EXHIBIT 10.68
CONTRACT OF SALE AND PURCHASE
(MISSION BY PLAZA AND
PLAZA AT DEL RAY SHOPPING CENTER)
THIS CONTRACT OF SALE AND PURCHASE (this "Contract") is made as of this 29
day of June, 2004 by and among NWC Glades 441, Inc., a Delaware corporation
Diversified Invest II, LLC, a Delaware limited liability company, Delray Retail,
Inc., a Delaware corporation and Diversified Invest III, LLC, a Delaware limited
liability company (individually, a "Seller" and collectively, "Sellers") and
RAMCO DEVELOPMENT, LLC, a Michigan limited liability company ("Purchaser").
Terms which are used in this Contract and not otherwise defined herein
shall have the meanings ascribed to such terms in ARTICLE 13 hereof.
RECITALS
A. NWC Glades 441, Inc. and Diversified Invest II, LLC are all of the
members of Boca Mission, LLC, a Delaware limited liability company.
B. Boca Mission, LLC owns a retail shopping center commonly known as
Mission Bay Plaza, Boca Raton, Florida, which constitutes a portion of the
Property (as hereinafter defined) (which may be referred to herein from time to
time as a "Center" or as "Mission Bay Plaza").
C. Delray Retail, Inc. and Diversified Invest III, LLC are all of the
members of Linton Delray, LLC, a Delaware limited liability company.
D. Linton Delray, LLC owns certain improved real property commonly known
as Plaza at Delray, Delray Beach, Florida, which constitutes a portion of the
Property (which may be referred to herein from time to time as a "Center" or as
"Plaza at Delray).
E. Sellers desire to sell to Purchaser and Purchaser desires to Purchase
all of the membership interests in Boca Mission, LLC and Linton Delray, LLC
(collectively, the "Interests").
F. Boca Mission, LLC and Linton Delray, LLC shall be referred to herein
individually as a "Company" and collectively as the "Companies."
ARTICLE 1
SALE OF THE INTERESTS
In consideration of the agreements herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sellers and Purchaser hereby agree as follows:
1.1 Sale of Interests. Sellers agree to sell and Purchaser agrees to purchase
and accept from Sellers, for the price and subject to the terms, covenants,
conditions and provisions set forth herein, the Interests.
1.2 The Property. For purposes of this Agreement, "Property" shall mean and
include all of the applicable Company's right, title and interest in and to the
following:
(a) all of the land located in Palm Beach County, Florida and more
particularly described in Exhibit A-1 hereto with respect to Mission Bay
Plaza and Exhibit A-2 hereto with respect to Plaza at Delray
(collectively, the "Land"), together with all right, title and interest,
if any, of the Company, in and to (i) strips or gores, if any, between the
Land and abutting properties, whether owned or claimed by deed,
limitations or otherwise, and whether or not they are located inside or
outside of the boundaries of the Land, (ii) any land lying in or under the
bed of any highway, avenue, street, road, alley, easement or right-of-way,
open or proposed, in, on, across, abutting or adjacent to the Land, to the
center line thereof, and (iii) all right, title and interest of the
Company, reversionary or otherwise, in and to all easements in or upon the
Land and all other rights and appurtenances belonging or in anywise
pertaining to the Land or the Improvements described below;
(b) all of the buildings and other structures and improvements
situated on the Land (collectively, the "Improvements");
(c) all mechanical, electrical, heating, air conditioning and
plumbing systems, fixtures and equipment; all furniture, carpets, drapes
and other furnishings; and all other machinery, equipment, fixtures and
personal property of every kind and character, and all accessories and
additions thereto, owned by the Company and located in or on the Land or
Improvements (collectively, the "Personalty"); but specifically excluding
any items of personal property owned by tenants of the Land or
Improvements;
(d) all leases, subleases and other rental agreements, written or
verbal, now or hereafter in effect (collectively, the "Leases"), that
grant a possessory interest in and to any space situated in the
Improvements or that otherwise grant rights with regard to use of all or
any portion of the Land or Improvements, together with all rentals paid or
payable by the tenants under such Leases (individually, a "Tenant" and
collectively, the "Tenants") for any period of time beginning on or
subsequent to the date of Closing (as hereinafter defined), and all
security and other deposits paid by the Tenants under such Leases
(collectively, the "Security Deposits");
(e) all assignable leasing, service, management, supply and
maintenance contracts (collectively, the "Service Contracts") relating to
the Land, Improvements or Personalty which Purchaser elects to assume, as
more particularly described in Section 3.4 below;
(f) all assignable warranties and guaranties of the Company, if any,
relating to the Land, Improvements or Personalty (collectively, the
"Warranties");
(g) all plans, specifications and architectural floor plans for the
Improvements;
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(h) (i) the names "Mission Bay Plaza" and "Plaza at Delray"; (ii)
all variations of such name used or owned by the Companies; and (iii) all
other names utilized or owned by the Companies with respect to the Land or
Improvements (collectively, the "Name");
(i) all keys to locks on the Land and Improvements;
(j) all other rights, privileges and appurtenances owned by the
Companies and in any way related to the properties described in this
ARTICLE 1.
ARTICLE 2
CONSIDERATION
2.1 Purchase Price. The purchase price ("Purchase Price") for the Interests is
One Hundred Twenty Six Million Six Hundred Thousand Dollars ($126,600,000.00),
which shall be payable by Purchaser at Closing (subject to prorations and other
credits provided for in this Contract) as follows.
2.1.1 Upon the execution of this Contract by both Sellers and Purchaser,
Purchaser shall deposit with Ruden McCloskey Smith Schuster & Russell, P.A., in
its capacity as agent for Lawyers Title Insurance Corporation, whose address is
222 Lakeview Avenue, Suite 800, West Palm Beach, Florida 33401 (the "Title
Company"), the sum of One Million Dollars ($1,000,000.00) (the "Initial
Deposit") in good funds. The Title Company shall deposit the Initial Deposit in
an interest-bearing account maintained at a federally insured bank or savings
and loan association located in Palm Beach County, Florida, in such a manner
that the entire Initial Deposit is protected by federal deposit insurance. To
facilitate the timely deposit of such funds, Purchaser hereby represents,
warrants, covenants and agrees with Sellers and the Title Company that
Purchaser's federal taxpayer identification number is 38-3212115 and both
parties agree that they will promptly execute such documentation as the Title
Company may reasonably require to enable the Title Company to comply with the
deposit instructions set forth herein, including but not limited to the escrow
instructions attached hereto as Schedule 1.
2.1.2 The Initial Deposit and any interest earned thereon is hereinafter
collectively referred to as the "Earnest Money." If the transaction contemplated
by this Contract is consummated in accordance with the terms and provisions
hereof, the Earnest Money shall be credited against the Purchase Price and paid
to Sellers at Closing. If the transaction is not so consummated, the Earnest
Money shall be held and delivered by the Title Company as hereinafter provided.
2.1.3 A portion of the Purchase Price shall be paid by Purchaser taking
subject to certain mortgage loans in the original principal amount of
$40,500,000 secured by Mission Bay Plaza and $43,250,000 secured by Plaza at
Delray (individually a "Loan," and collectively, the "Loans") made by Lehman
Brothers Bank FSB, its successors and assigns ("Lender"), which Loans are
evidenced by promissory notes and secured by mortgages or deeds of trust
encumbering the Property, and by certain other security instruments described in
the note and mortgage and/or executed and delivered to Lender in order to secure
the Loans (which note, mortgage and other loan documents and security
instruments are referred to herein collectively
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as the "Loan Documents"). The Loans require interest only payments, and the
Companies have not prepaid and will not voluntarily prepay any portion of the
principal thereunder prior to Closing.
2.1.4 The balance of the Purchase Price shall be paid in cash by wire
transfer of immediately available funds.
ARTICLE 3
INSPECTION
3.1 Matters to be Submitted. Within five (5) business days following the
Effective Date, to the extent not previously delivered by Sellers to Purchaser,
Sellers shall deliver to Purchaser or make available at the offices of Sellers'
property manager, Gumberg Property Investors, Inc. (the "Property Manager") the
following items (collectively, the "Submission Matters"); provided, that Sellers
shall not be obligated to deliver any such Submission Matter to the extent such
Submission Matter is not actually in the possession or reasonable control of
Sellers or the Property Manager and Sellers shall have no liability and no
further obligations to Purchaser hereunder as a result of Sellers' failure to
deliver any Submission Matter which is not actually in Sellers' possession or
the possession of the Property Manager. Neither Sellers nor the Property Manager
shall be obligated to take legal action or incur any material expense or effort
in order to obtain any Submission Matters that are in the possession of third
parties:
(a) a copy of each Lease currently in effect and all amendments
thereof, and each Lease, if any, which has been fully executed but is not
yet in effect;
(b) a rent roll for the Property ("Rent Roll"), including for each
Tenant, (i) the Tenant's name and the name of any guarantor of such
Tenant's obligations under its Lease, (ii) a description of the premises
leased, (iii) the base or minimum rent payable by such Tenant, (iv) the
monthly additional rent payable by such Tenant, including without
limitation, percentage rent, common area maintenance charges, utilities,
taxes, etc., and (v) the commencement date of such Lease, the termination
date of such Lease and the number of extension options, if any, available
and/or exercised by such Tenant;
(c) a schedule identifying the amount of any security or other
deposit made by each Tenant under its Lease;
(d) annual operating statements for the Property detailing income
and expenses, including capital expenses, and occupancy for the entire
period of each Company's ownership of its Center (i.e. from April 2003 for
Mission Bay Plaza and from September 2003 for Plaza at Delray), through
April 30, 2004;
(e) a balance sheet of each Company as of April 30, 2004;
(f) copies of all current (if available) real estate and personal
property tax bills and if such current bills are not available, copies of
all such bills for the most recent period for which such bills are
available, together with evidence that all taxes due and payable with
respect to the Property have been paid in full to the latest payment date;
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(g) copies of all certificates of occupancy for the Improvements and
copies of all other permits and licenses issued by any Governmental
Authority with respect to the Property;
(h) plans, specifications and architectural floor plans for the
Improvements;
(i) copies of all outstanding contracts of employment, leasing,
service, management, supply or maintenance which affect any portion of the
Property or its operation, or to which either Company is a party
regardless of whether such contracts are assignable;
(j) a schedule of all claims made with respect to any insurance
policies maintained by the Companies or Sellers or their affiliates
relating to the Property or the Companies.
(k) copies of all tax returns filed by the Companies;
(l) copies of all organizational documents relating to the
Companies, including, but not limited to, operating agreements, articles
of organization, articles of incorporation, bylaws, stock certificates,
resolutions, minute books, shareholders' agreements, and all amendments to
any of the foregoing (collectively, the "Organizational Documents");
(m) copies of all closing documents relating to the Companies'
acquisition of the Property (with economic terms redacted), including, but
not limited to, assignments of leases, bills of sale, and other similar
documents; and
(n) copies of the environmental assessments described in Exhibit N
hereto (the "Environmental Assessments").
3.2 Inspection Period. Purchaser shall have the period commencing on the
Effective Date and ending 5:00 p.m. Eastern time on July 8, 2004 (the
"Inspection Period") to review the Submission Matters and to enter or to have
its authorized representatives and its and their agents, employees and
representatives enter upon the Property or any part thereof at any reasonable
time, subject to the rights of Tenants occupying space in the Property pursuant
to Leases, and to enter the offices of the Property Manager upon reasonable
notice, for the purpose of reviewing the books and records relating to the
Property and the Companies, including all records relating to operating income
and expenses of the Property and the Companies and the originals of any of the
Submission Matters submitted to Purchaser, and for the further purpose of
conducting physical inspections of the Property and making, at Purchaser's sole
risk and expense, such other inspections, examinations, investigations and tests
as Purchaser considers appropriate, provided that:
(a) Purchaser and Purchaser's representatives and its and their
agents, employees and representatives shall not unreasonably interfere
with the usual operation of the Property by Sellers and its Tenants;
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(b) Purchaser and Purchaser's representatives and its and their
agents, employees and representatives shall exercise due care and ordinary
prudence in performing such inspections, examinations, investigations and
tests and Purchaser shall not cause or permit any damage or injury to be
done to the Property and shall, to the extent practicable, restore the
Property to such condition as existed prior to such inspections,
examinations, investigations and tests;
(c) Purchaser shall indemnify, defend and hold Sellers, the Property
Manager, and their respective partners, shareholders, officers, members,
directors, agents and employees (the "Seller Indemnified Parties")
harmless from any and all losses, costs, liens, claims, causes of action,
liability, damages (other than consequential or punitive damages),
expenses and liability (including, without limitation, court costs and
reasonable attorneys' fees) incurred in connection with or arising in any
way from (i) any inspections conducted by Purchaser and/or Purchaser's
representative or (ii) any breach by Purchaser and/or Purchaser's
representative of the terms of this Section 3.2 (other than any such loss
arising from the negligence or willful misconduct of Sellers or its
agents). This indemnity provision shall survive termination or expiration
of this Contract. If any proceeding is filed for which indemnity is
required hereunder, Purchaser agrees, upon request therefore, to defend
the indemnified party in such proceeding at its sole cost utilizing
counsel reasonably satisfactory to the indemnified party;
(d) Neither Purchaser nor any representative thereof has authority
to do anything that may result in a lien or encumbrance against the
Property in connection with its inspections. Without limiting the
foregoing, however, Purchaser agrees to promptly pay when due all costs
associated with its inspections and not to cause, permit or suffer any
lien or encumbrance to be asserted against the Property related to its
inspections;
(e) Purchaser agrees that the Submission Matters and any other
information, books, records, data or other material delivered to Purchaser
by Sellers or otherwise obtained by Purchaser during Purchaser's
inspections of the Property shall be kept confidential and not disclosed
to any person, firm or organization other than Purchaser's accountants,
attorneys, consultants and proposed or potential lenders or financial
partners, who shall agree to use reasonable efforts to keep such
information and other matters confidential and other than as may be
required by law. Purchaser agrees that it will not discuss, and will
instruct any person conducting inspections, examinations, investigations
or tests on Purchaser's behalf not to discuss, the results obtained from
any inspection of the Property with any Tenants or with the Property
Manager;
(f) Prior to meeting with existing Tenants, Purchaser shall provide
Sellers with not less than forty-eight (48) hours prior written notice of
its intention to meet with such Tenants and Sellers, at Sellers' sole
option, may elect to have a representative or agent of Sellers accompany
Purchaser in such meetings; and
(g) Notwithstanding the foregoing, without the prior written consent
of Sellers, which consent may be withheld by Sellers in their sole
discretion, Purchaser shall not be entitled to conduct a Phase II
environmental assessment of the Property or any other obtrusive physical
or environmental inspection of the Property.
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(h) Before conducting and during inspections, Purchaser and
Purchaser's representative conducting any inspection shall maintain
workers' compensation insurance in accordance with Applicable Laws, and
Purchaser, or the applicable Purchaser's representative conducting any
inspection, shall maintain (1) commercial general liability insurance with
limits of at least Three Million Dollars ($3,000,000.00) for bodily or
personal injury or death, (2) property damage insurance in the amount of
at least One Million Dollars ($1,000,000.00), and (3) contractual
liability insurance with respect to Purchaser's obligations under Section
3.3.1(c). Purchaser shall deliver to Sellers evidence of such workers'
compensation insurance and a certificate evidencing the commercial general
liability, property damage and contractual liability insurance before
conducting any inspections of the Property. Each such insurance policy
shall be written by a reputable insurance company having a rating of at
least "A-:VII" by Best's Rating Guide (or a comparable rating by a
successor rating service), and shall otherwise be subject to Sellers'
prior approval. Such insurance policies shall name as additional insureds
the Companies, Sellers, the Property Manager, Lender and such other
parties as Sellers may reasonably designate.
3.3 Right of Termination. During the Inspection Period, Purchaser shall be
entitled, for any reason or for no reason in Purchaser's sole discretion,
judgment and opinion, including without limitation if Purchaser shall disapprove
and be dissatisfied with any aspect of the Interests, the Property or any item
examined by Purchaser pursuant to Sections 3.1 and 3.2, and as its sole remedy,
to terminate this Contract by giving written notice to Sellers on or before the
expiration of the Inspection Period, whereupon all of the provisions of this
Contract, other than subsection 3.2, Section 4.5 and Section 12.1 (the
"Surviving Obligations") shall terminate and the Earnest Money shall be returned
to Purchaser. Upon such termination, neither Sellers nor Purchaser shall have
any further rights, obligations or liabilities hereunder, other than the
Surviving Obligations.
3.4 Termination of Service Contracts. Unless Purchaser terminates this Contract
prior to the expiration of the Inspection Period, then no later than the
expiration of the Inspection Period Purchaser shall provide Sellers with written
notice identifying the Service Contracts that Purchaser elects to have Sellers
terminate. Any Service Contracts identified in such notice shall be terminated
as of the Closing Date at no cost to Purchaser, and all other Service Contracts
shall remain in effect. If there are any construction and/or design contracts
with respect to tenant improvements that have not been fully performed and paid
in full as of the Closing Date, then such contracts shall remain in effect as of
Closing and the sums to be paid to contractors and design consultants pursuant
to such contracts shall be allocated between Sellers and Purchaser pursuant to
Section 7.2(e)(1) and Section 9.1(b).
ARTICLE 4
TITLE AND SURVEY
4.1 Title Report. Purchaser shall order, within five (5) business days following
the Effective Date, at Purchaser's sole cost and expense, a title report or
certificate of title (the "Title Report") for each Center covering the Land and
listing the applicable Company as the Proposed Insured and showing the Purchase
Price as the policy amount, and shall request that a duplicate of the
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Title Report be delivered to Sellers' counsel, together with legible photocopies
(to the extent available) of all instruments referred to in the Title Report as
conditions or exceptions to title to the Property and to the extent available, a
current tax search with respect to the Land and Improvements from all applicable
taxing authorities.
4.2 Survey. Purchaser shall order, within five (5) days following the Effective
Date, a survey (the "Survey") of the Land for each Center prepared and certified
as to all matters shown thereon by a surveyor ("Surveyor") licensed by the State
of Florida, and shall request that a duplicate of the Survey be delivered to
Sellers' counsel.
4.3 Review of Title and Survey. Purchaser shall have a period (the "Title Review
Period") ending on the first to occur of (i) the end of the Inspection Period
and (ii) ten (10) business days after the date on which Purchaser receives the
last to be received of (a) the Title Report, (b) legible copies, to the extent
available, of all instruments referred to in the Title Report, (c) the UCC
Searches, (d) copies of all financing statements which appear on the UCC
Searches, and (e) the Survey, in which to notify Sellers of any objections
Purchaser has to any matters shown or referred to in the Title Report, the UCC
Searches or on the Survey (Purchaser's notice of objection being referred to
herein as the "Title Objection Letter"). Any title encumbrances or exceptions
which are referred to in the Title Report, the UCC Searches or on the Survey and
as to which Purchaser does not object during the Title Review Period shall be
deemed to be, and shall be referred to herein as, "Permitted Encumbrances." The
exceptions for (i) "real estate taxes that are a lien not yet due and payable"
(or comparable language), (ii) "rights of the Tenants as tenants only under the
Leases" (or comparable language), (iii) recorded Lease documents for unexpired
Leases, including subordination, nondisturbance and attornment agreements
(including in connection with Leases entered into after the Effective Date in
accordance with the provisions of this Contract) and (iv) any recorded Loan
Documents, shall be Permitted Encumbrances.
4.4 Objections to Status of Title. In the event Purchaser objects to any matters
referred to in the Title Report, the UCC Searches or on the Survey during the
Title Review Period, Sellers shall have until the Closing (the "Cure Period") to
satisfy Purchaser's objections. In the event Sellers are unable or unwilling to
satisfy Purchaser's objections within the Cure Period, Purchaser shall have the
option to either (a) waive Purchaser's objections and purchase the Interests as
otherwise contemplated in this Contract, without any adjustment in the Purchase
Price, in which event such waived objections shall become Permitted Encumbrances
or (b) terminate this Contract by written notice to Sellers, in which event the
Earnest Money shall be returned to Purchaser and except for the Surviving
Obligations, neither Sellers nor Purchaser shall have any further rights,
obligations or liabilities hereunder. Sellers shall respond to Purchaser's Title
Objection Letter in writing within ten (10) business following receipt thereof,
indicating whether or not Sellers will endeavor to satisfy any objections raised
by Purchaser, and if Sellers elect to do so then Sellers shall in good faith
endeavor to cure same, provided however that (except as otherwise provided in
the next sentence) Sellers shall have no obligation to cure any objection raised
by Purchaser during the Title Review Period and may elect to notify Purchaser at
any time during the Cure Period that they are unable or unwilling to satisfy, or
continue to pursue good faith efforts to satisfy, any of Purchaser's objections.
Notwithstanding the foregoing, Sellers shall be obligated to cure and discharge
(i) any liens to secure debt that were granted by a Company or Sellers (other
than the Loan Documents), and (ii) any liens or encumbrances (other than
Permitted
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Encumbrances, or mechanics liens or other matters attributable to Tenants'
actions or omissions) of a liquidated amount not to exceed $50,000 per Center.
4.5 Purchaser's Post-Termination Obligations. In the event Purchaser terminates
this Contract pursuant to the right to do so set forth in Section 3.3 hereof,
Purchaser shall remain liable for the costs and expenses of the Title Report,
the UCC Searches and the Survey, and Purchaser shall pay all such costs and
expenses as and when the same become due and payable. The provisions of this
Section 4.5 shall survive the expiration, early termination or Closing of this
Contract.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 Sellers' Representations with respect to the Property. Each Seller
represents and warrants to Purchaser as of the Effective Date, with respect to
the applicable Center, as follows:
5.1.1 To Seller's actual knowledge, neither Seller nor any current Tenant
under the Leases has engaged in or permitted any operations or activities upon,
or any use or occupancy of the Property for the purpose of or in any way
involving the handling, manufacture, treatment, storage, use, generation,
release, discharge, refining, dumping, or disposal of any Hazardous Materials in
violation of Applicable Laws. The Environmental Assessments are all of the
environmental assessments that have been ordered or commissioned by the Company
or its Affiliates with respect to the applicable Center.
5.1.2 To Seller's actual knowledge, there are no actions, suits, or
proceedings pending or threatened in any court or before or by any Governmental
Authority against or affecting Seller or the Property, other than tort claims
covered by insurance and the matters described in Exhibit M hereto.
5.1.3 Neither Seller nor the applicable Company has received written
notice that the Property is in violation of Applicable Laws, other than
violations that have been cured.
5.1.4 There are no pending eminent domain or condemnation proceedings
against the Property or any material part thereof and to Seller's actual
knowledge, no such proceedings are presently threatened or contemplated by any
authority with the power of eminent domain.
5.1.5 Seller is the owner of the lessor's interest under the Leases of the
portion of the Property owned by Seller, and Seller has not made any assignment
of its interest in the Leases, other than pursuant to the Loan Documents.
5.1.6 Except as disclosed in the Leases, there are no leasing commissions
due and owing with respect to the Leases.
5.1.7 Except as shown on the Rent Roll or the Schedule of Leases attached
hereto as Exhibit F, and except as otherwise set forth herein:
(a) All of the Leases are in full force and effect, there are no
outstanding notices of default by the applicable Company, as landlord, to
any Tenant and, to Seller's actual
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knowledge, there are no outstanding defaults by either such Company as
landlord or the respective Tenants under any Lease;
(b) None of the Leases have been modified or amended;
(c) Seller has not received written notification that there are any
pending claims asserted by any Tenants for offsets against rent or any
other monetary claims against the Company as landlord.
5.1.8 The Schedule of Leases is a true, correct and complete schedule of
all Leases (excluding subleases) to which the Company is a party or by which it
is bound with respect to the applicable Center, and all amendments and
modifications of such Leases.
5.1.9 The Service Contracts set forth on Exhibit K are all of the Service
Contracts affecting the Property and/or the Companies.
5.1.10 The Loan Documents set forth on Exhibit L hereto constitute all of
the material documents executed by the Companies, Sellers or their affiliates in
connection with the Loans.
5.2 Sellers' Representations with respect to the Companies. Each Seller
represents and warrants to Purchaser as of the Effective Date and as of the
Closing Date, with respect to the applicable Company, as follows:
5.2.1 The Company is duly organized, validly existing and in good standing
under the laws of the state of its creation as a limited liability company, and
is qualified or registered to do business and is in good standing in the State
of Florida.
5.2.2 Attached hereto as Exhibit G is a true and correct copy of the
Certificate of Formation and Operating Agreement of the Company (the "Charter
Documents").
5.2.3 Seller is duly organized, validly existing and in good standing
under the laws of the state of its creation as a corporation or limited
liability company, as the case may be, with full power and authority to enter
into and execute this Contract and to consummate the transactions contemplated
hereby. Seller has received all requisite organizational approvals necessary for
the execution of this Contract and the consummation of the transactions
contemplated hereby and this Contract constitutes the legal, valid and biding
obligation of Seller, enforceable against Seller in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting debtors' and
creditors' rights generally and general equitable provisions.
5.2.4 The Interests constitute all of the membership interests in the
Companies that are issued and outstanding. The Interests have been duly
authorized and validly issued, are fully paid and nonassessable and were issued
by the Company in compliance with Applicable Laws. The Interests are not subject
to preemptive rights created by statute, the Charter Documents, any contract or
agreement to which either the Company or Sellers are a party or by which they
are bound.
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5.2.5 There are no (a) outstanding options, warrants or other rights to
purchase from the Company or Seller any interest in, or other securities of, the
Company, (b) securities convertible into or exchangeable for interests in, or
other securities of, the Company or (c) other commitments of any kind for the
issuance of additional interests, options or other securities of the Company.
5.2.6 The Company has no subsidiaries, and has not owned in the past, and
does not currently own, directly or indirectly, any capital stock or other
equity, ownership, proprietary or voting interest in any person or entity. Since
the Company's formation, the Company's sole asset has been the Property owned by
the Company.
5.2.7 Upon the delivery of title to the Interests, Purchaser will acquire
good and marketable title to all of the interests in the Company, free and clear
of all liens, charges, encumbrances and equities (other than pursuant to the
Loan Documents).
5.2.8 The Company keeps books, records and accounts that, in reasonable
detail, accurately and fairly reflect the transactions of the Company.
5.2.9 Other than the Service Contracts, Leases and other documents
described in this Contract, the Company is not a party to any written or oral:
(a) Service Contract or other contract material to the business of
such Company;
(b) Agreement, mortgage, indenture, loan or credit agreement,
security agreement, guaranty or indemnity or other agreement or instrument
relating to the borrowing or lending of money or extension of credit or
providing for the mortgaging or pledging of, or otherwise placing a lien
or security interest on, any assets or properties of the Company, other
than pursuant to the Loan Documents;
(c) Option, warrant or other contract for the purchase of any debt
or equity security of any corporation, or for the issuance of any debt or
equity security, or the conversion of any obligation, instrument or
security into debt or equity securities, of the Company;
(d) Settlement agreement of any administrative or judicial
proceedings, since the date of formation of the Company; or
(e) Intellectual property (including trademark) licensing agreement.
5.2.10 Seller is not a foreign person subject to withholding tax as
required by Section 1445 of the Internal Revenue Code.
5.2.11 Each Company has filed all material tax returns that it was
required to file, and all such tax returns are correct and complete in all
material respects. Sellers shall, following Closing, and at their sole cost,
prepare and file the appropriate final tax returns for the Companies for the
period ending on the date before Closing. Such tax returns shall be prepared and
filed in a manner consistent with past practice.
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5.2.12 No tax examination or audit is in progress with respect to the
Company or the Property. There is no outstanding agreement or waiver made by or
on behalf of the Company for the extension of time for any applicable statute of
limitation and the Company has not requested any extension of time in which to
file any tax return.
5.2.13 To Sellers' knowledge, there are no tax liens outstanding against
any of the assets or properties of the Companies (except for current taxes not
yet due and payable).
5.2.14 The Company has not executed any closing agreement pursuant to
Section 7121 of the Internal Revenue Code or any predecessor provision thereof,
or any similar provision of state or local law.
5.2.15 None of the assets owned by the Company is property that is
required to be treated as owned by any other person pursuant to Section
168(f)(8) of the Internal Revenue Code as in effect immediately prior to the
enactment of the Tax Reform Act of 1986 or is "tax-exempt use property" within
the meaning of Section 168(h) of the Internal Revenue Code.
5.2.16 The Company is not party to a tax sharing agreement or similar
arrangement.
5.2.17 The Company has not agreed, and are not required to make any
adjustments pursuant to Section 481(a) of the Internal Revenue Code or any
similar provision of state or local law by reason of a change in accounting
method initiated by it or any other relevant party, Seller has no knowledge that
the Internal Revenue Service has proposed any such adjustment or change in
account method and there is no application pending with any taxing authority
requesting permission for any changes in accounting methods that relate to the
business or assets of the Company.
5.2.18 Exhibit H hereto is a list of all tax elections made by the
Company.
5.2.19 To the best of Seller's knowledge, the Company has no indebtedness
or liability, whether accrued, fixed or contingent, other than liabilities
reflected on the Balance Sheet for the Company, as of the Effective Date, or the
Closing Balance Sheet, as of the Closing Date.
5.2.20 Exhibit I hereto contains an accurate list of:
(a) The names and addresses of each bank in which the Company has an
account.
(b) The account numbers of such accounts.
(c) The authorized signatories and amounts for such accounts.
Other than lockbox, reserve and similar accounts that are intended to remain
assets of the Companies at Closing in connection with the "assumption" of the
Loans, all accounts held by the Company, and funds held therein, shall be
distributed to Sellers immediately prior to Closing.
5.2.21 No bankruptcy, insolvency, rearrangement or similar action by the
Company or Sellers is pending nor is any such action threatened to be filed
against the Company or Sellers. Neither the Company nor either Seller has ever:
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(a) filed a voluntary petition in bankruptcy;
(b) been adjudicated a bankrupt or insolvent or filed a petition or
action seeking any reorganization arrangement, recapitalization,
readjustment, liquidation, dissolution or similar relief under and Federal
bankruptcy act or nay other laws;
(c) sought or acquiesced in the appointment of any trustee, receiver
or liquidator of all or any substantial part of its properties, the
Property or any portion thereof;
(d) made a general assignment for the benefit of creditors or
admitted in writing its inability to pay its debts generally as they
become due.
5.2.22 Neither Sellers nor the Companies is anticipating or contemplating
any of the actions set forth in Section 5.2.21 above.
5.2.23 All income, single business, franchise, receipts, license, excise,
stamp, environmental, capital stock, profits, sales, use, value added or other
similar taxes relating to the Company and/or its business operations, which are
due and owing on or prior to the date hereof, have been paid. The Company has
withheld and paid all taxes required to have been withheld and paid in respect
of compensation or other amounts paid to any independent contractor.
5.2.24 Neither Company has, nor has either Company ever had, any
employees.
5.3 Application of Representations and Warranties; Sellers' Knowledge.
5.3.1 The representations and warranties of Sellers herein shall be deemed
to be made (a) by NWC Glades 441, Inc. and Diversified Invest II, LLC with
respect to Mission Bay Plaza and Boca Mission, LLC only and (b) by Delray
Retail, Inc. and Diversified Invest III, LLC with respect to Plaza at Delray and
Linton Delray, LLC only.
5.3.2 The representations and warranties in Section 5.2 ("Company
Representations") shall not operate to extend or expand any representation or
warranty in Section 5.1 ("Property Representations") that has expired or is
limited pursuant to the provisions of Section 5.5 and/or 5.6 below. If Purchaser
may have a claim for breach of a Company Representation based upon facts or
circumstances that would have given rise to a claim for breach of a Property
Representation, then to the extent the claim for breach of a Property
Representation is barred or limited by the provisions of Section 5.5 and/or 5.6,
Purchaser shall have no right to assert such claim for breach of the Company
Representation. For example, if Purchaser claims that Seller failed to disclose
an amendment to a Lease, such claim shall be treated as a claim based upon an
alleged breach of Section 5.1.9 and as such shall be subject to the survival
periods for Property Representations set forth in Section 5.5 below, even though
the claim might also have constituted a breach of the Company Representation in
Section 5.2.9.
5.3.3 When used in this Contract or in any certificate or other document
delivered pursuant hereto, the phrase "to the best of Sellers' knowledge," "to
Sellers' knowledge," or derivations thereof shall be construed to mean the
current, actual knowledge of F. Jonathan Dracos, without any obligation to make
investigation or inquiry regarding the Interests or the Property other than of
Heather Mutterperl and of Clifford Lengel of the Property Manager, and
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without obligation to make any investigation of the files, documents or studies
in the possession of other persons, and shall not include any knowledge which
may be imputed to either Seller or of any other person. Purchaser acknowledges
that the individuals named above are named solely for the purpose of defining
and narrowing the scope of Sellers' knowledge and not for the purpose of
imposing any liability on or creating any duties running from such individuals
to Purchaser. Purchaser covenants that it will bring no action of any kind
against such individuals, related to or arising out of these representations and
warranties.
5.4 Purchaser's Representations. Purchaser represents and warrants to Sellers as
of the Effective Date, as follows:
5.4.1 Purchaser is duly organized, validly existing and in good standing
under the laws of the state of its incorporation or creation as a limited
liability company, and by Closing will be qualified to do business in the State
of Florida, with full power and authority to enter into and execute this
Contract and to consummate the transactions contemplated hereby. Purchaser has
received all requisite limited liability company approvals necessary for the
execution of this Contract and the consummation of the transactions contemplated
hereby and this Contract constitutes the legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting debtors' and creditors' rights
generally and general equitable provisions.
5.4.2 Neither the execution of this Contract nor the performance by
Purchaser of its obligations hereunder will violate, be in conflict with, result
in a breach of, or constitute (with due notice or lapse of time, or both) a
default under any Applicable Law.
5.5 Survival. The representations and warranties made by Sellers in Section 5.1
hereof shall be effective as of the Effective Date and continue in full force
and effect after the Closing for a period of six (6) months; provided any claim
arising by reason of a claimed breach of such representations and warranties
must be filed in a court of competent jurisdiction on or before the date which
is six (6) months from the Closing Date. The representations and warranties made
by Sellers in Section 5.2 hereof shall be effective as of the Effective Date and
as of the Closing Date, and continue in full force and effect after the Closing
for a period of twelve (12) months; provided any claim arising by reason of a
claimed breach of such representations and warranties must be filed in a court
of competent jurisdiction on or before the date which is twelve (12) months from
the Closing Date. Notwithstanding the foregoing, if, prior to the Closing,
Purchaser obtains actual knowledge that any representation or warranty of
Sellers is inaccurate and Purchaser nonetheless proceeds with the Closing,
Sellers shall have no liability for any such matter regarding which Purchaser
had actual knowledge prior to Closing.
5.6 Limitation of Sellers' Liability. Notwithstanding any other provision of
this Agreement, any agreement or other instrument contemplated by this
Agreement, or any rights which Purchaser might otherwise have at law, equity, or
by statute, whether based on contract or some other claim, in no event will
Sellers' liability to Purchaser (other than with respect to claims for breach of
any representations or warranties made by Sellers in Section 5.2 above) exceed
(a) Seven Hundred Fifty Thousand Dollars ($750,000.00) with respect to the
purchase of Interests in Boca Mission, LLC and (b) Seven Hundred Fifty Thousand
Dollars ($750,000.00) with respect to the
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purchase of Interests in Linton Delray, LLC. Without limiting the generality of
the foregoing, the general and limited partners, employees, agent or affiliate
of Sellers will not in any manner be personally or individually liable for the
obligations of Sellers hereunder or for any claims related to this Agreement,
any agreement or other instrument contemplated by this Agreement, the Interests
or the Property. The provisions of this Section 5.6 shall survive the Closing.
5.7 As Is; Release. (a) Purchaser acknowledges that Purchaser will have the
opportunity to independently and personally inspect the Property and that
Purchaser has entered into this Agreement based upon its ability to make such
examination and inspection. The Property is to be accepted by Purchaser at
Closing, by reason of its purchase of the Interests, in its then present
condition "AS IS, WITH ALL FAULTS, (WHETHER LATENT, PATENT OR DETECTABLE OR NOT)
AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED", and without any
reduction in the Purchase Price for any change in the physical or financial
condition occurring from and after the Effective Date EXCEPT FOR THE EXPRESS
REPRESENTATIONS AND WARRANTIES OF SELLERS CONTAINED IN THIS CONTRACT.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IT IS UNDERSTOOD AND
AGREED THAT, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLERS
CONTAINED IN THIS CONTRACT, SELLERS AND SELLERS' AGENTS OR EMPLOYEES HAVE NOT
MADE AND ARE NOT NOW MAKING, AND THEY SPECIFICALLY DISCLAIM, ANY WARRANTIES,
REPRESENTATIONS OR GUARANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE INTERESTS OR THE
PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES, REPRESENTATIONS OR
GUARANTIES AS TO (1) MATTERS OF TITLE (OTHER THAN SELLERS' WARRANTY OF TITLE, IF
ANY, SET FORTH IN THE DEED TO BE DELIVERED AT CLOSING); (2) ENVIRONMENTAL
MATTERS OF ANY KIND RELATING TO THE PROPERTY, THE LAND OR THE IMPROVEMENTS OR
ANY PORTION THEREOF (INCLUDING THE CONDITION OF THE SOIL OR GROUNDWATER BENEATH
THE PROPERTY); (3) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS,
LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND EARTHQUAKE FAULTS AND THE
RESULTING DAMAGE OF PAST AND/OR FUTURE EARTHQUAKES; (4) WHETHER, AND TO THE
EXTENT TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM
(SURFACE OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY
OR SPECIAL FLOOD HAZARD; (5) DRAINAGE; (6) SOIL CONDITIONS, INCLUDING THE
EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF
SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY UNDER
SHORING; (7) ZONING TO WHICH THE PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT;
(8) THE AVAILABILITY OF ANY UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF
INCLUDING, WITHOUT LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC; (9) USAGES OF
ADJOINING PROPERTY; (10) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF, (11) THE
VALUE, COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE,
DESIGN, QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL INTEGRITY, OPERATION,
TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION
THEREOF, OR ANY INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS
ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF; (12) THE
PRESENCE OF HAZARDOUS MATERIALS (HEREINAFTER DEFINED) IN OR ON, UNDER OR IN THE
VICINITY OF THE PROPERTY; (13) THE CONDITION OR USE OF THE PROPERTY OR
COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL,
STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING
ORDINANCES, CODES OR OTHER SIMILAR LAWS; (14) THE EXISTENCE OR NON-EXISTENCE OF
UNDERGROUND STORAGE TANKS; (15) ANY OTHER MATTER AFFECTING THE STABILITY OR
INTEGRITY OF THE REAL PROPERTY; (16) THE POTENTIAL FOR FURTHER DEVELOPMENT OF
THE PROPERTY; (17) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING
ENTITLEMENTS AFFECTING THE PROPERTY; (18) THE
15
MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR
PURPOSE (PURCHASER AFFIRMING THAT PURCHASER HAS NOT RELIED ON SELLERS' OR
SELLERS' AGENTS' OR EMPLOYEES' SKILL OR JUDGMENT TO SELECT OR FURNISH THE
PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT SELLERS MAKE NO WARRANTY THAT THE
PROPERTY IS FIT FOR ANY PARTICULAR-PURPOSE); OR (19) TAX CONSEQUENCES. EXCEPT AS
EXPRESSLY SET FORTH HEREIN, SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND TO PURCHASER, INCLUDING, WITHOUT LIMITATION, THE PHYSICAL CONDITION OF THE
PROPERTY AND ANY IMPROVEMENTS LOCATED THEREON, OR THEIR SUITABILITY FOR ANY
PARTICULAR PURPOSE OR OF MERCHANTABILITY. PURCHASER SHALL RELY ON ITS
INVESTIGATIONS OF THE COMPANIES AND THE PROPERTY IN DETERMINING WHETHER TO
ACQUIRE THE INTERESTS.
(b) Each Seller and its partners, shareholders, officers, directors,
agents, employees, the Property Manager, controlling persons and affiliates
(individually a "Seller Party" and collectively the "Seller Parties") is hereby
released from all responsibility and liability regarding the condition
(including the presence in the soil, air, structures and surface and subsurface
waters, of materials or substances that have been or may in the future be
determined to be toxic, hazardous, undesirable or subject to regulation and that
may need to be specially treated, handled and/or removed from the Property under
current or future federal, state and local laws, regulations or guidelines),
valuation, salability or utility of the Property, or its suitability for any
purpose whatsoever. Without limitation, Purchaser specifically releases Sellers
from any claims Purchaser or the Company may have against Sellers now or in the
future under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sections 9601 et seq., as amended; the Resource
Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq., as amended; any
other analogous state or federal statute; and common law arising from the
environmental conditions of the Property or the presence of Hazardous Materials,
solid wastes, or any other pollutants or contamination the Property.
(c) Purchaser acknowledges that any information of any type which
Purchaser has received or may receive from any Seller Party, including, without
limitation, any environmental reports and surveys, is furnished on the express
condition that Purchaser shall make an independent verification of the accuracy
of such information, all such information being furnished without any warranty
whatsoever.
(d) THE PROVISIONS OF THIS SECTION ARE A MATERIAL PART OF THE
CONSIDERATION FOR SELLERS' ENTERING INTO THIS AGREEMENT, AND SHALL SURVIVE
CLOSING.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 Tenant Estoppels.
6.1.1 Estoppel Requirement. As a condition to Purchaser's obligation to
close this transaction, Purchaser shall have received executed and current (i.e.
dated not earlier than July 1, 2004) estoppel letters (each such certificate, an
"Estoppel Letter") from (i) all Tenants of the
16
Property whose individual leased premises comprise at least 10,000 rentable
square feet or more (the "Major Tenants"); and (ii) Tenants of the Property
whose leased premises comprise at least eighty five percent (85%) of that
portion of the rentable floor area of each separate Center occupied by Tenants
who are not Major Tenants. In the event that Sellers are unable to provide to
Purchaser the required Estoppel Letters on or before August 4, 2004, Purchaser
may either: (a) elect not to purchase the Interests, at which time the Deposit
shall be returned to Purchaser and this Agreement shall be null and void and
neither party shall have any further rights or obligations under this Agreement,
except for the indemnity obligations and other obligations which by the express
terms hereof survive termination; or (b) elect to purchase the Interests
notwithstanding Purchaser's failure to receive the required Estoppel Letters, in
which event Purchaser shall be deemed to have waived the condition contained in
this Section 6.1 (and Purchaser's failure to elect option (b) above in writing
prior to Closing shall be deemed an election of option (a)), provided however
that Sellers shall have the right to adjourn the Closing for up to fifteen (15)
days in the aggregate, upon written notice to Purchaser, in order to obtain the
required Estoppel Letters.
6.1.2 Procedures for Obtaining Estoppel Letters.
(a) The Estoppel Letter submitted to Tenants shall be in
substantially the form of Exhibit B attached hereto (or, if Lender so
requires, upon the form required by the Lender) or in such other form, or
containing such certifications, as may be provided for in the applicable
Lease. As soon as reasonably practicable, Sellers will cause the Property
Manager to prepare an Estoppel Letter for each Tenant and deliver the same
to Purchaser for review and approval. Purchaser shall have until the close
of business June 29, 2004 to object to the proposed Estoppel Letters. In
the event that Purchaser has not objected to the Estoppel Letters within
such time, such Estoppel Letters shall be deemed approved and Sellers may
deliver same to the applicable Tenants for execution. Estoppel Letters
that have been approved, or deemed approved, in accordance with the
foregoing procedures shall be referred to herein as "Form Estoppel
Letter(s)."
(b) As and when Sellers receive an executed Estoppel Letter (each an
"Executed Estoppel") from a Tenant, Sellers will furnish Purchaser with a
copy. In the event that Purchaser has not objected to the Executed
Estoppel within five (5) business days, such Executed Estoppel shall be
deemed approved. In the event Purchaser properly objects to the Executed
Estoppel within the specified time period, such Executed Estoppel shall
not be included in the threshold requirements set forth in Section 6.1.
Subject to Section 6.1.2(c) below, Purchaser shall have the right to
object to an Executed Estoppel that is not in the form required by this
Section 6.1.2, or that contains information that is not consistent with
the Form Estoppel Letters approved by Purchaser pursuant to Section
6.1.2(a) above.
(c) Purchaser shall have no right to object to an Executed Estoppel
solely because (i) the certifications with respect to absence of defaults
or rights of offset have been qualified as being to the Tenant's knowledge
or as being subject to any similar qualification, (ii) the Lease has not
been attached, or (iii) the Tenant has substituted its own form of
Estoppel Letter, so long as the Tenant's form contains substantially the
same information and statements that are provided in Exhibit B hereto or
comparable sections
17
of the Lender's form (unless otherwise provided in the estoppel provisions
of the applicable Lease), and such information does not conflict with the
information provided in the corresponding sections of the Form Estoppel
Letter for such Tenant.
(d) In the event that the Closing Date is adjourned, the Executed
Estoppels approved by Purchaser shall be deemed "current" through the
adjourned Closing Date.
6.2 Conditions to Purchaser's Obligation to Close. In addition to the conditions
set forth elsewhere in this Contract, the following condition(s) shall be
conditions precedent to the obligation of Purchaser to purchase the Interests on
the Closing Date as provided herein:
6.2.1 The Title Company shall be prepared to issue, upon payment of
applicable premiums and fees, its ALTA Owner's Policy of Title Insurance in the
amount of the Purchase Price showing fee simple title vested in the applicable
Company subject only to the Permitted Encumbrances. If there is a title
exception other than a Permitted Encumbrance which precludes the Title Company
from issuing such policy, then Sellers shall have the right to substitute as the
Title Company either Chicago Title Insurance Company or another major title
insurance company which is prepared to issue such policy, provided that
Purchaser has approved in its reasonable judgment any affirmative insurance or
endorsements with respect to the title exception in question.
6.2.2 The Closing Balance Sheet of each Company shall show no assets other
than (x) the Center owned by such Company (including receivables attributable to
unpaid rents, if any), (y) utility and similar deposits and (z) any reserves
then outstanding under the Loan Documents, and no liabilities other than (i)
obligations shown on the Balance Sheet attached hereto as Exhibit P, (ii) the
Loan, (iii) payables that have been prorated in accordance with the provisions
of this Contract and (iv) liabilities covered by insurance. For avoidance of
doubt, the parties agree that the annotated balance sheets attached hereto as
Exhibit P reflect the intended status of each line item as of the Closing.
6.2.3 Lender shall have approved in writing the sale of the Interests to
Purchaser in accordance with Section 9.3 hereof.
6.2.4 The representations and warranties made by Sellers in Section 5.1
shall have been true and correct in all material respects as of the Effective
Date, and the representations and warranties made by Sellers in Section 5.2
shall be true and correct in all material respects as of the Effective Date and
the Closing Date.
6.3 Conditions to Sellers' Obligation to Close. In addition to the conditions
set forth elsewhere in this Contract, the following condition(s) shall be
conditions precedent to the obligation of Sellers to sell the Interests on the
Closing Date as provided herein:
6.3.1 Lender shall have (a) approved in writing the sale of the Interests
to Purchaser in accordance with Section 9.3 hereof, and (b) executed releases in
form and substance satisfactory to Sellers releasing any Affiliates of Sellers
that may be obligated under any of the Loan Documents (including any nonrecourse
guaranty and environmental indemnity), from any and all liability under or in
respect of the Loan from and after the Closing Date.
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6.4 Failure of Condition. If any of the foregoing conditions are not satisfied
by Closing, the party for whose benefit such condition runs shall have the right
to terminate this Contract by notifying the other party, in which event
Purchaser shall receive a return of the Earnest Money and this Contract shall be
null and void and neither party shall have any further rights or obligations
under this Contract, except for the Surviving Obligations.
ARTICLE 7
CLOSING
7.1 Closing Date. Provided all of the conditions to Closing have been satisfied,
the Closing shall be held at the offices of the Title Company (or such other
location as may be mutually agreed upon by Sellers and Purchaser) or by delivery
of Closing documents in escrow to the Title Company at 10:00 a.m. on August 15,
2004 or at such earlier date and time as may be mutually agreed upon in writing
by Sellers and Purchaser (the "Closing Date"). The wire transfer of the cash
portion of the Purchase Price must be actually received by Sellers no later than
2:00 p.m. Eastern time on the Closing Date.
7.2 Closing Matters.
(a) At Closing, Sellers shall execute, deliver and acknowledge the
following documents:
(i) An assignment of the Interests in the form of Exhibit C
hereto;
(ii) An affidavit with respect to each Seller's status as a
United States taxpayer in the form of Exhibit D attached hereto;
(iii) Any Assumption Documents required to be executed by
Sellers;
(iv) A balance sheet of each Company as of the Closing Date
(the "Closing Balance Sheet"), together with a certificate of the
applicable Seller to the effect that the Balance Sheet (a) has been
prepared in accordance with the books and records of the applicable
Company, (b) has been prepared in accordance with standard
accounting principles consistently applied throughout the periods
covered and (c) to Seller's knowledge, presents fairly the financial
condition of the Company at such date; and
(v) The Closing Statement.
(b) In addition to the documents to be executed and delivered by
Sellers pursuant to Section 7.2(a), at Closing Sellers shall:
(i) To the extent available and in Sellers' possession,
deliver to Purchaser at the Closing or at the Property originals of
the Leases, the Service Contracts that will not be terminated as of
Closing, the Warranties, plans and specifications and the other
Submission Matters;
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(ii) Deliver possession of the Property to Purchaser, subject
to the rights of Tenants and the Permitted Encumbrances;
(iii) Deliver a current Rent Roll for the Property to
Purchaser, in the same form as the Rent Roll delivered to Purchaser
as part of the Submission Matters;
(iv) Deliver all available keys then in Sellers' possession to
locks located in the Improvements to Purchaser; and
(v) Deliver such evidence of the authority and capacity of
Sellers and their representatives as Purchaser, Purchaser's counsel
or the Title Company may reasonably require.
(c) At Closing, Purchaser and the Substitute Indemnitor, as
applicable, shall execute, deliver and acknowledge the following
documents:
(i) The Assignment of Interests;
(ii) An agreement between Purchaser and the Property Manager,
in substantially the form of Exhibit J hereto, pursuant to which
Purchaser and each Company acknowledge the obligation of the
Companies to pay any leasing commissions which are Purchaser's
responsibility pursuant to Section 9.1(b) below or for which
Purchaser received a credit at Closing pursuant to Section 7.1(e)(i)
hereof, pursuant to the provisions of the Property Management
Agreement between the Property Manager and the Companies dated as of
April 11, 2003 (Mission Bay Plaza) and August 7, 2003 (Plaza at
Delray), and the Property Manager acknowledges this transaction and
agrees to look solely to Purchaser and the applicable Company for
payment of such commissions;
(iii) Such other affidavits and documents as may be reasonably
required by the Title Company;
(iv) The Assumption Documents; and
(v) The Closing Statement.
(d) In addition to the documents to be executed, delivered and
acknowledged by Purchaser pursuant to Section 7.2(c), at Closing Purchaser
shall:
(i) Deliver the balance of the Purchase Price to the Title
Company; and
(ii) Deliver such evidence of the authority and capacity of
Purchaser and its representatives as Sellers or the Title Company
may reasonably require.
(e) All rentals, revenues and other income generated by the Property
and all utilities, real estate taxes, maintenance charges and other
operating expenses incurred in
20
connection with the ownership, management and operation of the Property
shall be paid or shall be prorated between Sellers and Purchaser in
accordance with the provisions set forth below as of 11:59 p.m. of the day
immediately preceding the Closing Date, as if Sellers were the owner of
the Property prior thereto and Purchaser then became the owner of the
Property. Any post-Closing prorations and adjustments shall be made on the
same basis. Any apportionments and prorations which are not expressly
provided for below shall be made in accordance with the customary practice
in the area in which the Property is located. Sellers and Purchaser shall
prepare a schedule of adjustments at least three (3) business days prior
to the Closing Date and shall be part of the settlement statement for the
transaction (the "Closing Statement"). Any net adjustment in favor of
Purchaser shall be credited against the Purchase Price at the Closing. Any
net adjustment in favor of Sellers shall be paid in cash at the Closing by
Purchaser to Sellers. A copy of the Closing Statement agreed upon by
Sellers and Purchaser shall be executed and delivered by Sellers and
Purchaser at the Closing.
(i) Purchaser shall receive a credit for any Leasing Costs
which are unpaid as of the Closing Date and which are Seller's
responsibility hereunder. Purchaser shall reimburse Sellers at
Closing for all Leasing Costs which have been paid by the Companies
or Sellers and which are Purchaser's responsibility pursuant to
Section 9.1(b) hereof. For purposes of this Agreement, "Leasing
Costs" shall mean all leasing commissions, tenant improvement
allowances, the cost of any "work letter" provided by the landlord,
reasonable marketing expenses and reasonable legal fees, in each
case in connection with a Lease Transaction; and "Lease Transaction"
shall mean any new Lease; amendment, amendment and restatement or
modification of a Lease; and/or renewal, expansion or extension of a
Lease, whether pursuant to an option set forth in the Lease or
otherwise.
(ii) monthly rents (including fixed and additional rent) for
the month in which the Closing occurs shall be prorated on a cash
basis based upon the actual number of days in the month during which
the Closing occurs.
(iii) ad valorem taxes (real and personal) for the tax year
during which the Closing occurs shall be prorated and adjusted at
Closing on an accrual basis. For example, if the tax year is
calendar year 2004, and if taxes for 2004 are due on November 1,
2004, then at Closing on August 15, 2004 Purchaser would be entitled
to a credit for real estate taxes for the period January 1, 2004
through August 14, 2004. If real property taxes and assessments for
the year of Closing are not known or cannot be reasonably estimated,
taxes shall be estimated based on taxes for the year prior to
Closing. After taxes for the year of Closing are known, adjustments,
if needed, will be made between the parties. Any refunds or credits
received after Closing shall be prorated between the parties as set
forth above, and Purchaser shall pay to Sellers their share of such
refund or credit, net of reasonable attorneys' fees, promptly
following receipt of such refund or application of such credit.
(iv) Percentage rent collected from Tenants for the month in
which the Closing occurs, and attributable to the fiscal year in
which the Closing occurs,
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shall be prorated on a cash basis at Closing based upon the actual
number of days in such month. A further adjustment shall be made at
the end of the fiscal year for which Tenants pay percentage rent, on
an annualized basis, based upon the gross sales reports submitted by
Tenants for such fiscal year and Sellers' share thereof shall be
paid within 15 days following collection of such percentage rents
from Tenants.
(v) Additional rent that is not paid on a monthly basis but
that will become due and payable for the year in which the Closing
occurs, including quarterly or annual payments, reconciliations and
so called "rebillings" or "true ups" for common area maintenance,
real estate taxes, insurance and other escalations or recoveries,
shall be adjusted on an annualized basis promptly following the
determination of the amounts due. Any such additional rent
attributable to periods prior to the year of Closing shall be the
sole property of Sellers.
(vi) All costs, expenses, charges and fees relating to the
ownership, management, operation, maintenance and repair of the
Property, including electricity, gas, water and sewer charges,
telephone and other public utilities, common area maintenance
charges, personal property taxes, excise taxes on rent, business
occupational taxes, the Companies' contributions to merchant or
project associations or to promotional funds, periodic charges
payable under Contracts, periodic fees payable under transferable
licenses for the operation of the Property, and periodic charges
under reciprocal easement agreements, shall be prorated on an
accrual basis as of the Closing Date based upon the actual number of
days in the month during which the Closing occurs. To the extent
feasible, utility meters shall be read on the date prior to the date
of Closing and all utilities thereafter used shall be paid for by
Purchaser and all utilities theretofore used shall be paid by
Sellers.
(vii) The Companies shall retain all cash Security Deposits,
provided that Sellers shall be entitled to retain any Security
Deposits of Tenants in default that vacated their premises prior to
the Closing Date to the extent allowed under such Tenant's Lease or
Applicable Laws. All utility deposits made by the Companies shall
remain assets of the Companies and the amount of such deposits shall
be added to the Purchase Price at Closing.
(viii) Debt service (being interest only payments) under the
Loan shall be prorated as of the Closing Date. Pursuant to Section
2.1.3, Purchaser shall receive a credit for the principal balance of
the Loans as of the Closing Date. Purchaser shall pay or credit to
Sellers at Closing the then outstanding balance of any tax and
insurance impounds and other reserve or escrow accounts held by
Lender pursuant to the Loan Documents.
(ix) The provisions of this Section 7.2(e) shall survive the
Closing.
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7.3 Closing Costs. Sellers shall pay one-half of the escrow fee charged by the
Title Company, its share of the prorations as set forth in Section 7.2(e) hereof
and its own attorney's fees. Purchaser shall pay the cost of the Survey, the
premium for the Owner's Policy, and any endorsements to such Owner's Policy
Purchaser elects to purchase, all inspections undertaken pursuant to ARTICLE 3
hereof, one-half of the escrow fee charged by the Title Company, all fees for
recording any instruments to be filed or recorded at Closing, its proportionate
share of the prorations as set forth in Section 7.2(e) hereof, and its own
attorney's fees. If any State or local transfer taxes are imposed upon the sale
of the Property or the Interests, such taxes shall be split 50/50 between
Sellers and Purchaser. Fees and costs in connection with the assumption of the
Loan shall be allocated as set forth in Section 9.3 below. Except as otherwise
provided in this Section, all other expenses hereunder shall be paid by the
party incurring such expenses.
7.3.1 Title Indemnity. The parties acknowledge that non-imputation
endorsements are not available in Florida. Purchaser is seeking a title
insurance policy or endorsement or affirmative insurance that would provide to
Purchaser substantially the same protection as a non-imputation endorsement. If
the Title Company will not issue such a policy, endorsement or affirmative
insurance, in form and substance satisfactory to Purchaser, then at Closing
Investcorp Properties Limited ("IPL") shall deliver to Purchaser an indemnity
agreement, in form reasonably acceptable to both parties ("Title Indemnity"),
indemnifying Purchaser with respect to one half of the amount of any losses
(including reasonable legal fees) actually incurred by Purchaser because the
Title Company denies coverage of a claim under its policies on the grounds that
the applicable defects, liens or other matters affecting the Companies' title to
the Property were (a) created, suffered, assumed or agreed to by the Company
during Seller's period of ownership of the Interests, or (b) known to Seller and
not been disclosed in writing to the Title Company prior to the Closing Date.
The Title Indemnity shall be subject to the following conditions and
limitations: (i) any claim under the Title Indemnity must be filed in a court of
competent jurisdiction on or before the fifth (5th) anniversary of the Closing
Date, (ii) Purchaser shall look first to the title insurance policies that were
issued to the Company upon its acquisition of the Center ("Original Policies")
with respect to matters known to the issuer of such policies ("Original
Issuer"), including matters shown in title commitments or reports issued by the
Original Issuer and surveys or searches delivered to the Original Issuer in
connection with the issuance of the Original Policies, (iii) the liability of
IPL shall be limited to $443,100 less one-half of any state or local real estate
transfer tax imposed and paid upon the sale of Interests contemplated hereby,
and (iv) the Title Indemnity shall be for the sole benefit of Purchaser and
shall not be transferable to any other person, including to any subsequent
purchaser of the Property or the Interests or any portion thereof, other than
Affliates of Purchaser.
ARTICLE 8
DAMAGE TO PROPERTY
8.1 Casualty; Condemnation. Sellers agrees to give Purchaser prompt notice of
any casualty affecting the Land, the Improvements or the Personalty between the
date hereof and the Closing Date or of any actual or threatened taking or
condemnation of all or any portion of the Land or the Improvements.
(a) If prior to the Closing there shall occur:
23
(i) damage to either Property caused by fire or other casualty
which would cost $500,000 or more to repair or restore, as
reasonably determined by Sellers; or
(ii) the taking or condemnation of all or any portion of the
Land and the Improvements as would materially interfere with the
continuing use thereof as a retail shopping center;
then in any such event, Purchaser may at its option terminate this Contract by
notice to Sellers within ten (10) days after Purchaser has received the notice
referred to above or at the Closing, whichever is earlier. If Purchaser does not
elect to terminate this Contract, then the Closing shall take place as provided
herein without abatement of the Purchase Price, and any insurance proceeds or
condemnation awards which may be payable to the Company on account of any such
occurrence, or rights to such proceeds or awards, shall remain an asset of the
Company and Purchaser shall receive a credit against the Purchase Price in the
amount of any unpaid deductible applicable to such insurance proceeds (less any
portion of the deductible that has been applied to covered losses). For example,
if there is a $25,000 deductible under the all risk policy, a water pipe breaks
and the Company spends $10,000 on emergency repairs prior to Closing, Purchaser
would receive a credit for $15,000, which is the balance of the deductible, and
the Company would have a claim for any other covered loss.
(b) If prior to the Closing there shall occur:
(i) damage to either Center caused by fire or other casualty
which would cost less than $500,000 to repair or restore, as
reasonably determined by Sellers; or
(ii) the taking or condemnation of a portion of the Land and
the Improvements which would not materially interfere with the
continuing use of a Center as a retail shopping center;
then in any such event, Purchaser shall have no right to terminate its
obligations under this Contract, but any insurance proceeds or condemnation
awards which may be payable to the Company on account of any such occurrence,
and any rights to receive such proceeds or awards, shall remain an asset of the
Company and Purchaser shall receive a credit against the Purchase Price in the
amount of any unpaid deductible applicable to such insurance proceeds (less any
portion of the deductible that has been applied to covered losses).
8.2 Arbitration. Any dispute arising with regard to any matter described in this
ARTICLE 8 (including but not limited to the cost to restore) shall be resolved
by binding arbitration in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association.
8.3 Postponement of Closing. If an arbitration pursuant to Section 8.2 above has
not been resolved by the Closing Date, then the Closing Date shall be extended
for a reasonable time, but no later than twenty (20) days after resolution of
the arbitration, provided, however, if said arbitration has not been resolved
within thirty (30) days following the original scheduled Closing Date, either
party may terminate this Contract and, provided that Purchaser has not
unreasonably
24
failed to make any determination, election or agreement provided for in this
ARTICLE 8, neither party shall have any further rights or obligations hereunder
(except as expressly provided herein) and the Earnest Money shall be returned to
Purchaser.
ARTICLE 9
INTERIM AND POST-CLOSING RESPONSIBILITIES
9.1 Interim Responsibilities.
(a) Sellers agree that during the period between the Effective Date
and the Closing Date, Sellers shall cause the Companies to:
(i) manage and lease the Property, or cause the Property to be
managed and leased, under policies substantially similar to those
existing prior to the Effective Date, provided that Sellers shall
have no obligation to cause the Companies to make any capital
improvements or replacements to the Property or any portion thereof,
but Sellers shall cure any notice that the Property is in violation
of Applicable Laws received prior to Closing unless such violation
is attributable to acts or omissions of a Tenant (provided that
Sellers shall not be obligated to expend more than $50,000 per
Center to cure such violations). Nothing herein shall prohibit
Sellers from submitting requisitions from reserves held by the
Lender and the proceeds of any such requisitions shall be retained
by Sellers, or from making distributions prior to Closing that are
consistent with the Closing Balance Sheet;
(ii) obtain Purchaser's prior written consent before entering
into any Lease Transaction (other than an amendment to evidence the
Tenant's exercise of a right to renewal, extension or expansion in
accordance with the terms set forth in the Lease), provided that
Purchaser's consent shall not be unreasonably withheld or delayed
with respect to Lease Transactions entered into prior to the end of
the Inspection Period, and Sellers shall provide Purchaser with
copies of all relevant documents, including without limitation
documents evidencing the Leasing Costs for which Purchaser may be
liable pursuant to Section 9.1(b) below, to allow Purchaser to make
an informed decision. Purchaser hereby approves Lease Transactions
with Fast Frames (at Plaza at Delray) and Bronze Body tanning salon
(at Mission Bay Plaza) pursuant to the term sheets attached hereto
as Exhibit O;
(iii) maintain property and liability insurance coverage in
the ordinary course of the Companies' business with respect to the
Property from the date hereof through the Closing Date or earlier
termination of this Contract; and
(iv) refrain from granting any lien or causing any instrument
to be recorded that would further encumber the Property in any
manner, other than memoranda of lease and/or subordination,
non-disturbance and attornment
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agreements with respect to Leases entered into in accordance with
the terms hereof or liens or encumbrances to be discharged as of the
Closing Date.
(b) Purchaser shall be solely liable for all Leasing Costs in connection
with any Lease Transaction entered into or effective between the Effective Date
and the Closing Date and permitted or deemed permitted by Section 9.1(a)(ii)
hereof, and shall reimburse Sellers at Closing for any portion of such Leasing
Costs that were paid prior to the Closing Date, and shall pay all other such
Leasing Costs as and when the same become due and payable. Sellers shall be
responsible for all other Leasing Costs that are due and payable as of the
Closing Date in connection with the Leases (including Leasing Costs for the
Lease Transactions with Fast Frames and Bronze Body). This provision shall
survive the Closing.
9.2 Delinquent Rents; Post Closing Adjustments. The provisions of this Section
9.2 shall survive Closing.
9.2.1 Purchaser shall use its reasonable efforts to collect rents
delinquent as of the Closing Date in the usual course of Purchaser's operation
of the Property following Closing, and shall apply the rents so collected first
to rents due for the month in which the Closing occurs (and Purchaser shall
promptly pay to each Seller its proportionate share of such amounts), second to
current rents and third, out of any excess remaining, to delinquencies in
reverse order (i.e. to the most recent delinquencies first); provided, however,
Purchaser shall not be obligated to institute any lawsuit or other collection
procedures to collect such delinquent rents. If, after using reasonable efforts,
Purchaser is unable to collect any such delinquent rents, Purchaser shall have
no liability for its failure to do so and Sellers shall have no right to pursue
collection of same.
9.2.2 Any post-Closing prorations and adjustments shall be made as soon as
practicable after the Closing, but in any event within fifteen (15) days
following collection with respect to additional rent for real property tax
reimbursements, and by March 30, 2005 with respect to all other additional rent.
Purchaser shall bill Tenants for real property tax reimbursements no later than
December 31, 2004. The party owing any amount shall reimburse the other party to
whom such amount is owed within then (10) business days after such adjustment
occurs. Purchaser shall provide an accounting with respect to each Center,
accompanied by reasonable documentary evidence of the rents, revenues and
expenses in question.
9.2.3 Notwithstanding Section 9.2.1, any payments received from Tenants
after the Closing which are either designated as payments for percentage rent,
common area maintenance adjustments, escalations, recoveries or other similar
items, or which are otherwise readily identifiable as such, and which accrued
prior to Closing, shall be adjusted between Sellers and Purchaser and shall not
be applied to outstanding current rents.
9.3 Assumption of the Loans.
9.3.1 Promptly following the Effective Date, Sellers shall request
Lender's consent to the sale of the Interests as a permitted transfer under the
Loan Documents. Purchaser shall, no later than June 17, 2004 (the "Loan
Submission Date"), provide to the Lender all documents and information requested
by Lender in the assumption checklist submitted to Purchaser prior to the
26
Effective Date, and all other documents and information with respect to
Purchaser and its Substitute Indemnitor as Lender may reasonably require.
9.3.2 Purchaser shall cooperate in all reasonable respects with such
request, and shall use its best efforts to obtain Lender's consent. Without
limiting the generality of the foregoing, Purchaser shall: (i) submit all
information (including without limitation audited financial statements) with
respect to Purchaser, its principals and affiliates and the entity ("Substitute
Indemnitor") that will replace Investcorp Properties Limited ("IPL") as
indemnitors or guarantors with respect to any environmental or other
indemnification or recourse obligations under the Loan Documents, as Lender may
request, (ii) provide such customary legal opinions as Lender may require, from
counsel acceptable to Lender and in form and substance acceptable to Lender,
including without limitation a non-consolidation opinion, (iii) satisfy Lender's
requirements with respect to the single purpose entity and bankruptcy remote
structure of ownership of Purchaser; (iv) comply with Lender's requirement to
establish a lockbox for the deposit of the rents from the Property, and increase
the amount of any tax and insurance, replacement, leasing cost or other reserves
if required by Lender pursuant to the terms of applicable agreements with
respect to such reserves; (v) comply with any other reasonable conditions to the
transfer which may be imposed by the Lender (subject to Section 9.3.6) and, if
the Loan has been securitized prior to the Closing, by any applicable rating
agencies, including delivery of any customary legal opinions required by Lender,
(vi) satisfy Lender with respect to the property manager and exclusive leasing
agent for the Property and the form of any contracts with such parties; and
(vii) take such other actions as may be reasonably required to comply with the
provisions of Article 8 of the Mortgage and Security Agreement with respect to
each Property.
9.3.3 Purchaser shall execute, acknowledge and deliver to Lender at
Closing such documents as Lender may require in order to obtain Lender's consent
to the transfer and to enable Lender to release Seller's Affiliates from further
liability in respect of the Loan (the "Assumption Documents"). The Assumption
Documents shall include, without limitation, the following: (i) an assumption
agreement in the standard form required by the Lender, (ii) agreements executed
by the Substitute Indemnitor in substantially the form of the original
Environmental Indemnification Agreement executed by the applicable Company and
IPL and the Guaranty of Recourse Obligations of Borrower executed by IPL and
(iii) an agreement among Purchaser, its property manager and Lender
subordinating any claims of the property manager to the lien of the mortgages
securing the Loans. The Assumption Documents shall provide for such amendments
to the Loan Documents as are necessary to (x) substitute Purchaser as borrower
and an entity satisfactory to Lender as Substitute Indemnitor, (y) modify
representations and warranties and affirmative and negative covenants as
necessary to delete all references to Sellers and/or its Affiliates, and to
reflect Purchaser's structure of ownership and (z) modify the "due on sale"
clause to include the following types of transactions as permitted transfers,
but only to the extent such permitted transfers are consistent with the existing
guidelines of the applicable rating agencies: (A) transfers of limited
partnership interests in Ramco-Gershenson Properties, L.P. (the "Operating
Partnership"), so long as RPT (as hereinafter defined) remains the general
partner of the Operating Partnership, (B) sales on a public exchange of stock in
Ramco-Gershenson Properties Trust ("RPT"), which is the publicly traded real
estate investment trust that is the general partner of the Operating
Partnership, and (C) merger transactions involving either Indemnitor or RPT.
27
9.3.4 Sellers shall request that the Lender include in the Assumption
Documents a certification of the Lender to the effect that: (i) the Loan
Documents are all of the material documents relating to the Loan and are
unmodified; (ii) the Loan is in good standing and there is no default thereunder
and no event which, with the passage of time, would mature into a default; (iii)
the amount of each reserve or impound being held by Lender; and (iv) the
principal balance and all other amounts owing under the Loan. Inclusion of such
certifications shall not be a condition to Closing.
9.3.5 Any transfer fee, costs or expenses charged by Lender in connection
with its consent to the transfer of the Interests to Purchaser ("Lender Fees")
shall be paid by Purchaser. Purchaser shall, no later than the Loan Submission
Date, pay to Lender any review fees and make any deposit of legal and other
third party fees required by the Lender as a condition to its review of the
request for consent to the transfer.
9.3.6 Purchaser shall not be obligated to enter into any agreements with
Lender that would modify the economic terms of the Loan, materially increase the
obligations of the borrower beyond those of the applicable Company as borrower,
or of the Substitute Indemnitor beyond those of Sellers' Affiliates as
indemnitors, under the Loan Documents or materially reduce the rights of the
borrower under the Loan Documents.
9.4 Audit. Purchaser shall have the right after Closing to conduct an audit of
the operating records for the Property for the period from the date of the
Company's acquisition of the applicable Center to the Closing Date. Sellers
agree to reasonably cooperate with Purchaser, at no cost to Sellers, and make
available for review such operating records, including original invoices and
bank statements, that were not delivered to Purchaser at Closing, to the extent
such information is in the possession of Sellers or the Property Manager. This
provision shall survive the Closing.
9.5 Insurance Claims. The parties acknowledge that the Companies are "insureds"
under the insurance policies maintained by the Companies, Sellers and their
Affiliates with respect to the Property and other assets owned by Sellers and
their Affiliates. Sellers intend to remove the Companies as insureds under all
such policies, effective as of the Closing Date, and distribute to Sellers any
right the Companies may have to receive insurance proceeds under any such
policies (except as otherwise provided in Article 8 hereof). Nothing herein
shall alter any rights the Companies may have from and after Closing under the
Companies' commercial general liability and umbrella liability policies
(collectively, "Liability Policies") for periods up to the Closing Date,
including rights in respect of claims made or suits brought after Closing for
occurrences that took place prior to Closing. In the event that any claim is
made or suit is filed against either Company after Closing that is covered by
the Liability Policies, Purchaser shall cause such Company to notify Sellers and
the insurance carrier within ten (10) days after the Company receives notice of
such claim or suit.
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ARTICLE 10
REMEDIES
10.1 Sellers' Remedies. In the event Purchaser fails to perform its obligations
pursuant to this Contract for any reason except (a) failure by Sellers to
perform any of their obligations hereunder, (b) if any of the representations or
warranties of Sellers hereunder is incorrect in any material respect as of the
Effective Date, or (c) the termination of this Contract by Sellers or Purchaser
pursuant to the terms hereof (other than this Article 10), and Purchaser fails
to cure such failure within ten (10) days after receipt of such notice thereof,
Sellers shall be entitled as their sole remedy hereunder to terminate this
Contract and recover the Earnest Money as liquidated damages and not as a
penalty, in full satisfaction of claims against Purchaser hereunder.
Notwithstanding the foregoing, if Purchaser fails to perform its obligation to
close this transaction on the Closing Date as set forth herein, then Purchaser
shall not be entitled to the notice and 10-day cure period described in the
preceding sentence. Sellers and Purchaser agree that Sellers' damages resulting
from Purchaser's default are difficult, if not impossible, to determine and the
Earnest Money is a fair estimate of those damages which has been agreed to in an
effort to cause the amount of said damages to be certain.
10.2 Purchaser's Remedies. In the event Sellers fail to perform their
obligations pursuant to this Contract for any reason except (a) failure by
Purchaser to perform hereunder, (b) if any of the representations or warranties
of Purchaser hereunder is incorrect in any material respect on the Effective
Date, or (b) a termination of this Contract by Sellers or Purchaser pursuant to
an express right to terminate set forth herein, Purchaser may, as its sole
remedy, either terminate this Contract by giving Sellers timely written notice
of such election prior to or at Closing or enforce specific performance of this
Contract against Sellers. In the event Purchaser elects to terminate this
Contract, the Earnest Money shall be returned to Purchaser and thereafter,
except for the Surviving Obligations, neither Purchaser nor Sellers shall have
any further rights or obligations hereunder. Notwithstanding the foregoing, in
the event that Seller has transferred or intentionally encumbered the Interests
or the Property prior to Closing, making specific performance unavailable as a
remedy, Purchaser shall have the right to sue for damages, provided that the
amount of such damages shall not exceed the lesser of (i) the aggregate amount
of Purchaser's actual out of pocket costs and expenses in connection with the
negotiation of this Contract and the transactions contemplated hereby and the
investigations performed during the Inspection Period, including reasonable
attorneys fees (collectively, "Purchaser's Costs"), and (ii) $100,000 for each
Center.
10.3 Attorney's Fees. In the event either party hereto is required to employ an
attorney because of the other party's default, the defaulting party shall pay
the nondefaulting party's reasonable attorney's fees incurred in the enforcement
of this Contract.
10.4 Disposition of Earnest Money. In the event of a termination of this
Contract by either Sellers or Purchaser, the Title Company is authorized to
deliver the Earnest Money to the party entitled to same pursuant to the terms
hereof on or before the fifth (5th) business day following receipt by the Title
Company and the nonterminating party of written notice of such termination from
the terminating party, unless the other party hereto notifies the Title Company
that it disputes the right of the other party to receive the Earnest Money prior
to the expiration of such
29
five (5) day period. In such event the Title Company shall interplead the
Earnest Money into a court of competent jurisdiction in the county in which the
Property is located, unless otherwise instructed by both Purchaser and Sellers.
All attorneys' fees and costs and expenses of the Title Company incurred in
connection with such interpleader shall be assessed against the party that is
not awarded the Earnest Money in the event that such Earnest Money is interplead
or if the Earnest Money is distributed in part to both parties, then in the
inverse proportion of such distribution.
ARTICLE 11
MISCELLANEOUS
11.1 Entire Contract. This Contract contains the entire agreement of the parties
hereto. There are no other agreements, oral or written, and this Contract can be
amended only by written agreement signed by the parties hereto, and by reference
made a part hereof.
11.2 Binding. This Contract, and the terms, covenants, and conditions herein
contained, shall be covenants running with the Land and shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto. Purchaser shall have no right to assign its rights or delegate its
duties under this Contract to any person or entity without Sellers' prior
written consent, which may be withheld in Sellers' sole discretion, provided
that Purchaser may assign this Contract to one or more Affiliates of Purchaser
in order to satisfy the entity requirements of the Lender.
11.3 Notice. Any notice, communication, request, reply or advice (collectively,
"Notice") provided for or permitted by this Contract to be made or accepted by
either party must be in writing. Notice may, unless otherwise provided herein,
be given or served by depositing the same in the United States mail, postage
paid, registered or certified, and addressed to the party to be notified, with
return receipt requested or by delivering the same to such party, or an agent of
such party. Notice deposited in the mail in the manner hereinabove described
shall be effective three (3) business days following such deposit. Notice given
in any other manner, including overnight mail, hand delivery and facsimile
transmission, shall be effective only if and when received by the party to be
notified between the hours of 8:00 A.M. and 5:00 P.M. of any business day with
delivery made after such hours to be deemed received the following business day.
For the purposes of notice, the addresses of the parties shall, until changed as
hereinafter provided, be as follows:
Purchaser: c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 40834
Attention: Catherine Clark, Vice President,
Acquisitions
Facsimile:(248) 728-1600
30
with copy to: Honigman Miller Schwartz & Cohn LLP
32270 Telegraph Road, Suite 225
Bingham Farms, Michigan 48025
Attention: Alan M. Hurvitz, Esq.
Facsimile: (248) 566-8310
Sellers: Investcorp International, Inc.
280 Park Avenue, 37th Floor
New York, NY 10017
Attention: Heather Mutterperl
Facsimile (212) 983-7073
with a copy to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attention: Joanne Franzel, Esq.
Facsimile: (212) 351-4035
The parties hereto shall have the right from time to time to change their
respective addresses, and each shall have the right to specify as its address
any other address within the United States of America by at least five (5) days
written notice to the other party.
11.4 Reporting Person. Purchaser and Sellers hereby designate Title Company as
the "reporting person" pursuant to the provisions of Section 6045(e) of the
Internal Revenue Code of 1986, as amended.
11.5 Time. Time is of the essence in all things pertaining to the performance of
this Contract.
11.6 Governing Law. This Contract shall be construed in accordance with the laws
of the State where the Land is situated.
11.7 Currency. All dollar amounts are expressed in United States currency.
11.8 Section Headings. The section headings contained in this Contract are for
convenience only and shall in no way enlarge or limit the scope or meaning of
the various and several sections hereof.
11.9 No Survival of Obligations. Except as otherwise expressly otherwise
provided herein, the terms, conditions, warranties, representations, obligations
and rights set forth herein shall not survive Closing.
11.10 Business Days. In the event that any date or any period provided for in
this Contract shall end on a Saturday, Sunday or legal holiday, the applicable
date or period shall be extended to the first business day following such
Saturday, Sunday or legal holiday.
11.11 Irrevocable Option. To the extent that this Contract is ever construed as
an option agreement, Sellers and Purchaser hereby acknowledge that independent
consideration for such option in the sum of $100.00 has been (or will upon
demand, be) paid to Sellers by Purchaser,
31
and based on such consideration and the mutual covenants of Sellers and
Purchaser contained herein, Sellers hereby agree that any such option granted
Purchaser is irrevocable, and Sellers shall not terminate said option without
the prior written consent of Purchaser, except as may be expressly provided for
herein.
11.12 No Recordation. Without the prior written consent of Sellers, there shall
be no recordation of either this Contract or any memorandum hereof, or any
affidavit pertaining hereto, and any such recordation of this Contract or
memorandum hereof by Purchaser without the prior written consent of Sellers
shall constitute a default hereunder by Purchaser, whereupon this Contract
shall, at the option of Sellers, terminate and be of no further force and effect
and all Earnest Money deposited hereunder shall be immediately delivered to the
Sellers, whereupon the parties shall have no further duties or obligations one
to the other.
11.13 Prohibited Persons and Transactions.
11.13.1 Neither Purchaser nor any of its affiliates, nor any of their
respective partners, members, shareholders or other equity owners, and none of
their respective employees, officers, directors, representatives or agents is,
nor will they become, a person or entity with whom U.S. persons or entities are
restricted from doing business under regulations of the Office of Foreign Asset
Control ("OFAC") of the Department of the Treasury (including those named on
OFAC's Specially Designated and Blocked Persons List) or under any statute,
executive order(including the September 24, 2001, Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action and is not and will
not engage in any dealings or transactions or be otherwise associated with such
persons or entities.
11.13.2 Neither Seller nor any of its affiliates, nor any of their
respective partners, members, shareholders or other equity owners, and none of
their respective employees, officers, directors, representatives or agents is,
nor will they become, a person or entity with whom U.S. persons or entities are
restricted from doing business under regulations of the Office of Foreign Asset
Control ("OFAC") of the Department of the Treasury (including those named on
OFAC's Specially Designated and Blocked Persons List) or under any statute,
executive order(including the September 24, 2001, Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action and is not and will
not engage in any dealings or transactions or be otherwise associated with such
persons or entities.
11.14 Radon Disclosure. Chapter 88-285, Florida Statutes, requires the following
notice to be provided with respect to the contract for sale and purchase of any
building, or a rental agreement for any building: "RADON GAS: Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit."
32
ARTICLE 12
REAL ESTATE COMMISSIONS
12.1 Commissions. Sellers and Purchaser each hereby severally represents to the
other party hereto that it has not contacted any agent, broker or other similar
party with respect to the transactions contemplated by this Contract other than
Cushman & Wakefield (the "Broker"). Sellers shall be solely responsible for
paying any commissions owing to the Broker as a result of the transactions
contemplated by this Contract which shall be paid pursuant to the terms of a
separate written agreement. Sellers hereby agrees to indemnify and hold
Purchaser harmless from the claims of any agent, broker or other similar party
claiming by, through or under Sellers with respect to the transactions
contemplated by this Contract and this indemnification shall survive the
Closing. Purchaser hereby agrees to indemnify and hold Sellers harmless from the
claims of any agent, broker or other similar party claiming by, through or under
Purchaser with respect to the transactions contemplated by this Contract other
than the Broker, and this indemnification shall survive the Closing.
ARTICLE 13
DEFINITIONS
As used in this Contract, the following terms shall have the respective
meanings ascribed to them
13.1 Affiliate shall mean a Person controlling, controlled by or under common
control with another Person.
13.2 Applicable Laws shall mean any and all presently existing and future
judicial decisions, statutes, rulings, rules, regulations, permits, certificates
or ordinances of any Governmental Authority applicable to the Property.
13.3 Control or "control" shall mean the capacity to direct the business
operations and policies of a Person, whether by share ownership, contract or
otherwise.
13.4 Effective Date shall mean the date on which this Contract has been executed
and delivered by all parties hereto.
13.5 Governmental Authority shall mean the United States, the state, the county,
the city, or any other political subdivision in which the Property is located,
and any other political subdivision, agency or instrumentality exercising
jurisdiction over the Property.
13.6 Hazardous Material shall mean any substance:
(a) the presence of which requires investigation or remediation
under any statute, regulation, ordinance, order or policy of a
Governmental Authority; or
(b) which is defined as a "hazardous waste," "hazardous substance,"
pollutant, or contaminant under any federal, state, or local statute,
regulation, rule, or ordinance or
33
amendments thereto including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section
9601 et seq.) and/or the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.).
13.7 "Person(s) or person(s)" shall mean any natural person or persons, a
partnership, a limited liability company, a corporation and any other form of
business or legal association or entity.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
34
IN WITNESS WHEREOF, this Contract has been duly executed in multiple
counterparts (each of which is to be deemed original for all purposes) by the
parties hereto.
SELLERS:
NWC GLADES 441, INC., a Delaware corporation
By: ________________________________________
F. Jonathan Dracos
Vice President
DIVERSIFIED INVEST II, LLC, a Delaware
limited liability company
By: ________________________________________
John R. Fraser
Vice President
DELRAY RETAIL, INC., a Delaware corporation
By: ________________________________________
F. Jonathan Dracos
Vice President
DIVERSIFIED INVEST III, LLC, a Delaware
limited liability company
By: ________________________________________
John R. Fraser
Vice President
PURCHASER:
RAMCO DEVELOPMENT LLC,
a Michigan limited liability company
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
35
JOINDER BY TITLE COMPANY
The undersigned, referred to in the foregoing Contract as the "Title
Company," hereby acknowledges receipt of a fully executed copy (or executed
counterparts) of the foregoing Contract on this ____ day of __________, 2004,
and accepts the obligations of the Title Company as set forth therein. Upon
receipt, the Title Company hereby agrees to hold the Earnest Money as directed
in this Contract and to distribute the Earnest Money in accordance with the
terms and provisions of the Contract.
____________________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address: ___________________________________
___________________________________
Telephone: (___) ___________________________
Facsimile (___) ____________________________
36
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A Description of Land
Exhibit B Tenant Estoppel Certificate
Exhibit C Assignment of Membership Interests
Exhibit D Non-Foreign Affidavit
Exhibit E Owner's Affidavit
Exhibit F Schedule of Leases
Exhibit G Charter Documents
Exhibit H Tax Elections
Exhibit I Bank Account Information
Exhibit J Agreement re Leasing Commissions
Exhibit K Schedule of Service Contracts
Exhibit L Schedule of Loan Documents
Exhibit M Litigation
Exhibit N Environmental Assessments
Exhibit O FastFrame and Bronze Body Term Sheets
Exhibit P Balance Sheets
SCHEDULES
Schedule 1 Escrow Instructions
37
EXHIBIT A
Legal Description of Land
Mission Bay Plaza
PARCEL 1:
Tracts A and B, MISSION BAY PLAZA, according to the Plat thereof, recorded in
Plat Book 49, Pages 160-162, as amended by Surveyor's Affidavit recorded in
Official Records Book 4465, Page 1514, Public Records of Palm Beach County
Florida.
ALSO, all of the lands which constitute a portion of the 30 foot right-of-way as
shown on the Florida Fruit Lands Company's Subdivision No. 2 of Section, 13,
Township 47 South, Range 41 East, which was abandoned per Resolution No.
R-64-1932 adopted by the Board of County Commissioners of Palm Beach County as
recorded in Official Records Book 4438, Pages 1770-1773, Public Records of Palm
Beach County, Florida, being more particularly described as follows:
Commencing at the most Northerly Northeast corner of Tract A of the Plat of
Mission Bay Plaza, as recorded in Plat Book 49, Pages 160-162, Public Records of
Palm Beach County, Florida; thence South 00 degrees 51 minutes 43 seconds East,
a distance of 560.64 feet; thence South 01 degree 06 minutes 06 seconds West, a
distance of 36.68 feet to the Point of Beginning, the last two courses being
coincident with the East boundary of Tract A of said Mission Bay Plaza; thence
continue South 01 degree 06 minutes 06 seconds West, a distance of 30.01 feet;
thence South 89 degrees 47 minutes 02 seconds West, a distance of 1062.72 feet
to the West boundary of said Mission Bay Plaza; thence along said West boundary
North 12 degrees 51 minutes 43 seconds West, a distance of 30.75 feet (30.74
feet as measured); thence North 89 degrees 47 minutes 02 seconds East, a
distance of 1070.15 feet to the Point of Beginning.
LESS AND EXCEPTING THEREFROM the following described lands:
A parcel of land within the Plat of MISSION BAY PLAZA, as recorded in Plat Book
49, Page 160 through 162 inclusive, Public Records of Palm Beach County, Florida
and being more particularly described as follows:
Commence at the most southerly and the most westerly Southwest corner of said
Mission Bay Plaza; thence North 89 degrees 08 minutes 17 seconds East, a
distance of 375.00 feet (374.86 feet as measured); thence North 37 degrees 08
minutes 16 seconds East, distance of 180.00 feet; thence North 89 degrees 06
minutes 17 seconds East, a distance of 2.55 feet to the Point of Beginning, the
last three described courses being coincident with the Southerly boundary of
said Mission Bay Plaza; thence North 00 degrees 51 minutes 43 seconds West, a
distance of 142.00 feet; thence North 89 degrees 08 minutes 17 seconds East, a
distance of 137.45 feet (140.00 feet as measured); thence South 00 degrees 51
minutes 43 seconds East, a distance of 142.00 feet; thence South 89 degrees 08
minutes 17 seconds West, a distance of 140.00 feet to the Point of Beginning,
the last two described courses being coincident with the boundary of said
Mission Bay Plaza.
A-1
PARCEL 2:
Non-exclusive ingress/egress and utility easement for the benefit of Parcel 1 as
contained in that certain Easement Deed granted by Mission Bay Development Co.,
Inc., and Mission Bay Community Association, Inc. to Mission Bay Plaza
Associates recorded in Official Records Book 5014, Page 866 over the following
described property:
A portion of the Plat of Mission Bay, a P.U.D., as recorded in Plat Book 53,
Page 112-120, inclusive, Public Records of Palm Beach County Florida, being more
particularly described as follows:
Commence at the Southwest corner of Mission Bay Plaza, as recorded in Plat Book
49, Pages 160-162, inclusive, Public Records of Palm Beach County, Florida;
thence North 89 degrees 08 minutes 17 seconds East, along a South line of said
Mission Bay Plaza, a distance of 270.00 feet to the Point of Beginning; thence
continued North 89 degrees 08 minutes 17 seconds East a distance of 105.00 feet;
thence North 37 degrees 08 minutes 16 seconds East, a distance of 24.36 feet;
thence South 00 degrees 51 minutes 43 seconds East a distance of 142.20 feet;
thence South 83 degrees 25 minutes 39 seconds West, a distance of 120.60 feet;
thence North 00 degrees 51 minutes 43 seconds West, a distance of 135.00 feet to
the Point of Beginning.
PARCEL 3:
Signage Easement. Removal and Maintenance Agreement between Mission Bay
Development Co., Inc., and Mission Bay Plaza Associates and Mission Bay
Community Association, Inc. recorded in Official Records Book 5710, Page 1130,
affecting the following described property.
A portion of the Plat of Mission Bay, a P.U.D., recorded in Plat Book 53, Page
112-120, inclusive, Public Records of Palm Beach County, Florida, being more
particularly described as follows:
Commence at the intersection of the Northwest right-of-way of State Road 7 and
the North right-of-way of Glades Road as shown on the plat of Mission Bay, a
P.U.D., recorded In Plat Book 53, Page 112-120, inclusive, Public Records of
Palm Beach County, Florida, said point also being a point in a curve concave to
the North, having a radius of 80.00 feet, a central angle of 14 degrees 24
minutes 12 seconds and whose radius point bears North 15 degrees 15 minutes 55
seconds West; thence Westerly along the arc of said curve and said North
right-of-way of Glades Road an arc distance of 20.11 feet to the point of
tangency; thence South 89 degrees 08 minutes 17 seconds West, along said North
right-of-way line of Glades road, a distance of 341.84 feet to the Point of
Beginning; thence continue South 89 degrees 08 minutes 17 seconds West, along
said North right-of-way line a distance of 10.64 feet; thence North 45 degrees
51 minutes 43 seconds West, a distance of 35.36 feet to the East right-of-way of
Calle Comercio as shown on said Plat; thence North 00 degrees 51 minutes 43
seconds West, along said East right-of-way line a distance of 10.00 feet; thence
North 89 degrees 08 minutes 17 seconds East a distance of 35.64 feet; thence
South 00 degrees 51 minutes 43 seconds East, a distance of 35.00 feet to the
Point of Beginning.
A-2
PARCEL 4:
Non-exclusive drainage easement for the benefit of Parcel I as contained in
Paragraphs 1, 4 and 5 of that certain Easement Deed and License granted by
Mission Bay Development Co., Inc., to Centrum Mission Bay, Ltd., dated February
14, 1985 and recorded February 19, 1985 in Official Records Book 4470, Page 216,
Public Records of Palm Beach County, Florida.
PARCEL 5:
Non-exclusive drainage easement for the benefit of Parcel 1 as contained in
Easement Deed in favor of Mission Bay Plaza Associates, dated August 19, 1996,
and recorded September 23, 1996 in Official Records book 5014, Page 870, Public
Records of Palm Beach County, Florida.
A-3
EXHIBIT A-1
Legal Description of Land
Plaza at Delray
All that certain real property situated in Palm Beach County, Florida, described
as follows:
All of REPLAT OF DELRAY MALL, according to the Plat thereof recorded in Plat
Book 58, at Page 133; said Plat having been amended by the Affidavit recorded in
Official Records Book 5551, at Page 170, of the Public Records of Palm Beach
County, Florida; said land situate, lying and being in Palm Beach County,
Florida.
LESS AND EXCEPT THE FOLLOWING DESCRIBED TWO (2) PARCELS:
PARCEL I: A parcel of land conveyed to the City of Delray Beach by Special
Warranty Deed recorded in Official Records Book 9186, at Page 392 and corrected
in Official Records Book 9229, page 1943, of the Public Records of Palm Beach
County, Florida, being a parcel of land lying in Sections 20 and 21, Township 46
South, Range 43 East, being more particularly described as follows:
Commencing at the Southwest corner of a Replat of Delray Mall, according to the
Plat thereof recorded in Plat Book 58, at Page 133, of the Public Records of
Palm Beach County, Florida; thence South 89 degrees 44'06" East, along the
Southerly line of said Plat and the North right-of-way line of Linton Boulevard,
a distance of 5.05 feet to the Point of Beginning; thence North 08 degrees
23'05" East parallel with and 5.00 feet from the Westerly line of said Plat, a
distance of 35.89 feet; thence South 40 degrees 40'30" East, a distance of 37.77
feet;
1) thence South 89 degrees 44'06" East, a distance of 87.14 feet;
2) thence South 90 degrees 00'00" East, a distance of 513.92 feet; the last two
(2) calls being parallel with and 7.00 feet from as measured perpendicular to
said North right-of-way line of Linton Boulevard; thence North 59 degrees 06'05"
East, a distance of 41.08 feet to a point on a non-tangent curve concave to the
Southeast, lying parallel with and 12.00 feet from as measured perpendicular to,
the Easterly line of said Plat and the West right-of-way of Federal Highway
(State Route #5), whose radius of 1982.08 feet bears North 61 degrees 47'51"
West, at that point, and a central angle of 04 degrees 02'24"; thence
Northeasterly along the arc of said curve, a distance of 139.76 feet; thence
North 36 degrees 48'59" East, a distance of 150.48 feet to a point of cusp; 1)
thence South 32 degrees 14'33" West, a distance of 150.00 feet to a point of
curve concave to the Southeast having a radius of 1970.08 feet and a central
angle of 04 degrees 46'39"; 2) thence Southwesterly along the arc of said curve,
a distance of 164.27 feet; the last two (2) calls being coincident with the
Easterly line of said Plat and said West right-of-way line of Federal Highway;
1) thence North 90 degrees 00'00" West, a distance of 547.91 feet; 2) thence
North 89 degrees 44'06" West, a distance of 116.95 feet to the Point of
Beginning; the last two (2) calls being coincident with the Southerly line of
said Plat, and the North right-of-way line of Linton Boulevard.
A-4
PARCEL II: A parcel of land conveyed to the City of Delray Beach by Special
Warranty Deed recorded in Official Records Book 9186, at Page 397 and corrected
in Official Records Book 9229, page 1948, of the Public Records of Palm Beach
County, Florida, being a parcel of land lying in Sections 20 and 21, Township 46
South, Range 43 East, being more particularly described as follows:
The West 5.00 feet , as measured perpendicular from the Westerly line of a
Replat of Delray Mall, according to the Plat thereof recorded in Plat Book 58,
Page 133 of the Public Records of Palm Beach County, Florida
A-5
EXHIBIT B
Tenant Estoppel Certificate
_____________, 2004
___________________________
___________________________
___________________________
___________________________
Re: Lease dated ____________, 2004
Gentlemen:
The undersigned (the "TENANT") has executed and entered into that certain
lease agreement (the "LEASE") attached hereto as Exhibit A and made a part
hereof for all purposes with respect to certain space known as
___________________________, located at _______________________,
_____________________, __________________. ______________ is the Guarantor of
Tenant's obligations under the Lease. The Tenant understands that
_____________________________, the owner of the property and the lessor's
interest in the Lease, intends to sell, transfer, assign, and convey such
property, and lessors' interest in all tenant leases with respect to such
property, to _______________________ ("BUYER").
With respect to the Lease and such sale transaction, the Tenant is pleased
to inform you of the following, with the intention that you, the Buyer and any
lender providing financing to Buyer with respect to the acquisition of the
property may rely fully thereon:
1. A true and correct executed copy of the Lease is attached hereto as
Exhibit A.
2. The Lease is in full force and effect and has been modified, supplemented,
or amended only in the following respects:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Please describe in the above space any oral or written modifications,
supplements, or amendments, if necessary. Please use the reverse side of
this page for any additional space needed.)
3. The Tenant is in actual occupancy of its leased premises under the Lease.
4. The initial term of the Lease commenced on ____________, ____, and ends on
_______________, ____, at a monthly rental of $__________. Tenant has ___
renewal options of _____ years each remaining. In addition to base rent,
the Tenant is obligated to pay its pro rata share of which amount includes
base rent plus common area maintenance charges, taxes and insurance, [and
percentage rent equal to _________________]. No rentals or other payments
in advance of the current calendar month have been paid by Tenant except
as follows:
__________________________________________________________________________
__________________________________________________________________________
B-1
__________________________________________________________________________
(Please describe such payments above).
5. Rent with respect to the Lease has been paid by Tenant through
_____________, 2004.
6. There are no concessions, bonuses, free months' rental, rebates, or other
matters affecting the rental for Tenant, except as follows:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Please describe such matters above).
7. No security or other deposit has been paid by Tenant with respect to the
Lease, except as follows:
__________________________________________________________________________
__________________________________________________________________________
(Please describe such deposit above).
8. There are no events or conditions existing which, with or without notice
or the lapse of time, or both, could constitute a monetary or other
default of the lessor under the Lease, or entitle the Tenant to offsets or
defenses against the prompt current payment of rent, or give rise to any
right or option of Tenant to terminate this Lease or discontinue operation
of business from the leased premises, and there are no lawsuits, actions,
claims or other proceedings pending against the lessor under the lease
either brought by Tenant or to which Tenant is a party.
9. All improvements, alterations and other work required to be made or done
by the lessor under the terms of the Lease have been satisfactorily
completed.
10. Except as set forth below, Tenant has no early termination, expansion,
renewal, extension or purchase options under its Lease or otherwise:
Early Termination: _______________________________________________________
_________________________________________________________________________
_________________________________________________________________________
Expansion: _______________________________________________________________
_________________________________________________________________________
Renewal: _________________________________________________________________
_________________________________________________________________________
Extension: _______________________________________________________________
_________________________________________________________________________
Purchase Options: ________________________________________________________
_________________________________________________________________________
(Please describe such options above).
B-2
11. As of the date hereof, there are no actions, whether voluntary or
otherwise, which are pending or have been threatened against Tenant under
any bankruptcy or insolvency laws of any state or the United States.
12. Tenant has not assigned, transferred or sublet all or any part of the
leased premises, except as follows:_________________________________.
This certification shall be binding upon, and shall inure to the benefit
of, Buyer and Tenant, and their respective successors and assigns, and all
parties claiming through or under such persons or any such successor or assign.
Dated: _______________, 2004.
Very truly yours,
Tenant:
By: _____________________________________
Name: ___________________________________
Title: __________________________________
B-3
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
(BOCA MISSION, LLC)
THIS ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS (this "Assignment
and Assumption Agreement"), is effective as of the _____ day of August, 2004,
and is made by and between NWC Glades 441, Inc., a Delaware corporation and
Diversified Invest II LLC, a Delaware limited liability company (individually an
"Assignor" and collectively "Assignors"), and _____________________________, a
_____________________ ("Assignee").
WHEREAS, Assignor and Assignee entered into that certain Purchase and Sale
Agreement, dated as of __________________, 2004 (the "Purchase Agreement"),
pursuant to which Assignor agreed to assign, set over and transfer to Assignee
all of Assignor's right, title and interest in and to Boca Mission, LLC, a
Delaware limited liability company (the "Company"), as more described in the
Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by all parties hereto, the parties hereby
agree as follows:
1. Assignor does hereby convey, transfer, assign and deliver to Assignee
and Assignee's successors and assigns, all of Assignor's right, title and
interest in and to its membership interest in the Company, and Assignee does
hereby accept all of the right, title and interest of Assignor in and to its
membership interest in the Company.
2. Assignee does hereby assume, accept and agree to observe, perform,
discharge when due, and be bound by, each and all of the rights, liabilities and
obligations of Assignor in and to its membership interest in the Company.
3. Assignor and Assignee shall each execute, acknowledge and deliver, or
cause the execution, acknowledgment and delivery of, such further documents and
instruments as may reasonably be requested by the other party hereto to
implement the purposes of this Assignment and Assumption Agreement.
4. This Assignment and Assumption Agreement and the respective rights,
duties and obligations of the parties hereunder, shall be governed and construed
in accordance with the internal law of the State of Delaware.
5. This Assignment and Assumption Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original and all
of which shall constitute one and the same instrument.
6. The provisions of this Assignment and Assumption Agreement shall be
binding upon, and shall inure to the benefit of, the successors and assigns of
Assignor and Assignee, respectively.
C-1
7. This Assignment and Assumption Agreement is made and entered into by
Assignor and Assignee for the benefit and protection of such parties, and no
other person or entity shall have any rights or interest hereunder.
[SIGNATURES ON FOLLOWING PAGE]
C-2
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the day
and year first written above.
ASSIGNOR:
NWC GLADES 441, INC.,
a Delaware corporation
By: _____________________________________
By: F. Jonathan Dracos
Title: Vice President
DIVERSIFIED INVEST II, LLC,
a Delaware limited liability company
By: _____________________________________
Name: John R. Fraser
Title: Vice President
ASSIGNEE:
_________________________________,
a _____________________
By: __________________________
Name:
Title:
C-3
EXHIBIT D
Non-Foreign Affidavit
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. For U.S. tax purposes (including section 1445), the owner of a
disregarded entity (which has legal title to a U.S. real property interest under
local law) will be the transferor of the property and not the disregarded
entity. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by _________________
("TRANSFEROR"), the undersigned hereby certifies the following on behalf of
Transferor.
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. Transferor is not a disregarded entity as defined in Section.
1.1445-2(b)(2)(iii);
3. Transferor's U.S. employer identification number is ____________; and
4. Transferor's office address is ___________________________________.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Transferor.
SELLER
[to be inserted]
D-1
EXHIBIT E
Owner's Affidavit
The Affidavit is made with respect to the sale of membership interests
("Interests") in the owner of the real property commonly knows as
___________________ (the "PROPERTY"), as more particularly described in Exhibit
A hereto and in the Title Commitment issued by ________________ (the "TITLE
COMPANY"), has been duly authorized by all requisite corporate action.
The undersigned, in his or her capacity of the entity stated below
("SELLER"), and not individually, being duly sworn, hereby says as follows:
1. ____________________ is duly authorized to execute documents on behalf
of Seller in order to sell or convey the Interests substantially in accordance
with the terms of the Purchase and Sale Agreement (the "AGREEMENT") with
___________________________ ("BUYER").
2. No person known to Seller is entitled to occupy the Property except
pursuant to leases or rental agreements set forth in Exhibit B hereto.
3. All improvements to the Property have been completed; and all labor,
services and materials supplied to the Property for improvements, fixtures and
furnishing at the request of Seller have been, or will in the ordinary course of
business be, paid in full, other than ___________.
4. All real property taxes and assessments lawfully due and payable which
could become a lien against the Property have been paid in full.
5. Seller is not a "foreign person" as that term in defined in Section
1445 of the Internal Revenue Code, as amended.
This Affidavit is given on behalf of Seller in order to induce Title
Company to issue and Owner's Policy of Title Insurance and required
endorsements.
Executed as of ______________, 2004.
SELLER
[to be inserted]
E-1
EXHIBIT F
SCHEDULE OF LEASES
F-1
EXHIBIT G
CHARTER DOCUMENTS
EXHIBIT H
TAX ELECTIONS
NONE
EXHIBIT I
BANK ACCOUNT INFORMATION
MISSION BAY PLAZA
BANK ACCOUNTS
BANK: Wachovia Bank - Interest Bearing Internal MM Provident Bank - Basic Business Checking Account
Lock Box - Depository Account Operating Account
ADDRESS: 1525 West WT Harris Blvd Mail Stop 464F
Building 2C2 One East Fourth Street
Charlotte, NC 28262 Cincinnati, OH 45269
ACCOUNT #: 5000000042296 0390-617
SIGNATORIES: Account was set up by Lehman Bros Andrew D. Gumberg
No signatories on file Sonya H. Etessam
Clifford J. Lengel
Robert E. Howard
Glenn R. Fox
F. Jonathan Dracos
Edward G. Lord
John R. Fraser
LIMIT FOR SIGNATORIES: Unknown None
COMMENTS: All escrows and reserves are being held at Checks require any 2 of the above signatories
Wachovia Bank
BOCA MISSION BAY, LLC (BMLC)
FLEET ACCOUNT #9467244405
SIGNATORIES: ED LORD, JOHN FRASER, F. JONATHAN DRACOS
I-1
THE PLAZA AT DELRAY
BANK ACCOUNTS
LINTON DELRAY, LLC (LDLC)
FLEET ACCOUNT #946724331
SIGNATORIES: ED LORD, JOHN FRASER, F. JONATHAN DRACOS
PLAZA DEL RAY ACCOUNT-PROPERTY LEVEL
WACHOVIA BANK, NA
P.O. BOX 60895
CHARLOTTE, NC 28260-0895
ACCOUNT #005000000045358
DEPOSITS ONLY, NO SIGNERS
PLAZA DEL RAY ACCOUNT-PROPERTY LEVEL
PROVIDENT BANK
MAIL STOP 464F
ONE EAST FOURTH ST.
CINCINNATI, OH 45269
ACCOUNT #0582-769
2 SIGNATURES REQUIRED, NO LIMITS ON AMOUNTS
SIGNATORIES: JON DRACOS, EDWARD LORD, JOHN FRASER, ANDREW GUMBERG, SONYA
ETESSAM, ROBERT HOWARD, CLIFF LENGEL AND GLENN FOX.
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EXHIBIT J
LEASING COMMISSION LETTER
Gumberg Asset Management Corp.
3200 North Federal Highway
Fort Lauderdale, FL 33306
_______________, 2004
Delray Retail, Inc.
Diversified Invest III, LLC
c/o Investcorp International Inc.
280 Park Avenue
New York, NY 10017
Re: Property Management Agreement dated as of August 7, 2003
between Linton Delray, LLC, as Owner and Gumberg Property
Investors, Inc., assigned to Gumberg Asset Management Corp.,
as Manager (the "Agreement") with respect to real property
known as Plaza at Delray, Delray Beach, Florida (Capitalized
terms used but not defined herein shall have the meanings set
forth in the Agreement)
Dear Ladies and Gentlemen:
This will confirm to you ("Sellers") that Owner has given us notice that
the Property will be sold on or about August 15, 2004, pursuant to a Contract of
Sale and Purchase dated as of June __, 2004 (the "Contract"), a copy of which
has heretofore been received by Manager. The sale will be structured as the sale
of membership interests in Owner to Ramco Development LLC or its affiliates
(together with such affiliates, "Purchaser"). For purposes of Manager's
compliance with its obligations upon termination of the Agreement, the closing
date of such sale (the "Closing Date") will be deemed to be the date of
termination of the Agreement in accordance with Section 2.2 thereof.
Manager hereby confirms to Sellers and Owner that, as of the date hereof
(i.e., the Closing Date), there is no Basic Management Fee, Construction
Management Fee, Acquisition Services Fee, reimbursement or other sums due and
owing pursuant to the Agreement, other than as set forth in the Agreement. With
the exception of Leasing Commissions, which are dealt with in the next paragraph
hereof, Manager (a) shall look solely to Sellers for any sums due under the
Agreement, including the Incentive Compensation Fee, and (b) hereby waives any
right it may have under the Agreement or under applicable law to make a claim
against Owner or to file any lien against the Property for sums due under the
Agreement.
Manager hereby confirms to Sellers and Owner that there are no Leasing
Commissions due or owing to Manager with respect to the Property, except as set
forth on Exhibit A. Manager shall look solely to Sellers for the amounts, if
any, shown on Exhibit A as being "Commissions
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Owed by Sellers," and Sellers hereby jointly and severally agree to pay the same
to Manager on or before the Closing Date, notwithstanding anything to the
contrary in the Agreement. By signing this letter agreement, Purchaser and Owner
hereby jointly and severally agree to pay the commissions shown and referred to
on Exhibit A as being "Commissions Owed by Purchaser," which commissions shall
be due and payable to Manager upon and subject to the terms and conditions set
forth in the Agreement, including without limitation the right of Owner to a
refund of commissions pursuant to Section 3.2(d)(i) of the Agreement. From and
after the Closing Date, Manager hereby waives any right it may have under the
Agreement or under applicable law to file any lien against the Property, other
than for Commissions Owed by Purchaser. Manager further confirms that there are
no Outside Brokers with respect to the Property for whose commission Owner or
Purchaser is responsible, except as set forth on Exhibit A.
Pursuant to Section 2.3(d) of the Agreement, Manager hereby certifies to
Sellers that to the best of Manager's knowledge the information, documentation,
correspondence, reports, rent rolls, etc. in respect of the Property required to
be supplied by Manager in accordance with the Agreement have been supplied and
are true, correct and complete in all material respects.
[Signatures appear on next page]
Very truly yours,
GUMBERG ASSET MANAGEMENT CORP.
By: __________________________________
Print Name: __________________________
Title: _______________________________
Duly Authorized Signatory
CONFIRMED AND AGREED:
PURCHASER: OWNER:
RAMCO DEVELOPMENT LLC LINTON DELRAY, LLC
By: __________________________ By: _________________________
Print Name: __________________ Print Name: _________________
Title: _______________________ Title: ______________________
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SELLERS:
DELRAY RETAIL, INC.,
a Delaware corporation
By: ____________________________
Name: F. Jonathan Dracos
Title: Vice President
DIVERSIFIED INVEST III, LLC,
a Delaware limited liability company
By: ____________________________
Name: John R. Fraser
Title: Vice President
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EXHIBIT A
Commissions Owed by Sellers:
$____________
$____________
$____________
$____________
$____________
Commissions Owed by Purchaser:
$____________
$____________
$____________
$____________
$____________
[Note - Any additional commissions accruing between the date of the Contract and
the Closing Date are Purchaser's responsibility as long as the Lease Transaction
and Leasing Costs have been approved in accordance with the Contract and will be
added to Commissions Owed by Purchaser prior to execution of this letter.]
Outside Brokers:
____________________________
____________________________
____________________________
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EXHIBIT K
SCHEDULE OF SERVICE CONTRACTS
MISSION BAY PLAZA
BOCA RATON, FL
Vendor Description Expires
------ ----------- -------
A1 Management Services, Inc. Porter Service, parking lot sweeping & pressure 48 hr notice
cleaning
American Security Alarm Systems, Inc. Monitor fire sprinkler system 48 hr notice
Ashem & Company, Inc. Prune Royal Palms 48 hr notice
Barba & Associates, Inc. Fountain maintenance 48 hr notice
East Coast Towing Vehicle towing as needed 48 hr notice
Exotic Environments, Inc. Vine maintenance 48 hr notice
Flick Pest Control, Inc. Exterior pest control 48 hr notice
Flick Pest Control, Inc. Lawn fertilization and insecticide 48 hr notice
Lone Star Telecom, Inc. Pay phone services 48 hr notice
Mark H. Enterprise, Inc. Landscape maintenance 48 hr notice
Soundcom of Florida Common area music system 48 hr notice
Summers Fire Sprinklers, Inc. Maintenance of fire sprinkler system 48 hr notice
Sunburst Sanitation Trash removal No contract
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THE PLAZA AT DELRAY
DELRAY BEACH, FL
SERVICE AGREEMENT SCHEDULE
Vendor Description Expires
------ ----------- -------
Ashem & Co. Prune Royal Palms 48 hr notice
Broward Cleaning & Maintenance, Inc. Porter Service 48 hr notice
Broward Cleaning & Maintenance, Inc. - Pressure Washing 48 hr notice
verbal agreement
City of Delray Police Dept. (no contract) Off-duty police security services 48 hr notice
Hi-Rise Safety Systems, Inc. Maintain & monitor fire sprinkler system 8/31/08
J & K Property Maintenance, Inc. Sweep parking lot 48 hr notice
Palm Beach Patrol, Inc. Security guard services 48 hr notice
Commercial Pay Phones, Inc. Pay phone leasing & maintenance 11/3/09
Rust-Off, Inc. Maintain rust inhibitor system on irrigation 48 hr notice
U.S. Lawns of South Palm Beach Landscape maintenance 48 hr notice
Waste Management of Palm Beach Lease of trash and recycle containers 11/11/04
BFI Removal of trash No contract
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EXHIBIT L
LOAN DOCUMENTS
Mission Bay Plaza
1. Resolutions and Certificates of Mission Bay Shopping, LLC
2. Certificate of Incumbency and Resolutions
3. Independent Director Documents
4. Promissory Note
5. Mortgage and Security Agreement
6. Assignment of Leases and Rents
7. Environmental Indemnity Agreement
8. Guaranty of Recourse Obligations of Borrower
9. Cash Management Agreement
10. Assignment of Agreements, Permits and Contracts
11. Conditional Assignment of Management Agreement
12. Completion/Repair and Security Agreement
13. Excess Cash Reserve and Security Agreement
14. Replacement Reserve and Security Agreement
15. Tenant Improvement and Leasing Commission Reserve and Security Agreement
16. Cooperation Letter
17. Post-Closing Letter
18. Disbursement letter
19. Borrower's Certification
20. UCC Financing Statements
21. Legal Opinions
A. Gibson, Dunn & Crutcher LLP due authority opinion
B. Gibson Dunn & Crutcher LLP substantive non-consolidation opinion and
certificates
C. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. enforceability
opinion
22. Municipal Zoning Letter
23. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Zoning Letter
A. Site Plan
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Plaza at Delray
1. Promissory Note
2. Assignment of Leases and Rents
3. Mortgage and Security Agreement
4. Assignment of Agreements, Permits and Contracts
5. UCC-1 Financing Statements
A. Palm Beach County
B. Delaware Secretary of State
6. Guaranty of Recourse Obligations of Borrower
7. Environmental Indemnity Agreement
8. Conditional Assignment of Management Agreement
9. Cash Management Agreement
10. Replacement Reserve and Security Agreement
11. Completion/Repair and Security Agreement
12. Tenant Improvement and Leasing Commission Reserve and Security Agreement
13. Borrower's Certification
14. Securitization Cooperation Letter
15. Disbursement Letter
16. Title Escrow Letter
17. Post-Closing Letter
18. Opinion Letter of Gibson, Dunn & Crutcher LLP
19. Non-Consolidation Opinion Letter of Gibson, Dunn & Crutcher LLP
20. Opinion Letter of Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson,
PA
21. Zoning Letter
22. Certificate of Investcorp Properties Limited
23. Certificate of Organizational Documents Survey
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EXHIBIT M
Litigation
Lawsuit(s) against Rosie's Bar & Grill. Tenant was sued for breach of lease and
eviction relating to improper installation of 200 sf deck behind restaurant
premises and improper use of storage area outside its premises as office space.
Parties have signed a settlement agreement.
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EXHIBIT N
Environmental Assessments
The Plaza at Delray:
Section Phase I Environmental Assessment prepared by SGF Environmental
Consultants dated August 22, 2003
Section Environmental Services Ground Penetrating Radar SGF Project prepared by
SGF Environmental Consultants dated July 28, 2003
Mission Bay Plaza:
Section Phase I Environmental Assessment prepared by SGF Environmental
Consultants dated March 12, 2003
Section Environmental Services Monitoring Well Installation Sampling and
Analysis Report prepared by SGF Environmental Consultants dated April 7, 2003
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EXHIBIT O
FastFrame and Bronze Body Term Sheet
SCHEDULE 1
ESCROW INSTRUCTIONS
THIS ESCROW AGREEMENT is entered into by and among NWC GLADES 441, INC.,
DIVERSIFIED INVEST II, LLC, DELRAY RETAIL, INC. AND DIVERSIFIED INVEST III, LLC
(collectively, "SELLER"), and RAMCO DEVELOPMENT, LLC a Michigan limited
liability company ("PURCHASER") and RUDEN, MCCLOSKY, SMITH, SCHUSTER & RUSSELL,
P.A. ("ESCROW AGENT").
RECITALS:
A. Seller and Purchaser have entered into a Contract of Sale and Purchase
dated effective as of June _____, 2004 ("PURCHASE AGREEMENT") for the sale and
purchase of membership interests in Boca Mission, LLC and Linton Delray, LLC.
B. Under the terms of the Purchase Agreement, Purchaser has agreed to
deliver to Escrow Agent an initial earnest money deposit in the sum of ONE
MILLION AND NO/100ths DOLLARS ($1,000,000.00) ("EARNEST MONEY DEPOSIT") which
deposit is to be held, invested and disbursed by Escrow Agent in accordance with
the terms and conditions of this Agreement and the Purchase Agreement (the
Earnest Money Deposit together with any additional deposits under the Purchase
Agreement and any interest or earnings thereon shall hereinafter be referred to
as the "FUND").
C. Escrow Agent agrees to act as escrow agent to hold, administer, invest
and disburse the Fund on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the mutual covenants of the parties herein contained, and in further
consideration of the sum of One Dollar ($1.00), which each of the parties
acknowledges as adequate and sufficient, the parties hereto agree as follows:
1. DEFINITIONS.
All terms used herein, unless otherwise herein defined, shall have the
meanings set forth in the Purchase Agreement.
2. ACKNOWLEDGMENT OF RECEIPT.
Escrow Agent hereby acknowledges receipt from Purchaser of the Earnest
Money Deposit, consisting of $1,000,000.00 in cleared funds pursuant to the
Purchase Agreement.
3. ADMINISTRATION AND INVESTMENT OF FUND.
Escrow Agent hereby agrees to hold, administer and disburse the Fund
pursuant to this Agreement, and in accordance with the Purchase Agreement.
Escrow Agent shall
invest, and from time to time reinvest, the Fund in certificates of deposit,
money market or time or demand deposits.
4. TERMINATION BY PURCHASER ON OR BEFORE JULY 8, 2004.
In accordance with the Purchase Agreement, Purchaser may elect to
terminate the Purchase Agreement by written notice thereof transmitted
simultaneously to Seller and Escrow Agent, in accordance with Paragraph 10
hereof, on or before July 8, 2004 (the "TERMINATION NOTICE"). Upon receipt of
the Termination Notice on or before that date reflecting that a copy has
concurrently been transmitted to Seller, Escrow Agent shall pay the Fund to
Purchaser not later than one (1) business day thereafter (as long as the current
investment can be liquidated in one day), whereupon this Agreement shall then be
null and void and the parties hereto shall have no further liability or
obligations hereunder.
5. INTENTIONALLY DELETED.
6. TERMINATION BY SELLER OR PURCHASER.
(a) At any time after July 8, 2004, upon not less than five (5)
business days' prior written notice given by Seller and delivered to both
Purchaser and Escrow Agent in accordance with Paragraph 10 hereof, asserting
that (i) Purchaser has breached or otherwise defaulted and failed to perform its
obligations under the Purchase Agreement, and (ii) Seller is entitled to retain
the Fund on account thereof, as provided in the Purchase Agreement, Escrow Agent
shall deliver the Fund to Seller; provided, however, that if Purchaser shall,
within said five (5) business day period, deliver to Seller and Escrow Agent a
written notice that it disputes Seller's claim to the Fund, Escrow Agent shall
retain the Fund until it receives written instructions executed by both Seller
and Purchaser as to the disposition and disbursement of the Fund, or until
ordered by final court order, decree or judgment, which has not been appealed,
to deliver the Fund to a particular party, in which event the Fund shall be
delivered in accordance with such notice, instruction, order, decree or
judgment.
(b) At any time after July 8, 2004, upon not less than five (5)
business days' prior written notice given by Purchaser and delivered to Seller
and Escrow Agent in accordance with Paragraph 10 hereof, asserting that
Purchaser is entitled to the return of the Fund under the Purchase Agreement,
Escrow Agent shall deliver the Fund to Purchaser; provided, however, that if
Seller shall, within said five (5) business day period, deliver to Purchaser and
Escrow Agent a written notice that it disputes Purchaser's claim or right to
receive back the Fund, Escrow Agent shall retain the Fund until it receives
written instructions executed by both Seller and Purchaser as to the disposition
and disbursement of the Fund, or until ordered by final court order, decree or
judgment, which has not been appealed, to deliver the Fund to a particular
party, in which event the Fund shall be delivered in accordance with such
notice, instruction, order, decree or judgment.
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In the event either (a) or (b) of this paragraph shall occur, Purchaser's
or Seller's notice to Escrow Agent shall include a statement on which Escrow
Agent may rely, that Purchaser or Seller has notified the other party that the
requesting party is entitled to the Fund.
7. DISBURSEMENT AT CLOSING.
Subject to Paragraphs 4 and 6 hereof, Escrow Agent shall at Closing
transfer the Fund to the order of Seller in accordance with the Purchase
Agreement.
8. ESCROW AGENT.
(a) Escrow Agent shall hold possession of and solely keep all of the
Fund subject to the terms and conditions of this Agreement, and shall deliver
and dispose of the same according to the terms and conditions hereof, and shall
deal with the parties hereto in relation to the sums so escrowed fairly and
impartially according to the intent of the parties as herein expressed, provided
however that Escrow Agent is to be considered as a depository only, shall not be
deemed to be a party to any document other than this Agreement, and shall not be
responsible or liable in any manner whatsoever for the sufficiency, manner of
execution, or validity of any written instructions, certificates or any other
documents received by it, nor as to the identity, authority or rights of any
persons executing the same. Escrow Agent shall be entitled to rely at all times
on instructions given by Seller and/or Purchaser, as the case may be and as
required hereunder, without any necessity of verifying the authority therefor.
Notices given (i) by Honigman Miller Schwartz and Cohn, as counsel to and on
behalf of Purchaser, shall be deemed given by Purchaser, and (ii) by Gibson,
Dunn & Crutcher LLP, as counsel to and on behalf of Seller, shall be deemed
given by Seller.
(b) Escrow Agent shall not at any time be held liable for actions
taken or omitted to be taken in good faith and without gross negligence. Seller
and Purchaser agree to save and hold Escrow Agent harmless from any loss and
from any claims or demands arising out of its actions hereunder that are
consistent with the preceding sentence, and hereby agree to indemnify Escrow
Agent from any claims or demands for losses arising out of its activities
hereunder.
(c) It is further understood by Seller and Purchaser that if, as the
result of any disagreement between them or adverse demands and claims being made
by any of them upon Escrow Agent, or if Escrow Agent otherwise shall become
involved in litigation with respect to this Agreement or the Purchase Agreement,
such parties agree that they, jointly and severally, are and shall be liable to
Escrow Agent and shall reimburse Escrow Agent on demand for all costs, expenses
and counsel fees it shall incur or be compelled to pay by reason of such
litigation, including reasonable compensation to Escrow Agent for time expended
in connection with any such dispute or litigation.
(d) In taking or omitting to take any action whatsoever hereunder,
Escrow Agent shall be protected in relying upon any notice, paper, or other
document
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believed by it to be genuine, or upon evidence deemed by it to be sufficient,
and in no event shall Escrow Agent be liable hereunder for any act performed or
omitted to be performed by it hereunder in the absence of gross negligence or
bad faith. Escrow Agent may consult with counsel in connection with its duties
hereunder and shall be fully protected in any act taken, suffered or permitted
by it in good faith and without gross negligence in accordance with the advice
of such counsel.
(e) Escrow Agent is acting, and may continue to act, as attorney to
Purchaser in connection with any matters related to the Purchase Agreement
whether or not the Fund is being held by Ruden, McClosky, Smith, Schuster &
Russell, P.A. or it has been delivered to a substitute impartial party or to a
court of competent jurisdiction.
9. TERM OF AGREEMENT.
The term of this Agreement shall be from and after the date of this
Agreement as hereinafter set forth to and including the earliest to occur of (i)
any of the events set forth in Paragraphs 4, 6 and 7 hereof; or (ii) the
termination hereof by written agreement of the parties hereto.
10. NOTICES.
All notices, demands, requests or other communications which may or shall
be given or served by any party to this Agreement upon any other parties to this
Agreement, shall be deemed to have been given or served (i) one (1) day after
depositing such notice with a nationally recognized overnight courier, or (ii)
three (3) days after the date postmarked by mailing same by certified United
States mail, return receipt requested, postage prepaid, or (iii) on the same
business day that such notice is telecopied and mailed by first class mail,
postage prepaid, in each case addressed to the following:
Purchaser: c/o Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 40834
Attention: Catherine Clark, Vice President,
Acquisitions
Facsimile:(248) 728-1600
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with copy to: Honigman Miller Schwartz & Cohn LLP
32270 Telegraph Road, Suite 225
Bingham Farms, Michigan 48025
Attention: Alan M. Hurvitz, Esq.
Facsimile: (248) 566-8310
Seller: Investcorp International, Inc.
280 Park Avenue, 37th Floor
New York, NY 10017
Attention: Heather Mutterperl
Facsimile (212) 983-7073
with a copy to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attention: Joanne Franzel, Esq.
Facsimile: (212) 351-4035
If to Escrow Agent: Ruden, McClosky, Smith, Schuster & Russell,
P.A.
222 Lakeview Avenue, Suite 800
West Palm Beach, Florida 33401
Attn: Steven R. Parson, Esq.
Fax: (561) 514-3424
All parties shall have the right from time to time to designate by written
notice to all other parties any other address or place where such notice,
demand, or request be addressed.
11. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
representatives, successors and assigns.
(b) This Agreement shall be construed under and governed by the laws
of the State of Florida, and, in the event that any provision hereof shall be
deemed illegal or unenforceable, said provision shall be severed herefrom and
the remainder of this Agreement shall be enforced in accordance with the
intentions of the parties as herein expressed.
(c) This Agreement may not be amended or altered except by an
instrument in writing executed by all the parties hereto.
(d) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. A facsimile signature of a party shall be deemed binding
upon that party.
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WHEREFORE, the parties hereto have executed this Agreement as of the date
set forth below their respective signatures.
[SIGNATURES APPEAR ON NEXT PAGE]
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SELLER:
NWC GLADES 441, INC., a Delaware
corporation
By: ___________________________________
F. Jonathan Dracos
Vice President
DIVERSIFIED INVEST II, LLC, a Delaware
limited liability company
By: ___________________________________
John R. Fraser
Vice President
DELRAY RETAIL, INC., a Delaware
corporation
By: ___________________________________
F. Jonathan Dracos
Vice President
DIVERSIFIED INVEST III, LLC, a Delaware
limited liability company
By: ___________________________________
John R. Fraser
Vice President
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PURCHASER:
RAMCO DEVELOPMENT LLC,
a Michigan limited liability company
By: ___________________________________
Name: _________________________________
Title: ________________________________
ESCROW AGENT:
RUDEN, McCLOSKY, SMITH,
SCHUSTER & RUSSELL, P.A.
By: ___________________________________
Steven R. Parson, Vice President
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EXHIBIT P
BALANCE SHEETS