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Title: |
Purchase and Sale Agreement and Escrow Instructions |
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Date: |
2003 |
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$59 |
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#845553 |
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WEST SHORE PLAZA
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
Seller: American Freeholds,
a Nevada general partnership
and
Buyer: Glimcher Properties Limited Partnership,
a Delaware limited partnership
June 30, 2003
{PAGE}
WEST SHORE PLAZA
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
TABLE OF CONTENTS
-----------------
{TABLE}
Page
----
{S} {C} {C}
1. PURCHASE OF THE PROPERTY.................................................................................3
2. ESCROW AND CLOSING.......................................................................................4
3. CONDITIONS AND INSPECTION...............................................................................13
4. CONDITIONS TO CLOSING...................................................................................16
5. ADDITIONAL OBLIGATIONS OF PARTIES.......................................................................17
6. OPERATION OF PROPERTY...................................................................................18
7. TITLE AND WARRANTIES....................................................................................19
8. ASSIGNMENT..............................................................................................22
9. BROKERAGE COMMISSIONS...................................................................................23
10. NOTICES.................................................................................................23
11. CONDEMNATION AND DESTRUCTION............................................................................24
12. DEFINED TERMS...........................................................................................25
13. MISCELLANEOUS...........................................................................................28
{/TABLE}
i
{PAGE}
TABLE OF EXHIBITS
------------------
Exhibit A - Real Property/Title Commitment
Exhibit B - REA
Exhibit C - Rent Schedule
Exhibit D - Personal Property
Exhibit E - Service Contracts and Third Party Contracts
Exhibit F - Special Warranty Deed
Exhibit G - Assignment and Assumption of REA
Exhibit H - Bill of Sale
Exhibit I - Assignment and Assumption of Leases
Exhibit J - Security Deposits
Exhibit K - Assignment and Assumption of Service Contracts
Exhibit L - Assignment of Intangible Assets
Exhibit M - REA Estoppel Letter
Exhibit N - Tenant Estoppel Letter
Exhibit O - Ground Lease Tenant Estoppel
Exhibit P - Seller Estoppel Letter
Exhibit Q - FIRPTA Certificate
Exhibit R - Permitted Exceptions
Exhibit S - Pending Leases
Exhibit T - Schedule of Reports and Studies
Exhibit U - Schedules of Regulatory Compliance
Exhibit V - Environmental Disclosure
Exhibit W - Pending Litigation
ii
{PAGE}
WEST SHORE PLAZA
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (the
"Agreement") is made by and between AMERICAN FREEHOLDS, a Nevada general
partnership ("Seller") and GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("Buyer").
Recital of Fact
---------------
I. The Mall
--------
West Shore Plaza (the "Mall") is a fully-enclosed, two-level regional
shopping center containing a total of approximately 1,056,506 square feet of
improvements. The Mall is located on approximately 50 acres of land and is
located in Tampa, Florida. A portion of the Mall and the real property on which
it is located are owned by Burdines which operates a retail store commonly known
as "Burdines", which owns a total of approximately 228,462 square feet of gross
leasable area of the Mall and various parking lots on approximately two acres. A
portion of the Mall is ground leased by Seller to the two retail stores (the
"Ground Leases") commonly known as "Saks" and "Sears" (jointly, the "Ground
Lessees" and individually, a "Ground Lessee"). Additionally Seller is also the
owner of the remaining area commonly known as the Mall Stores and Cinema (as
hereinafter defined -- the "Improvements") composed of approximately 356,995
square feet of gross leasable area and a parking lot area, which together with
the Ground Lease areas is more particularly described on the Title Commitment
attached hereto as Exhibit "A" and incorporated herein by reference (the "Real
Property").
II. Reciprocal Easement Agreement
-----------------------------
The Mall including the parking areas owned by Burdines and the Seller
are governed by that certain Operating and Reciprocal Easement Agreement (the
"REA") for the Mall dated as of June 9, 1972, as supplemented by
letter-agreement dated June 9, 1972 and further supplemented by that certain
Second Amendment to REA dated October 30, 2001; the REA as supplemented and
amended being more specifically described on Exhibit "B" attached hereto and
incorporated herein by reference.
III. Management
----------
The Mall is managed by General Growth Management, Inc. ("Manager")
(pursuant to a Management Agreement which terminates concurrently with the
conveyance of the Mall).
IV. The Property
-------------
The property to be conveyed hereunder includes all of Seller's right,
title and interest in:
A. The Real Property;
1
{PAGE}
B. All buildings and other improvements situated on the Real
Property (the "Improvements") and all rights, titles and interests appurtenant
thereto;
C. The Ground Leases and all retail leases affecting the Real
Property and Improvements (the "Leases"), which Leases are more particularly
described on Exhibit "C" attached hereto and incorporated herein by reference
(the "Rent Schedule");
D. All equipment, furniture and fixtures and other personal
property used in conjunction with the operation of the Real Property and
Improvements (other than equipment, furniture and fixtures owned by Tenants
under the Leases, the Ground Lessees, Burdines or the property manager General
Growth Management, Inc.) including the items described on Exhibit "D" attached
hereto and incorporated herein by reference (the "Personal Property"), subject
to depletions, replacements or additions thereto in the ordinary course of
business of the Real Property and Improvements and any lease interest therein;
E. The third party contracts or agreements pertaining to the Real
Property or Improvements, such as service or utility contracts, which are more
particularly described on Exhibit "E" attached hereto and incorporated herein by
reference (the "Service Contracts").
F. All intangible personal property owned by Seller and used in
the operation of the Real Property and the Improvements, including (i)
warranties, guaranties, indemnities and claims, (ii) licenses, permits, or
similar documents, (iii) telephone exchanges, trade names, marks and other
identifying material, including without limitation all right, title and interest
(if any) of Seller in and to the name "West Shore Plaza" and (iv) plans,
drawings, specifications, surveys, engineering reports, and other technical
descriptions which are sometimes hereinafter referred to as the "Intangible
Assets".
G. All right, title and interest of Seller under the REA
(Seller's "REA Interest").
The Real Property, the Improvements, the Leases, the Personal Property,
the Service Contracts, the Intangible Assets and Seller's REA Interest are
hereinafter collectively referred to as the "Property".
V. Escrow Holder and Title Company.
-------------------------------
(A) The Escrow Holder is Flagler Title Company, 1897 Palm Beach
Lakes, Suite 122, West Palm Beach, FL 33409, Attn: Roger Gamblin.
(B) Title Company shall be Chicago Title Insurance Company, and
Flagler Title Company shall act as the issuing agent.
VI. Effective Date.
--------------
The Effective Date of this Agreement (the "Effective Date") shall be
the date the second of Buyer or Seller executes this Agreement and delivers the
fully executed Agreement to the other party.
2
{PAGE}
Seller desires to sell the Property to Buyer and Buyer desires to
purchase and acquire the Property from Seller upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. PURCHASE OF THE PROPERTY.
------------------------
1.1 Purchase and Sale. Seller shall sell the Property to Buyer
and Buyer shall purchase the Property from Seller upon the terms and conditions
hereinafter set forth.
1.2 Purchase Price.
(a) The total purchase price for the Property ("Purchase
Price") shall be One Hundred Fifty-three Million and no/100 Dollars
($153,000,000.00).
(b) Allocation of Purchase Price. The Purchase Price is
allocated as follows:
Real Property and Improvements $152,875,000
Personal Property $ 125,000
TOTAL: $153,000,000.00
The Buyer and Seller agree (i) to jointly complete and separately file Form 8594
with its respective federal income tax return for the tax year in which the
Close of Escrow (as hereinafter defined) occurs, and (ii) that no party will
take a position on any return, information statement or writing relating to any
tax, before any governmental agency charged with the collection of any such tax
or in any judicial proceeding that is in any manner inconsistent with the terms
of such allocation, without the written consent of the other party which consent
shall not be unreasonably withheld or delayed.
1.3 Payment of Purchase Price. The Purchase Price as set forth in
Section 1.2 shall be paid as follows:
(a) Deposit.(i) On the Effective Date, Buyer shall deliver a
deposit ("Deposit") to Escrow Holder in the sum of Three Million Dollars
($3,000,000).
(ii) The Deposit shall be applied to Buyer's
obligations to pay the Purchase Price, provided that Seller shall return, or
instruct Escrow Holder to return, the Deposit to Buyer within three days of
demand by Buyer:
(A) when return of the Deposit is called for by
the terms of this Agreement,
(B) if the sale is not closed because of breach
of this Agreement by Seller, or
3
{PAGE}
(C) if Seller is unable to perform for any
reason other than default of Buyer;
(iii) Escrow Holder shall place any cash Deposit in an
interest-bearing account permitting immediate withdrawal without a penalty.
Interest earned on the Deposit shall be paid to Buyer at the time the Deposit is
either returned to Buyer or applied to the Purchase Price at closing, as the
case may be.
IF BUYER DEFAULTS FOR ANY REASON WHATSOEVER IN THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, AND SELLER IS NOT IN DEFAULT, SELLER SHALL
HAVE THE RIGHT TO RETAIN THE DEPOSIT PLUS ANY INTEREST EARNED THEREON AS
SELLER'S DAMAGES FOR BUYER'S DEFAULT. BUYER AND SELLER AGREE THAT THEY HAVE MADE
GOOD FAITH REASONABLE EFFORTS TO DETERMINE WHAT SELLER'S DAMAGES WOULD BE IN THE
EVENT OF A DEFAULT BY BUYER. SELLER AND BUYER HAVE BEEN UNABLE TO ARRIVE AT ANY
MEANINGFUL FORMULA OR MEASURE OF DAMAGES FOR BUYER'S DEFAULT AND HAVE THEREFORE
AGREED THAT SUCH DAMAGES WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO
DETERMINE IN THE EVENT OF BUYER'S DEFAULT. THE DEPOSIT SHALL BE LIQUIDATED
DAMAGES AND SHALL BE SELLER'S SOLE RIGHT TO DAMAGES AND SELLER WAIVES ALL RIGHT
TO SPECIFIC PERFORMANCE.
BY INITIALING OR SIGNING WHERE INDICATED BELOW, THE PARTIES
SPECIFICALLY APPROVE THIS LIQUIDATED DAMAGES PROVISION.
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