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EXHIBIT 10.47
CONTRACT OF SALE
CONTRACT (this "Contract") made this 9th day of November, 2000, by and
between RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership, with
offices at 27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034
("Seller") and PONTIAC MALL LIMITED PARTNERSHIP, a Michigan limited partnership,
with offices at 27600 Northwestern Highway, Suite 200, Southfield, Michigan
48034 ("Purchaser").
WITNESSETH:
WHEREAS, upon the terms and conditions hereinafter set forth, Seller
agrees to sell and convey fee title to that certain parcel of land described on
Exhibit A, annexed hereto and made a part hereof, with the buildings and
improvements erected thereon (which parcel of land and the improvements erected
thereon are herein referred to as the "Property") to Purchaser and Purchaser
agrees to purchase the Property.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. The terms defined in this Section 1 shall for all
purposes of this Contract have the meaning herein specified unless the context
requires otherwise.
(a) "Anchor Space Tenant" shall have the meaning ascribed to it in
Section 12(b).
(b) "Arrears" shall have the meaning ascribed to it in Section
7(a)(i)(A).
(c) "Assumption Agreement" shall have the meaning ascribed to it in
Section 25(a)(vi).
(d) "Closing" shall have the meaning ascribed to it in Section 14.
(e) "Closing Date" shall have the meaning ascribed to it in Section
14.
(f) "Commitment" shall have the meaning ascribed to it in Section
17(a).
(g) "Code" shall have the meaning ascribed to it in Section
24(a)(vi).
(h) "Cooperating Party" shall have the meaning ascribed to it in
Section 29(l).
(i) "Deed" shall have the meaning ascribed to it in Section 21(a).
(j) "Deposit" shall have the meaning ascribed to it in Section 3(a).
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(k) "Development Agreement" shall have the meaning ascribed to it in
Section 4(b).
(l) "Direct Tax-Paying Tenant" shall have the meaning ascribed to in
Section 7(a)(iii).
(m) "ECR" shall have the meaning ascribed to it in Section 4(b).
(n) "ERISA" shall have the meaning ascribed to it in Section 28(c).
(o) "Escrowee" shall have the meaning ascribed to it in Section
3(a).
(p) "Estoppel Certificate" shall have the meaning ascribed to it in
Section 25(a)(vii).
(q) "Estoppel Default" shall have the meaning ascribed to it in
Section 25(a)(vii)(B).
(r) "Evaluation Material" shall have the meaning ascribed to it in
Section 27(c).
(s) "Overage Rent" shall have the meaning ascribed to it in Section
7(a)(i)(B).
(t) "Outparcels" shall have the meaning ascribed to it in Section
2(b).
(u) "Outparcel Easements" shall have the meaning ascribed to it in
Section 4(c).
(v) "Permitted Exceptions" shall have the meaning ascribed to it in
Section 13.
(w) "Premises" shall have the meaning ascribed to it in Section
2(b).
(x) "Property" shall have the meaning ascribed to it in the
"WHEREAS" paragraph in this Contract.
(y) "Purchase Price" shall have the meaning ascribed to it in
Section 3.
(z) "Related Parties" shall have the meaning ascribed to it in
Section 27(d).
(aa) "Seller's Certificate" shall have the meaning ascribed to it in
Section 25(a)(vii)(A).
(bb) "Service Contracts" shall have the meaning ascribed to it in
Section 24(a)(iii).
(cc) "Space Leases" shall have the meaning ascribed to it in Section
5.
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(dd) "Space Tenants" shall have the meaning ascribed to it in
Section 5.
(ee) "Substantial Loss" shall have the meaning ascribed to it in
Section 12(b).
(ff) "Title Company" shall have the meaning ascribed to it in
Section 17(a).
(gg) "Transfer Tax" shall have the meaning ascribed to it in Section
21(b).
(hh) "Violations" shall have the meaning ascribed to it in Section
8.
(ii) "Wal-Mart" shall have the meaning ascribed to it in Section
4(b).
2. SUBJECT OF SALE.
(a) Seller agrees to sell and convey to Purchaser the Premises and
Purchaser agrees to purchase from Seller the Premises subject to the terms and
conditions contained in this Contract.
(b) This sale includes any right, title, and interest of Seller in
and to: (i) the Property; (ii) any land lying in the bed of any street, road or
avenue opened or proposed in front of or adjoining of the Property, to the
center line thereof, and all right, title and interest of Seller in and to any
award made or to be made in lieu thereof and in and to any unpaid award for
damage to the Property by reason of change of grade of any street; and Seller
will execute and deliver to the Purchaser at the Closing, or thereafter, on
demand, all proper instruments for the conveyance of such title and the
assignment and collection of any such award; (iii) trade names, easements,
permits, licenses and utility agreements appurtenant to the Property, if any;
(iv) fixtures, equipment and other personal property attached to and appurtenant
to the Property and not owned by the Space Tenants, if any, but no part of the
Purchase Price shall be deemed to be paid for such fixtures, equipment or
personal property; and (v) the Space Leases and the security deposits listed on
Exhibit C annexed hereto [(i) through (v) being referred to collectively as the
"Premises"]. The Premises shall not include, however, either of those certain
outparcels adjacent to the Premises described in Exhibit A-1, attached hereto
and made a part hereof (the "Outparcels") which Outparcels shall be retained by
Seller.
3. PURCHASE PRICE.
The purchase price for the Premises (the "Purchase Price") shall be
Twenty Million Two Hundred Forty Eight Thousand Dollars ($20,248,000). The
Purchase Price which shall be paid by Purchaser to Seller as follows:
(a) (i) The amount of Two Hundred Fifty Thousand Dollars ($250,000)
(the "Deposit") payable to the Title Company, acting as escrowee ("Escrowee")
within two (2) business days after full execution of this Contract, receipt of
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which is hereby acknowledged by the Escrowee. The Deposit shall include any
interest earned thereon. In lieu of cash, Purchaser may deliver an irrevocable
letter of credit in the amount of the Deposit to Seller in form reasonably
acceptable to Seller. In the event that Purchaser delivers the letter of credit
to Seller, Seller shall have the right to cash such letter of credit in those
instances where Seller would be entitled to the Deposit pursuant to the terms of
the Contract; and
(b) On the Closing Date, through the Escrowee, the Purchase Price
less the Deposit, which shall be delivered to Seller by Escrowee, by electronic
wire transfer of immediately available federal funds pursuant to wiring
instructions to be given by Seller to Purchaser prior to the Closing. If
Purchaser has delivered a letter of credit to Seller, no such deduction shall be
made, and the letter of credit shall be returned to Purchaser at Closing.
4. "SUBJECT TO" PROVISIONS; RESTRICTIONS ON SALE.
(a) The Premises are sold subject to the Permitted Exceptions.
(b) The Premises are adjacent to a parcel of land owned by Wal-Mart
Real Estate Business Trust ("Wal-Mart"). In connection therewith, Wal-Mart,
Seller and Home Depot U.S.A., Inc., one of the Anchor Space Tenants, entered
into that certain Easements with Covenants and Restrictions Affecting Land,
recorded in Liber 18772, Page 013, Oakland County, Michigan Records ("ECR"). In
addition, the Property is subject to an agreement with the Township of White
Lake entitled "White Lake Marketplace Planned Business District Development
Agreement (the "Development Agreement") dated June 26, 1998, by and between the
Township of White Lake and Seller. Seller has previously provided copies of the
ECR and the Development Agreement to Purchaser.
(c) At the Closing, Seller and Purchaser shall execute separate
easement agreements relating to each of the Outparcels (collectively, the
"Outparcel Easements"), in the forms of Exhibits B and B-1, attached hereto and
made part hereof.
(d) Purchaser covenants that it shall not sell, transfer or convey
its interest in the Property (except for leases of space within the Property and
except for any transfers required under existing leases encumbering the
Property) prior to the third (3rd) anniversary of the Closing Date. A transfer
of a limited partner's partnership interest shall not be prohibited, and a
transfer of a general partner's interest to a party which is currently a general
partner or the holder of an interest in a general partner shall not be
prohibited. The terms of this covenant shall survive Closing.
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5. SPACE LEASES. Purchaser shall also acquire the Premises subject to
the tenancies and occupancies set forth on Exhibit C attached hereto and made a
part hereof and all leases and amendments thereto relating to such tenancies and
occupancies (which leases and any New Space Leases are collectively referred to
herein as the "Space Leases" and the lessees thereunder are herein called "Space
Tenants").
6. LEASING PRACTICE.
(a) During the term of this Contract, Seller may continue to lease
the Premises in a manner consistent with its past course of business and in a
commercially reasonable manner, provided, however, that (i) any amendment to a
space lease; (ii) any termination of an existing Space Lease and/or (iii) the
entering into of new leases or renewals of existing Space Leases shall require
the approval of Purchaser, which shall not be unreasonably withheld and which
shall be deemed given if Purchaser does not object to same during the five (5)
business day period following Purchaser's receipt of any such request.
Furthermore, Seller shall continue to maintain and operate the Premises as same
is currently being maintained and Seller shall not enter into any new Service
Contracts which are not terminable at Closing without obtaining Purchaser's
consent, which shall not be unreasonable withheld or delayed.
(b) Purchaser acknowledges and agrees that no representation has
been made and no responsibility has been assumed by Seller with respect to the
continued occupancy of the Premises, or any part thereof, by the Space Tenants.
In the event, however, that any of the following occur prior to the date of
Closing: (i) any Space Tenant files a petition for bankruptcy; (ii) any Space
Tenant vacates its premises in the Premises; or (iii) any Space Lease is
terminated, then in any of such events, Seller shall notify Purchaser of same,
and Purchaser shall have the right to elect to terminate this Contract within
three (3) business days after such notice is given, in which event Purchaser
shall receive a return of the Deposit and the parties shall have no further
liability each other hereunder, except as set forth in Section 27(e) hereof.
Seller shall notify Purchaser if any of the foregoing occur during any time
after the execution of this Contract. Seller does not undertake or guarantee
that the Space Tenants will be in occupancy at the Closing. Subject to the terms
of Section 6(a) hereof, and prior to the Closing, Seller shall have the right,
but not the obligation, to enforce its rights against the Space Tenants by
summary proceeding or in any other manner.
7. APPORTIONMENTS AND REIMBURSEMENTS.
(a) Unless otherwise provided, at the Closing the following are to
be apportioned for the Property as of 11:59 P.M. on the day preceding the
Closing Date based upon the respective party's period of ownership for the item
being apportioned. Notwithstanding the foregoing, in the event Escrowee does not
receive the funds to be wired pursuant to Section 3(b) by 2:00 P.M. Eastern
Standard Time on the Closing Date, then in such event such funds shall be
deposited by Escrowee in an overnight interest bearing account, and (i) the
items set forth in this Section 7 shall be
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apportioned as of 11:59 P.M. on the Closing Date based upon the respective
party's period of ownership for the item being apportioned, and (ii) Purchaser
shall be entitled to the interest which accrues on such deposit. (The
reimbursements and apportionments shall be made based upon the actual number of
days in the month in which the Closing Date occurs.)
(i) Rent and additional rent under any Space Leases for the
month of Closing, as and when collected.
(A) If on the Closing Date there are any past due rentals
which have not been billed to or are due by Space Tenants and not collected
(collectively "Arrears"), Purchaser and Seller agree that the first moneys
received after the Closing by Purchaser or Seller from such Space Tenants shall
be applied (i) first to Purchaser toward any then current amounts owed by a
Space Tenant to Purchaser, (ii) then to Seller and Purchaser for the month in
which the Closing occurred, prorated in accordance with this Section 7, and
(iii) then to Seller toward the Arrears owed by such Space Tenant. Purchaser and
Seller agree to remit promptly to the other the Arrears collected from time to
time to which the other is so entitled as hereinbefore provided. Purchaser shall
promptly and monthly bill Space Tenants for all Arrears for one (1) year
following the date of Closing. The provisions of this Section 7(a)(i)(A) shall
survive the Closing.
(B) As to any Space Lease(s) that provide for the payment of
additional rent based upon a percentage of the Space Tenant's business during a
specified annual or other period, or provides for so-called "reimbursements"
based upon real estate taxes, operating expenses or insurance expenses or
otherwise (which such additional rent and "reimbursements" are collectively
called "Overage Rent"), if the Closing shall occur prior to the time when any
such Overage Rent is payable, then such Overage Rent for the applicable
accounting period in which the Closing occurs shall be apportioned as of the
Closing, but upon collection thereof . Purchaser agrees that it will receive and
hold such Overage Rent and pay over to the Seller the proportion of such Overage
Rent as the portion of expenses incurred in such accounting period during which
Seller was in title to the Premises bears to expenses incurred during the entire
such accounting period, provided, however, that percentage rent shall be
prorated over the year for which such rent applies based upon the number of days
in such year which each of Seller and Purchaser owned the Premises. As to any
Overage Rent in respect to an accounting period that shall have expired prior to
the Closing but which shall become payable after the Closing, the Purchaser
agrees that it will receive and hold such Overage Rent and pay the entire amount
over to the Seller upon receipt thereof. Seller shall furnish to Purchaser all
information (including the form of the bill to be rendered) necessary for the
billing of such Overage Rent. Purchaser agrees that it shall render bills
(calculated by Seller if applicable to a period during Seller's ownership) for
Overage Rent following the Closing and shall, upon receipt thereof, promptly pay
to the Seller the amount to which the Seller is entitled as above provided. The
provisions of this Section 7(a)(i)(B) shall survive the Closing.
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(ii) Water rates and water meter charges, if any, not payable by
the Space Tenants on the basis of the fiscal period for which assessed. If there
be a water meter or meters (other than meters under which charges are payable by
a Space Tenant) the unfixed meter charges and the unfixed sewer rent thereon for
the time intervening from the date of the last reading shall be apportioned on
the basis of such last reading, and shall be appropriately readjusted after the
Closing on the basis of the next subsequent bills. As to any water charges
payable by Space Tenant(s) as aforementioned, if the Space Tenant(s) shall have
failed to pay such water charges, such unpaid charges and the liens, if any,
resulting therefrom shall not be objections to title, or be the basis of any
claim whatsoever by Purchaser against Seller and Purchaser shall close title in
accordance with the terms of this Contract subject to such unpaid charges and
rents and such liens without abatement or credit against the Purchase Price.
Seller is not aware of any overdue water charges as of the date hereof. The
provisions of this Section 7(a)(ii) shall survive the Closing.
(iii) Real estate, school and sewer taxes and installments of
special assessments for the current tax year shall be prorated on a due date
basis as is customary in Oakland County, Michigan. As to any real estate, school
and sewer taxes payable by any Space Tenant under a Space Lease that is
obligated to pay taxes directly to the taxing authority ("Direct Tax-Paying
Tenant"), such as Home Depot, if such Direct Tax-Paying Tenant shall have failed
to pay such taxes, such unpaid taxes and the liens, if any, resulting therefrom
shall not be objections to title, if same are still payable without penalty at
the time of Closing, or be the basis of any claim whatsoever by Purchaser
against Seller and Purchaser shall close title in accordance with the terms of
this Contract subject to such unpaid charges and rents and such liens without
abatement or credit against the Purchase Price. Seller is not aware of any
delinquent real estate taxes owing by any Direct Tax-Paying Tenant as of the
date hereof. The provisions of this Section 7(a)(iii) shall survive the Closing.
(iv) Charges under service contracts not terminated on or prior
to the Closing and other normal and customary operating expenses incurred by
Seller in connection with the operation of the Property for periods which
include the Closing Date.
(b) At the Closing, Seller shall deliver to Purchaser the Space
Tenants' security deposits as required by the Space Leases, or credit the
Purchase Price on account of said security deposits; provided, however, that if
any Space Tenant is in default under the terms of its Space Lease and has
vacated its premises, Seller may retain so much of such Space Tenant's security
deposit as shall be sufficient to cover Seller's loss by reason of the default.
It is further agreed that nothing herein contained shall be deemed to prevent
Seller from applying security deposits prior to Closing in order to liquidate
any claim under a Space Lease as provided in such Space Lease or to compromise,
adjust or settle with any Space Tenant for the disposition of any claims by the
application of such security deposits provided such Space Tenant has vacated its
premises.
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8. VIOLATIONS. Purchaser shall accept the Premises subject to any notes
or notices or violations of law or municipal ordinances, orders or requirements
imposed or issued by any governmental or quasi-governmental authority having or
asserting jurisdiction, against or affecting the Premises (collectively
"Violations") and any conditions which may result in Violations. The foregoing
notwithstanding, in the event that Seller receives notice of any Violations
after the date of execution of this Contract, Seller shall notify Purchaser
thereof. Seller may elect to either cure such violations or notify Purchaser
that Seller shall not cure the same. In the event that Seller so notifies
Purchaser of a Violation, Purchaser shall have the right to elect to terminate
this Contract within three (3) business days after such notice is given, in
which event Purchaser shall receive a return of the Deposit and the parties
shall have no further liability to each other hereunder, except as set forth in
Section 27(e) hereof. If Purchaser does not elect to so terminate this Contract,
Purchaser shall acquire the Premises subject to such Violation. Purchaser shall
be responsible for all Violations from and after the Closing Date. The
provisions of this Section 8 shall survive the Closing.
9. PENDING TAX PROCEEDINGS. Seller represents that there are no
proceedings to review the real estate tax assessment of the Premises.
10. "AS-IS." Purchaser represents to Seller that (i) Subject to
Seller's representations, and warranties set forth in this Contract, Purchaser
has independently examined, inspected, and investigated to the full satisfaction
of Purchaser, the physical nature and condition of the Premises and the income,
operating expenses and carrying charges affecting the Premises, (ii) except as
expressly set forth in this Contract, neither Seller nor any agent, officer,
employee, or representative of Seller has made any representation whatsoever
regarding the subject matter of this Contract or any part thereof, including
(without limiting the generality of the foregoing) representations as to the
physical nature or condition of the Premises, the existence or non-existence of
asbestos, hazardous substances or wastes, underground storage tanks or any other
environmental hazards on or about the Premises, or the Space Leases, or
operating expenses or carrying charges affecting the Premises, and (iii)
Purchaser, in executing, delivering and performing this Contract, does not rely
upon any statement, offering material, operating statement, historical budget,
engineering structural report, any environmental reports, information, or
representation to whomsoever made or given, whether to Purchaser or others, and
whether directly or indirectly, verbally or in writing, made by any person, firm
or corporation except as expressly set forth herein, and Purchaser acknowledges
that any such statement, information, offering material, operating statement,
historical budget, report or representation, if any, does not represent or
guarantee future performance of the Premises, except as expressly set forth in
Seller's representations and warranties set forth in this Contract. Without
limiting the foregoing, but in addition thereto, except as otherwise expressly
set forth in this Contract, Seller shall deliver, and Purchaser shall take, the
Premises in their "as is" condition on the Closing Date subject to Section 12.
11. BROKER. Seller and Purchaser represent to each other that neither
party has dealt with any broker or real estate consultant in connection with the
transactions
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contemplated by this Contract. Seller and Purchaser shall indemnify and hold the
other free and harmless from and against any damages, costs or expenses
(including, but not limited to, reasonable attorneys' fees and disbursements)
suffered by the indemnified party arising from a misrepresentation or a breach
of any covenant made by the indemnifying party pursuant to this Section 11. The
provisions of this Section 11 shall survive the Closing.
12. DESTRUCTION OR CONDEMNATION.
(a) If on or prior to the Closing there is a casualty or
condemnation affecting the Premises which constitutes a Substantial Loss,
Purchaser shall have the option of canceling this Contract within fifteen (15)
days after notice of such casualty or condemnation, in which event, the Deposit
shall be returned to the Purchaser and this Contract deemed cancelled and of no
force and effect and neither party shall have any further rights or liabilities
against or to the other. In the event of a Substantial Loss, and Purchaser does
not elect to cancel this Contract, or in the event that the casualty or
condemnation does not constitute a Substantial Loss, then the Purchaser and
Seller shall consummate the transaction contemplated by this Contract without
any reduction or abatement in the purchase price (except as set forth below) and
Seller, upon the Closing, shall assign to the Purchaser all of its rights in and
to any insurance proceeds or condemnation awards, as the case may be, in
connection with such casualty or condemnation. In the event of a casualty, the
Purchase Price shall be reduced by the amount of the deductible under such
casualty insurance policy. Seller shall reasonably cooperate with Purchaser in
negotiating a settlement with the casualty insurance carrier, provided that
Seller shall not be required to expend funds in connection therewith.
(b) As used herein, "Substantial Loss" with respect to a Property
shall mean a casualty or condemnation that either (i) shall entitle any Anchor
Space Tenant denoted as such on Exhibit C annexed hereto (each an "Anchor Space
Tenant" and collectively the "Anchor Space Tenants") at such Property to
terminate its Space Lease on or after the Closing Date and Seller has failed to
obtain a waiver of such termination right or (ii) requires repairs or
restoration costs or will result in condemnation proceeds in excess of Two
Hundred Fifty Thousand Dollars ($250,000). In the event Purchaser elects to
cancel this Contract by reason of subparagraph (i) above, Seller may rescind
such cancellation by delivering, within fifteen (15) days after the receipt of
Purchaser's notice of cancellation, a waiver by each Anchor Space Tenant which
was entitled to terminate its Space Lease by reason of the casualty or
condemnation of its right or option to so terminate, so long as such waiver does
not impose new economic obligations upon Purchaser as a result of such waiver.
(c) The provisions of this Section 12 supersede the provisions of
any applicable statutory or decisional law with respect to the subject mater
contained in this Section 12.
13. STATUS OF TITLE. Seller shall deliver and Purchaser shall accept
title to the Premises and consummate the transaction contemplated by this
Contract subject to
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(a) the title exceptions which Purchaser approves or is deemed to approve
pursuant to Paragraph 17(c) hereof, (b) title exceptions created or suffered by
the Purchaser and (c) such other title exceptions which Seller may, in
accordance with the provisions of this Contract, cause the Title Company to omit
or affirmatively insure will not be collected out of the Premises (the title
exceptions, whether liens, encumbrances, defects, encroachments or other
objections, described in (a), (b), and (c) being sometimes referred to
collectively as "Permitted Exceptions").
14. CLOSING. The closing of title (the "Closing") shall take place on a
date selected by Purchaser on or before January 31, 2001 (the "Closing Date")
through escrow at the offices of Title Company, time being of the essence
(except that Seller may adjourn the Closing in accordance with other express
provisions of this Contract,) at which time the Deed to the Property shall be
delivered upon payment to Seller of the Purchase Price pursuant to escrow
instructions prepared and agreed upon by Seller and Purchaser acting in good
faith, which escrow instructions shall be consistent with the terms of this
Contract. Notwithstanding anything contained herein or at law or in equity,
Purchaser expressly agrees that it shall have no right or privilege to adjourn
the Closing and Purchaser's inability or refusal to close title on the date
scheduled for Closing shall be a default under this Contract.
15. NOTICES. All notices hereunder shall be sent by certified or
registered mail, return receipt requested, or may be sent by Federal Express or
other overnight courier which obtains a signature upon delivery, or may be sent
by facsimile transmission, or may be delivered by hand delivery addressed to
Seller at the address (or facsimile telephone number) set forth below or at such
other address as Seller shall designate from time to time by notice to
Purchaser:
Seller: Ramco-Gershenson Properties, L.P.
27600 Northwestern Hwy., Suite 200
Southfield, Michigan 48034
Attention: Dennis Gershenson
Facsimile Number: (248) 728-1600
With a copy to: Honigman Miller Schwartz and Cohn LLP
2290 First National Building
Detroit, Michigan 48226-3583
Attention: Richard J. Burstein, Esq.
Facsimile Number: (313) 465-7339
and to Purchaser at the address given for Purchaser below or at such other
address as Purchaser shall from time to time designate by notice to Seller:
Purchaser: Pontiac Mall Limited Partnership
27600 Northwestern Highway
Suite 200
Southfield, Michigan 48034
Attention: Bruce Gershenson
Facsimile Number: (248) 728-1600
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With a copy to: Honigman Miller Schwartz and Cohn LLP
2290 First National Building
Detroit, Michigan 48226-3583
Attention: Alan M. Hurvitz, Esq.
Facsimile Number: (313) 465-7419
Notices to Escrowee shall be sent to the following address or to such other
address as Escrowee shall from time to time designate by notice to Seller and
Purchaser:
Escrowee:
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Attention:
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Facsimile Number:
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Notices shall be deemed given three (3) business days after mailing, and in the
case of overnight courier or hand delivery, on the date actually delivered or
sent by facsimile to the intended recipient, except for notice(s) which advise
the other party of a change of address of the party sending such notice or of
such party's attorney, which notice shall not be deemed served until actually
received by the party to whom such notice is addressed or delivery is refused by
such party. Notices on behalf of the respective parties may be given by their
attorneys and such notices shall have the same effect as if in fact subscribed
by the party on whose behalf it is given. Notwithstanding the foregoing
provisions of this Section 15, notices served by hand delivery or facsimile
shall be deemed served on the date of delivery if delivered at or prior to 6:00
P.M. Eastern Standard Time, and on the next business day if delivered after 6:00
P.M. Eastern Standard Time.
16. FRANCHISE TAXES. Unpaid franchise or corporation taxes, dissolution
taxes or any other similar taxes so levied, of any corporation in the chain of
title shall be no objection to title so long as the Title Company insures
against collection of any such taxes out of or enforcement against the Premises
without special or additional premium or if such special or additional premium
is required, if Seller shall pay such special or additional premium.
17. TITLE REPORT; SURVEY.
(a) Purchaser shall obtain a commitment (the "Commitment") to issue
a policy of title insurance prepared by a title company acceptable to Purchaser
(the "Title Company") in such form as Purchaser may desire, with such
endorsements as Purchaser may desire which are available. Immediately prior to
the Closing, the Commitment shall be endorsed to advance its effective date,
and, at Closing, the Commitment shall be marked up by the Title Company in order
to assure Purchaser that (i) the title to the Property is in the condition
required hereunder as of the Closing Date and (ii) such coverage shall extend
during the period between the most recent
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effective date of the Commitment and the recording of the deed to the Property
conveying same to Purchaser. The policy of title insurance shall be issued upon
consummation of the sale, at Purchaser's sole expense.
(b) Prior to the execution of this Contract, Seller has delivered
to Purchaser copies of such surveys of the Property as are in Seller's
possession. Seller shall cause Seller's most recent survey of the Property to be
updated and recertified to Purchaser. Seller shall cause such survey (the
"Survey") to be delivered to Purchaser within ten (10) days after the date of
this Contract.
(c) Purchaser shall acquire title subject to those matters set
forth in Exhibit D attached hereto and made a part hereof, all of which shall be
Permitted Exceptions. In the event Purchaser notes any objections to title, or
in the event that there are any matters of record not set forth in Exhibit D,
which could, in Purchaser's judgment, interfere with the use of the Property as
same is currently being used, Purchaser shall so notify Seller thereof, and
Seller shall have ten (10) business days from the time that it is notified in
writing of the particular defect(s) claimed to provide Purchaser with a revised
title commitment evidencing that such defect has been remedied and/or insured
over in a manner satisfactory to Purchaser, but Seller shall not be obligated to
do so. If Seller is unable or unwilling to obtain such revised title commitment
within said ten (10) business day period, Purchaser shall have the option (i) to
proceed with the purchase of the Premises, in which event the Covenant Deed
covering the Premises will be executed and delivered subject to any such
defects; or (ii) to terminate this Contract and receive the Deposit, in full
termination of any and all liability of Seller and Purchaser under this
Contract. Purchaser shall make its election within five (5) days after the end
of such ten (10) business day period. If Purchaser fails to make such election,
Purchaser shall be deemed to have elected to proceed under (i) above. Any matter
to which Purchaser does not timely object shall be Permitted Exceptions.
Purchaser shall not object to any documents relating to the current BankOne
mortgage encumbering the Premises. Seller shall cause all documents relating to
the current BankOne mortgage (or any other mortgage) encumbering the Premises,
and any monetary lien caused by Seller's acts or omissions, to be discharged
from record prior to or at the Closing. With respect to any monetary liens
encumbering the Premises not caused by Seller's acts or omissions, Seller shall
not be required to discharge same, but shall, in good faith, attempt to have
same removed or bonded over, provided Seller shall not be obligated to post a
bond greater than $100,000 in connection therewith. If Seller does not elect to
bond over or discharge same, then Seller shall so notify Purchaser, and
Purchaser shall have the right to elect to terminate this Contract within three
(3) business days after such notice is given, in which event Purchaser shall
receive a return of the Deposit and the parties shall have no further liability
to each other hereunder, except as set forth in Section 27(e) hereof. If
Purchaser does not elect to so terminate this Contract, Purchaser shall acquire
the Premises subject to such lien.
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18. Intentionally Deleted.
19. OWNER'S AFFIDAVIT. Seller shall execute a standard Owner's
Affidavit to cause the Title Company to remove the so-called "standard
exceptions" from the Commitment.
20. ASSIGNMENT OF THIS CONTRACT. Subject to the provisions of Section
29(l) hereof, this Contract may not be assigned by Purchaser without the prior
written consent of Seller, not to be unreasonably withheld or delayed. A
transfer, sale or assignment of the majority stock or membership interest in a
corporate or limited liability company purchaser or in a corporate or limited
liability general partner of a partnership purchaser, or of a general
partnership interest in a partnership purchaser, shall constitute an assignment
of this Contract, which assignment or attempted assignment shall be void if made
without the written consent of the Seller. The foregoing notwithstanding,
Purchaser shall have the right to assign, directly or indirectly, its interest
in this Contract to any entity controlled by Purchaser without obtaining
Seller's consent. No assignment of this Contract, whether or not permitted,
shall be deemed to relieve or release Purchaser from any of its obligations
(whether to be performed prior to or after Closing) set forth herein.
21. DEED; TRANSFER TAXES; EXISTING MORTGAGE EXPENSES.
(a) The deed to the Premises shall be a covenant deed (a "Deed") in
proper statutory form for recording in the state of Michigan in form sufficient
to allow the Title Company to issue its title policy required under the Contract
and shall be duly executed and acknowledged so as to convey to Purchaser the fee
simple of the portion of the Premises covered thereby, free of all liens and
encumbrances, except as herein stated.
(b) At the Closing, Seller shall pay the cost of any amount of
documentary stamps, transfer tax or similar conveyance tax imposed in connection
with the delivery and recording of the Deed (collectively, the "Transfer Tax")
and Purchaser and Seller shall execute and deliver any returns and/or affidavits
in connection with the recording of the Deed or the payment of the Transfer Tax.
Purchaser shall pay the recording fee charged for recording the Deed.
22. DEFAULT. In the event that Purchaser shall fail to consummate this
Contract for any reason, except for Seller's default hereunder or termination of
this Contract by Purchaser or Seller pursuant to a right to do so under the
terms and provisions of this Contract, then Seller, as its sole and exclusive
remedy, may terminate this Contract by notifying Purchaser thereof and receive
the Deposit as liquidated damages. In no event shall Purchaser be liable for
speculative or consequential damages or be subject to the remedy of specific
performance, provided that Purchaser shall remain liable for all of its
indemnity obligations under this Contract. In the event that Seller shall fail
to consummate this Contract for any reason, except for Purchaser's default
hereunder or termination of this Contract by Purchaser or Seller pursuant to a
right to do so under the terms and provisions of this Contract, then Purchaser
shall be
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entitled, as its sole and exclusive remedies, either to (a) a return of the
Deposit; or (b) to seek specific performance of the terms and conditions of this
Contract. In no event shall Seller be liable for any damage remedy, except for:
(i) a willful and intentional breach of this Contract or of any warranty prior
to the Closing, in which event, if Purchaser does not seek specific performance,
Purchaser shall be entitled to collect from Seller the Purchaser's actual
out-of-pocket expenses incurred by Purchaser in connection with this transaction
contemplated by this Contract, the negotiation of this Contract, and the
performance of inspections and other due diligence with respect to the Property,
including without limitation expenses as well as attorneys' and consultants'
fee, whether before, on or after the date of this Contract, up to a maximum
amount of One Hundred Thousand Dollars ($100,000); or (ii) any claim for a
breach of warranty discovered by Purchaser following the Closing.
23. ESCROW OF DEPOSIT. With respect to the Deposit, Escrowee is
instructed as follows:
(a) Upon the Closing, the Deposit shall be paid over to Seller.
(b) In the event Purchaser should default under this Contract,
Escrowee shall, if directed by Seller, pay the Deposit to Seller who shall
retain it as and for its liquidated damages hereunder.
(c) In the event Seller shall fail to close title by reason of a
default by Seller or in the event this Contract is terminated in accordance with
its terms through no fault of Purchaser, the Deposit shall be paid over to
Purchaser.
(d) Escrowee shall invest the Deposit in such bank or money market
accounts or United States Government Treasury Bills as Purchaser shall direct.
Any interest earned on Deposit when received shall similarly be held in escrow
by the Escrowee and if under the terms of this Contract (i) the Deposit under
the terms of this Contract is to be paid over to Purchaser, then such interest
shall be paid over to Purchaser, or (ii) the Deposit is to be paid over to
Seller, then such interest shall be paid over to Seller.
(e) Escrowee, by signing this Contract at the end hereof where
indicated, signifies its agreement to hold the Deposit for purposes as provided
in this Contract. In the event of any dispute, Escrowee shall have the right to
deposit the Deposit in court to await the resolution of such dispute. In any
event, Escrowee shall not be personally liable so long as it acts in good faith.
(f) Escrowee shall not incur any liability by reason of any action
or non-action taken by Escrowee in good faith or pursuant to the judgment or
order of a court of competent jurisdiction. Escrowee shall have the right to
rely upon the genuineness of all certificates, notices and instruments delivered
to it pursuant hereto, and all the signatures thereto or to any other writing
received by Escrowee purporting to be signed by any party hereto, and upon the
truth of the contents thereof. Before making payment or delivery of any moneys
or documents held by Escrowee pursuant
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hereto, Escrowee shall have the right to require delivery to it of an executed
and acknowledged receipt for the subject matter of the delivery to be made by
it. In the event of any dispute between the parties as to whether either party
is in default hereunder or as to any other material fact, Escrowee shall have
the right to refrain from taking any further action with respect to the subject
matter of the escrow until it is reasonably satisfied that such dispute is
resolved or action by Escrow is required by an order or judgment of a court of
competent jurisdiction. Escrowee shall be entitled to consult with other counsel
in connection with its duties hereunder. Seller and Purchaser jointly and
severally, agree to indemnify Escrowee from any and all liability that may arise
hereunder and to reimburse Escrowee for its reasonable costs and expenses,
including reasonable attorneys' fees (either paid to retained attorneys or
representing the fair value of legal services rendered by Escrowee to itself)
incurred as a result of any dispute or litigation arising hereunder.
24. REPRESENTATIONS.
(a) Seller represents that unless otherwise herein stated, as of
the date hereof:
(i) To its best knowledge, Exhibit C represents a true,
accurate and complete list in all material respects of (A) all Space Tenants
under Space Leases; (B) the current base rent and (C) the security deposits
presently held by Seller. Seller has, to its best knowledge, delivered true,
accurate and complete copies of the Space Leases to Purchaser.
(ii) To Seller's best knowledge, except as set forth on Exhibit
C, Seller has not received rents from the Space Tenants (other than security
deposits) in excess of one (1) month in advance.
(iii) To Seller's best knowledge, except as set forth in
Exhibit E, there are no written service contracts or management agreements (the
"Service Contracts") affecting the Premises or the operation or use thereof
which will be binding upon Purchaser after the Closing except those which may be
cancelled upon not more than thirty (30) days' notice without payment of
cancellation fee or penalty.
(iv) There is no litigation pending (A) between Seller, as
landlord, under the Space Leases and any Space Tenant, or (B) affecting title to
the Premises, or this Contract, or the Premises, except for litigation covered
by insurance which litigation is disclosed to Purchaser by Seller.
(v) Seller is a validly existing Delaware limited partnership,
and authorized to do business in the state where the Property it owns is
located. The execution, delivery and performance of this Contract in accordance
with its terms, does not violate the partnership agreement of Seller, or any
contract, agreement, commitment, order, judgment or decree to which Seller is a
party or by which it, or the Premises, are bound, or result in the creation of
any lien, charge or encumbrance upon the Premises or any part thereof. Seller
will have the right, power and authority to make
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and perform its obligations under this Contract without the need for
governmental approval, consent or filing and this Contract shall be a valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms.
(vi) Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code").
(vii) Seller has not received written notice of any
condemnation proceedings, eminent domain proceedings, proceedings to change the
zoning or similar actions or proceedings which are pending against the Premises
or any part thereof.
(viii) There are no employees of Seller at the Properties for
which Purchaser shall be responsible after the Closing.
(ix) Seller has no knowledge of the existence or prior
existence of any hazardous material located in the Premises in violation of any
applicable law. Seller has no knowledge of any underground or other storage
tanks located within the Premises.
(x) Seller did not intentionally alter or delete portions of
the due diligence materials given to Purchaser prior to delivering such
materials to Purchaser, and, to Seller's knowledge, such materials were
delivered to Purchaser in their true and complete forms.
(xi) Seller represents and warrants that (a) Seller is not an
"employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA and (b) the assets of Seller do not constitute "plan assets" of one or
more plans subject to ERISA or Section 4975 of the Internal Revenue Code of
1986, as amended within the meaning of 29 C.F.R. Section 2510.3-101.
(b) As used herein items in the "possession" of Seller or "received" by
Seller shall mean only writings actually delivered into the possession of Seller
and shall not include writings addressed to Seller but sent or delivered to the
Space Tenants or other third parties or to other locations. Furthermore, as used
herein, the term "to the best of Seller's knowledge" or "to Seller's knowledge"
or words of similar import, shall mean only the actual, unimputed knowledge of
Seller, without any due diligence or investigation being performed.
(c) The representations contained in subsection (a) above shall survive
for a period of twelve (12) months following the Closing Date, and any claim by
Purchaser in connection therewith must be made within such twelve (12) month
period.
(d) Subject to the succeeding provisions of this subparagraph (d) and
Paragraph 22 hereof, if any representation of Seller shall fail to be true, and
Purchaser is made aware of same or discovers same prior to Closing, Purchaser's
sole remedy shall be to terminate this Contract and receive the return of the
Deposit, and upon the receipt of same this Contract shall be null and void and
of no further force or effect and
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neither party shall have any rights or obligations against or to the other.
Seller shall, in any event, have the option (i) to rescind Purchaser's
termination of the Contract and adjourn the Closing for a period not to exceed
thirty (30) days in order to make such representations true, or (ii) unless
Purchaser waives all liability of Seller by reason of such untrue
representation, to terminate this Contract and promptly return the Deposit to
Purchaser, and upon the making of such return this Contract shall be null and
void and of no further force or effect and neither party hereto shall have any
rights or obligations against or to the other, except as set forth in Paragraph
22 hereof. If Purchaser waives such liability, then in such event, the Closing
shall take place without abatement or reduction in the Purchase Price. If the
Closing shall take place without Purchaser making an objection (by notice
delivered at the Closing) to an untrue representation of which Purchaser shall
have actual, not imputed knowledge, Purchaser shall be deemed to have waived all
liability of Seller by reason of such untrue representation.
25. CLOSING DOCUMENTS. At the Closing (unless otherwise expressly
indicated):
(a) Seller shall deliver to Purchaser the following items:
(i) a Deed for the Property in accordance with Section 21
hereof.
(ii) the Assignment of Space Leases for the Property executed
by Seller, which Assignment shall be in the form of Exhibit F attached hereto.
(iii) duplicate originals, or if duplicate originals are not
available, true and complete copies certified as true by Seller, of all of the
Space Leases.
(iv) to the extent in Seller's possession, the real estate tax
bills then payable for each Property for the then current real estate tax year.
(v) a duly executed certificate of Seller, in the applicable
form set forth in Treasury Regulations Section 1.1445-2(b)(2).
(vi) an assumption agreement ("Assumption Agreement") in a
mutually agreeable form whereby Purchaser assumes all of Seller's obligations
under the ECR and the Development Agreement.
(vii) at least five (5) business days prior to Closing, and
subject to the terms of Section 25(a)(vii)(B), estoppel certificates ("Estoppel
Certificates"), in form and substance which does not vary materially from the
form annexed hereto as Exhibit G executed by each of the Anchor Space Tenants
and Space Tenants under Space Leases which (together with the Anchor Space
Tenants) demise an aggregate number of rentable square feet equal to at least
eighty-five (85%) of the rented space at the Premises on the date hereof (which
shall include Estoppel Certificates from all Space Tenants leasing at least five
thousand [5,000] square feet of space); provided, however, with respect to
Anchor Space Tenants, Seller shall only be required to deliver
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such tenant estoppel certificate which is required under the Space Lease for
such Anchor Space Tenants;
(A) If the required number of Estoppel Certificates cannot
be timely delivered, or if the required number of Estoppel Certificates which
are timely delivered do not cover the material applicable matters set forth in
Exhibit G, Seller may, but shall not be obligated to, adjourn the Closing for a
period not to exceed thirty (30) days, to obtain satisfactory Estoppel
Certificates or, if Purchaser consents, deliver its certificate ("Seller's
Certificate") with respect to not more than fifty (50%) percent of the
non-Anchor Space Tenants, covering all of the matters set forth in Exhibit G if
no Estoppel Certificate is delivered by a Space Tenant or covering the matters
not covered by a Space Tenant. Subsequent to the Closing, Seller may deliver to
Purchaser Estoppel Certificates or supplemental Estoppel Certificates covering
those matters not covered by the previously delivered Estoppel Certificates.
Upon delivery of such Estoppel Certificates, Seller shall be entirely released
from all liability arising out of Seller's Certificate delivered at the Closing
as Seller's Certificate relates to the particular Space Tenant and/or Space
Lease covered by the Estoppel Certificate, to the extent the information
contained in such Estoppel Certificates is consistent with the information
contained in Seller's Certificate. If Seller does not or cannot deliver the
required number of Estoppel Certificates or Seller's Certificate, or if
Purchaser elects to not accept Seller's Certificate, Purchaser's sole remedy
shall be to terminate this Contract and receive the return of the Deposit or to
close title notwithstanding the lack of the Estoppel Certificate or Seller's
Certificate without any reduction of the Purchase Price and without any
liability of Seller relative thereto.
(B) (1) In the event any Estoppel Certificate or Seller's
Certificate shall indicate a default by landlord under a Space Lease (such
default hereinafter being referred to as an "Estoppel Default"), then Seller
may, but shall not be obligated to, elect to cure any such Estoppel Default and
shall, for that purpose, be entitled to adjourn the Closing for a period not to
exceed thirty (30) days, provided, however, that in the event Seller elects not
to cure such Estoppel Default or is unable to cure such Estoppel Default within
such period of time, Purchaser's sole remedy shall be to terminate this Contract
and receive the return of the Deposit.
(2) Furthermore, in addition to the foregoing, if the
required Estoppel Certificates have not been timely delivered, then Purchaser
shall have the right to extend the Closing for a period not in excess of ten
(10) days and Purchaser shall have the right to attempt to obtain such Estoppel
Certificates; provided that Seller shall have no liability if Purchaser is
unable to do so.
(viii) to the extent then in Seller's possession or control,
copies of plans and specifications relating to the Properties.
(ix) a bill of sale without representation or warranty for any
personal property being conveyed pursuant to this Contract.
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(x) the Assignment of Service Contracts for the Property
executed by Seller, which assignment shall be in the form of Exhibit H attached
hereto.
(xi) the Outparcel Easements.
(xii) an estoppel letter executed by the First Baptist Church
of Pontiac (the "Church") providing that the Church is not aware of any default
under that certain Agreement between the Church and Seller dated June 26, 1998
or that certain Easement Agreement between the Church and Seller dated June 26,
1998 and that both agreements are still in full force and effect.
(b) Purchaser shall pay the Purchase Price to Seller or as Seller may
direct, through the Escrowee, as provided in Section 3 hereof.
(c) Purchaser shall execute, acknowledge (where required) and deliver
to Seller:
(i) the Assignments of the Space Leases;
(ii) the Assignments of the Service Contracts;
(iii) the Outparcel Easements; and
(iv) the Assumption Agreement.
(d) Seller and Purchaser shall execute a notice to each of the Space
Tenants stating in substance that Purchaser has succeeded to Seller's interest
as landlord under the Space Leases.
26. FURTHER ASSURANCES. The parties each agree to do such other and
further acts and things, and to execute and deliver such instruments and
documents (not creating any obligations additional to those otherwise imposed by
this Contract), as either may reasonably request from time to time, whether at
or after the Closing, in furtherance of the purposes of this Contract. The
provisions of this Section 26 shall survive the Closing.
27. CONDITIONS PRECEDENT TO CLOSING.
(a) Purchaser's obligation to consummate the transaction
contemplated herein is expressly conditioned upon Seller obtaining a permanent
certificate of occupancy for the Property and all improvements located thereon
(the "Certificate") prior to the Closing Date. If the Certificate has not been
obtained prior to the Closing Date, Purchaser may elect to either: (i)
consummate this transaction and waive such requirement; (ii) extend the Closing
Date for a reasonable period of time to allow Seller to obtain the Certificate,
which extension may not be for more than thirty (30) days; or (iii) terminate
this Contract. If Purchaser notifies Seller that Purchaser elects to terminate
this Contract, Seller may void such termination by notifying Purchaser that
Seller desires to extend the term for obtaining the Certificate, in which
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event the Closing Date shall be extended for a reasonable period of time to
allow Seller to obtain same, which extension may not be for more than thirty
(30) days. If the Closing Date is extended by either Seller or Purchaser as set
forth above, but the Certificate is not obtained by the end of such extension
period, then Purchaser shall either elect to (i) consummate this transaction and
waive such requirement, or (ii) terminate this Contract. In the event that
Purchaser duly terminates this Contract in accordance with this Paragraph 27(a),
this Contract shall be deemed terminated and of no further force or effect and
the Deposit shall be promptly returned to Purchaser.
(b) Time shall be of the essence with respect to the dates in this
Section for the satisfaction of the Requirements and the giving of Purchaser's
cancellation notice.
(c) Purchaser agrees to keep confidential as hereinafter provided
all information furnished to Purchaser by Seller concerning the Premises,
including, without limitation, Space Leases, Loan Documents, service contracts
or other contracts or agreements, various papers, documents, legal instruments,
studies, brochures, computer output, and other material, and any discussions or
visitations of the Premises (all of the aforementioned information is
collectively referred to as "Evaluation Material").
(d) All Evaluation Material shall not be used or duplicated by
Purchaser in any way detrimental to Seller, or for any purpose other than
evaluating a possible purchase of the Property by Purchaser. Purchaser agrees to
keep all Evaluation Material (other than information which is a matter of public
record or is provided in other sources readily available to the public other
than as a result of disclosure thereof by Purchaser or Related Parties) strictly
confidential; provided, however, that the Evaluation Material may be disclosed
to the directors, officers, and employees and partners of Purchaser, and to
Purchaser's attorneys and accounting firm and other professional consultants
(all of whom are collectively referred to as "Related Parties") who need to know
such information for the purpose of evaluating a possible purchase of the
Premises. These Related Parties shall be informed of the confidential nature of
the Evaluation Material and shall be directed to keep all such information in
the strictest confidence and use such information only for the purpose of
evaluating a possible purchase by Purchaser. If Purchaser elects to terminate
this Contract, Purchaser will promptly, upon request of Seller, deliver to
Seller all Evaluation Material furnished to them by Seller, whether furnished
before or after the date hereof, without retaining copies thereof. Purchaser
will direct Related Parties to whom Evaluation Material is made available not to
make similar disclosures and any such disclosure shall be deemed made by and be
the responsibility of Purchaser.
(e) During Purchaser's Due Diligence Period, Purchaser shall have
the right to enter Premises and perform such tests, studies and surveys as
Purchaser may desire, so long as same are performed in an unobtrusive manner,
and without interference to the operation of the Premises. Purchaser shall
notify Seller prior to entering the Premises for the purposes set forth above,
and shall coordinate its entry and its activities with Seller. Purchaser shall
repair any damage to the Premises
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causes by Purchaser's activities and shall indemnify, defend and hold Seller
harmless from and against any and all loss, cost, liability and expense incurred
by Seller as a result of Purchaser's activities. Purchaser shall have the right
to interview tenants of the Property, either on-site or by telephone conference,
provided that Purchaser shall notify Seller of Purchaser's intent to do so, and
shall allow Seller to accompany Purchaser with on-site visits, or to allow
Seller to participate in telephonic calls, if Seller so desires, provided that
Seller shall arrange to be reasonably available for same. Prior to entering the
Premises, Seller may require Purchaser to provide Seller with evidence of
adequate liability insurance, in form reasonably acceptable to Seller, naming
Seller as an additional insured.
(f) The provisions of Sections 27(c), 27(d) and 27(e) shall survive
the termination of this Contract.
28. ENTITY CONSENTS; PURCHASER'S REPRESENTATIONS.
(a) At the Closing, Seller and Purchaser shall each deliver any and
all appropriate partnership consents or certificates by the secretary of each
corporation (including any corporate general partner) certifying as to the
corporate resolution authorizing this transaction.
(b) Purchaser represents that: (i) it is, and will at the Closing
be, a limited partnership duly organized and validly existing under the laws of
Michigan, (ii) the execution, delivery and performance of this Contract in
accordance with its terms, do not violate the corporate charter, by-laws or
certificate of incorporation of Purchaser, or any contract, agreement,
commitment, order, judgment or decree to which Purchaser has the right, power
and authority to make and perform its obligations under this Contract; (iv) this
Contract is a valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms. Purchaser covenants and warrants that
the representations in the preceding sentences of this Section 28(b) will be
true on the Closing with respect to Purchaser or any permitted assignee of
Purchaser; (v) Purchaser will have the right, power and authority to make and
perform its obligations under this Contract without the need for governmental
approval, consent or filing and this Contract shall be a valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms and (vi) Purchaser has the current financial ability to pay the Purchase
Price and otherwise perform its obligations under this Contract.
(c) Purchaser represents and warrants that: (i) Purchaser is not an
"employee benefit plan" as defined in Section 3 (3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA; (ii) the assets of the Purchaser do not constitute "plan assets" of
one or more plans, subject to ERISA or Section 4975 of the Code, within the
meaning of 29 C.F.R. Section 2510-101; and (iii) subject to the accuracy of
Seller's representation in Section 24(xi), Purchaser is not a "party in
interest" to Seller within the meaning of ERISA. Purchaser covenants and
warrants that the representations in the preceding sentences of this Section 28
(c) will be true on the Closing.
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29. MISCELLANEOUS.
(a) This Contract and Exhibits annexed hereto constitute the entire
agreement between the parties hereto with respect to the subject matter thereof,
and except for any other documents executed contemporaneously herewith all
understandings and agreements heretofore or simultaneously had between the
parties hereto, including without limitation, any letter of intent or initial
escrow agreement, are merged into and are superseded in their entirety by this
Contract.
(b) This Contract may not be waived, changed, modified or
discharged orally, but only by an agreement in writing signed by the party
against which any waiver, change, modification or discharge is sought.
(c) The captions or article titles contained in this Contract and
the Index, if any, are for convenience and reference only and shall not be
deemed a part of the text of this Contract.
(d) The terms "hereof," "herein," and "hereunder," and words of
similar import, shall be construed to refer to this Contract as a whole, and not
to any particular article or provision, unless expressly so stated.
(e) The Exhibits annexed hereto are hereby incorporated in and made
part of this Contract.
(f) All words or terms used in this Contract, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
(g) This Contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective assigns, if any, but nothing
contained herein shall be deemed a waiver of the provisions of Section 20
hereof. None of the provisions of this Contract are intended to be, nor shall
they be construed to be, for the benefit of any third party.
(h) If a party is required to perform an act or give a notice on a
date that is a Saturday, Sunday or national holiday, the date such performance
or notice is due shall be deemed to be the next business day.
(i) This Contract is to be governed and construed in accordance
with the laws of the State of Michigan.
(j) The terms "affiliates" and "subsidiaries" shall be given the
same meaning as used in the broadest sense in any provision of the rules and
regulations governing federal taxation and securities.
(k) Neither Seller nor Purchaser may record this Contract or a
memorandum of this Contract. Purchaser hereby waives, to the extent permitted by
law, any right to file a lis pendens or other form of attachment against the
Property in
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connection with this Contract or the transactions contemplated hereby other than
a lis pendens or other such form of attachment that may be filed by Purchaser
contemporaneously with the commencement by Purchaser of an action for a specific
performance under Section 22 hereof. To the extent any such filing is made in
violation of this Contract, Purchaser shall indemnify Seller against any damages
incurred by Seller in connection therewith. In the event Purchaser shall be
unsuccessful in an action for a specific performance, it shall immediately cause
any lis pendens or other such form of attachment to be cancelled and removed
from the public record. The provisions of this section shall survive the
termination of this Contract.
(l) Purchaser and/or Seller may desire that the transaction
contemplated herein be part of a tax-free exchange transaction under Section
1031 of the Code. Each party shall cooperate therewith and shall execute such
documents as may be necessary to achieve the same, so long as (i) the party so
required to cooperate (the "Cooperating Party") is not required to expend any
sums as a result thereof, (ii) the Cooperating Party does not incur any
additional liability in connection therewith; (iii) the Closing is not delayed
as a result thereof; and (iv) to the extent the Cooperating Party must sign any
documentation in connection therewith, such documentation shall be submitted in
advance to the Cooperating Party's counsel for their review, and legal fees
incurred thereby shall be paid by the party making the request. The foregoing
payment obligations shall survive any termination of this Contract.
INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have duly executed this Contract
the day and year first above written.
SELLER:
RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership
By: Ramco-Gershenson Properties Trust,
a Maryland Real Estate Investment
Trust
Its: General Partner
By:
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Its:
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PURCHASER:
PONTIAC MALL LIMITED PARTNERSHIP,
a Michigan limited partnership
By: Ramco Ventures, a Michigan
co-partnership, general partner
By:
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Its:
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As to Section 23:
ESCROWEE:
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By:
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Its:
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