shall hold such assets subject to such liens and security interests and subject to the terms of the Term Loan Agreement and (ii) it shall be liable for the payment of the Indebtedness secured thereby. The Guarantor's obligations under this Section 9 shall be in addition to its obligations as set forth in other sections of this Guaranty and not in substitution therefor or in lieu thereof. 10. Miscellaneous. (a) The terms "Debtor" and the "Guarantor" as used in this Guaranty shall include: (i) any successor individual or individuals, association, partnership or corporation to which all or a substantial part of the business or assets of the Debtor or the Guarantor shall have been transferred and (ii) any other corporation into or with which the Debtor or the Guarantor shall have been merged, consolidated, reorganized, or absorbed. (b) Without limiting any other right of the Banks, whenever the Agentor the Banks have the right to declare any of the Indebtedness to be immediately due and payable -6-
(whether or not it has been so declared), subject to the notice requirements and other limitations set forth in Section 13 of the Term Loan Agreement, the Banks at their sole election without notice to the undersigned may appropriate and set off against the Indebtedness: (i) any and all indebtedness or other moneys due or to become due to the Guarantor by the Agent or the Banks in any capacity and (ii) any credits or other property belonging to the Guarantor (including all account balances, whether provisional or final and whether or not collected or available) at any time held by or coming into the possession of the Agent or any of the Banks, or any affiliate of the Agent or any of the Banks, whether for deposit or otherwise, whether or not the Indebtedness or the obligation to pay such moneys owed by the Agent or Banks is then due, and the Agent or the Banks shall be deemed to have exercised such right of set off immediately at the time of such election even though any charge therefor is made or entered on the Agent's or the Banks' records subsequent thereto. (c) The Guarantor's obligation hereunder is to pay the Indebtedness in full when due according to the Term Loan Agreement to the extent provided herein, and shall not be affected by any stay or extension of time for payment
(whether or not it has been so declared), subject to the notice requirements and other limitations set forth in Section 13 of the Term Loan Agreement, the Banks at their sole election without notice to the undersigned may appropriate and set off against the Indebtedness: (i) any and all indebtedness or other moneys due or to become due to the Guarantor by the Agent or the Banks in any capacity and (ii) any credits or other property belonging to the Guarantor (including all account balances, whether provisional or final and whether or not collected or available) at any time held by or coming into the possession of the Agent or any of the Banks, or any affiliate of the Agent or any of the Banks, whether for deposit or otherwise, whether or not the Indebtedness or the obligation to pay such moneys owed by the Agent or Banks is then due, and the Agent or the Banks shall be deemed to have exercised such right of set off immediately at the time of such election even though any charge therefor is made or entered on the Agent's or the Banks' records subsequent thereto. (c) The Guarantor's obligation hereunder is to pay the Indebtedness in full when due according to the Term Loan Agreement to the extent provided herein, and shall not be affected by any stay or extension of time for payment by the Debtor resulting from any proceeding under the United States Bankruptcy Code or any similar law. (d) No course of dealing between the Debtor or the Guarantor and the Agent or the Banks and no act, delay or omission by the Banks in exercising any right or remedy hereunder or with respect to any of the Indebtedness shall operate as a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. The Agent or the Banks may remedy any default by the Debtor under any agreement with the Debtor or with respect to any of the Indebtedness in any reasonable manner without waiving the default remedied and without waiving any other prior or subsequent default by the Debtor. All rights and remedies of the Banks hereunder are cumulative. (e) The term "Banks" as used herein shall have the same meaning as in the Term Loan Agreement and this Agreement shall inure to the benefit of the Agent and such Banks. (f) Captions of the sections of this Guaranty are solely for the convenience of the Agent, the Banks and the Guarantor, and are not an aid in the interpretation of this Guaranty. (g) If any provision of this Guaranty is unenforceable in whole or in part for any reason, the remaining provisions shall continue to be effective. (h) THIS GUARANTY IS A CONTRACT UNDER THE LAWS OF THE STATE OF MICHIGAN AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE GUARANTOR AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS GUARANTY MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS -7-
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN THE OPENING PARAGRAPH HEREOF. THE GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. 11. Waivers. (A) THE GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION, APPRAISAL AND EXEMPTION LAWS. (B) IN THE EVENT OF A DEFAULT UNDER THE TERM LOAN AGREEMENT, THE GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE AGENT OR THE BANKS OF THEIR RIGHTS TO REPOSSESS THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN THE OPENING PARAGRAPH HEREOF. THE GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. 11. Waivers. (A) THE GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION, APPRAISAL AND EXEMPTION LAWS. (B) IN THE EVENT OF A DEFAULT UNDER THE TERM LOAN AGREEMENT, THE GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE AGENT OR THE BANKS OF THEIR RIGHTS TO REPOSSESS THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL WITHOUT PRIOR NOTICE OR HEARING. THE GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND THIS GUARANTY. (C) THE GUARANTOR ACKNOWLEDGES THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE REQUIRED FOR A BENCH TRIAL AND HEREBY WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY, ANY OBJECTION BASED ON FORUM NON CONVENIENS, ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE AGENT OR THE BANKS. 12. Trust Exculpation. All persons having a claim against the Guarantor, the general partner of the Debtor whose signature is affixed hereto as said general partner, hereunder or in connection with any matter that is subject hereof shall look solely to the trust assets of the trust, and in no event shall the obligations of the Guarantor be enforceable against any shareholder, trustee, officer, employee or agent of the Guarantor personally. [SIGNATURE PAGE FOLLOWS] -8-
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed as of the day and year first written above. RAMCO-GERSHENSON PROPERTIES TRUST
By: /S/ Dennis Gershenson, President -------------------------------Dennis Gershenson, President
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EXHIBIT 10.10 CONTRACT OF SALE BETWEEN DRM THIRTY-TWO REALTY CORPORATION
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed as of the day and year first written above. RAMCO-GERSHENSON PROPERTIES TRUST
By: /S/ Dennis Gershenson, President -------------------------------Dennis Gershenson, President
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EXHIBIT 10.10 CONTRACT OF SALE BETWEEN DRM THIRTY-TWO REALTY CORPORATION SELLER AND RAMCO-GERSHENSON PROPERTIES, L.P. PURCHASER Dated: July 7, 1997 Shopping Center Premises: Highland Square, Crossville, Tennessee
TABLE OF CONTENTS PAGE 1. DEFINITIONS.................................................... 1 2. SUBJECT OF SALE................................................ 4 3. PURCHASE PRICE................................................. 4 4. "SUBJECT TO" PROVISIONS........................................ 5 5. SPACE LEASES................................................... 6 6. LEASING PRACTICE............................................... 6 7. APPORTIONMENTS AND REIMBURSEMENTS.............................. 7 8. VIOLATIONS..................................................... 10 9. PENDING TAX PROCEEDINGS........................................ 10
EXHIBIT 10.10 CONTRACT OF SALE BETWEEN DRM THIRTY-TWO REALTY CORPORATION SELLER AND RAMCO-GERSHENSON PROPERTIES, L.P. PURCHASER Dated: July 7, 1997 Shopping Center Premises: Highland Square, Crossville, Tennessee
TABLE OF CONTENTS PAGE 1. DEFINITIONS.................................................... 1 2. SUBJECT OF SALE................................................ 4 3. PURCHASE PRICE................................................. 4 4. "SUBJECT TO" PROVISIONS........................................ 5 5. SPACE LEASES................................................... 6 6. LEASING PRACTICE............................................... 6 7. APPORTIONMENTS AND REIMBURSEMENTS.............................. 7 8. VIOLATIONS..................................................... 10 9. PENDING TAX PROCEEDINGS........................................ 10 10. "AS-IS"........................................................ 10 11. BROKER......................................................... 11 12. DESTRUCTION OR CONDEMNATION.................................... 11 13. STATUS OF TITLE................................................ 12 14. CLOSING........................................................ 12 15. NOTICES........................................................ 12
TABLE OF CONTENTS PAGE 1. DEFINITIONS.................................................... 1 2. SUBJECT OF SALE................................................ 4 3. PURCHASE PRICE................................................. 4 4. "SUBJECT TO" PROVISIONS........................................ 5 5. SPACE LEASES................................................... 6 6. LEASING PRACTICE............................................... 6 7. APPORTIONMENTS AND REIMBURSEMENTS.............................. 7 8. VIOLATIONS..................................................... 10 9. PENDING TAX PROCEEDINGS........................................ 10 10. "AS-IS"........................................................ 10 11. BROKER......................................................... 11 12. DESTRUCTION OR CONDEMNATION.................................... 11 13. STATUS OF TITLE................................................ 12 14. CLOSING........................................................ 12 15. NOTICES........................................................ 12 16. FRANCHISE TAXES................................................ 13 17. TITLE REPORT................................................... 13 18. NON-PERMITTED TITLE OBJECTIONS................................. 13 19. RETURN OF DEPOSIT.............................................. 15 20. AFFIDAVIT REGARDING JUDGMENTS.................................. 15 21. ASSIGNMENT OF THIS CONTRACT.................................... 15 i
22. DEED; TRANSFER TAXES............................................ 16 23. PURCHASER'S DEFAULT............................................. 16 24. ESCROW OF DEPOSIT............................................... 17 25. REPRESENTATIONS................................................. 18 26. CLOSING DOCUMENTS............................................... 21
22. DEED; TRANSFER TAXES............................................ 16 23. PURCHASER'S DEFAULT............................................. 16 24. ESCROW OF DEPOSIT............................................... 17 25. REPRESENTATIONS................................................. 18 26. CLOSING DOCUMENTS............................................... 21 27. FURTHER ASSURANCES.............................................. 23 28. PURCHASER'S DUE DILIGENCE PERIOD................................ 24 29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS.................... 25 30. MISCELLANEOUS................................................... 26 EXHIBITS AND SCHEDULES:
Schedule A: Schedule B: Schedule C: Schedule D: Schedule E: Schedule F: Exhibit 1: Exhibit 2: Exhibit 3: Exhibit 4: Exhibit 5: Description of Property Permitted Exceptions Rent Roll Escrowee's Wire Transfer Instructions Existing Mortgage List of Tax Protests Form of Assignment and Assumption of Space Leases Form of Tenant Estoppel Certificate Form of Assignment and Assumption of Service Contracts Form of Letter of Credit Form of Title Certification
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CONTRACT (this "Contract") made this 7th day of July, 1997 by and between DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, upon the terms and conditions hereinafter set forth, Seller agrees to sell and convey fee title to that certain parcel of land described on Schedule A, annexed hereto and made a part hereof, with the buildings and improvements erected thereon (which parcel of land and the improvements erected thereon are herein referred to as the "Property") to Purchaser and Purchaser agrees to purchase the Property. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS. The terms defined in this Section 1 shall for all purposes of this Contract have the meaning herein specified unless the context requires otherwise. (a) "Additional Deposit" shall have the meaning ascribed to it in Section 3(a). (b) "Affiliates" shall have the meaning ascribed to it in Section 25(a)(xii). (c) "Anchor Space Tenant" shall have the meaning ascribed to it in Section 12(b). (d) "Arrears" shall have the meaning ascribed to it in
CONTRACT (this "Contract") made this 7th day of July, 1997 by and between DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, upon the terms and conditions hereinafter set forth, Seller agrees to sell and convey fee title to that certain parcel of land described on Schedule A, annexed hereto and made a part hereof, with the buildings and improvements erected thereon (which parcel of land and the improvements erected thereon are herein referred to as the "Property") to Purchaser and Purchaser agrees to purchase the Property. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS. The terms defined in this Section 1 shall for all purposes of this Contract have the meaning herein specified unless the context requires otherwise. (a) "Additional Deposit" shall have the meaning ascribed to it in Section 3(a). (b) "Affiliates" shall have the meaning ascribed to it in Section 25(a)(xii). (c) "Anchor Space Tenant" shall have the meaning ascribed to it in Section 12(b). (d) "Arrears" shall have the meaning ascribed to it in Section 7(a)(i)(A). (e) "Cash Deposit" shall have the meaning ascribed to it in Section 3(a)(i). (f) "Closing" shall have the meaning ascribed to it in Section 14(a). (g) "Closing Date" shall have the meaning ascribed to it in Section 14(a). (h) "Code" shall have the meaning ascribed to it in Section 25(a)(vii). (i) "Consent and Assumption Agreement" shall have the meaning ascribed to it in Section 4(b)(i). (j) "Deed" shall have the meaning ascribed to it in Section 22(a). (k) "Deposit" shall have the meaning ascribed to it in Section 3(a).
(l) "ERISA" shall have the meaning ascribed to it in Section 29(c). (m) "Escrowee" shall have the meaning ascribed to it in Section 3(a). (n) "Estoppel Certificate" shall have the meaning ascribed to it in Section 26(a)(vii). (o) "Estoppel Default" shall have the meaning ascribed to it in Section 26(a)(vii)(B). (p) "Existing Mortgage" shall have the meaning ascribed to it in Section 4(a). (q) "Evaluation Material" shall have the meaning ascribed to it in Section 28(d).
(l) "ERISA" shall have the meaning ascribed to it in Section 29(c). (m) "Escrowee" shall have the meaning ascribed to it in Section 3(a). (n) "Estoppel Certificate" shall have the meaning ascribed to it in Section 26(a)(vii). (o) "Estoppel Default" shall have the meaning ascribed to it in Section 26(a)(vii)(B). (p) "Existing Mortgage" shall have the meaning ascribed to it in Section 4(a). (q) "Evaluation Material" shall have the meaning ascribed to it in Section 28(d). (r) "Initial Deposit" shall have the meaning ascribed to it in Section 3(a). (s) "Letter of Credit" shall have the meaning ascribed to it in Section 3(a)(i). (t) "Lender" shall have the meaning ascribed to it in Section 4(b)(i). (u) "Loan Documents" shall have the meaning ascribed to it in Section 4(a). (v) "Maximum Representation Expense" shall have the meaning ascribed to it in Section 25(e). (w) "Maximum Title Expense" shall have the meaning ascribed to it in Section 18(c). (x) "Mortgage Expenses" shall have the meaning ascribed to it in Section 4(d). (y) "New Space Lease" shall have the meaning ascribed to it in Section 6(a). (z) "Non-Permitted Title Objections" shall have the meaning ascribed to it in Section 18(a). (aa) "Obligors" shall have the meaning ascribed to it in Section 4(b)(i). 2
(ab) "Overage Rent" shall have the meaning provided in Section 7(a)(i)(B). (ac) "Permitted Exceptions" shall have the meaning ascribed to it in Section 13. (ad) "Premises" shall have the meaning ascribed it in Section 2(b). (ae) "Property" shall have the meaning ascribed to it in the "WHEREAS" paragraph in this Contract. (af) "Purchase Price" shall have the meaning ascribed to it in Section 3. (ag) "Purchaser's Due Diligence Period" shall have the meaning ascribed to it in Section 28(a). (ah) "Related Parties" shall have the meaning ascribed to it in Section 28(e). (ai) "Seller's Certificate" shall have the meaning ascribed to it in Section 26(a)(vii)(A). (aj) "Service Contracts" shall have the meaning ascribed to it in Section 25(a)(iv).
(ab) "Overage Rent" shall have the meaning provided in Section 7(a)(i)(B). (ac) "Permitted Exceptions" shall have the meaning ascribed to it in Section 13. (ad) "Premises" shall have the meaning ascribed it in Section 2(b). (ae) "Property" shall have the meaning ascribed to it in the "WHEREAS" paragraph in this Contract. (af) "Purchase Price" shall have the meaning ascribed to it in Section 3. (ag) "Purchaser's Due Diligence Period" shall have the meaning ascribed to it in Section 28(a). (ah) "Related Parties" shall have the meaning ascribed to it in Section 28(e). (ai) "Seller's Certificate" shall have the meaning ascribed to it in Section 26(a)(vii)(A). (aj) "Service Contracts" shall have the meaning ascribed to it in Section 25(a)(iv). (ak) "Space Leases" shall have the meaning ascribed to it in Section 5. (al) "Space Tenants" shall have the meaning ascribed to it in Section 5. (am) "Substantial Loss" shall have the meaning ascribed to it in Section 12(b). (an) "Title Company" shall have the meaning ascribed to it in Section 17. (ao) "Transfer Tax" shall have the meaning ascribed to it in Section 22(b). (ap) "Violation(s) " shall have the meaning ascribed to it in Section 8. 3
2. SUBJECT OF SALE. (a) Seller agrees to sell and convey to Purchaser the Premises and Purchaser agrees to purchase from Seller the Premises subject to the terms and conditions contained in this Contract. (b) This sale includes any right, title and interest of Seller in and to: (i) the Property (and any other property adjacent thereto owned by Seller); (ii) any land lying in the bed of any street, road or avenue opened or proposed, in front of or adjoining the Property, to the center line thereof, and all right, title and interest of Seller in and to any award made or to be made in lieu thereof and in and to any unpaid award for damage to the Property by reason of change of grade of any street; and Seller will execute and deliver to the Purchaser at the Closing, or thereafter, on demand, all proper instruments for the conveyance of such title and the assignment and collection of any such award; (iii) trade names, easements, permits, licenses and utility agreements, and other appurtenances appurtenant to the Property, if any; (iv) fixtures, equipment and other personal property attached to and appurtenant to the Property and not owned by the Space Tenants, if any, but no part of the Purchase Price shall be deemed to be paid for such fixtures, equipment or personal property; (v) the Space Leases and the security deposits listed on Schedule C annexed hereto; (vi) all plans and specifications for improvements to the Property in the possession of Seller and any contracts, warranties and guarantees, if any, with regard to the foregoing; and (vii) any mineral rights, waters, water courses and hereditaments belonging to the Property and owned by Seller ((i) through (vii) being referred to collectively as the "Premises"). 3. PURCHASE PRICE. The purchase price for the Premises is the sum of Nine Million Fifty- Nine Thousand and 00/100 Dollars
2. SUBJECT OF SALE. (a) Seller agrees to sell and convey to Purchaser the Premises and Purchaser agrees to purchase from Seller the Premises subject to the terms and conditions contained in this Contract. (b) This sale includes any right, title and interest of Seller in and to: (i) the Property (and any other property adjacent thereto owned by Seller); (ii) any land lying in the bed of any street, road or avenue opened or proposed, in front of or adjoining the Property, to the center line thereof, and all right, title and interest of Seller in and to any award made or to be made in lieu thereof and in and to any unpaid award for damage to the Property by reason of change of grade of any street; and Seller will execute and deliver to the Purchaser at the Closing, or thereafter, on demand, all proper instruments for the conveyance of such title and the assignment and collection of any such award; (iii) trade names, easements, permits, licenses and utility agreements, and other appurtenances appurtenant to the Property, if any; (iv) fixtures, equipment and other personal property attached to and appurtenant to the Property and not owned by the Space Tenants, if any, but no part of the Purchase Price shall be deemed to be paid for such fixtures, equipment or personal property; (v) the Space Leases and the security deposits listed on Schedule C annexed hereto; (vi) all plans and specifications for improvements to the Property in the possession of Seller and any contracts, warranties and guarantees, if any, with regard to the foregoing; and (vii) any mineral rights, waters, water courses and hereditaments belonging to the Property and owned by Seller ((i) through (vii) being referred to collectively as the "Premises"). 3. PURCHASE PRICE. The purchase price for the Premises is the sum of Nine Million Fifty- Nine Thousand and 00/100 Dollars ($9,059,000.00), (the "Purchase Price") which shall be paid by Purchaser to Seller as follows: (a) (i) Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars ($66,666.67) (the "Initial Deposit") on the signing of this Contract payable to Tenzer Green- blatt LLP ("Escrowee"), receipt of which is hereby acknowledged by the Escrowee and (ii) Two Hundred Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars ($266,666.67) (the "Additional Deposit") payable to Escrowee on or before September 5, 1997, time being of the essence. The Initial Deposit and the Additional Deposit, to the extent actually paid and received, together with any interest earned thereon is referred to collectively herein as the "Deposit." The Deposit shall include the Cash Deposit or any Letter of Credit or the proceeds therefrom. The Initial Deposit and the Additional Deposit may be paid, at Purchaser's option, by (A) electronic wire transfer in accordance with the instructions set forth on Schedule D attached hereto of immediately available federal funds, or by good certified check of Purchaser or bank teller's check to the order of Escrowee (individually or collectively (the "Cash Deposit") or (B) delivering to Escrowee an irrevocable letter of credit, in the amount of the Initial Deposit and/or the Additional Deposit issued to Escrowee, 4
as beneficiary, by BankBoston, N.A. in the form of Exhibit 4 (individually or collectively, the "Letter of Credit"); and (b) On the Closing Date, Eight Million Seven Hundred Twenty-Five Thousand Six Hundred Sixty-Six and 66/100 Dollars ($8,725,666.66) plus the amount of any Letter of Credit constituting all or a portion of the Deposit, subject to the apportionments set forth in Section 7, as follows: (i) approximately $5,947,170.14 by Purchaser assuming, and taking title subject to, the then unpaid principal balance under the Existing Mortgage (subject to the provisions of Section 4); and (ii) the balance by electronic wire transfer of immediately available federal funds pursuant to wiring instructions to be given by Seller to Purchaser prior to the Closing. 4. "SUBJECT TO" PROVISIONS; MORTGAGE. (a) The Premises are sold subject to (i) the exceptions set forth on Schedule B attached hereto and (ii) the Existing Mortgage. "Existing Mortgage" refers collectively to the mortgage loans described on Schedule E
as beneficiary, by BankBoston, N.A. in the form of Exhibit 4 (individually or collectively, the "Letter of Credit"); and (b) On the Closing Date, Eight Million Seven Hundred Twenty-Five Thousand Six Hundred Sixty-Six and 66/100 Dollars ($8,725,666.66) plus the amount of any Letter of Credit constituting all or a portion of the Deposit, subject to the apportionments set forth in Section 7, as follows: (i) approximately $5,947,170.14 by Purchaser assuming, and taking title subject to, the then unpaid principal balance under the Existing Mortgage (subject to the provisions of Section 4); and (ii) the balance by electronic wire transfer of immediately available federal funds pursuant to wiring instructions to be given by Seller to Purchaser prior to the Closing. 4. "SUBJECT TO" PROVISIONS; MORTGAGE. (a) The Premises are sold subject to (i) the exceptions set forth on Schedule B attached hereto and (ii) the Existing Mortgage. "Existing Mortgage" refers collectively to the mortgage loans described on Schedule E attached hereto. Seller has delivered to Purchaser, and Purchaser acknowledges receipt of, copies of the documents listed on Schedule E evidencing and securing the Existing Mortgage (the "Loan Documents"). (b) Seller agrees not to partially or wholly prepay the Existing Mortgage prior to the Closing (other than with respect to scheduled monthly payments) provided the following conditions have been satisfied: (i) Purchaser has, at its sole cost and expense, by not later than September 5, 1997 entered into and provided Seller with a true copy of an agreement, reasonably acceptable to Seller with respect to provisions binding on Seller or relating to the release of Seller from liability (the "Consent and Assumption Agreement") with the holder or holders (collectively the "Lender") of the Existing Mortgage whereby the Lender consents to the sale of the Property subject to the Existing Mortgage and Purchaser agrees to assume the obligations of each borrower, guarantor and any other obligor (collectively, the "Obligors") under the Loan Documents. Seller agrees to reasonably cooperate with Purchaser in connection with obtaining the Consent and Assumption Agreement; (ii) Purchaser complies with all of the requirements of the Lender and the Consent and Assumption Agreement through the Closing Date; and (iii) as of the Closing, the Lender has released the Obligors (and their partners, members, officers and/or shareholders) from any and all obligations and liabilities under the Loan Documents which arise from and after the Closing Date. 5
(c) If any of the conditions set forth in subparagraph (b) above are not satisfied with respect to the Existing Mortgage as of the date then scheduled for the Closing, Seller, at its sole election, may either: (i) close title and elect to pay off the applicable Existing Mortgage or (ii) adjourn the Closing for such time as may be necessary to satisfy the conditions or to pay off the Existing Mortgage. (d) Purchaser shall, at the Closing, pay all fees and expenses (the "Mortgage Expenses") due (or incurred by Seller) in connection with or arising out of (i) the payoff of the Existing Mortgage (including any prepayment charges) and/or (ii) Purchaser's assumption of the Existing Mortgage. The provisions of this Section 4(d) shall survive the Closing. (e) At the Closing, unless the Existing Mortgage is paid off, Purchaser shall assume the obligations under the Existing Mortgage and the Loan Documents and shall indemnify and hold Seller (and its partners, members, officers and/or shareholders) harmless from and against all claims, causes of action, liabilities, losses, deficiencies and damages, as well as costs and expenses (including attorneys' fees and court costs), interest and penalties related thereto, asserted against, or incurred by, Seller by reason of, or resulting or arising from, events occurring under the Existing Mortgage and the Loan Documents from and after the Closing Date. The provisions of this Section 4(e) shall survive the Closing.
(c) If any of the conditions set forth in subparagraph (b) above are not satisfied with respect to the Existing Mortgage as of the date then scheduled for the Closing, Seller, at its sole election, may either: (i) close title and elect to pay off the applicable Existing Mortgage or (ii) adjourn the Closing for such time as may be necessary to satisfy the conditions or to pay off the Existing Mortgage. (d) Purchaser shall, at the Closing, pay all fees and expenses (the "Mortgage Expenses") due (or incurred by Seller) in connection with or arising out of (i) the payoff of the Existing Mortgage (including any prepayment charges) and/or (ii) Purchaser's assumption of the Existing Mortgage. The provisions of this Section 4(d) shall survive the Closing. (e) At the Closing, unless the Existing Mortgage is paid off, Purchaser shall assume the obligations under the Existing Mortgage and the Loan Documents and shall indemnify and hold Seller (and its partners, members, officers and/or shareholders) harmless from and against all claims, causes of action, liabilities, losses, deficiencies and damages, as well as costs and expenses (including attorneys' fees and court costs), interest and penalties related thereto, asserted against, or incurred by, Seller by reason of, or resulting or arising from, events occurring under the Existing Mortgage and the Loan Documents from and after the Closing Date. The provisions of this Section 4(e) shall survive the Closing. 5. SPACE LEASES. With respect to tenancies and occupancies set forth on Schedule C attached hereto and made a part hereof, Purchaser represents that it has examined, or will examine prior to the expiration of Purchaser's Due Diligence Period, all leases and amendments thereto relating to such tenancies and occupancies (which leases and any New Space Leases are collectively referred to herein as the "Space Leases" and the lessees thereunder are herein called "Space Tenants"). 6. LEASING PRACTICE. (a) Subject to Section 6(b) below, Seller may continue to lease the Premises in a manner consistent with its past course of business and in a commercially reasonable manner, including, without limitation and in its sole discretion, the termination of existing Space Leases and/or the entering into of new leases or renewals or modifications of existing Spaces Leases (such new space lease, termination, renewal or modification is herein referred to as a "New Space Lease") . (b) (i) Prior to the expiration of Purchaser's Due Diligence Period, Seller shall be permitted to enter into any New Space Lease without the approval of Purchaser, provided Seller promptly notifies Purchaser of the same. (ii) After the expiration of Purchaser's Due Diligence Period provided Purchaser is not in default under this Contract, Seller shall not (A) enter into a New Space Lease covering more than 7,500 square feet of rentable space without obtaining the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed or (B) terminate any Space Lease without the prior written consent of Purchaser except in the event of a default by a Space Tenant under a 6
Space Lease. Any New Space Lease which does not require Purchaser's consent shall be arms-length and on then fair market terms and conditions (and shall otherwise be consistent with Seller's customary leasing standards). (iii) Seller and Purchaser shall apportion, at Closing, any tenant improvement expenses or allowances and leasing commissions on account of a New Space Lease based on their respective periods of ownership of the Premises during the term of such New Space Lease. (c) If Purchaser's consent is required under this Section 6 for the execution of a New Space Lease, Purchaser agrees to grant or deny its consent in writing (and provide, in reasonable detail, the reasons for any denial) within four (4) business days after request therefor. Purchaser's failure to duly respond to Seller's request within four (4) business days after request therefor shall be deemed a consent to the proposed New Space Lease. If Purchaser's consent is not required, Seller's sole obligation shall be to notify Purchaser prior to entering into any New Space Lease or terminating any Space Lease. (d) (i) Purchaser acknowledges and agrees that no representation has been made and no responsibility has been assumed by Seller with respect to the continued occupancy of the Premises, or any part thereof, by the Space
Space Lease. Any New Space Lease which does not require Purchaser's consent shall be arms-length and on then fair market terms and conditions (and shall otherwise be consistent with Seller's customary leasing standards). (iii) Seller and Purchaser shall apportion, at Closing, any tenant improvement expenses or allowances and leasing commissions on account of a New Space Lease based on their respective periods of ownership of the Premises during the term of such New Space Lease. (c) If Purchaser's consent is required under this Section 6 for the execution of a New Space Lease, Purchaser agrees to grant or deny its consent in writing (and provide, in reasonable detail, the reasons for any denial) within four (4) business days after request therefor. Purchaser's failure to duly respond to Seller's request within four (4) business days after request therefor shall be deemed a consent to the proposed New Space Lease. If Purchaser's consent is not required, Seller's sole obligation shall be to notify Purchaser prior to entering into any New Space Lease or terminating any Space Lease. (d) (i) Purchaser acknowledges and agrees that no representation has been made and no responsibility has been assumed by Seller with respect to the continued occupancy of the Premises, or any part thereof, by the Space Tenants. Seller does not undertake or guarantee that the Space Tenants will be in occupancy at the Closing. Prior to the Closing, Seller shall have the right, but not the obligation, to enforce its rights against the Space Tenants by summary proceeding or in any other manner. (ii) Notwithstanding the provisions of subsection (d)(i) above, but subject to the provisions of subsection (d)(iii) below, Purchaser shall have the right to cancel this Contract in the event that, on the Closing Date, an Anchor Space Tenant shall have filed a petition in bankruptcy and (A) an order has been executed by the Bankruptcy Court granting such Anchor Space Tenant's application to reject its Space Lease in bankruptcy or (B) fails to assume its Space Lease in bankruptcy. (iii) In the event that, following the date of this Contract any Anchor Space Tenant shall file a petition in bankruptcy, Seller, at Seller's election, shall have the privilege to (C) reinstate such Anchor Space Tenant's Space Lease by entering into a New Space Lease with such Anchor Space Tenant on substantially similar terms and conditions as in such prior Space Lease, or (D) obtain evidence, reasonably satisfactory to Purchaser, that such Anchor Space Tenant has assumed its Space Lease in bankruptcy or (E) procure a substitute tenant for the space covered by the Space Lease in question pursuant to a New Space Lease reasonably acceptable to Purchaser, and for any purpose provided in subparagraphs (C), (D) or (E) Seller shall be entitled to one or more adjournments of the Closing for a period not to exceed one (1) year in the aggregate; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected or cured to the reasonable satisfaction of Purchaser. 7
7. APPORTIONMENTS AND REIMBURSEMENTS. (a) Unless otherwise provided, at the Closing the following are to be reimbursed or apportioned as of 11:59 P.M. on the day preceding the Closing Date based upon the respective party's period of ownership for the item being apportioned. Notwithstanding the foregoing, in the event Seller (or its designee) does not receive the funds to be wired pursuant to Section 3(b) in time for Seller (or its designee) to invest same (or, if applicable, to timely pay off the Existing Mortgage) on the Closing Date, then in such event, the items set forth in this Section 7 shall be apportioned as of 11:59 P.M. on the Closing Date based upon the respective party's period of ownership for the item being apportioned (The reimbursements and apportionments shall be made based upon the actual number of days in the month in which the Closing Date occurs.): (i) Rent and additional rent under any Space Leases for the month of Closing, as and when collected. (A) If on the Closing Date there are any past due rentals which have been billed to or are due by Space Tenants and not collected (collectively "Arrears") Purchaser and Seller agree that the first moneys received after the Closing by Purchaser or Seller from such Space Tenants shall be applied (i) first to Seller and Purchaser for the month in which the Closing occurred, prorated in accordance with this Section 7, (ii) then to Purchaser toward any then current amounts owed by a Space Tenant to Purchaser and (iii) then to Seller toward the Arrears owed by such Space Tenant. Purchaser and Seller agree to remit promptly to the other the Arrears collected from time to time to which the other is so entitled as hereinbefore provided. Purchaser shall bill Space Tenants in
7. APPORTIONMENTS AND REIMBURSEMENTS. (a) Unless otherwise provided, at the Closing the following are to be reimbursed or apportioned as of 11:59 P.M. on the day preceding the Closing Date based upon the respective party's period of ownership for the item being apportioned. Notwithstanding the foregoing, in the event Seller (or its designee) does not receive the funds to be wired pursuant to Section 3(b) in time for Seller (or its designee) to invest same (or, if applicable, to timely pay off the Existing Mortgage) on the Closing Date, then in such event, the items set forth in this Section 7 shall be apportioned as of 11:59 P.M. on the Closing Date based upon the respective party's period of ownership for the item being apportioned (The reimbursements and apportionments shall be made based upon the actual number of days in the month in which the Closing Date occurs.): (i) Rent and additional rent under any Space Leases for the month of Closing, as and when collected. (A) If on the Closing Date there are any past due rentals which have been billed to or are due by Space Tenants and not collected (collectively "Arrears") Purchaser and Seller agree that the first moneys received after the Closing by Purchaser or Seller from such Space Tenants shall be applied (i) first to Seller and Purchaser for the month in which the Closing occurred, prorated in accordance with this Section 7, (ii) then to Purchaser toward any then current amounts owed by a Space Tenant to Purchaser and (iii) then to Seller toward the Arrears owed by such Space Tenant. Purchaser and Seller agree to remit promptly to the other the Arrears collected from time to time to which the other is so entitled as hereinbefore provided. Purchaser shall bill Space Tenants in Purchaser's customary manner and use reasonable efforts in pursuing the collection of all Arrears for one (1) year following the date of Closing. Purchaser shall have the right to deduct the greater of the allocable share of Purchaser's reasonable out-of-pocket costs incurred in collecting such Arrears or one (1%) percent of the Arrears collected on Seller's behalf from amounts otherwise due Seller. The provisions of this Section 7(a)(i)(A) shall survive the Closing. (B) As to any Space Lease(s) that provide for the payment of additional rent based upon a percentage of the Space Tenant's business during a specified annual or other period, or based upon reimbursement for or payment of real estate taxes, operating expenses or insurance expenses or otherwise (such additional rent being collectively called "Overage Rent"), if the Closing shall occur prior to the time when any such Overage Rent is payable, then such Overage Rent for the applicable accounting period in which the Closing occurs shall be apportioned subsequent to the Closing. Purchaser agrees that it will receive and hold such Overage Rent in trust and pay over to the Seller the proportion of such Overage Rent as the portion of such accounting period during which Seller was in title to the Premises bears to the entire such accounting period. As to any Overage Rent in respect to an accounting period that shall have expired prior to the Closing but which shall become payable after the Closing, the Purchaser agrees that it will receive and hold such Overage Rent in trust and pay the entire amount over to the Seller upon receipt thereof. Purchaser shall have the right to deduct the greater of the allocable share of 8
Purchaser's reasonable out-of-pocket costs incurred in collecting such Overage Rent or one (1%) percent of the Overage Rent collected on Seller's behalf from amounts otherwise due Seller. Seller shall furnish to Purchaser all information (including the form of the bill to be rendered) necessary for the billing of such Overage Rent. Purchaser agrees that it shall render bills (calculated by Seller if applicable to a period during Seller's ownership) for Overage Rent following the Closing and shall, upon receipt thereof, promptly pay to the Seller the amount to which the Seller is entitled as above provided. If requested by either party, both parties will join in a letter to the respective Space Tenants under such leases directing the division of Overage Rents in accordance with the foregoing provisions hereof. To the extent that a Space Tenant has the express right under its Space Lease to offset Overage Rent against other amounts due under its Space Lease, same will be taken into account in determining Overage Rent apportionments. Promptly after the calendar year in which the Closing occurs, Seller and Purchaser shall reconcile all Overage Rent due for such calendar year based upon actual expenses incurred during such year, and such reconciled Overage Rent shall be reapportioned between Seller and Purchaser (taking into account any Overage Rent retained by Seller at Closing and collected by Purchaser after the Closing). The provisions of this Section 7(a)(i)(B) shall survive the Closing.
Purchaser's reasonable out-of-pocket costs incurred in collecting such Overage Rent or one (1%) percent of the Overage Rent collected on Seller's behalf from amounts otherwise due Seller. Seller shall furnish to Purchaser all information (including the form of the bill to be rendered) necessary for the billing of such Overage Rent. Purchaser agrees that it shall render bills (calculated by Seller if applicable to a period during Seller's ownership) for Overage Rent following the Closing and shall, upon receipt thereof, promptly pay to the Seller the amount to which the Seller is entitled as above provided. If requested by either party, both parties will join in a letter to the respective Space Tenants under such leases directing the division of Overage Rents in accordance with the foregoing provisions hereof. To the extent that a Space Tenant has the express right under its Space Lease to offset Overage Rent against other amounts due under its Space Lease, same will be taken into account in determining Overage Rent apportionments. Promptly after the calendar year in which the Closing occurs, Seller and Purchaser shall reconcile all Overage Rent due for such calendar year based upon actual expenses incurred during such year, and such reconciled Overage Rent shall be reapportioned between Seller and Purchaser (taking into account any Overage Rent retained by Seller at Closing and collected by Purchaser after the Closing). The provisions of this Section 7(a)(i)(B) shall survive the Closing. (ii) Water rates and water meter charges, if any, not payable by the Space Tenants on the basis of the fiscal period for which assessed. If there be a water meter, or meters, on the Premises (other than meters under which charges are payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc.), the unfixed meter charges and the unfixed sewer rent thereon for the time intervening from the date of the last reading shall be apportioned on the basis of such last reading, and shall be appropriately readjusted after the Closing on the basis of the next subsequent bills. As to any water charges payable by the Space Tenant as aforementioned, if the Space Tenant shall have failed to pay such water charges, such unpaid charges and the liens, if any, resulting therefrom shall not be objections to title, or be the basis of any claim whatsoever by Purchaser against Seller and Purchaser shall close title in accordance with the terms of this Contract subject to such unpaid charges and rents and such liens without abatement or credit against the Purchase Price. The provisions of this Section 7(a)(ii) shall survive the Closing. (iii) Real estate, school and sewer taxes then due and payable by Seller. As to any real estate, school and sewer taxes payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc., if such Space Tenant shall have failed to pay such taxes, such unpaid taxes and the liens, if any, resulting therefrom shall not be objections to title, or be the basis of any claim whatsoever by Purchaser against Seller and Purchaser shall close title in accordance with the terms of this Contract subject to such unpaid charges and rents and such liens without abatement or credit against the Purchase Price. The provisions of this Section 7(a)(iii) shall survive the Closing. (iv) Charges under Service Contracts not terminated on or prior to Closing and other expenses in connection with the operation of the Premises. (v) Unless the Existing Mortgage is paid off at Closing, interest due under the Existing Mortgage for the month in which the Closing occurs. 9
(vi) Leasing expenses pursuant to Section 6(b), if any. (b) At the Closing, Seller shall deliver to Purchaser the Space Tenants' security deposits set forth in Schedule C annexed hereto, or credit the Purchase Price on account of said security deposits; provided, however, that if any Space Tenant is in default under the terms of its Space Lease and has vacated its premises, Seller may retain so much of such Space Tenant's security deposit as shall be sufficient to cover Seller's loss by reason of the default. It is further agreed that nothing herein contained shall be deemed to prevent Seller from applying security deposits prior to Closing in order to liquidate any claim under any Space Lease or to compromise, adjust or settle with any Space Tenant for the disposition of any claim by the application of such security deposits provided such Space Tenant has vacated its premises. (c) At the Closing, Seller shall receive a credit equal to any escrows held by Lender which are transferred to Purchaser.
(vi) Leasing expenses pursuant to Section 6(b), if any. (b) At the Closing, Seller shall deliver to Purchaser the Space Tenants' security deposits set forth in Schedule C annexed hereto, or credit the Purchase Price on account of said security deposits; provided, however, that if any Space Tenant is in default under the terms of its Space Lease and has vacated its premises, Seller may retain so much of such Space Tenant's security deposit as shall be sufficient to cover Seller's loss by reason of the default. It is further agreed that nothing herein contained shall be deemed to prevent Seller from applying security deposits prior to Closing in order to liquidate any claim under any Space Lease or to compromise, adjust or settle with any Space Tenant for the disposition of any claim by the application of such security deposits provided such Space Tenant has vacated its premises. (c) At the Closing, Seller shall receive a credit equal to any escrows held by Lender which are transferred to Purchaser. 8. VIOLATIONS. (a) Subject to the provisions of subsection (b) below, Purchaser shall accept the Premises subject to any notes or notices or violations of law or municipal ordinances, orders or requirements imposed or issued by any governmental or quasi-governmental authority having or asserting jurisdiction, against or affecting the Premises (individually a "Violation" and collectively "Violations") and any conditions which may result in Violations. Purchaser shall be responsible for all Violations from and after the Closing Date. (b) If, after the expiration of Purchaser's Due Diligence Period, any Violations are imposed which require a cost in excess of $100,000, in the aggregate, to cure as determined by a reputable contractor or engineer selected by Seller (and reasonably acceptable to Purchaser) Seller shall, at its election (i) cure such Violations and, for such purpose, be entitled to adjourn the Closing for a period not to exceed sixty (60) days or (ii) allow Purchaser a credit against the Purchase Price equal to the sum required to cure such Violations less $100,000 or (iii) if Seller reasonably disputes the validity of such Violations, indemnify Purchaser from and against any and all claims, loss, liability or damage, which exceed $100,000, that may arise as a result of such Violations, Seller's liability being limited under such indemnity to $100,000 in the aggregate. (c) The provisions of this Section 8 shall survive the Closing. 9. PENDING TAX PROCEEDINGS. Seller represents that there are no proceedings to review real estate tax assessment of the Premises other than as set forth in Schedule F. Seller shall have sole authority to prosecute, settle and withdraw proceedings to review any real estate tax assessment for the Premises for period relating to tax years prior to, and including, the year in which the Closing occurs. Purchaser and Seller agree that if there should be a refund of any real estate taxes paid by Seller in respect of the fiscal year in which the Closing occurs, such refund, less reasonable attorneys' fees and disbursements, shall be apportioned between Seller and Purchaser as of the Closing Date and shall be paid promptly upon receipt thereof. Seller and Purchaser shall pay their respective share of any amounts reimbursable to Space Tenants in respect to such refund. Purchaser acknowledges that it has no interest in any proceedings or refunds applicable to any fiscal tax year prior to 10
the year in which the Closing occurs. The provisions of this Section 9 shall survive the Closing. 10. "AS-IS". Purchaser represents to Seller that (i) Purchaser has or will, prior to the expiration of the Purchaser's Due Diligence Period, independently examined, inspected, and investigated to the full satisfaction of Purchaser, the physical nature and condition of the Premises and the income, operating expenses and carrying charges affecting the Premises, (ii) except as expressly set forth in this Contract, neither Seller nor any agent, officer, employee, or representative of Seller has made any representation whatsoever regarding the subject matter of this Contract or any part thereof, including (without limiting the generality of the foregoing) representations as to the physical nature or condition of the Premises, the existence or non-existence of asbestos, hazardous substances or wastes, underground storage tanks or any other environmental hazards on or about the Premises, or the Space Leases, or operating expenses or carrying charges affecting the Premises, and (iii) Purchaser, in executing, delivering and performing this Contract, does not rely upon any statement, offering material, operating statement, historical budget, engineering structural report, any environmental reports, information, or representation to whomsoever made or given, whether to Purchaser or others, and whether directly or indirectly, verbally or in writing, made by any person, firm or corporation except as expressly set forth
the year in which the Closing occurs. The provisions of this Section 9 shall survive the Closing. 10. "AS-IS". Purchaser represents to Seller that (i) Purchaser has or will, prior to the expiration of the Purchaser's Due Diligence Period, independently examined, inspected, and investigated to the full satisfaction of Purchaser, the physical nature and condition of the Premises and the income, operating expenses and carrying charges affecting the Premises, (ii) except as expressly set forth in this Contract, neither Seller nor any agent, officer, employee, or representative of Seller has made any representation whatsoever regarding the subject matter of this Contract or any part thereof, including (without limiting the generality of the foregoing) representations as to the physical nature or condition of the Premises, the existence or non-existence of asbestos, hazardous substances or wastes, underground storage tanks or any other environmental hazards on or about the Premises, or the Space Leases, or operating expenses or carrying charges affecting the Premises, and (iii) Purchaser, in executing, delivering and performing this Contract, does not rely upon any statement, offering material, operating statement, historical budget, engineering structural report, any environmental reports, information, or representation to whomsoever made or given, whether to Purchaser or others, and whether directly or indirectly, verbally or in writing, made by any person, firm or corporation except as expressly set forth herein, and Purchaser acknowledges that any such statement, information, offering material, operating statement, historical budget, report or representation, if any, does not represent or guarantee future performance of the Premises. Without limiting the foregoing, but in addition thereto, except as otherwise expressly set forth in this Contract, Seller shall deliver, and Purchaser shall take, the Premises in their "as is" condition on the Closing Date subject to Section 12. 11. BROKER. Seller and Purchaser represent to each other that neither party has dealt with any broker or real estate consultant in connection with the transactions contemplated by this Contract. Seller and Purchaser shall indemnify and hold the other free and harmless from and against any damages, costs or expenses (including, but not limited to, reasonable attorneys' fees and disbursements) suffered by the indemnified party arising from a misrepresentation or a breach of any covenant made by the indemnifying party pursuant to this Section 11. The provisions of this Section 11 shall survive the Closing. 12. DESTRUCTION OR CONDEMNATION. (a) If on or prior to the date set for Closing there is a casualty or condemnation affecting the Property which constitutes a Substantial Loss, Purchaser shall have the option of cancelling this Contract within fifteen (15) days after notice of such casualty or condemnation, in which event, the Deposit shall be returned to the Purchaser and this Contract deemed cancelled and of no force and effect and neither party shall have any further rights or liabilities against or to the other. In the event of a Substantial Loss, and Purchaser does not elect to cancel this Contract, or in the event that the casualty or condemnation does not constitute a Substantial Loss, then the Purchaser and Seller shall consummate the transaction contemplated by this Contract without any reduction or abatement in the Purchase Price and Seller, upon the Closing, shall assign to the Purchaser all of its rights in and to any insurance proceeds (and shall pay to Purchaser, or allow on account the Purchase Price, a sum equal to the amount of the deductible, if any, on 11
Seller's casualty insurance policy for the Premises) or condemnation awards, as the case may be, in connection with such casualty or condemnation. (b) As used herein, "Substantial Loss" with respect to the Property shall mean a casualty or condemnation that either (i) shall entitle any anchor Space Tenant denoted as such on Schedule C annexed hereto (each an "Anchor Space Tenant" and collectively the "Anchor Space Tenants") to terminate its Space Lease on or after the Closing Date and Seller has failed to obtain a waiver of such termination right or (ii) requires repairs or restoration costs in excess of Seven Hundred Fifty Thousand ($750,000.00) Dollars. In the event Purchaser elects to cancel this Contract in accordance with subparagraph (a) above, Seller may rescind such cancellation by (iii) delivering, within one (1) year after the receipt of Purchaser's notice of cancellation, a waiver by each Anchor Space Tenant which was entitled to terminate its Space Lease by reason of the casualty or condemnation of its right or option to so terminate and (iv) within one (1) year after receipt of Purchaser's notice of cancellation, restorating and repairing the Property (A) if in connection with a casualty, substantially to its condition immediately prior to the casualty or (B) if in connection with a condemnation, as may be reasonably necessary as a result of the taking of property; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected
Seller's casualty insurance policy for the Premises) or condemnation awards, as the case may be, in connection with such casualty or condemnation. (b) As used herein, "Substantial Loss" with respect to the Property shall mean a casualty or condemnation that either (i) shall entitle any anchor Space Tenant denoted as such on Schedule C annexed hereto (each an "Anchor Space Tenant" and collectively the "Anchor Space Tenants") to terminate its Space Lease on or after the Closing Date and Seller has failed to obtain a waiver of such termination right or (ii) requires repairs or restoration costs in excess of Seven Hundred Fifty Thousand ($750,000.00) Dollars. In the event Purchaser elects to cancel this Contract in accordance with subparagraph (a) above, Seller may rescind such cancellation by (iii) delivering, within one (1) year after the receipt of Purchaser's notice of cancellation, a waiver by each Anchor Space Tenant which was entitled to terminate its Space Lease by reason of the casualty or condemnation of its right or option to so terminate and (iv) within one (1) year after receipt of Purchaser's notice of cancellation, restorating and repairing the Property (A) if in connection with a casualty, substantially to its condition immediately prior to the casualty or (B) if in connection with a condemnation, as may be reasonably necessary as a result of the taking of property; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected or cured to the reasonable satisfaction of Purchaser. (c) The estimated cost of repairs or restoration in connection with a casualty or condemnation shall be determined by a reputable contractor or engineer selected by Seller and approved by Purchaser (which approval shall not be unreasonably withheld or delayed). The Closing shall be postponed for such periods as may be necessary to allow Seller to comply with the provisions of this Section 12. (d) The provisions of this Section 12 supersede the provisions of any applicable statutory or decisional law with respect to the subject matter contained in this Section 12. 13. STATUS OF TITLE. Seller shall deliver and Purchaser shall accept title to the Premises and consummate the transaction contemplated by this Contract subject to (a) the title exceptions set forth in Schedule B, (b) the Existing Mortgage, (c) title exceptions created or suffered by the Space Tenants or Purchaser and (d) such other title exceptions which Seller may, in accordance with the provisions of this Contract, cause the Title Company to omit or affirmatively insure will not be collected out of the Premises provided that Purchaser has reasonably approved the affirmative insurance (the title exceptions, whether liens, encumbrances, defects, encroachments or other objections, described in (a), (b), (c) and (d) being sometimes referred to collectively as "Permitted Exceptions"). Seller shall not enter into any agreements, indemnities or other understandings with the Title Company which will enable the Title Company to omit any matter of record without the knowledge of Purchaser. 12
14. CLOSING. (a) The closing of title (the "Closing") shall take place on September 30, 1997 (the actual date of Closing being herein referred to as the "Closing Date") at the offices of Tenzer Greenblatt LLP, 405 Lexington Avenue, New York, New York 10174 at 9:00 o'clock in the forenoon on that day, time being of the essence (except that Seller may adjourn the Closing in accordance with other express provisions of this Contract,) at which time the Deed to the Property shall be delivered upon payment to Seller of the Purchase Price. Notwithstanding anything contained herein or at law or in equity, Purchaser expressly agrees that it shall have no right or privilege to adjourn the Closing except as expressly permitted by this Contract and Purchaser's inability or refusal to close title on the date scheduled for Closing shall be a default under this Contract. (b) The parties agree to finalize documents necessary for the Closing and to cause their representatives to attend a customary "pre-closing" at least one (1) business day prior to the date scheduled for Closing. 15. NOTICES. All notices hereunder shall be sent by certified or registered mail, return receipt requested, or may be sent by Federal Express or other overnight courier which obtains a signature upon delivery, or may be delivered by hand delivery addressed to Seller at the address set forth above or at such other address as Seller shall designate from time to time by notice to Purchaser with copies of all such notices to be likewise sent to:
14. CLOSING. (a) The closing of title (the "Closing") shall take place on September 30, 1997 (the actual date of Closing being herein referred to as the "Closing Date") at the offices of Tenzer Greenblatt LLP, 405 Lexington Avenue, New York, New York 10174 at 9:00 o'clock in the forenoon on that day, time being of the essence (except that Seller may adjourn the Closing in accordance with other express provisions of this Contract,) at which time the Deed to the Property shall be delivered upon payment to Seller of the Purchase Price. Notwithstanding anything contained herein or at law or in equity, Purchaser expressly agrees that it shall have no right or privilege to adjourn the Closing except as expressly permitted by this Contract and Purchaser's inability or refusal to close title on the date scheduled for Closing shall be a default under this Contract. (b) The parties agree to finalize documents necessary for the Closing and to cause their representatives to attend a customary "pre-closing" at least one (1) business day prior to the date scheduled for Closing. 15. NOTICES. All notices hereunder shall be sent by certified or registered mail, return receipt requested, or may be sent by Federal Express or other overnight courier which obtains a signature upon delivery, or may be delivered by hand delivery addressed to Seller at the address set forth above or at such other address as Seller shall designate from time to time by notice to Purchaser with copies of all such notices to be likewise sent to: Tenzer Greenblatt LLP 405 Lexington Avenue New York, New York 10174 Attention: Martin Luskin, Esq. and to Purchaser at the address given for Purchaser at the beginning of this Contract or at such other address as Purchaser shall from time to time designate by notice to Seller with copies of all such notices to Purchaser to be likewise sent to: Honigman, Miller, Schwartz & Cohn 2290 First National Building Detroit, Michigan 48226 Attention: Alan Hurvitz, Esq. Notices shall be deemed served three (3) business days after mailing, and in the case of overnight courier or hand delivery, on the date actually delivered to the intended recipient, except for notice(s) which advise the other party of a change of address of the party sending such notice or of such party's attorney, which notice shall not be deemed served until actually received by the party to whom such notice is addressed or delivery is refused by such party. Notices on behalf of the respective parties may be given by their attorneys and such notices shall have the same effect as if in fact subscribed by the party on whose behalf it is given. Notwithstanding the foregoing provisions of this Section 15, notices served by 13
hand delivery shall be deemed served on the date of delivery if delivered at or prior to 5:00 P.M., and on the next business day if delivered after 5:00 P.M. 16. FRANCHISE TAXES. Unpaid franchise or corporation taxes, dissolution taxes or any other similar taxes so levied, of any corporation in the chain of title shall be no objection to title so long as the Title Company insures against collection of any such taxes out of or enforcement against the Premises without special or additional premium or if such special or additional premium is required, if Seller shall pay such special or additional premium. 17. TITLE REPORT. Purchaser shall promptly order a title report from Commonwealth Land Title Insurance Company (the "Title Company") and a survey or survey update, all at Purchaser's sole cost and expense. Purchaser shall from time to time, promptly after obtaining knowledge thereof, notify Seller of any Non-Permitted Title Objections. Purchaser shall pay all premiums charged in connection with procuring a policy of title insurance. 18. NON-PERMITTED TITLE OBJECTIONS.
hand delivery shall be deemed served on the date of delivery if delivered at or prior to 5:00 P.M., and on the next business day if delivered after 5:00 P.M. 16. FRANCHISE TAXES. Unpaid franchise or corporation taxes, dissolution taxes or any other similar taxes so levied, of any corporation in the chain of title shall be no objection to title so long as the Title Company insures against collection of any such taxes out of or enforcement against the Premises without special or additional premium or if such special or additional premium is required, if Seller shall pay such special or additional premium. 17. TITLE REPORT. Purchaser shall promptly order a title report from Commonwealth Land Title Insurance Company (the "Title Company") and a survey or survey update, all at Purchaser's sole cost and expense. Purchaser shall from time to time, promptly after obtaining knowledge thereof, notify Seller of any Non-Permitted Title Objections. Purchaser shall pay all premiums charged in connection with procuring a policy of title insurance. 18. NON-PERMITTED TITLE OBJECTIONS. (a) If on the Closing it should appear that the Premises are affected by any lien, encumbrance, defect, encroachment or objection which is not a Permitted Exception (collectively, "Non-Permitted Title Objections"), then in such event, Seller, at Seller's election, shall have the privilege to remove or satisfy the same, and shall, for that purpose, be entitled to one or more adjournments of the Closing for a period not exceeding in the aggregate sixty (60) days. (b) If Seller elects to adjourn the Closing pursuant to this Section 18, this Contract shall remain in effect for the period or periods of adjournment, in accordance with its terms. (c) Except as provided below, Seller shall not be required to bring any action or proceeding or to otherwise incur any expense to remove or discharge any NonPermitted Title Objection; provided, however, that if there exists Non-Permitted Title Objection(s) which can be removed or discharged by payment of a sum of money only, and if both (1) such removal or discharge can reasonably be expected to be accomplished within a period of sixty (60) days and (2) the sum of money required to accomplish all such removals or discharges with respect to the Premises shall not exceed in the aggregate Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars (the "Maximum Title Expense"), then, and in such event, Seller agrees to either (i) adjourn the Closing for the period required to remove or discharge such Non-Permitted Title Objections, and to expend an amount not to exceed the Maximum Title Expense to remove or discharge such Non-Permitted Title Objections, or (ii) indemnify Purchaser, in an amount not to exceed the Maximum Title Expense, from any damage, cost, expense or claim which Purchaser may incur as a result of such Non-Permitted Title Objection (in which case Purchaser shall accept title subject to such Non-Permitted Title Objection). Notwithstanding the foregoing provisions, Purchaser may, at any time, accept such title as Seller can convey notwithstanding the existence of any Non14
Permitted Title Objections without reduction of the Purchase Price or any credit or allowance on account thereof or any claim against Seller, provided, however, if there shall be any NonPermitted Title Objections that can be removed or discharged by the payment of a sum of money only which exceeds the Maximum Title Expense, or that can be removed by the payment of less than the Maximum Title Expense but not within the available time, and Seller elects not to or cannot remove or discharge such Non-Permitted Title Objections within the available time, then if Purchaser elects to accept such title as Seller can convey the Purchase Price shall be reduced, by the lesser of the Maximum Title Expense or the amount required to remove or discharge said Non-Permitted Title Objection. The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Contract, except those, if any, that are herein specifically stated or made to survive the Closing (but, except as expressly set forth in this Contract, nothing herein shall be deemed to obligate Purchaser to accept title subject to any Non-Permitted Title Objection). Anything in this Section 18(c) to the contrary notwithstanding, an attempt by Seller to remove or discharge any Non-Permitted Title Objection shall not be deemed to be or create an obligation of Seller to remove or discharge the same.
Permitted Title Objections without reduction of the Purchase Price or any credit or allowance on account thereof or any claim against Seller, provided, however, if there shall be any NonPermitted Title Objections that can be removed or discharged by the payment of a sum of money only which exceeds the Maximum Title Expense, or that can be removed by the payment of less than the Maximum Title Expense but not within the available time, and Seller elects not to or cannot remove or discharge such Non-Permitted Title Objections within the available time, then if Purchaser elects to accept such title as Seller can convey the Purchase Price shall be reduced, by the lesser of the Maximum Title Expense or the amount required to remove or discharge said Non-Permitted Title Objection. The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Contract, except those, if any, that are herein specifically stated or made to survive the Closing (but, except as expressly set forth in this Contract, nothing herein shall be deemed to obligate Purchaser to accept title subject to any Non-Permitted Title Objection). Anything in this Section 18(c) to the contrary notwithstanding, an attempt by Seller to remove or discharge any Non-Permitted Title Objection shall not be deemed to be or create an obligation of Seller to remove or discharge the same. (d) The foregoing provisions of this Section 18 to the contrary notwithstanding, Seller agrees to remove or discharge any monetary lien voluntarily created or suffered by Seller and any Non-Permitted Title Objections voluntarily created or suffered by Seller after the date hereof; provided, however, that Seller shall not be deemed to have voluntarily created or suffered (nor shall Seller be liable for) any Non-Permitted Title Objections if caused or created by an act or omission of Purchaser or by an act or omission of any Space Tenant. Seller shall remove or discharge any Non-Permitted Title Objection in the manner set forth in subparagraph (c) above, but, for purposes of this subparagraph (d), without regard to the Maximum Title Expense. 19. RETURN OF DEPOSIT; SELLER'S DEFAULT If, for any reason whatsoever, Seller shall be unable to convey title subject to and in accordance with the terms of this Contract, the sole obligation of Seller shall be to cause the refund of the Deposit, and upon the making of such refund this Contract shall be null and void and of no further force or effect, no party hereto shall have any further claim against the other by reason of this Contract; provided, however, that if Seller's inability to convey shall result from (i) Seller's willful default or (ii) Seller's default under Section 18 above, then Purchaser shall, in either case under clause (i) or (ii) of this proviso, be entitled to the remedy of either (A) specific performance or (B) cancelling this Contract and receiving (1) the return of the Deposit and (2) reimbursement of Purchaser's actual out-of-pocket expenses incurred in procuring environmental and engineering reports not to exceed $6,500.00 in the aggregate, and upon receipt by Purchaser of the Deposit and such reimbursement no party hereto shall have any further claim against the other by reason of this Contract. 20. AFFIDAVIT REGARDING JUDGMENTS. If a search of the title discloses judgments, bankruptcies or other returns against other persons having names the same as or 15
similar to that of Seller but who are not Seller or its affiliates or subsidiaries, Seller will deliver to Purchaser and the Title Company an affidavit(s) showing that such judgments, bankruptcies or other returns are not against Seller or, at Seller's option, deliver an indemnity agreement to the Title Company, in such form and content that the Title Company will remove such judgments, bankruptcies or other returns as exceptions to title or will insure against collection of such judgments out of the Premises. 21. ASSIGNMENT OF THIS CONTRACT. This Contract may not be assigned by Purchaser without the prior written consent of Seller. The foregoing notwithstanding, Purchaser shall have the right to assign this Contract to an entity whose decisions are made by Purchaser (or by an entity wholly owned by Purchaser) provided Purchaser owns at least fifty (50%) percent of the economic interests in such entity and provided further that such entity assumes all obligations of Purchaser under this Contract. A transfer, sale or assignment of the majority stock or membership interest in a corporate or limited liability company purchaser or in a corporate or limited liability general partner of a partnership purchaser, or of a general partnership interest in a partnership purchaser, shall constitute an assignment of this Contract, which assignment or attempted assignment shall be void if made without the written consent of Seller. No assignment of this Contract, whether or not permitted, shall be deemed
similar to that of Seller but who are not Seller or its affiliates or subsidiaries, Seller will deliver to Purchaser and the Title Company an affidavit(s) showing that such judgments, bankruptcies or other returns are not against Seller or, at Seller's option, deliver an indemnity agreement to the Title Company, in such form and content that the Title Company will remove such judgments, bankruptcies or other returns as exceptions to title or will insure against collection of such judgments out of the Premises. 21. ASSIGNMENT OF THIS CONTRACT. This Contract may not be assigned by Purchaser without the prior written consent of Seller. The foregoing notwithstanding, Purchaser shall have the right to assign this Contract to an entity whose decisions are made by Purchaser (or by an entity wholly owned by Purchaser) provided Purchaser owns at least fifty (50%) percent of the economic interests in such entity and provided further that such entity assumes all obligations of Purchaser under this Contract. A transfer, sale or assignment of the majority stock or membership interest in a corporate or limited liability company purchaser or in a corporate or limited liability general partner of a partnership purchaser, or of a general partnership interest in a partnership purchaser, shall constitute an assignment of this Contract, which assignment or attempted assignment shall be void if made without the written consent of Seller. No assignment of this Contract, whether or not permitted, shall be deemed to relieve or release Purchaser from any of its obligations (whether to be performed prior to or after Closing) set forth herein. Seller shall not have the right to assign its interests under this Contract except to entities affiliated with or related to Seller. 22. DEED; TRANSFER TAXES; EXISTING MORTGAGE EXPENSES (a) The deed to the Premises shall be the usual special warranty deed (the "Deed") all in proper statutory form for recording and shall be duly executed and acknowledged so as to convey to Purchaser the fee simple of the portion of the Premises covered thereby, free of all liens and encumbrances, except as herein stated. (b) At the Closing, Seller shall pay the cost of any amount of documentary stamps, transfer tax or similar conveyance tax imposed in connection with the delivery of the Deed (collectively, the "Transfer Tax") and Purchaser and Seller shall execute and deliver any returns and/or affidavits in connection with the recording of the Deed or the payment of the Transfer Tax. (c) (i) Anything in subdivision (b) to the contrary notwithstanding, Seller may, at its option, elect by notice given not later than three (3) business days prior to the Closing that Purchaser pay all required Transfer Tax, in which event at the Closing, Purchaser shall receive a credit against Purchase Price in the amount paid by Purchaser. (ii) Purchaser hereby indemnifies and holds Seller harmless from and against any interest or penalty charges imposed by reason of the untimely delivery to the appropriate recording officer of any of the checks required under Subdivision (c)(i). 16
(d) At the Closing, Purchaser shall pay the cost of any documentary stamps, recording taxes or other tax or expense imposed in connection with the Existing Mortgage. (e) The provisions of this Section 22 shall survive the Closing. 23. PURCHASER'S DEFAULT. In the event Purchaser should default under this Contract (including, but not limited to, Purchaser's failure to timely deliver the Additional Deposit), the parties agree that the damages that Seller will sustain as a result thereof will be difficult, if not impossible, to ascertain and, in such event Seller shall, as its sole and exclusive remedy, direct Escrowee to pay the Deposit to Seller who shall retain it as and for its liquidated damages hereunder. 24. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee is instructed as follows: (a) Upon the Closing, the Cash Deposit shall be paid over to Seller and any Letter of Credit shall be delivered to Purchaser upon payment by Purchaser to Seller of the Purchase Price. (b) (i) Escrowee shall draw the full proceeds under any Letter of Credit if (A) Escrowee shall receive a written
(d) At the Closing, Purchaser shall pay the cost of any documentary stamps, recording taxes or other tax or expense imposed in connection with the Existing Mortgage. (e) The provisions of this Section 22 shall survive the Closing. 23. PURCHASER'S DEFAULT. In the event Purchaser should default under this Contract (including, but not limited to, Purchaser's failure to timely deliver the Additional Deposit), the parties agree that the damages that Seller will sustain as a result thereof will be difficult, if not impossible, to ascertain and, in such event Seller shall, as its sole and exclusive remedy, direct Escrowee to pay the Deposit to Seller who shall retain it as and for its liquidated damages hereunder. 24. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee is instructed as follows: (a) Upon the Closing, the Cash Deposit shall be paid over to Seller and any Letter of Credit shall be delivered to Purchaser upon payment by Purchaser to Seller of the Purchase Price. (b) (i) Escrowee shall draw the full proceeds under any Letter of Credit if (A) Escrowee shall receive a written statement signed by Seller as follows: "Purchaser has defaulted in its obligations under that certain Contract of Sale dated July 7, 1997"; or (B) the Letter of Credit will expire by its terms within thirty (30) days. Escrowee shall promptly upon receipt forward a copy of Seller's statement to Purchaser. Any such proceeds paid to and received by Escrowee shall be treated and disposed of hereunder as Cash Deposit. (ii) In the event Purchaser should default under this Contract, Escrowee shall, if directed by Seller, pay the Cash Deposit to Seller who shall retain it as and for its liquidated damages hereunder. (c) In the event Seller shall fail to close title by reason of a default by Seller or in the event this Contract is terminated in accordance with its terms through no fault of Purchaser, the Deposit shall be paid over to Purchaser. (d) Escrowee shall invest the proceeds of the Deposit in such bank or money market accounts or United States Government Treasury Bills as Seller shall direct. Any interest earned on Deposit when received shall similarly be held in escrow by the Escrowee and if under the terms of this Contract (i) the Deposit is to be paid over to Purchaser, then such interest shall be paid over to Purchaser, or (ii) the Deposit is to be paid over to Seller, then such interest shall be paid over to Seller. If the Closing occurs, any interest earned on the Deposit shall be considered a credit of Purchaser to be applied against the Purchase Price. 17
(e) Escrowee, by signing this Contract at the end hereof where indicated, signifies its agreement to hold the Deposit for the purposes as provided in this Contract. In the event of any dispute, Escrowee shall have the right to deposit the Deposit in court to await the resolution of such dispute. In any event, Escrowee shall not be personally liable so long as it acts in good faith. (f) Escrowee shall not incur any liability by reason of any action or non-action taken by Escrowee in good faith or pursuant to the judgment or order of a court of competent jurisdiction. Escrowee shall have the right to rely upon the genuineness of all certificates, notices and instruments delivered to it pursuant hereto, and all the signatures thereto or to any other writing received by Escrowee purporting to be signed by any party hereto, and upon the truth of the contents thereof. Before making payment or delivery of any moneys or documents held by Escrowee pursuant hereto, Escrowee shall have the right to require delivery to it of an executed and acknowledged receipt for the subject matter of the delivery to be made by it. In the event of any dispute between the parties as to whether either party is in default hereunder or as to any other material fact, Escrowee shall have the right to refrain from taking any further action with respect to the subject matter of the escrow until it is reasonably satisfied that such dispute is resolved or action by Escrowee is required by an order or judgment of a court of competent jurisdiction. Escrowee shall be entitled to consult with other counsel in connection with its duties hereunder. Seller and Purchaser jointly and severally, agree to indemnify Escrowee from any and all liability that may arise hereunder and to reimburse Escrowee for its reasonable costs and expenses, including reasonable attorneys' fees (either paid to retained attorneys or representing the fair value of legal services rendered by
(e) Escrowee, by signing this Contract at the end hereof where indicated, signifies its agreement to hold the Deposit for the purposes as provided in this Contract. In the event of any dispute, Escrowee shall have the right to deposit the Deposit in court to await the resolution of such dispute. In any event, Escrowee shall not be personally liable so long as it acts in good faith. (f) Escrowee shall not incur any liability by reason of any action or non-action taken by Escrowee in good faith or pursuant to the judgment or order of a court of competent jurisdiction. Escrowee shall have the right to rely upon the genuineness of all certificates, notices and instruments delivered to it pursuant hereto, and all the signatures thereto or to any other writing received by Escrowee purporting to be signed by any party hereto, and upon the truth of the contents thereof. Before making payment or delivery of any moneys or documents held by Escrowee pursuant hereto, Escrowee shall have the right to require delivery to it of an executed and acknowledged receipt for the subject matter of the delivery to be made by it. In the event of any dispute between the parties as to whether either party is in default hereunder or as to any other material fact, Escrowee shall have the right to refrain from taking any further action with respect to the subject matter of the escrow until it is reasonably satisfied that such dispute is resolved or action by Escrowee is required by an order or judgment of a court of competent jurisdiction. Escrowee shall be entitled to consult with other counsel in connection with its duties hereunder. Seller and Purchaser jointly and severally, agree to indemnify Escrowee from any and all liability that may arise hereunder and to reimburse Escrowee for its reasonable costs and expenses, including reasonable attorneys' fees (either paid to retained attorneys or representing the fair value of legal services rendered by Escrowee to itself) incurred as a result of any dispute or litigation arising hereunder. (g) Escrowee or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrowee is in possession of the Deposit and continues to act as Escrowee. 25. REPRESENTATIONS. (a) Seller, represents that, unless otherwise herein stated, as of the date hereof: (i) Schedule C represents a true, accurate and complete list in all material respects of (A) all Space Tenants; (B) the current base rent and (C) the security deposits presently held by Seller. Other than the Space Tenants (and parties claiming rights under Space Leases, including sublessees, licensees, assignees and concessionees) no party has any right to possess or use the Premises except as may be contemplated by the Permitted Exceptions. (ii) Except as set forth on Schedule C hereof, the Spaces Leases are in full force and effect. Seller has not received notice of any unfulfilled obligations as to security deposits to prior tenants. 18
(iii) Except as set forth on Schedule C, Seller has not received rents from the Space Tenants (other than security deposits) in excess of one (1) month in advance. (iv) There are no written service contracts or management agreements (the "Service Contracts") affecting the Premises or the operation or use thereof which will be binding upon Purchaser after the Closing except those which may be cancelled upon not more than thirty (30) days notice. (v) There is no litigation pending (A) between Seller, as landlord, under the Space Leases and any Space Tenant, except as may be covered by insurance, or (B) affecting title to the Premises or this Contract. (vi) Seller is, and at the Closing shall be a duly organized and validly existing Alabama corporation and authorized to do business in the state where the Property is located. The execution, delivery and performance of this Contract in accordance with its terms, has been duly authorized by all necessary action of Seller, does not violate the articles of incorporation, by-laws, operating agreement, partnership agreement or certificate of partnership of Seller, or any contract, agreement, commitment, order, judgment or decree to which Seller is a party or by which it, or the Premises, are bound, or result in the creation of any lien, charge or encumbrance upon the Premises or any part thereof. This Contract has been duly executed by Seller and constitutes legal, valid and binding obligations of Seller. Seller will have the right, power and authority to make and perform its obligations under this
(iii) Except as set forth on Schedule C, Seller has not received rents from the Space Tenants (other than security deposits) in excess of one (1) month in advance. (iv) There are no written service contracts or management agreements (the "Service Contracts") affecting the Premises or the operation or use thereof which will be binding upon Purchaser after the Closing except those which may be cancelled upon not more than thirty (30) days notice. (v) There is no litigation pending (A) between Seller, as landlord, under the Space Leases and any Space Tenant, except as may be covered by insurance, or (B) affecting title to the Premises or this Contract. (vi) Seller is, and at the Closing shall be a duly organized and validly existing Alabama corporation and authorized to do business in the state where the Property is located. The execution, delivery and performance of this Contract in accordance with its terms, has been duly authorized by all necessary action of Seller, does not violate the articles of incorporation, by-laws, operating agreement, partnership agreement or certificate of partnership of Seller, or any contract, agreement, commitment, order, judgment or decree to which Seller is a party or by which it, or the Premises, are bound, or result in the creation of any lien, charge or encumbrance upon the Premises or any part thereof. This Contract has been duly executed by Seller and constitutes legal, valid and binding obligations of Seller. Seller will have the right, power and authority to make and perform its obligations under this Contract without the need for governmental approval, consent or filing and this Contract shall be a valid and binding obligation of Seller enforceable against Seller in accordance with its terms. (vii) Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"). (viii) Seller has not received written notice of any condemnation proceedings, eminent domain proceedings, proceedings to change the zoning or similar actions or proceedings which are pending against the Premises or any part thereof. (ix) There are no employees of Seller at the Properties for which Purchaser shall be responsible after the Closing. (x) The principal balance as of June 30, 1997 of the Existing Mortgage is set forth on Schedule E attached hereto. The Lender is not holding escrow deposits other than any deposits for real estate taxes and/or insurance. (xi) The Loan Documents constitute all the documents which are material in connection with the Existing Mortgage. Seller shall not modify the Loan Documents during the term of this Contract without the consent of Purchaser or voluntarily and knowingly cause a monetary or other material default under the Loan Documents which is not cured within any applicable grace period. 19
(xii) Neither Seller nor any of its affiliates as described in Sections 414(b), (c) and (m) of the Code ("Affiliates") has incurred any liability which could subject Purchaser or any asset to be acquired by Purchaser pursuant to this Contract to any lien or material liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of ERISA or Section 401(a)(29) or 412 of the Code. (b) As used herein items in the "possession" of Seller or "received" by Seller shall mean only writings actually delivered into the possession of Seller (at the New York City office of DRA Advisors, Inc.) and shall not include writings addressed to Seller but sent or delivered to the Space Tenants or other third parties or to other locations. (c) The representations contained in subsection (a) above shall survive for a period of six (6) months following the Closing Date, and any claim by Purchaser in connection therewith must be made within such six (6) month period. Notwithstanding anything to the contrary, any representation which results in a reduction of the Purchase Price pursuant to subparagraph (e) below shall not survive the Closing. (d) Subject to the succeeding provisions of this subparagraph (d) and of subparagraph (e) below, if any representation of Seller shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be to terminate this Contract and receive the return of the Deposit, and upon the receipt of same this Contract shall be null and
(xii) Neither Seller nor any of its affiliates as described in Sections 414(b), (c) and (m) of the Code ("Affiliates") has incurred any liability which could subject Purchaser or any asset to be acquired by Purchaser pursuant to this Contract to any lien or material liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of ERISA or Section 401(a)(29) or 412 of the Code. (b) As used herein items in the "possession" of Seller or "received" by Seller shall mean only writings actually delivered into the possession of Seller (at the New York City office of DRA Advisors, Inc.) and shall not include writings addressed to Seller but sent or delivered to the Space Tenants or other third parties or to other locations. (c) The representations contained in subsection (a) above shall survive for a period of six (6) months following the Closing Date, and any claim by Purchaser in connection therewith must be made within such six (6) month period. Notwithstanding anything to the contrary, any representation which results in a reduction of the Purchase Price pursuant to subparagraph (e) below shall not survive the Closing. (d) Subject to the succeeding provisions of this subparagraph (d) and of subparagraph (e) below, if any representation of Seller shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be to terminate this Contract and receive the return of the Deposit, and upon the receipt of same this Contract shall be null and void and of no further force or effect and neither party shall have any rights or obligations against or to the other. Seller shall, in any event, have the option (i) to rescind Purchaser's termination of the Contract and adjourn the Closing for a period not to exceed sixty (60) days in order to make such representation true, or (ii) unless Purchaser waives all liability of Seller by reason of such untrue representation, to terminate this Contract and promptly return the Deposit to Purchaser, and upon the making of such return this Contract shall be null and void and of no further force or effect and neither party hereto shall have any rights or obligations against or to the other. If Purchaser waives such liability, then in such event, the Closing shall take place without abatement or reduction in the Purchase Price. If the Closing shall take place without Purchaser making an objection (by notice delivered at the Closing) to an untrue representation of which Purchaser shall have knowledge, Purchaser shall be deemed to have waived all liability of Seller by reason of such untrue representation. The untruth of any nonmaterial representation of Seller shall not affect the rights and obligations of the parties hereto. (e) The provisions of subparagraph (d) hereof to the contrary notwithstanding, if any representations shall fail to be true and such representations can be made true by the payment of a sum of money only, and if both (i) such representation(s) can reasonably be expected to be made true within a period of sixty (60) days and (ii) the sum of money requited to make such representation(s) true shall not exceed Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars in the aggregate (the "Maximum Representation Expense"), then, and in such event, Seller agrees to (i) adjourn the Closing for the period required to make such representations true and to expend (or, at Seller's election, to obligate itself to expend by indemnity agreement, bond or any other manner) an amount not to exceed the Maximum Representation Expense, or (ii) indemnify Purchaser, in an amount not to 20
exceed the Maximum Representation Expense, from any damage, cost, expense or claim that Purchaser may incur as a result of such untrue representation. Notwithstanding the provisions of the preceding sentence, Purchaser may at any time accept such title as Seller can convey notwithstanding the existence of any such untrue material representation(s) without reduction of the Purchase Price or any credit or allowance on account thereof or any claim against Seller; provided, however, if there shall be any untrue material representation(s) which can be made true by the payment of a sum of money only which exceeds the Maximum Representation Expense or which can be made true by the payment of less than the Maximum Representation Expense but not within the available time and Seller elects not to, or cannot, make such material representation(s) true within the available time, then if Purchaser elects to accept such title as Seller can convey, the Purchase Price shall be reduced by the lesser of the sum of money required to make such representations true, or the Maximum Representation Expense. The acceptance of the Deeds by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of the Seller to be performed pursuant to the provisions of this Contract, except those, if any, which are herein specifically stated or made to survive the Closing and Seller shall have no further liability with respect to such untrue material representation(s). (f) Following the Closing, Seller agrees to maintain at least $50,000.00 in its operating account until the end of the
exceed the Maximum Representation Expense, from any damage, cost, expense or claim that Purchaser may incur as a result of such untrue representation. Notwithstanding the provisions of the preceding sentence, Purchaser may at any time accept such title as Seller can convey notwithstanding the existence of any such untrue material representation(s) without reduction of the Purchase Price or any credit or allowance on account thereof or any claim against Seller; provided, however, if there shall be any untrue material representation(s) which can be made true by the payment of a sum of money only which exceeds the Maximum Representation Expense or which can be made true by the payment of less than the Maximum Representation Expense but not within the available time and Seller elects not to, or cannot, make such material representation(s) true within the available time, then if Purchaser elects to accept such title as Seller can convey, the Purchase Price shall be reduced by the lesser of the sum of money required to make such representations true, or the Maximum Representation Expense. The acceptance of the Deeds by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of the Seller to be performed pursuant to the provisions of this Contract, except those, if any, which are herein specifically stated or made to survive the Closing and Seller shall have no further liability with respect to such untrue material representation(s). (f) Following the Closing, Seller agrees to maintain at least $50,000.00 in its operating account until the end of the calendar year in which the Closing occurs, it being understood that such amount shall not be deemed to be the limit of Seller's liability, if any, after the Closing Date. 26. CLOSING DOCUMENTS. At the Closing (unless otherwise expressly indicated): (a) Seller shall deliver to Purchaser the following items: (i) the Deed in accordance with Section 22 hereof. (ii) the Assignment of Space Leases executed by Seller, which assignment shall be in the form of Exhibit 1 attached hereto. (iii) duplicate originals, or if duplicate originals are not available, true and complete copies certified as true by Seller, of all of the Space Leases. (iv) to the extent in Seller's possession, the real estate tax bills then payable for the then current real estate tax year. (v) a duly executed certificate of Seller, in the applicable form set forth in Treasury Regulations Section 1.1445-2 (b)(2). (vi) the checks, return and/or affidavit in accordance with Section 22 hereof. 21
(vii) subject to the terms of Sections 26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the Closing Date, estoppel certificates ("Estoppel Certificates"), in form and substance which does not vary materially from the form annexed hereto as Exhibit 2 executed by each of the Space Tenants; provided, however, with respect to Anchor Space Tenants, Seller shall only be required to deliver such Estoppel Certificates which are usual and customary for such Anchor Space Tenants (except that, other than for the Estoppel Certificate to be delivered by Wal-Mart Stores, Inc. [or its assignee] the Estoppel Certificates of all other Anchor Space Tenants shall cover at least the matters set forth in paragraphs 2 and 3 of Exhibit 2). (A) If the required Estoppel Certificates cannot be timely delivered, or if the Estoppel Certificates which are timely delivered do not cover the material applicable matters set forth in Exhibit 2 Seller may, but shall not be obligated to, adjourn the Closing for a period not to exceed sixty (60) days, to obtain satisfactory Estoppel Certificates, or deliver its certificate ("Seller's Certificate") with respect to not more than forty (40%) percent of rentable square feet of space leased by non-Anchor Space Tenants as of the date hereof, covering all of the matters set forth in Exhibit 2 if no Estoppel Certificate is delivered by a Space Tenant or covering the matters not covered by an Estoppel Certificate which is delivered by a Space Tenant. Subsequent to the Closing, Seller may deliver to Purchaser Estoppel Certificates or supplemental Estoppel Certificates covering those matters not
(vii) subject to the terms of Sections 26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the Closing Date, estoppel certificates ("Estoppel Certificates"), in form and substance which does not vary materially from the form annexed hereto as Exhibit 2 executed by each of the Space Tenants; provided, however, with respect to Anchor Space Tenants, Seller shall only be required to deliver such Estoppel Certificates which are usual and customary for such Anchor Space Tenants (except that, other than for the Estoppel Certificate to be delivered by Wal-Mart Stores, Inc. [or its assignee] the Estoppel Certificates of all other Anchor Space Tenants shall cover at least the matters set forth in paragraphs 2 and 3 of Exhibit 2). (A) If the required Estoppel Certificates cannot be timely delivered, or if the Estoppel Certificates which are timely delivered do not cover the material applicable matters set forth in Exhibit 2 Seller may, but shall not be obligated to, adjourn the Closing for a period not to exceed sixty (60) days, to obtain satisfactory Estoppel Certificates, or deliver its certificate ("Seller's Certificate") with respect to not more than forty (40%) percent of rentable square feet of space leased by non-Anchor Space Tenants as of the date hereof, covering all of the matters set forth in Exhibit 2 if no Estoppel Certificate is delivered by a Space Tenant or covering the matters not covered by an Estoppel Certificate which is delivered by a Space Tenant. Subsequent to the Closing, Seller may deliver to Purchaser Estoppel Certificates or supplemental Estoppel Certificates covering those matters not covered by the previously delivered Estoppel Certificates. Upon delivery of such Estoppel Certificates, Seller shall be entirely released from any liability arising out of Seller's Certificate delivered at the Closing as Seller's Certificate relates to the particular Space Tenant and/or Space Lease covered by the Estoppel Certificate, to the extent the information contained in such Estoppel Certificates is consistent with the information contained in Seller's Certificate. If Seller does not or cannot deliver an Estoppel Certificate or Seller's Certificate, Purchaser's sole remedy shall be to terminate this Contract and receive the return of the Deposit or to close title notwithstanding the lack of the Estoppel Certificate or Seller's Certificate without any reduction of the Purchase Price and without any liability of Seller relative thereto. (B) (1) In the event any Estoppel Certificate or Seller's Certificate shall indicate a default by landlord under a Space Lease (such default hereinafter being referred to as an "Estoppel Default"), then Seller may, but shall not be obligated to, elect to cure any such Estoppel Default and shall, for that purpose, be entitled to adjourn the Closing for a period not to exceed sixty (60) days, provided, however, that in the event Seller elects not to cure such Estoppel Default or is unable to cure such Estoppel Default within such period of time, Purchaser's sole remedy shall be as set forth in the last sentence of subparagraph (A) above. (2) Notwithstanding subsection 26(a)(vii)(B)(1), above, if, in Seller's good faith judgment either (x) the potential liability of any Estoppel Default is less than $250,000, and Seller indemnifies Purchaser from and against any and all claims, loss, liability, damage, cost or expense, including reasonable attorneys' fees, that may arise as a result of such Estoppel Default or (y) the potential liability of any Estoppel Default is $250,000 or more and Seller and Purchaser agree upon a 22
mutually acceptable resolution to such Estoppel Default, then, the rights and obligations of the parties hereto shall not be affected thereby, this Contract shall remain in full force and effect and Purchaser shall, at the Closing, accept such Estoppel Certificate or Seller's Certificate, and the Space Lease corresponding thereto, subject to such Estoppel Default without any reduction of the Purchase Price. Subsequent to the Closing, Seller may deliver an Estoppel Certificate confirming that the Estoppel Default no longer exists, whereupon Seller shall be entirely released from any liability arising out of the indemnity, if any, given pursuant to clause (x) above. (viii) to the extent then in Seller's possession and control, copies of plans and specifications relating to the Property. (ix) a bill of sale without representation or warranty for any personal property (including tradenames and warranties, if any) being conveyed pursuant to this Contract; (x) the Assignment of Service Contracts existing on the Closing Date executed by Seller, which assignment shall be in the form of Exhibit 3 attached hereto; and (xi) a title certification substantially in the form of Exhibit 5 attached hereto.
mutually acceptable resolution to such Estoppel Default, then, the rights and obligations of the parties hereto shall not be affected thereby, this Contract shall remain in full force and effect and Purchaser shall, at the Closing, accept such Estoppel Certificate or Seller's Certificate, and the Space Lease corresponding thereto, subject to such Estoppel Default without any reduction of the Purchase Price. Subsequent to the Closing, Seller may deliver an Estoppel Certificate confirming that the Estoppel Default no longer exists, whereupon Seller shall be entirely released from any liability arising out of the indemnity, if any, given pursuant to clause (x) above. (viii) to the extent then in Seller's possession and control, copies of plans and specifications relating to the Property. (ix) a bill of sale without representation or warranty for any personal property (including tradenames and warranties, if any) being conveyed pursuant to this Contract; (x) the Assignment of Service Contracts existing on the Closing Date executed by Seller, which assignment shall be in the form of Exhibit 3 attached hereto; and (xi) a title certification substantially in the form of Exhibit 5 attached hereto. (b) Purchaser shall (i) pay to Seller or as Seller may direct, the Purchase Price as provided in Section 3 hereof, (ii) pay all Mortgage Expenses and (iii) deliver the Lender's release of the Obligors (and their partners, members, officers and/or shareholders) from any and all obligations and liabilities under the Loan Documents in accordance with Section 4(b). Escrowee shall deliver the Cash Deposit to Seller. (c) Purchaser shall execute, acknowledge (where required) and deliver to Seller: (i) the Assignment of the Space Leases. (ii) the Assignment of the Service Contracts. (iii) the checks, returns and/or affidavits in accordance with Section 22 hereof. (iv) a copy, certified as true and complete by Purchaser, of the Consent and Assumption Agreement in accordance with Section 4(b). (d) Seller and Purchaser shall execute a notice to each of the Space Tenants stating in substance that Purchaser has succeeded to Seller's interest as landlord under the Space Leases. 23
27. FURTHER ASSURANCES. The parties each agree to do such other and further acts and things, and to execute and deliver such instruments and documents (not creating any obligations additional to those otherwise imposed by this Contract), as either may reasonably request from time to time, whether at or after the Closing, in furtherance of the purposes of this Contract. The provisions of this Section 27 shall survive the Closing. 28. PURCHASER'S DUE DILIGENCE PERIOD. (a) Purchaser shall have the right to cancel this Contract on or before September 5, 1997 by notice to Seller and Escrowee of such cancellation to be received by Seller on or before such date (the period of time from the date hereof through and including September 5, 1997 is herein referred to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels this Contract in accordance with this subparagraph, this Contract shall be deemed terminated and of no further force or effect and the Deposit shall be promptly returned to Purchaser. If Purchaser does not duly cancel this Contract in accordance with this subparagraph or if Purchaser waives its right to cancel this Contract, (i) this Contract shall remain in full force and effect and Purchaser shall have no further right to cancel this Contract under this subparagraph and (ii) Purchaser shall be deemed to have waived any liability of Seller and any right to refuse to consummate the Closing by reason of a misrepresentation, Non-Permitted Title Objection or other condition known to Purchaser as of the expiration of Purchaser's Due Diligence Period.
27. FURTHER ASSURANCES. The parties each agree to do such other and further acts and things, and to execute and deliver such instruments and documents (not creating any obligations additional to those otherwise imposed by this Contract), as either may reasonably request from time to time, whether at or after the Closing, in furtherance of the purposes of this Contract. The provisions of this Section 27 shall survive the Closing. 28. PURCHASER'S DUE DILIGENCE PERIOD. (a) Purchaser shall have the right to cancel this Contract on or before September 5, 1997 by notice to Seller and Escrowee of such cancellation to be received by Seller on or before such date (the period of time from the date hereof through and including September 5, 1997 is herein referred to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels this Contract in accordance with this subparagraph, this Contract shall be deemed terminated and of no further force or effect and the Deposit shall be promptly returned to Purchaser. If Purchaser does not duly cancel this Contract in accordance with this subparagraph or if Purchaser waives its right to cancel this Contract, (i) this Contract shall remain in full force and effect and Purchaser shall have no further right to cancel this Contract under this subparagraph and (ii) Purchaser shall be deemed to have waived any liability of Seller and any right to refuse to consummate the Closing by reason of a misrepresentation, Non-Permitted Title Objection or other condition known to Purchaser as of the expiration of Purchaser's Due Diligence Period. (b) Time shall be of the essence with respect to the dates in this Section for the expiration of Purchaser's Due Diligence Period and the giving of Purchaser's cancellation notice. (c) Notwithstanding anything to the contrary, if Purchaser's environmental and engineering consultants have not inspected the Property by August 8, 1997 Seller may elect to cancel this Contract in which event the Deposit shall be promptly returned to Purchaser. In the event Purchaser concludes based upon any of its due diligence investigations that it is not prepared to proceed to Closing it will promptly so notify Seller and cancel the Contract. (d) Purchaser agrees to keep confidential as hereinafter provided all information furnished to Purchaser by Seller concerning the Premises, including, without limitation, Space Leases, Loan Documents, Service Contracts or other contracts or agreements, various papers, documents, legal instruments, studies, brochures, computer output, and other material, and any discussions or visitations of the Premises (all of the aforementioned information is collectively referred to as "Evaluation Material"). (e) All Evaluation Material shall not be used or duplicated by Purchaser in any way detrimental to Seller, or for any purpose other than evaluating a possible purchase of the Property by Purchaser. Purchaser agrees to keep all Evaluation Material (other than information which is a matter of public record or is provided in other sources readily available to the public other than as a result of disclosure thereof by Purchaser or Related Parties) strictly confidential; provided, however, that the Evaluation 24
Material may be disclosed to the directors, officers, and employees and partners of Purchaser, and to Purchaser's attorneys and accounting firm, other consultants, underwriters and financial institutions (all of whom are collectively referred to as "Related Parties") who need to know such information for the purpose of evaluating a possible purchase of the Premises. These Related Parties shall be informed of the confidential nature of the Evaluation Material and shall be directed to keep all such information in the strictest confidence and use such information only for the purpose of evaluating a possible purchase by Purchaser. Purchaser will promptly, upon request of Seller, deliver to Seller all Evaluation Material furnished to them by Seller, whether furnished before or after the date hereof, without retaining copies thereof. Purchaser will direct Related Parties to whom Evaluation Material is made available not to make similar disclosures and any such disclosure shall be deemed made by and be the responsibility of Purchaser. (f) Purchaser shall have the right to conduct non-intrusive investigations of the Premises during the term of this Contract (including a Phase I environmental investigation and a structural analysis). Such investigations may be conducted by Purchaser or its designees, including, but not limited to engineers, accountants, architects and Purchaser's employees during normal business hours and upon reasonable advance notice to Seller provided there is no disturbance to or interference with the business of any Space Tenant. Purchaser hereby indemnifies
Material may be disclosed to the directors, officers, and employees and partners of Purchaser, and to Purchaser's attorneys and accounting firm, other consultants, underwriters and financial institutions (all of whom are collectively referred to as "Related Parties") who need to know such information for the purpose of evaluating a possible purchase of the Premises. These Related Parties shall be informed of the confidential nature of the Evaluation Material and shall be directed to keep all such information in the strictest confidence and use such information only for the purpose of evaluating a possible purchase by Purchaser. Purchaser will promptly, upon request of Seller, deliver to Seller all Evaluation Material furnished to them by Seller, whether furnished before or after the date hereof, without retaining copies thereof. Purchaser will direct Related Parties to whom Evaluation Material is made available not to make similar disclosures and any such disclosure shall be deemed made by and be the responsibility of Purchaser. (f) Purchaser shall have the right to conduct non-intrusive investigations of the Premises during the term of this Contract (including a Phase I environmental investigation and a structural analysis). Such investigations may be conducted by Purchaser or its designees, including, but not limited to engineers, accountants, architects and Purchaser's employees during normal business hours and upon reasonable advance notice to Seller provided there is no disturbance to or interference with the business of any Space Tenant. Purchaser hereby indemnifies and holds harmless Seller from and against any claims, costs, damages, liabilities or expenses (including reasonably attorneys' fees) incurred or, suffered by Seller by reason of damage or injury to persons or property caused by Purchaser's investigations. (g) Seller agrees to deliver to Purchaser true and complete copies of all Space Leases (and any modifications thereof) in Seller's possession. (h) The provisions of Section 28(d), (e) and (f) shall survive the termination of this Contract. 29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS. (a) At the Closing, Seller and Purchaser shall each deliver any and all appropriate partnership consents or certificates by the secretary of each corporation (including any corporate general partner) certifying as to the corporate resolution authorizing this transaction. (b) Purchaser represents that: (i) it is, and will at the Closing be, a limited partnership duly organized and validly existing under the laws of Delaware and qualified to do business in the state in which the Property is located; (ii) the execution, delivery and performance of this Contract in accordance with its terms, do not violate the corporate charter, by-laws or certificate of incorporation of Purchaser, or any contract, agreement, commitment, order, judgment or decree to which Purchaser is a party or by which it is bound; (iii) Purchaser has the right, power and authority to make and perform its obligations under this Contract; (iv) this Contract is a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms. Purchaser covenants 25
and warrants that the representations in the preceding sentences of this Section 29(b) will be true on the Closing with respect to Purchaser or any permitted assignee of Purchaser; (v) Purchaser will have the right, power and authority to make and perform its obligations under this Contract without the need for governmental approval, consent or filing and this Contract shall be a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms and (vi) Purchaser has the current financial ability to pay the Purchase Price and otherwise perform its obligations under this Contract. (c) Purchaser represents and warrants that: (i) Purchaser is not an "employee benefit plan" as defined in Section 3 (3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute "plan assets" of one or more plans within the meaning of 29 C.F.R. ss.2510-101; (iii) Purchaser is not a "governmental plan" within the meaning of Section 3(32) of ERISA; (iv) transactions by or with Purchaser are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans; and (v) Purchaser is not a "party in interest" to Seller within the meaning of ERISA. Purchaser covenants and warrants that the representations in the preceding sentences of this Section 28(c) will be true on the Closing.
and warrants that the representations in the preceding sentences of this Section 29(b) will be true on the Closing with respect to Purchaser or any permitted assignee of Purchaser; (v) Purchaser will have the right, power and authority to make and perform its obligations under this Contract without the need for governmental approval, consent or filing and this Contract shall be a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms and (vi) Purchaser has the current financial ability to pay the Purchase Price and otherwise perform its obligations under this Contract. (c) Purchaser represents and warrants that: (i) Purchaser is not an "employee benefit plan" as defined in Section 3 (3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute "plan assets" of one or more plans within the meaning of 29 C.F.R. ss.2510-101; (iii) Purchaser is not a "governmental plan" within the meaning of Section 3(32) of ERISA; (iv) transactions by or with Purchaser are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans; and (v) Purchaser is not a "party in interest" to Seller within the meaning of ERISA. Purchaser covenants and warrants that the representations in the preceding sentences of this Section 28(c) will be true on the Closing. 30. MISCELLANEOUS. (a) This Contract and the Schedules and Exhibits annexed hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof, and except for any other documents executed contemporaneously herewith all understandings and agreements heretofore or simultaneously had between the parties hereto, including without limitation, any letter of intent or initial escrow agreement, are merged into and are superseded in their entirety by this Contract. (b) This Contract may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the party against which any waiver, change, modification or discharge is sought. (c) The captions or article titles contained in this Contract and the Index, if any, are for convenience and reference only and shall not be deemed a part of the text of this Contract. (d) The terms "hereof," "herein," and "hereunder," and words of similar import, shall be construed to refer to this Contract as a whole, and not to any particular article or provision, unless expressly so stated. (e) The Schedules and Exhibits annexed hereto are hereby incorporated in and made part of this Contract. (f) All words or terms used in this Contract, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. 26
(g) This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns, if any, but nothing contained herein shall be deemed a waiver of the provisions of Section 21 hereof. None of the provisions of this Contract are intended to be, nor shall they be construed to be, for the benefit of any third party. (h) If a party is required to perform an act or give a notice on a date that is a Saturday, Sunday or national holiday, the date such performance or notice is due shall be deemed to be the next business day. (i) This Contract is to be governed and construed in accordance with the laws of the State of New York. (j) The terms "affiliates" and "subsidiaries" shall be given the same meaning as used in the broadest sense in any provision of the rules and regulations governing federal taxation and securities. (k) Neither Seller nor Purchaser may record this Contract or a memorandum of this Contract. Purchaser hereby waives, to the extent permitted by law, any right to file a lis pendens or other form of attachment against the Properties in connection with this Contract or the transactions contemplated hereby, other than a lis pendens or
(g) This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns, if any, but nothing contained herein shall be deemed a waiver of the provisions of Section 21 hereof. None of the provisions of this Contract are intended to be, nor shall they be construed to be, for the benefit of any third party. (h) If a party is required to perform an act or give a notice on a date that is a Saturday, Sunday or national holiday, the date such performance or notice is due shall be deemed to be the next business day. (i) This Contract is to be governed and construed in accordance with the laws of the State of New York. (j) The terms "affiliates" and "subsidiaries" shall be given the same meaning as used in the broadest sense in any provision of the rules and regulations governing federal taxation and securities. (k) Neither Seller nor Purchaser may record this Contract or a memorandum of this Contract. Purchaser hereby waives, to the extent permitted by law, any right to file a lis pendens or other form of attachment against the Properties in connection with this Contract or the transactions contemplated hereby, other than a lis pendens or other such form of attachment that may be filed by Purchaser contemporaneously with the commencement by Purchaser of an action for a specific performance under Section 19 hereof. To the extent any such filing is made in violation of this Contract, Purchaser shall indemnify Seller against any damages incurred by Seller in connection therewith. In the event Purchaser shall be unsuccessful in an action for a specific performance, it shall immediately cause any lis pendens or other such form of attachment to be cancelled and removed from the public record. The provisions of this section shall survive the termination of this Contract. (l) The parties acknowledge that this transaction contemplates only the sale and purchase of the Premises and that Seller is not selling a business nor do the parties intend that Purchaser be deemed a successor of Seller with respect to any liabilities of Seller to any third parties other than as set forth in this Contract and the Permitted Exceptions. Accordingly, except as set forth in this Contract, Purchaser shall neither assume nor be liable for any of the debts, liabilities, taxes or obligations of, or claims against, Seller, or of any other person or entity, of any kind or nature, whether existing now, on the Closing Date or at any time thereafter. The debts, liabilities, taxes, obligations and claims for which Seller alone is liable shall include, without limitation, all payments, benefits, and contribution obligations with respect to past and/or present employees of Seller or its Affiliates in connection with the business of Seller or its Affiliates (including, but not limited to, salaries, wages, commissions, bonuses, vacation pay, health and welfare benefits or contributions [including any group health continuation coverage obligation under COBRA], pension and/or profit sharing contributions, severance or termination pay, or any other form of compensation or employee benefit). 27
(m) Seller shall operate the Premises in a manner substantially consistent with its past practice. [SPACE INTENTIONALLY LEFT BLANK] 28
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract the day and year first above written. SELLER:
Fed ID No.: 13-3598002 By /s/ Authorized Signature --------------------------Name: Title: DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation
(m) Seller shall operate the Premises in a manner substantially consistent with its past practice. [SPACE INTENTIONALLY LEFT BLANK] 28
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract the day and year first above written. SELLER:
Fed ID No.: 13-3598002 By /s/ Authorized Signature --------------------------Name: Title: DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation
PURCHASER:
Fed ID No.:
RAMCO-GERSHENSON PROPERTIES, L.P. By: RAMCO-GERSHENSON PROPERTIES TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature --------------------------Name:
Title: As to Section 24: ESCROWEE: TENZER GREENBLATT LLP
BY /s/ Authorized Signature --------------------------Name: Title:
29
SCHEDULE A: DESCRIPTION OF PROPERTY
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract the day and year first above written. SELLER:
Fed ID No.: 13-3598002 By /s/ Authorized Signature --------------------------Name: Title: DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation
PURCHASER:
Fed ID No.:
RAMCO-GERSHENSON PROPERTIES, L.P. By: RAMCO-GERSHENSON PROPERTIES TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature --------------------------Name:
Title: As to Section 24: ESCROWEE: TENZER GREENBLATT LLP
BY /s/ Authorized Signature --------------------------Name: Title:
29
SCHEDULE A: DESCRIPTION OF PROPERTY
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be affected by rent regulations or laws now or hereafter in effect, and rulings, decisions or interpretations by any
SCHEDULE A: DESCRIPTION OF PROPERTY
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be affected by rent regulations or laws now or hereafter in effect, and rulings, decisions or interpretations by any court, agency or administrative body. 3. Real estate taxes, vault taxes and water and sewer charges not due and payable (it being understood that the lien of real estate taxes payable in arrears shall be a Permitted Exception). 4. State of facts shown on Survey dated , last revised and Survey dated prepared by and such additional state of facts an accurate survey of the Premises may show. 5. Maintenance and Service Contracts pertaining to this Premises set forth on Schedule D to this Contract. 6. Violations of laws, regulations, ordinances, orders or requirements, if any, noted in or issued by any governmental or quasi-governmental department or authority having or asserting jurisdiction over the Premises issued subsequent to the date hereof, and any conditions constituting such violations, although not so noted or issued. 7. Rights of utility companies to lay, maintain, install, operate and repair pipes, lines, poles, wires, cables, conduits, cable boxes, distribution boxes and related equipment on, over and under the Property. 8. Additional usual and customary exclusions and exceptions from coverage obtaining in the standard form of insuring agreement employed by the Title Company at the standard rates of such Title Company.
SCHEDULE C RENT ROLL
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS SCHEDULE E EXISTING MORTGAGE SCHEDULE F LIST OF TAX PROTESTS
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be affected by rent regulations or laws now or hereafter in effect, and rulings, decisions or interpretations by any court, agency or administrative body. 3. Real estate taxes, vault taxes and water and sewer charges not due and payable (it being understood that the lien of real estate taxes payable in arrears shall be a Permitted Exception). 4. State of facts shown on Survey dated , last revised and Survey dated prepared by and such additional state of facts an accurate survey of the Premises may show. 5. Maintenance and Service Contracts pertaining to this Premises set forth on Schedule D to this Contract. 6. Violations of laws, regulations, ordinances, orders or requirements, if any, noted in or issued by any governmental or quasi-governmental department or authority having or asserting jurisdiction over the Premises issued subsequent to the date hereof, and any conditions constituting such violations, although not so noted or issued. 7. Rights of utility companies to lay, maintain, install, operate and repair pipes, lines, poles, wires, cables, conduits, cable boxes, distribution boxes and related equipment on, over and under the Property. 8. Additional usual and customary exclusions and exceptions from coverage obtaining in the standard form of insuring agreement employed by the Title Company at the standard rates of such Title Company.
SCHEDULE C RENT ROLL
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS SCHEDULE E EXISTING MORTGAGE SCHEDULE F LIST OF TAX PROTESTS EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE EXHIBIT 2
SCHEDULE C RENT ROLL
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS SCHEDULE E EXISTING MORTGAGE SCHEDULE F LIST OF TAX PROTESTS EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE EXHIBIT 2 FORM OF SPACE TENANT ESTOPPEL CERTIFICATE EXHIBIT 3 FORM OF ASSIGNMENT OF SERVICE CONTRACTS EXHIBIT 4 FORM OF LETTER OF CREDIT EXHIBIT 5 FORM OF TITLE CERTIFICATION
EXHIBIT 10.11 CONTRACT OF SALE BETWEEN DRM SIX REALTY CORPORATION SELLER AND RAMCO-GERSHENSON PROPERTIES, L.P. PURCHASER Dated: July 7, 1997
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS SCHEDULE E EXISTING MORTGAGE SCHEDULE F LIST OF TAX PROTESTS EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE EXHIBIT 2 FORM OF SPACE TENANT ESTOPPEL CERTIFICATE EXHIBIT 3 FORM OF ASSIGNMENT OF SERVICE CONTRACTS EXHIBIT 4 FORM OF LETTER OF CREDIT EXHIBIT 5 FORM OF TITLE CERTIFICATION
EXHIBIT 10.11 CONTRACT OF SALE BETWEEN DRM SIX REALTY CORPORATION SELLER AND RAMCO-GERSHENSON PROPERTIES, L.P. PURCHASER Dated: July 7, 1997
EXHIBIT 10.11 CONTRACT OF SALE BETWEEN DRM SIX REALTY CORPORATION SELLER AND RAMCO-GERSHENSON PROPERTIES, L.P. PURCHASER Dated: July 7, 1997 Shopping Center Premises: Indian Hills, Calhoun, Georgia
TABLE OF CONTENTS
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1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.
DEFINITIONS
SUBJECT OF SALE
PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "SUBJECT TO" PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SPACE LEASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LEASING PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPORTIONMENTS AND REIMBURSEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VIOLATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PENDING TAX PROCEEDINGS "AS-IS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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BROKER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DESTRUCTION OR CONDEMNATION STATUS OF TITLE CLOSING NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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FRANCHISE TAXES
TITLE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . NON-PERMITTED TITLE OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RETURN OF DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TABLE OF CONTENTS
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1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.
DEFINITIONS
SUBJECT OF SALE
PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "SUBJECT TO" PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SPACE LEASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LEASING PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPORTIONMENTS AND REIMBURSEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VIOLATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PENDING TAX PROCEEDINGS "AS-IS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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BROKER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DESTRUCTION OR CONDEMNATION STATUS OF TITLE CLOSING NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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FRANCHISE TAXES
TITLE REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . NON-PERMITTED TITLE OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RETURN OF DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
AFFIDAVIT REGARDING JUDGMENTS ASSIGNMENT OF THIS CONTRACT
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-i22. DEED; TRANSFER TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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PURCHASER'S DEFAULT
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ESCROW OF DEPOSIT
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REPRESENTATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLOSING DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PURCHASER'S DUE DILIGENCE PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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DEED; TRANSFER TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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PURCHASER'S DEFAULT
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24. 25. 26. 27. 28. 29. 30.
ESCROW OF DEPOSIT
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17 18 21 23 24 25 26
REPRESENTATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CLOSING DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PURCHASER'S DUE DILIGENCE PERIOD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBITS AND SCHEDULES:
Schedule A: Schedule B: Schedule C: Schedule D: Schedule E: Exhibit 1: Exhibit 2: Exhibit 3: Exhibit 4: Exhibit 5: Description of Property Permitted Exceptions Rent Roll Escrowee's Wire Transfer Instructions List of Tax Protests Form of Assignment and Assumption of Space Leases Form of Tenant Estoppel Certificate Form of Assignment and Assumption of Service Contracts Form of Letter of Credit Form of Title Certification
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CONTRACT (this "Contract") made this 7th day of July, 1997 by and between DRM SIX REALTY CORPORATION, a Delaware corporation having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, upon the terms and conditions hereinafter set forth, Seller agrees to sell and convey fee title to that certain parcel of land described on Schedule A, annexed hereto and made a part hereof, with the buildings and improvements erected thereon (which parcel of land and the improvements erected thereon are herein referred to as the "Property") to Purchaser and Purchaser agrees to purchase the Property. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS. The terms defined in this Section 1 shall for all purposes of this Contract have the meaning herein specified unless the context requires otherwise. (a) "Additional Deposit" shall have the meaning ascribed to it in Section 3(a). (b) "Affiliates" shall have the meaning ascribed to it in Section 25(a)(x). (c) "Anchor Space Tenant" shall have the meaning ascribed to it in Section 12(b). (d) "Arrears" shall have the meaning ascribed to it in Section 7(a)(i)(A).
CONTRACT (this "Contract") made this 7th day of July, 1997 by and between DRM SIX REALTY CORPORATION, a Delaware corporation having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, upon the terms and conditions hereinafter set forth, Seller agrees to sell and convey fee title to that certain parcel of land described on Schedule A, annexed hereto and made a part hereof, with the buildings and improvements erected thereon (which parcel of land and the improvements erected thereon are herein referred to as the "Property") to Purchaser and Purchaser agrees to purchase the Property. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS. The terms defined in this Section 1 shall for all purposes of this Contract have the meaning herein specified unless the context requires otherwise. (a) "Additional Deposit" shall have the meaning ascribed to it in Section 3(a). (b) "Affiliates" shall have the meaning ascribed to it in Section 25(a)(x). (c) "Anchor Space Tenant" shall have the meaning ascribed to it in Section 12(b). (d) "Arrears" shall have the meaning ascribed to it in Section 7(a)(i)(A). (e) "Cash Deposit" shall have the meaning ascribed to it in Section 3(a)(i). (f) "Closing" shall have the meaning ascribed to it in Section 14(a). (g) "Closing Date" shall have the meaning ascribed to it in Section 14(a). (h) "Code" shall have the meaning ascribed to it in Section 25(a)(vii). (i) "Deed" shall have the meaning ascribed to it in Section 22(a). (j) "Deposit" shall have the meaning ascribed to it in Section 3(a). (k) "ERISA" shall have the meaning ascribed to it in Section 29(c). (l) "Escrowee" shall have the meaning ascribed to it in Section 3(a). (m) "Estoppel Certificate" shall have the meaning ascribed to it in Section 26(a)(vii).
(n) "Estoppel Default" shall have the meaning ascribed to it in Section 26(a)(vii)(B). (o) "Evaluation Material" shall have the meaning ascribed to it in Section 28(d). (p) "Initial Deposit" shall have the meaning ascribed to it in Section 3(a). (q) "Letter of Credit" shall have the meaning ascribed to it in Section 3(a)(i). (r) "Maximum Representation Expense" shall have the meaning ascribed to it in Section 25(e). (s) "Maximum Title Expense" shall have the meaning ascribed to it in Section 18(c).
(n) "Estoppel Default" shall have the meaning ascribed to it in Section 26(a)(vii)(B). (o) "Evaluation Material" shall have the meaning ascribed to it in Section 28(d). (p) "Initial Deposit" shall have the meaning ascribed to it in Section 3(a). (q) "Letter of Credit" shall have the meaning ascribed to it in Section 3(a)(i). (r) "Maximum Representation Expense" shall have the meaning ascribed to it in Section 25(e). (s) "Maximum Title Expense" shall have the meaning ascribed to it in Section 18(c). (t) "New Space Lease" shall have the meaning ascribed to it in Section 6(a). (u) "Non-Permitted Title Objections" shall have the meaning ascribed to it in Section 18(a). (v) "Overage Rent" shall have the meaning provided in Section 7(a)(i)(B). (w) "Permitted Exceptions" shall have the meaning ascribed to it in Section 13. (x) "Premises" shall have the meaning ascribed it in Section 2(b). (y) "Property" shall have the meaning ascribed to it in the "WHEREAS" paragraph in this Contract. (z) "Purchase Price" shall have the meaning ascribed to it in Section 3. (aa) "Purchaser's Due Diligence Period" shall have the meaning ascribed to it in Section 28(a). (ab) "Related Parties" shall have the meaning ascribed to it in Section 28(e). (ac) "Seller's Certificate" shall have the meaning ascribed to it in Section 26(a)(vii). (ad) "Service Contracts" shall have the meaning ascribed to it in Section 25(a)(iv). (ae) "Space Leases" shall have the meaning ascribed to it in Section 5. -2-
(af) "Space Tenants" shall have the meaning ascribed to it in Section 5. (ag) "Substantial Loss" shall have the meaning ascribed to it in Section 12(b). (ah) "Title Company" shall have the meaning ascribed to it in Section 17. (ai) "Transfer Tax" shall have the meaning ascribed to it in Section 22(b). (aj) "Violation(s) " shall have the meaning ascribed to it in Section 8. 2. SUBJECT OF SALE. (a) Seller agrees to sell and convey to Purchaser the Premises and Purchaser agrees to purchase from Seller the Premises subject to the terms and conditions contained in this Contract. (b) This sale includes any right, title and interest of Seller in and to: (i) the Property (and any other property adjacent thereto owned by Seller); (ii) any land lying in the bed of any street, road or avenue opened or proposed, in front of or adjoining the Property, to the center line thereof, and all right, title and interest of Seller in and to any award made or to be made in lieu thereof and in and to any unpaid award for damage to the Property
(af) "Space Tenants" shall have the meaning ascribed to it in Section 5. (ag) "Substantial Loss" shall have the meaning ascribed to it in Section 12(b). (ah) "Title Company" shall have the meaning ascribed to it in Section 17. (ai) "Transfer Tax" shall have the meaning ascribed to it in Section 22(b). (aj) "Violation(s) " shall have the meaning ascribed to it in Section 8. 2. SUBJECT OF SALE. (a) Seller agrees to sell and convey to Purchaser the Premises and Purchaser agrees to purchase from Seller the Premises subject to the terms and conditions contained in this Contract. (b) This sale includes any right, title and interest of Seller in and to: (i) the Property (and any other property adjacent thereto owned by Seller); (ii) any land lying in the bed of any street, road or avenue opened or proposed, in front of or adjoining the Property, to the center line thereof, and all right, title and interest of Seller in and to any award made or to be made in lieu thereof and in and to any unpaid award for damage to the Property by reason of change of grade of any street; and Seller will execute and deliver to the Purchaser at the Closing, or thereafter, on demand, all proper instruments for the conveyance of such title and the assignment and collection of any such award; (iii) trade names, easements, permits, licenses and utility agreements, and other appurtenances appurtenant to the Property, if any; (iv) fixtures, equipment and other personal property attached to and appurtenant to the Property and not owned by the Space Tenants, if any, but no part of the Purchase Price shall be deemed to be paid for such fixtures, equipment or personal property; (v) the Space Leases and the security deposits listed on Schedule C annexed hereto; (vi) all plans and specifications for improvements to the Property in the possession of Seller and any contracts, warranties and guarantees, if any, with regard to the foregoing; and (vii) any mineral rights, waters, water courses and hereditaments belonging to the Property and owned by Seller ((i) through (vii) being referred to collectively as the "Premises"). 3. PURCHASE PRICE. The purchase price for the Premises is the sum of Seven Million Three Hundred Eighty-Three Thousand and 00/100 Dollars ($7,383,000.00), (the "Purchase Price") which shall be paid by Purchaser to Seller as follows: (a) (i) Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars ($66,666.67) (the "Initial Deposit") on the signing of this Contract payable to Tenzer Greenblatt LLP ("Escrowee"), receipt of which is hereby acknowledged by the Escrowee and (ii) Two Hundred Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars ($266,666.67) (the "Additional Deposit") payable to Escrowee on or before September 5, 1997, time being of the essence. The Initial Deposit and the Additional Deposit, to the extent actually paid and received, together with any interest earned thereon is referred to collectively herein as the "Deposit." The Deposit shall include the Cash Deposit -3-
or any Letter of Credit or the proceeds therefrom. The Initial Deposit and the Additional Deposit may be paid, at Purchaser's option, by (A) electronic wire transfer in accordance with the instructions set forth on Schedule D attached hereto of immediately available federal funds, or by good certified check of Purchaser or bank teller's check to the order of Escrowee (individually or collectively (the "Cash Deposit") or (B) delivering to Escrowee an irrevocable letter of credit, in the amount of the Initial Deposit and/or the Additional Deposit issued to Escrowee, as beneficiary, by BankBoston, N.A. in the form of Exhibit 4 (individually or collectively, the "Letter of Credit"); and (b) On the Closing Date, Seven Million Forty-Nine Thousand Six Hundred Sixty-Six and 66/100 Dollars ($7,049,666.66) plus the amount of any Letter of Credit constituting a portion of the Deposit, subject to the apportionments set forth in Section 7, by electronic wire transfer of immediately available federal funds pursuant to wiring instructions to be given by Seller to Purchaser prior to the Closing.
or any Letter of Credit or the proceeds therefrom. The Initial Deposit and the Additional Deposit may be paid, at Purchaser's option, by (A) electronic wire transfer in accordance with the instructions set forth on Schedule D attached hereto of immediately available federal funds, or by good certified check of Purchaser or bank teller's check to the order of Escrowee (individually or collectively (the "Cash Deposit") or (B) delivering to Escrowee an irrevocable letter of credit, in the amount of the Initial Deposit and/or the Additional Deposit issued to Escrowee, as beneficiary, by BankBoston, N.A. in the form of Exhibit 4 (individually or collectively, the "Letter of Credit"); and (b) On the Closing Date, Seven Million Forty-Nine Thousand Six Hundred Sixty-Six and 66/100 Dollars ($7,049,666.66) plus the amount of any Letter of Credit constituting a portion of the Deposit, subject to the apportionments set forth in Section 7, by electronic wire transfer of immediately available federal funds pursuant to wiring instructions to be given by Seller to Purchaser prior to the Closing. 4. "SUBJECT TO" PROVISIONS. (a) The Premises are sold subject to the exceptions set forth on Schedule B attached hereto. 5. SPACE LEASES. With respect to tenancies and occupancies set forth on Schedule C attached hereto and made a part hereof, Purchaser represents that it has examined, or will examine prior to the expiration of Purchaser's Due Diligence Period, all leases and amendments thereto relating to such tenancies and occupancies (which leases and any New Space Leases are collectively referred to herein as the "Space Leases" and the lessees thereunder are herein called "Space Tenants"). 6. LEASING PRACTICE. (a) Subject to Section 6(b) below, Seller may continue to lease the Premises in a manner consistent with its past course of business and in a commercially reasonable manner, including, without limitation and in its sole discretion, the termination of existing Space Leases and/or the entering into of new leases or renewals or modifications of existing Spaces Leases (such new space lease, termination, renewal or modification is herein referred to as a "New Space Lease") . (b) (i) Prior to the expiration of Purchaser's Due Diligence Period, Seller shall be permitted to enter into any New Space Lease without the approval of Purchaser, provided Seller promptly notifies Purchaser of the same. (ii) After the expiration of Purchaser's Due Diligence Period provided Purchaser is not in default under this Contract, Seller shall not (A) enter into a New Space Lease covering more than 7,500 square feet of rentable space without obtaining the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed or (B) terminate any Space Lease without the prior written consent of Purchaser except in the event of a default by a Space Tenant under a Space Lease. Any New Space Lease which does not require Purchaser's consent shall be arms-length and on then fair market terms and conditions (and shall otherwise be consistent with Seller's customary leasing standards). (iii) Seller and Purchaser shall apportion, at Closing, any tenant improvement expenses or allowances and leasing commissions on account of a New Space Lease based on their respective periods of ownership of the Premises during the term of such New Space Lease. -4-
(c) If Purchaser's consent is required under this Section 6 for the execution of a New Space Lease, Purchaser agrees to grant or deny its consent in writing (and provide, in reasonable detail, the reasons for any denial) within four (4) business days after request therefor. Purchaser's failure to duly respond to Seller's request within four (4) business days after request therefor shall be deemed a consent to the proposed New Space Lease. If Purchaser's consent is not required, Seller's sole obligation shall be to notify Purchaser prior to entering into any New Space Lease or terminating any Space Lease. (d) (i) Purchaser acknowledges and agrees that no representation has been made and no responsibility has been assumed by Seller with respect to the continued occupancy of the Premises, or any part thereof, by the Space Tenants. Seller does not undertake or guarantee that the Space Tenants will be in occupancy at the Closing. Prior to the Closing, Seller shall have the right, but not the obligation, to enforce its rights against the Space Tenants by
(c) If Purchaser's consent is required under this Section 6 for the execution of a New Space Lease, Purchaser agrees to grant or deny its consent in writing (and provide, in reasonable detail, the reasons for any denial) within four (4) business days after request therefor. Purchaser's failure to duly respond to Seller's request within four (4) business days after request therefor shall be deemed a consent to the proposed New Space Lease. If Purchaser's consent is not required, Seller's sole obligation shall be to notify Purchaser prior to entering into any New Space Lease or terminating any Space Lease. (d) (i) Purchaser acknowledges and agrees that no representation has been made and no responsibility has been assumed by Seller with respect to the continued occupancy of the Premises, or any part thereof, by the Space Tenants. Seller does not undertake or guarantee that the Space Tenants will be in occupancy at the Closing. Prior to the Closing, Seller shall have the right, but not the obligation, to enforce its rights against the Space Tenants by summary proceeding or in any other manner. (ii) Notwithstanding the provisions of subsection (d)(i) above, but subject to the provisions of subsection (d)(iii) below, Purchaser shall have the right to cancel this Contract in the event that, on the Closing Date, an Anchor Space Tenant shall have filed a petition in bankruptcy and (A) an order has been executed by the Bankruptcy Court granting such Anchor Space Tenant's application to reject its Space Lease in bankruptcy or (B) fails to assume its Space Lease in bankruptcy. (iii) In the event that, following the date of this Contract any Anchor Space Tenant shall file a petition in bankruptcy, Seller, at Seller's election, shall have the privilege to (C) reinstate such Anchor Space Tenant's Space Lease by entering into a New Space Lease with such Anchor Space Tenant on substantially similar terms and conditions as in such prior Space Lease, or (D) obtain evidence, reasonably satisfactory to Purchaser, that such Anchor Space Tenant has assumed its Space Lease in bankruptcy or (E) procure a substitute tenant for the space covered by the Space Lease in question pursuant to a New Space Lease reasonably acceptable to Purchaser, and for any purpose provided in subparagraphs (C), (D) or (E) Seller shall be entitled to one or more adjournments of the Closing for a period not to exceed one (1) year in the aggregate; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected or cured to the reasonable satisfaction of Purchaser. 7. APPORTIONMENTS AND REIMBURSEMENTS. (a) Unless otherwise provided, at the Closing the following are to be reimbursed or apportioned as of 11:59 P.M. on the day preceding the Closing Date based upon the respective party's period of ownership for the item being apportioned. Notwithstanding the foregoing, in the event Seller (or its designee) does not receive the funds to be wired pursuant to Section 3(b) in time for Seller (or its designee) to invest same on the Closing Date, then in such event, the items set forth in this Section 7 shall be apportioned as of 11:59 P.M. on the Closing Date based upon the respective party's period of ownership for the item being apportioned (The reimbursements and apportionments shall be made based upon the actual number of days in the month in which the Closing Date occurs.): (i) Rent and additional rent under any Space Leases for the month of Closing, as and when collected. -5-
(A) If on the Closing Date there are any past due rentals which have been billed to or are due by Space Tenants and not collected (collectively "Arrears") Purchaser and Seller agree that the first moneys received after the Closing by Purchaser or Seller from such Space Tenants shall be applied (i) first to Seller and Purchaser for the month in which the Closing occurred, prorated in accordance with this Section 7, (ii) then to Purchaser toward any then current amounts owed by a Space Tenant to Purchaser and (iii) then to Seller toward the Arrears owed by such Space Tenant. Purchaser and Seller agree to remit promptly to the other the Arrears collected from time to time to which the other is so entitled as hereinbefore provided. Purchaser shall bill Space Tenants in Purchaser's customary manner and use reasonable efforts in pursuing the collection of all Arrears for one (1) year following the date of Closing. Purchaser shall have the right to deduct the greater of the allocable share of Purchaser's reasonable out-of-pocket costs incurred in collecting such Arrears or one (1%) percent of the Arrears collected on Seller's behalf from amounts otherwise due Seller. The provisions of this Section 7(a)(i)(A) shall survive the Closing. (B) As to any Space Lease(s) that provide for the payment of additional rent based upon a percentage of the
(A) If on the Closing Date there are any past due rentals which have been billed to or are due by Space Tenants and not collected (collectively "Arrears") Purchaser and Seller agree that the first moneys received after the Closing by Purchaser or Seller from such Space Tenants shall be applied (i) first to Seller and Purchaser for the month in which the Closing occurred, prorated in accordance with this Section 7, (ii) then to Purchaser toward any then current amounts owed by a Space Tenant to Purchaser and (iii) then to Seller toward the Arrears owed by such Space Tenant. Purchaser and Seller agree to remit promptly to the other the Arrears collected from time to time to which the other is so entitled as hereinbefore provided. Purchaser shall bill Space Tenants in Purchaser's customary manner and use reasonable efforts in pursuing the collection of all Arrears for one (1) year following the date of Closing. Purchaser shall have the right to deduct the greater of the allocable share of Purchaser's reasonable out-of-pocket costs incurred in collecting such Arrears or one (1%) percent of the Arrears collected on Seller's behalf from amounts otherwise due Seller. The provisions of this Section 7(a)(i)(A) shall survive the Closing. (B) As to any Space Lease(s) that provide for the payment of additional rent based upon a percentage of the Space Tenant's business during a specified annual or other period, or based upon reimbursement for or payment of real estate taxes, operating expenses or insurance expenses or otherwise (such additional rent being collectively called "Overage Rent"), if the Closing shall occur prior to the time when any such Overage Rent is payable, then such Overage Rent for the applicable accounting period in which the Closing occurs shall be apportioned subsequent to the Closing. Purchaser agrees that it will receive and hold such Overage Rent in trust and pay over to the Seller the proportion of such Overage Rent as the portion of such accounting period during which Seller was in title to the Premises bears to the entire such accounting period. As to any Overage Rent in respect to an accounting period that shall have expired prior to the Closing but which shall become payable after the Closing, the Purchaser agrees that it will receive and hold such Overage Rent in trust and pay the entire amount over to the Seller upon receipt thereof. Purchaser shall have the right to deduct the greater of the allocable share of Purchaser's reasonable out-of-pocket costs incurred in collecting such Overage Rent or one (1%) percent of the Overage Rent collected on Seller's behalf from amounts otherwise due Seller. Seller shall furnish to Purchaser all information (including the form of the bill to be rendered) necessary for the billing of such Overage Rent. Purchaser agrees that it shall render bills (calculated by Seller if applicable to a period during Seller's ownership) for Overage Rent following the Closing and shall, upon receipt thereof, promptly pay to the Seller the amount to which the Seller is entitled as above provided. If requested by either party, both parties will join in a letter to the respective Space Tenants under such leases directing the division of Overage Rents in accordance with the foregoing provisions hereof. To the extent that a Space Tenant has the express right under its Space Lease to offset Overage Rent against other amounts due under its Space Lease, same will be taken into account in determining Overage Rent apportionments. Promptly after the calendar year in which the Closing occurs, Seller and Purchaser shall reconcile all Overage Rent due for such calendar year based upon actual expenses incurred during such year, and such reconciled Overage Rent shall be reapportioned between Seller and Purchaser (taking into account any Overage Rent retained by Seller at Closing and collected by Purchaser after the Closing). The provisions of this Section 7(a)(i)(B) shall survive the Closing. (ii) Water rates and water meter charges, if any, not payable by the Space Tenants on the basis of the fiscal period for which assessed. If there be a water meter, or meters, -6-
on the Premises (other than meters under which charges are payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc.), the unfixed meter charges and the unfixed sewer rent thereon for the time intervening from the date of the last reading shall be apportioned on the basis of such last reading, and shall be appropriately readjusted after the Closing on the basis of the next subsequent bills. As to any water charges payable by the Space Tenant as aforementioned, if the Space Tenant shall have failed to pay such water charges, such unpaid charges and the liens, if any, resulting therefrom shall not be objections to title, or be the basis of any claim whatsoever by Purchaser against Seller and Purchaser shall close title in accordance with the terms of this Contract subject to such unpaid charges and rents and such liens without abatement or credit against the Purchase Price. The provisions of this Section 7(a)(ii) shall survive the Closing. (iii) Real estate, school and sewer taxes then due and payable by Seller. As to any real estate, school and sewer taxes payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc., if such Space Tenant
on the Premises (other than meters under which charges are payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc.), the unfixed meter charges and the unfixed sewer rent thereon for the time intervening from the date of the last reading shall be apportioned on the basis of such last reading, and shall be appropriately readjusted after the Closing on the basis of the next subsequent bills. As to any water charges payable by the Space Tenant as aforementioned, if the Space Tenant shall have failed to pay such water charges, such unpaid charges and the liens, if any, resulting therefrom shall not be objections to title, or be the basis of any claim whatsoever by Purchaser against Seller and Purchaser shall close title in accordance with the terms of this Contract subject to such unpaid charges and rents and such liens without abatement or credit against the Purchase Price. The provisions of this Section 7(a)(ii) shall survive the Closing. (iii) Real estate, school and sewer taxes then due and payable by Seller. As to any real estate, school and sewer taxes payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc., if such Space Tenant shall have failed to pay such taxes, such unpaid taxes and the liens, if any, resulting therefrom shall not be objections to title, or be the basis of any claim whatsoever by Purchaser against Seller and Purchaser shall close title in accordance with the terms of this Contract subject to such unpaid charges and rents and such liens without abatement or credit against the Purchase Price. The provisions of this Section 7(a)(iii) shall survive the Closing. (iv) Charges under Service Contracts not terminated on or prior to Closing and other expenses in connection with the operation of the Premises. (v) Leasing expenses pursuant to Section 6(b), if any. (b) At the Closing, Seller shall deliver to Purchaser the Space Tenants' security deposits set forth in Schedule C annexed hereto, or credit the Purchase Price on account of said security deposits; provided, however, that if any Space Tenant is in default under the terms of its Space Lease and has vacated its premises, Seller may retain so much of such Space Tenant's security deposit as shall be sufficient to cover Seller's loss by reason of the default. It is further agreed that nothing herein contained shall be deemed to prevent Seller from applying security deposits prior to Closing in order to liquidate any claim under any Space Lease or to compromise, adjust or settle with any Space Tenant for the disposition of any claim by the application of such security deposits provided such Space Tenant has vacated its premises. 8. VIOLATIONS. (a) Subject to the provisions of subsection (b) below, Purchaser shall accept the Premises subject to any notes or notices or violations of law or municipal ordinances, orders or requirements imposed or issued by any governmental or quasi- governmental authority having or asserting jurisdiction, against or affecting the Premises (individually a "Violation" and collectively "Violations") and any conditions which may result in Violations. Purchaser shall be responsible for all Violations from and after the Closing Date. (b) If, after the expiration of Purchaser's Due Diligence Period, any Violations are imposed which require a cost in excess of $100,000, in the aggregate, to cure as determined by a reputable contractor or engineer selected by Seller (and reasonably acceptable to Purchaser) Seller shall, at its election (i) cure such Violations and, for such purpose, be entitled to adjourn the Closing for a period not to exceed sixty (60) days or (ii) allow Purchaser a credit against the Purchase Price equal to the sum required to cure such Violations less $100,000 or (iii) if Seller -7-
reasonably disputes the validity of such Violations, indemnify Purchaser from and against any and all claims, loss, liability or damage, which exceed $100,000, that may arise as a result of such Violations, Seller's liability being limited under such indemnity to $100,000 in the aggregate. (c) The provisions of this Section 8 shall survive the Closing. 9. PENDING TAX PROCEEDINGS. Seller represents that there are no proceedings to review real estate tax assessment of the Premises other than as set forth in Schedule E. Seller shall have sole authority to prosecute, settle and withdraw proceedings to review any real estate tax assessment for the Premises for period relating to tax years prior to, and including, the year in which the Closing occurs. Purchaser and Seller agree that if there should be a refund of any real estate taxes paid by Seller in respect of the fiscal year in which the Closing occurs,
reasonably disputes the validity of such Violations, indemnify Purchaser from and against any and all claims, loss, liability or damage, which exceed $100,000, that may arise as a result of such Violations, Seller's liability being limited under such indemnity to $100,000 in the aggregate. (c) The provisions of this Section 8 shall survive the Closing. 9. PENDING TAX PROCEEDINGS. Seller represents that there are no proceedings to review real estate tax assessment of the Premises other than as set forth in Schedule E. Seller shall have sole authority to prosecute, settle and withdraw proceedings to review any real estate tax assessment for the Premises for period relating to tax years prior to, and including, the year in which the Closing occurs. Purchaser and Seller agree that if there should be a refund of any real estate taxes paid by Seller in respect of the fiscal year in which the Closing occurs, such refund, less reasonable attorneys' fees and disbursements, shall be apportioned between Seller and Purchaser as of the Closing Date and shall be paid promptly upon receipt thereof. Seller and Purchaser shall pay their respective share of any amounts reimbursable to Space Tenants in respect to such refund. Purchaser acknowledges that it has no interest in any proceedings or refunds applicable to any fiscal tax year prior to the year in which the Closing occurs. The provisions of this Section 9 shall survive the Closing. 10. "AS-IS". Purchaser represents to Seller that (i) Purchaser has or will, prior to the expiration of the Purchaser's Due Diligence Period, independently examined, inspected, and investigated to the full satisfaction of Purchaser, the physical nature and condition of the Premises and the income, operating expenses and carrying charges affecting the Premises, (ii) except as expressly set forth in this Contract, neither Seller nor any agent, officer, employee, or representative of Seller has made any representation whatsoever regarding the subject matter of this Contract or any part thereof, including (without limiting the generality of the foregoing) representations as to the physical nature or condition of the Premises, the existence or non-existence of asbestos, hazardous substances or wastes, underground storage tanks or any other environmental hazards on or about the Premises, or the Space Leases, or operating expenses or carrying charges affecting the Premises, and (iii) Purchaser, in executing, delivering and performing this Contract, does not rely upon any statement, offering material, operating statement, historical budget, engineering structural report, any environmental reports, information, or representation to whomsoever made or given, whether to Purchaser or others, and whether directly or indirectly, verbally or in writing, made by any person, firm or corporation except as expressly set forth herein, and Purchaser acknowledges that any such statement, information, offering material, operating statement, historical budget, report or representation, if any, does not represent or guarantee future performance of the Premises. Without limiting the foregoing, but in addition thereto, except as otherwise expressly set forth in this Contract, Seller shall deliver, and Purchaser shall take, the Premises in their "as is" condition on the Closing Date subject to Section 12. 11. BROKER. Seller and Purchaser represent to each other that neither party has dealt with any broker or real estate consultant in connection with the transactions contemplated by this Contract. Seller and Purchaser shall indemnify and hold the other free and harmless from and against any damages, costs or expenses (including, but not limited to, reasonable attorneys' fees and disbursements) suffered by the indemnified party arising from a misrepresentation or a breach of any covenant made by the indemnifying party pursuant to this Section 11. The provisions of this Section 11 shall survive the Closing. -8-
12. DESTRUCTION OR CONDEMNATION. (a) If on or prior to the date set for Closing there is a casualty or condemnation affecting the Property which constitutes a Substantial Loss, Purchaser shall have the option of cancelling this Contract within fifteen (15) days after notice of such casualty or condemnation, in which event, the Deposit shall be returned to the Purchaser and this Contract deemed cancelled and of no force and effect and neither party shall have any further rights or liabilities against or to the other. In the event of a Substantial Loss, and Purchaser does not elect to cancel this Contract, or in the event that the casualty or condemnation does not constitute a Substantial Loss, then the Purchaser and Seller shall consummate the transaction contemplated by this Contract without any reduction or abatement in the Purchase Price and Seller, upon the Closing, shall assign to the Purchaser all of its rights in and to any insurance proceeds (and shall pay to Purchaser, or allow on account the Purchase Price, a sum equal to the amount of the deductible, if any, on Seller's casualty insurance policy for the Premises) or condemnation awards, as the case may be, in connection with such casualty or condemnation. (b) As used herein, "Substantial Loss" with respect to the Property shall mean a casualty or condemnation that
12. DESTRUCTION OR CONDEMNATION. (a) If on or prior to the date set for Closing there is a casualty or condemnation affecting the Property which constitutes a Substantial Loss, Purchaser shall have the option of cancelling this Contract within fifteen (15) days after notice of such casualty or condemnation, in which event, the Deposit shall be returned to the Purchaser and this Contract deemed cancelled and of no force and effect and neither party shall have any further rights or liabilities against or to the other. In the event of a Substantial Loss, and Purchaser does not elect to cancel this Contract, or in the event that the casualty or condemnation does not constitute a Substantial Loss, then the Purchaser and Seller shall consummate the transaction contemplated by this Contract without any reduction or abatement in the Purchase Price and Seller, upon the Closing, shall assign to the Purchaser all of its rights in and to any insurance proceeds (and shall pay to Purchaser, or allow on account the Purchase Price, a sum equal to the amount of the deductible, if any, on Seller's casualty insurance policy for the Premises) or condemnation awards, as the case may be, in connection with such casualty or condemnation. (b) As used herein, "Substantial Loss" with respect to the Property shall mean a casualty or condemnation that either (i) shall entitle any anchor Space Tenant denoted as such on Schedule C annexed hereto (each an "Anchor Space Tenant" and collectively the "Anchor Space Tenants") to terminate its Space Lease on or after the Closing Date and Seller has failed to obtain a waiver of such termination right or (ii) requires repairs or restoration costs in excess of Seven Hundred Fifty Thousand ($750,000.00) Dollars. In the event Purchaser elects to cancel this Contract in accordance with subparagraph (a) above, Seller may rescind such cancellation by (iii) delivering, within one (1) year after the receipt of Purchaser's notice of cancellation, a waiver by each Anchor Space Tenant which was entitled to terminate its Space Lease by reason of the casualty or condemnation of its right or option to so terminate and (iv) within one (1) year after receipt of Purchaser's notice of cancellation, restorating and repairing the Property (A) if in connection with a casualty, substantially to its condition immediately prior to the casualty or (B) if in connection with a condemnation, as may be reasonably necessary as a result of the taking of property; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected or cured to the reasonable satisfaction of Purchaser. (c) The estimated cost of repairs or restoration in connection with a casualty or condemnation shall be determined by a reputable contractor or engineer selected by Seller and approved by Purchaser (which approval shall not be unreasonably withheld or delayed). The Closing shall be postponed for such periods as may be necessary to allow Seller to comply with the provisions of this Section 12. (d) The provisions of this Section 12 supersede the provisions of any applicable statutory or decisional law with respect to the subject matter contained in this Section 12. 13. STATUS OF TITLE. Seller shall deliver and Purchaser shall accept title to the Premises and consummate the transaction contemplated by this Contract subject to (a) the title exceptions set forth in Schedule B, (b) title exceptions created or suffered by the Space Tenants or Purchaser and (c) such other title exceptions which Seller may, in accordance with the provisions of this Contract, cause the Title Company to omit or affirmatively insure will not be collected out of the -9-
Premises provided that Purchaser has reasonably approved the affirmative insurance (the title exceptions, whether liens, encumbrances, defects, encroachments or other objections, described in (a), (b) and (c) being sometimes referred to collectively as "Permitted Exceptions"). Seller shall not enter into any agreements, indemnities or other understandings with the Title Company which will enable the Title Company to omit any matter of record without the knowledge of Purchaser. 14. CLOSING. (a) The closing of title (the "Closing") shall take place on September 30, 1997 (the actual date of Closing being herein referred to as the "Closing Date") at the offices of Tenzer Greenblatt LLP, 405 Lexington Avenue, New York, New York 10174 at 9:00 o'clock in the forenoon on that day, time being of the essence (except that Seller may adjourn the Closing in accordance with other express provisions of this Contract,) at which time the Deed to the Property shall be delivered upon payment to Seller of the Purchase Price. Notwithstanding anything contained herein or at law or in equity, Purchaser expressly agrees that it shall have no right or privilege to adjourn the
Premises provided that Purchaser has reasonably approved the affirmative insurance (the title exceptions, whether liens, encumbrances, defects, encroachments or other objections, described in (a), (b) and (c) being sometimes referred to collectively as "Permitted Exceptions"). Seller shall not enter into any agreements, indemnities or other understandings with the Title Company which will enable the Title Company to omit any matter of record without the knowledge of Purchaser. 14. CLOSING. (a) The closing of title (the "Closing") shall take place on September 30, 1997 (the actual date of Closing being herein referred to as the "Closing Date") at the offices of Tenzer Greenblatt LLP, 405 Lexington Avenue, New York, New York 10174 at 9:00 o'clock in the forenoon on that day, time being of the essence (except that Seller may adjourn the Closing in accordance with other express provisions of this Contract,) at which time the Deed to the Property shall be delivered upon payment to Seller of the Purchase Price. Notwithstanding anything contained herein or at law or in equity, Purchaser expressly agrees that it shall have no right or privilege to adjourn the Closing except as expressly permitted by this Contract and Purchaser's inability or refusal to close title on the date scheduled for Closing shall be a default under this Contract. (b) The parties agree to finalize documents necessary for the Closing and to cause their representatives to attend a customary "pre-closing" at least one (1) business day prior to the date scheduled for Closing. 15. NOTICES. All notices hereunder shall be sent by certified or registered mail, return receipt requested, or may be sent by Federal Express or other overnight courier which obtains a signature upon delivery, or may be delivered by hand delivery addressed to Seller at the address set forth above or at such other address as Seller shall designate from time to time by notice to Purchaser with copies of all such notices to be likewise sent to: Tenzer Greenblatt LLP 405 Lexington Avenue New York, New York 10174 Attention: Martin Luskin, Esq. and to Purchaser at the address given for Purchaser at the beginning of this Contract or at such other address as Purchaser shall from time to time designate by notice to Seller with copies of all such notices to Purchaser to be likewise sent to: Honigman, Miller, Schwartz & Cohn 2290 First National Building Detroit, Michigan 48226 Attention: Alan Hurvitz, Esq. Notices shall be deemed served three (3) business days after mailing, and in the case of overnight courier or hand delivery, on the date actually delivered to the intended recipient, except for notice(s) which advise the other party of a change of address of the party sending such notice or of such party's -10-
attorney, which notice shall not be deemed served until actually received by the party to whom such notice is addressed or delivery is refused by such party. Notices on behalf of the respective parties may be given by their attorneys and such notices shall have the same effect as if in fact subscribed by the party on whose behalf it is given. Notwithstanding the foregoing provisions of this Section 15, notices served by hand delivery shall be deemed served on the date of delivery if delivered at or prior to 5:00 P.M., and on the next business day if delivered after 5:00 P.M. 16. FRANCHISE TAXES. Unpaid franchise or corporation taxes, dissolution taxes or any other similar taxes so levied, of any corporation in the chain of title shall be no objection to title so long as the Title Company insures against collection of any such taxes out of or enforcement against the Premises without special or additional premium or if such special or additional premium is required, if Seller shall pay such special or additional premium. 17. TITLE REPORT. Purchaser shall promptly order a title report from Commonwealth Land Title Insurance Company (the "Title Company") and a survey or survey update, all at Purchaser's sole cost and expense.
attorney, which notice shall not be deemed served until actually received by the party to whom such notice is addressed or delivery is refused by such party. Notices on behalf of the respective parties may be given by their attorneys and such notices shall have the same effect as if in fact subscribed by the party on whose behalf it is given. Notwithstanding the foregoing provisions of this Section 15, notices served by hand delivery shall be deemed served on the date of delivery if delivered at or prior to 5:00 P.M., and on the next business day if delivered after 5:00 P.M. 16. FRANCHISE TAXES. Unpaid franchise or corporation taxes, dissolution taxes or any other similar taxes so levied, of any corporation in the chain of title shall be no objection to title so long as the Title Company insures against collection of any such taxes out of or enforcement against the Premises without special or additional premium or if such special or additional premium is required, if Seller shall pay such special or additional premium. 17. TITLE REPORT. Purchaser shall promptly order a title report from Commonwealth Land Title Insurance Company (the "Title Company") and a survey or survey update, all at Purchaser's sole cost and expense. Purchaser shall from time to time, promptly after obtaining knowledge thereof, notify Seller of any Non-Permitted Title Objections. Purchaser shall pay all premiums charged in connection with procuring a policy of title insurance. 18. NON-PERMITTED TITLE OBJECTIONS. (a) If on the Closing it should appear that the Premises are affected by any lien, encumbrance, defect, encroachment or objection which is not a Permitted Exception (collectively, "Non-Permitted Title Objections"), then in such event, Seller, at Seller's election, shall have the privilege to remove or satisfy the same, and shall, for that purpose, be entitled to one or more adjournments of the Closing for a period not exceeding in the aggregate sixty (60) days. (b) If Seller elects to adjourn the Closing pursuant to this Section 18, this Contract shall remain in effect for the period or periods of adjournment, in accordance with its terms. (c) Except as provided below, Seller shall not be required to bring any action or proceeding or to otherwise incur any expense to remove or discharge any Non-Permitted Title Objection; provided, however, that if there exists Non-Permitted Title Objection(s) which can be removed or discharged by payment of a sum of money only, and if both (1) such removal or discharge can reasonably be expected to be accomplished within a period of sixty (60) days and (2) the sum of money required to accomplish all such removals or discharges with respect to the Premises shall not exceed in the aggregate Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars (the "Maximum Title Expense"), then, and in such event, Seller agrees to either (i) adjourn the Closing for the period required to remove or discharge such Non- Permitted Title Objections, and to expend an amount not to exceed the Maximum Title Expense to remove or discharge such Non-Permitted Title Objections, or (ii) indemnify Purchaser, in an amount not to exceed the Maximum Title Expense, from any damage, cost, expense or claim which Purchaser may incur as a result of such Non-Permitted Title Objection (in which case Purchaser shall accept title subject to such Non-Permitted Title Objection). Notwithstanding the foregoing provisions, Purchaser may, at any time, accept such title as Seller can convey notwithstanding the existence of any Non-Permitted Title Objections without reduction of the -11-
Purchase Price or any credit or allowance on account thereof or any claim against Seller, provided, however, if there shall be any Non- Permitted Title Objections that can be removed or discharged by the payment of a sum of money only which exceeds the Maximum Title Expense, or that can be removed by the payment of less than the Maximum Title Expense but not within the available time, and Seller elects not to or cannot remove or discharge such Non-Permitted Title Objections within the available time, then if Purchaser elects to accept such title as Seller can convey the Purchase Price shall be reduced, by the lesser of the Maximum Title Expense or the amount required to remove or discharge said Non- Permitted Title Objection. The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Contract, except those, if any, that are herein specifically stated or made to survive the Closing (but, except as expressly set forth in this Contract, nothing herein shall be deemed to obligate Purchaser to accept title subject to any Non-Permitted Title Objection). Anything in this Section 18(c) to
Purchase Price or any credit or allowance on account thereof or any claim against Seller, provided, however, if there shall be any Non- Permitted Title Objections that can be removed or discharged by the payment of a sum of money only which exceeds the Maximum Title Expense, or that can be removed by the payment of less than the Maximum Title Expense but not within the available time, and Seller elects not to or cannot remove or discharge such Non-Permitted Title Objections within the available time, then if Purchaser elects to accept such title as Seller can convey the Purchase Price shall be reduced, by the lesser of the Maximum Title Expense or the amount required to remove or discharge said Non- Permitted Title Objection. The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Contract, except those, if any, that are herein specifically stated or made to survive the Closing (but, except as expressly set forth in this Contract, nothing herein shall be deemed to obligate Purchaser to accept title subject to any Non-Permitted Title Objection). Anything in this Section 18(c) to the contrary notwithstanding, an attempt by Seller to remove or discharge any Non-Permitted Title Objection shall not be deemed to be or create an obligation of Seller to remove or discharge the same. (d) The foregoing provisions of this Section 18 to the contrary notwithstanding, Seller agrees to remove or discharge any monetary lien voluntarily created or suffered by Seller and any Non-Permitted Title Objections voluntarily created or suffered by Seller after the date hereof; provided, however, that Seller shall not be deemed to have voluntarily created or suffered (nor shall Seller be liable for) any Non-Permitted Title Objections if caused or created by an act or omission of Purchaser or by an act or omission of any Space Tenant. Seller shall remove or discharge any Non-Permitted Title Objection in the manner set forth in subparagraph (c) above, but, for purposes of this subparagraph (d), without regard to the Maximum Title Expense. 19. RETURN OF DEPOSIT; SELLER'S DEFAULT If, for any reason whatsoever, Seller shall be unable to convey title subject to and in accordance with the terms of this Contract, the sole obligation of Seller shall be to cause the refund of the Deposit, and upon the making of such refund this Contract shall be null and void and of no further force or effect, no party hereto shall have any further claim against the other by reason of this Contract; provided, however, that if Seller's inability to convey shall result from (i) Seller's willful default or (ii) Seller's default under Section 18 above, then Purchaser shall, in either case under clause (i) or (ii) of this proviso, be entitled to the remedy of either (A) specific performance or (B) cancelling this Contract and receiving (1) the return of the Deposit and (2) reimbursement of Purchaser's actual out-of-pocket expenses incurred in procuring environmental and engineering reports not to exceed $6,500.00 in the aggregate, and upon receipt by Purchaser of the Deposit and such reimbursement no party hereto shall have any further claim against the other by reason of this Contract. 20. AFFIDAVIT REGARDING JUDGMENTS. If a search of the title discloses judgments, bankruptcies or other returns against other persons having names the same as or similar to that of Seller but who are not Seller or its affiliates or subsidiaries, Seller will deliver to Purchaser and the Title Company an affidavit(s) showing that such judgments, bankruptcies or other returns are not against Seller or, at Seller's option, deliver an indemnity agreement to the Title Company, in such form and -12-
content that the Title Company will remove such judgments, bankruptcies or other returns as exceptions to title or will insure against collection of such judgments out of the Premises. 21. ASSIGNMENT OF THIS CONTRACT. This Contract may not be assigned by Purchaser without the prior written consent of Seller. The foregoing notwithstanding, Purchaser shall have the right to assign this Contract to an entity whose decisions are made by Purchaser (or by an entity wholly owned by Purchaser) provided Purchaser owns at least fifty (50%) percent of the economic interests in such entity and provided further that such entity assumes all obligations of Purchaser under this Contract. A transfer, sale or assignment of the majority stock or membership interest in a corporate or limited liability company purchaser or in a corporate or limited liability general partner of a partnership purchaser, or of a general partnership interest in a partnership purchaser, shall constitute an assignment of this Contract, which assignment or attempted assignment shall be void if made without the written consent of Seller. No assignment of this Contract, whether or not permitted, shall be deemed to relieve or release Purchaser from any of its obligations (whether to be performed prior to or after Closing) set forth herein. Seller shall not have the right to assign its interests under this Contract except to entities affiliated with
content that the Title Company will remove such judgments, bankruptcies or other returns as exceptions to title or will insure against collection of such judgments out of the Premises. 21. ASSIGNMENT OF THIS CONTRACT. This Contract may not be assigned by Purchaser without the prior written consent of Seller. The foregoing notwithstanding, Purchaser shall have the right to assign this Contract to an entity whose decisions are made by Purchaser (or by an entity wholly owned by Purchaser) provided Purchaser owns at least fifty (50%) percent of the economic interests in such entity and provided further that such entity assumes all obligations of Purchaser under this Contract. A transfer, sale or assignment of the majority stock or membership interest in a corporate or limited liability company purchaser or in a corporate or limited liability general partner of a partnership purchaser, or of a general partnership interest in a partnership purchaser, shall constitute an assignment of this Contract, which assignment or attempted assignment shall be void if made without the written consent of Seller. No assignment of this Contract, whether or not permitted, shall be deemed to relieve or release Purchaser from any of its obligations (whether to be performed prior to or after Closing) set forth herein. Seller shall not have the right to assign its interests under this Contract except to entities affiliated with or related to Seller. 22. DEED; TRANSFER TAXES. (a) The deed to the Premises shall be the usual special warranty deed (the "Deed") all in proper statutory form for recording and shall be duly executed and acknowledged so as to convey to Purchaser the fee simple of the portion of the Premises covered thereby, free of all liens and encumbrances, except as herein stated. (b) At the Closing, Seller shall pay the cost of any amount of documentary stamps, transfer tax or similar conveyance tax imposed in connection with the delivery of the Deed (collectively, the "Transfer Tax") and Purchaser and Seller shall execute and deliver any returns and/or affidavits in connection with the recording of the Deed or the payment of the Transfer Tax. (c) (i) Anything in subdivision (b) to the contrary notwithstanding, Seller may, at its option, elect by notice given not later than three (3) business days prior to the Closing that Purchaser pay all required Transfer Tax, in which event at the Closing, Purchaser shall receive a credit against Purchase Price in the amount paid by Purchaser. (ii) Purchaser hereby indemnifies and holds Seller harmless from and against any interest or penalty charges imposed by reason of the untimely delivery to the appropriate recording officer of any of the checks required under Subdivision (c)(i). (d) The provisions of this Section 22 shall survive the Closing. 23. PURCHASER'S DEFAULT. In the event Purchaser should default under this Contract (including, but not limited to, Purchaser's failure to timely deliver the Additional Deposit), the parties agree that the damages that Seller will sustain as a result thereof will be difficult, if not impossible, to ascertain and, in such event Seller shall, as its sole and exclusive remedy, direct Escrowee to pay the Deposit to Seller who shall retain it as and for its liquidated damages hereunder. -13-
24. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee is instructed as follows: (a) Upon the Closing, the Cash Deposit shall be paid over to Seller and any Letter of Credit shall be delivered to Purchaser upon payment by Purchaser to Seller of the Purchase Price. (b) (i) Escrowee shall draw the full proceeds under any Letter of Credit if (A) Escrowee shall receive a written statement signed by Seller as follows: "Purchaser has defaulted in its obligations under that certain Contract of Sale dated July 7, 1997"; or (B) the Letter of Credit will expire by its terms within thirty (30) days. Escrowee shall promptly upon receipt forward a copy of Seller's statement to Purchaser. Any such proceeds paid to and received by Escrowee shall be treated and disposed of hereunder as Cash Deposit. (ii) In the event Purchaser should default under this Contract, Escrowee shall, if directed by Seller, pay the Cash
24. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee is instructed as follows: (a) Upon the Closing, the Cash Deposit shall be paid over to Seller and any Letter of Credit shall be delivered to Purchaser upon payment by Purchaser to Seller of the Purchase Price. (b) (i) Escrowee shall draw the full proceeds under any Letter of Credit if (A) Escrowee shall receive a written statement signed by Seller as follows: "Purchaser has defaulted in its obligations under that certain Contract of Sale dated July 7, 1997"; or (B) the Letter of Credit will expire by its terms within thirty (30) days. Escrowee shall promptly upon receipt forward a copy of Seller's statement to Purchaser. Any such proceeds paid to and received by Escrowee shall be treated and disposed of hereunder as Cash Deposit. (ii) In the event Purchaser should default under this Contract, Escrowee shall, if directed by Seller, pay the Cash Deposit to Seller who shall retain it as and for its liquidated damages hereunder. (c) In the event Seller shall fail to close title by reason of a default by Seller or in the event this Contract is terminated in accordance with its terms through no fault of Purchaser, the Deposit shall be paid over to Purchaser. (d) Escrowee shall invest the proceeds of the Deposit in such bank or money market accounts or United States Government Treasury Bills as Seller shall direct. Any interest earned on Deposit when received shall similarly be held in escrow by the Escrowee and if under the terms of this Contract (i) the Deposit is to be paid over to Purchaser, then such interest shall be paid over to Purchaser, or (ii) the Deposit is to be paid over to Seller, then such interest shall be paid over to Seller. If the Closing occurs, any interest earned on the Deposit shall be considered a credit of Purchaser to be applied against the Purchase Price. (e) Escrowee, by signing this Contract at the end hereof where indicated, signifies its agreement to hold the Deposit for the purposes as provided in this Contract. In the event of any dispute, Escrowee shall have the right to deposit the Deposit in court to await the resolution of such dispute. In any event, Escrowee shall not be personally liable so long as it acts in good faith. (f) Escrowee shall not incur any liability by reason of any action or non-action taken by Escrowee in good faith or pursuant to the judgment or order of a court of competent jurisdiction. Escrowee shall have the right to rely upon the genuineness of all certificates, notices and instruments delivered to it pursuant hereto, and all the signatures thereto or to any other writing received by Escrowee purporting to be signed by any party hereto, and upon the truth of the contents thereof. Before making payment or delivery of any moneys or documents held by Escrowee pursuant hereto, Escrowee shall have the right to require delivery to it of an executed and acknowledged receipt for the subject matter of the delivery to be made by it. In the event of any dispute between the parties as to whether either party is in default hereunder or as to any other material fact, Escrowee shall have the right to refrain from taking any further action with respect to the subject matter of the escrow until it is reasonably satisfied that such dispute is resolved or action by Escrowee is required by an order or judgment of a court of competent jurisdiction. Escrowee shall be entitled to consult with other counsel -14-
in connection with its duties hereunder. Seller and Purchaser jointly and severally, agree to indemnify Escrowee from any and all liability that may arise hereunder and to reimburse Escrowee for its reasonable costs and expenses, including reasonable attorneys' fees (either paid to retained attorneys or representing the fair value of legal services rendered by Escrowee to itself) incurred as a result of any dispute or litigation arising hereunder. (g) Escrowee or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrowee is in possession of the Deposit and continues to act as Escrowee. 25. REPRESENTATIONS. (a) Seller, represents that, unless otherwise herein stated, as of the date hereof:
in connection with its duties hereunder. Seller and Purchaser jointly and severally, agree to indemnify Escrowee from any and all liability that may arise hereunder and to reimburse Escrowee for its reasonable costs and expenses, including reasonable attorneys' fees (either paid to retained attorneys or representing the fair value of legal services rendered by Escrowee to itself) incurred as a result of any dispute or litigation arising hereunder. (g) Escrowee or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrowee is in possession of the Deposit and continues to act as Escrowee. 25. REPRESENTATIONS. (a) Seller, represents that, unless otherwise herein stated, as of the date hereof: (i) Schedule C represents a true, accurate and complete list in all material respects of (A) all Space Tenants; (B) the current base rent and (C) the security deposits presently held by Seller. Other than the Space Tenants (and parties claiming rights under Space Leases, including sublessees, licensees, assignees and concessionees) no party has any right to possess or use the Premises except as may be contemplated by the Permitted Exceptions. (ii) Except as set forth on Schedule C hereof, the Spaces Leases are in full force and effect. Seller has not received notice of any unfulfilled obligations as to security deposits to prior tenants. (iii) Except as set forth on Schedule C, Seller has not received rents from the Space Tenants (other than security deposits) in excess of one (1) month in advance. (iv) There are no written service contracts or management agreements (the "Service Contracts") affecting the Premises or the operation or use thereof which will be binding upon Purchaser after the Closing except those which may be cancelled upon not more than thirty (30) days notice. (v) There is no litigation pending (A) between Seller, as landlord, under the Space Leases and any Space Tenant, except as may be covered by insurance, or (B) affecting title to the Premises or this Contract. (vi) Seller is, and at the Closing shall be a duly organized and validly existing Delaware corporation and authorized to do business in the state where the Property is located. The execution, delivery and performance of this Contract in accordance with its terms, has been duly authorized by all necessary action of Seller, does not violate the articles of incorporation, by-laws, operating agreement, partnership agreement or certificate of partnership of Seller, or any contract, agreement, commitment, order, judgment or decree to which Seller is a party or by which it, or the Premises, are bound, or result in the creation of any lien, charge or encumbrance upon the Premises or any part thereof. This Contract has been duly executed by Seller and constitutes legal, valid and binding obligations of Seller. Seller will have the right, power and authority to make and perform its -15-
obligations under this Contract without the need for governmental approval, consent or filing and this Contract shall be a valid and binding obligation of Seller enforceable against Seller in accordance with its terms. (vii) Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"). (viii) Seller has not received written notice of any condemnation proceedings, eminent domain proceedings, proceedings to change the zoning or similar actions or proceedings which are pending against the Premises or any part thereof. (ix) There are no employees of Seller at the Properties for which Purchaser shall be responsible after the Closing. (x) Neither Seller nor any of its affiliates as described in Sections 414(b), (c) and (m) of the Code ("Affiliates") has incurred any liability which could subject Purchaser or any asset to be acquired by Purchaser pursuant to this
obligations under this Contract without the need for governmental approval, consent or filing and this Contract shall be a valid and binding obligation of Seller enforceable against Seller in accordance with its terms. (vii) Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"). (viii) Seller has not received written notice of any condemnation proceedings, eminent domain proceedings, proceedings to change the zoning or similar actions or proceedings which are pending against the Premises or any part thereof. (ix) There are no employees of Seller at the Properties for which Purchaser shall be responsible after the Closing. (x) Neither Seller nor any of its affiliates as described in Sections 414(b), (c) and (m) of the Code ("Affiliates") has incurred any liability which could subject Purchaser or any asset to be acquired by Purchaser pursuant to this Contract to any lien or material liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of ERISA or Section 401(a)(29) or 412 of the Code. (b) As used herein items in the "possession" of Seller or "received" by Seller shall mean only writings actually delivered into the possession of Seller (at the New York City office of DRA Advisors, Inc.) and shall not include writings addressed to Seller but sent or delivered to the Space Tenants or other third parties or to other locations. (c) The representations contained in subsection (a) above shall survive for a period of six (6) months following the Closing Date, and any claim by Purchaser in connection therewith must be made within such six (6) month period. Notwithstanding anything to the contrary, any representation which results in a reduction of the Purchase Price pursuant to subparagraph (e) below shall not survive the Closing. (d) Subject to the succeeding provisions of this subparagraph (d) and of subparagraph (e) below, if any representation of Seller shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be to terminate this Contract and receive the return of the Deposit, and upon the receipt of same this Contract shall be null and void and of no further force or effect and neither party shall have any rights or obligations against or to the other. Seller shall, in any event, have the option (i) to rescind Purchaser's termination of the Contract and adjourn the Closing for a period not to exceed sixty (60) days in order to make such representation true, or (ii) unless Purchaser waives all liability of Seller by reason of such untrue representation, to terminate this Contract and promptly return the Deposit to Purchaser, and upon the making of such return this Contract shall be null and void and of no further force or effect and neither party hereto shall have any rights or obligations against or to the other. If Purchaser waives such liability, then in such event, the Closing shall take place without abatement or reduction in the Purchase Price. If the Closing shall take place without Purchaser making an objection (by notice delivered at the Closing) to an untrue representation of which Purchaser shall have knowledge, Purchaser shall be deemed to have waived all liability of Seller by reason of such -16-
untrue representation. The untruth of any non-material representation of Seller shall not affect the rights and obligations of the parties hereto. (e) The provisions of subparagraph (d) hereof to the contrary notwithstanding, if any representations shall fail to be true and such representations can be made true by the payment of a sum of money only, and if both (i) such representation(s) can reasonably be expected to be made true within a period of sixty (60) days and (ii) the sum of money requited to make such representation(s) true shall not exceed Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars in the aggregate (the "Maximum Representation Expense"), then, and in such event, Seller agrees to (i) adjourn the Closing for the period required to make such representations true and to expend (or, at Seller's election, to obligate itself to expend by indemnity agreement, bond or any other manner) an amount not to exceed the Maximum Representation Expense, or (ii) indemnify Purchaser, in an amount not to exceed the Maximum Representation Expense, from any damage, cost, expense or claim that Purchaser may incur as a result of such untrue representation. Notwithstanding the provisions of the preceding sentence, Purchaser may at any time accept such title as Seller can convey notwithstanding the existence of any such untrue material representation(s) without reduction of the Purchase Price or any credit or allowance on account thereof
untrue representation. The untruth of any non-material representation of Seller shall not affect the rights and obligations of the parties hereto. (e) The provisions of subparagraph (d) hereof to the contrary notwithstanding, if any representations shall fail to be true and such representations can be made true by the payment of a sum of money only, and if both (i) such representation(s) can reasonably be expected to be made true within a period of sixty (60) days and (ii) the sum of money requited to make such representation(s) true shall not exceed Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars in the aggregate (the "Maximum Representation Expense"), then, and in such event, Seller agrees to (i) adjourn the Closing for the period required to make such representations true and to expend (or, at Seller's election, to obligate itself to expend by indemnity agreement, bond or any other manner) an amount not to exceed the Maximum Representation Expense, or (ii) indemnify Purchaser, in an amount not to exceed the Maximum Representation Expense, from any damage, cost, expense or claim that Purchaser may incur as a result of such untrue representation. Notwithstanding the provisions of the preceding sentence, Purchaser may at any time accept such title as Seller can convey notwithstanding the existence of any such untrue material representation(s) without reduction of the Purchase Price or any credit or allowance on account thereof or any claim against Seller; provided, however, if there shall be any untrue material representation(s) which can be made true by the payment of a sum of money only which exceeds the Maximum Representation Expense or which can be made true by the payment of less than the Maximum Representation Expense but not within the available time and Seller elects not to, or cannot, make such material representation(s) true within the available time, then if Purchaser elects to accept such title as Seller can convey, the Purchase Price shall be reduced by the lesser of the sum of money required to make such representations true, or the Maximum Representation Expense. The acceptance of the Deeds by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of the Seller to be performed pursuant to the provisions of this Contract, except those, if any, which are herein specifically stated or made to survive the Closing and Seller shall have no further liability with respect to such untrue material representation(s). (f) Following the Closing, Seller agrees to maintain at least $50,000.00 in its operating account until the end of the calendar year in which the Closing occurs, it being understood that such amount shall not be deemed to be the limit of Seller's liability, if any, after the Closing Date. 26. CLOSING DOCUMENTS. At the Closing (unless otherwise expressly indicated): (a) Seller shall deliver to Purchaser the following items: (i) the Deed in accordance with Section 22 hereof. (ii) the Assignment of Space Leases executed by Seller, which assignment shall be in the form of Exhibit 1 attached hereto. (iii) duplicate originals, or if duplicate originals are not available, true and complete copies certified as true by Seller, of all of the Space Leases. -17-
(iv) to the extent in Seller's possession, the real estate tax bills then payable for the then current real estate tax year. (v) a duly executed certificate of Seller, in the applicable form set forth in Treasury Regulations Section 1.1445-2 (b)(2). (vi) the checks, return and/or affidavit in accordance with Section 22 hereof. (vii) subject to the terms of Sections 26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the Closing Date, estoppel certificates ("Estoppel Certificates"), in form and substance which does not vary materially from the form annexed hereto as Exhibit 2 executed by each of the Space Tenants; provided, however, with respect to Anchor Space Tenants, Seller shall only be required to deliver such Estoppel Certificates which are usual and customary for such Anchor Space Tenants (except that, other than for the Estoppel Certificate to be
(iv) to the extent in Seller's possession, the real estate tax bills then payable for the then current real estate tax year. (v) a duly executed certificate of Seller, in the applicable form set forth in Treasury Regulations Section 1.1445-2 (b)(2). (vi) the checks, return and/or affidavit in accordance with Section 22 hereof. (vii) subject to the terms of Sections 26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the Closing Date, estoppel certificates ("Estoppel Certificates"), in form and substance which does not vary materially from the form annexed hereto as Exhibit 2 executed by each of the Space Tenants; provided, however, with respect to Anchor Space Tenants, Seller shall only be required to deliver such Estoppel Certificates which are usual and customary for such Anchor Space Tenants (except that, other than for the Estoppel Certificate to be delivered by Wal-Mart Stores, Inc. [or its assignee] the Estoppel Certificates of all other Anchor Space Tenants shall cover at least the matters set forth in paragraphs 2 and 3 of Exhibit 2). (A) If the required Estoppel Certificates cannot be timely delivered, or if the Estoppel Certificates which are timely delivered do not cover the material applicable matters set forth in Exhibit 2 Seller may, but shall not be obligated to, adjourn the Closing for a period not to exceed sixty (60) days, to obtain satisfactory Estoppel Certificates, or deliver its certificate ("Seller's Certificate") with respect to not more than forty (40%) percent of rentable square feet of space leased by non-Anchor Space Tenants as of the date hereof, covering all of the matters set forth in Exhibit 2 if no Estoppel Certificate is delivered by a Space Tenant or covering the matters not covered by an Estoppel Certificate which is delivered by a Space Tenant. Subsequent to the Closing, Seller may deliver to Purchaser Estoppel Certificates or supplemental Estoppel Certificates covering those matters not covered by the previously delivered Estoppel Certificates. Upon delivery of such Estoppel Certificates, Seller shall be entirely released from any liability arising out of Seller's Certificate delivered at the Closing as Seller's Certificate relates to the particular Space Tenant and/or Space Lease covered by the Estoppel Certificate, to the extent the information contained in such Estoppel Certificates is consistent with the information contained in Seller's Certificate. If Seller does not or cannot deliver an Estoppel Certificate or Seller's Certificate, Purchaser's sole remedy shall be to terminate this Contract and receive the return of the Deposit or to close title notwithstanding the lack of the Estoppel Certificate or Seller's Certificate without any reduction of the Purchase Price and without any liability of Seller relative thereto. (B) (1) In the event any Estoppel Certificate or Seller's Certificate shall indicate a default by landlord under a Space Lease (such default hereinafter being referred to as an "Estoppel Default"), then Seller may, but shall not be obligated to, elect to cure any such Estoppel Default and shall, for that purpose, be entitled to adjourn the Closing for a period not to exceed sixty (60) days, provided, however, that in the event Seller elects not to cure such Estoppel Default or is unable to cure such Estoppel Default within such period of time, Purchaser's sole remedy shall be as set forth in the last sentence of subparagraph (A) above. -18-
(2) Notwithstanding subsection 26(a)(vii)(B)(1), above, if, in Seller's good faith judgment either (x) the potential liability of any Estoppel Default is less than $250,000, and Seller indemnifies Purchaser from and against any and all claims, loss, liability, damage, cost or expense, including reasonable attorneys' fees, that may arise as a result of such Estoppel Default or (y) the potential liability of any Estoppel Default is $250,000 or more and Seller and Purchaser agree upon a mutually acceptable resolution to such Estoppel Default, then, the rights and obligations of the parties hereto shall not be affected thereby, this Contract shall remain in full force and effect and Purchaser shall, at the Closing, accept such Estoppel Certificate or Seller's Certificate, and the Space Lease corresponding thereto, subject to such Estoppel Default without any reduction of the Purchase Price. Subsequent to the Closing, Seller may deliver an Estoppel Certificate confirming that the Estoppel Default no longer exists, whereupon Seller shall be entirely released from any liability arising out of the indemnity, if any, given pursuant to clause (x) above. (viii) to the extent then in Seller's possession and control, copies of plans and specifications relating to the Property.
(2) Notwithstanding subsection 26(a)(vii)(B)(1), above, if, in Seller's good faith judgment either (x) the potential liability of any Estoppel Default is less than $250,000, and Seller indemnifies Purchaser from and against any and all claims, loss, liability, damage, cost or expense, including reasonable attorneys' fees, that may arise as a result of such Estoppel Default or (y) the potential liability of any Estoppel Default is $250,000 or more and Seller and Purchaser agree upon a mutually acceptable resolution to such Estoppel Default, then, the rights and obligations of the parties hereto shall not be affected thereby, this Contract shall remain in full force and effect and Purchaser shall, at the Closing, accept such Estoppel Certificate or Seller's Certificate, and the Space Lease corresponding thereto, subject to such Estoppel Default without any reduction of the Purchase Price. Subsequent to the Closing, Seller may deliver an Estoppel Certificate confirming that the Estoppel Default no longer exists, whereupon Seller shall be entirely released from any liability arising out of the indemnity, if any, given pursuant to clause (x) above. (viii) to the extent then in Seller's possession and control, copies of plans and specifications relating to the Property. (ix) a bill of sale without representation or warranty for any personal property (including tradenames and warranties, if any) being conveyed pursuant to this Contract; (x) the Assignment of Service Contracts existing on the Closing Date executed by Seller, which assignment shall be in the form of Exhibit 3 attached hereto; and (xi) a title certification substantially in the form of Exhibit 5 attached hereto. (b) Purchaser shall pay to Seller or as Seller may direct, the Purchase Price as provided in Section 3 hereof. Escrowee shall deliver the Cash Deposit to Seller. (c) Purchaser shall execute, acknowledge (where required) and deliver to Seller: (i) the Assignment of the Space Leases. (ii) the Assignment of the Service Contracts. (iii) the checks, returns and/or affidavits in accordance with Section 22 hereof. (d) Seller and Purchaser shall execute a notice to each of the Space Tenants stating in substance that Purchaser has succeeded to Seller's interest as landlord under the Space Leases. 27. FURTHER ASSURANCES. The parties each agree to do such other and further acts and things, and to execute and deliver such instruments and documents (not creating any obligations additional to those otherwise imposed by this Contract), as either may reasonably request from time to -19-
time, whether at or after the Closing, in furtherance of the purposes of this Contract. The provisions of this Section 27 shall survive the Closing. 28. PURCHASER'S DUE DILIGENCE PERIOD. (a) Purchaser shall have the right to cancel this Contract on or before September 5, 1997 by notice to Seller and Escrowee of such cancellation to be received by Seller on or before such date (the period of time from the date hereof through and including September 5, 1997 is herein referred to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels this Contract in accordance with this subparagraph, this Contract shall be deemed terminated and of no further force or effect and the Deposit shall be promptly returned to Purchaser. If Purchaser does not duly cancel this Contract in accordance with this subparagraph or if Purchaser waives its right to cancel this Contract, (i) this Contract shall remain in full force and effect and Purchaser shall have no further right to cancel this Contract under this subparagraph and (ii) Purchaser shall be deemed to have waived any liability of Seller and any right to refuse to consummate the Closing by reason of a misrepresentation, Non-Permitted Title
time, whether at or after the Closing, in furtherance of the purposes of this Contract. The provisions of this Section 27 shall survive the Closing. 28. PURCHASER'S DUE DILIGENCE PERIOD. (a) Purchaser shall have the right to cancel this Contract on or before September 5, 1997 by notice to Seller and Escrowee of such cancellation to be received by Seller on or before such date (the period of time from the date hereof through and including September 5, 1997 is herein referred to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels this Contract in accordance with this subparagraph, this Contract shall be deemed terminated and of no further force or effect and the Deposit shall be promptly returned to Purchaser. If Purchaser does not duly cancel this Contract in accordance with this subparagraph or if Purchaser waives its right to cancel this Contract, (i) this Contract shall remain in full force and effect and Purchaser shall have no further right to cancel this Contract under this subparagraph and (ii) Purchaser shall be deemed to have waived any liability of Seller and any right to refuse to consummate the Closing by reason of a misrepresentation, Non-Permitted Title Objection or other condition known to Purchaser as of the expiration of Purchaser's Due Diligence Period. (b) Time shall be of the essence with respect to the dates in this Section for the expiration of Purchaser's Due Diligence Period and the giving of Purchaser's cancellation notice. (c) Notwithstanding anything to the contrary, if Purchaser's environmental and engineering consultants have not inspected the Property by August 8, 1997 Seller may elect to cancel this Contract in which event the Deposit shall be promptly returned to Purchaser. In the event Purchaser concludes based upon any of its due diligence investigations that it is not prepared to proceed to Closing it will promptly so notify Seller and cancel the Contract. (d) Purchaser agrees to keep confidential as hereinafter provided all information furnished to Purchaser by Seller concerning the Premises, including, without limitation, Space Leases, Service Contracts or other contracts or agreements, various papers, documents, legal instruments, studies, brochures, computer output, and other material, and any discussions or visitations of the Premises (all of the aforementioned information is collectively referred to as "Evaluation Material"). (e) All Evaluation Material shall not be used or duplicated by Purchaser in any way detrimental to Seller, or for any purpose other than evaluating a possible purchase of the Property by Purchaser. Purchaser agrees to keep all Evaluation Material (other than information which is a matter of public record or is provided in other sources readily available to the public other than as a result of disclosure thereof by Purchaser or Related Parties) strictly confidential; provided, however, that the Evaluation Material may be disclosed to the directors, officers, and employees and partners of Purchaser, and to Purchaser's attorneys and accounting firm, other consultants, underwriters and financial institutions (all of whom are collectively referred to as "Related Parties") who need to know such information for the purpose of evaluating a possible purchase of the Premises. These Related Parties shall be informed of the confidential nature of the Evaluation Material and shall be directed to -20-
keep all such information in the strictest confidence and use such information only for the purpose of evaluating a possible purchase by Purchaser. Purchaser will promptly, upon request of Seller, deliver to Seller all Evaluation Material furnished to them by Seller, whether furnished before or after the date hereof, without retaining copies thereof. Purchaser will direct Related Parties to whom Evaluation Material is made available not to make similar disclosures and any such disclosure shall be deemed made by and be the responsibility of Purchaser. (f) Purchaser shall have the right to conduct non-intrusive investigations of the Premises during the term of this Contract (including a Phase I environmental investigation and a structural analysis). Such investigations may be conducted by Purchaser or its designees, including, but not limited to engineers, accountants, architects and Purchaser's employees during normal business hours and upon reasonable advance notice to Seller provided there is no disturbance to or interference with the business of any Space Tenant. Purchaser hereby indemnifies and holds harmless Seller from and against any claims, costs, damages, liabilities or expenses (including reasonably attorneys' fees) incurred or, suffered by Seller by reason of damage or injury to persons or property caused by Purchaser's investigations.
keep all such information in the strictest confidence and use such information only for the purpose of evaluating a possible purchase by Purchaser. Purchaser will promptly, upon request of Seller, deliver to Seller all Evaluation Material furnished to them by Seller, whether furnished before or after the date hereof, without retaining copies thereof. Purchaser will direct Related Parties to whom Evaluation Material is made available not to make similar disclosures and any such disclosure shall be deemed made by and be the responsibility of Purchaser. (f) Purchaser shall have the right to conduct non-intrusive investigations of the Premises during the term of this Contract (including a Phase I environmental investigation and a structural analysis). Such investigations may be conducted by Purchaser or its designees, including, but not limited to engineers, accountants, architects and Purchaser's employees during normal business hours and upon reasonable advance notice to Seller provided there is no disturbance to or interference with the business of any Space Tenant. Purchaser hereby indemnifies and holds harmless Seller from and against any claims, costs, damages, liabilities or expenses (including reasonably attorneys' fees) incurred or, suffered by Seller by reason of damage or injury to persons or property caused by Purchaser's investigations. (g) Seller agrees to deliver to Purchaser true and complete copies of all Space Leases (and any modifications thereof) in Seller's possession. (h) The provisions of Section 28(d), (e) and (f) shall survive the termination of this Contract. 29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS. (a) At the Closing, Seller and Purchaser shall each deliver any and all appropriate partnership consents or certificates by the secretary of each corporation (including any corporate general partner) certifying as to the corporate resolution authorizing this transaction. (b) Purchaser represents that: (i) it is, and will at the Closing be, a limited partnership duly organized and validly existing under the laws of Delaware and qualified to do business in the state in which the Property is located; (ii) the execution, delivery and performance of this Contract in accordance with its terms, do not violate the corporate charter, by-laws or certificate of incorporation of Purchaser, or any contract, agreement, commitment, order, judgment or decree to which Purchaser is a party or by which it is bound; (iii) Purchaser has the right, power and authority to make and perform its obligations under this Contract; (iv) this Contract is a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms. Purchaser covenants and warrants that the representations in the preceding sentences of this Section 29(b) will be true on the Closing with respect to Purchaser or any permitted assignee of Purchaser; (v) Purchaser will have the right, power and authority to make and perform its obligations under this Contract without the need for governmental approval, consent or filing and this Contract shall be a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms and (vi) Purchaser has the current financial ability to pay the Purchase Price and otherwise perform its obligations under this Contract. -21-
(c) Purchaser represents and warrants that: (i) Purchaser is not an "employee benefit plan" as defined in Section 3 (3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute "plan assets" of one or more plans within the meaning of 29 C.F.R. Section 2510-101; (iii) Purchaser is not a "governmental plan" within the meaning of Section 3(32) of ERISA; (iv) transactions by or with Purchaser are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans; and (v) Purchaser is not a "party in interest" to Seller within the meaning of ERISA. Purchaser covenants and warrants that the representations in the preceding sentences of this Section 28(c) will be true on the Closing. 30. MISCELLANEOUS. (a) This Contract and the Schedules and Exhibits annexed hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof, and except for any other documents executed contemporaneously herewith all understandings and agreements heretofore or simultaneously had between the parties hereto, including without limitation, any letter of intent or initial escrow agreement, are merged into and are
(c) Purchaser represents and warrants that: (i) Purchaser is not an "employee benefit plan" as defined in Section 3 (3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute "plan assets" of one or more plans within the meaning of 29 C.F.R. Section 2510-101; (iii) Purchaser is not a "governmental plan" within the meaning of Section 3(32) of ERISA; (iv) transactions by or with Purchaser are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans; and (v) Purchaser is not a "party in interest" to Seller within the meaning of ERISA. Purchaser covenants and warrants that the representations in the preceding sentences of this Section 28(c) will be true on the Closing. 30. MISCELLANEOUS. (a) This Contract and the Schedules and Exhibits annexed hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof, and except for any other documents executed contemporaneously herewith all understandings and agreements heretofore or simultaneously had between the parties hereto, including without limitation, any letter of intent or initial escrow agreement, are merged into and are superseded in their entirety by this Contract. (b) This Contract may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the party against which any waiver, change, modification or discharge is sought. (c) The captions or article titles contained in this Contract and the Index, if any, are for convenience and reference only and shall not be deemed a part of the text of this Contract. (d) The terms "hereof," "herein," and "hereunder," and words of similar import, shall be construed to refer to this Contract as a whole, and not to any particular article or provision, unless expressly so stated. (e) The Schedules and Exhibits annexed hereto are hereby incorporated in and made part of this Contract. (f) All words or terms used in this Contract, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. (g) This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns, if any, but nothing contained herein shall be deemed a waiver of the provisions of Section 21 hereof. None of the provisions of this Contract are intended to be, nor shall they be construed to be, for the benefit of any third party. (h) If a party is required to perform an act or give a notice on a date that is a Saturday, Sunday or national holiday, the date such performance or notice is due shall be deemed to be the next business day. -22-
(i) This Contract is to be governed and construed in accordance with the laws of the State of New York. (j) The terms "affiliates" and "subsidiaries" shall be given the same meaning as used in the broadest sense in any provision of the rules and regulations governing federal taxation and securities. (k) Neither Seller nor Purchaser may record this Contract or a memorandum of this Contract. Purchaser hereby waives, to the extent permitted by law, any right to file a lis pendens or other form of attachment against the Properties in connection with this Contract or the transactions contemplated hereby, other than a lis pendens or other such form of attachment that may be filed by Purchaser contemporaneously with the commencement by Purchaser of an action for a specific performance under Section 19 hereof. To the extent any such filing is made in violation of this Contract, Purchaser shall indemnify Seller against any damages incurred by Seller in connection therewith. In the event Purchaser shall be unsuccessful in an action for a specific performance, it shall immediately cause any lis pendens or other such form of attachment to be cancelled and removed from the public record. The provisions of this section shall survive the termination of this Contract. (l) The parties acknowledge that this transaction contemplates only the sale and purchase of the Premises and that
(i) This Contract is to be governed and construed in accordance with the laws of the State of New York. (j) The terms "affiliates" and "subsidiaries" shall be given the same meaning as used in the broadest sense in any provision of the rules and regulations governing federal taxation and securities. (k) Neither Seller nor Purchaser may record this Contract or a memorandum of this Contract. Purchaser hereby waives, to the extent permitted by law, any right to file a lis pendens or other form of attachment against the Properties in connection with this Contract or the transactions contemplated hereby, other than a lis pendens or other such form of attachment that may be filed by Purchaser contemporaneously with the commencement by Purchaser of an action for a specific performance under Section 19 hereof. To the extent any such filing is made in violation of this Contract, Purchaser shall indemnify Seller against any damages incurred by Seller in connection therewith. In the event Purchaser shall be unsuccessful in an action for a specific performance, it shall immediately cause any lis pendens or other such form of attachment to be cancelled and removed from the public record. The provisions of this section shall survive the termination of this Contract. (l) The parties acknowledge that this transaction contemplates only the sale and purchase of the Premises and that Seller is not selling a business nor do the parties intend that Purchaser be deemed a successor of Seller with respect to any liabilities of Seller to any third parties other than as set forth in this Contract and the Permitted Exceptions. Accordingly, except as set forth in this Contract, Purchaser shall neither assume nor be liable for any of the debts, liabilities, taxes or obligations of, or claims against, Seller, or of any other person or entity, of any kind or nature, whether existing now, on the Closing Date or at any time thereafter. The debts, liabilities, taxes, obligations and claims for which Seller alone is liable shall include, without limitation, all payments, benefits, and contribution obligations with respect to past and/or present employees of Seller or its Affiliates in connection with the business of Seller or its Affiliates (including, but not limited to, salaries, wages, commissions, bonuses, vacation pay, health and welfare benefits or contributions [including any group health continuation coverage obligation under COBRA], pension and/or profit sharing contributions, severance or termination pay, or any other form of compensation or employee benefit). (m) Seller shall operate the Premises in a manner substantially consistent with its past practice. [SPACE INTENTIONALLY LEFT BLANK] -23-
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract the day and year first above written. SELLER:
Fed ID No.: 58-1818283 By /s/ Authorized Signature ----------------------------Name: Title: DRM SIX REALTY CORPORATION, a Delaware corporation
PURCHASER:
Fed ID No.:
RAMCO-GERSHENSON PROPERTIES, L.P. By: RAMCO-GERSHENSON PROPERTIES TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature --------------------------Name:
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract the day and year first above written. SELLER:
Fed ID No.: 58-1818283 By /s/ Authorized Signature ----------------------------Name: Title: DRM SIX REALTY CORPORATION, a Delaware corporation
PURCHASER:
Fed ID No.:
RAMCO-GERSHENSON PROPERTIES, L.P. By: RAMCO-GERSHENSON PROPERTIES TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature --------------------------Name:
Title: As to Section 24: ESCROWEE: TENZER GREENBLATT LLP
BY /s/ Authorized Signature -----------------------------------Name: Title:
-24-
SCHEDULE A: DESCRIPTION OF PROPERTY
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be
SCHEDULE A: DESCRIPTION OF PROPERTY
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be affected by rent regulations or laws now or hereafter in effect, and rulings, decisions or interpretations by any court, agency or administrative body. 3. Real estate taxes, vault taxes and water and sewer charges not due and payable (it being understood that the lien of real estate taxes payable in arrears shall be a Permitted Exception). 4. State of facts shown on Survey dated , last revised and Survey dated prepared by and such additional state of facts an accurate survey of the Premises may show. 5. Maintenance and Service Contracts pertaining to this Premises set forth on Schedule D to this Contract. 6. Violations of laws, regulations, ordinances, orders or requirements, if any, noted in or issued by any governmental or quasi- governmental department or authority having or asserting jurisdiction over the Premises issued subsequent to the date hereof, and any conditions constituting such violations, although not so noted or issued. 7. Rights of utility companies to lay, maintain, install, operate and repair pipes, lines, poles, wires, cables, conduits, cable boxes, distribution boxes and related equipment on, over and under the Property. 8. Additional usual and customary exclusions and exceptions from coverage obtaining in the standard form of insuring agreement employed by the Title Company at the standard rates of such Title Company.
SCHEDULE C RENT ROLL
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS The Chase Manhattan Bank 4 New York Plaza New York, New York 10004 A/C# 114-026610 Tenzer Greenblatt LLP Attorney Trust Account ABA# 021-000021 Our Ref. C/M #18996-0102
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be affected by rent regulations or laws now or hereafter in effect, and rulings, decisions or interpretations by any court, agency or administrative body. 3. Real estate taxes, vault taxes and water and sewer charges not due and payable (it being understood that the lien of real estate taxes payable in arrears shall be a Permitted Exception). 4. State of facts shown on Survey dated , last revised and Survey dated prepared by and such additional state of facts an accurate survey of the Premises may show. 5. Maintenance and Service Contracts pertaining to this Premises set forth on Schedule D to this Contract. 6. Violations of laws, regulations, ordinances, orders or requirements, if any, noted in or issued by any governmental or quasi- governmental department or authority having or asserting jurisdiction over the Premises issued subsequent to the date hereof, and any conditions constituting such violations, although not so noted or issued. 7. Rights of utility companies to lay, maintain, install, operate and repair pipes, lines, poles, wires, cables, conduits, cable boxes, distribution boxes and related equipment on, over and under the Property. 8. Additional usual and customary exclusions and exceptions from coverage obtaining in the standard form of insuring agreement employed by the Title Company at the standard rates of such Title Company.
SCHEDULE C RENT ROLL
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS The Chase Manhattan Bank 4 New York Plaza New York, New York 10004 A/C# 114-026610 Tenzer Greenblatt LLP Attorney Trust Account ABA# 021-000021 Our Ref. C/M #18996-0102
SCHEDULE E LIST OF TAX PROTESTS
SCHEDULE C RENT ROLL
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS The Chase Manhattan Bank 4 New York Plaza New York, New York 10004 A/C# 114-026610 Tenzer Greenblatt LLP Attorney Trust Account ABA# 021-000021 Our Ref. C/M #18996-0102
SCHEDULE E LIST OF TAX PROTESTS 1996 and 1997 tax years under appeal.
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs, expenses, claims, losses or damages, liabilities and judgments (including reasonable attorneys' fees and disbursements) which Assignor may suffer in respect of any claim arising out of any default on the part of Assignee to perform said terms, covenants and conditions or the security deposits. Except as may be expressly set forth in that certain Contract of Sale between Assignor and Assignee dated _________, 1997, this assignment is made without warranty or representation by the Assignor and without recourse to the Assignor in any manner whatsoever. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns. This assignment and assumption agreement may not be modified, altered or amended, or
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS The Chase Manhattan Bank 4 New York Plaza New York, New York 10004 A/C# 114-026610 Tenzer Greenblatt LLP Attorney Trust Account ABA# 021-000021 Our Ref. C/M #18996-0102
SCHEDULE E LIST OF TAX PROTESTS 1996 and 1997 tax years under appeal.
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs, expenses, claims, losses or damages, liabilities and judgments (including reasonable attorneys' fees and disbursements) which Assignor may suffer in respect of any claim arising out of any default on the part of Assignee to perform said terms, covenants and conditions or the security deposits. Except as may be expressly set forth in that certain Contract of Sale between Assignor and Assignee dated _________, 1997, this assignment is made without warranty or representation by the Assignor and without recourse to the Assignor in any manner whatsoever. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument if writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. -1-
SCHEDULE E LIST OF TAX PROTESTS 1996 and 1997 tax years under appeal.
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs, expenses, claims, losses or damages, liabilities and judgments (including reasonable attorneys' fees and disbursements) which Assignor may suffer in respect of any claim arising out of any default on the part of Assignee to perform said terms, covenants and conditions or the security deposits. Except as may be expressly set forth in that certain Contract of Sale between Assignor and Assignee dated _________, 1997, this assignment is made without warranty or representation by the Assignor and without recourse to the Assignor in any manner whatsoever. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument if writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. -1-
IN WITNESS WHEREOF, Assignor and Assignee have only executed this agreement this day of , 1997.
I.D. No.: __________________________, a __________________________
By:______________________________
I.D. No.: INC., a ____________________________ By:________________________________
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs, expenses, claims, losses or damages, liabilities and judgments (including reasonable attorneys' fees and disbursements) which Assignor may suffer in respect of any claim arising out of any default on the part of Assignee to perform said terms, covenants and conditions or the security deposits. Except as may be expressly set forth in that certain Contract of Sale between Assignor and Assignee dated _________, 1997, this assignment is made without warranty or representation by the Assignor and without recourse to the Assignor in any manner whatsoever. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument if writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. -1-
IN WITNESS WHEREOF, Assignor and Assignee have only executed this agreement this day of , 1997.
I.D. No.: __________________________, a __________________________
By:______________________________
I.D. No.: INC., a ____________________________ By:________________________________
[SCHEDULE A - PROPERTY DESCRIPTION] -2-
EXHIBIT 2
IN WITNESS WHEREOF, Assignor and Assignee have only executed this agreement this day of , 1997.
I.D. No.: __________________________, a __________________________
By:______________________________
I.D. No.: INC., a ____________________________ By:________________________________
[SCHEDULE A - PROPERTY DESCRIPTION] -2-
EXHIBIT 2 FORM OF SPACE TENANT ESTOPPEL CERTIFICATE Tenant Estoppel Certificate , 1997 TO: RE: Lease with ___________ ("Landlord") for space in the __________ Shopping Center located in ___________, __________. Gentlemen: The undersigned, having the power and authority to do so, hereby certifies and affirms the following: 1. The undersigned is occupying the space demised by the above-referenced lease and the lease is in full force and effect. 2. Neither the undersigned nor, to the best of our knowledge, the landlord is in default under the lease. 3. The lease is unmodified or, if there have been modifications, they are referenced as follows:
4. The yearly amount of base rent payable by Tenant is $____________; current charges for common area maintenance, insurance and taxes are __________________ per month. Base rent has been paid through ____________ and additional rent for common area maintenance, insurance premiums and taxes has been paid through ______________. 5. The Landlord is currently holding a security deposit in the amount of $_____________. 6. The term under the lease commenced on _________________, and expires on ____________________. -1-
EXHIBIT 2 FORM OF SPACE TENANT ESTOPPEL CERTIFICATE Tenant Estoppel Certificate , 1997 TO: RE: Lease with ___________ ("Landlord") for space in the __________ Shopping Center located in ___________, __________. Gentlemen: The undersigned, having the power and authority to do so, hereby certifies and affirms the following: 1. The undersigned is occupying the space demised by the above-referenced lease and the lease is in full force and effect. 2. Neither the undersigned nor, to the best of our knowledge, the landlord is in default under the lease. 3. The lease is unmodified or, if there have been modifications, they are referenced as follows:
4. The yearly amount of base rent payable by Tenant is $____________; current charges for common area maintenance, insurance and taxes are __________________ per month. Base rent has been paid through ____________ and additional rent for common area maintenance, insurance premiums and taxes has been paid through ______________. 5. The Landlord is currently holding a security deposit in the amount of $_____________. 6. The term under the lease commenced on _________________, and expires on ____________________. -1-
This certification may be relied upon by the above addresses and their successors and assigns and any purchaser or mortgagee of the shopping center. TENANT:
BY: ____________________________ Its:______________________ Dated:_________________________ -2-
EXHIBIT 3 FORM OF ASSIGNMENT OF SERVICE CONTRACTS
This certification may be relied upon by the above addresses and their successors and assigns and any purchaser or mortgagee of the shopping center. TENANT:
BY: ____________________________ Its:______________________ Dated:_________________________ -2-
EXHIBIT 3 FORM OF ASSIGNMENT OF SERVICE CONTRACTS KNOW ALL MEN that ___________________________ ("Assignor"), in consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from ______________________________ ("Assignee"), does hereby assign, transfer and deliver onto Assignee, all of its right, title and interest in and to those certain service contracts relating to the operation or maintenance of the premises known as ___________________________, which service contracts are listed in Schedule A annexed hereto (the "Contracts"). TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions contained. AND Assignee does hereby acknowledge receipt of the Contracts so delivered, and does hereby (a) accept the within assignment and (b) assume the performance of all the terms, covenants and conditions of the Contracts on the Assignor's part to be performed thereunder from and after the date hereof. This assignment is made without warranty or representation by Assignor and without recourse to assignor in any manner whatsoever, express or implied. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns, and shall be governed by the laws of the State of _____________. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument in writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. -1-
IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this _____ day of _______________ 1997. ASSIGNOR:
By:________________________________ ASSIGNEE:
EXHIBIT 3 FORM OF ASSIGNMENT OF SERVICE CONTRACTS KNOW ALL MEN that ___________________________ ("Assignor"), in consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from ______________________________ ("Assignee"), does hereby assign, transfer and deliver onto Assignee, all of its right, title and interest in and to those certain service contracts relating to the operation or maintenance of the premises known as ___________________________, which service contracts are listed in Schedule A annexed hereto (the "Contracts"). TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions contained. AND Assignee does hereby acknowledge receipt of the Contracts so delivered, and does hereby (a) accept the within assignment and (b) assume the performance of all the terms, covenants and conditions of the Contracts on the Assignor's part to be performed thereunder from and after the date hereof. This assignment is made without warranty or representation by Assignor and without recourse to assignor in any manner whatsoever, express or implied. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns, and shall be governed by the laws of the State of _____________. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument in writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. -1-
IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this _____ day of _______________ 1997. ASSIGNOR:
By:________________________________ ASSIGNEE:
By:_________________________________ Name:
Title: -2-
EXHIBIT 4 FORM OF LETTER OF CREDIT SEE ATTACHED
IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this _____ day of _______________ 1997. ASSIGNOR:
By:________________________________ ASSIGNEE:
By:_________________________________ Name:
Title: -2-
EXHIBIT 4 FORM OF LETTER OF CREDIT SEE ATTACHED
EXHIBIT 5 FORM OF TITLE CERTIFICATION The undersigned, hereby certifies: THAT _________________________________________ ________________________________, is the owner ("Owner") of certain premises situated in the City/Village/Township of _______________________, County of _________________, State of __________, described in Commitment No. _________________________. CHECK ONE _________[] THAT during the period of 120 days immediately preceding the date of this certification no improvements or alterations have been made to the subject property by Owner and that no claims of laborers or materialmen remain unpaid (or if unpaid will be paid in the ordinary course of business) and that no material incorporated into the property is subject to a security interest (other than in connection with the Existing Mortgage). OR [] THAT during the period of 120 days immediately preceding the date of this certification certain work has been done and material furnished to or by Owner in connection with _______________________________________________ (state the general nature of work) upon said premises in the approximate total sum of $ _________ but that except as stated below all of said work and materials have been fully paid for. That to the knowledge of the undersigned said work was completed on ____________ and that no significant work remains to be done and that no significant material remains to be furnished to complete the work. Attached hereto is a list of all persons or companies which have furnished any
EXHIBIT 4 FORM OF LETTER OF CREDIT SEE ATTACHED
EXHIBIT 5 FORM OF TITLE CERTIFICATION The undersigned, hereby certifies: THAT _________________________________________ ________________________________, is the owner ("Owner") of certain premises situated in the City/Village/Township of _______________________, County of _________________, State of __________, described in Commitment No. _________________________. CHECK ONE _________[] THAT during the period of 120 days immediately preceding the date of this certification no improvements or alterations have been made to the subject property by Owner and that no claims of laborers or materialmen remain unpaid (or if unpaid will be paid in the ordinary course of business) and that no material incorporated into the property is subject to a security interest (other than in connection with the Existing Mortgage). OR [] THAT during the period of 120 days immediately preceding the date of this certification certain work has been done and material furnished to or by Owner in connection with _______________________________________________ (state the general nature of work) upon said premises in the approximate total sum of $ _________ but that except as stated below all of said work and materials have been fully paid for. That to the knowledge of the undersigned said work was completed on ____________ and that no significant work remains to be done and that no significant material remains to be furnished to complete the work. Attached hereto is a list of all persons or companies which have furnished any labor or material (having a value in excess of $50,000) from the beginning of the construction, together with waivers in full form all of said parties. Work not completed or not paid for: __________________________ _______________________________. THAT only the following parties are direct tenants of Owner under written leases: Owner agrees not to cause any lien or other encumbrance to be filed against the premises on or after the date hereof. THAT this certification is made for the purpose of inducing Commonwealth Land Title Insurance Company to issue its title policy insuring the above-described premises. -2-
THAT Owner hereby indemnifies and agrees to save harmless Commonwealth Land Title Insurance Company against any loss or expense, including attorneys' fees, sustained because any statement herein is false or inaccurate.
EXHIBIT 5 FORM OF TITLE CERTIFICATION The undersigned, hereby certifies: THAT _________________________________________ ________________________________, is the owner ("Owner") of certain premises situated in the City/Village/Township of _______________________, County of _________________, State of __________, described in Commitment No. _________________________. CHECK ONE _________[] THAT during the period of 120 days immediately preceding the date of this certification no improvements or alterations have been made to the subject property by Owner and that no claims of laborers or materialmen remain unpaid (or if unpaid will be paid in the ordinary course of business) and that no material incorporated into the property is subject to a security interest (other than in connection with the Existing Mortgage). OR [] THAT during the period of 120 days immediately preceding the date of this certification certain work has been done and material furnished to or by Owner in connection with _______________________________________________ (state the general nature of work) upon said premises in the approximate total sum of $ _________ but that except as stated below all of said work and materials have been fully paid for. That to the knowledge of the undersigned said work was completed on ____________ and that no significant work remains to be done and that no significant material remains to be furnished to complete the work. Attached hereto is a list of all persons or companies which have furnished any labor or material (having a value in excess of $50,000) from the beginning of the construction, together with waivers in full form all of said parties. Work not completed or not paid for: __________________________ _______________________________. THAT only the following parties are direct tenants of Owner under written leases: Owner agrees not to cause any lien or other encumbrance to be filed against the premises on or after the date hereof. THAT this certification is made for the purpose of inducing Commonwealth Land Title Insurance Company to issue its title policy insuring the above-described premises. -2-
THAT Owner hereby indemnifies and agrees to save harmless Commonwealth Land Title Insurance Company against any loss or expense, including attorneys' fees, sustained because any statement herein is false or inaccurate. Dated this ____ day of _______, 1997. By: _______________________ Its: ______________________ Subscribed and sworn to before me this ______ day of __________, 1997.
THAT Owner hereby indemnifies and agrees to save harmless Commonwealth Land Title Insurance Company against any loss or expense, including attorneys' fees, sustained because any statement herein is false or inaccurate. Dated this ____ day of _______, 1997. By: _______________________ Its: ______________________ Subscribed and sworn to before me this ______ day of __________, 1997. Notary Public County of ______________________ State of _______________________ My commission expires: _________ -3-
*** [ACKNOWLEDGMENTS] *** EXHIBIT A BENEFITTED PROPERTY *** EXHIBIT B BURDENED PROPERTY
EXHIBIT 10.12 CONTRACT OF SALE BETWEEN DRM THIRTY-THREE REALTY CORPORATION SELLER AND RAMCO-GERSHENSON PROPERTIES, L.P. PURCHASER Dated: July 7, 1997 Shopping Center Premises: Mays Crossing, Stockbridge, Georgia
*** [ACKNOWLEDGMENTS] *** EXHIBIT A BENEFITTED PROPERTY *** EXHIBIT B BURDENED PROPERTY
EXHIBIT 10.12 CONTRACT OF SALE BETWEEN DRM THIRTY-THREE REALTY CORPORATION SELLER AND RAMCO-GERSHENSON PROPERTIES, L.P. PURCHASER Dated: July 7, 1997 Shopping Center Premises: Mays Crossing, Stockbridge, Georgia
TABLE OF CONTENTS
PAGE ---DEFINITIONS..................................................1 SUBJECT OF SALE..............................................4 PURCHASE PRICE...............................................4 "SUBJECT TO" PROVISIONS......................................5 SPACE LEASES.................................................6 LEASING PRACTICE.............................................6 APPORTIONMENTS AND REIMBURSEMENTS............................7 VIOLATIONS..................................................10 PENDING TAX PROCEEDINGS.....................................10
1. 2. 3. 4. 5. 6. 7. 8. 9.
EXHIBIT 10.12 CONTRACT OF SALE BETWEEN DRM THIRTY-THREE REALTY CORPORATION SELLER AND RAMCO-GERSHENSON PROPERTIES, L.P. PURCHASER Dated: July 7, 1997 Shopping Center Premises: Mays Crossing, Stockbridge, Georgia
TABLE OF CONTENTS
PAGE ---DEFINITIONS..................................................1 SUBJECT OF SALE..............................................4 PURCHASE PRICE...............................................4 "SUBJECT TO" PROVISIONS......................................5 SPACE LEASES.................................................6 LEASING PRACTICE.............................................6 APPORTIONMENTS AND REIMBURSEMENTS............................7 VIOLATIONS..................................................10 PENDING TAX PROCEEDINGS.....................................10
1. 2. 3. 4. 5. 6. 7. 8. 9.
10. "AS-IS".....................................................10 11. BROKER......................................................11 12. DESTRUCTION OR CONDEMNATION.................................11 13. STATUS OF TITLE.............................................12 14. CLOSING.....................................................12 15. NOTICES.....................................................12 16. FRANCHISE TAXES.............................................13 17. TITLE REPORT................................................13 18. NON-PERMITTED TITLE OBJECTIONS..............................13 19. RETURN OF DEPOSIT...........................................15
TABLE OF CONTENTS
PAGE ---DEFINITIONS..................................................1 SUBJECT OF SALE..............................................4 PURCHASE PRICE...............................................4 "SUBJECT TO" PROVISIONS......................................5 SPACE LEASES.................................................6 LEASING PRACTICE.............................................6 APPORTIONMENTS AND REIMBURSEMENTS............................7 VIOLATIONS..................................................10 PENDING TAX PROCEEDINGS.....................................10
1. 2. 3. 4. 5. 6. 7. 8. 9.
10. "AS-IS".....................................................10 11. BROKER......................................................11 12. DESTRUCTION OR CONDEMNATION.................................11 13. STATUS OF TITLE.............................................12 14. CLOSING.....................................................12 15. NOTICES.....................................................12 16. FRANCHISE TAXES.............................................13 17. TITLE REPORT................................................13 18. NON-PERMITTED TITLE OBJECTIONS..............................13 19. RETURN OF DEPOSIT...........................................15 20. AFFIDAVIT REGARDING JUDGMENTS...............................15 21. ASSIGNMENT OF THIS CONTRACT.................................15
i
22. DEED TRANSFER TAXES........................................16 23. PURCHASER'S DEFAULT........................................16 24. ESCROW OF DEPOSIT..........................................17 25. REPRESENTATIONS............................................18 26. CLOSING DOCUMENTS..........................................21 27. FURTHER ASSURANCES.........................................23 28. PURCHASER'S DUE DILIGENCE PERIOD...........................24 29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS...............25 30. MISCELLANEOUS..............................................26
EXHIBITS AND SCHEDULES:
22. DEED TRANSFER TAXES........................................16 23. PURCHASER'S DEFAULT........................................16 24. ESCROW OF DEPOSIT..........................................17 25. REPRESENTATIONS............................................18 26. CLOSING DOCUMENTS..........................................21 27. FURTHER ASSURANCES.........................................23 28. PURCHASER'S DUE DILIGENCE PERIOD...........................24 29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS...............25 30. MISCELLANEOUS..............................................26
EXHIBITS AND SCHEDULES: Schedule A: Description of Property Schedule B: Permitted Exceptions Schedule C: Rent Roll Schedule D: Escrowee's Wire Transfer Instructions Schedule E: Existing Mortgage Schedule F: List of Tax Protests Exhibit 1: Form of Assignment and Assumption of Space Leases Exhibit 2: Form of Tenant Estoppel Certificate Exhibit 3: Form of Assignment and Assumption of Service Contracts Exhibit 4: Form of Letter of Credit Exhibit 5: Form of Title Certification ii
CONTRACT (this "Contract") made this 7th day of July, 1997 by and between DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, upon the terms and conditions hereinafter set forth, Seller agrees to sell and convey fee title to that certain parcel of land described on Schedule A, annexed hereto and made a part hereof, with the buildings and improvements erected thereon (which parcel of land and the improvements erected thereon are herein referred to as the "Property") to Purchaser and Purchaser agrees to purchase the Property. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS. The terms defined in this Section 1 shall for all purposes of this Contract have the meaning herein specified unless the context requires otherwise. (a) "Additional Deposit" shall have the meaning ascribed to it in Section 3(a). (b) "Affiliates" shall have the meaning ascribed it in Section 25(a)(xii). (c) "Anchor Space Tenant" shall have the meaning ascribed to it in Section 12(b). (d) "Arrears" shall have the meaning ascribed to it in Section 7(a)(i)(A). (e) "Cash Deposit" shall have the meaning ascribed to it in Section 3(a)(i). (f) "Closing" shall have the meaning ascribed to it in Section 14(a).
CONTRACT (this "Contract") made this 7th day of July, 1997 by and between DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 ("Seller") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, upon the terms and conditions hereinafter set forth, Seller agrees to sell and convey fee title to that certain parcel of land described on Schedule A, annexed hereto and made a part hereof, with the buildings and improvements erected thereon (which parcel of land and the improvements erected thereon are herein referred to as the "Property") to Purchaser and Purchaser agrees to purchase the Property. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS. The terms defined in this Section 1 shall for all purposes of this Contract have the meaning herein specified unless the context requires otherwise. (a) "Additional Deposit" shall have the meaning ascribed to it in Section 3(a). (b) "Affiliates" shall have the meaning ascribed it in Section 25(a)(xii). (c) "Anchor Space Tenant" shall have the meaning ascribed to it in Section 12(b). (d) "Arrears" shall have the meaning ascribed to it in Section 7(a)(i)(A). (e) "Cash Deposit" shall have the meaning ascribed to it in Section 3(a)(i). (f) "Closing" shall have the meaning ascribed to it in Section 14(a). (g) "Closing Date" shall have the meaning ascribed to it in Section 14(a). (h) "Code" shall have the meaning ascribed to it in Section 25(a)(vii). (i) "Deed" shall have the meaning ascribed to it in Section 22(a). (j) "Deposit" shall have the meaning ascribed to it in Section 3(a). (k) "ERISA" shall have the meaning ascribed to it in Section 29(c). (l) "Escrowee" shall have the meaning ascribed to it in Section 3(a). (m) "Estoppel Certificate" shall have the meaning ascribed to it in Section 26(a)(vii). 1
(n) "Estoppel Default" shall have the meaning ascribed to it in Section 26(a)(vii)(B). (o) "Existing Mortgage" shall have the meaning ascribed to it in Section 4(b). (p) "Evaluation Material" shall have the meaning ascribed to it in Section 28(d). (q) "Initial Deposit" shall have the meaning ascribed to it in Section 3(a).
(n) "Estoppel Default" shall have the meaning ascribed to it in Section 26(a)(vii)(B). (o) "Existing Mortgage" shall have the meaning ascribed to it in Section 4(b). (p) "Evaluation Material" shall have the meaning ascribed to it in Section 28(d). (q) "Initial Deposit" shall have the meaning ascribed to it in Section 3(a). (r) "Letter of Credit" shall have the meaning ascribed to it in Section 3(a)(i). (s) "Loan Documents" shall have the meaning ascribed to it in Section 4(a). (t) "Maximum Representation Expense" shall have the meaning ascribed to it in Section 25(e). (u) "Maximum Title Expense" shall have the meaning ascribed to it in Section 18(c). (v) "Mortgage Expenses" shall have the meaning ascribed to it in Section 4(d). (w) "New Space Lease" shall have the meaning ascribed to it in Section 6(a). (x) "Non-Permitted Title Objections" shall have the meaning ascribed to it in Section 18(a). (y) "Overage Rent" shall have the meaning provided in Section 7(a)(i)(B). (z) "Permitted Exceptions" shall have the meaning ascribed to it in Section 13. (aa) "Premises" shall have the meaning ascribed it in Section 2(b). (ab) "Property" shall have the meaning ascribed to it in the "WHEREAS" paragraph in this Contract. (ac) "Purchase Price" shall have the meaning ascribed to it in Section 3. (ad) "Purchaser's Due Diligence Period" shall have the meaning ascribed to it in Section 28(a). (ae) "Related Parties" shall have the meaning ascribed to it in Section 28(e). (af) "Seller's Certificate" shall have the meaning ascribed to it in Section 26(a)(vii). 2
(ag) "Service Contracts" shall have the meaning ascribed to it in Section 25(a)(iv). (ah) "Space Leases" shall have the meaning ascribed to it in Section 5. (ai) "Space Tenants" shall have the meaning ascribed to it in Section 5. (aj) "Substantial Loss" shall have the meaning ascribed to it in Section 12(b). (ak) "Title Company" shall have the meaning ascribed to it in Section 17. (al) "Transfer Tax" shall have the meaning ascribed to it in Section 22(b). (am) "Violation(s) " shall have the meaning ascribed to it in Section 8. 2. SUBJECT OF SALE.
(ag) "Service Contracts" shall have the meaning ascribed to it in Section 25(a)(iv). (ah) "Space Leases" shall have the meaning ascribed to it in Section 5. (ai) "Space Tenants" shall have the meaning ascribed to it in Section 5. (aj) "Substantial Loss" shall have the meaning ascribed to it in Section 12(b). (ak) "Title Company" shall have the meaning ascribed to it in Section 17. (al) "Transfer Tax" shall have the meaning ascribed to it in Section 22(b). (am) "Violation(s) " shall have the meaning ascribed to it in Section 8. 2. SUBJECT OF SALE. (a) Seller agrees to sell and convey to Purchaser the Premises and Purchaser agrees to purchase from Seller the Premises subject to the terms and conditions contained in this Contract. (b) This sale includes any right, title and interest of Seller in and to: (i) the Property (and any other property adjacent thereto owned by Seller); (ii) any land lying in the bed of any street, road or avenue opened or proposed, in front of or adjoining the Property, to the center line thereof, and all right, title and interest of Seller in and to any award made or to be made in lieu thereof and in and to any unpaid award for damage to the Property by reason of change of grade of any street; and Seller will execute and deliver to the Purchaser at the Closing, or thereafter, on demand, all proper instruments for the conveyance of such title and the assignment and collection of any such award; (iii) trade names, easements, permits, licenses and utility agreements, and other appurtenances appurtenant to the Property, if any; (iv) fixtures, equipment and other personal property attached to and appurtenant to the Property and not owned by the Space Tenants, if any, but no part of the Purchase Price shall be deemed to be paid for such fixtures, equipment or personal property; (v) the Space Leases and the security deposits listed on Schedule C annexed hereto; (vi) all plans and specifications for improvements to the Property in the possession of Seller and any contracts, warranties and guarantees, if any, with regard to the foregoing; and (vii) any mineral rights, waters, water courses and hereditaments belonging to the Property and owned by Seller ((i) through (vii) being referred to collectively as the "Premises"). 3. PURCHASE PRICE. The purchase price for the Premises is the sum of Seven Million Eighty-Seven Thousand and 00/100 Dollars ($7,087,000.00), (the "Purchase Price") which shall be paid by Purchaser to Seller as follows: (a) (i) Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars ($66,666.67) (the "Initial Deposit") on the signing of this Contract payable to Tenzer Greenblatt LLP 3
("Escrowee"), receipt of which is hereby acknowledged by the Escrowee and (ii) Two Hundred Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars ($266,666.67) (the "Additional Deposit") payable to Escrowee on or before September 5, 1997, time being of the essence. The Initial Deposit and the Additional Deposit, to the extent actually paid and received, together with any interest earned thereon is referred to collectively herein as the "Deposit." The Deposit shall include the Cash Deposit or any Letter of Credit or the proceeds therefrom. The Initial Deposit and the Additional Deposit may be paid, at Purchaser's option, by (A) electronic wire transfer in accordance with the instructions set forth on Schedule D attached hereto of immediately available federal funds, or by good certified check of Purchaser or bank teller's check to the order of Escrowee (individually or collectively (the "Cash Deposit") or (B) delivering to Escrowee an irrevocable letter of credit, in the amount of the Initial Deposit and/or the Additional Deposit issued to Escrowee, as beneficiary, by BankBoston, N.A. in the form of Exhibit 4 (individually or collectively, the "Letter of Credit"); and (b) On the Closing Date, Six Million Seven Hundred Fifty-Three Thousand Six Hundred Sixty-Six and 66/100
("Escrowee"), receipt of which is hereby acknowledged by the Escrowee and (ii) Two Hundred Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars ($266,666.67) (the "Additional Deposit") payable to Escrowee on or before September 5, 1997, time being of the essence. The Initial Deposit and the Additional Deposit, to the extent actually paid and received, together with any interest earned thereon is referred to collectively herein as the "Deposit." The Deposit shall include the Cash Deposit or any Letter of Credit or the proceeds therefrom. The Initial Deposit and the Additional Deposit may be paid, at Purchaser's option, by (A) electronic wire transfer in accordance with the instructions set forth on Schedule D attached hereto of immediately available federal funds, or by good certified check of Purchaser or bank teller's check to the order of Escrowee (individually or collectively (the "Cash Deposit") or (B) delivering to Escrowee an irrevocable letter of credit, in the amount of the Initial Deposit and/or the Additional Deposit issued to Escrowee, as beneficiary, by BankBoston, N.A. in the form of Exhibit 4 (individually or collectively, the "Letter of Credit"); and (b) On the Closing Date, Six Million Seven Hundred Fifty-Three Thousand Six Hundred Sixty-Six and 66/100 Dollars ($6,753,666.66) plus the amount of any Letter of Credit constituting a portion of the Deposit, subject to the apportionments set forth in Section 7, by electronic wire transfer of immediately available federal funds pursuant to wiring instructions to be given by Seller to Purchaser prior to the Closing. 4. "SUBJECT TO" PROVISIONS; MORTGAGE. (a) The Premises are sold subject to the exceptions set forth on Schedule B attached hereto. (b) "Existing Mortgage" refers collectively to the mortgage loans described on Schedule E attached hereto. Seller has delivered to Purchaser, and Purchaser acknowledges receipt of, copies of the documents listed on Schedule E evidencing and securing the Existing Mortgage (the "Loan Documents"). (c) If on the date then scheduled for the Closing, Seller is unable to pay off the Existing Mortgage by reason of the applicable prepayment requirements, Seller may adjourn the Closing for such time as may be necessary to satisfy such requirements. (d) Purchaser shall, at the Closing, pay all fees and expenses (the "Mortgage Expenses") due (or incurred by Seller) in connection with or arising out of the payoff of the Existing Mortgage (including any prepayment charges). 5. SPACE LEASES. With respect to tenancies and occupancies set forth on Schedule C attached hereto and made a part hereof, Purchaser represents that it has examined, or will examine prior to the expiration of Purchaser's Due Diligence Period, all leases and amendments thereto relating to such tenancies and occupancies (which leases and any New Space Leases are collectively referred to herein as the "Space Leases" and the lessees thereunder are herein called "Space Tenants"). 6. LEASING PRACTICE. 4
(a) Subject to Section 6(b) below, Seller may continue to lease the Premises in a manner consistent with its past course of business and in a commercially reasonable manner, including, without limitation and in its sole discretion, the termination of existing Space Leases and/or the entering into of new leases or renewals or modifications of existing Spaces Leases (such new space lease, termination, renewal or modification is herein referred to as a "New Space Lease") . (b) (i) Prior to the expiration of Purchaser's Due Diligence Period, Seller shall be permitted to enter into any New Space Lease without the approval of Purchaser, provided Seller promptly notifies Purchaser of the same. (ii) After the expiration of Purchaser's Due Diligence Period provided Purchaser is not in default under this Contract, Seller shall not (A) enter into a New Space Lease covering more than 7,500 square feet of rentable space without obtaining the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed or (B) terminate any Space Lease without the prior written consent of Purchaser except in the event of a default by a Space Tenant under a Space Lease. Any New Space Lease which does not require Purchaser's consent shall be arms-length and on then fair market terms and conditions (and shall otherwise be consistent with
(a) Subject to Section 6(b) below, Seller may continue to lease the Premises in a manner consistent with its past course of business and in a commercially reasonable manner, including, without limitation and in its sole discretion, the termination of existing Space Leases and/or the entering into of new leases or renewals or modifications of existing Spaces Leases (such new space lease, termination, renewal or modification is herein referred to as a "New Space Lease") . (b) (i) Prior to the expiration of Purchaser's Due Diligence Period, Seller shall be permitted to enter into any New Space Lease without the approval of Purchaser, provided Seller promptly notifies Purchaser of the same. (ii) After the expiration of Purchaser's Due Diligence Period provided Purchaser is not in default under this Contract, Seller shall not (A) enter into a New Space Lease covering more than 7,500 square feet of rentable space without obtaining the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed or (B) terminate any Space Lease without the prior written consent of Purchaser except in the event of a default by a Space Tenant under a Space Lease. Any New Space Lease which does not require Purchaser's consent shall be arms-length and on then fair market terms and conditions (and shall otherwise be consistent with Seller's customary leasing standards). (iii) Seller and Purchaser shall apportion, at Closing, any tenant improvement expenses or allowances and leasing commissions on account of a New Space Lease based on their respective periods of ownership of the Premises during the term of such New Space Lease. (c) If Purchaser's consent is required under this Section 6 for the execution of a New Space Lease, Purchaser agrees to grant or deny its consent in writing (and provide, in reasonable detail, the reasons for any denial) within four (4) business days after request therefor. Purchaser's failure to duly respond to Seller's request within four (4) business days after request therefor shall be deemed a consent to the proposed New Space Lease. If Purchaser's consent is not required, Seller's sole obligation shall be to notify Purchaser prior to entering into any New Space Lease or terminating any Space Lease. (d) (i) Purchaser acknowledges and agrees that no representation has been made and no responsibility has been assumed by Seller with respect to the continued occupancy of the Premises, or any part thereof, by the Space Tenants. Seller does not undertake or guarantee that the Space Tenants will be in occupancy at the Closing. Prior to the Closing, Seller shall have the right, but not the obligation, to enforce its rights against the Space Tenants by summary proceeding or in any other manner. (ii) Notwithstanding the provisions of subsection (d)(i) above, but subject to the provisions of subsection (d)(iii) below, Purchaser shall have the right to cancel this Contract in the event that, on the Closing Date, an Anchor Space Tenant shall have filed a petition in bankruptcy and (A) an order has been executed by the Bankruptcy Court granting such Anchor Space Tenant's application to reject its Space Lease in bankruptcy or (B) fails to assume its Space Lease in bankruptcy. (iii) In the event that, following the date of this Contract any Anchor Space Tenant shall file a petition in bankruptcy, Seller, at Seller's election, shall have the privilege to (C) reinstate such Anchor Space Tenant's Space Lease by entering into a New Space Lease with such Anchor Space Tenant on substantially similar terms and conditions as in such prior Space Lease, or (D) obtain evidence, reasonably satisfactory to Purchaser, that such Anchor Space Tenant has assumed its Space Lease in bankruptcy or (E) procure a substitute tenant for the space covered by the Space Lease in question pursuant to a New Space Lease reasonably acceptable to Purchaser, and for any purpose provided in subparagraphs (C), (D) or (E) Seller shall be entitled to one or more adjournments of the Closing for 5
a period not to exceed one (1) year in the aggregate; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected or cured to the reasonable satisfaction of Purchaser. 7. APPORTIONMENTS AND REIMBURSEMENTS. (a) Unless otherwise provided, at the Closing the following are to be reimbursed or apportioned as of 11:59 P.M. on the day preceding the Closing Date based upon the respective party's period of ownership for the item being apportioned. Notwithstanding the foregoing, in the event Seller (or its designee) does not receive the funds to be wired pursuant to Section 3(b) in time for Seller (or its designee) to invest same (or to timely pay off the Existing Mortgage) on the Closing Date, then in such event, the items set forth in this Section 7 shall be apportioned as of 11:59 P.M. on the Closing Date based upon the respective party's period of ownership for the
a period not to exceed one (1) year in the aggregate; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected or cured to the reasonable satisfaction of Purchaser. 7. APPORTIONMENTS AND REIMBURSEMENTS. (a) Unless otherwise provided, at the Closing the following are to be reimbursed or apportioned as of 11:59 P.M. on the day preceding the Closing Date based upon the respective party's period of ownership for the item being apportioned. Notwithstanding the foregoing, in the event Seller (or its designee) does not receive the funds to be wired pursuant to Section 3(b) in time for Seller (or its designee) to invest same (or to timely pay off the Existing Mortgage) on the Closing Date, then in such event, the items set forth in this Section 7 shall be apportioned as of 11:59 P.M. on the Closing Date based upon the respective party's period of ownership for the item being apportioned (The reimbursements and apportionments shall be made based upon the actual number of days in the month in which the Closing Date occurs.): (i) Rent and additional rent under any Space Leases for the month of Closing, as and when collected. (A) If on the Closing Date there are any past due rentals which have been billed to or are due by Space Tenants and not collected (collectively "Arrears") Purchaser and Seller agree that the first moneys received after the Closing by Purchaser or Seller from such Space Tenants shall be applied (i) first to Seller and Purchaser for the month in which the Closing occurred, prorated in accordance with this Section 7, (ii) then to Purchaser toward any then current amounts owed by a Space Tenant to Purchaser and (iii) then to Seller toward the Arrears owed by such Space Tenant. Purchaser and Seller agree to remit promptly to the other the Arrears collected from time to time to which the other is so entitled as hereinbefore provided. Purchaser shall bill Space Tenants in Purchaser's customary manner and use reasonable efforts in pursuing the collection of all Arrears for one (1) year following the date of Closing. Purchaser shall have the right to deduct the greater of the allocable share of Purchaser's reasonable out-of-pocket costs incurred in collecting such Arrears or one (1%) percent of the Arrears collected on Seller's behalf from amounts otherwise due Seller. The provisions of this Section 7(a)(i)(A) shall survive the Closing. (B) As to any Space Lease(s) that provide for the payment of additional rent based upon a percentage of the Space Tenant's business during a specified annual or other period, or based upon reimbursement for or payment of real estate taxes, operating expenses or insurance expenses or otherwise (such additional rent being collectively called "Overage Rent"), if the Closing shall occur prior to the time when any such Overage Rent is payable, then such Overage Rent for the applicable accounting period in which the Closing occurs shall be apportioned subsequent to the Closing. Purchaser agrees that it will receive and hold such Overage Rent in trust and pay over to the Seller the proportion of such Overage Rent as the portion of such accounting period during which Seller was in title to the Premises bears to the entire such accounting period. As to any Overage Rent in respect to an accounting period that shall have expired prior to the Closing but which shall become payable after the Closing, the Purchaser agrees that it will receive and hold such Overage Rent in trust 6
and pay the entire amount over to the Seller upon receipt thereof. Purchaser shall have the right to deduct the greater of the allocable share of Purchaser's reasonable out-of-pocket costs incurred in collecting such Overage Rent or one (1%) percent of the Overage Rent collected on Seller's behalf from amounts otherwise due Seller. Seller shall furnish to Purchaser all information (including the form of the bill to be rendered) necessary for the billing of such Overage Rent. Purchaser agrees that it shall render bills (calculated by Seller if applicable to a period during Seller's ownership) for Overage Rent following the Closing and shall, upon receipt thereof, promptly pay to the Seller the amount to which the Seller is entitled as above provided. If requested by either party, both parties will join in a letter to the respective Space Tenants under such leases directing the division of Overage Rents in accordance with the foregoing provisions hereof. To the extent that a Space Tenant has the express right under its Space Lease to offset Overage Rent against other amounts due under its Space Lease, same will be taken into account in determining Overage Rent apportionments. Promptly after the calendar year in which the Closing occurs, Seller and Purchaser shall reconcile all Overage Rent due for such calendar year based upon actual expenses incurred during such year, and such reconciled Overage Rent shall be reapportioned between Seller and Purchaser (taking into account any Overage Rent retained by Seller at Closing and collected
and pay the entire amount over to the Seller upon receipt thereof. Purchaser shall have the right to deduct the greater of the allocable share of Purchaser's reasonable out-of-pocket costs incurred in collecting such Overage Rent or one (1%) percent of the Overage Rent collected on Seller's behalf from amounts otherwise due Seller. Seller shall furnish to Purchaser all information (including the form of the bill to be rendered) necessary for the billing of such Overage Rent. Purchaser agrees that it shall render bills (calculated by Seller if applicable to a period during Seller's ownership) for Overage Rent following the Closing and shall, upon receipt thereof, promptly pay to the Seller the amount to which the Seller is entitled as above provided. If requested by either party, both parties will join in a letter to the respective Space Tenants under such leases directing the division of Overage Rents in accordance with the foregoing provisions hereof. To the extent that a Space Tenant has the express right under its Space Lease to offset Overage Rent against other amounts due under its Space Lease, same will be taken into account in determining Overage Rent apportionments. Promptly after the calendar year in which the Closing occurs, Seller and Purchaser shall reconcile all Overage Rent due for such calendar year based upon actual expenses incurred during such year, and such reconciled Overage Rent shall be reapportioned between Seller and Purchaser (taking into account any Overage Rent retained by Seller at Closing and collected by Purchaser after the Closing). The provisions of this Section 7(a)(i)(B) shall survive the Closing. (ii) Water rates and water meter charges, if any, not payable by the Space Tenants on the basis of the fiscal period for which assessed. If there be a water meter, or meters, on the Premises (other than meters under which charges are payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc.), the unfixed meter charges and the unfixed sewer rent thereon for the time intervening from the date of the last reading shall be apportioned on the basis of such last reading, and shall be appropriately readjusted after the Closing on the basis of the next subsequent bills. As to any water charges payable by the Space Tenant as aforementioned, if the Space Tenant shall have failed to pay such water charges, such unpaid charges and the liens, if any, resulting therefrom shall not be objections to title, or be the basis of any claim whatsoever by Purchaser against Seller and Purchaser shall close title in accordance with the terms of this Contract subject to such unpaid charges and rents and such liens without abatement or credit against the Purchase Price. The provisions of this Section 7(a)(ii) shall survive the Closing. (iii) Real estate, school and sewer taxes then due and payable by Seller. As to any real estate, school and sewer taxes payable by the Space Tenant under the Space Lease with Wal-Mart Stores, Inc., if such Space Tenant shall have failed to pay such taxes, such unpaid taxes and the liens, if any, resulting therefrom shall not be objections to title, or be the basis of any claim whatsoever by Purchaser against Seller and Purchaser shall close title in accordance with the terms of this Contract subject to such unpaid charges and rents and such liens without abatement or credit against the Purchase Price. The provisions of this Section 7(a)(iii) shall survive the Closing. (iv) Charges under Service Contracts not terminated on or prior to Closing and other expenses in connection with the operation of the Premises. (v) Leasing expenses pursuant to Section 6(b), if any. 7
(b) At the Closing, Seller shall deliver to Purchaser the Space Tenants' security deposits set forth in Schedule C annexed hereto, or credit the Purchase Price on account of said security deposits; provided, however, that if any Space Tenant is in default under the terms of its Space Lease and has vacated its premises, Seller may retain so much of such Space Tenant's security deposit as shall be sufficient to cover Seller's loss by reason of the default. It is further agreed that nothing herein contained shall be deemed to prevent Seller from applying security deposits prior to Closing in order to liquidate any claim under any Space Lease or to compromise, adjust or settle with any Space Tenant for the disposition of any claim by the application of such security deposits provided such Space Tenant has vacated its premises. 8. VIOLATIONS. (a) Subject to the provisions of subsection (b) below, Purchaser shall accept the Premises subject to any notes or notices or violations of law or municipal ordinances, orders or requirements imposed or issued by any governmental or quasi- governmental authority having or asserting jurisdiction, against or affecting the Premises (individually a "Violation" and collectively "Violations") and any conditions which may result in Violations. Purchaser shall be responsible for all Violations from and after the Closing Date. (b) If, after the expiration of Purchaser's Due Diligence Period, any Violations
(b) At the Closing, Seller shall deliver to Purchaser the Space Tenants' security deposits set forth in Schedule C annexed hereto, or credit the Purchase Price on account of said security deposits; provided, however, that if any Space Tenant is in default under the terms of its Space Lease and has vacated its premises, Seller may retain so much of such Space Tenant's security deposit as shall be sufficient to cover Seller's loss by reason of the default. It is further agreed that nothing herein contained shall be deemed to prevent Seller from applying security deposits prior to Closing in order to liquidate any claim under any Space Lease or to compromise, adjust or settle with any Space Tenant for the disposition of any claim by the application of such security deposits provided such Space Tenant has vacated its premises. 8. VIOLATIONS. (a) Subject to the provisions of subsection (b) below, Purchaser shall accept the Premises subject to any notes or notices or violations of law or municipal ordinances, orders or requirements imposed or issued by any governmental or quasi- governmental authority having or asserting jurisdiction, against or affecting the Premises (individually a "Violation" and collectively "Violations") and any conditions which may result in Violations. Purchaser shall be responsible for all Violations from and after the Closing Date. (b) If, after the expiration of Purchaser's Due Diligence Period, any Violations are imposed which require a cost in excess of $100,000, in the aggregate, to cure as determined by a reputable contractor or engineer selected by Seller (and reasonably acceptable to Purchaser) Seller shall, at its election (i) cure such Violations and, for such purpose, be entitled to adjourn the Closing for a period not to exceed sixty (60) days or (ii) allow Purchaser a credit against the Purchase Price equal to the sum required to cure such Violations less $100,000 or (iii) if Seller reasonably disputes the validity of such Violations, indemnify Purchaser from and against any and all claims, loss, liability or damage, which exceed $100,000, that may arise as a result of such Violations, Seller's liability being limited under such indemnity to $100,000 in the aggregate. (c) The provisions of this Section 8 shall survive the Closing. 9. PENDING TAX PROCEEDINGS. Seller represents that there are no proceedings to review real estate tax assessment of the Premises other than as set forth in Schedule F. Seller shall have sole authority to prosecute, settle and withdraw proceedings to review any real estate tax assessment for the Premises for period relating to tax years prior to, and including, the year in which the Closing occurs. Purchaser and Seller agree that if there should be a refund of any real estate taxes paid by Seller in respect of the fiscal year in which the Closing occurs, such refund, less reasonable attorneys' fees and disbursements, shall be apportioned between Seller and Purchaser as of the Closing Date and shall be paid promptly upon receipt thereof. Seller and Purchaser shall pay their respective share of any amounts reimbursable to Space Tenants in respect to such refund. Purchaser acknowledges that it has no interest in any proceedings or refunds applicable to any fiscal tax year prior to the year in which the Closing occurs. The provisions of this Section 9 shall survive the Closing. 10. "AS-IS". Purchaser represents to Seller that (i) Purchaser has or will, prior to the expiration of the Purchaser's Due Diligence Period, independently examined, inspected, and investigated to the full satisfaction of Purchaser, the physical nature and condition of the Premises and the income, operating expenses and carrying charges affecting the Premises, (ii) except as expressly set forth in this Contract, neither Seller nor any agent, officer, employee, or representative of Seller has made any representation whatsoever regarding the subject matter of this Contract or any part thereof, including (without limiting the generality of the foregoing) representations as to the physical nature or condition 8
of the Premises, the existence or non-existence of asbestos, hazardous substances or wastes, underground storage tanks or any other environmental hazards on or about the Premises, or the Space Leases, or operating expenses or carrying charges affecting the Premises, and (iii) Purchaser, in executing, delivering and performing this Contract, does not rely upon any statement, offering material, operating statement, historical budget, engineering structural report, any environmental reports, information, or representation to whomsoever made or given, whether to Purchaser or others, and whether directly or indirectly, verbally or in writing, made by any person, firm or corporation except as expressly set forth herein, and Purchaser acknowledges that any such statement, information, offering material, operating statement, historical budget, report or representation, if any, does not represent or guarantee future performance of the Premises. Without limiting the foregoing, but in addition thereto, except as otherwise expressly set forth in this Contract, Seller shall deliver, and Purchaser shall take, the Premises in their "as is" condition on the Closing Date subject to Section 12.
of the Premises, the existence or non-existence of asbestos, hazardous substances or wastes, underground storage tanks or any other environmental hazards on or about the Premises, or the Space Leases, or operating expenses or carrying charges affecting the Premises, and (iii) Purchaser, in executing, delivering and performing this Contract, does not rely upon any statement, offering material, operating statement, historical budget, engineering structural report, any environmental reports, information, or representation to whomsoever made or given, whether to Purchaser or others, and whether directly or indirectly, verbally or in writing, made by any person, firm or corporation except as expressly set forth herein, and Purchaser acknowledges that any such statement, information, offering material, operating statement, historical budget, report or representation, if any, does not represent or guarantee future performance of the Premises. Without limiting the foregoing, but in addition thereto, except as otherwise expressly set forth in this Contract, Seller shall deliver, and Purchaser shall take, the Premises in their "as is" condition on the Closing Date subject to Section 12. 11. BROKER. Seller and Purchaser represent to each other that neither party has dealt with any broker or real estate consultant in connection with the transactions contemplated by this Contract. Seller and Purchaser shall indemnify and hold the other free and harmless from and against any damages, costs or expenses (including, but not limited to, reasonable attorneys' fees and disbursements) suffered by the indemnified party arising from a misrepresentation or a breach of any covenant made by the indemnifying party pursuant to this Section 11. The provisions of this Section 11 shall survive the Closing. 12. DESTRUCTION OR CONDEMNATION. (a) If on or prior to the date set for Closing there is a casualty or condemnation affecting the Property which constitutes a Substantial Loss, Purchaser shall have the option of cancelling this Contract within fifteen (15) days after notice of such casualty or condemnation, in which event, the Deposit shall be returned to the Purchaser and this Contract deemed cancelled and of no force and effect and neither party shall have any further rights or liabilities against or to the other. In the event of a Substantial Loss, and Purchaser does not elect to cancel this Contract, or in the event that the casualty or condemnation does not constitute a Substantial Loss, then the Purchaser and Seller shall consummate the transaction contemplated by this Contract without any reduction or abatement in the Purchase Price and Seller, upon the Closing, shall assign to the Purchaser all of its rights in and to any insurance proceeds (and shall pay to Purchaser, or allow on account the Purchase Price, a sum equal to the amount of the deductible, if any, on Seller's casualty insurance policy for the Premises) or condemnation awards, as the case may be, in connection with such casualty or condemnation. (b) As used herein, "Substantial Loss" with respect to the Property shall mean a casualty or condemnation that either (i) shall entitle any anchor Space Tenant denoted as such on Schedule C annexed hereto (each an "Anchor Space Tenant" and collectively the "Anchor Space Tenants") to terminate its Space Lease on or after the Closing Date and Seller has failed to obtain a waiver of such termination right or (ii) requires repairs or restoration costs in excess of Seven Hundred Fifty Thousand ($750,000.00) Dollars. In the event Purchaser elects to cancel this Contract in accordance with subparagraph (a) above, Seller may rescind such cancellation by (iii) delivering, within one (1) year after the receipt of Purchaser's notice of cancellation, a waiver by each Anchor Space Tenant which was entitled to terminate its Space Lease by reason of the casualty or condemnation of its right or option to so terminate and (iv) within one (1) year after receipt of Purchaser's notice of 9
cancellation, restorating and repairing the Property (A) if in connection with a casualty, substantially to its condition immediately prior to the casualty or (B) if in connection with a condemnation, as may be reasonably necessary as a result of the taking of property; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected or cured to the reasonable satisfaction of Purchaser. (c) The estimated cost of repairs or restoration in connection with a casualty or condemnation shall be determined by a reputable contractor or engineer selected by Seller and approved by Purchaser (which approval shall not be unreasonably withheld or delayed). The Closing shall be postponed for such periods as may be necessary to allow Seller to comply with the provisions of this Section 12. (d) The provisions of this Section 12 supersede the provisions of any applicable statutory or decisional law with respect to the subject matter contained in this Section 12.
cancellation, restorating and repairing the Property (A) if in connection with a casualty, substantially to its condition immediately prior to the casualty or (B) if in connection with a condemnation, as may be reasonably necessary as a result of the taking of property; provided, however, that Purchaser shall have no obligation to close title if, during such period of adjournment, an event occurs which materially and adversely affects the Premises and such event is not corrected or cured to the reasonable satisfaction of Purchaser. (c) The estimated cost of repairs or restoration in connection with a casualty or condemnation shall be determined by a reputable contractor or engineer selected by Seller and approved by Purchaser (which approval shall not be unreasonably withheld or delayed). The Closing shall be postponed for such periods as may be necessary to allow Seller to comply with the provisions of this Section 12. (d) The provisions of this Section 12 supersede the provisions of any applicable statutory or decisional law with respect to the subject matter contained in this Section 12. 13. STATUS OF TITLE. Seller shall deliver and Purchaser shall accept title to the Premises and consummate the transaction contemplated by this Contract subject to (a) the title exceptions set forth in Schedule B, (b) title exceptions created or suffered by the Space Tenants or Purchaser and (c) such other title exceptions which Seller may, in accordance with the provisions of this Contract, cause the Title Company to omit or affirmatively insure will not be collected out of the Premises provided that Purchaser has reasonably approved the affirmative insurance (the title exceptions, whether liens, encumbrances, defects, encroachments or other objections, described in (a), (b), and (c) being sometimes referred to collectively as "Permitted Exceptions"). Seller shall not enter into any agreements, indemnities or other understandings with the Title Company which will enable the Title Company to omit any matter of record without the knowledge of Purchaser. 14. CLOSING. (a) The closing of title (the "Closing") shall take place on September 30, 1997 (the actual date of Closing being herein referred to as the "Closing Date") at the offices of Tenzer Greenblatt LLP, 405 Lexington Avenue, New York, New York 10174 at 9:00 o'clock in the forenoon on that day, time being of the essence (except that Seller may adjourn the Closing in accordance with other express provisions of this Contract) at which time the Deed to the Property shall be delivered upon payment to Seller of the Purchase Price. Notwithstanding anything contained herein or at law or in equity, Purchaser expressly agrees that it shall have no right or privilege to adjourn the Closing except as expressly permitted by this Contract and Purchaser's inability or refusal to close title on the date scheduled for Closing shall be a default under this Contract. (b) The parties agree to finalize documents necessary for the Closing and to cause their representatives to attend a customary "pre-closing" at least one (1) business day prior to the date scheduled for Closing. 15. NOTICES. All notices hereunder shall be sent by certified or registered mail, return receipt requested, or may be sent by Federal Express or other overnight courier which obtains a 10
signature upon delivery, or may be delivered by hand delivery addressed to Seller at the address set forth above or at such other address as Seller shall designate from time to time by notice to Purchaser with copies of all such notices to be likewise sent to: Tenzer Greenblatt LLP 405 Lexington Avenue New York, New York 10174 Attention: Martin Luskin, Esq. and to Purchaser at the address given for Purchaser at the beginning of this Contract or at such other address as Purchaser shall from time to time designate by notice to Seller with copies of all such notices to Purchaser to be likewise sent to: Honigman, Miller, Schwartz & Cohn 2290 First National Building Detroit, Michigan 48226 Attention: Alan
signature upon delivery, or may be delivered by hand delivery addressed to Seller at the address set forth above or at such other address as Seller shall designate from time to time by notice to Purchaser with copies of all such notices to be likewise sent to: Tenzer Greenblatt LLP 405 Lexington Avenue New York, New York 10174 Attention: Martin Luskin, Esq. and to Purchaser at the address given for Purchaser at the beginning of this Contract or at such other address as Purchaser shall from time to time designate by notice to Seller with copies of all such notices to Purchaser to be likewise sent to: Honigman, Miller, Schwartz & Cohn 2290 First National Building Detroit, Michigan 48226 Attention: Alan Hurvitz, Esq. Notices shall be deemed served three (3) business days after mailing, and in the case of overnight courier or hand delivery, on the date actually delivered to the intended recipient, except for notice(s) which advise the other party of a change of address of the party sending such notice or of such party's attorney, which notice shall not be deemed served until actually received by the party to whom such notice is addressed or delivery is refused by such party. Notices on behalf of the respective parties may be given by their attorneys and such notices shall have the same effect as if in fact subscribed by the party on whose behalf it is given. Notwithstanding the foregoing provisions of this Section 15, notices served by hand delivery shall be deemed served on the date of delivery if delivered at or prior to 5:00 P.M., and on the next business day if delivered after 5:00 P.M. 16. FRANCHISE TAXES. Unpaid franchise or corporation taxes, dissolution taxes or any other similar taxes so levied, of any corporation in the chain of title shall be no objection to title so long as the Title Company insures against collection of any such taxes out of or enforcement against the Premises without special or additional premium or if such special or additional premium is required, if Seller shall pay such special or additional premium. 17. TITLE REPORT. Purchaser shall promptly order a title report from Commonwealth Land Title Insurance Company (the "Title Company") and a survey or survey update, all at Purchaser's sole cost and expense. Purchaser shall from time to time, promptly after obtaining knowledge thereof, notify Seller of any Non-Permitted Title Objections. Purchaser shall pay all premiums charged in connection with procuring a policy of title insurance. 18. NON-PERMITTED TITLE OBJECTIONS. (a) If on the Closing it should appear that the Premises are affected by any lien, encumbrance, defect, encroachment or objection which is not a Permitted Exception (collectively, "Non-Permitted Title Objections"), then in such event, Seller, at Seller's election, shall have the 11
privilege to remove or satisfy the same, and shall, for that purpose, be entitled to one or more adjournments of the Closing for a period not exceeding in the aggregate sixty (60) days. (b) If Seller elects to adjourn the Closing pursuant to this Section 18, this Contract shall remain in effect for the period or periods of adjournment, in accordance with its terms. (c) Except as provided below, Seller shall not be required to bring any action or proceeding or to otherwise incur any expense to remove or discharge any Non-Permitted Title Objection; provided, however, that if there exists Non-Permitted Title Objection(s) which can be removed or discharged by payment of a sum of money only, and if both (1) such removal or discharge can reasonably be expected to be accomplished within a period of sixty (60) days and (2) the sum of money required to accomplish all such removals or discharges with respect to the Premises shall not exceed in the aggregate Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars (the "Maximum Title Expense"), then, and in such event, Seller agrees to either (i) adjourn the Closing for the period required to remove or discharge such Non-Permitted Title Objections, and to expend an amount not to exceed
privilege to remove or satisfy the same, and shall, for that purpose, be entitled to one or more adjournments of the Closing for a period not exceeding in the aggregate sixty (60) days. (b) If Seller elects to adjourn the Closing pursuant to this Section 18, this Contract shall remain in effect for the period or periods of adjournment, in accordance with its terms. (c) Except as provided below, Seller shall not be required to bring any action or proceeding or to otherwise incur any expense to remove or discharge any Non-Permitted Title Objection; provided, however, that if there exists Non-Permitted Title Objection(s) which can be removed or discharged by payment of a sum of money only, and if both (1) such removal or discharge can reasonably be expected to be accomplished within a period of sixty (60) days and (2) the sum of money required to accomplish all such removals or discharges with respect to the Premises shall not exceed in the aggregate Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars (the "Maximum Title Expense"), then, and in such event, Seller agrees to either (i) adjourn the Closing for the period required to remove or discharge such Non-Permitted Title Objections, and to expend an amount not to exceed the Maximum Title Expense to remove or discharge such Non-Permitted Title Objections, or (ii) indemnify Purchaser, in an amount not to exceed the Maximum Title Expense, from any damage, cost, expense or claim which Purchaser may incur as a result of such Non-Permitted Title Objection (in which case Purchaser shall accept title subject to such Non-Permitted Title Objection). Notwithstanding the foregoing provisions, Purchaser may, at any time, accept such title as Seller can convey notwithstanding the existence of any Non-Permitted Title Objections without reduction of the Purchase Price or any credit or allowance on account thereof or any claim against Seller, provided, however, if there shall be any Non-Permitted Title Objections that can be removed or discharged by the payment of a sum of money only which exceeds the Maximum Title Expense, or that can be removed by the payment of less than the Maximum Title Expense but not within the available time, and Seller elects not to or cannot remove or discharge such Non-Permitted Title Objections within the available time, then if Purchaser elects to accept such title as Seller can convey the Purchase Price shall be reduced, by the lesser of the Maximum Title Expense or the amount required to remove or discharge said Non-Permitted Title Objection. The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of Seller to be performed pursuant to this Contract, except those, if any, that are herein specifically stated or made to survive the Closing (but, except as expressly set forth in this Contract, nothing herein shall be deemed to obligate Purchaser to accept title subject to any Non-Permitted Title Objection). Anything in this Section 18(c) to the contrary notwithstanding, an attempt by Seller to remove or discharge any Non-Permitted Title Objection shall not be deemed to be or create an obligation of Seller to remove or discharge the same. (d) The foregoing provisions of this Section 18 to the contrary notwithstanding, Seller agrees to remove or discharge any monetary lien voluntarily created or suffered by Seller and any Non-Permitted Title Objections voluntarily created or suffered by Seller after the date hereof; provided, however, that Seller shall not be deemed to have voluntarily created or suffered (nor shall Seller be liable for) any Non-Permitted Title Objections if caused or created by an act or omission of Purchaser or by an act or omission of any Space Tenant. Seller shall remove or discharge any Non-Permitted Title Objection in the manner set forth in subparagraph (c) above, but, for purposes of this subparagraph (d), without regard to the Maximum Title Expense. 12
19. RETURN OF DEPOSIT; SELLER'S DEFAULT If, for any reason whatsoever, Seller shall be unable to convey title subject to and in accordance with the terms of this Contract, the sole obligation of Seller shall be to cause the refund of the Deposit, and upon the making of such refund this Contract shall be null and void and of no further force or effect, no party hereto shall have any further claim against the other by reason of this Contract; provided, however, that if Seller's inability to convey shall result from (i) Seller's willful default or (ii) Seller's default under Section 18 above, then Purchaser shall, in either case under clause (i) or (ii) of this proviso, be entitled to the remedy of either (A) specific performance or (B) cancelling this Contract and receiving (1) the return of the Deposit and (2) reimbursement of Purchaser's actual out-of- pocket expenses incurred in procuring environmental and engineering reports not to exceed $6,500.00 in the aggregate, and upon receipt by Purchaser of the Deposit and such reimbursement no party hereto shall have any further claim against the other by reason of this Contract.
19. RETURN OF DEPOSIT; SELLER'S DEFAULT If, for any reason whatsoever, Seller shall be unable to convey title subject to and in accordance with the terms of this Contract, the sole obligation of Seller shall be to cause the refund of the Deposit, and upon the making of such refund this Contract shall be null and void and of no further force or effect, no party hereto shall have any further claim against the other by reason of this Contract; provided, however, that if Seller's inability to convey shall result from (i) Seller's willful default or (ii) Seller's default under Section 18 above, then Purchaser shall, in either case under clause (i) or (ii) of this proviso, be entitled to the remedy of either (A) specific performance or (B) cancelling this Contract and receiving (1) the return of the Deposit and (2) reimbursement of Purchaser's actual out-of- pocket expenses incurred in procuring environmental and engineering reports not to exceed $6,500.00 in the aggregate, and upon receipt by Purchaser of the Deposit and such reimbursement no party hereto shall have any further claim against the other by reason of this Contract. 20. AFFIDAVIT REGARDING JUDGMENTS. If a search of the title discloses judgments, bankruptcies or other returns against other persons having names the same as or similar to that of Seller but who are not Seller or its affiliates or subsidiaries, Seller will deliver to Purchaser and the Title Company an affidavit(s) showing that such judgments, bankruptcies or other returns are not against Seller or, at Seller's option, deliver an indemnity agreement to the Title Company, in such form and content that the Title Company will remove such judgments, bankruptcies or other returns as exceptions to title or will insure against collection of such judgments out of the Premises. 21. ASSIGNMENT OF THIS CONTRACT. This Contract may not be assigned by Purchaser without the prior written consent of Seller. The foregoing notwithstanding, Purchaser shall have the right to assign this Contract to an entity whose decisions are made by Purchaser (or by an entity wholly owned by Purchaser) provided Purchaser owns at least fifty (50%) percent of the economic interests in such entity and provided further that such entity assumes all obligations of Purchaser under this Contract. A transfer, sale or assignment of the majority stock or membership interest in a corporate or limited liability company purchaser or in a corporate or limited liability general partner of a partnership purchaser, or of a general partnership interest in a partnership purchaser, shall constitute an assignment of this Contract, which assignment or attempted assignment shall be void if made without the written consent of Seller. No assignment of this Contract, whether or not permitted, shall be deemed to relieve or release Purchaser from any of its obligations (whether to be performed prior to or after Closing) set forth herein. Seller shall not have the right to assign its interests under this Contract except to entities affiliated with or related to Seller. 22. DEED; TRANSFER TAXES. (a) The deed to the Premises shall be the usual special warranty deed (the "Deed") all in proper statutory form for recording and shall be duly executed and acknowledged so as to convey to Purchaser the fee simple of the portion of the Premises covered thereby, free of all liens and encumbrances, except as herein stated. (b) At the Closing, Seller shall pay the cost of any amount of documentary stamps, transfer tax or similar conveyance tax imposed in connection with the delivery of the Deed 13
(collectively, the "Transfer Tax") and Purchaser and Seller shall execute and deliver any returns and/or affidavits in connection with the recording of the Deed or the payment of the Transfer Tax. (c) (i) Anything in subdivision (b) to the contrary notwithstanding, Seller may, at its option, elect by notice given not later than three (3) business days prior to the Closing that Purchaser pay all required Transfer Tax, in which event at the Closing, Purchaser shall receive a credit against Purchase Price in the amount paid by Purchaser. (ii) Purchaser hereby indemnifies and holds Seller harmless from and against any interest or penalty charges imposed by reason of the untimely delivery to the appropriate recording officer of any of the checks required under Subdivision (c)(i). (d) The provisions of this Section 22 shall survive the Closing.
(collectively, the "Transfer Tax") and Purchaser and Seller shall execute and deliver any returns and/or affidavits in connection with the recording of the Deed or the payment of the Transfer Tax. (c) (i) Anything in subdivision (b) to the contrary notwithstanding, Seller may, at its option, elect by notice given not later than three (3) business days prior to the Closing that Purchaser pay all required Transfer Tax, in which event at the Closing, Purchaser shall receive a credit against Purchase Price in the amount paid by Purchaser. (ii) Purchaser hereby indemnifies and holds Seller harmless from and against any interest or penalty charges imposed by reason of the untimely delivery to the appropriate recording officer of any of the checks required under Subdivision (c)(i). (d) The provisions of this Section 22 shall survive the Closing. 23. PURCHASER'S DEFAULT. In the event Purchaser should default under this Contract (including, but not limited to, Purchaser's failure to timely deliver the Additional Deposit), the parties agree that the damages that Seller will sustain as a result thereof will be difficult, if not impossible, to ascertain and, in such event Seller shall, as its sole and exclusive remedy, direct Escrowee to pay the Deposit to Seller who shall retain it as and for its liquidated damages hereunder. 24. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee is instructed as follows: (a) Upon the Closing, the Cash Deposit shall be paid over to Seller and any Letter of Credit shall be delivered to Purchaser upon payment by Purchaser to Seller of the Purchase Price. (b) (i) Escrowee shall draw the full proceeds under any Letter of Credit if (A) Escrowee shall receive a written statement signed by Seller as follows: "Purchaser has defaulted in its obligations under that certain Contract of Sale dated July 7, 1997"; or (B) the Letter of Credit will expire by its terms within thirty (30) days. Escrowee shall promptly upon receipt forward a copy of Seller's statement to Purchaser. Any such proceeds paid to and received by Escrowee shall be treated and disposed of hereunder as Cash Deposit. (ii) In the event Purchaser should default under this Contract, Escrowee shall, if directed by Seller, pay the Cash Deposit to Seller who shall retain it as and for its liquidated damages hereunder. (c) In the event Seller shall fail to close title by reason of a default by Seller or in the event this Contract is terminated in accordance with its terms through no fault of Purchaser, the Deposit shall be paid over to Purchaser. (d) Escrowee shall invest the proceeds of the Deposit in such bank or money market accounts or United States Government Treasury Bills as Seller shall direct. Any interest earned on Deposit when received shall similarly be held in escrow by the Escrowee and if under the terms of this Contract (i) the Deposit is to be paid over to Purchaser, then such interest shall be paid over to Purchaser, or (ii) the Deposit is to be paid over to Seller, then such interest shall be paid over to Seller. 14
If the Closing occurs, any interest earned on the Deposit shall be considered a credit of Purchaser to be applied against the Purchase Price. (e) Escrowee, by signing this Contract at the end hereof where indicated, signifies its agreement to hold the Deposit for the purposes as provided in this Contract. In the event of any dispute, Escrowee shall have the right to deposit the Deposit in court to await the resolution of such dispute. In any event, Escrowee shall not be personally liable so long as it acts in good faith. (f) Escrowee shall not incur any liability by reason of any action or non-action taken by Escrowee in good faith or pursuant to the judgment or order of a court of competent jurisdiction. Escrowee shall have the right to rely upon the genuineness of all certificates, notices and instruments delivered to it pursuant hereto, and all the signatures thereto or to any other writing received by Escrowee purporting to be signed by any party hereto, and upon the truth of the contents thereof. Before making payment or delivery of any moneys or documents held by Escrowee
If the Closing occurs, any interest earned on the Deposit shall be considered a credit of Purchaser to be applied against the Purchase Price. (e) Escrowee, by signing this Contract at the end hereof where indicated, signifies its agreement to hold the Deposit for the purposes as provided in this Contract. In the event of any dispute, Escrowee shall have the right to deposit the Deposit in court to await the resolution of such dispute. In any event, Escrowee shall not be personally liable so long as it acts in good faith. (f) Escrowee shall not incur any liability by reason of any action or non-action taken by Escrowee in good faith or pursuant to the judgment or order of a court of competent jurisdiction. Escrowee shall have the right to rely upon the genuineness of all certificates, notices and instruments delivered to it pursuant hereto, and all the signatures thereto or to any other writing received by Escrowee purporting to be signed by any party hereto, and upon the truth of the contents thereof. Before making payment or delivery of any moneys or documents held by Escrowee pursuant hereto, Escrowee shall have the right to require delivery to it of an executed and acknowledged receipt for the subject matter of the delivery to be made by it. In the event of any dispute between the parties as to whether either party is in default hereunder or as to any other material fact, Escrowee shall have the right to refrain from taking any further action with respect to the subject matter of the escrow until it is reasonably satisfied that such dispute is resolved or action by Escrowee is required by an order or judgment of a court of competent jurisdiction. Escrowee shall be entitled to consult with other counsel in connection with its duties hereunder. Seller and Purchaser jointly and severally, agree to indemnify Escrowee from any and all liability that may arise hereunder and to reimburse Escrowee for its reasonable costs and expenses, including reasonable attorneys' fees (either paid to retained attorneys or representing the fair value of legal services rendered by Escrowee to itself) incurred as a result of any dispute or litigation arising hereunder. (g) Escrowee or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Deposit or any other dispute between the parties whether or not Escrowee is in possession of the Deposit and continues to act as Escrowee. 25. REPRESENTATIONS. (a) Seller, represents that, unless otherwise herein stated, as of the date hereof: (i) Schedule C represents a true, accurate and complete list in all material respects of (A) all Space Tenants; (B) the current base rent and (C) the security deposits presently held by Seller. Other than the Space Tenants (and parties claiming rights under Space Leases, including sublessees, licensees, assignees and concessionees) no party has any right to possess or use the Premises except as may be contemplated by the Permitted Exceptions. (ii) Except as set forth on Schedule C hereof, the Spaces Leases are in full force and effect. Seller has not received notice of any unfulfilled obligations as to security deposits to prior tenants. 15
(iii) Except as set forth on Schedule C, Seller has not received rents from the Space Tenants (other than security deposits) in excess of one (1) month in advance. (iv) There are no written service contracts or management agreements (the "Service Contracts") affecting the Premises or the operation or use thereof which will be binding upon Purchaser after the Closing except those which may be cancelled upon not more than thirty (30) days notice. (v) There is no litigation pending (A) between Seller, as landlord, under the Space Leases and any Space Tenant, except as may be covered by insurance, or (B) affecting title to the Premises or this Contract. (vi) Seller is, and at the Closing shall be a duly organized and validly existing Alabama corporation and authorized to do business in the state where the Property is located. The execution, delivery and performance of this Contract in accordance with its terms, has been duly authorized by all necessary action of Seller, does not violate the articles of incorporation, by-laws, operating agreement, partnership agreement or certificate of partnership of Seller, or any contract, agreement, commitment, order, judgment or decree to which Seller is a party or by which
(iii) Except as set forth on Schedule C, Seller has not received rents from the Space Tenants (other than security deposits) in excess of one (1) month in advance. (iv) There are no written service contracts or management agreements (the "Service Contracts") affecting the Premises or the operation or use thereof which will be binding upon Purchaser after the Closing except those which may be cancelled upon not more than thirty (30) days notice. (v) There is no litigation pending (A) between Seller, as landlord, under the Space Leases and any Space Tenant, except as may be covered by insurance, or (B) affecting title to the Premises or this Contract. (vi) Seller is, and at the Closing shall be a duly organized and validly existing Alabama corporation and authorized to do business in the state where the Property is located. The execution, delivery and performance of this Contract in accordance with its terms, has been duly authorized by all necessary action of Seller, does not violate the articles of incorporation, by-laws, operating agreement, partnership agreement or certificate of partnership of Seller, or any contract, agreement, commitment, order, judgment or decree to which Seller is a party or by which it, or the Premises, are bound, or result in the creation of any lien, charge or encumbrance upon the Premises or any part thereof. This Contract has been duly executed by Seller and constitutes legal, valid and binding obligations of Seller. Seller will have the right, power and authority to make and perform its obligations under this Contract without the need for governmental approval, consent or filing and this Contract shall be a valid and binding obligation of Seller enforceable against Seller in accordance with its terms. (vii) Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"). (viii) Seller has not received written notice of any condemnation proceedings, eminent domain proceedings, proceedings to change the zoning or similar actions or proceedings which are pending against the Premises or any part thereof. (ix) There are no employees of Seller at the Proper- ties for which Purchaser shall be responsible after the Closing. (x) The principal balance as of June 30, 1997 of the Existing Mortgage is set forth on Schedule E attached hereto. (xi) The Loan Documents constitute all the documents which are material in connection with the prepayment of Existing Mortgage. Seller shall not modify the prepayment provisions of the Loan Documents during the term of this Contract without the consent of Purchaser. (xii) Neither Seller nor any of its affiliates as described in Sections 414(b), (c) and (m) of the Code ("Affiliates") has incurred any liability which could subject Purchaser or any 16
asset to be acquired by Purchaser pursuant to this Contract to any lien or material liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of ERISA or Section 401(a)(29) or 412 of the Code. (b) As used herein items in the "possession" of Seller or "received" by Seller shall mean only writings actually delivered into the possession of Seller (at the New York City office of DRA Advisors, Inc.) and shall not include writings addressed to Seller but sent or delivered to the Space Tenants or other third parties or to other locations. (c) The representations contained in subsection (a) above shall survive for a period of six (6) months following the Closing Date, and any claim by Purchaser in connection therewith must be made within such six (6) month period. Notwithstanding anything to the contrary, any representation which results in a reduction of the Purchase Price pursuant to subparagraph (e) below shall not survive the Closing. (d) Subject to the succeeding provisions of this subparagraph (d) and of subparagraph (e) below, if any representation of Seller shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be to terminate
asset to be acquired by Purchaser pursuant to this Contract to any lien or material liability under Section 302(f), 4062, 4063, 4064, 4201 or 4301(b) of ERISA or Section 401(a)(29) or 412 of the Code. (b) As used herein items in the "possession" of Seller or "received" by Seller shall mean only writings actually delivered into the possession of Seller (at the New York City office of DRA Advisors, Inc.) and shall not include writings addressed to Seller but sent or delivered to the Space Tenants or other third parties or to other locations. (c) The representations contained in subsection (a) above shall survive for a period of six (6) months following the Closing Date, and any claim by Purchaser in connection therewith must be made within such six (6) month period. Notwithstanding anything to the contrary, any representation which results in a reduction of the Purchase Price pursuant to subparagraph (e) below shall not survive the Closing. (d) Subject to the succeeding provisions of this subparagraph (d) and of subparagraph (e) below, if any representation of Seller shall fail to be true, Purchaser's sole remedy (prior to the Closing) shall be to terminate this Contract and receive the return of the Deposit, and upon the receipt of same this Contract shall be null and void and of no further force or effect and neither party shall have any rights or obligations against or to the other. Seller shall, in any event, have the option (i) to rescind Purchaser's termination of the Contract and adjourn the Closing for a period not to exceed sixty (60) days in order to make such representation true, or (ii) unless Purchaser waives all liability of Seller by reason of such untrue representation, to terminate this Contract and promptly return the Deposit to Purchaser, and upon the making of such return this Contract shall be null and void and of no further force or effect and neither party hereto shall have any rights or obligations against or to the other. If Purchaser waives such liability, then in such event, the Closing shall take place without abatement or reduction in the Purchase Price. If the Closing shall take place without Purchaser making an objection (by notice delivered at the Closing) to an untrue representation of which Purchaser shall have knowledge, Purchaser shall be deemed to have waived all liability of Seller by reason of such untrue representation. The untruth of any nonmaterial representation of Seller shall not affect the rights and obligations of the parties hereto. (e) The provisions of subparagraph (d) hereof to the contrary notwithstanding, if any representations shall fail to be true and such representations can be made true by the payment of a sum of money only, and if both (i) such representation(s) can reasonably be expected to be made true within a period of sixty (60) days and (ii) the sum of money requited to make such representation(s) true shall not exceed Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars in the aggregate (the "Maximum Representation Expense"), then, and in such event, Seller agrees to (i) adjourn the Closing for the period required to make such representations true and to expend (or, at Seller's election, to obligate itself to expend by indemnity agreement, bond or any other manner) an amount not to exceed the Maximum Representation Expense, or (ii) indemnify Purchaser, in an amount not to exceed the Maximum Representation Expense, from any damage, cost, expense or claim that Purchaser may incur as a result of such untrue representation. Notwithstanding the provisions of the preceding sentence, Purchaser may at any time accept such title as Seller can convey notwithstanding the existence of any such untrue material representation(s) without reduction of the Purchase Price or any credit or allowance on account thereof or any claim against Seller; provided, however, if there shall be any untrue material 17
representation(s) which can be made true by the payment of a sum of money only which exceeds the Maximum Representation Expense or which can be made true by the payment of less than the Maximum Representation Expense but not within the available time and Seller elects not to, or cannot, make such material representation(s) true within the available time, then if Purchaser elects to accept such title as Seller can convey, the Purchase Price shall be reduced by the lesser of the sum of money required to make such representations true, or the Maximum Representation Expense. The acceptance of the Deeds by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of the Seller to be performed pursuant to the provisions of this Contract, except those, if any, which are herein specifically stated or made to survive the Closing and Seller shall have no further liability with respect to such untrue material representation(s). (f) Following the Closing, Seller agrees to maintain at least $50,000.00 in its operating account until the end of the calendar year in which the Closing occurs, it being understood that such amount shall not be deemed to be the limit of Seller's liability, if any, after the Closing Date.
representation(s) which can be made true by the payment of a sum of money only which exceeds the Maximum Representation Expense or which can be made true by the payment of less than the Maximum Representation Expense but not within the available time and Seller elects not to, or cannot, make such material representation(s) true within the available time, then if Purchaser elects to accept such title as Seller can convey, the Purchase Price shall be reduced by the lesser of the sum of money required to make such representations true, or the Maximum Representation Expense. The acceptance of the Deeds by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of the Seller to be performed pursuant to the provisions of this Contract, except those, if any, which are herein specifically stated or made to survive the Closing and Seller shall have no further liability with respect to such untrue material representation(s). (f) Following the Closing, Seller agrees to maintain at least $50,000.00 in its operating account until the end of the calendar year in which the Closing occurs, it being understood that such amount shall not be deemed to be the limit of Seller's liability, if any, after the Closing Date. 26. CLOSING DOCUMENTS. At the Closing (unless otherwise expressly indicated): (a) Seller shall deliver to Purchaser the following items: (i) the Deed in accordance with Section 22 hereof. (ii) the Assignment of Space Leases exe- cuted by Seller, which assignment shall be in the form of Exhibit 1 attached hereto. (iii) duplicate originals, or if duplicate originals are not available, true and complete copies certified as true by Seller, of all of the Space Leases. (iv) to the extent in Seller's possession, the real estate tax bills then payable for the then current real estate tax year. (v) a duly executed certificate of Seller, in the applicable form set forth in Treasury Regulations Section 1.1445- 2 (b)(2). (vi) the checks, return and/or affidavit in accordance with Section 22 hereof. (vii) subject to the terms of Sections 26(a)(vii)(A)(B) and (C), below, at least three (3) business days prior to the Closing Date, estoppel certificates ("Estoppel Certificates"), in form and substance which does not vary materially from the form annexed hereto as Exhibit 2 executed by each of the Space Tenants; provided, however, with respect to Anchor Space Tenants, Seller shall only be required to deliver such Estoppel Certificates which are usual and customary for such Anchor Space Tenants (except that, other than for the Estoppel Certificate to be delivered by Wal-Mart Stores, Inc. [or its assignee] the Estoppel Certificates of all other Anchor Space Tenants shall cover at least the matters set forth in paragraphs 2 and 3 of Exhibit 2). 18
(A) If the required Estoppel Certificates cannot be timely delivered, or if the Estoppel Certificates which are timely delivered do not cover the material applicable matters set forth in Exhibit 2 Seller may, but shall not be obligated to, adjourn the Closing for a period not to exceed sixty (60) days, to obtain satisfactory Estoppel Certificates, or deliver its certificate ("Seller's Certificate") with respect to not more than forty (40%) percent of rentable square feet of space leased by non-Anchor Space Tenants as of the date hereof, covering all of the matters set forth in Exhibit 2 if no Estoppel Certificate is delivered by a Space Tenant or covering the matters not covered by an Estoppel Certificate which is delivered by a Space Tenant. Subsequent to the Closing, Seller may deliver to Purchaser Estoppel Certificates or supplemental Estoppel Certificates covering those matters not covered by the previously delivered Estoppel Certificates. Upon delivery of such Estoppel Certificates, Seller shall be entirely released from any liability arising out of Seller's Certificate delivered at the Closing as Seller's Certificate relates to the particular Space Tenant and/or Space Lease covered by the Estoppel Certificate, to the extent the information contained in such Estoppel Certificates is consistent with the information contained in Seller's Certificate. If Seller does not or cannot deliver an Estoppel Certificate or Seller's Certificate, Purchaser's
(A) If the required Estoppel Certificates cannot be timely delivered, or if the Estoppel Certificates which are timely delivered do not cover the material applicable matters set forth in Exhibit 2 Seller may, but shall not be obligated to, adjourn the Closing for a period not to exceed sixty (60) days, to obtain satisfactory Estoppel Certificates, or deliver its certificate ("Seller's Certificate") with respect to not more than forty (40%) percent of rentable square feet of space leased by non-Anchor Space Tenants as of the date hereof, covering all of the matters set forth in Exhibit 2 if no Estoppel Certificate is delivered by a Space Tenant or covering the matters not covered by an Estoppel Certificate which is delivered by a Space Tenant. Subsequent to the Closing, Seller may deliver to Purchaser Estoppel Certificates or supplemental Estoppel Certificates covering those matters not covered by the previously delivered Estoppel Certificates. Upon delivery of such Estoppel Certificates, Seller shall be entirely released from any liability arising out of Seller's Certificate delivered at the Closing as Seller's Certificate relates to the particular Space Tenant and/or Space Lease covered by the Estoppel Certificate, to the extent the information contained in such Estoppel Certificates is consistent with the information contained in Seller's Certificate. If Seller does not or cannot deliver an Estoppel Certificate or Seller's Certificate, Purchaser's sole remedy shall be to terminate this Contract and receive the return of the Deposit or to close title notwithstanding the lack of the Estoppel Certificate or Seller's Certificate without any reduction of the Purchase Price and without any liability of Seller relative thereto. (B) (1) In the event any Estoppel Certificate or Seller's Certificate shall indicate a default by landlord under a Space Lease (such default hereinafter being referred to as an "Estoppel Default"), then Seller may, but shall not be obligated to, elect to cure any such Estoppel Default and shall, for that purpose, be entitled to adjourn the Closing for a period not to exceed sixty (60) days, provided, however, that in the event Seller elects not to cure such Estoppel Default or is unable to cure such Estoppel Default within such period of time, Purchaser's sole remedy shall be as set forth in the last sentence of subparagraph (A) above. (2) Notwithstanding subsection 26(a)(vii)(B)(1), above, if, in Seller's good faith judgment either (x) the potential liability of any Estoppel Default is less than $250,000, and Seller indemnifies Purchaser from and against any and all claims, loss, liability, damage, cost or expense, including reasonable attorneys' fees, that may arise as a result of such Estoppel Default or (y) the potential liability of any Estoppel Default is $250,000 or more and Seller and Purchaser agree upon a mutually acceptable resolution to such Estoppel Default, then, the rights and obligations of the parties hereto shall not be affected thereby, this Contract shall remain in full force and effect and Purchaser shall, at the Closing, accept such Estoppel Certificate or Seller's Certificate, and the Space Lease corresponding thereto, subject to such Estoppel Default without any reduction of the Purchase Price. Subsequent to the Closing, Seller may deliver an Estoppel Certificate confirming that the Estoppel Default no longer exists, whereupon Seller shall be entirely released from any liability arising out of the indemnity, if any, given pursuant to clause (x) above. (viii) to the extent then in Seller's possession and control, copies of plans and specifications relating to the Property. (ix) a bill of sale without representation or warranty for any personal property (including tradenames and warranties, if any) being conveyed pursuant to this Contract; 19
(x) the Assignment of Service Contracts existing on the Closing Date executed by Seller, which assignment shall be in the form of Exhibit 3 attached hereto; and (xi) a title certification substantially in the form of Exhibit 5 attached hereto. (b) Purchaser shall (i) pay to Seller or as Seller may direct, the Purchase Price as provided in Section 3 hereof and (ii) pay all Mortgage Expenses. Escrowee shall deliver the Cash Deposit to Seller. (c) Purchaser shall execute, acknowledge (where required) and deliver to Seller: (i) the Assignment of the Space Leases. (ii) the Assignment of the Service Contracts.
(x) the Assignment of Service Contracts existing on the Closing Date executed by Seller, which assignment shall be in the form of Exhibit 3 attached hereto; and (xi) a title certification substantially in the form of Exhibit 5 attached hereto. (b) Purchaser shall (i) pay to Seller or as Seller may direct, the Purchase Price as provided in Section 3 hereof and (ii) pay all Mortgage Expenses. Escrowee shall deliver the Cash Deposit to Seller. (c) Purchaser shall execute, acknowledge (where required) and deliver to Seller: (i) the Assignment of the Space Leases. (ii) the Assignment of the Service Contracts. (iii) the checks, returns and/or affidavits in accordance with Section 22 hereof. (d) Seller and Purchaser shall execute a notice to each of the Space Tenants stating in substance that Purchaser has succeeded to Seller's interest as landlord under the Space Leases. 27. FURTHER ASSURANCES. The parties each agree to do such other and further acts and things, and to execute and deliver such instruments and documents (not creating any obligations additional to those otherwise imposed by this Contract), as either may reasonably request from time to time, whether at or after the Closing, in furtherance of the purposes of this Contract. The provisions of this Section 27 shall survive the Closing. 28. PURCHASER'S DUE DILIGENCE PERIOD. (a) Purchaser shall have the right to cancel this Contract on or before September 5, 1997 by notice to Seller and Escrowee of such cancellation to be received by Seller on or before such date (the period of time from the date hereof through and including September 5, 1997 is herein referred to as "Purchaser's Due Diligence Period"). If Purchaser duly cancels this Contract in accordance with this subparagraph, this Contract shall be deemed terminated and of no further force or effect and the Deposit shall be promptly returned to Purchaser. If Purchaser does not duly cancel this Contract in accordance with this subparagraph or if Purchaser waives its right to cancel this Contract, (i) this Contract shall remain in full force and effect and Purchaser shall have no further right to cancel this Contract under this subparagraph and (ii) Purchaser shall be deemed to have waived any liability of Seller and any right to refuse to consummate the Closing by reason of a misrepresentation, Non-Permitted Title Objection or other condition known to Purchaser as of the expiration of Purchaser's Due Diligence Period. 20
(b) Time shall be of the essence with respect to the dates in this Section for the expiration of Purchaser's Due Diligence Period and the giving of Purchaser's cancellation notice. (c) Notwithstanding anything to the contrary, if Purchaser's environmental and engineering consultants have not inspected the Property by August 8, 1997 Seller may elect to cancel this Contract in which event the Deposit shall be promptly returned to Purchaser. In the event Purchaser concludes based upon any of its due diligence investigations that it is not prepared to proceed to Closing it will promptly so notify Seller and cancel the Contract. (d) Purchaser agrees to keep confidential as hereinafter provided all information furnished to Purchaser by Seller concerning the Premises, including, without limitation, Space Leases, Loan Documents, Service Contracts or other contracts or agreements, various papers, documents, legal instruments, studies, brochures, computer output, and other material, and any discussions or visitations of the Premises (all of the aforementioned information is collectively referred to as "Evaluation Material"). (e) All Evaluation Material shall not be used or duplicated by Purchaser in any way detrimental to Seller, or for any purpose other than evaluating a possible purchase of the Property by Purchaser. Purchaser agrees to keep all Evaluation Material (other than information which is a matter of public record or is provided in other sources
(b) Time shall be of the essence with respect to the dates in this Section for the expiration of Purchaser's Due Diligence Period and the giving of Purchaser's cancellation notice. (c) Notwithstanding anything to the contrary, if Purchaser's environmental and engineering consultants have not inspected the Property by August 8, 1997 Seller may elect to cancel this Contract in which event the Deposit shall be promptly returned to Purchaser. In the event Purchaser concludes based upon any of its due diligence investigations that it is not prepared to proceed to Closing it will promptly so notify Seller and cancel the Contract. (d) Purchaser agrees to keep confidential as hereinafter provided all information furnished to Purchaser by Seller concerning the Premises, including, without limitation, Space Leases, Loan Documents, Service Contracts or other contracts or agreements, various papers, documents, legal instruments, studies, brochures, computer output, and other material, and any discussions or visitations of the Premises (all of the aforementioned information is collectively referred to as "Evaluation Material"). (e) All Evaluation Material shall not be used or duplicated by Purchaser in any way detrimental to Seller, or for any purpose other than evaluating a possible purchase of the Property by Purchaser. Purchaser agrees to keep all Evaluation Material (other than information which is a matter of public record or is provided in other sources readily available to the public other than as a result of disclosure thereof by Purchaser or Related Parties) strictly confidential; provided, however, that the Evaluation Material may be disclosed to the directors, officers, and employees and partners of Purchaser, and to Purchaser's attorneys and accounting firm, other consultants, underwriters and financial institutions (all of whom are collectively referred to as "Related Parties") who need to know such information for the purpose of evaluating a possible purchase of the Premises. These Related Parties shall be informed of the confidential nature of the Evaluation Material and shall be directed to keep all such information in the strictest confidence and use such information only for the purpose of evaluating a possible purchase by Purchaser. Purchaser will promptly, upon request of Seller, deliver to Seller all Evaluation Material furnished to them by Seller, whether furnished before or after the date hereof, without retaining copies thereof. Purchaser will direct Related Parties to whom Evaluation Material is made available not to make similar disclosures and any such disclosure shall be deemed made by and be the responsibility of Purchaser. (f) Purchaser shall have the right to conduct non-intrusive investigations of the Premises during the term of this Contract (including a Phase I environmental investigation and a structural analysis). Such investigations may be conducted by Purchaser or its designees, including, but not limited to engineers, accountants, architects and Purchaser's employees during normal business hours and upon reasonable advance notice to Seller provided there is no disturbance to or interference with the business of any Space Tenant. Purchaser hereby indemnifies and holds harmless Seller from and against any claims, costs, damages, liabilities or expenses (including reasonably attorneys' fees) incurred or, suffered by Seller by reason of damage or injury to persons or property caused by Purchaser's investigations. 21
(g) Seller agrees to deliver to Purchaser true and complete copies of all Space Leases (and any modifications thereof) in Seller's possession. (h) The provisions of Section 28(d), (e) and (f) shall survive the termination of this Contract. 29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS. (a) At the Closing, Seller and Purchaser shall each deliver any and all appropriate partnership consents or certificates by the secretary of each corporation (including any corporate general partner) certifying as to the corporate resolution authorizing this transaction. (b) Purchaser represents that: (i) it is, and will at the Closing be, a limited partnership duly organized and validly existing under the laws of Delaware and qualified to do business in the state in which the Property is located; (ii) the execution, delivery and performance of this Contract in accordance with its terms, do not violate the corporate charter, by-laws or certificate of incorporation of Purchaser, or any contract, agreement, commitment, order, judgment or decree to which Purchaser is a party or by which it is bound; (iii) Purchaser has the right,
(g) Seller agrees to deliver to Purchaser true and complete copies of all Space Leases (and any modifications thereof) in Seller's possession. (h) The provisions of Section 28(d), (e) and (f) shall survive the termination of this Contract. 29. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS. (a) At the Closing, Seller and Purchaser shall each deliver any and all appropriate partnership consents or certificates by the secretary of each corporation (including any corporate general partner) certifying as to the corporate resolution authorizing this transaction. (b) Purchaser represents that: (i) it is, and will at the Closing be, a limited partnership duly organized and validly existing under the laws of Delaware and qualified to do business in the state in which the Property is located; (ii) the execution, delivery and performance of this Contract in accordance with its terms, do not violate the corporate charter, by-laws or certificate of incorporation of Purchaser, or any contract, agreement, commitment, order, judgment or decree to which Purchaser is a party or by which it is bound; (iii) Purchaser has the right, power and authority to make and perform its obligations under this Contract; (iv) this Contract is a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms. Purchaser covenants and warrants that the representations in the preceding sentences of this Section 29(b) will be true on the Closing with respect to Purchaser or any permitted assignee of Purchaser; (v) Purchaser will have the right, power and authority to make and perform its obligations under this Contract without the need for governmental approval, consent or filing and this Contract shall be a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms and (vi) Purchaser has the current financial ability to pay the Purchase Price and otherwise perform its obligations under this Contract. (c) Purchaser represents and warrants that: (i) Purchaser is not an "employee benefit plan" as defined in Section 3 (3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA; (ii) the assets of the Purchaser do not constitute "plan assets" of one or more plans within the meaning of 29 C.F.R. Section 2510-101; (iii) Purchaser is not a "governmental plan" within the meaning of Section 3(32) of ERISA; (iv) transactions by or with Purchaser are not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans; and (v) Purchaser is not a "party in interest" to Seller within the meaning of ERISA. Purchaser covenants and warrants that the representations in the preceding sentences of this Section 28(c) will be true on the Closing. 30. MISCELLANEOUS. (a) This Contract and the Schedules and Exhibits annexed hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof, and except for any other documents executed contemporaneously herewith all understandings and agreements heretofore or simultaneously had between the parties hereto, including without limitation, any letter of intent or initial escrow agreement, are merged into and are superseded in their entirety by this Contract. 22
(b) This Contract may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the party against which any waiver, change, modification or discharge is sought. (c) The captions or article titles contained in this Contract and the Index, if any, are for convenience and reference only and shall not be deemed a part of the text of this Contract. (d) The terms "hereof," "herein," and "hereunder," and words of similar import, shall be construed to refer to this Contract as a whole, and not to any particular article or provision, unless expressly so stated. (e) The Schedules and Exhibits annexed hereto are hereby incorporated in and made part of this Contract. (f) All words or terms used in this Contract, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require.
(b) This Contract may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the party against which any waiver, change, modification or discharge is sought. (c) The captions or article titles contained in this Contract and the Index, if any, are for convenience and reference only and shall not be deemed a part of the text of this Contract. (d) The terms "hereof," "herein," and "hereunder," and words of similar import, shall be construed to refer to this Contract as a whole, and not to any particular article or provision, unless expressly so stated. (e) The Schedules and Exhibits annexed hereto are hereby incorporated in and made part of this Contract. (f) All words or terms used in this Contract, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. (g) This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns, if any, but nothing contained herein shall be deemed a waiver of the provisions of Section 21 hereof. None of the provisions of this Contract are intended to be, nor shall they be construed to be, for the benefit of any third party. (h) If a party is required to perform an act or give a notice on a date that is a Saturday, Sunday or national holiday, the date such performance or notice is due shall be deemed to be the next business day. (i) This Contract is to be governed and construed in accordance with the laws of the State of New York. (j) The terms "affiliates" and "subsidiaries" shall be given the same meaning as used in the broadest sense in any provision of the rules and regulations governing federal taxation and securities. (k) Neither Seller nor Purchaser may record this Contract or a memorandum of this Contract. Purchaser hereby waives, to the extent permitted by law, any right to file a lis pendens or other form of attachment against the Properties in connection with this Contract or the transactions contemplated hereby, other than a lis pendens or other such form of attachment that may be filed by Purchaser contemporaneously with the commencement by Purchaser of an action for a specific performance under Section 19 hereof. To the extent any such filing is made in violation of this Contract, Purchaser shall indemnify Seller against any damages incurred by Seller in connection therewith. In the event Purchaser shall be unsuccessful in an action for a specific performance, it shall immediately cause any lis pendens or other such form of attachment to be cancelled and removed from the public record. The provisions of this section shall survive the termination of this Contract. 23
(l) The parties acknowledge that this transaction contemplates only the sale and purchase of the Premises and that Seller is not selling a business nor do the parties intend that Purchaser be deemed a successor of Seller with respect to any liabilities of Seller to any third parties other than as set forth in this Contract and the Permitted Exceptions. Accordingly, except as set forth in this Contract, Purchaser shall neither assume nor be liable for any of the debts, liabilities, taxes or obligations of, or claims against, Seller, or of any other person or entity, of any kind or nature, whether existing now, on the Closing Date or at any time thereafter. The debts, liabilities, taxes, obligations and claims for which Seller alone is liable shall include, without limitation, all payments, benefits, and contribution obligations with respect to past and/or present employees of Seller or its Affiliates in connection with the business of Seller or its Affiliates (including, but not limited to, salaries, wages, commissions, bonuses, vacation pay, health and welfare benefits or contributions [including any group health continuation coverage obligation under COBRA], pension and/or profit sharing contributions, severance or termination pay, or any other form of compensation or employee benefit). (m) Seller shall operate the Premises in a manner sub- stantially consistent with its past practice. [SPACE INTENTIONALLY LEFT BLANK] 24
(l) The parties acknowledge that this transaction contemplates only the sale and purchase of the Premises and that Seller is not selling a business nor do the parties intend that Purchaser be deemed a successor of Seller with respect to any liabilities of Seller to any third parties other than as set forth in this Contract and the Permitted Exceptions. Accordingly, except as set forth in this Contract, Purchaser shall neither assume nor be liable for any of the debts, liabilities, taxes or obligations of, or claims against, Seller, or of any other person or entity, of any kind or nature, whether existing now, on the Closing Date or at any time thereafter. The debts, liabilities, taxes, obligations and claims for which Seller alone is liable shall include, without limitation, all payments, benefits, and contribution obligations with respect to past and/or present employees of Seller or its Affiliates in connection with the business of Seller or its Affiliates (including, but not limited to, salaries, wages, commissions, bonuses, vacation pay, health and welfare benefits or contributions [including any group health continuation coverage obligation under COBRA], pension and/or profit sharing contributions, severance or termination pay, or any other form of compensation or employee benefit). (m) Seller shall operate the Premises in a manner sub- stantially consistent with its past practice. [SPACE INTENTIONALLY LEFT BLANK] 24
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract the day and year first above written. SELLER:
Fed ID No.: 13-3598004 By /s/ Authorized Signature -----------------------------------Name: Title: DRM THIRTY-THREE REALTY CORPORATION,an Alabama corporation
PURCHASER:
Fed ID No.:
RAMCO-GERSHENSON PROPERTIES, L.P. By: RAMCO-GERSHENSON PROPERTIES TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature -----------------------------------Name: Title:
As to Section 24: ESCROWEE:
TENZER GREENBLATT LLP
BY /s/ Authorized Signature -------------------------------Name: Title:
25
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract the day and year first above written. SELLER:
Fed ID No.: 13-3598004 By /s/ Authorized Signature -----------------------------------Name: Title: DRM THIRTY-THREE REALTY CORPORATION,an Alabama corporation
PURCHASER:
Fed ID No.:
RAMCO-GERSHENSON PROPERTIES, L.P. By: RAMCO-GERSHENSON PROPERTIES TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature -----------------------------------Name: Title:
As to Section 24: ESCROWEE:
TENZER GREENBLATT LLP
BY /s/ Authorized Signature -------------------------------Name: Title:
25
SCHEDULE A: DESCRIPTION OF PROPERTY 1
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be affected by rent regulations or laws now or hereafter in effect, and rulings, decisions or interpretations by any
SCHEDULE A: DESCRIPTION OF PROPERTY 1
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be affected by rent regulations or laws now or hereafter in effect, and rulings, decisions or interpretations by any court, agency or administrative body. 3. Real estate taxes, vault taxes and water and sewer charges not due and payable (it being understood that the lien of real estate taxes payable in arrears shall be a Permitted Exception). 4. State of facts shown on Survey dated , last revised and Survey dated prepared by and such additional state of facts an accurate survey of the Premises may show. 5. Maintenance and Service Contracts pertaining to this Premises set forth on Schedule D to this Contract. 6. Violations of laws, regulations, ordinances, orders or requirements, if any, noted in or issued by any governmental or quasi- governmental department or authority having or asserting jurisdiction over the Premises issued subsequent to the date hereof, and any conditions constituting such violations, although not so noted or issued. 7. Rights of utility companies to lay, maintain, install, operate and repair pipes, lines, poles, wires, cables, conduits, cable boxes, distribution boxes and related equipment on, over and under the Property. 8. Additional usual and customary exclusions and exceptions from coverage obtaining in the standard form of insuring agreement employed by the Title Company at the standard rates of such Title Company. 1
SCHEDULE C RENT ROLL 1
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS The Chase Manhattan Bank 4 New York Plaza New York, New York 10004 A/C# 114-026610
SCHEDULE B: "SUBJECT TO" PROVISIONS 1. Any laws, regulations or ordinances presently in effect or which will be in effect on the Closing (including, but not limited to, zoning, building and environment protection) as to the use, occupancy, subdivision or improvement of this Property adopted or imposed by any governmental body or the effect of any noncompliance with or any violation thereof. 2. The Space Leases and the rights of Space Tenants thereunder pertaining to this Property listed on Schedule C attached to and forming part of this Contract to which this Schedule is attached as well as any permitted renewals or extensions thereof and any permitted new leases created after the date of this Contract as same may be affected by rent regulations or laws now or hereafter in effect, and rulings, decisions or interpretations by any court, agency or administrative body. 3. Real estate taxes, vault taxes and water and sewer charges not due and payable (it being understood that the lien of real estate taxes payable in arrears shall be a Permitted Exception). 4. State of facts shown on Survey dated , last revised and Survey dated prepared by and such additional state of facts an accurate survey of the Premises may show. 5. Maintenance and Service Contracts pertaining to this Premises set forth on Schedule D to this Contract. 6. Violations of laws, regulations, ordinances, orders or requirements, if any, noted in or issued by any governmental or quasi- governmental department or authority having or asserting jurisdiction over the Premises issued subsequent to the date hereof, and any conditions constituting such violations, although not so noted or issued. 7. Rights of utility companies to lay, maintain, install, operate and repair pipes, lines, poles, wires, cables, conduits, cable boxes, distribution boxes and related equipment on, over and under the Property. 8. Additional usual and customary exclusions and exceptions from coverage obtaining in the standard form of insuring agreement employed by the Title Company at the standard rates of such Title Company. 1
SCHEDULE C RENT ROLL 1
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS The Chase Manhattan Bank 4 New York Plaza New York, New York 10004 A/C# 114-026610 Tenzer Greenblatt LLP Attorney Trust Account ABA# 021-000021 Our Ref. C/M #18996-0102 1
SCHEDULE C RENT ROLL 1
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS The Chase Manhattan Bank 4 New York Plaza New York, New York 10004 A/C# 114-026610 Tenzer Greenblatt LLP Attorney Trust Account ABA# 021-000021 Our Ref. C/M #18996-0102 1
SCHEDULE E EXISTING MORTGAGE 1
SCHEDULE F LIST OF TAX PROTESTS None. 1
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs,
SCHEDULE D ESCROWEE'S WIRE TRANSFER INSTRUCTIONS The Chase Manhattan Bank 4 New York Plaza New York, New York 10004 A/C# 114-026610 Tenzer Greenblatt LLP Attorney Trust Account ABA# 021-000021 Our Ref. C/M #18996-0102 1
SCHEDULE E EXISTING MORTGAGE 1
SCHEDULE F LIST OF TAX PROTESTS None. 1
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs, expenses, claims, losses or damages, liabilities and judgments (including reasonable attorneys' fees and disbursements) which Assignor may suffer in respect of any claim arising out of any default on the part of Assignee to perform said terms, covenants and conditions or the security deposits. Except as may be expressly set forth in that certain Contract of Sale between Assignor and Assignee dated _________, 1997, this assignment is made without warranty or representation by the Assignor and without recourse to the Assignor in any manner whatsoever.
SCHEDULE E EXISTING MORTGAGE 1
SCHEDULE F LIST OF TAX PROTESTS None. 1
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs, expenses, claims, losses or damages, liabilities and judgments (including reasonable attorneys' fees and disbursements) which Assignor may suffer in respect of any claim arising out of any default on the part of Assignee to perform said terms, covenants and conditions or the security deposits. Except as may be expressly set forth in that certain Contract of Sale between Assignor and Assignee dated _________, 1997, this assignment is made without warranty or representation by the Assignor and without recourse to the Assignor in any manner whatsoever. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument if writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. 1
IN WITNESS WHEREOF, Assignor and Assignee have only executed this agreement this day of , 1997.
I.D. No.: --------------------------------------,
SCHEDULE F LIST OF TAX PROTESTS None. 1
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs, expenses, claims, losses or damages, liabilities and judgments (including reasonable attorneys' fees and disbursements) which Assignor may suffer in respect of any claim arising out of any default on the part of Assignee to perform said terms, covenants and conditions or the security deposits. Except as may be expressly set forth in that certain Contract of Sale between Assignor and Assignee dated _________, 1997, this assignment is made without warranty or representation by the Assignor and without recourse to the Assignor in any manner whatsoever. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument if writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. 1
IN WITNESS WHEREOF, Assignor and Assignee have only executed this agreement this day of , 1997.
I.D. No.: --------------------------------------, a ------------------------------------By: -----------------------------I.D. No.: INC., a --------------------------
EXHIBIT 1 FORM OF ASSIGNMENT AND ASSUMPTION OF SPACE LEASE ASSIGNMENT OF SPACE LEASE KNOW ALL MEN that ________________________, a ___________________________ ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from , ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to the leases, together with all security deposits presently held by Assignor in connection therewith (collectively, the "Leases") affecting the premises known as ________________________ more particularly described on Schedule A annexed hereto. TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of said Leases. AND Assignee does hereby acknowledge receipt of said Leases (including the security deposits) so delivered, and does hereby (a) accept the within assignment, (b) assume the performance of all the terms, covenants and conditions of the said Leases on the part of the lessor which are to be performed or which arise from and after the date hereof, and (c) indemnify and hold Assignor free and harmless from and against any and all costs, expenses, claims, losses or damages, liabilities and judgments (including reasonable attorneys' fees and disbursements) which Assignor may suffer in respect of any claim arising out of any default on the part of Assignee to perform said terms, covenants and conditions or the security deposits. Except as may be expressly set forth in that certain Contract of Sale between Assignor and Assignee dated _________, 1997, this assignment is made without warranty or representation by the Assignor and without recourse to the Assignor in any manner whatsoever. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument if writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. 1
IN WITNESS WHEREOF, Assignor and Assignee have only executed this agreement this day of , 1997.
I.D. No.: --------------------------------------, a ------------------------------------By: -----------------------------I.D. No.: INC., a --------------------------
By: ------------------------------
[SCHEDULE A - PROPERTY DESCRIPTION] 2
IN WITNESS WHEREOF, Assignor and Assignee have only executed this agreement this day of , 1997.
I.D. No.: --------------------------------------, a ------------------------------------By: -----------------------------I.D. No.: INC., a --------------------------
By: ------------------------------
[SCHEDULE A - PROPERTY DESCRIPTION] 2
EXHIBIT 2 FORM OF SPACE TENANT ESTOPPEL CERTIFICATE Tenant Estoppel Certificate , 1997 TO: RE: Lease with ___________ ("Landlord") for space in the __________ Shopping Center located in ___________, __________. Gentlemen: The undersigned, having the power and authority to do so, hereby certifies and affirms the following: 1. The undersigned is occupying the space demised by the above-referenced lease and the lease is in full force and effect. 2. Neither the undersigned nor, to the best of our knowledge, the landlord is in default under the lease. 3. The lease is unmodified or, if there have been modifications, they are referenced as follows:
4. The yearly amount of base rent payable by Tenant is $____________; current charges for common area maintenance, insurance and taxes are __________________ per month. Base rent has been paid through ____________ and additional rent for common area maintenance, insurance premiums and taxes has been paid through ______________. 5. The Landlord is currently holding a security deposit in the amount of $_____________. 6. The term under the lease commenced on _________________, and expires on ____________________.
EXHIBIT 2 FORM OF SPACE TENANT ESTOPPEL CERTIFICATE Tenant Estoppel Certificate , 1997 TO: RE: Lease with ___________ ("Landlord") for space in the __________ Shopping Center located in ___________, __________. Gentlemen: The undersigned, having the power and authority to do so, hereby certifies and affirms the following: 1. The undersigned is occupying the space demised by the above-referenced lease and the lease is in full force and effect. 2. Neither the undersigned nor, to the best of our knowledge, the landlord is in default under the lease. 3. The lease is unmodified or, if there have been modifications, they are referenced as follows:
4. The yearly amount of base rent payable by Tenant is $____________; current charges for common area maintenance, insurance and taxes are __________________ per month. Base rent has been paid through ____________ and additional rent for common area maintenance, insurance premiums and taxes has been paid through ______________. 5. The Landlord is currently holding a security deposit in the amount of $_____________. 6. The term under the lease commenced on _________________, and expires on ____________________. 1
This certification may be relied upon by the above addresses and their successors and assigns and any purchaser or mortgagee of the shopping center. TENANT:
BY: ____________________________ Its:______________________ Dated:_________________________ 2
EXHIBIT 3 FORM OF ASSIGNMENT OF SERVICE CONTRACTS
This certification may be relied upon by the above addresses and their successors and assigns and any purchaser or mortgagee of the shopping center. TENANT:
BY: ____________________________ Its:______________________ Dated:_________________________ 2
EXHIBIT 3 FORM OF ASSIGNMENT OF SERVICE CONTRACTS KNOW ALL MEN that ___________________________ ("Assignor"), in consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from ______________________________ ("Assignee"), does hereby assign, transfer and deliver onto Assignee, all of its right, title and interest in and to those certain service contracts relating to the operation or maintenance of the premises known as ___________________________, which service contracts are listed in Schedule A annexed hereto (the "Contracts"). TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions contained. AND Assignee does hereby acknowledge receipt of the Contracts so delivered, and does hereby (a) accept the within assignment and (b) assume the performance of all the terms, covenants and conditions of the Contracts on the Assignor's part to be performed thereunder from and after the date hereof. This assignment is made without warranty or representation by Assignor and without recourse to assignor in any manner whatsoever, express or implied. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns, and shall be governed by the laws of the State of _____________. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument in writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. 1
IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this _____ day of _______________ 1997. ASSIGNOR:
By:________________________________ ASSIGNEE:
EXHIBIT 3 FORM OF ASSIGNMENT OF SERVICE CONTRACTS KNOW ALL MEN that ___________________________ ("Assignor"), in consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from ______________________________ ("Assignee"), does hereby assign, transfer and deliver onto Assignee, all of its right, title and interest in and to those certain service contracts relating to the operation or maintenance of the premises known as ___________________________, which service contracts are listed in Schedule A annexed hereto (the "Contracts"). TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions contained. AND Assignee does hereby acknowledge receipt of the Contracts so delivered, and does hereby (a) accept the within assignment and (b) assume the performance of all the terms, covenants and conditions of the Contracts on the Assignor's part to be performed thereunder from and after the date hereof. This assignment is made without warranty or representation by Assignor and without recourse to assignor in any manner whatsoever, express or implied. This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns, and shall be governed by the laws of the State of _____________. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument in writing signed by the parties hereto. None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party. 1
IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this _____ day of _______________ 1997. ASSIGNOR:
By:________________________________ ASSIGNEE:
By:_________________________________ Name:
Title: 2
EXHIBIT 4 FORM OF LETTER OF CREDIT SEE ATTACHED 1
IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this _____ day of _______________ 1997. ASSIGNOR:
By:________________________________ ASSIGNEE:
By:_________________________________ Name:
Title: 2
EXHIBIT 4 FORM OF LETTER OF CREDIT SEE ATTACHED 1
EXHIBIT 5 FORM OF TITLE CERTIFICATION The undersigned, hereby certifies: THAT _________________________________________ ________________________________, is the owner ("Owner") of certain premises situated in the City/Village/Township of _______________________, County of _________________, State of __________, described in Commitment No. _________________________. CHECK ONE __________[] THAT during the period of 120 days immediately preceding the date of this certification no improvements or alterations have been made to the subject property by Owner and that no claims of laborers or materialmen remain unpaid (or if unpaid will be paid in the ordinary course of business) and that no material incorporated into the property is subject to a security interest (other than in connection with the Existing Mortgage). OR [] THAT during the period of 120 days immediately preceding the date of this certification certain work has been done and material furnished to or by Owner in connection with _______________________________________________ (state the general nature of work) upon said premises in the approximate total sum of $ _________ but that except as stated below all of said work and materials have been fully paid for. That to the knowledge of the undersigned said work was completed on ____________ and that no significant work remains to be done and that no significant material remains to be
EXHIBIT 4 FORM OF LETTER OF CREDIT SEE ATTACHED 1
EXHIBIT 5 FORM OF TITLE CERTIFICATION The undersigned, hereby certifies: THAT _________________________________________ ________________________________, is the owner ("Owner") of certain premises situated in the City/Village/Township of _______________________, County of _________________, State of __________, described in Commitment No. _________________________. CHECK ONE __________[] THAT during the period of 120 days immediately preceding the date of this certification no improvements or alterations have been made to the subject property by Owner and that no claims of laborers or materialmen remain unpaid (or if unpaid will be paid in the ordinary course of business) and that no material incorporated into the property is subject to a security interest (other than in connection with the Existing Mortgage). OR [] THAT during the period of 120 days immediately preceding the date of this certification certain work has been done and material furnished to or by Owner in connection with _______________________________________________ (state the general nature of work) upon said premises in the approximate total sum of $ _________ but that except as stated below all of said work and materials have been fully paid for. That to the knowledge of the undersigned said work was completed on ____________ and that no significant work remains to be done and that no significant material remains to be furnished to complete the work. Attached hereto is a list of all persons or companies which have furnished any labor or material (having a value in excess of $50,000) from the beginning of the construction, together with waivers in full form all of said parties. Work not completed or not paid for: __________________________________________. THAT only the following parties are direct tenants of Owner under written leases: Owner agrees not to cause any lien or other encumbrance to be filed against the premises on or after the date hereof. THAT this certification is made for the purpose of inducing Commonwealth Land Title Insurance Company to issue its title policy insuring the above-described premises. 2
THAT Owner hereby indemnifies and agrees to save harmless Commonwealth Land Title Insurance Company against any loss or expense, including attorneys' fees, sustained because any statement herein is false or inaccurate.
EXHIBIT 5 FORM OF TITLE CERTIFICATION The undersigned, hereby certifies: THAT _________________________________________ ________________________________, is the owner ("Owner") of certain premises situated in the City/Village/Township of _______________________, County of _________________, State of __________, described in Commitment No. _________________________. CHECK ONE __________[] THAT during the period of 120 days immediately preceding the date of this certification no improvements or alterations have been made to the subject property by Owner and that no claims of laborers or materialmen remain unpaid (or if unpaid will be paid in the ordinary course of business) and that no material incorporated into the property is subject to a security interest (other than in connection with the Existing Mortgage). OR [] THAT during the period of 120 days immediately preceding the date of this certification certain work has been done and material furnished to or by Owner in connection with _______________________________________________ (state the general nature of work) upon said premises in the approximate total sum of $ _________ but that except as stated below all of said work and materials have been fully paid for. That to the knowledge of the undersigned said work was completed on ____________ and that no significant work remains to be done and that no significant material remains to be furnished to complete the work. Attached hereto is a list of all persons or companies which have furnished any labor or material (having a value in excess of $50,000) from the beginning of the construction, together with waivers in full form all of said parties. Work not completed or not paid for: __________________________________________. THAT only the following parties are direct tenants of Owner under written leases: Owner agrees not to cause any lien or other encumbrance to be filed against the premises on or after the date hereof. THAT this certification is made for the purpose of inducing Commonwealth Land Title Insurance Company to issue its title policy insuring the above-described premises. 2
THAT Owner hereby indemnifies and agrees to save harmless Commonwealth Land Title Insurance Company against any loss or expense, including attorneys' fees, sustained because any statement herein is false or inaccurate. Dated this ____ day of _______, 1997. By: _______________________ Its: ______________________ Subscribed and sworn to before me this ______ day of __________, 1997. Notary Public
THAT Owner hereby indemnifies and agrees to save harmless Commonwealth Land Title Insurance Company against any loss or expense, including attorneys' fees, sustained because any statement herein is false or inaccurate. Dated this ____ day of _______, 1997. By: _______________________ Its: ______________________ Subscribed and sworn to before me this ______ day of __________, 1997. Notary Public County of ______________________ State of _______________________ My commission expires: _________ 3
*** [ACKNOWLEDGMENTS] *** EXHIBIT A BENEFITTED PROPERTY *** EXHIBIT B BURDENED PROPERTY 4
EXHIBIT 10.13 AGREEMENT Agreement (this "Agreement") made this 7th day of July, 1997 by and between DRM THIRTEEN REALTY CORPORATION, a Delaware corporation, DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation, DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation, DRM TWENTYFIVE REALTY CORPORATION, a Delaware corporation, DRM TWENTY-FOUR REALTY CORPORATION, a Delaware corporation, DRM EIGHTEEN REALTY CORPORATION, a Delaware corporation, DRM FOUR REALTY CORPORATION, a Delaware corporation, DRM TWENTY-TWO REALTY CORPORATION, a Delaware corporation, DRM SEVENTEEN REALTY CORPORATION, a Delaware corporation, DRM SIX REALTY CORPORATION, a Delaware corporation, DRM FOURTEEN REALTY CORPORATION, a Delaware corporation, KINGSPORT ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, all having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 (individually and collectively, "Seller") and RAMCOGERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, each Seller has entered into one or more contracts of sale (each a "Contract" and collectively the
*** [ACKNOWLEDGMENTS] *** EXHIBIT A BENEFITTED PROPERTY *** EXHIBIT B BURDENED PROPERTY 4
EXHIBIT 10.13 AGREEMENT Agreement (this "Agreement") made this 7th day of July, 1997 by and between DRM THIRTEEN REALTY CORPORATION, a Delaware corporation, DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation, DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation, DRM TWENTYFIVE REALTY CORPORATION, a Delaware corporation, DRM TWENTY-FOUR REALTY CORPORATION, a Delaware corporation, DRM EIGHTEEN REALTY CORPORATION, a Delaware corporation, DRM FOUR REALTY CORPORATION, a Delaware corporation, DRM TWENTY-TWO REALTY CORPORATION, a Delaware corporation, DRM SEVENTEEN REALTY CORPORATION, a Delaware corporation, DRM SIX REALTY CORPORATION, a Delaware corporation, DRM FOURTEEN REALTY CORPORATION, a Delaware corporation, KINGSPORT ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, all having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 (individually and collectively, "Seller") and RAMCOGERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, each Seller has entered into one or more contracts of sale (each a "Contract" and collectively the "Contracts") each dated July 7, 1997 with Purchaser with respect to each Property referred to in the Contracts (collectively, the "Properties"); and WHEREAS, Seller and Purchaser desire to supplement the terms and provisions of the Contracts as herein provided. NOW THEREFORE, the parties agree as follows: 1. Except as otherwise defined, all capitalized terms used herein shall have the same meanings ascribed to them in the Contracts. 2. In addition to any rights of Seller under the Contracts to adjourn the Closing, Seller shall have the right to adjourn the Closing under one or more of the Contracts to such date as would allow the Closing under all of the Contracts to occur simultaneously. The preceding sentence notwithstanding, if Seller adjourns the Closing under (a) the Contract relating to Highland Square, Crossville, Tennessee ("Crossville") pursuant to Section 4(c)(ii) thereof to satisfy the Existing Mortgage thereunder or (b) any Contract pursuant to Sections 6(d)(iii) or 12(c) for more than sixty (60) days, Seller shall not be entitled, solely by reason thereof, to adjourn the Closing under the other Contracts. 3. A default under any Contract or under this Agreement shall be deemed a default under all of the Contracts.
EXHIBIT 10.13 AGREEMENT Agreement (this "Agreement") made this 7th day of July, 1997 by and between DRM THIRTEEN REALTY CORPORATION, a Delaware corporation, DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation, DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation, DRM TWENTYFIVE REALTY CORPORATION, a Delaware corporation, DRM TWENTY-FOUR REALTY CORPORATION, a Delaware corporation, DRM EIGHTEEN REALTY CORPORATION, a Delaware corporation, DRM FOUR REALTY CORPORATION, a Delaware corporation, DRM TWENTY-TWO REALTY CORPORATION, a Delaware corporation, DRM SEVENTEEN REALTY CORPORATION, a Delaware corporation, DRM SIX REALTY CORPORATION, a Delaware corporation, DRM FOURTEEN REALTY CORPORATION, a Delaware corporation, KINGSPORT ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, all having an address c/o DRA Advisors, Inc., 1180 Avenue of the Americas, New York, New York 10036 (individually and collectively, "Seller") and RAMCOGERSHENSON PROPERTIES, L.P., a Delaware limited partnership having an address at 27600 Northwestern Highway (Suite 200) Southfield, Michigan 48034 ("Purchaser"). WITNESSETH: WHEREAS, each Seller has entered into one or more contracts of sale (each a "Contract" and collectively the "Contracts") each dated July 7, 1997 with Purchaser with respect to each Property referred to in the Contracts (collectively, the "Properties"); and WHEREAS, Seller and Purchaser desire to supplement the terms and provisions of the Contracts as herein provided. NOW THEREFORE, the parties agree as follows: 1. Except as otherwise defined, all capitalized terms used herein shall have the same meanings ascribed to them in the Contracts. 2. In addition to any rights of Seller under the Contracts to adjourn the Closing, Seller shall have the right to adjourn the Closing under one or more of the Contracts to such date as would allow the Closing under all of the Contracts to occur simultaneously. The preceding sentence notwithstanding, if Seller adjourns the Closing under (a) the Contract relating to Highland Square, Crossville, Tennessee ("Crossville") pursuant to Section 4(c)(ii) thereof to satisfy the Existing Mortgage thereunder or (b) any Contract pursuant to Sections 6(d)(iii) or 12(c) for more than sixty (60) days, Seller shall not be entitled, solely by reason thereof, to adjourn the Closing under the other Contracts. 3. A default under any Contract or under this Agreement shall be deemed a default under all of the Contracts.
4. (a) Except as provided in subparagraph (b) below, upon election by Purchaser or Seller to cancel or terminate a Contract for any reason whatsoever (including, but not limited to, pursuant to Sections 18, 19, 25, 26 or 28 thereunder) Seller may elect, for any or no reason whatsoever, to cancel all of the Contracts. Seller shall make such election by notice to Purchaser within fifteen (15) business days after (i) receipt of Purchaser's notice of canecellation or termination or (ii) giving Seller's notice of cancellation or termination. If Seller elects to cancel all of the Contracts, Seller shall reimburse Purchaser for its actual out-of-pocket expenses incurred in procuring environmental and engineering reports for each Property, not to exceed $6,500.00 per Property, provided that Purchaser delivers to Seller true and complete copies of the reports for which reimbursement is being requested together with a certification from each of the consultants or contractors who prepared the report stating that Seller may rely on the contents of the reports. Seller shall have no reimbursement obligation if any Contract is cancelled pursuant to Section 28 thereof or by reason of a default of Purchaser. (b) Notwithstanding the provisions of subparagraph
4. (a) Except as provided in subparagraph (b) below, upon election by Purchaser or Seller to cancel or terminate a Contract for any reason whatsoever (including, but not limited to, pursuant to Sections 18, 19, 25, 26 or 28 thereunder) Seller may elect, for any or no reason whatsoever, to cancel all of the Contracts. Seller shall make such election by notice to Purchaser within fifteen (15) business days after (i) receipt of Purchaser's notice of canecellation or termination or (ii) giving Seller's notice of cancellation or termination. If Seller elects to cancel all of the Contracts, Seller shall reimburse Purchaser for its actual out-of-pocket expenses incurred in procuring environmental and engineering reports for each Property, not to exceed $6,500.00 per Property, provided that Purchaser delivers to Seller true and complete copies of the reports for which reimbursement is being requested together with a certification from each of the consultants or contractors who prepared the report stating that Seller may rely on the contents of the reports. Seller shall have no reimbursement obligation if any Contract is cancelled pursuant to Section 28 thereof or by reason of a default of Purchaser. (b) Notwithstanding the provisions of subparagraph (a) above, Seller shall not have the right to elect that Purchaser be deemed to cancel all of the Contracts if Purchaser elects after the expiration of Purchaser's Due Diligence Period to cancel a Contract solely by reason of the provisions of Section 6(d)(ii) or Section 12 thereof. 5. Except with respect to the Existing Mortgage affecting Crossville, Purchaser may elect, by notice given to Seller on or before August 1, 1997, that Seller discharge any Existing Mortgage which was otherwise contemplated by a Contract to continue to encumber a Property. Such election by Purchaser shall be irrevocable. 6. Notwithstanding the provisions of Sections 8, 18 and 25 of the Contracts each reference to the sum of (a) $100,000 in Section 8, (b) the Maximum Title Expense in Section 18 and (c) the Maximum Representation Expense in Section 25, shall be deemed to be a reference to an aggregate amount with respect to all of the Contracts and all of the Properties. For example, if the sum of money required to remove a Non-Permitted Title Objection under Section 18(c) of a Contract exceeds the Maximum Title Expense (viz. $250,000) Seller shall have no obligation to remove any Non-Permitted Title Objection pursuant to Section 18(c) of any other Contract. 7. Any assignment permitted under Section 21 of the Contract shall be conditioned upon (a) the simultaneous assignment of all Contracts and this Agreement to the same Assignee and (b) the assumption by said Assignee of all obligations of Purchaser under the Contracts and this Agreement. Except as permitted pursuant to Section 21 of the Contract, this Agreement may not be assigned by Purchaser without the prior written consent of Seller. 8. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement the day and year first above written. SELLER: 2
Fed ID No.: 62-1405098 By /s/ Authorized Signature ---------------------------Name: Title: Fed ID No.: 13-3598004 By /s/ Authorized Signature ---------------------------Name: Title: DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation DRM THIRTEEN REALTY CORPORATION, a Delaware corporation
Fed ID No.: 62-1405098
DRM THIRTEEN REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ---------------------------Name: Title:
Fed ID No.: 13-3598004
DRM THIRTY-THREE REALTY CORPORATION, an Alabama corporation By /s/ Authorized Signature ---------------------------Name: Title:
Fed ID No.: 13-3598002
DRM THIRTY-TWO REALTY CORPORATION, an Alabama corporation By /s/ Authorized Signature ---------------------------Name: Title:
Fed ID No.: 62-1412732
DRM TWENTY-FIVE REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ---------------------------Name: Title:
Fed ID No.: 13-3554624
DRM TWENTY-FOUR REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ---------------------------Name:
Title: 3
Fed ID No.: 57-0896362 By /s/ Authorized Signature ----------------------------Name: Title: Fed ID No.: 62-1373896 By /s/ Authorized Signature ----------------------------Name: Title: Fed ID No.: 62-1412736 By /s/ Authorized Signature ----------------------------Name: Title: Fed ID No.: DRM SEVENTEEN REALTY CORPORATION, a DRM TWENTY-TWO REALTY CORPORATION, a Delaware corporation DRM FOUR REALTY CORPORATION, a Delaware corporation DRM EIGHTEEN REALTY CORPORATION, a Delaware corporation
Fed ID No.: 57-0896362
DRM EIGHTEEN REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ----------------------------Name: Title:
Fed ID No.: 62-1373896
DRM FOUR REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ----------------------------Name: Title:
Fed ID No.: 62-1412736
DRM TWENTY-TWO REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ----------------------------Name: Title:
Fed ID No.: 57-0902535
DRM SEVENTEEN REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ----------------------------Name: Title:
Fed ID No.: 58-1818283
DRM SIX REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ----------------------------Name: Title:
Fed ID No.: 58-1857903
DRM FOURTEEN REALTY CORPORATION, a Delaware corporation By /s/ Authorized Signature ----------------------------Name:
Title: 4
Fed ID No.: 13-3765439 By: DRM THIRTY-FOUR REALTY CORPORATION, a Delaware Corporation KINGSPORT ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
By /s/ Authorized Signature -------------------------------Name: Title:
PURCHASER:
Fed ID No.:
RAMCO-GERSHENSON PROPERTIES, L.P. By: RAMCO-GERSHENSON PROPERTIES TRUST,
Fed ID No.: 13-3765439
KINGSPORT ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: DRM THIRTY-FOUR REALTY CORPORATION, a Delaware Corporation
By /s/ Authorized Signature -------------------------------Name: Title:
PURCHASER:
Fed ID No.:
RAMCO-GERSHENSON PROPERTIES, L.P. By: RAMCO-GERSHENSON PROPERTIES TRUST, a Massachusetts Business Trust
By /s/ Authorized Signature -------------------------------Name:
Title: ESCROWEE: TENZER GREENBLATT LLP
BY /s/ Authorized Signature -------------------------------Name: Title:
5
ARTICLE 5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM (A) THE CONSOLIDATED BALANCE SHEETS, STATEMENTS OF OPERATIONS, STATEMENT OF SHAREHOLDERS EQUITY, STATEMENTS OF CASH FLOWS AND NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH (B) FORM 10-Q FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997.
PERIOD TYPE FISCAL YEAR END PERIOD START PERIOD END CASH SECURITIES RECEIVABLES ALLOWANCES INVENTORY CURRENT ASSETS PP&E DEPRECIATION TOTAL ASSETS CURRENT LIABILITIES BONDS PREFERRED MANDATORY PREFERRED COMMON OTHER SE TOTAL LIABILITY AND EQUITY SALES TOTAL REVENUES
9 MOS DEC 31 1997 JAN 01 1997 SEP 30 1997 2,407 0 5,190 0 0 0 335,902 12,508 342,870 14,538 168,045 0 0 0 117,771 342,870 0 42,211
ARTICLE 5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM (A) THE CONSOLIDATED BALANCE SHEETS, STATEMENTS OF OPERATIONS, STATEMENT OF SHAREHOLDERS EQUITY, STATEMENTS OF CASH FLOWS AND NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH (B) FORM 10-Q FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1997.
PERIOD TYPE FISCAL YEAR END PERIOD START PERIOD END CASH SECURITIES RECEIVABLES ALLOWANCES INVENTORY CURRENT ASSETS PP&E DEPRECIATION TOTAL ASSETS CURRENT LIABILITIES BONDS PREFERRED MANDATORY PREFERRED COMMON OTHER SE TOTAL LIABILITY AND EQUITY SALES TOTAL REVENUES CGS TOTAL COSTS OTHER EXPENSES LOSS PROVISION INTEREST EXPENSE INCOME PRETAX INCOME TAX INCOME CONTINUING DISCONTINUED EXTRAORDINARY CHANGES NET INCOME EPS PRIMARY EPS DILUTED
9 MOS DEC 31 1997 JAN 01 1997 SEP 30 1997 2,407 0 5,190 0 0 0 335,902 12,508 342,870 14,538 168,045 0 0 0 117,771 342,870 0 42,211 0 13,004 9,997 0 9,588 9,622 0 0 0 0 0 6,882 .97 .97