EXHIBIT 10.3
CONTRACT OF SALE
THIS AGREEMENT made as of this 4th day of August, 1997 between
VENTURE STORES, INC., a Delaware corporation whose address is 2001
East Terra Lane, O'Fallon, Missouri 63366-0110 (hereinafter,
"Seller"), and KRCV CORP., a Kansas corporation whose address is
3333 New Hyde Park Road, Suite 100, P. O. Box 5020, New Hyde Park,
New York 11042-0020 (hereinafter, "Purchaser").
W I T N E S S E T H:
WHEREAS:
1. Seller represents it owns (a) fee simple title to those
certain parcels of real estate (hereinafter collectively referred
to as the "Fee Parcels" and individually as a "Fee Parcel") located
and described as set forth in Exhibit 1 (Seller's tenancy-in-common
interest in and to certain land adjoining the Downer's Grove Fee
Parcel shall also be considered a Fee Parcel); and (b) the tenant's
entire right, title and interest in and to certain leases for
locations described in Exhibit 2 (hereinafter collectively referred
to as the "Leased Parcels " and individually as a "Leased Parcel"),
on each of which (except for the photo studio in O'Fallon,
Missouri, the distribution center in Corsicana, Texas [the
"Distribution Center"], and the land in North Richland Hills,
Texas) it currently operates or formerly operated a Venture retail
store. Each of such Fee and Lease Parcels is sometimes hereinafter
individually referred to as a "Parcel"; and all of same are
hereinafter collectively referred to as the "Parcels."
2. Seller wishes to sell and Purchaser wishes to purchase
Seller's fee or leasehold interests in and to such Parcels.
3. As a condition to such purchase, Purchaser has required
that Seller grant Purchaser certain option and other rights
regarding certain other leasehold interests of Seller, including
those subject to a certain Master Lease with Metropolitan Life
Insurance Company ("MetLife "), and Seller is willing to grant such
option and other rights.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. For this Agreement, the following expressions
shall have the meanings hereinafter set forth.
1.1 "Real Estate" means, with respect to each Parcel,
Venture's entire right, title and interest in and to the land
described on Exhibits 1 and 2 and all of the buildings, building
fixtures (including pylon structures), and other real property
improvements constructed thereon, but expressly excluding any Trade
Fixtures of Seller, as defined in the Venture Lease, other than the
Distribution Fixtures, which are included in this sale.
1.2 "Overlease" means any lease between a fee owner (or
lessee or ground lessee) as landlord and Venture as tenant,
covering or with respect to any Leased Parcel. That certain lease
dated September 16, 1985 between Cook County, Illinois, as landlord
and The May Department Stores Company, Seller's predecessor in
interest, covering certain land used as common areas in conjunction
with the Elston, Illinois Fee Parcel, Venture Store #168
(hereinafter the "Elston Lease"), shall also be considered an
Overlease. All Overleases as of the date hereof are listed on
Exhibit 6.
1.3 "Venture Store" means, with respect to any Parcel,
that portion thereof currently or formerly being occupied and used
by Venture as a Venture discount department store.
1.4 "Space Lease(s)" means all tenant ground lease(s),
space lease(s), license(s), concessions or other occupancy or use
agreements where Venture is the landlord, sublandlord or licensor,
including all modifications, addenda and supplements thereto and
guarantees thereof, applicable to any part of the Real Estate.
However, "Space Leases" will not include license, concession or
other occupancy or use agreements for departments of any Venture
Stores which would not in any event be binding upon or required to
be recognized by Purchaser by reason of termination on closing of
the Venture Store or otherwise. All existing Space Leases as of
the date hereof are listed on Exhibit 3.
1.5 "Direct Assignment Space Leases" means those Space
Leases listed on Exhibit 4.
1.6 "Collateral Assignment Space Leases" means those
Space Leases listed on Exhibit 5.
1.7 "Personal Property" means, with respect to each
Parcel, the relevant working files which are in the possession of
Seller and are required for the efficient operation of the Real
Estate, including sepias, drawings, surveys, plans and
specifications; and (unless needed by Seller to operate) all
licenses, permits, certificates of occupancy (or local equivalent)
in the possession of or available to Seller.
1.8 "Property" means, with respect to each Parcel,
collectively all of Seller's rights and interest in the Real Estate
and all the other assets described in Article 2.
1.8 "Closing Date" means the date referred to in
Section 9, and on which Closing occurs. "Closing" means the event
whereby title to all of the Property is actually conveyed by Seller
to Purchaser and the Purchase Price paid by Purchaser and received
by Seller in accordance with Section 3.
1.9 "Venture Lease" means a single, unitary net lease
for all of the rentable space in the Parcels currently occupied by
Venture or under Collateral Assignment Leases, in form acceptable
to Seller and Purchaser, to be entered into at Closing between
Purchaser as Landlord and Seller as Tenant.
1.10 "Permitted Exceptions" means, with respect to each
Parcel, (i) the lien of real estate taxes not yet due and payable,
and (ii) easements and other matters of record acceptable to
Purchaser, which acceptance shall be evidenced by Purchaser's
acceptance of deeds or assignments of leases. Mortgages, judgments
and other monetary liens (except for current taxes as aforesaid,
and except for the Principal Mortgage and mortgages on interest of
Landlords under Overleases where there is non-disturbance), and
leases other than the Space Leases shall not be Permitted
Exceptions.
1.11 "Insolvent" means the inability to pay debts in the
ordinary course of business as they mature; or unreasonably small
capital for the business intended to be conducted. In addition, a
person or entity is insolvent if the sum of its debts is greater
than the sum of all of its property at a fair valuation.
1.12 "Hazardous Substances" means any hazardous or toxic
substances, materials or wastes including, but not limited to, oil
and petroleum products, asbestos, PCBs and those substances,
materials, or wastes now or hereafter listed in the United States
Department of Transportation Hazardous Materials Table at Section
49 CFR 172.101 and amendments thereto, or such substances,
materials or wastes otherwise now or hereafter regulated under any
applicable federal, state or local laws covering the environment
and/or toxic or hazardous wastes or substances.
1.13 "Met Lease" means, collectively, that certain
Master Lease between MetLife as landlord and Venture as tenant
dated May 18, 1990, as amended by Amendments dated June 15, 1990
and August 16, 1990, and that certain lease of even date therewith
covering Bedford Park..
1.14 "Met Parcels" means, collectively, all land and
improvements leased to Venture under the Met Lease, and "Met
Parcel" means, individually, any leasehold or subleasehold interest
held by Venture as tenant in and to any individual location covered
by the Met Lease. All Met Parcels are set forth in Exhibit 14.
1.15 "Distribution Fixtures" means all machinery,
equipment, vehicles, fixtures, and trade fixtures (including
without limitation any racks, conveyor systems and forklifts) used
in the operation of the Distribution Center, including without
limitation those listed in Exhibit 16.
1.16 "Principal Parcels" means, collectively, Seller's
entire right, title and interest in and to all Parcels encumbered
by the Principal Mortgage, and "Principal Parcel" means,
individually, any such Parcel.
1.17 "Principal Mortgage" means that certain loan
agreement dated July 3, 1990 by and between Principal Mutual Life
Insurance Company ("Principal") and Seller, as amended, and any
mortgage, deed of trust or other lien on any Parcel securing the
debt referred to therein.
1.18 "Purchaser Designee" means any corporation wholly-
owned by Kimco Realty Corporation.
1.19 "Option Lease Parcels" means, collectively,
Seller's entire right, title and interest in and to certain leases
for locations described in Exhibit 15; and "Option Lease Parcel",
when used individually, refers to any such Parcel.
1.20 "Corsicana Option Contract" means that certain
agreement between Seller and Raymond Hayes dated May 7, 1992
wherein Seller has been granted an option to purchase approximately
11.56 acres of land adjacent to the Distribution Center.
2. SALE AND PURCHASE. Seller agrees to sell, convey, assign
and transfer to Purchaser (or, at Purchaser's option with regard to
any Leased Parcel, to a Purchaser Designee), and Purchaser agrees
to purchase and acquire from Seller (or, with regard to any Leased
Parcel at Purchaser's option, Purchaser agrees to cause a Purchaser
Designee to purchase and acquire), subject only to the Permitted
Exceptions:
(i) With regard to all Fee Parcels, all of Seller's right,
title and interest in and to: (a) The Real Estate, (b) land lying
in the bed of any street, road or avenue, opened or proposed, if
any, in front of or adjoining the Real Estate, strips or gores
adjoining the Real Estate, if any, (c) all appurtenances and
hereditaments appertaining to the Real Estate, including without
limitation any easements, (d) all awards made or to be made to
Seller for the Parcel or any part thereof by reason of a taking by
eminent domain or in lieu thereof, except as otherwise set forth in
the Venture Lease, (e) except as otherwise set forth in the Venture
Lease, any unpaid award for damages to the Real Estate by reason of
change of grade of any street (Seller hereby agreeing to execute
and deliver to Purchaser, on the Closing Date or thereafter, all
proper instruments for collection of any such award), (f) any
Personal Property, (g) any Direct Assignment Space Leases, and (h)
with regard to the Distribution Center, all Distribution Fixtures;
(ii) With regard to all Leased Parcels, all of Seller's
right, title and interest in and to (a) the Overlease and any
appurtenances pertaining thereto, including without limitation any
easements, (b) any Personal Property, and (c) any Direct Assignment
Space Leases.
3. PURCHASE PRICE. The "Purchase Price" for all of the
Property is a sum equal to (i) SEVENTY MILLION FIVE HUNDRED
THOUSAND ($70,500,000.00) DOLLARS (the "Cash Portion of the
Purchase Price" (subject to the conditions as to payment of
portions of same hereinafter set forth in this Article 3), plus
(ii) a sum equal to the outstanding principal balance on the
Closing Date of the Principal Mortgage; which shall be and be
deemed allocated among the Parcels for all purposes (including
without limitation payment of all Transfer Taxes and amounts of
title insurance premiums) as set forth in Exhibit 7 hereto. The
Purchase Price shall be payable as follows:
(a) The sum of Fifty-Five Million Fifty-Eight Thousand Four
Hundred Fifty-Nine and 74/100 ($55,058,459.745) Dollars shall be
payable at Closing (subject to any adjustments thereto specifically
set forth in this Agreement) by wire transfer of immediately
available federal funds to Seller's account.
(b) The sum of Two Million Two Hundred Sixty-Five Thousand
($2,265,000.00) Dollars will be paid, with respect to the Roeland
Park, Kansas Lease Parcel (Venture Store #22), and the sum of Two
Hundred Thousand ($200,000.00) Dollars will be paid, with respect
to the Forest Park, Illinois Lease Parcel (Venture Store #63) and
the sum of Two Hundred Thousand ($200,000.00) Dollars will be paid,
with respect to the Niles, Illinois Lease Parcel (Venture Store
#69), if, as and when the consent of the landlord under the
respective Overlease for each such Parcel to all transactions
contemplated hereby (i.e., assignment to Purchaser Designee,
sublease to Purchaser, and lease back to Venture), in form
reasonably acceptable to Purchaser, have been obtained. Seller
agrees to use its best efforts, including without limitation
bringing lawsuits, if required, to obtain such consents. If
despite the use of such best efforts and the bringing of such
lawsuits, it is adjudicated that either (or both) such landlord
consents may be denied, and as a result thereof the relevant
Overlease is canceled due to default, then (i) the Purchase Price
shall be reduced by (and Purchaser may retain) the amount set forth
in this paragraph allocable to such Parcel, (ii) such Parcel
shall, pursuant to the terms of the Venture Lease, be dropped
therefrom, and (iii) the annual Base Rent under the Venture Lease
shall, effective upon such termination, be reduced by an amount
equal to twelve and three-quarters (12.75%) percent of the amount
of the Purchase Price so retained by Purchaser.
(c) A sum of up to an aggregate of Twelve Million Seven
Hundred Thousand Seventy-Six Five Hundred Forty and 26/100
($12,776,540.26) Dollars will be paid, with respect to the Parcels
marked with an asterisk in Exhibit 8 , if, as and when the "Title
Conditions" (as hereinafter defined) are fully met within sixty
(60) days following the Closing. Such amount is hereinafter
referred to as the "Title Condition Purchase Price Portion". The
aggregate of all sums in the "Total Allocation" column of Exhibit
8 with regard to such asterisked Parcels is herein referred to as
the "Total Amount". If, as and when the Title Conditions are met
with regard to any Parcel in Exhibit 8, the amount of the Purchase
Price set forth in the Total Allocation column of Exhibit 8
allocable to such Parcel shall be deducted from the Total Amount.
When the Total Amount is equal to the then amount of the Title
Condition Purchase Price Portion, then (and only then) the amount
of the Purchase Price allocable to that Parcel shall be deducted
from the Title Condition Purchase Price Portion (up to, but not
more than, the remaining balance thereof) and paid to Seller. The
"Title Conditions" shall mean that Commonwealth Land Title
Insurance Company (or another national title company reasonably
acceptable to Purchaser) shall have issued, at Seller's sole cost,
an ALTA Form B Fee (or Leasehold, as the case may be) policy in the
amount set forth in the Total Allocation column of Exhibit 8 for
such Parcel, with extended coverage, and any affirmative insurance
reasonably requested by Purchaser, all in form reasonably
acceptable to Purchaser, and showing that Purchaser (or a Purchaser
Designee, if applicable) has valid and marketable title to such
policy, subject to no exception for intervening liens prior to
recording the deed and no other liens or encumbrances other than
(i) the Space Leases; (ii) for the Principal Parcels, the Principal
Mortgage; (iii) for Leased Parcels, fee mortgages provided there
is non-disturbance protection running to Purchaser; (iv) current
real estate taxes not yet due and payable; (v) reciprocal easement
agreements heretofore delivered to and reviewed by Purchaser; and
(vi) utility and other easements and other matters of record (other
than liens or instruments giving any party a possessory right or an
option to purchase) which do not either restrict or impair the use
of the Parcel for retail purposes or materially impair the value
thereof. If any such title report (on which a policy will be
based) shows a lien in an ascertainable dollar amount and Seller
does not make satisfactory arrangements with the title company to
remove same, the portion of the Purchase Price allocable to such
Parcel set forth in the Total Allocation column of Exhibit 8 shall
be reduced and the Title Condition Purchase Price Portion shall be
reduced (and Purchaser shall have no further obligation to pay
same) by a sum equal to the amount of any such lien. Seller agrees
to use its best efforts, at its sole cost, including without
limitation delivery of any instruments, affidavits, indemnities,
escrows, and/or bonds as the title company may reasonably request,
to cause all Title Conditions to be met as promptly as possible.
The provisions of this Section 3(c) shall not reduce or impair
Seller's liability for any breach of representation elsewhere set
forth in this Agreement, except and to the extent of the actual
reduction in the Purchase Price pursuant to the foregoing
provisions. If despite the use of such best efforts, the Title
Conditions are not fully met with respect to any Parcel within
sixty (60) days following Closing, then (i) the Purchase Price
shall be reduced by (and Purchaser may retain) the amount set forth
in this paragraph allocable to such Parcel, (ii) such Parcel shall
be dropped from the Venture Lease, (iii) the annual Base Rent under
the Venture Lease shall, effective upon such termination, be
reduced by an amount equal to twelve and three-quarters (12.75%)
percent of the amount of the Purchase Price so retained by
Purchaser, and (iv) Purchaser shall, at Seller's sole cost
(including without limitation payment of all transfer and recording
taxes), reconvey the Parcel to Seller without any liability to
Purchaser. Notwithstanding the foregoing: (i) Purchaser shall not
have to reconvey any Parcel unless and until Purchaser has retained
from the Title Condition Purchase Price Portion a sum which, after
deducting all other sums theretofore retained by Purchaser from the
Title Condition Purchase Price Portion, would equal the full amount
of such Parcel in the "Total Allocation" Section of Exhibit 8.
(d) A sum equal to the outstanding principal balance of the
Principal Mortgage on the Closing Date shall be paid by Purchaser
accepting title to the Principal Parcels, by assuming the Principal
Mortgage.
With regard to any amount of the Purchase Price not paid at
Closing pursuant to Section 3(b) and/or Section 3(c): If, for so
long as, and to the extent any of such amounts have not been either
(x) paid to Seller, or (y) retained or applied by Purchaser with no
obligation to pay same to Seller (such amounts which have not been
paid or retained as set forth in [x] or [y] being collectively
referred to as the "Aggregate Contingent Purchase Price"), Seller
shall receive, on a monthly basis (on the first day of each month)
a credit against Base Rent under the Venture Lease in an amount
equal to an annual rate of twelve and three-quarters (12.75%)
percent interest on the amount of the Aggregate Contingent Purchase
Price for the immediately preceding month (it being understood that
any such credit shall immediately cease to accrue with regard to
any portions of the Aggregate Contingent Purchase Price paid or
retained as set forth in [x] and [y]).
4. ADJUSTMENTS AND PRORATIONS.
4.1 As hereinafter set forth, at Closing Purchaser as
Landlord and Seller as Tenant shall enter into the Venture Lease
for all Parcels pursuant to which Seller as Tenant will continue to
be responsible for all real estate taxes, utilities, Overlease rent
and all other expenses regarding each Parcel (except as expressly
otherwise set forth in the Venture Lease), and will be entitled to
continue to collect rent under the Collateral Assignment Space
Leases. In view of the foregoing, there shall be no proration at
Closing of any of said items of income or expenses if and to the
extent same would not be appropriate.
4.2 Notwithstanding the foregoing, at Closing Seller shall
pay (or Purchaser at its option may take a credit against the
Purchase Price for) the following amounts with respect to each
Parcel (or all Parcels, as the case may be):
(a) Rent under the Venture Lease for the balance of the
month of August 1997;
(b) All payments required to be made to Landlord by the
Venture Lease for periods through and including August 31, 1997;
(c) All of the following expenses paid or incurred by
Purchaser in connection with the transaction contemplated hereby
for all Parcels: any and all transfer, conveyance, deed, recording
and/or documentary stamp taxes, fees and similar costs and charges
relating to, or with respect to, the conveyance and transfer of the
Property, and the execution and/or recordation of the Venture Lease
or any sublease from a Purchaser Designee to Purchaser (hereinafter
collectively referred to as "Transfer Taxes"); all title insurance
premiums, fees and charges for owners or leasehold title policies
in the aggregate amount of the Purchase Price, in form acceptable
to Purchaser including all endorsements Purchaser deems appropriate
in its sole discretion; all survey costs for survey preparation,
update, inspection and/or recertification; all costs of Purchaser's
environmental and/or physical consultant and/or inspections, and
all costs of Purchaser's outside counsels. Notwithstanding the
foregoing, Purchaser shall pay all costs of its in-house counsel
and shall not be entitled to reimbursement for such expenses.
4.3 Further notwithstanding the foregoing, all rent and
additional rent under the Direct Assignment Space Leases shall be
pro-rated and apportioned on the Closing Date, as of 11:50 P.M. of
the day immediately preceding Closing, in accordance with the
following provisions:
(a) Purchaser shall receive a credit at Closing for
base or minimum rent and any monthly estimates for taxes, CAM,
etc., under all Direct Assignment Space Leases for the period from
the Closing Date through and including August 31, 1997. Seller may
retain all August 1997 base or minimum rent and such monthly
escalation payments under all Direct Assignment Space Leases
(collectively "August Rents") it may have heretofore collected or
may hereafter receive; and Purchaser shall promptly pay over to
Seller the entire amount of any August Rents Purchaser may
hereafter receive;
(b) Real estate tax payments (other than those included
in August Rents) under Direct Assignment Space Leases shall be
prorated on a per diem basis as and when collected. Purchaser
shall not be obligated to make any payment or give any credit to
Seller on account of or by reason of any rental or other payments
which are unpaid as of the date of Closing, but shall be required
merely to turn over Seller's share of the same within thirty (30)
days if, as and when received by Purchaser after the Closing
(subject to Section 4.4). Purchaser shall not be required to
institute any action or proceeding to collect any rent
delinquencies;
(c) Percentage rent (i.e., that portion of the rent
payable to the landlord by the tenant under a Direct Assignment
Space Lease which is a percentage of the amount of sales or of the
dollar amount of sales), if any, payable under each Direct
Assignment Space Lease shall be prorated with respect to the lease
year thereunder in which the Closing occurs on a per diem basis as
and when collected. Any percentage rent collected by Purchaser
including any percentage rent which is delinquent and pertaining to
(i) an entire lease year or accounting period of a tenant under a
Direct Assignment Space Lease which ends on a date prior to the
date of Closing, and (ii) that portion of a lease year or
accounting period of such tenant covering a period prior to the
date of Closing where such lease year or accounting period begins
prior to the date of Closing and ends thereafter shall in both
cases (subject to Section 4.4) be paid to Seller within thirty (30)
days of receipt by Purchaser. Purchaser shall not be required to
institute any action or proceeding to collect any delinquent
percentage rent;
(d) Common area maintenance expenses and charges
relating to Direct Assignment Space Leases shall be prorated.
Seller shall be responsible for all common area expenses and
charges relating to Direct Assignment Space Leases incurred prior
to Closing, and Purchaser shall be responsible for the same
subsequent to Closing (subject to the relevant provisions of the
Venture Lease). All common area expense payments made by each
tenant and such charges paid under its Direct Assignment Space
Lease for the entire lease year during which the Closing occurs,
including end-of-year adjustments, if any, shall be prorated
between Seller and Purchaser in the following manner: Prior to
Closing, Seller shall deliver to Purchaser, with regard to each
Direct Assignment Space Lease Tenant required to pay common area
charges ("CAM Charges") under its lease, a detailed computation
showing all CAM Charge expenses incurred by Seller for the period
from the beginning of each such tenant's then current billing
period for CAM Charges (e.g., calendar year, lease year, etc.)
through the Closing Date, any CAM monthly estimates or charges
theretofore collected by Seller relating to such tenant
(hereinafter referred to as the "CAM Estimates"), and a bill for
the tenant's prorata share of CAM Charges (i.e., for CAM charges
through the Closing Date net of any such CAM Estimates), together
with all invoices and other evidence documenting such CAM Charges
in detail required by such tenant's lease. Purchaser, at its
option, may either:
(i) elect to send any such bills to tenants
promptly following Closing, in which event such
tenant shall pay any amount shown due directly
to Seller, and Purchaser shall have no
responsibility to collect same; or
(ii) elect to incorporate any bills prepared by
Seller into a single post-closing (as and when
appropriate for annual reconciliation or other
billing of CAM charges for any tenant) bill for
CAM Charges to such tenant, in which event such
single bill, as and when paid, shall be
apportioned between Seller and Purchaser based
on the ratio of pre-and post-Closing CAM
expenses (taking into account any CAM Estimates
retained by Seller at Closing); or
(iii) elect, post-Closing (as and when
appropriate for annual reconciliation or other
billing of CAM Charges for any tenant) to send
two bills to such tenant (i.e., one for
pre-Closing charges as prepared by Seller and
one for post-Closing charges), with such tenant
to pay Seller directly for unpaid pre-Closing
charges, if any.
Notwithstanding Purchaser's election above set
forth, any CAM Estimates for any tenant shall be retained by Seller
up to the amount of the pre-Closing CAM Charges payable by such
tenant as evidenced by such bills and computations delivered by
Seller at Closing, and any excess shall be paid or credited to
Purchaser at Closing.
4.4 In the event that there remains any unpaid base or
minimum rent under any Direct Assignment Space Lease for a period
prior to the month of Closing, all payments of base or minimum rent
received from such tenant shall be applied to sums owed Purchaser
before any part thereof shall be treated as belonging to Seller.
In the event that there remains any unpaid tenant receivable other
than base or minimum rent (including without limitation any tax,
CAM, insurance or percentage rent payments) for any period prior to
the Closing under any such lease, all payments received from any
tenant in arrears shall be applied to any sums owed Purchaser from
such tenant (whether base or minimum rent or any other amount)
before any part thereof shall be treated as belonging to Seller.
If at the time of Closing any tenants under any Direct Assignment
Space Leases owe Seller any money, Seller shall have the right,
subsequent to the Closing, to collect such sums directly from the
tenants including bringing lawsuits against the tenants (at
Seller's sole expense) for such collection; provided, however,
Seller agrees that any such legal action or collection shall not
include any disturbance of the possession, use or occupancy of the
tenants or any right to evict the tenants, whether pursuant to the
lease provisions or otherwise, and Purchaser shall not be obligated
to join in any lawsuit or in any other way to participate or
cooperate with Seller in its collection attempts, unless required
to by law for Seller to maintain its action, and in such event,
Purchaser will (at Seller's expense) join in such a lawsuit or
action only if the same does not include or require disturbance of
the possession of any tenants, as aforesaid.
4.5 All brokerage and leasing commissions or other
compensation due or accrued prior or subsequent to the date of
Closing to any broker, agent, or other person in connection with
any Parcel for brokerage or other services rendered to Seller or
any predecessor of Seller in connection with the management and/or
leasing of the Parcel (including without limitation any that may be
due at Closing or in the future, attributable to the execution or
renewal of any Space Lease) shall be credited to Purchaser to the
extent not paid by Seller prior to Closing (it being agreed that
payment of all of the foregoing shall be the sole responsibility of
Seller).
4.6 All prepaid rentals, other prepaid payments, security
deposits, electric, gas, sewer and water deposits deposited with
Seller by tenants, (including all accrued interest on all of the
foregoing, unless Seller is entitled to retain the benefit thereof)
under any Direct Assignment Space Leases shall all belong to
Purchaser and all shall be assigned and delivered to Purchaser at
the Closing. At Purchaser's option, Purchaser may take a cash
credit in the amount of all security deposits to be delivered to
Purchaser at Closing, and Seller may retain same.
4.7 Interest on the Principal Mortgage shall be pro-rated
as of 11:59 P.M. on the day preceding Closing.
4.8 Tax escrow deposits (if any) held by Principal shall be
assigned to Purchaser at Closing. Seller shall not receive a
credit in the amount thereof against the Purchase Price, but same
shall be taken into account in computing the initial tax payments
required to be made by Venture under the Venture Lease.
4.9 If, following the Closing, a claim should be made by
any entity, party or authority that it is entitled to receive
unpaid or additional Transfer Taxes, Seller shall be responsible to
and hereby agrees to pay any such claim as and when made (including
any interest and/or penalties thereon or in connection therewith).
Seller shall have the right to contest any such claim, provided it
deposits the amount claimed in escrow with Purchaser for payment if
such contest is unsuccessful. Seller shall and hereby agrees to
defend, indemnify and hold Purchaser harmless from and against any
claim, cost, loss or liability arising from or related to
non-payment of any Transfer Taxes.
4.10 The parties recognize that there will not be time,
prior to Closing, to obtain as-built surveys on all Parcels.
Accordingly, at Closing the sum of One Hundred Seventy-Five
Thousand ($175,000.00) Dollars shall be withheld from the Purchase
Price and applied by Purchaser to pay for the cost of surveys not
obtained by Closing and to pay the cost of post-Closing title
endorsements. Should Purchaser's actual cost of same be greater
than One Hundred Seventy-Five Thousand ($175,000.00) Dollars,
Seller will reimburse Purchaser for the excess on demand. Should
Purchaser's actual costs be less, Purchaser will promptly refund
the difference to Seller.
4.11 Purchaser shall not be responsible for any
charges, salaries, vacation pay or fringe benefits of employees of
Seller prior to or following the Closing and none of the foregoing
shall be prorated.
5. TITLE AND SURVEY.
5.1 Seller shall convey to Purchaser at Closing valid and
insurable fee (or leasehold, as the case may be) title to each
Parcel, subject only to the Space Leases and the Permitted
Exceptions.
5.2 If at Closing there shall exist on any Parcel a
mortgage or other lien of a specified or readily ascertainable
dollar amount(other than the Principal Mortgage and other than
mortgages on the fee of Leased Parcels) , Seller shall be required
to remove the same by payment, by bonding, or causing the Title
Company to insure over the same or otherwise.
5.3 At Closing, as a condition to Purchaser's obligations,
Purchaser shall be able to obtain (at Seller's expense as
aforesaid) a title insurance policy from Commonwealth Land Title
Insurance Company for each Parcel, in the amount of the Purchase
Price allocated thereto, subject only to the Permitted Exceptions
and otherwise in form acceptable to Purchaser (including any
endorsement and/or affirmative insurance Purchaser deems
appropriate in its sole judgment). Seller agrees to use its
diligent good faith efforts and take all necessary actions, at its
sole cost, to obtain, following Closing, any title endorsement or
affirmative insurance which Purchaser desires but which were not
obtainable at Closing.
6. HAZARDOUS WASTES. Seller represents and warrants (and it
shall be a condition precedent to Purchaser's obligation to
purchase at Closing) that, except as otherwise disclosed in written
reports delivered to Purchaser prior to Closing by Seller or by
Purchaser's environmental consultants or in Exhibit 11 or by any
other written environmental reports actually received by Purchaser
prior to Closing, as of the date of Closing: all Real Estate of
each Parcel is in compliance with and does not violate any
provisions of the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (as the same may be amended
from time to time) and/or of any other federal, state or local
environmental or other statute relating to Hazardous Substances;
and that Seller has never used the Parcel for the dumping or
storage of any Hazardous Substances and knows of no such use by any
other party and that there does not exist on, in or under any Real
Estate any Hazardous Substances. The provisions of this Section 6
shall survive the Closing.
7. COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER.
In order to induce Purchaser to enter into the transaction
herein set forth, Seller covenants, represents and warrants to
Purchaser the following, all of which shall be required to be true
and correct in all material respects on and as of the Closing Date
(except with respect to matters disclosed in information furnished
to Purchaser and its attorneys or disclosed on Exhibit 13 attached
hereto) as a condition precedent to Purchaser's obligations
hereunder, and all of which shall survive the Closing:
7.1 Seller (i) is a corporation, duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and is duly qualified as a foreign corporation and is in
good standing in each jurisdiction where a Parcel is located; and
(ii) has the requisite corporate power and authority and the legal
right to own, pledge, mortgage and operate its properties, to sell
(or assign leasehold interest in) the Parcels, to enter into the
Venture Lease and to conduct its business as now or currently
proposed to be conducted.
7.2 The execution, delivery and performance by Seller of
each of the documents to which it is a party are within the
corporate powers of Seller, have been duly authorized by all
necessary corporate action, including the consent of shareholders
where required, and do not (A) contravene the charter or by-laws of
Seller, (B) to Seller's best knowledge, violate any law (including,
without limitation, the Securities Exchange Act of 1934) or
regulation, or any order or decree of any court or governmental
instrumentality, (C) conflict with or result in a breach of, or
constitute a default under (except to the extent waived by any
lender), any material indenture, loan agreement, mortgage or deed
of trust or any material lease, agreement or other instrument
binding on Seller or any of its properties, or (D) result in or
require the creation or imposition of any lien upon any of the
property of Seller (other than the Venture Lease). This Agreement
has been duly executed and delivered by Seller. This Agreement is
(and each of the other documents to which Seller is or will be a
party), when delivered, will be a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with
its terms.
7.3 Seller has presented fairly its financial condition.
7.4 Seller has good and insurable fee or leasehold title to
all of the Real Estate (subject to the Permitted Exceptions), and
there are no monetary liens (including liens or retained security
interests of conditional vendors) of any nature whatsoever on any
of the Real Estate (except for the Principal Mortgage and mortgages
on the fee of Leased Parcels). Seller is not party to any
contract, agreement, lease or instrument, the performance of which,
either unconditionally or upon the happening of an event, will
result in or require the creation of a lien on any of the Real
Estate or otherwise result in a violation of this Agreement, except
as expressly permitted hereunder.
7.5 It is Seller's intent to use the proceeds of the sale
of the Properties for repayment of debt and/or general working
capital purposes; and such proceeds shall not be used in any manner
by Seller which will result in a breach or a default under any
existing agreement between Seller and any of its creditors.
7.6 There has been no material adverse change in the
business, assets, operations, prospects or conditions (financial or
otherwise) of Seller from and after the date representatives of
Seller and Purchaser first discussed the transaction herein
contemplated.
7.7 Seller is not Insolvent nor will it be rendered
Insolvent by this transaction.
7.8 Seller has filed or caused to be filed all tax returns
in which the liability for taxes is in excess of $50,000 and which
to the knowledge of Seller are required to be filed to date, and
has paid all taxes shown to be due and payable before delinquency
on said returns or on any assessments made (other than those being
contested in good faith by appropriate proceedings for which
adequate reserves have been provided on the books of Seller), and
no tax liens have been filed and, to the best knowledge of Seller,
no claims are being asserted by any taxing authority with respect
to any taxes.
7.9 Seller has been represented by counsel in connection
with the negotiation and drafting of this Agreement and all related
agreements, including the Venture Lease, and Seller has undertaken
its own independent investigation and review and, based upon such
investigation and review, and based on Seller's current financial
condition and its business plan, has determined in the exercise of
its business judgment that the transactions contemplated in this
Agreement (including without limitation the amount of the Purchase
Price and the terms of the Venture Lease) are fair and are in the
best interests of Seller and its shareholders and creditors.
7.10 Seller has not received notice from any
governmental authority, mortgagee, tenant, insurer or other party
with respect to any Parcel, (i) that either the Real Estate or the
use or operation of the improvements thereon is currently in
material violation of any zoning, environmental or other land use
regulations; (ii) that Seller is currently in material violation or
with the passage of time will be in material violation of the
requirements of any ordinance, law or regulation or order of any
government or any agency, body or subdivision thereof (including,
without limitation, the local building department) or the
requirements of any insurance carrier of Seller respecting the
Properties or Board of Fire Underwriters affecting any Parcel, or
that any investigation has been commenced, or is contemplated,
regarding any such possible violation; or (iii) asserting that
Seller is required to perform work at any Parcel and to Seller's
knowledge no such notice has been issued.
7.11 There is no pending material litigation brought
by or against Seller affecting any Property (including, without
limitation, the Real Estate, the Overleases, and the Space Leases)
or the operation of any Parcel except as set forth on Exhibit 12
(or as hereafter set forth in this paragraph). Seller has no
knowledge of any other such threatened material litigation which
affects any Property. The provisions of this paragraph shall not
apply to any litigation involving personal injury or property
damage that is fully covered by Seller's liability insurance.
Notwithstanding the foregoing, Purchaser acknowledges that Seller
has informed Purchaser of the existence of litigation involving
Venture Store #21 (in Kansas City) whereby Seller has exercised an
option to purchase certain leased land and the owner denies that
such exercise is valid (the "Kansas City Litigation"). Seller
agrees to use its best efforts, at its sole cost, to pursue the
Kansas City Litigation to a successful outcome (i.e., to a purchase
of such land). Seller shall keep Purchaser fully advised of the
progress of such litigation, including prompt delivery of all
papers. Purchaser will cooperate with Seller, if necessary, to
allow such litigation to be pursued in Purchaser's name. Seller
agrees that it will take such action in such litigation as
Purchaser may reasonably direct. Seller shall and hereby agrees to
defend, indemnify and hold Purchaser harmless from and against any
and all loss, claim, liability, expenses or damages of whatever
nature Purchaser may incur in any manner arising from or related to
the Kansas City Litigation. If Seller prevails and is adjudicated
to be allowed to purchase the land, Seller shall do so as promptly
as possible at its sole cost and expense. Seller shall
simultaneously, and without placing any further lien or encumbrance
thereon (except for the lien of the Principal Mortgage if required
thereunder), convey the land to Purchaser without cost (and Seller
shall pay any transfer taxes thereon and the cost of a title policy
in the amount of the purchase price therefor in favor of
Purchaser), and the lease originally relating to such land shall be
canceled. Seller shall not receive any rent credit against the
Venture Lease rent by reason of such transactions (provided that
Seller, from and after the aforementioned lease cancellation, shall
not longer have to pay the rent due under such land lease that it
was obligated to pay as Venture Lease tenant).
7.12 The Space Leases described in Exhibit 3 comprise
all the Space Leases presently existing for any Parcel and each is
in full force and effect; no Space Lease has been modified or
supplemented except (if at all) as set forth on Exhibit 3; Seller
has delivered to Purchaser true, correct and complete copies of
each instrument constituting any Space Lease; no rent has been paid
more than one month in advance by any tenant, and no tenant is
entitled to any current defense, credit, allowance or offset
against rental; the information set forth in Exhibit 3 is true,
correct and complete. To Seller's knowledge, there is no default
of either landlord or any material default of tenant under any of
the Space Leases, and to Seller's knowledge, no state of facts
which with notice and/or the passage of time would ripen into a
material default. There are no persons or entities (other than
Seller) entitled to possession of any Parcel other than those
listed on Exhibit 3 and licenses or concessions excepted from the
definition of Space Leases as provided in Section 1.2. No work or
installations are required of Seller under any Space Lease, and
Seller has fully completed all tenant improvements specified in any
Space Lease to be the responsibility of the landlord and has paid
all tenant construction allowances. There are no leasing
commissions due nor will any become due in connection with any
Space Lease, or the renewal thereof and no understanding or
agreement exists in regard to payment of any leasing commissions or
fees for future Space Leases. No Space Lease Tenant is entitled to
any free rent in lieu of a tenant improvement allowance or
otherwise. To Seller's knowledge, Seller has no obligations with
respect to contributing for or paying dues or charges to a
tenant's merchant's association.
7.13 To Seller's knowledge, there is no material
default by any party under any reciprocal easement agreement,
covenant or restriction, or other agreement of record affecting any
Parcel (hereinafter collectively the "Title Agreements"), and no
state of facts which with notice or the passage of time would
constitute such a material default. In amplification of the
foregoing, to Seller's knowledge, it has paid all amounts,
satisfactorily performed all work, and otherwise complied with all
provisions required to be paid, performed or complied with by the
owner (or occupant) of each and every Parcel under all Title
Agreements. Seller has delivered or caused to be delivered to
Purchaser true, correct and complete copies of each instrument
constituting any Title Agreement.
7.14 Seller will pay all general, special and
betterment assessments on any Property which are due and payable
(i.e., prior to delinquency) prior to the date of Closing.
7.15 There are not now and will not be on the date of
Closing any agreements or understandings relating to any Property
which would be binding on Purchaser, except for Title Agreements,
Overleases, and Space Leases, and no alterations, amendments or
waivers pertaining to the foregoing will be made by Seller except
with Purchaser's written approval prior to the date of Closing.
The existence of the agreements hereafter referred to in Sections
7.27, 7.29, 7.30 and the Environmental Agreement (as hereinafter
defined) shall not be deemed to violate the foregoing
representations.
7.16 The zoning classification of each Parcel is not
violated by the use(s) and/or improvements thereon on the date
hereof. To Seller's best knowledge, all permits and authorizations
necessary with respect to each Parcel for its use, operation and
occupancy are now in effect and will be in full force and effect as
of the date of Closing.
7.17 To Seller's best knowledge, no property other than
each Parcel is included in the tax assessment of each Parcel, and
there are no unpaid assessments for utility installations.
7.18 There are no on-site employees or hired persons
in connection with the management, operation or maintenance of any
Property for which Purchaser will have any responsibility.
Purchaser shall have no obligation, liability or responsibility
with respect to charges, salaries, vacation pay, fringe benefits or
like items subsequent to Closing, nor with any management or
employment agreements with respect to the Property.
7.19 Seller has no knowledge of any structural defects
in the improvements situated upon each Parcel. The heating and air
conditioning, plumbing, electrical and drainage systems at or
serving each Parcel and all facilities and equipment relating
thereto are in good condition and working order, and roofs are free
of leaks; except to the extent any such system or roof problem
would not materially impair normal store operation.
7.20 To Seller's best knowledge, there is presently
adequate parking at each Parcel to comply with the requirements of
all of the Space Leases, Title Agreements and the applicable zoning
laws (both individually and in the aggregate);
7.21 No tenant under a Space Lease, landlord under an
Overlease, party to a Title Agreement, or other person has any
option, right of first refusal or other right to purchase any
Parcel or any part thereof or interest therein, except as
specifically set forth in Title Agreements delivered to Purchaser
prior to Closing by Seller or the Title Company. No Landlord under
an Overlease has any right to cancel or terminate same or increase
the rent payable thereunder by reason of any of the transactions
set forth in this Agreement. Except for the consent of Cook
County, Illinois under the Elston Lease (which consent Seller
covenants to use its best efforts, at its sole cost, to obtain as
promptly as possible following Closing), no consent of any
Overlease landlord is required for any of the transactions set
forth in this Agreement (except for same which have already been
obtained and will be delivered to Purchaser at Closing).
7.22 Each Parcel has adequate drainage systems and
easements in place so that water freely runs off it and does not
pool or collect on any portion thereof in a manner that would
materially impair the operation of the store on the Parcel; and
such run-off does not violate the rights of any owners of adjacent
property.
7.23 To Seller's best knowledge, all construction
and/or maintenance work required by the terms of any Overlease,
Space Lease, or Title Agreement, or by any building, zoning or
other law, ordinance or regulation affecting any Property,
including without limitation any roadway and utility line
construction on the Parcel and/or adjacent property has been
completed and there are and will be no charges, liens or
assessments against any Parcel or Purchaser for any of same.
7.24 Seller knows of no pending or threatened eminent
domain proceedings against or affecting any Parcel.
7.25 The Overleases described in Exhibit 6 comprise all
the Overleases presently existing for any Parcel and each is in
full force and effect; no Overlease has been modified or
supplemented, except (if at all) as set forth on Exhibit 6; Seller
has delivered to Purchaser true, correct and complete copies of
each instrument constituting any Overlease; no rent has been paid
more than one (1) month in advance by Seller, and all rent and/or
additional rent due to date under any Overlease has been paid; the
information set forth in Exhibit 6 is true, correct and complete.
To Seller's knowledge, there is no default of either the landlord
or any material default of Seller under any of the Overleases, and
to Seller's knowledge, no state of facts exists which with notice
and/or the passage of time would ripen into a material default. No
work or installations are required of Seller except as specified
(if at all) in the Overleases, and in any case Seller has fully
completed all improvements specified in any Overlease to be the
responsibility of the tenant. There are no leasing commissions due
nor will any become due by Seller in connection with any Overlease.
To Seller's knowledge, Seller has no obligations with respect to
contributing for or paying dues or charges to a tenant's merchant's
association. Any consent required by any landlord under an
Overlease pursuant to the terms thereof to any of the contemplated
transactions in this Agreement (including without limitation
assignment of the Overlease to Purchaser or a Purchaser Designee,
sublease from a Purchaser Designee to Purchaser, and lease back to
Seller under the Venture Lease) have been obtained and delivered to
Purchaser.
7.26 Seller does not own, directly or indirectly
through any subsidiaries or joint ventures, any fee or leasehold
interests in any real property other than the Fee Parcels, the
Leased Parcels, the Met Parcels, the Option Lease Parcels, certain
Venture Stores where affiliates of Purchaser are the landlords,
leases for Venture Dollar Stores, and any other property elsewhere
specifically covered in this Agreement.
7.27 Griffith, Indiana 1979 Economic Development
Revenue Bond Financing.
7.27.1 With respect to the 1979 Economic Development
Revenue Bond Financing with the Town of Griffith, Indiana (the
"Griffith Financing"):
(a) Neither The May Department Stores Company nor
its successors and assigns is in breach of the Loan Agreement dated
as of March 1, 1979 by Town of Griffith, Indiana and The May
Department Stores Company (the "Griffith Loan Agreement" and,
together with the other documents or delivered in connection with
the Griffith Financing the "Griffith Documents").
(b) No lien on the Griffith Parcel has been
granted or arisen in connection with the Griffith Financing;
(c) The obligations of The May Department Stores
Company under the Griffith Documents are personal in nature and do
not and will not attach to or burden the Griffith Parcel. In no
event shall any actions or failures of act under the Griffith
Documents result in any lien or encumbrances on the Griffith Parcel
nor any liability against Purchaser or a Purchaser Designee; and
(d) Seller shall apply so much of the sales
proceeds it receives at Closing relating to all Parcels as is
necessary to fully pay off such obligation in accordance with
Section 5.5 of the Griffith Loan Agreement.
7.28 The Joint Improvement Agreement dated as of March
15, 1979 by Griffith Plaza Company and The May Department Stores
Company is no longer in effect; and no person or entity has any
outstanding obligations under such agreement.
7.29 Corsicana, Texas Tax Abatement Agreements.
7.29.1 As to each of the agreements dated May 4, 1992,
between Venture Stores, Inc. and each of the following (each a
"Corsicana Taxing Authority"): (a) Navarro County, (b) City of
Corsicana, (c) Corsicana Independent School District, and (d)
Navarro County Junior College District (collectively, the
"Corsicana Tax Abatement Agreements"):
Each of the Corsicana Tax Abatement Agreements (i)
is in full force and effect, and (ii) has not been
modified or terminated; and no default of Seller
exists under any of the Corsicana Tax Abatement
Agreements.
7.29.2 Seller covenants to use best efforts to obtain
the consent of each Corsicana Taxing Authority within ninety (90)
days after the closing date to the assignment by Seller to
Purchaser of the Corsicana Tax Abatement Agreements, in form
reasonably acceptable to Purchaser.
7.30 Corsicana, Texas Commitment.
7.30.1 With respect to the Commitment dated May 6,
1992 from the City of Corsicana to Seller (the "Corsicana
Commitment"), Seller represents that the commitment by the City of
Corsicana for a Five Hundred Thousand ($500,000.00) Dollar loan
referenced therein has never been utilized by Seller, and no debt
or other obligation has been incurred by Seller pursuant thereto or
in connection therewith.
7.30.2 Seller covenants to use best efforts to obtain
the consent of the City of Corsicana within ninety (90) days after
the closing date, to the assignment by Seller to Purchaser of the
Corsicana Commitment, in form reasonably acceptable by Purchaser.
7.31 All conditions to the grant of any and all Texas
Capital Fund moneys awarded to Seller in connection with the
construction of the Distribution Center and infrastructure relating
thereto have been satisfied; and no obligations or debts of Seller
exist with respect to such Texas Capital Fund moneys awarded to
Seller, except for One Hundred Forty-One Thousand One Hundred
Ninety-Seven and 95/100 ($141,197.95) (the "Disallowed Amount"),
which Disallowed Amount constitutes a personal debt of Seller. In
no event can the Disallowed Amount be assessed against Purchaser or
its successors or assigns after the transactions contemplated
hereby are consummated, nor can all or any of such Disallowed
Amount result in a lien against the Distribution Center Parcel.
7.32 Without limitation or impairment of any other
representations made in this Agreement, with regard to the Tulsa,
Oklahoma Leased Parcel (Venture Store #52): (i) no percentage rent
was payable by Seller for the most recently ended percentage rent
year under such Overlease; and (ii) by reason thereof, no consent
of the landlord under the Overlease is required for any of the
transactions contemplated by this Agreement (including without
limitation assignment of Overlease to Purchaser Designee, sublease
back to Purchaser, and partial subleases back to Seller under
Venture Lease), nor does such landlord have any right to terminate
such Overlease by reason of any of such transactions.
7.33 With regard to the Corsicana Option Contact: (i)
same is in full force and effect and has not been modified or
amended, nor has the option therein been exercised; (ii) a true,
correct and complete copy of same has been delivered to Purchaser;
and (iii) there exists no default by either party thereto.
Notwithstanding anything above contained, Seller shall not
be deemed to be in breach or default of or under any representation
or warranty set forth in Sections 6, 7.4, 7.10, 7.12, 7.13, 7.14,
7.19, 7.22, 7.23, or 7.25 if and to the extent the fact, event,
circumstance or condition causing or resulting in any such breach
of representation or warranty would (i) constitute a default under
the Venture Lease, and (ii) is fully cured by Seller (as tenant
under the Venture Lease) within the applicable grace period therein
set forth.
All of the representations, warranties and covenants made
by Seller in this Agreement exclude and except those matters
referred to in Exhibit 13.
8. COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER.
In order to induce Seller to enter into the transaction
herein set forth, Purchaser covenants, represents and warrants to
Seller the following, all of which shall be required to be true and
correct in all material respects on and as of the Closing Date as
a condition precedent to Seller's obligations hereunder, and all of
which shall survive the Closing:
8.1 Purchaser (i) is a corporation, duly organized, validly
existing and in good standing under the laws of the State of
Kansas, and is duly qualified as a foreign corporation in each
other jurisdiction where a Parcel is located and where the failure
to so qualify would have a material adverse effect on the financial
condition, operations, business, properties or assets of Purchaser;
(ii) has the requisite corporate power and authority and the legal
right to own and operate its properties, to buy the Parcels, to
enter into the Venture Lease and to conduct its business as now or
currently proposed to be conducted.
8.2 The execution, delivery and performance by Purchaser of
each of the documents to which it is a party are within the
corporate powers of Purchaser, have been duly authorized by all
necessary corporate action, including the consent of shareholders
where required, and do not (A) contravene the charter or by-laws of
Purchaser, (B) to Purchaser's best knowledge, violate any law
(including, without limitation, the Securities Exchange Act of
1934) or regulation, or any order or decree of any court or
governmental instrumentality, or (C) conflict with or result in a
breach of, or constitute a default under, any material agreement or
other instrument binding on Purchaser or any of its properties.
This Agreement has been duly executed and delivered by Purchaser.
This Agreement is (and each of the other documents to which
Purchaser is or will be a party), when delivered, will be a legal,
valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms.
8.3 Purchaser will not, on the Closing Date, cause any
lien to be placed on any Real Estate as collateral to finance the
acquisition of the Properties by Purchaser.
9. THE CLOSING.
9.1 The Closing of the sale and purchase of the Property
shall be held at Purchaser's offices at 3333 New Hyde Park Road,
Suite 100, New Hyde Park, New York 11042, at 9:00 A.M. on August 6,
1997.
9.2 At Closing, Purchaser shall pay the Purchase Price
adjusted in accordance with the relevant provisions of this
Agreement; and Purchaser shall execute and/or deliver corporate
resolutions and opinion of counsel. Purchaser shall also cause to
be executed (and a copy delivered to Seller) a sublease for any
Leased Parcel whose Overlease was assigned to a Purchaser Designee,
between such Purchaser Designee as landlord and Purchaser as
tenant.
9.3 At Closing, Seller shall execute and/or deliver to
Purchaser the following:
9.3.1 A special warranty deed (or the equivalent
thereof) for each Fee Parcel in proper recordable form, duly
executed and acknowledged by Seller, and conveying to Purchaser fee
simple absolute ownership of the Real Estate free and clear of all
liens, encumbrances and leases except for the Space Leases and
Permitted Exceptions.
9.3.2 An assignment of lease for each Overlease, in
recordable form, to Purchaser or at Purchaser's option to a
Purchaser Designee.
9.3.3 An assignment of lease for each Direct
Assignment Space Lease, in recordable form, to Purchaser or at
Purchaser's option to a Purchaser Designee.
9.3.4 A collateral assignment of Seller's right, title
and interest, free and clear of all liens, encumbrances and claims
(except for the Principal Mortgage) in and to all Collateral
Assignment Space Leases for each Parcel.
9.3.5 Notices to Overlease landlords, Space Tenants
and other parties to Reciprocal Easement Agreements (in each case
in compliance with any relevant requirements of any such document)
affecting any Parcel advising them of the transfer of the Parcel to
Purchaser.
9.3.6 An opinion or opinions of counsel substantially
confirming the representations in Sections 7.1 and 7.2 hereof, and
corporate resolutions of Seller authorizing the transaction
contemplated hereby.
9.3.7 All forms and returns required in connection
with payment of Transfer Taxes and/or recording the deeds.
9.3.8 The Venture Lease, in form acceptable to
Purchaser and Seller (which shall also be executed by Purchaser at
Closing). At Seller's request, Purchaser and Seller shall also
execute and deliver at Closing copies of recordable memoranda of
the Venture Lease for recordation respecting each Parcel.
9.3.9 FIRPTA affidavit in form reasonably satisfactory
to Purchaser to the effect that Seller is not a "foreign person."
9.3.10 Copies of all documents constituting Personal
Property (which copies may be delivered within 10 days following
Closing).
9.3.11 An estoppel and consent from Principal in form
reasonably satisfactory to Purchaser.
9.3.12 A consent from Bankers Trust Company in form
reasonably satisfactory to Purchaser.
9.3.13 Any consents of Overlease landlords or other
parties required for the transactions herein contemplated in form
reasonably satisfactory to Purchaser.
9.3.14 A bill of sale for the Distribution Fixtures,
and any other instruments (such as motor vehicle transfer documents
and/or release of existing UCCs) that may be necessary or
appropriate to transfer same to Purchaser.
9.3.15 Assignments of the Corsicana Tax Abatement
Agreements and Corsicana Commitment, in form acceptable to
Purchaser.
9.3.16 Assignments of the Texas Land Contract and
Maplewood Land Contract, in form acceptable to Purchaser.
9.3.17 An assignment of the Corsicana Option Contract
in form acceptable to Purchaser.
9.3.18 Seller agrees to use its best efforts to obtain
and deliver to Purchaser as promptly as possible post-Closing,
estoppels from all landlords under Overleases, tenants under Space
Leases, any other parties to REAs (to extent any of same are not
delivered at Closing), in the forms sent out to all such parties,
copies of which transmitted estoppel forms having been delivered to
Purchaser.
10. BROKERS. Purchaser and Seller each represents and warrants
that it dealt with no broker or finder in connection with this
transaction; and each agrees to defend, indemnify and hold the
other harmless from and against any and all loss, liability and
expense, including reasonable attorney's fees, the indemnified
party may incur arising by reason of the above representations
being false. The provisions of this Article 10 shall survive
Closing.
11. NOTICES. All notices, demands, requests, consents,
approvals or other communications (for the purpose of this Section
collectively called "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall
be valid only if in writing and sent by registered or certified
United States mail, return receipt requested, postage prepaid, or
delivered by Federal Express or UPS courier service, addressed as
follows:
To Purchaser: 3333 New Hyde Park Road
P. O. Box 5020
New Hyde Park, NY 11042-0020
Attention: Michael Flynn, President
with a copy to Bruce M. Kauderer, Esq.
at the same address.
To Seller: Venture Stores Inc.
2001 East Terra Lane
O'Fallon, MO 63366-0110
Attention: Executive Vice President -Finance
and Administration
with a copy to:
Venture Stores, Inc.
2001 East Terra Lane
O'Fallon, MO 63366-0110
Attention: Legal Department
12. ENTIRE AGREEMENT. This Agreement (including the Exhibits
attached hereto) contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior
or contemporaneous understandings, if any, with respect thereto.
This Agreement may not be canceled, modified, changed or
supplemented, nor may any obligation hereunder be waived, except by
written instrument signed by the party to be charged or by its
agent duly authorized in writing or except as otherwise expressly
provided herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties
hereto and their respective successors or assigns.
13. SURVIVAL. This Agreement, and all provisions hereof, shall
survive the Closing and continue in full force and effect
thereafter.
14. TITLES AND HEADINGS. Titles and headings of Articles and
Sections of this Agreement are for convenience of reference only
and shall not affect the construction of any provision of this
Agreement.
15. ATTACHMENTS. Each of the Exhibits and Schedules referred
to herein and attached hereto is an integral part of this Agreement
and is hereby incorporated in this Agreement by this reference.
16. FURTHER ASSURANCES. Seller and Purchaser each agree to do
such further acts and things and to execute and deliver such
additional agreements and instruments as the other may reasonably
require to consummate, evidence or confirm the sale or any other
agreement contained herein in the manner contemplated hereby.
17. MISCELLANEOUS. This Agreement shall extend to and be
binding upon the legal representatives, heirs, executors,
administrators, successors and assigns of the parties hereto. All
references to "Sections" and "Articles" shall be deemed to be
references to Sections and Articles of this Agreement unless
otherwise indicated or unless the context otherwise requires.
18. RULES OF CONSTRUCTION. The provisions of this Agreement
shall be construed, in all respects, without reference to any rule
or canon requiring or permitting the construction of provisions of
documents against the interest of the party responsible for the
drafting of the same, it being the intention and agreement of the
parties that this Agreement be conclusively deemed to be the joint
product of both parties and their counsel.
19. OPTIONS AND RIGHTS
19.1 Seller and Purchaser acknowledge that the spirit
and intent of this transaction is that Purchaser, for the Purchase
Price, would have the right to purchase all real estate assets of
Seller (or as many of same as Purchaser desired), and lease back
under the Venture Lease all space occupied by Venture and by
Collateral Assignment Leases. However, due to the abbreviated
period of time between the inception of this transaction and
Closing, Purchaser will not have adequate time to complete its due
diligence analyses/investigations, and/or to obtain the necessary
consents and documentation, regarding the Met Parcels, the Option
Lease Parcels, and the Springfield, Missouri Venture Lease Parcel
(Venture Store #3, hereinafter the "Springfield Parcel").
Accordingly, to induce Purchaser to pay the full Purchase Price at
Closing, notwithstanding that the Option Lease Parcels and Met
Leased Parcels and Springfield Parcel will not be included in this
transaction at Closing, Seller hereby irrevocably grants to
Purchaser the rights and options set forth in the following
sections of this Article 19 (it being agreed that the Purchase
Price shall be deemed to include the grant of such rights and
options without any additional consideration for same).
19.2 Met Parcels Options And Rights.
19.2.1 Seller, at Purchaser's request given at any
time within two (2) years following the Closing Date, shall cause
to be severed from the Met Lease pursuant to Section 17.01(b) of
the Met Lease up to three (3) Units, as such term is defined in the
Met Lease (the "Severed Units") and enter into New Leases (as such
term is defined in the Met Lease) with Met Life. Upon such
severance of the Severed Units, Seller shall assign the New Leases
to Purchaser or at Purchaser's option to a Purchaser Designee (and
separately assign to Purchaser or such Purchaser Designee any Space
Leases Purchaser designates as Direct Assignment Leases, whereupon
Purchaser shall sublease the Venture Store and any Collateral
Assignment Leases in such Severed Units back to Seller by causing
same to be incorporated into the Venture Lease. The rent under the
Venture Lease shall not be increased thereby, except that Seller
shall be required to pay, as additional rent, all rent and
additional rent under the New Leases as if same had been Overleases
included under the original Venture Lease at Closing (and said
annual rent may be reduced if there are Direct Assignment Leases
involved, as hereafter set forth). Seller shall pay all costs and
expenses in connection with, or contemplated by, the foregoing
severance, assignment and subleasing, including, but not limited
to, the following: all costs and expenses charged by Met Life; all
transfer, conveyance, recording and similar fees; all legal
expenses incurred in connection therewith, including, but not
limited to, the outside legal fees of Purchaser; the costs of
environmental surveys, structural reports and title insurance
relating to the Severed Units and all costs and expenses of any
kind or nature relating to such severance, New Leases, assignment
and subleasing. Seller shall cooperate at no cost to Purchaser in
connection with the transactions contemplated by this paragraph.
The Closing of any such Severed Unit shall be subject to the
provisions of Section 19.3, as if same were Option Lease Parcels
thereunder. There shall be no consideration payable to Seller by
Purchaser in connection with the transactions contemplated by this
paragraph. Purchaser shall have approval rights over the form of
any New Lease. Seller shall not amend, or permit to be amended,
the Met Lease in any manner that would increase the rent that would
otherwise be payable under the New Leases, adversely affect the
position of the tenant thereunder, or otherwise derogate, diminish
or reduce Purchaser's rights under this Section 19.2.
19.2.2 Seller hereby agrees for a period of five (5)
years following the Closing Date, to decline the exercise of any
right of first refusal, right of first offer or any other right to
purchase that Seller may have with respect to any transaction
entered into between Met Life (and/or any of its affiliates) and
Purchaser (and/or any of its affiliates). In amplification and not
in limitation of the foregoing, Seller hereby agrees to decline the
exercise of any right that Seller would otherwise have pursuant to
Article 22 of the Met Lease or otherwise to purchase any Units, the
Premises (as such term is defined in the Met Lease), or any other
interest of Met Life in the Met Lease or the Premises upon the
purchase of same by Purchaser or any of its affiliates.
19.2.3 Seller hereby agrees that Purchaser, effective
for a period of five (5) years from and after Closing, shall have
a right of first refusal with respect to any rights of first
refusal, rights of first offer or other purchase rights that Seller
may have under Article 22 or any other provision of the Met Lease.
Seller will deliver to Purchaser any notice or other correspondence
Seller may receive from MetLife promptly following receipt of same.
Accordingly, Seller will not waive any right it may have under
Article 22 or any other provision of the Met Lease. If Purchaser
elects to purchase any of the Units or other property offered to
Seller under Article 22 or any other provision of the Met Lease
(the "Offered Property"), Purchaser shall notify Seller of its
election whereupon Seller shall acquire the Offered Property and
reconvey it to Purchaser, or Seller shall cause the Offered
Property to be conveyed directly to Purchaser. All costs and
expenses of the exercise of the rights under Article 22 of the Met
Lease and the conveyance to Purchaser shall be borne by Seller. If
Purchaser causes Seller to take direct title to the Offered
Property, Purchaser shall cause adequate funds to be deposited with
Seller to accomplish same. In amplification and not in limitation
of the foregoing, Seller shall provide Purchaser with a copy of any
Offering Notice (as such term is defined in the Met Lease) within
five (5) days after receipt by Seller of such Offering Notice and
Purchaser shall control Seller's response to such Offering Notice.
Notwithstanding the foregoing, if Purchaser declines to purchase
the Offered Property, Seller shall be free to purchase same.
Further notwithstanding the foregoing, to the extent a grant of the
rights set forth in this Section 19.2 would constitute a default by
Seller under the Met Lease, they shall be and be deemed null and
void ab initio.
19.2.4 In addition to and not in limitation of the
rights set forth in Section 19.2.3, upon request(s) from Purchaser
at any time and from time to time for a period of five (5) years
from Closing, Seller shall request MetLife to make a Reconveyance
of one or more Excludable Parcels (as designated from time to time
by Purchaser) pursuant to Section 22.06 of the Met Lease. Seller
shall request that MetLife make such Reconveyance directly to
Purchaser or a Purchaser Designee. If MetLife is unwilling to so
directly convey, Seller will, simultaneously with the conveyance to
it, reconvey to Purchaser or a Purchaser Designee. All costs and
expenses of any such "Reconveyance" by MetLife and/or any
reconveyance to Purchaser, including without limitation any costs
and expenses of MetLife and/or any transfer taxes in connection
with same, shall be borne by Seller. Seller agrees to fully comply
with all provisions and conditions of, and take all actions (at its
sole cost) required by Section 22.06 and any other relevant
provision of the Met Lease necessary or appropriate to effectuate
the provisions of this Section 19.2.4.
19.2.5 In addition to and not in limitation of the
foregoing rights of Purchaser under this Section 19.2, subject to
Purchaser receiving any required consent or documentation from
MetLife, Seller hereby agrees that, for a period of two (2) years
following the Closing Date, Seller shall have the right and option,
in addition to the rights previously set forth in this Section
19.2, to acquire any or all of Seller's entire right, title and
interest in and to the Met Parcels, in the same manner, and subject
to the same terms and conditions, as if same were Option Lease
Parcels under Section 19.3, except that any such Met Parcels shall
be leased back to Venture under a separate unitary net lease on
same terms as Venture Lease (with appropriate rent adjustments).
19.3 Option Lease Parcels.
19.3.1 Seller hereby grants to Purchaser the
irrevocable right and option, exercisable on written notice to
Seller given at any time within two (2) years following the Closing
Date, to acquire Seller's entire right, title and interest in and
to any or all of the Option Lease Parcels. Such options may be
exercised at any time and from time to time within such two- (2)
year period as to any Option Lease Parcel or Parcels for which
said option has not been previously exercised.
19.3.2 Should Purchaser timely give an option exercise
notice regarding any Option Lease Parcel or Parcels, at the Closing
relating to such Option Lease Parcel(s) (which shall occur on a
date and at a place designated by Purchaser), Seller shall execute
such documents and instruments and take such other actions as
Purchaser may reasonably request, including without limitation any
documents that would have been executed at Closing had such Option
Lease Parcel(s) been acquired by Purchaser at Closing, including
without limitation collateral assignments for any Space Leases
Purchaser desires to constitute Collateral Assignment Leases, and
direct assignments of any Space Leases Purchaser desires to
constitute Direct Assignment Leases. Notwithstanding the
foregoing, if Purchaser desires to make any Space Leases Direct
Assignment Leases, the Venture Lease shall be amended to provide
Seller an annual rent credit thereunder with regard to annual net
cash flow under each such Direct Assignment Lease computed in the
manner set forth in Section 19.07 of the Venture Lease. The
Closing of such Option Lease Parcel(s) shall also be subject to all
terms and conditions (except those which, by their express context
or clear implications, are clearly irrelevant or inappropriate) of
this Agreement in the same manner as if such Option Lease Parcel(s)
had originally been acquired at Closing; including without
limitation (i) including appropriate portions of same under the
Venture Lease without any increase in rent (other than rent and
additional rent under any Overlease relating thereto); (ii)
Seller making all relevant representations and warranties set forth
in this Agreement regarding such Option Lease Parcel(s) as of the
Closing Date thereof; (iii) such apportionments as of Closing of
such Option Lease Parcel(s) as may be appropriate, consistent with
Section 4 hereof; and (iv) Seller to pay at Closing all expenses
relating to such Option Lease Parcel(s), as set forth in Section 4
hereof. Purchaser may not exercise an option on any Option Lease
Parcel if the landlord would have the right to cancel by reason
thereof, unless a waiver of such cancellation right is obtained;
and Seller, on Purchaser's request, agrees to use diligent good
faith efforts to obtain any such waiver.
19.3.3 With regard to all Option Lease Parcels, as
well as all Met Lease Parcels, following the Closing Seller shall
have the right to enter into Space Leases for portions of same as
long as same are at fair market rent, and to take such other
commercially reasonable actions as it deems necessary concerning
the ownership and operation of same.
19.4 Springfield Parcel.
19.4.1 Seller has informed Purchaser that, with regard
to the Springfield Parcel, The May Department Stores Company
("May") currently has an obligation to pay approximately Four
Hundred Forty-Eight Thousand ($448,000.00) Dollars per year of the
annual Overlease rent (the "May Obligation"). However, the May
Obligation would terminate upon a transfer of the Springfield
Parcel without May's consent. Seller agrees to use its diligent,
good faith efforts to obtain and deliver to Purchaser May's consent
that the May Obligation will continue notwithstanding a transfer to
Purchaser (or a Purchaser Designee), a possible sublease from a
Purchaser Designee to Purchaser, and a leaseback to Seller, as if
the Springfield Parcel had been included as a Leased Parcel at
Closing (the "Springfield Consent"). If and when the Springfield
Consent is obtained, the Springfield Parcel shall be considered an
Option Lease Parcel, and Purchaser shall have all of the same
rights with regard to same set forth in Section 19.3; except that
if Purchaser exercises such option within such two- (2) year
period, at the Closing thereof (i) Purchaser shall pay to Seller
the sum of Four Million ($4,000,000.00) Dollars, and (ii) the
Venture Lease shall be amended to increase the annual Base Rent
thereunder by the amount of Five Hundred Ten Thousand ($510,000.00)
Dollars.
19.5 Rockford, Illinois Parcel
19.5.1 Seller has informed Purchaser that the landlord
of the Rockford, Illinois Overlease (Venture Store #151) would have
the right to terminate such Overlease if same were originally
included in this transaction at Closing. Seller agrees to use its
diligent, good faith efforts to obtain from such landlord a waiver
of its right to terminate (notwithstanding an assignment to
Purchaser or a Purchaser Designee, a possible sublease from a
Purchaser Designee to Purchaser, and a leaseback to Seller, as if
the Rockford Parcel had originally been included in the Closing),
or alternatively, evidence (including if requested an opinion of
outside counsel) that said termination right has expired; in each
case in form satisfactory to Purchaser (furnishing such
satisfactory waiver or evidence being herein referred to as the
"Rockford Condition"). Upon meeting the Rockford Condition, the
Rockford Parcel shall be considered an Option Lease Parcel, and
Purchaser shall have all of the same rights with regard to same set
forth in Section 19.3; except that if Purchaser exercises such
option within such two- (2) year period, at the Closing thereof (i)
Purchaser shall pay to Seller the sum of Five Hundred Thousand
($500,000.00) Dollars, and (ii) the Venture Lease shall be amended
to increase the annual Base Rent thereunder by the amount of Sixty-
Three Thousand Seven Hundred Fifty ($63,750.00) Dollars.
20. TEXAS LAND CONTRACT.
20.1 Notwithstanding anything to the contrary set
forth in this Agreement, Purchaser acknowledges that Seller has
informed it that the undeveloped land owned by Seller in North
Richland Hills, Texas (the "Texas Land") is subject to an option
contract to purchase same dated July 31, 1997 between Seller as
seller and Trademark Capital Investments LLC as purchaser (the
"Texas Land Contract").
20.2 Seller represents and warrants that a true,
correct and complete copy of the Texas Land Contract has heretofore
been delivered to Purchaser; that same is in full force and effect
and has not been modified or amended nor have any material notices
or waivers been delivered thereunder; and that Seller has neither
given nor received any notice of default to or from the Purchaser
thereunder, and Seller is not aware of any fact or circumstance
which, with notice or the passage of time, might constitute a
default by either party thereto.
20.3 At Closing, the Texas Land shall be conveyed to
Purchaser (and leased back to Seller) subject to the Texas Land
Contract; and Seller shall assign to Purchaser Seller's entire
right, title and interest in and to the Texas Land Contract,
including any down-payment or deposit theretofore made by the
purchaser thereunder (and Purchaser shall receive a credit for any
option payment or down-payment previously made to Seller
thereunder).
20.4 If the closing of the Texas Land Contract should
occur, then (i) Purchaser may retain all proceeds thereof, and
(ii) from and after such Texas Land Contract closing, such land
shall ipso facto be deleted and surrendered from the Venture Lease
and Seller shall receive a credit against the annual Base Rent
under the Venture Lease in a sum equal to twelve and three-quarters
(12.75%) percent of the "Net Sales Proceeds." Net Sales Proceeds
shall mean the excess of (x) all amounts received by Purchaser
from the purchaser on account of the sale net of pro-rations,
including any down-payments and/or option payments theretofore
made; over (y) all expenses incurred by Purchaser in connection
with such transaction, including without limitation any transfer
taxes, title premiums and expenses, legal fees, and/or brokerage
commissions, and any amounts required to be paid to Banker's Trust
to release its lien.
20.5 Seller hereby agrees to and shall defend,
indemnify and hold Purchaser harmless from and against any loss,
claims, liabilities or damage Purchaser may incur in connection
with taking an assignment of the Texas Land Contract and/or
consummating the closing thereunder, including without limitation
any liability for breach of representation or indemnities or
environmental liability under the Texas Land Contract. There shall
be no Venture Lease Base Rent credit for any amount paid or due to
Purchaser under this Article 20.5.
20.6 Purchaser agrees to act in a commercially
reasonable manner as to any amendments, extensions or modifications
requested by such purchaser in order to facilitate a closing so
long as the purchase price under the Texas Land Contract is not
reduced by more than twenty (20%) percent.
21. INTENTIONALLY OMITTED.
22. POST-CLOSING INSPECTION.
Following Closing, Seller shall, upon request, give
Purchaser access to Seller's books and records with respect to the
operation of the Parcels for the calendar year in which Closing
occurs and for the previous calendar year, for purposes of
verifying collections and remittances and the preparation by
Purchaser of financial statements and reports with respect to the
Parcels. Such books and records shall be made available to
Purchaser at reasonable times and upon reasonable advance notice to
Seller, and without any expense to Seller or charge to Purchaser.
23. ENVIRONMENTAL AGREEMENT.
23.1 Reference is hereby made to the Environmental
Agreement dated May 13, 1991, by and among Seller, Pept Investment
Corporation (formerly known as Skil Corporation) ("Pept") and
Emerson Electric Co. ("Emerson"), with respect to 5033 North Elston
Avenue, Chicago, Illinois, Venture Site No. 168 (the "Elston
Parcel"), as amended by the Memorandum of Understanding by and
among Seller, Pept and Emerson (such Environmental Agreement as
amended by the Memorandum of Understanding being hereby sometimes
referred to as the "Environmental Agreement").
23.2 It is the intention of Seller and Purchaser that
all the benefits of the Environmental Agreement run in favor of
Purchaser. Accordingly, Seller shall take all action that is
necessary, at Seller's sole cost and expense, to (1) keep the
Environmental Agreement in full force and effect; (2) post all
letters of credit, bonds and other security as required by the
Environmental Agreement; (3) submit when required all financial
statements and reports and other items as required by Section 15 of
the Environmental Agreement; (4) comply with all terms and
conditions of the Environmental Agreement; (5) take such other
action as Purchaser reasonably requests in order to cause Purchaser
to receive the benefits of the Environmental Agreement or to
otherwise consummate the intent of these provisions.
23.3 Seller shall not take any action or consent or
give its approval to any matter under the Environmental Agreement
without Purchaser's prior written consent. If requested by
Purchaser, Seller shall assign the Environmental Agreement to
Purchaser. Seller shall pay all amounts, without reimbursement by
Purchaser, required under the Environmental Agreement including,
but not limited to, the amounts required to be paid pursuant to
Section 8 of the Environmental Agreement. Seller shall not hire
any consultants or engineering firms without Purchaser's prior
written consent. Seller shall be solely responsible for all
remediation required with respect to the Elston Parcel, and Seller
shall not undertake any remediation without Purchaser's prior
written consent. Seller shall provide Purchaser with copies of all
notices received by Seller in connection with the Environmental
Agreement. Seller shall cause all environmental and other
insurance to name Purchaser as an additional insured or named
insured, as the case may be. Seller shall not waive any claim
against Pept or Emerson without Purchaser's prior written consent.
Seller hereby assigns to Purchaser all rights and causes of action
that Seller may have against Emerson or Pept or any other third
party with respect to the Contamination, as such term is defined in
the Environmental Agreement.
IN WITNESS WHEREOF, Seller and Purchaser have executed this
Agreement as of the day and year first above written.
WITNESSES: SELLER:
/s/Thomas L. Story VENTURE STORES, INC.
/s/Karren M. Prasifka By:/s/ Russell Solt
Name:
Title:
WITNESS: PURCHASER:
/s/Bruce M. Kauderer KRCV CORP.
/s/Steven M. Kornblau By:/s/ Milton Cooper
Name:
Title:
The undersigned, Purchaser's parent corporation, hereby
executes this Agreement for the sole purpose of agreeing to
unconditionally guarantee the following post-Closing obligations
of Purchaser: (i) to pay all amounts to Seller if, as and when
due under Sections 3(b) and (c); and (ii) to reconvey any of the
Parcels if, as and when required pursuant to the provisions of
Section 3(c). This is a continuing guaranty of performance and
not collection.
KIMCO REALTY CORPORATION
By:/s/Milton Cooper
Name:
Title:
SCHEDULE OF EXHIBITS
Exhibit 1 Fee Parcels
Exhibit 2 Leased Parcels
Exhibit 3 Schedule of Space Leases
Exhibit 4 Schedule of Direct Assignment Space Leases
Exhibit 5 Schedule of Collateral Assignment Space Leases
Exhibit 6 Schedule of Overleases
Exhibit 7 Purchase Price Allocation
Exhibit 8 Schedule of Title Condition Amounts
Exhibit 9 Intentionally Omitted
Exhibit 10 Intentionally Omitted
Exhibit 11 Intentionally Omitted
Exhibit 12 Litigation
Exhibit 13 Seller Disclosures
Exhibit 14 Met Parcels
Exhibit 15 Option Lease Parcels
Exhibit 16 Distribution Fixtures