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EXHIBIT (10)(ee)
PURCHASE AND SALE AGREEMENT
BETWEEN
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS, AS SELLER
AND
NORTHEASTERN SECURITY DEVELOPMENT CORP., A NEW YORK CORPORATION, AS PURCHASER
HUNTINGTON GARAGE, CLEVELAND, OHIO
EFFECTIVE DATE: OCTOBER 26, 2000
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of this
26th day of October, 2000 (the "Effective Date"), by and between FIRST UNION
REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS, an Ohio business trust, and
NORTHEASTERN SECURITY DEVELOPMENT CORP., a New York corporation.
WITNESSETH:
In consideration of and upon the terms and conditions herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. Except as may otherwise be expressly provided herein,
and in addition to other defined terms contained herein, the following terms,
for all purposes of this Agreement, have the respective meanings set forth
below:
"ASSIGNMENT AND ASSUMPTION OF CONTRACTS" means an assignment in the
form of EXHIBIT 5.2(d) attached hereto, to be executed and acknowledged by
Seller and Purchaser, pursuant to which Seller assigns to Purchaser, and
Purchaser assumes, all of Seller's right, title and interest under the Contracts
and the Other Assets, from and after the Closing.
"ASSIGNMENT AND ASSUMPTION OF GROUND LEASES" means an assignment in
the form of EXHIBIT 5.2(b) attached hereto, to be executed and acknowledged by
Seller and Purchaser, pursuant to which Seller assigns to Purchaser, and
Purchaser assumes, all of Seller's right, title and interest under the Ground
Leases from and after the Closing.
"BALANCE OF THE PURCHASE PRICE" means the Purchase Price (a) less
the Deposit (to the extent then held by Escrowee), and (b) plus or minus the net
sum of the prorations, allocations, charges, credits, withholdings and other
adjustments as provided in this Agreement.
"BILL OF SALE" means the bill of sale in the form of EXHIBIT 5.2(c)
attached hereto, to be executed and delivered by Seller, pursuant to which
Seller transfers and assigns, and Purchaser accepts, the right, title and
interest of Seller in and to the Personalty owned by Seller and used in
connection with the management and operation of the Garage.
"BROKER" means Eastern Consolidated, New York, New York, and
Brandon Wiant Converse, Cleveland, Ohio.
"BUSINESS DAY" means, collectively, any day other than a Saturday,
Sunday or legal holiday in the State of Ohio.
"CLOSING" means the transfer of title to the Property to Purchaser
and the related transactions required by the terms of this Agreement to occur
contemporaneously therewith.
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"CLOSING DATE" means December 22, 2000, provided, however, that
Seller shall have the right and option, in its sole discretion, to extend the
Closing Date from December 22, 2000 to January 16, 2001 by written notice given
to Purchaser by no later than November 22, 2000, as either such date for Closing
may be further extended pursuant to the provisions of Sections 2.4(b), 4.3, 5.1
and 8.3 hereof, or some other date for Closing that is mutually agreed to by the
parties.
"CLOSING DOCUMENTS" means the Seller Closing Documents and the
Purchaser Closing Documents without distinction between them.
"CONFIDENTIAL INFORMATION" means the terms of this Agreement and
all information or documentation reviewed or received by Purchaser from Seller
and its brokers, employees, agents and contractors in connection with either
this Agreement or the Property.
"CONTRACTS" means all (a) service, maintenance, and repair
contracts (excluding recorded documents evidencing the Permitted Exceptions)
relating to the Garage and to which Seller is a party that are listed in EXHIBIT
C, attached hereto and made a part hereof, and (b) equipment leases to which
Seller is a party that are listed in EXHIBIT C, attached hereto, and all rights
and options of Seller thereunder, including rights to renew or extend the term
or purchase leased equipment, relating to equipment or property located in or
upon the Garage and used by Seller in connection therewith.
"CUTOFF DATE" means 11:59 p.m. on the day preceding the Closing
Date.
"DAMAGE NOTICE" shall have the meaning set forth in Section 8.1
hereof.
"DAMAGES" means any and all actual losses, costs, claims,
liabilities, damages, obligations, judgments, settlements, awards, offsets, fees
and expenses (including, without limitation, reasonable attorneys' fees and
expenses), fines, penalties, and charges.
"DEPOSIT" shall mean the sum of One Million Dollars ($1,000,000),
together with any additional amounts deposited with Escrowee pursuant to and in
accordance with the provisions of Section 5.1 hereof.
"DISAPPROVAL NOTICE" means a written notice given by Purchaser
identifying any title matter related to the Property which Purchaser disapproves
pursuant to Section 4.3.
"EFFECTIVE DATE" shall have the meaning set forth in the first
sentence of this Agreement.
"EMPLOYEES" means the on-site employees of Seller at the Garage as
of the Effective Date.
"ENVIRONMENTAL LAW" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as
amended, or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901
et seq.), as amended, or any counterpart thereof applicable in the State of
Ohio.
"ESCROWEE" means LandAmerica National Commercial Services, 1300 E.
9th Street, Suite 1201, Cleveland, Ohio 44114, Attention: Deborah
Lawrence-Auten.
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"ESTOPPEL CERTIFICATES" means estoppel certificates dated no
earlier than forty-five (45) days of the Closing Date as to the status of the
following described leases, signed by the lessor thereof:
(a) Boalt Ground Lease
(b) Lake Ground Lease
(c) Pugh Ground Lease
such certificates to be in the form required by each such lease, and confirming
that the Ground Leases are in full force and effect and have not been modified
except as described in Exhibit A, and that Seller, as the lessee thereunder, is
not in default of any of the terms, covenants and conditions thereof.
"FILING DOCUMENTS" shall have the meaning set forth in Section 5.4
hereof.
"FINAL PRORATION STATEMENT" shall have the meaning set forth in
Section 6.4(b) hereof.
"GARAGE" means a 1,129 space, 6 level automobile parking garage
located on the Real Property and commonly known as the "Huntington Garage",
Cleveland, Ohio.
"GARAGE INFORMATION" means the following existing information that
is within Seller's possession or control, or reasonably obtainable by Seller,
wherever located, with respect to the Property: structural, mechanical,
environmental, geotechnical or other engineering studies, Plans, surveys,
summaries, the Contracts, the Ground Leases, and all other contracts, agreements
and/or documents relating to the Property.
"GROUND LEASES" means, collectively, the three ground leases
described in Exhibit A hereto, which are sometimes herein referred to
respectively as the "Boalt Ground Lease", the "Lake Ground Lease", and the "Pugh
Ground Lease".
"INSURANCE POLICIES" means the liability and property damage
insurance policies for the Garage listed in EXHIBIT 7.2 attached hereto.
"LAWS" means all applicable laws, ordinances, rules, regulations,
codes, orders and requirements of any federal, state or local governmental
authority, including, without limitation, the Americans With Disabilities Act of
1990 (the "ADA") and regulations promulgated thereunder.
"LIENS" means any liens and/or security interests that encumber any
part of the Real Property, Personalty or Other Assets owned by Seller,
including, but not limited to, mortgages, deeds of trust, mechanics,
materialmen's, judicial, tax or governmental liens of any nature whatsoever
relating to the Real Property, Personalty or Other Assets.
"MATERIAL CONTRACTS" means any contracts or other agreements that
would require performance (in whole or in part) by Purchaser on or after the
Closing Date.
"OTHER ASSETS" means (a) all warranties and guaranties of design,
construction, materials, buildings, and improvements comprising the Real
Property and claims with respect thereto, if any; (b) all Plans, (to the extent
same are owned by Seller and/or are within Seller's possession and/or control);
(c) all warranties with respect to the Personalty, if any; (d) all logos,
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trademarks, trade names, and service marks associated with the Property, but
excluding those that are owned by any third party; (e) all telephone numbers and
facsimile numbers, if any, designated for the Garage; (f) License granted by
letter dated March 10, 1969 from The Union Commerce Bank to Investment Plaza
Company authorizing installation of flood lights on the roof of the parking
garage building for illumination of the east side of the Investment Plaza
Building, a true, correct and complete copy of which is attached hereto and made
a part hereof as Exhibit E; (g) License granted by letter dated May 25, 1971
from The Union Commerce Bank to Investment Plaza Company authorizing
communications conduit through the garage building from the Investment Plaza
Building to the Park (Penton) Plaza Building, a true, correct and complete copy
of which is attached hereto and made a part hereof as Exhibit F; (h) License
granted by letter dated December 8, 1971 from The Union Commerce Bank to The
Penton Publishing Company authorizing the opening and use of a three foot by
four foot hole in the wall between the garage building and the Penton Plaza
Building and parking space No. 380 on the fourth floor of the garage building, a
true, correct and complete copy of which is attached hereto and made a part
hereof as Exhibit G; (i) License granted by letter dated March 4, 1974 from The
Union Commerce Bank to Consolidated Paint & Varnish Corp. authorizing a vent for
an exhaust fan from the premises on the second floor of the Investment Plaza
Building into the garage building, a true, correct and complete copy of which is
attached hereto and made a part hereof as Exhibit H; (j) such rights as First
Union Real Estate Equity and Mortgage Investments has or may have pursuant to
and in accordance with the provisions of that certain Agreement dated as of
December 31, 1975 by and between The Union Commerce Bank and First Union Real
Estate Equity and Mortgage Investments, a true, correct and complete copy of
which is attached hereto and made a part hereof as Exhibit I, together with such
rights as First Union Real Estate Equity and Mortgage Investments has or may
have pursuant to and in accordance with the provisions thereof in and to that
certain Agreement dated December 15, 1967 between The Union Commerce Bank and
Investment Plaza Company, a true, correct and complete copy of which is attached
thereto as Exhibit A; and (k) rights of First Union Real Estate Equity and
Mortgage Investments under and by virtue of letter dated December 31, 1975 from
The Union Commerce Bank to First Union Real Estate Equity and Mortgage
Investments, whereby The Union Commerce Bank agreed that it shall not, from and
after the date thereof, "grant to any third party any new rights of access to
the tunnel which connects the Union Commerce Building" with the Garage, a true,
correct and complete copy of which is attached hereto and made a part hereof as
Exhibit J.
"PARTY" means a party to a Material Contract, other than Seller or
its predecessors in title, with respect to the Property.
"PERMITTED EXCEPTIONS" means (a)(i) all streets and public
rights-of way; (ii) all Laws now in effect; (iii) Taxes not due and payable as
of the Closing Date; (iv) restrictions, encumbrances, reservations, limitations,
conditions, easements, agreements or other matters affecting the Property that
are referred to in Exhibit B hereto or in the documents listed therein; (v)
matters disclosed by the Survey; and (vi) the Ground Leases; and (b) exceptions
to title that are approved or deemed approved by Purchaser pursuant to Section
4.3.
"PERSON" means a natural person, a partnership, a corporation, a
limited liability company, a trust, an unincorporated organization, a government
or any department or agency thereof, or any other juridical entity.
"PERSONALTY" means all equipment, appliances, trade fixtures,
machinery, furniture, furnishings, supplies, and other personal property that is
(a) owned by Seller, and (b) located on and used in connection with the
operation, ownership or management of the Garage, and/or (c) listed on Exhibit
D, attached hereto and made a part hereof.
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"PLANS" means the drawings and specifications for all buildings and
improvements comprising any portion of the Real Property, including, without
limitation, the plans and specifications for all existing renovations and
improvements to the Garage and all space and common areas therein, to the extent
within Seller's possession or control.
"PROPERTY" means (i) the Real Property, (ii) Other Assets, (iii)
the Personalty, and (iv) the Contracts.
"PURCHASE PRICE" means Twenty-One Million Two Hundred Fifty
Thousand Dollars ($21,250,000.00).
"PURCHASER" means Northeastern Security Development Corp., a New
York corporation or its permitted assigns.
"PURCHASER CLOSING DOCUMENTS" shall have the meaning set forth in
Section 5.3 hereof.
"REAL PROPERTY" means, collectively, the fee simple estate,
leasehold interests, and tunnel easement of Seller (as described in Exhibit A
hereto) in and to the lands legally described in Exhibit A hereto, together with
all buildings, improvements and fixtures thereon or therein; all privileges,
rights, easements, hereditaments, and appurtenances thereunto belonging; and all
right, title and interest of Seller in and to any streets, alleys, passages and
other rights-of-way included therein or adjacent thereto (before or after the
vacation thereof).
"RENT" means all rents, fees or charges payable to Seller by any
tenant or licensee of the Property.
"SELLER" means First Union Real Estate Equity and Mortgage
Investments, an Ohio business trust.
"SELLER CLOSING DOCUMENTS" shall have the meaning set forth in
Section 5.2 hereof.
"SURVEY" means the following survey, updated and certified by the
surveyor to Seller, Purchaser, Purchaser's lender, and the Title Insurer as of a
date not earlier than sixty (60) days prior to the Closing Date: ALTA/ACSM Title
Survey prepared by Garrett & Associates, Inc., Cleveland, Ohio, dated December
1, 1993, and last revised October 18, 2000, and bearing No. 93-72 and Map No.
2018-H.
"TAXES" shall have the meaning set forth in Section 6.1 hereof.
"TITLE COMMITMENT" means the ALTA Commitment for Title Insurance,
effective August 8, 2000 (File No. 99-0342), and endorsed on October 23, 2000 to
amend Schedule B, Section 2, items 34 and 35 thereof, heretofore issued by the
Title Insurer committing to the issuance of a Title Policy, a complete copy of
which has been delivered to Purchaser.
"TITLE INSURER" means Commonwealth Land Title Insurance Company.
"TITLE POLICY" means an ALTA Owner's/Leasehold Policy, Form 1992
(Rev. 10-17-92), of Title Insurance issued by Title Insurer for the Real
Property in the amount specified in Section 4.1, insuring Purchaser as owner of
the fee simple estate, leasehold interests, and tunnel easement comprising the
Real Property, subject only to the Permitted Exceptions.
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1.2 GENDER AND NUMBER. Words of any gender shall include the other
gender and the neuter. Whenever the singular is used, the same shall include the
plural wherever appropriate, and whenever the plural is used, the same shall
also include the singular wherever appropriate. Without limiting the generality
of the foregoing, the plural form of any term that is defined in the singular
shall mean collectively all items so defined, and the singular form of any term
that is defined in the plural shall mean singly each item so defined.
1.3 REFERENCES. All references in this Agreement to particular
sections, subsections or articles shall, unless expressly otherwise provided, or
unless the context otherwise requires, be deemed to refer to the specific
sections or articles in this Agreement. The words "herein", "hereof",
"hereunder", "hereinabove" and other words of similar import refer to this
Agreement as a whole and not to any particular section, subsection or article
hereof.
1.4 ILLUSTRATIVE TERMS. Whenever the word "including", "includes" or
any variation thereof is used herein, such term shall be construed as a term of
illustration and not a term of limitation. For example, the term "including"
shall be deemed to mean "including, without limitation", and the term "includes"
shall be deemed to mean "includes, without limitation".
ARTICLE 2
AGREEMENT TO SELL
2.1 AGREEMENT. Upon and subject to the terms and conditions contained
in this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to
purchase from Seller, the Property, in as-is physical and environmental
condition. SELLER DOES HEREBY DISCLAIM ANY AND ALL WARRANTIES OF HABITABILITY,
MERCHANTABILITY AND FITNESS THAT MAY BE DUE FROM SELLER TO PURCHASER, WHETHER IN
REGARD TO THE REAL PROPERTY, PERSONALTY, OTHER ASSETS, FIXTURES, OR OTHER
PROPERTY TRANSFERRED PURSUANT TO THIS AGREEMENT. THIS SECTION SHALL EXPRESSLY
SURVIVE THE CLOSING.
2.2 PURCHASE PRICE. The Purchase Price for the Property shall be
payable as follows:
(a) Purchaser has heretofore deposited with Escrowee the
Deposit of $1,000,000, by wire transfer of
immediately available federal funds, which, together
with all interest or other earnings accrued on such
sum, shall serve as earnest money for this
transaction.
(b) Purchaser shall, on the Closing Date, deposit the
Balance of the Purchase Price in immediately
available "same-day" federal funds wired for credit
into the escrow account established by Escrowee for
this transaction.
2.3 DEPOSIT. The Deposit shall be held by Escrowee and shall be
invested by Escrowee in short term obligations of the U. S. Treasury. The
interest earned on the Deposit shall accrue to the benefit of the party to this
Agreement entitled to receive the Deposit pursuant to the terms of this
Agreement. The Deposit and all interest thereon (which interest shall belong to
Seller and shall not be credited against the Purchase Price) shall be
non-refundable to Purchaser and shall be disbursed to Seller except: (i) in the
case of Seller's default as set forth in Section 10.1; (ii) in the event Seller
is unable to deliver title to the Property to Purchaser in accordance with the
terms of this Agreement; or (iii) as otherwise specifically set forth in Section
4.3 and Article 8.
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2.4 COVENANTS OF SELLER.
(a) Seller agrees to request Estoppel Certificates dated
after the Effective Date as to the status of the
Ground Leases, signed by the respective lessors
thereof. Purchaser and its lenders, if any, shall be
entitled to rely upon the Estoppel Certificates by
their terms, which Estoppel Certificates shall
confirm that the Ground Leases are in full force and
effect, and have not been modified except as
described in Exhibit A, and that Seller, as the
lessee thereunder, is not in default of any of the
terms, covenants and conditions thereof.
(b) Seller agrees to use reasonable efforts to obtain the
Estoppel Certificates by the Closing Date; provided,
however, that Seller shall have the right to extend
the Closing Date for five (5) Business Days to secure
said Estoppel Certificates. However, notwithstanding
anything to the contrary, Seller's failure to secure
the Estoppel Certificates shall not be a default
under this Agreement, and shall not entitle Purchaser
to damages or other remedy of any nature or
description.
As used in this Section 2.4(b), the phrase
"reasonable efforts" shall mean that Seller shall
send the Estoppel Certificates to the lessors
thereunder within ten (10) Business Days after the
Effective Date, and shall thereafter make at least
two telephone calls to each such lessor in an attempt
to obtain same. Purchaser shall have the right, but
not the obligation, to also contact each such lessor
about said Estoppel Certificates, and Seller agrees
to provide Purchaser with a list of telephone numbers
and contact names for such purpose.
Seller and Purchaser each agree to: (i) provide the
other with a copy of each Estoppel Certificate that
they receive within five (5) Business Days of receipt
thereof, and (ii) to exchange status reports on their
progress in obtaining Estoppel Certificates on each
Monday following the Effective Date.
(c) Seller shall obtain any releases of Liens (other than
Permitted Exceptions) and shall be obligated to pay
any amount and/or to perform any act to obtain same
that is otherwise required to be paid and/or
performed by Seller under this Agreement.
2.5 AUTHORITY OF SELLER AND PURCHASER. Within ten (10) days after the
Effective Date, (i) Seller shall deliver to Purchaser evidence that is
reasonably acceptable to Purchaser that Seller has ratified and approved the
transactions provided for under this Agreement, and (ii) Purchaser shall deliver
to Seller evidence that is reasonably acceptable to Seller that Purchaser has
ratified and approved the transactions provided for under this Agreement.
ARTICLE 3
INSPECTIONS BY PURCHASER
3.1 INDEMNIFICATION BY PURCHASER. Purchaser agrees to repair any damage
to the Property caused by the entry of Purchaser or any of Purchaser's agents,
employees, contractors and other representatives upon the Property, and
Purchaser shall indemnify, defend and hold Seller harmless from and against any
and all Damages caused by or resulting from any inspections, surveys, tests,
acts or omissions of Purchaser, its agents, employees,
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contractors, and other representatives while at the Property. The provisions of
this Section 3.1 shall survive the Closing.
3.2 LIMITATIONS ON PURCHASER'S INSPECTIONS. Any inspections, tests,
studies and/or reviews of the Garage by Purchaser and its agents shall in each
case be conducted so as not to unreasonably interfere with any tenant's or
licensee's quiet enjoyment of, access to, use of, or business operations in the
Garage. Any inspections, tests, studies and/or reviews may be observed by Seller
or Seller's agents, including Broker.
3.3 CONDITION OF PROPERTY. Purchaser acknowledges that neither Seller
nor any of its agents, representatives or employees, nor Broker, have made any
representation or warranty of any kind or nature concerning the Property other
than those representations and warranties of Seller expressly set forth in this
Agreement. The provisions of this Section 3.3 shall survive the Closing.
ARTICLE 4
TITLE AND SURVEYS
4.1 TITLE AND SURVEY. Seller has furnished to Purchaser a current Title
Commitment relative to the Real Property and copies of matters of record
reflected in the Title Commitment, together with a copy of the Survey (to be
updated and re-certified) of the Real Property. On the Closing Date, Purchaser
shall request delivery of the Title Policy in the insured amount equal to the
Purchase Price.
4.2 LIENS. Seller shall remove at or before Closing all Liens on any of
the Property that are not Permitted Exceptions including, without limitation,
any delinquent taxes, assessments, interest and penalties thereon that are a
Lien on the Real Property. Notwithstanding the foregoing, Seller shall have the
right to cure monetary liens from sale proceeds.
4.3 APPROVAL/DISAPPROVAL OF ADDITIONAL TITLE EXCEPTIONS. Purchaser has
the right to approve or disapprove any and all exceptions to title that are not
shown or referenced as Permitted Exceptions in the Title Commitment or Survey
("additional title exceptions"), in the exercise of Purchaser's sole discretion,
on or before ten (10) Business Days following receipt of notice of such
additional title exceptions accompanied by copies of any document or instrument
evidencing or referring to such additional title exceptions. If Purchaser
disapproves any additional title exceptions, Purchaser shall deliver to Seller a
Disapproval Notice. If Purchaser fails to give Seller such Disapproval Notice,
Purchaser shall be deemed to have approved such additional title exceptions.
With respect to any additional title exceptions referred to in such Disapproval
Notice (such additional title exceptions being collectively referred to as
"Disapproved Title Matter"), Seller shall notify Purchaser in writing within ten
(10) days after receipt of the Disapproval Notice whether Seller will cause all
or any Disapproved Title Matters to be removed or cured at or prior to Closing,
and Seller shall be deemed to have elected to remove or cure all Disapproved
Title Matters by Closing if Seller does not notify Purchaser to the contrary in
writing within such ten (10) day period. If Seller elects not to remove or cure
all Disapproved Title Matters, Purchaser may elect, in its sole discretion, by
giving written notice to Seller with five (5) Business Days after receipt of
Seller's designation of those Disapproved Title Matters, if any, that Seller
will not cause to be removed or cured at or prior to Closing, either: (a)
(subject to satisfaction of the other conditions to Closing) to close the
purchase of the Property and take title to the Property subject to the
Disapproved Title Matter (s) that Seller elects not to remove or cure, or (b) to
terminate this Agreement, in which event the Deposit shall be returned to
Purchaser. If Purchaser does not give such written notice within said five-day
period, it shall be deemed to have elected the option in clause (b). Seller
shall have thirty
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(30) days (following its said election) to remove or cure any Disapproved Title
Matters that it has elected to remove or cure, subject to extensions of such
thirty (30)-day period as Seller may request and Purchaser, in its sole
discretion, may elect to grant to Seller. The Closing Date shall be extended as
necessary to permit the parties to exercise their respective rights and
obligations pursuant to this Section 4.3. Notwithstanding anything contained
herein to the contrary, under no circumstances may Seller refuse to cure or
remove a Disapproved Title Matter which can be cured by the payment of money.
4.4 PURCHASER'S OPTIONS. If any Disapproved Title Matters that Seller
has elected to remove or cure have not been removed at or prior to Closing (as
same may be extended pursuant to Section 4.3 hereof), or provision for their
removal or cure by Closing has not been made to Purchaser's satisfaction,
Purchaser may elect, in its sole discretion: (a) (subject to satisfaction of the
other conditions to Closing) to close the purchase of the Property and take
title to the Property subject to any Disapproved Title Matters that have not
been cured or removed at or before Closing, or (b) to terminate this Agreement,
in which event the Deposit shall be returned to Purchaser.
4.5 ESCROW AND TITLE COSTS. Title insurance, survey and escrow charges,
transfer taxes and other closing costs shall be paid as follows, except as
otherwise expressly provided in this Agreement:
(a) All real property transfer taxes, excise taxes,
documentary stamps and other taxes, fees or charges
imposed in connection with the conveyance of the
Property, the cost of the Survey, and the fees
charged by Escrowee or its agents, if any, shall be
divided equally between Seller and Purchaser.
(b) Purchaser shall pay all title examination (including
special tax searches) and title commitment costs, the
premium cost for the Title Policy, the cost of any
endorsements to the Title Policy requested by
Purchaser and/or any lender, and all fees, costs and
expenses associated with obtaining and consummating
any mortgage loan obtained by Purchaser.
(c) Seller shall pay any recording fees or charges with
respect to any instruments recorded in order to
eliminate Liens (except Permitted Exceptions) or
Disapproved Title Matters, but otherwise the payment
of any other recording fees or charges with respect
to the transfer of the Property to Purchaser shall be
divided equally between Seller and Purchaser.
(d) At the Closing, and in addition to the delivery of
any required Closing Documents, Seller and Purchaser
shall execute, acknowledge and deliver such returns,
questionnaires, certificates, affidavits,
declarations and other documents that may be required
in connection with the payment of transfer taxes,
sales taxes, mortgage taxes, and other taxes, fees or
charges imposed by any governmental authority in
connection with the transactions contemplated hereby.
ARTICLE 5
CLOSING
5.1 CLOSING. Provided all conditions set forth in Sections 9.1 and 9.2
hereof have been either satisfied or waived, the Closing shall take place on the
Closing Date at the office of
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Arter & Hadden LLP in Cleveland, Ohio, or such other date or place as the
parties shall agree; provided, however, that either party shall have the right
to close by depositing its Closing Documents and funds due from it in escrow
with the Escrowee, and in such case it shall not be required to attend the
Closing.
5.2 SELLER CLOSING DOCUMENTS. On or before the Closing Date, or, if a
deadline is specified below, by such deadline, and as a condition to Purchaser's
obligation to pay the Balance of the Purchase Price, Seller shall deliver,
directly to Purchaser or to Escrowee, as is specified in Section 5.4 hereof, the
number of executed original counterparts specified below of each of the
following documents with respect to the Garage (the "Seller Closing Documents"):
(a) One counterpart of the Limited Warranty Deed
transferring to Purchaser fee simple title to the
Real Property in the form attached as EXHIBIT 5.2(a).
(b) Four (4) counterparts of the Assignment and
Assumption of Ground Leases.
(c) Four (4) counterparts of the Bill of Sale.
(d) Intentionally omitted.
(e) Four (4) counterparts of the Assignment and
Assumption of Contracts.
(f) Intentionally omitted.
(g) Intentionally omitted.
(h) A FIRPTA affidavit, executed by Seller.
(i) Four (4) counterparts of written notices (i) to
tenants or licensees advising such tenants or
licensees of the change of ownership and directing
them to pay Rent for all periods from and after the
Closing Date as directed by Purchaser; and (ii) a
general notice to any party to the Contracts assigned
to Purchaser advising of the transfer and assignment
of Seller's interest in the Contracts to Purchaser
and Purchaser's assumption thereof and directing that
future inquiries be made directly to Purchaser.
(j) Not later than seven (7) Business Days before the
Closing Date, a resolution of Seller, certified by
its secretary or an assistant secretary, authorizing
the execution and delivery of this Agreement, the
Seller Closing Documents and the consummation of the
transactions contemplated by this Agreement, that is
satisfactory to Purchaser and Title Insurer.
(k) Not later than seven (7) Business Days before the
Closing Date, a certificate of the secretary or an
assistant secretary of Seller as to its governing
documents (i.e., declaration of trust, bylaws and
amendments thereto, certificate of existence and good
standing, etc.) and the incumbency and authority of
the Persons executing and delivering this Agreement
and the Seller Closing Documents on behalf of Seller.
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(l) Subject to the provisions of Section 2.4(b) hereof,
the Estoppel Certificates.
(m) An "owner's affidavit" relative to mechanics liens,
addressed to and otherwise in form acceptable to the
Title Insurer.
(n) Such other documents, instruments or agreements as
Seller may reasonably be required to execute and/or
deliver on or prior to Closing pursuant to any
provision of this Agreement, or as may reasonably be
required by the Title Insurer.
In addition, at or prior to Closing, Seller shall also deliver
to, or at the direction of, Purchaser all keys, security codes, files, books,
records, files, surveys, plans, specifications, and other written information or
documents relating to the Property in Seller's possession and control.
5.3 PURCHASER CLOSING DOCUMENTS. On or before the Closing Date, or, if
a deadline is specified below, by such deadline, Purchaser shall deliver,
directly to Seller or to Escrowee, as is specified in Section 5.4 hereof, the
number of executed original counterparts specified below of each of the
following documents with respect to the Garage (the "Purchaser Closing
Documents"):
(a) Four (4) counterparts of the Assignment and
Assumption of Ground Leases.
(b) Four (4) counterparts of the Bill of Sale.
(c) Intentionally omitted.
(d) Four (4) counterparts of the Assignment and
Assumption of Contracts.
(e) Intentionally omitted.
(f) Not later than seven (7) Business Days before the
Closing Date, a resolution of the board of directors
of Purchaser, certified by its Secretary (or, if this
Agreement is transferred to a limited liability
company pursuant to and in accordance with the
provisions of Section 14.9 hereof, the unanimous
written consent of all members of such limited
liability company or the equivalent), authorizing the
execution and delivery of this Agreement, the
Purchaser Closing Documents and the consummation of
the transactions contemplated by this Agreement, that
is satisfactory to Seller and Title Insurer.
(g) Not later than seven (7) Business Days before the
Closing Date, a certificate of the secretary of
Purchaser as to its articles of incorporation,
by-laws and the incumbency and authority of the
Persons (or, if this Agreement is transferred to a
limited liability company pursuant to and in
accordance with the provisions of Section 14.9
hereof, the certificate of the duly authorized
manager thereof (whose identity and power to so act
shall be substantiated by all members thereof) as to
the certificate of formation, operating agreement and
any other formation documents of such company, and
the identity and authority of such manager) of
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Purchaser executing and delivering this Agreement and
the Purchaser Closing Documents on behalf of
Purchaser.
(h) Such other documents, instruments or agreements as
Purchaser may reasonably be required to execute
and/or deliver on or prior to Closing pursuant to any
provision of this Agreement.
5.4 OCCURRENCE OF CLOSING. Seller shall deposit with Escrowee the
Limited Warranty Deed, and Seller and Purchaser shall deposit jointly with
Escrowee counterpart executed copies of the Assignment and Assumption of Ground
Leases, and any documentation to be filed with any governmental office (the
"Filing Documents"), accompanied by joint filing instructions setting forth the
order of recording. The Closing shall be deemed to have occurred upon the
completion of the following:
(a) Delivery of the Filing Documents to Escrowee.
(b) Delivery of the other Seller Closing Documents to
Purchaser and of the other Purchaser Closing
Documents to Seller; or the written acknowledgment of
Escrowee that it holds all such documents and the
unconditional and irrevocable written commitment of
Escrowee to effect such delivery on the Closing Date.
(c) Seller's receipt of the full Purchase Price, less
prorations, costs and expenses properly chargeable to
Seller hereunder.
(d) Issuance of the Title Policy to Purchaser in strict
accordance with the provisions of this Agreement or
the irrevocable commitment of Title Insurer to so
issue the Title Policy.
5.5 CLOSING COSTS. Closing costs shall be paid in accordance with the
provisions of Section 4.5 hereof.
ARTICLE 6
APPORTIONMENTS AND PAYMENTS
6.1 PRORATIONS. The following items pertaining to the Property shall be
prorated or credited as of the Cutoff Date, and appropriate adjustments made to
the Purchase Price on the Closing Date or at the times and in the manner set
forth below:
(a) RENT. Seller shall be entitled to receive and retain
all Rent which is attributable to any period
preceding the Closing Date.
(b) TAXES. Real estate taxes and assessments, both
general and special, against or encumbering the
Property ("Taxes") shall be prorated on a fiscal tax
year basis as of the Closing Date on the basis of the
most recent ascertainable amounts of each such items,
and the net credit to Purchaser shall be applied
against the Purchase Price on the Closing Date.
Seller shall have no right to participate in or
settle any controversies or proceedings regarding
Taxes which are attributable to periods subsequent to
the Closing Date, but shall be entitled to receive
and retain any and all refunds, reductions and
settlements with respect to Taxes which are
attributable to periods preceding the Closing Date.
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(c) CONTRACTS. Purchaser shall be entitled to a credit
against the Purchase Price for sums that are due (or
accrued) and unpaid as of the Closing Date under any
Contracts relating to the Property, and Seller shall
be entitled to a credit to the extent that sums have
been paid under any Contracts for services to be
performed or goods to be delivered after the Closing
Date.
(d) OTHER ITEMS OF INCOME OR EXPENSE. All other items of
income or expense, whether Rent, rental under the
Ground Leases, utilities, or other items, shall be
prorated between the parties hereto as of the Closing
Date. Except with respect to expense items prorated
as of and on the Closing Date, Seller shall be
responsible for payment of any and all bills or
charges incurred prior to the Closing Date for work,
services, supplies or materials, and Purchaser shall
be responsible for payment of any and all bills or
charges incurred on or after the Closing Date for
work, services, supplies or materials.
6.2 ADJUSTMENTS. All prepaid Rent shall be paid or credited by Seller
to Purchaser on the Closing Date.
6.3 COLLECTIONS AND APPLICATION OF PAYMENTS AFTER CLOSING. After the
Closing Date, Purchaser shall bill all Rent, including amounts accruing after
the Closing Date but prior to the last day of the month in which the Closing
occurs. Purchaser shall prepare all financial statements and data relating to
the billing of such Rent, and Seller shall cooperate and assist Purchaser in
preparing same as may be reasonably required and requested by Purchaser. Any
Rent with respect to which Seller is entitled to receive a share under this
Agreement, which is due but unpaid as of the Closing Date and which is not paid
within sixty (60) days after the due date, is collectively herein called
"Delinquent Amounts". Notwithstanding the foregoing, rental and other payments
received by Purchaser or Seller shall be applied (a) first, towards the payment
of Rent attributable to the calendar month in which the Closing Date occurs, (b)
second, towards the payment of Rent attributable to periods after the Closing
Date, and (c) third, towards the payment of Delinquent Amounts. Purchaser may
not waive any Delinquent Amounts nor reduce amounts or charges owed for any
period in which Seller is entitled to receive a share of charges or amounts,
without first obtaining Seller's written consent. Seller shall have and reserves
the right to pursue any remedy relative to Delinquent Amounts provided that (i)
Seller shall notify Purchaser of its intent to institute any legal proceeding
relating thereto not less than ten (10) Business Days prior to the institution
thereof, and (ii) Seller shall not take any action which would terminate or
dispossess any tenant or licensee or which would limit Purchaser's rights to
pursue any remedy Purchaser may have for a default. Purchaser may, by written
notice to Seller within ten (10) Business Days of receipt of Seller's notice,
restrict Seller from collecting such Delinquent Amounts, but only if Purchaser
first pays Seller such Delinquent Amounts in exchange for Seller's assignment to
Purchaser of all Seller's rights and causes of action with respect thereto. If a
tenant or licensee no longer uses or occupies a parking space in the Property,
Seller shall retain all rights relating to Delinquent Amounts and shall have the
unrestricted right to pursue any and all remedies relative thereto.
6.4 CLOSING AND FINAL PRORATION STATEMENTS. In connection with the
foregoing prorations and adjustments, Seller and Purchaser shall prepare or
cause to be prepared, the following statements:
(a) CLOSING PRORATION STATEMENT. Seller shall prepare and
deliver on the Closing Date a proration statement in
reasonable detail showing each item prorated,
allocated or adjusted in accordance with this Article
6, in
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such form as fairly reflects such prorations,
allocations and adjustments to the reasonable
satisfaction of Purchaser and Seller (the "Closing
Proration Statement"). If an item is not known as of
the Closing, such item shall be prorated based on a
reasonable estimate thereof, subject to final
proration as provided below.
(b) FINAL PRORATION STATEMENT. On or before March 31,
2001, Purchaser shall submit to Seller a final
proration statement consistent with the form of the
Closing Proration Statement, prepared as of the
Cutoff Date but employing information available as of
March 31, 2001 and certified by an officer of
Purchaser as being accurate and complete and in
accordance with the provisions of this Article 6, and
to correctly present the final prorations and
adjustments to be made in accordance with the
requirements of this Article 6, and as to any amounts
for which final information is not available as March
31, 2001, employing an estimate agreed to by
Purchaser and Seller in their reasonable judgment
(the "Final Proration Statement"). Upon issuance of
the Final Proration Statement, the parties shall make
such final proration payments as are thereby
indicated to be due. Following Seller's receipt of
the Final Proration Statement, Purchaser agrees to
allow Seller, its accountants and representatives, to
audit, inspect and copy those books and records in
the possession and control of Purchaser which relate
to the Final Proration Statement for a period of six
(6) months following issuance thereof, at the place
or places where they are then regularly maintained,
during regular business hours and upon reasonable
prior notice to Purchaser, and to discuss the subject
matter thereof with Purchaser's employees and
accountants. Purchaser agrees to retain such books
and records for six (6) months following issuance of
the Final Proration Statement, and in the event of an
examination thereof that is commenced during such
period by Seller, then for such additional period as
is reasonably necessary to permit completion thereof
and the resolution of any dispute in connection
therewith.
ARTICLE 7
ADDITIONAL AGREEMENTS OF SELLER AND PURCHASER
7.1 CONDUCT OF BUSINESS PRIOR TO CLOSING DATE. Prior to Closing, Seller
covenants and agrees as follows:
(a) Seller shall comply with (or cause to be complied
with) all of the Ground Leases, all Contracts and any
other agreements, instruments and easements
applicable to the Property and, subject to the
provisions of Article 6, pay (or cause to be paid)
all taxes, assessments, utility charges and other
operating costs and expenses relating to the Garage
as and when due.
(b) Nothing contained herein shall restrict Seller from
entering into parking licenses or contracts on a
month-to-month (or shorter-term) basis at rates in
excess of those in effect on the Effective Date.
Seller shall have the right at any time prior to
Closing to exercise any or all of its legal remedies
against any tenant or licensee who is in default.
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(c) Seller shall operate and manage (or cause to be
operated and managed) the Garage in the ordinary
course of business in accordance with Seller's past
practice, but subject to the terms of this Agreement,
and in accordance with all applicable permits,
licenses, and Laws, maintain in full force and effect
through the Closing Date all material licenses, all
permits (including, without limitation, all building
permits and occupancy permits) such that on the
Closing Date, the Garage shall be in at least as good
a state of condition and repair as on the Effective
Date, reasonable wear and tear and damage by fire or
other casualty excepted, subject to the provisions of
Article 8.
(d) Except with Purchaser's prior written consent, which
may be withheld for any or no reason, Seller shall
not enter into any Material Contracts that will be an
obligation affecting Purchaser subsequent to Closing,
except for arms-length, market rate contracts with
unaffiliated parties in the ordinary course of
business that can be terminated upon not more than
thirty (30) days notice.
(e) Except with Purchaser's prior written consent, which
may be withheld for any or no reason, and except for
bonuses paid, if any, by Seller to Employees in an
effort to retain their employment through the Closing
Date, Seller shall not, (i) enter into any contract
of employment with any Employee; (ii) grant any
increases in the rates of pay, salaries, or other
compensation of any Employees or any increase in the
other benefits to which such Employees are presently
entitled, other than scheduled increases for
management employees consistent with Seller's
compensation policies, and regular wage increases for
employees paid on an hourly basis made in the
ordinary course of business, as required by law
and/or consistent with prior practice; or (iii) defer
any portion of the compensation that would have been
paid in the ordinary course of business.
7.2 INSURANCE POLICIES. Seller agrees to maintain or cause to be
maintained the Insurance Policies in effect through the Closing Date. Purchaser
shall secure its own insurance with respect to the Property and Seller shall
have the right to terminate the Insurance Policies effective on the Closing
Date. Any unearned premiums and the unabsorbed portions of any deposits with
respect to the Insurance Policies shall belong solely to Seller.
7.3 EMPLOYEES. Effective as of the Closing Date, Seller shall terminate
the Employees.
7.4 POSSESSION. Seller shall deliver possession of the Property to
Purchaser upon the completion of the Closing, subject to the Permitted
Exceptions.
7.5 MANAGEMENT INFORMATION SYSTEMS. Purchaser agrees that Seller shall
retain all computer disks, databases, programs and software licenses used by
Seller with respect to the Garage.
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ARTICLE 8
DAMAGE OR DESTRUCTION - CONDEMNATION
8.1 NOTICE. In the event of any damage to or destruction or
condemnation of any portion of the Property prior to Closing (other than de
minimis damage thereto, destruction thereof, or condemnation thereof), Seller
shall send written notice thereof to Purchaser within five (5) days after the
date of the occurrence thereof. In the event of any damage to or destruction or
condemnation of any portion of the Property prior to Closing that Seller
reasonably believes would require repairs at a cost in excess of Three Million
Dollars ($3,000,000.00), Seller shall send written notice to Purchaser of such
occurrence within five (5) days after the date of such occurrence (the "Damage
Notice"). Not later than fifteen (15) days after Seller's delivery to Purchaser
of the Damage Notice, Purchaser shall determine, and shall notify Seller in
writing, whether a Material Part of the Property has been damaged, or whether
such taking or threatened taking has affected or will affect a Material Part of
the Property. For purposes of this Article 8, Purchaser may determine that a
"Material Part" of the Property has been damaged or taken if (a) in the case of
damage to or destruction of any portion of the Property, the estimated cost of
repairing the damage (whether or not insured) will, in Purchaser's reasonable
judgment equal or exceed Three Million Dollars ($3,000,000.00), or (b) in the
case of a taking or threatened taking pursuant to the power of eminent domain,
the value of the Property is or will, in Purchaser's reasonable judgment, be
reduced by Three Million Dollars ($3,000,000.00) or more.
(a) If Purchaser determines that a Material Part of the
Property has been damaged, or that a Material Part of
the Property has been or will be affected by the
taking or threatened taking, Purchaser may elect, by
written notice delivered to Seller within fifteen
(15) days after giving Seller notice of such
determination, to terminate this Agreement, in which
event the Deposit shall be returned to Purchaser;
(b) In the case of damage to a Material Part of the
Property, if Purchaser does not elect to terminate
this Agreement in the manner and within the time
aforesaid, Seller shall (i) deliver to Purchaser at
Closing all insurance proceeds received on account of
such damage, and (ii) assign to Purchaser at Closing
its right to recover under any insurance policies
covering such damage, and (iii) pay to Purchaser the
amount of any deductibles or self-insured amounts;
provided, however, that the foregoing delivery,
assignment, and payment of insurance policy rights
and proceeds shall not include those relating to
business interruption or rent loss for the period
prior to Closing; and
(c) In the case of a threatened or actual taking of a
Material Part of the Property, if Purchaser does not
elect to terminate this Agreement in the manner and
within the time aforesaid, Seller shall (i) pay and
deliver to Purchaser at Closing all condemnation
awards and other proceeds received in connection with
the taking, and (ii) assign to Purchaser at Closing
Seller's entire right, title and interest in and to
all awards and other proceeds connected with the
taking; provided, however, that the foregoing
payment, delivery and payment of proceeds and awards
shall not include those relating to revenue from the
Garage for the period prior to Closing.
8.2 NON-MATERIAL DAMAGE. If the Garage suffers damage to other than a
Material Part, the Closing Date shall not be extended, and Seller shall (i)
deliver to Purchaser at Closing
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all insurance or condemnation proceeds received on account of such damage or
taking (other than those relating to business interruption, rent loss and
revenue for the period prior to the Closing) and (ii) assign to Purchaser at
Closing Seller's right to recover such insurance or condemnation proceeds, and
(iii) pay to Purchaser the amount of any deductibles or self-insured amounts.
8.3 LOSS ADJUSTMENTS. The Closing Date shall be extended as necessary
to permit Purchaser and Seller to exercise their rights within the time periods
set forth in this Article 8. In connection with any claim with respect to
insurance or condemnation proceeds pursuant to this Article 8, Seller shall not
settle or approve settlement of any claim without Purchaser's prior written
consent, which consent shall not be unreasonably withheld or delayed, and
Purchaser and Seller shall fully cooperate with each other in prosecuting
diligently the recovery of any such claim(s).
ARTICLE 9
CONDITIONS TO CLOSING
9.1 CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller under
this Agreement are subject to satisfaction on or prior to the Closing Date of
the conditions set forth in this Section 9.1. Each such condition is solely for
the benefit of Seller and may be waived in whole or in part by Seller in its
sole discretion by written notice to Purchaser:
(a) Purchaser has performed and complied with all of its
obligations under this Agreement that are to be
performed or complied with by Purchaser prior to or
on the Closing Date.
(b) Intentionally Omitted.
(c) Neither Purchaser nor Seller, as the case may be, has
terminated this Agreement pursuant to any right of
termination set forth herein.
(d) Purchaser has delivered the Purchaser Closing
Documents and paid the Balance of the Purchase Price
to Seller.
(e) On or prior to the Closing Date: (i) Purchaser shall
not have applied for or consented to the appointment
of a receiver, trustee or liquidator for itself or
any of its assets unless the same shall have been
discharged prior to the Closing Date, and no such
receiver, liquidator or trustee shall have otherwise
been appointed, (ii) Purchaser shall not have
admitted in writing an inability to pay its debts as
they mature, (iii) Purchaser shall not have made a
general assignment for the benefit of creditors, (iv)
Purchaser shall not have been adjudicated bankrupt or
insolvent, or had a petition for reorganization
granted with respect to Purchaser, or (v) Purchaser
shall not have filed a voluntary petition seeking
reorganization or an arrangement with creditors or
taken advantage of any bankruptcy, reorganization,
insolvency, readjustment or debt, dissolution or
liquidation law or statute, or filed an answer
admitting the material allegations of a petition
filed against it in any proceeding under any of the
foregoing laws unless the same shall have been
dismissed, canceled or terminated prior to the
Closing Date.
(f) Purchaser shall have delivered evidence to Seller of
its ratification and approval of its purchase of the
Property, and Seller shall have ratified and
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approved the sale of the Property, all pursuant to
and in accordance with the provisions of Section 2.5
hereof.
(g) The Title Insurer shall issue the Title Policy
pursuant to and in strict accordance with the
provisions of this Agreement.
9.2 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligations of Purchaser
under this Agreement are subject to satisfaction on or prior to the Closing Date
of the conditions set forth in this Section 9.2. Each such condition is solely
for the benefit of Purchaser and may be waived in whole or in part by Purchaser
in its sole discretion by written notice to Seller:
(a) Seller has performed and complied with all of its
obligations under this Agreement that are to be
performed or complied with by Seller prior to or on
the Closing Date.
(b) Neither Purchaser nor Seller, as the case may be,
shall have terminated this Agreement pursuant to any
right of termination set forth herein.
(c) Seller shall have delivered the Seller Closing
Documents and the Estoppel Certificates; provided,
however, that if all Estoppel Certificates,
containing the information and confirming the matters
required by this Agreement, are not delivered on the
Closing Date, Purchaser agrees that Seller shall, in
lieu of providing Estoppel Certificates from the
lessors under the Ground Leases, have the right and
option, in its discretion, to (i) itself execute and
deliver to Purchaser such missing Estoppel
Certificates and (ii) furnish a certificate of Key
Trust Company, N.A. ("Key Trust"), as rental
collection agent for the lessors under the Ground
Leases, to the effect that, to Key Trust's knowledge,
all ground rental has been paid by Seller under the
Ground Leases in a timely manner and no ground rental
remains unpaid, and Purchaser agrees to accept same
in the same manner and with like effect as though the
missing Estoppel Certificates were executed by the
lessor(s) under the Ground Leases (as the case may
be).
(d) On or prior to the Closing Date: (i) Seller shall not
have applied for or consented to the appointment of a
receiver, trustee or liquidator for itself or any of
its assets unless the same shall have been discharged
prior to the Closing Date, (ii) Seller shall not have
admitted in writing an inability to pay its debts as
they mature, (iii) Seller shall not have made a
general assignment for the benefit of creditors, (iv)
Seller shall not have been adjudicated bankrupt or
insolvent, or had a petition for reorganization
granted with respect to Seller, or (v) Seller shall
not have filed a voluntary petition seeking
reorganization or an arrangement with creditors or
taken advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or
liquidation law or statute, or filed an answer
admitting the material allegations of a petition
filed against it in any proceedings under law, or had
any petition filed against it in any proceeding under
any of the foregoing laws unless the same shall have
been dismissed, canceled or terminated prior to the
Closing Date.
(e) The Title Insurer shall be irrevocably bound to issue
the Title Policy pursuant to and in strict accordance
with the provisions of this Agreement.
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(f) The representation set forth in Section 13.1(d) of
this Agreement shall be true and correct at and as of
the Closing Date as though such representation was
made at and as of the Closing Date.
9.3 FAILURE OF CONDITIONS - DEPOSIT. If any of the conditions to the
obligations of (a) Seller under Sections 9.1(f) (as to only the approval of
Seller), and (g) (but only if the Title Insurer will not issue the Title Policy
because of the acts or omissions of Seller, or if Seller, through no fault of
Purchaser, is otherwise unable to convey the Property subject only to the
Permitted Exceptions), or (b) Purchaser under Sections 9.2(a), (c), (d), (e)
(but only if the Title Insurer will not issue the Title Policy because of the
acts or omissions of Seller, or if Seller through no fault of Purchaser, is
otherwise unable to convey the Property subject only to the Permitted
Exceptions) and (f) are not satisfied or waived by such party on or prior to the
Closing Date, then the Deposit shall be promptly returned to Purchaser and this
Agreement shall thereupon be null and void and of no further force or effect.
ARTICLE 10
DEFAULT
10.1 SELLER'S DEFAULT. If Seller shall fail to observe and/or perform
any of its obligations hereunder, and if such failure is not cured within ten
(10) days after written notice to Seller specifying such failure, Purchaser
shall have the right to elect as its sole and exclusive remedy either to (a)
proceed to Closing without any reduction or abatement of the Purchase Price and
without any claim against Seller with respect to such failure, or (b) terminate
this Agreement, in which event the Deposit shall be promptly returned to
Purchaser, together with the amounts paid to third parties by Purchaser in
connection with its negotiation of this Agreement, any activities on the
Property, its activities in procuring financing for the transaction provided for
in this Agreement, and in preparing for Closing hereunder, evidence of which
that is reasonably satisfactory to Seller to be provided promptly to Seller upon
written request as a condition to payment therefor. In addition to the foregoing
amounts, if the conditions to Seller's obligations set forth in Section 9.1 are
met and thereafter Seller refuses to complete the transactions provided for in
this Agreement, and in lieu of (or in addition to) refinancing the Property,
Seller thereafter sells, conveys and transfers all or substantially all of the
Property to a third party within one hundred eighty (180) days after the Closing
Date for a gross consideration in excess of the Purchase Price (an "Alternate
Sale"), then in addition to the return of the Deposit and payment of the
aforesaid amounts. Seller also agrees to pay to Purchaser the positive
difference between the Purchase Price and the gross consideration paid to Seller
by such third party for such Property. The amounts payable to Purchaser under
this Section 10.1 are herein collectively referred to as "Purchaser's Damages".
Purchaser covenants and agrees not to seek or attempt to seek
any remedies for Seller's default other than those specifically provided to
Purchaser herein, including specific performance or any other equitable
remedies, and shall not have the right to file any notice of lis pendens, all
such rights and remedies being hereby waived.
Notwithstanding anything to the contrary, if (i) Purchaser
sues Seller with respect to an Alternate Sale and, after any final appeals or
determination, does not obtain an order or judgment against Seller, or (ii) if
Purchaser breaches the provisions of the immediately preceding paragraph above,
then Seller's remedies with respect to either (i) or (ii) (but no others) shall
not be limited by the provisions of Sections 10.2 and 10.3 hereof.
10.2 PURCHASER'S DEFAULT. If Purchaser shall fail to observe and/or
perform any of its obligations hereunder including, without limitation,
Purchaser's failure to close due to
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insufficient funds, and if such default is not cured within ten (10) days after
written notice to Purchaser specifying such default, Seller shall have the right
at its election and as its sole and exclusive remedy either to: (a) waive such
default and proceed to Closing notwithstanding such default by Purchaser, or (b)
terminate this Agreement, in which event the Deposit shall be promptly paid to
Seller as full and complete liquidated damages (and not as a penalty or
forfeiture) in lieu of any and all other legal and equitable rights and remedies
that Seller may have hereunder or at law or in equity, and neither party shall
thereupon have any claims against or liability to the other hereunder or
otherwise.
10.3 LIQUIDATED DAMAGES.
(a) Purchaser and Seller acknowledge that, in the event
that Purchaser shall fail or refuse to perform its
obligation to close the purchase and sale
contemplated by this Agreement after expiration of
the applicable notice and cure periods, Seller will
suffer damages. The exact amount of such damages are
and will be difficult to ascertain with certainty,
and, accordingly, Purchaser and Seller agree that the
Deposit shall constitute liquidated damages for
Purchaser's default in its obligations to close the
purchase and sale contemplated by this Agreement
after expiration of the applicable notice and cure
periods. Notwithstanding that Seller's actual damages
would be uncertain and difficult to ascertain,
Purchaser and Seller agree that the Deposit is
reasonable and bears a relationship to the damages
that Seller might sustain in the event of Purchaser's
default under this Agreement. Purchaser and Seller
agree that the Deposit is not intended to be, and in
no event should be construed to be, a penalty, but is
intended as fixed damages agreed to by the parties as
settlement of damages in advance. Seller hereby
agrees that its receipt of the Deposit in the event
of Purchaser's failure or refusal to perform its
obligation to close under this Agreement is the sole
and exclusive right or remedy that Seller has, or may
be entitled to exercise or pursue, against Purchaser,
whether at law or in equity, as to such failure or
refusal.
(b) Purchaser and Seller acknowledge that, in the event
that Seller shall fail or default in its obligation
to close the purchase and sale contemplated by this
Agreement after expiration of the applicable notice
and cure periods, Purchaser will suffer damages. The
exact amount of such damages are and will be
difficult to ascertain with certainty, and,
accordingly Purchaser and Seller agree that the
Purchaser's Damages shall constitute liquidated
damages for Seller's default in its obligations to
close the purchase and sale contemplated by this
Agreement after expiration of the applicable notice
and cure periods. Notwithstanding that Purchaser's
actual damages would be uncertain and difficult to
ascertain, Purchaser and Seller agree that
Purchaser's Damages are reasonable and bear a
relationship to the damages that Purchaser might
sustain in the event of Seller's default under this
Agreement. Purchaser and Seller agree that
Purchaser's Damages are not intended to be, and in no
event should be construed to be, a penalty, but are
intended as fixed damages agreed to by the parties as
settlement of damages in advance. Purchaser hereby
agrees that its receipt of Purchaser' Damages in the
event of Seller's failure or default in its
obligation to close under this Agreement is the sole
and exclusive right or remedy that Purchaser has, or
may be entitled to exercise or pursue, against
Seller, whether at law or in equity, as to such
failure or default.
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10.4 CLOSING IS A WAIVER.
(a) In the event that Closing shall actually occur, then
the occurrence of such Closing shall be deemed a
complete waiver by Purchaser of all of its rights to
make any claim for Seller's failure to observe and/or
perform any of its obligations under this Agreement
that are required to be observed and/or performed
prior to or on the Closing Date.
(b) In the event that Closing shall actually occur, then
the occurrence of such Closing shall be deemed a
complete waiver by Seller of all of its rights to
make any claim for Purchaser's failure to observe
and/or perform any of its obligations under this
Agreement that are required to be observed and/or
performed prior to or on the Closing Date.
ARTICLE 11
BROKERAGE COMMISSIONS
Seller and Purchaser represent and warrant each to the other
that they have not dealt with any real estate broker, sales person or finder in
connection with this transaction other than Broker, and no other person
initiated or participated in the negotiation of this Agreement or showed the
Property to Purchaser, and to the knowledge of Seller and Purchaser, except for
any obligations to Broker, there are no real estate brokerage commissions,
finder's fees, or other similar fees due any person or entity on account of or
as a result of this transaction, except as set forth herein. Seller and
Purchaser each agree to indemnify, defend and hold the other harmless from and
against any loss, cost, liability, damage or expense suffered or incurred by the
other party as a result of a claim or claims for brokerage commissions, finder's
fees or other similar fees from any Person that is based on the act or omission
of the party in breach of the above warranty. Seller shall pay all commissions,
finder's fees or other similar expenses or fees of the Broker upon transfer of
title to the Property, in full satisfaction of all obligations to Broker
hereunder or otherwise.
ARTICLE 12
NOTICES
12.1 NOTICES. Any notice, request, demand, instruction or other
document or communication to be given or served hereunder or under any document
or instrument executed pursuant hereto shall be in writing and shall be deemed
to be delivered: (a) upon personal delivery to and receipt by the person to whom
delivered (including, without limitation, delivery to and/or receipt by
confirmed telecopy), or (b) four (4) days after deposit in United States
registered or certified mail, return receipt requested, postage prepaid, or (c)
one (1) Business Day after deposit with a nationally recognized overnight
express courier for next day delivery, in each case addressed to the parties at
their respective addresses (or telecopy numbers, as applicable) set forth below:
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If to Seller: First Union Real Estate Equity and
Mortgage Investments
551 Fifth Avenue, Suite 1416
New York, New York 10136
Attention: David Schonberger
Telecopy No.: (212) 905-1102
With a simultaneous First Union Real Estate Equity and Mortgage
copy to: Investments
55 Public Square, Suite 1111
Cleveland, Ohio 44113
Attention: Don Craven
Telecopy No: (216) 621-4038
And with a simultaneous Arter & Hadden LLP
copy to: 1100 Huntington Building
925 Euclid Avenue
Cleveland, Ohio 44115
Attention: Daniel K. Wright, II
Lee A. Chilcote
Telecopy No.: (216) 696-2645
If to Purchaser: Northeastern Security Development Corp.
c/o Armand Lasky
336 Atlantic Avenue, 3rd Floor
East Rockaway, New York 11518
Telecopy No.: (516) 569-7423
With a simultaneous Jehoshua Graff
copy to: Sukenik Segal & Graff, P.C.
417 Fifth Avenue
New York, New York 10016
Telecopy No.: (212) 481-5520
Any such notice, request, demand, instruction or other document or communication
will be deemed delivered if given or served as hereinabove provided by one of
the attorneys for parties to this Agreement.
12.2 CHANGE OF ADDRESS. A party may change its address and telecopy
number for receipt of notices by service of a notice of such change in
accordance herewith.
ARTICLE 13
SELLER'S REPRESENTATIONS
13.1 SELLER'S REPRESENTATIONS. Seller represents to Purchaser that, to
Seller's knowledge, as of the Effective Date:
(a) Contracts. Exhibit C is a true, correct and complete
list of all Contracts, true, correct and complete
copies of which have been delivered to Purchaser.
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(b) Personalty. Exhibit D is a true, correct and complete
list of all Personalty.
(c) Compliance with Law. Except as described or referred
to in the Property Condition Report and the Phase I
Environmental Site Assessment, each prepared for
Paine Webber Real Estate Securities by National
Assessment Corporation, bearing respectively Project
Nos. 00-2480.5 and 00-2480.1, and heretofore
furnished to Purchaser, Seller has not received any
notices from any governmental entities or agencies
alleging that any Property does not comply with Laws
(including Environmental Law) in any material respect
that remain uncured.
(d) Employees. Seller has no Employees.
(e) Condemnation. Seller has received no notice from any
governmental authority that any condemnation or
eminent domain proceeding has been filed or is
contemplated against the Property.
(f) Insurance Requirements. Seller has not received
notice from any insurance company currently insuring
the Property that would require work to be performed
on or about the Property as a condition to
continuance or renewal of any policy of insurance on
the Property.
As used herein, the phrase "Seller's knowledge" means the actual
present knowledge of Daniel Friedman, President of Seller, David Schonberger,
Executive Vice President of Seller, and Don Craven, the Asset Manager assigned
to the Garage on the Effective Date.
ARTICLE 14
MISCELLANEOUS
14.1 HEADINGS; EXHIBITS. The headings of the various Articles and
Sections of this Agreement have been inserted solely for purposes of
convenience, are not part of this Agreement, and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement. All Schedules and Exhibits that are attached hereto are made a part
hereof. All terms defined herein shall have the same meanings in the Schedules
and Exhibits, except as otherwise provided therein.
14.2 INVALIDITY. If any term, provision or condition of this Agreement
is found to be or is rendered invalid or unenforceable, it shall not affect the
remaining terms, provisions and conditions of this Agreement, and each and every
other term, provision and condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
14.3 GOVERNING LAW. This Agreement shall, in all respects, be governed,
construed, applied and enforced in accordance with the laws of the State of
Ohio.
14.4 NO THIRD PARTY BENEFICIARY. This Agreement is not intended to give
or confer any benefits, rights, privileges, claims, actions or remedies to any
person or entity as a third party beneficiary under any statutes, laws, codes,
ordinances, rules, regulations, orders, decrees or otherwise.
14.5 ENTIRETY AND AMENDMENTS. This Agreement contains the entire
agreement among the parties hereto with respect to its subject matter and
supersedes all negotiations, prior discussions, agreements, letters of intent
and understandings between Seller, Purchaser, and their respective employees,
agents and representatives, all of same being merged herein
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and extinguished. This Agreement may be amended, modified and/or supplemented
only by an instrument in writing executed by the party against whom enforcement
is sought. This Agreement has been drafted through a joint effort of the parties
and, therefore, shall not be construed in favor of or against either of the
parties, but shall be construed in accordance with its fair meaning.
14.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one agreement. Signature pages may be
detached from the counterparts and attached to a single copy of this Agreement
to physically form one document.
14.7 EXTENSION OF PERFORMANCE. Whenever under the terms of this
Agreement the time for performance of a covenant or condition falls upon a day
that is not a Business Day, such time for performance shall be extended to the
next Business Day. Otherwise, unless a provision of this Agreement specifically
refers to Business Days, all references in this Agreement to days shall mean
calendar days.
14.8 TIME. Time is of the essence in the performance of each and every
term, provision, and condition contained in this Agreement.
14.9 ASSIGNMENT. This Agreement may not be assigned by Purchaser
without the prior written consent of the Seller; provided, however, that
Purchaser shall have the right and option, by written notice given to Seller at
least five (5) Business Days prior to the Closing Date, to nominate another
Person to take and hold title to the Property, and may thereupon assign its
right, title, interest, obligations and liabilities under this Agreement to such
Person, without Seller's consent, on the following conditions: (a) such
assignment shall be by written instrument that conforms to the requirements of
this Section 14.9 and provides for the full assumption by such Person of all
obligations and liabilities of Purchaser under this Agreement, and (b) upon any
such assignment, all references in this Agreement to "Purchaser" shall be deemed
to refer only to such assignee, and all rights, obligations, and liability of
the Purchaser named herein shall apply to and bind such assignee, and the
written instrument referred to hereinabove shall so provide.
14.10 CONFIDENTIALITY.
(a) Prior to Closing, the Confidential Information shall
be treated as confidential, and shall be maintained
confidential, except as otherwise required by law by
Purchaser and its employees, agents, contractors,
attorneys, representatives and such other parties as
Purchaser may disclose same to in connection with its
activities hereunder, any such disclosure to
non-parties in all events to be subject to this
confidentiality provision. Prior to Closing,
Purchaser agrees to use such Confidential Information
only for the purpose of this transaction, and for no
other purpose, and to cause all parties to whom it
may disclose Confidential Information to also so
agree. Purchaser acknowledges that possession of
Confidential Information relating to Seller may
impose upon it and all others to whom such
Confidential Information is disclosed the status of
"Insider" (as defined under the securities law of the
United States) with respect to securities of Seller
governed by such laws, and Purchaser and such others
shall not engage in any transactions in such
securities during the term of this Agreement, nor
thereafter for a period of three (3) years from the
Effective Date.
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(b) Purchaser shall not contact Aid Association for
Lutherans, Seller's current Lender on the Property,
without First Union's express written approval, which
approval may be granted or denied in Seller's sole
discretion.
14.11 LIMIT OF TRUSTEE'S LIABILITY. Notwithstanding anything contained
herein to the contrary, this Agreement is made and executed on behalf of Seller
by its officers on behalf of the trustees thereof, and none of the trustees nor
any additional or successor trustee hereunder appointed, nor any beneficiary,
officer, employee or agent of Seller shall have any liability in his personal or
individual capacity, but instead, all parties shall look solely to the property
and assets of Seller for satisfaction of all claims of any nature in connection
with this Agreement.
14.12 SUCCESSORS AND ASSIGNS. All terms, covenants, conditions and
provisions of this Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, devisees, executors,
administrators, legal representatives, and permitted successors-in-interest and
assigns.
14.13 WAIVER.
(a) One or more waivers of any term, covenant or
condition of this Agreement by any party shall not be
construed as a waiver of any subsequent breach of the
same or any other term, covenant or condition; nor
shall any delay or omission by any party in seeking a
remedy for any breach of this Agreement, or in
exercising any right accruing to such party by reason
of any such breach, be deemed a waiver by such party
of its rights or remedies with respect to such
breach.
(b) A party's consent to or approval of any act or
omission by any other party which requires such
consent or approval shall not be deemed to waive or
render unnecessary the requirement for such consent
or approval with respect to any subsequent similar
act or omission.
(c) The failure of any party to insist upon the strict
performance of any provision of this Agreement, or
the failure of any party to exercise any right,
option or remedy hereby reserved or granted, shall
not be construed as a waiver for the future of any
such provision, right, option or remedy, or as a
waiver of any subsequent breach thereof, or as an
alteration or modification of this Agreement.
(d) No provision of this Agreement shall be deemed to
have been waived unless such waiver shall be in
writing, signed by the party against whom such waiver
is sought to be enforced.
(e) The receipt by any party of any amount of money or
other property with knowledge of a breach of any
provision of this Agreement shall not be deemed a
waiver of such breach. No payment to or receipt by
any party of a lesser amount than may be due it
hereunder shall be deemed to be other than on account
of the earliest amount then unpaid, nor shall any
endorsement or statement on any check or in any
letter accompanying any check or payment by a party
to another party be deemed an accord and
satisfaction, and any party may strike or disregard
any such endorsement or statement and accept such
check or payment without prejudice to such party's
right to recover the balance of any amounts due,
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and such party may thereafter pursue any other right
or remedy provided under this Agreement or at law or
in equity.
14.14 ATTORNEYS FEES. Notwithstanding the provisions of Article 10
hereof, if (x) any litigation is commenced between the parties concerning any
provision of this Agreement or any rights or duties of any person or entity
relative thereto, or (y) any party institutes any proceeding in any bankruptcy
or similar court which has jurisdiction over any party (or any or all of its
property or assets), then (xx) the party prevailing in such litigation, or (yy)
the non-bankrupt party (as the case may be) shall be entitled, in addition to
damages permitted under Article 10 hereof and such other and further relief as
may be granted, to all costs incurred in enforcing and defending its rights and
remedies under this Agreement, including but not limited to reasonable
attorneys' fees, out-of-pocket costs and expenses, and court costs, together
with interest on the foregoing from the date same are incurred until fully
repaid at the rate of 18% per annum, or such lesser rate of interest as may from
time to time be the maximum rate of interest which may, under the circumstances,
be charged under applicable law.
14.15 AGREEMENT NOT TO BE RECORDED. Seller and Purchaser agree that
neither party will file this Agreement for record in the official real estate
records of the county in which the Property is located.
14.16 ESCROW INSTRUCTIONS. By executing this Agreement, Seller,
Purchaser and Escrowee agree as follows:
(a) If any disagreement or dispute shall arise between
the parties hereto and/or any other persons resulting
in adverse claims and demands being made for the
Deposit, whether or not litigation has been
instituted, then and in any such event, Escrowee
shall refuse to comply with any claims or demands on
it and continue to hold the Deposit until Escrowee
receives either (i) a written notice signed by both
Seller and Purchaser directing the disbursement of
the Deposit, or (ii) a final order of a court of
competent jurisdiction, entered in a proceeding in
which Seller, Purchaser and Escrowee are named as
parties, directing the disbursement of the Deposit,
in either of which events Escrowee shall then
disburse the Deposit in accordance with said
direction. Escrowee shall not be or become liable in
any way or to any person for its refusal to comply
with any such claims or demands until and unless it
has received a direction of the nature described in
(i) or (ii) above, and upon (i) or (ii) above,
Escrowee shall be released of and from all liability
hereunder.
(b) Anything to the contrary notwithstanding, Escrowee,
on notice to Seller and Purchaser, (i) may take such
affirmative steps as it may, at its option, elect in
order to terminate its duties as escrow agent
hereunder including, but not limited to, the deposit
of the Deposit with a court of competent jurisdiction
and the commencement of an action for interpleader,
the costs thereof to be borne by whichever of Seller
or Purchaser is the losing party, or, (ii) in the
event litigation between Seller and Purchaser over
entitlement to the Deposit has commenced, may deposit
the Deposit with the clerk of the court in which said
litigation is pending. Upon the taking by Escrowee of
either of the actions described in (i) or (ii) above,
Escrowee shall be released of and from all liability
hereunder except for any previous actions or
omissions taken or suffered by Escrowee in bad faith,
in willful disregard of its obligations under this
Agreement, or involving gross negligence on the part
of Escrowee.
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(c) Seller and Purchaser acknowledge that Escrowee is
acting solely as a stakeholder at their request and
for their convenience, that Escrowee shall not be
deemed to be the agent of either of the parties, and
that Escrowee shall not be liable to Seller or
Purchaser for any act or omission on its part unless
taken or suffered in bad faith, in willful disregard
of its obligations under this Agreement, or involving
gross negligence. Seller and Purchaser shall jointly
and severally indemnify and hold Escrowee harmless
from and against all costs, claims and expenses,
including reasonable attorneys' fees, incurred in
connection with the performance of Escrowee's duties
hereunder, except with respect to actions or
omissions taken or suffered by Escrowee in bad faith,
in willful disregard of its obligations of this
Agreement or involving gross negligence on the part
of Escrowee.
(d) A signed copy of this Agreement shall serve as escrow
instructions to Escrowee, together with any
additional instructions hereafter furnished by Seller
and Purchaser, to the extent not inconsistent
herewith.
(e) The validity and enforceability of this Agreement and
of any amendment hereto as between Purchaser and
Seller shall not be affected by whether or not the
Escrowee shall have executed this Agreement.
14.17 SURVIVAL. The following provisions of this Agreement shall
survive the Closing and delivery and filing for record of the Seller Closing
Documents, and shall not be merged therein or extinguished thereby: Articles 1,
6, 11, 12, 13 and 14 and Sections 2.1, 3.1 and 3.3; provided, however, that the
provisions of Article 13 shall only survive for a period of one hundred eighty
(180) days following the Closing Date.
14.18 EFFECTIVENESS. This Agreement is forwarded by Seller to Purchaser
for its approval and execution upon the understanding and condition that it
shall not become effective until (i) it is approved and executed by Seller, and
(ii) Escrowee receives the Deposit.
[PAGE 28, THE SIGNATURE PAGE, FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
SELLER:
FIRST UNION REAL ESTATE EQUITY AND
MORTGAGE INVESTMENTS
an Ohio business trust
By: /s/ David Schonberger
------------------------------------
David Schonberger, Executive
Vice President
PURCHASER:
NORTHEASTERN SECURITY DEVELOPMENT CORP.,
a New York corporation
By: /s/ Armand Lasky
------------------------------------
Name: Armand Lasky
-----------------------------
Title: President
-----------------------------
Attest: /s/ Jehoshua Graff
--------------------------------
Name: Jehoshua Graff
-------------------------
Title: Secretary
-------------------------
R E C E I P T
Receipt of a counterpart of the foregoing Agreement is hereby
acknowledged, and the undersigned agrees to act as Escrowee in accordance with
the provisions thereof.
LANDAMERICA NATIONAL COMMERCIAL
SERVICES
By: /s/ Deborah Lawrence - Auten
------------------------------------
Title: Vice President
---------------------------------
Date: 10/25/00
------------------------
Escrow No.: 64890
------------------
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