CONTRACTOF SALE between DRA-RCG NORTH CHARLESTON SPE LLC Seller and AMERICAN REALTY CAPITAL IV, LLC Purchaser

EX-10.25 3 arcrca06302014ex1025.htm CONTRACT OF SALE FOR NORTHWOODS MARKETPLACE DATED AS OF JUNE 11, 2014

 

Exhibit 10.25

 

CONTRACT OF SALE

between

DRA-RCG NORTH CHARLESTON SPE LLC

Seller

and

AMERICAN REALTY CAPITAL IV, LLC

Purchaser

 

	Premises:	Northwoods Marketplace
		7620 Rivers Avenue; 7612 Rivers Avenue
		North Charleston, Charleston County,
		South Carolina
	Dated:	June 11, 2014

  

 

 

INDEX TO CONTRACT OF SALE
BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

			Page
1.	Definitions		1
2.	Subject of Sale		5
3.	Purchase Price		7
4.	Deposit Provisions		7
5.	“As-Is”		9
6.	Representations		10
	6.1	Seller’s Representations	10
	6.2	Knowledge	12
	6.3	Update and Survival	13
	6.4	Liability for Misrepresentations	13
	6.5	Purchaser’s Representations	14
7.	Ongoing Operations		15
	7.1	Leasing Practice	15
	7.2	Personal Property and Equipment	16
	7.3	Employees	16
	7.4	Development Rights	16
	7.5	Tax Protest Proceedings	16
	7.6	Operation and Maintenance	17
8.	Title		17
	8.1	Title Commitment	17
	8.2	Status of Title	18
	8.3	Non-Permitted Title Objections	18
9.	Closing		19
	9.1	Closing Date and Location	19
	9.2	Closing Expenses	20
	9.3	Closing Deliveries	20
	9.4	Apportionments and Reimbursements	23
10.	Default		29
	10.1	Purchaser’s Default	29
	10.2	Seller's Default	29

 

 

INDEX TO CONTRACT OF SALE
BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

CONTINUED

 

			Page
11.	Risk of Loss		29
	11.1	Condemnation	29
	11.2	Destruction or Damage	30
12.	Purchaser's Review Period		30
13.	Miscellaneous		31
	13.1	Broker	31
	13.2	Assignment of this Contract	31
	13.3	Attorneys’ Fees	31
	13.4	Notices	32
	13.5	Further Assurances	33
	13.6	Confidentiality	33
	13.7	Survival and Merger	34
	13.8	Recording	35
	13.9	Successors and Assigns	35
	13.10	Entire Agreement	35
	13.11	Waiver and Modifications	35
	13.12	Captions and Titles	35
	13.13	Construction	35
	13.14	Non-Business Days	35
	13.15	Governing Law and Jurisdiction	35
	13.16	Counterparts	35
	13.17	No Third Party Benefits	35
	13.18	Submission not an Offer	36
	13.19	Severability	36
	13.20	Insurance	36
	13.21	Cooperation with Purchaser’s Auditors and SEC Filing Requirements	36
	13.22	Proposed Tax Free Exchange	37

 

Schedule A-1	Description of Northwoods Property
Schedule A-2	Description of Best Buy Property
Schedule B	[Intentionally Deleted]
Schedule C	List of Space Leases
Schedule D	Service Contracts
Schedule E	Pending Litigation
Schedule F	Leasing Commission Agreements and Construction Contracts
Exhibit 1	Form of Special Warranty Deed to the Premises
Exhibit 2	Form of Assignment of the Space Leases

 

 

INDEX TO CONTRACT OF SALE
BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

CONTINUED

 

		Page
Exhibit 3	Form of Assignment of the Service Contracts
Exhibit 4	Form of Assignment of Licenses, Permits, Guarantees and Warranties
Exhibit 5	Form of Notice to the Space Tenants
Exhibit 6	Form of Notice of Assignment of the Service Contracts
Exhibit 7	Form of Tenant Estoppel Certificate
Exhibit 8	Form of Bill of Sale
Exhibit 9	Executed Access Agreement
Exhibit 10	Form of Title Certificate
Exhibit 11	[Intentionally Deleted]
Exhibit 12	Form of Assumption Agreement
Exhibit 13	Form of Assignment of Leasing Commission Agreements and Construction Contracts

 

 

CONTRACT (this “Contract”) made this 11^th day of June, 2014 by and between DRA-RCG NORTH CHARLESTON SPE LLC, a Delaware limited liability company, having an address at c/o DRA Advisors LLC, 220 East 42nd Street, New York, New York 10017 ("Seller") and AMERICAN REALTY CAPITAL IV, LLC, a Delaware limited liability company, having an address at 405 Park Avenue, 15^th Floor, New York, New York 10022 ("Purchaser").

  

WITNESSETH:

 

WHEREAS, Seller owns that certain parcel of land described on Schedule A-1 annexed hereto with the improvements erected thereon (which parcel of land and the improvements erected thereon are herein referred to collectively as the “Northwoods Property”);

 

WHEREAS, subject to the terms of this Contract, at Closing, Seller will own that certain parcel of land described on Schedule A-2 annexed hereto with the improvements erected thereon (which parcel of land and the improvements erected thereon are herein referred to collectively as the “Best Buy Property,” and together with the Northwoods Property, the “Property”).

 

WHEREAS, upon the terms and conditions hereinafter set forth, Seller agrees to sell and convey fee title to the Property to Purchaser and Purchaser agrees to purchase the Property.

 

NOW, THEREFORE, intending to be legally bound hereby, the parties agree as follows:

 

1.          Definitions.

 

The terms defined in this Article shall for all purposes of this Contract have the meanings herein specified unless the context requires otherwise.

 

1.1           “Access Agreement” shall have the meaning ascribed to it in Section 12.1.

 

1.2           “Additional Deposit” shall have the meaning ascribed to it in Section 3.2.

 

1.3           “Additional Rents” shall have the meaning ascribed to it in Section 9.4(a).

 

1.4           “Adjourned Closing Date” shall have the meaning ascribed to it in Section 9.1.

 

1.5           “Anti-Money Laundering Laws” shall have the meaning ascribed to it in Section 6.1(m)(iii).

 

1.6           “Anticipated Closing Date” shall have the meaning ascribed to it in Section 9.1.

 

 

1.7           “Best Buy Premises” shall mean the Best Buy Property, together with those items described in clauses (b) through (e) of the definition of “Premises” which pertain to the Best Buy Property.

 

1.8           “Best Buy Property” shall have the meaning ascribed to it in the second “WHEREAS” paragraph in this Contract.

 

1.9           “Best Buy Purchase Agreement” shall have the meaning ascribed to it in Section 2.3(a).

 

1.10         “Best Buy Purchase Price Allocation” shall have the meaning ascribed to it in Section 2.3(b).

 

1.11         “Best Buy Space Tenant” shall have the meaning ascribed to it in Section 9.3(a)(x).

 

1.12         “Best Buy Survey” shall have the meaning ascribed to it in Section 8.1.

 

1.13         “Broker” shall have the meaning ascribed to it in Section 13.1.

 

1.14          “Business Day” shall mean any day other than a Saturday, Sunday or day on which the banks in New York are authorized or permitted to be closed.

 

1.15         “Casualty” shall have the meaning ascribed to it in Section 11.2.

 

1.16         “Casualty Termination Event” shall have the meaning ascribed to it in Section 11.2.

 

1.17         “Closing” shall have the meaning ascribed to it in Section 9.1.

 

1.18         “Closing Date” shall have the meaning ascribed to it in Section 9.1.

 

1.19         “Contract” shall have the meaning ascribed to it in the introductory paragraph.

 

1.20         “Defeasance” shall have the meaning ascribed to it in Section 9.1.

 

1.21         “Deposit” shall have the meaning ascribed to it in Section 3.2.

 

1.22         “Escrowee” shall have the meaning ascribed to it in Section 3.1.

 

1.23         “Estoppel Certificate(s)” shall have the meaning ascribed to it in Section 9.3(a)(x).

 

1.24         “Estoppel Default” shall have the meaning ascribed to it in Section 9.3(a)(x).

 

 

1.25         “Estoppel Tenants” shall have the meaning ascribed to it in Section 9.3(a)(x).

 

1.26         “Evaluation Material” shall have the meaning ascribed to it in Section 13.6(a).

 

1.27         “Exchange” shall have the meaning ascribed to it in Section 13.22.

 

1.28         “Existing Space Leases” shall have the meaning ascribed to it in Section 6.1(f).

 

1.29         “Existing Space Tenants” shall have the meaning ascribed to it in Section 6.1(f).

 

1.30         “Initial Deposit” shall have the meaning ascribed to it in Section 3.1.

 

1.31         “Leasing Agreement” shall have the meaning ascribed to it in Section 9.4(c).

 

1.32         “Major Tenant” shall have the meaning ascribed to it in Section 9.3(a)(x).

 

1.33         “Maximum Representation Expense” shall have the meaning ascribed to it in Section 6.4(b).

 

1.34         “Maximum Title Expense” shall have the meaning ascribed to it in Section 8.3(b).

 

1.35         “MCM Real Estate” shall have the meaning ascribed to it in Section 9.4(c).

 

1.36         “New Lease(s)” shall have the meaning ascribed to it in Section 7.1(a).

 

1.37         “Non-Permitted Title Objections” shall have the meaning ascribed to it in Section 8.3(a).

 

1.38         “Northwoods Premises” shall mean the Northwoods Property, together with those items described in clauses (b) through (e) of the definition of “Premises” which pertain to the Northwoods Property.

 

1.39         “Northwoods Property” shall have the meaning ascribed to it in the first “WHEREAS” paragraph in this Contract.

 

1.40         “Northwoods Survey” shall have the meaning ascribed to it in Section 8.1.

 

 

1.41         “OFAC” shall have the meaning ascribed to it in Section 6.1(m).

 

1.42         “Outside Termination Date” shall have the meaning ascribed to it in Section 12.1.

 

1.43         “Permitted Exceptions” shall have the meaning ascribed to it in Section 8.2.

 

1.44         “Preliminary Proration Statement” shall have the meaning ascribed to it in Section 9.4(a)(i).

 

1.45         “Premises” shall have the meaning ascribed it in Section 2.2.

 

1.46         “Prior Best Buy Closing” shall have the meaning ascribed to it in Section 9.1.

 

1.47         “Prohibited Persons” shall have the meaning ascribed to it in Section 6.1(m)(i).

 

1.48         “Property” shall have the meaning ascribed to it in the second “WHEREAS” paragraph in this Contract.

 

1.49         “Purchase Price” shall have the meaning ascribed to it in Section 3.

 

1.50         “Purchaser” shall have the meaning ascribed to it in the introductory paragraph.

 

1.51         “Purchaser's Review Period” shall have the meaning ascribed to it in Section 12.1.

 

1.52         “REAs” shall have the meaning ascribed to it in Section 2.2.

 

1.53         “Related Parties” shall have the meaning ascribed to it in
Section 13.6(b).

 

1.54         “Released Parties” shall have the meaning ascribed to it in Section 5.2.

 

1.55          “Seller” shall have the meaning ascribed to it in the introductory paragraph.

 

1.56         “Seller’s 2014 Actual Operating Expenses” shall have the meaning ascribed to it in Section 9.4(b).

 

1.57         “Service Contracts” shall have the meaning ascribed to it in Section 6.1(i).

 

1.58         “Space Leases” shall have the meaning ascribed to it in Section 7.1(a).

 

 

1.59         “Space Tenants” shall have the meaning ascribed to it in Section 7.1(a).

 

1.60         “Substantial Portion” shall have the meaning ascribed to it in Section 11.1(b).

 

1.61         “Supplemental Proration Statement” shall have the meaning ascribed to it in Section 9.4(b).

 

1.62         “Survey” shall have the meaning ascribed to it in Section 8.1.

 

1.63         “Taking” shall have the meaning ascribed to it in Section 11.1(a).

 

1.64         “Title Commitment” shall have the meaning ascribed to it in Section 8.1.

 

1.65         “Title Company” shall have the meaning ascribed to it in Section 8.1.

 

1.66         “Title Objection Date” shall have the meaning ascribed to it in Section 8.1.

 

1.67         “Transfer Tax” shall have the meaning ascribed to it in Section 9.2(a).

 

1.68         “USA PATRIOT Act” shall have the meaning ascribed to it in Section 6.1(m)(iii).

 

1.69         “Violations” shall have the meaning ascribed to it in Section 5.1.

 

2.           Subject of Sale.

 

2.1           Seller agrees to sell and convey to Purchaser the Premises and Purchaser agrees to purchase from Seller the Premises subject to the terms and conditions contained in this Contract.

 

2.2           This sale includes all of the following: (a) the Property and all right, title and interest, if any, of Seller in and to: (i) any land lying in the bed of any street, road or avenue opened or proposed, adjacent to the Property, to the center line thereof; and Seller will execute and deliver to Purchaser at the Closing, or thereafter, on demand, all proper instruments for the conveyance to such title; (ii) fixtures, equipment and other personal property attached to or beneath the Property (including without limitation underground or above ground storage tanks, if any) and not owned by the Space Tenants or a governmental entity, if any, but no part of the Purchase Price shall be deemed to be paid for such fixtures, equipment or personal property; (iii) rights of way, appurtenances, easements, sidewalks, alleys, gores or strips of land adjoining or appurtenant to the Property and used in connection therewith; (iv) to the extent assignable and transferable at no cost or liability to Seller and not otherwise proprietary, the trademark, service mark, trade name and name “Northwoods Marketplace” and all other trademarks, services marks, trade names, names and logos used exclusively in connection with the advertising and promotion of the Property or otherwise exclusively relating to the Property, and any variations thereof, together with all good will of the business connected with the use of and symbolized by such trademarks, service marks, trade names, names and logos, any telephone numbers and listings for the Property and any copyrights, trade secrets, intellectual property and other intangible property relating to the Property; (v) to the extent assignable and transferable at no cost or liability to Seller and not otherwise proprietary, all operating and reciprocal easement agreements directly affecting the Property (the “REAs”); (vi) to the extent assignable and transferable at no cost or liability to Seller and not otherwise proprietary, all plans and specifications and other architectural and engineering drawings for the Property; and (vii) to the extent assignable and transferable at no cost or liability to Seller and without consent, all consents, authorizations, variances or waivers, licenses, permits, approvals and land use entitlements from any governmental or quasi-governmental agency, department, board, commission, bureau or other entity or instrumentality relating to the Property; and (b) the interest of landlord in the Space Leases ((a) through (b) herein referred to collectively as the “Premises”).

 

 

2.3          With respect to the Best Buy Property, Seller hereby makes the following additional disclosure:

 

(a)          Seller’s current interest in the Best Buy Property is pursuant to a certain Purchase and Sale Agreement between Seller (or its affiliate) and the current owner of the fee interest in the Best Buy Property (the “Best Buy Purchase Agreement”).

 

(b)          Seller and Purchaser’s obligation to close title under this Contract is conditioned on Seller closing title on the Best Buy Property pursuant to the Best Buy Purchase Agreement. In the event Seller does not close title on the Best Buy Property by the Adjourned Closing Date (as defined herein), this Contract shall terminate in accordance with the provisions of Section 9.1 hereof; provided, however, that Purchaser may elect to rescind such termination with respect to the Northwoods Premises by written notice within one (1) Business Day after the Adjourned Closing Date in the event Seller does not close title on the Best Buy Property by such date, in which event this Contract shall remain in full force and effect with respect to the Northwoods Premises and the parties shall proceed to Closing with respect to the Northwoods Premises in accordance with the terms herein as promptly as possible on a date mutually determined by Seller and Purchaser, time being of the essence; provided further that, in such event, the Purchase Price shall be reduced by Five Million Three Hundred Fifty Thousand and 00/100 Dollars ($5,350,000.00) (the “Best Buy Purchase Price Allocation”). If this Contract shall terminate pursuant to this Section 2.3(b) and Purchaser does not timely elect to rescind such termination of this Contract in accordance with this Section 2.3(b), then Seller shall reimburse Purchaser for Purchaser’s actual out-of-pocket costs and expenses (as evidenced by paid receipts) incurred in connection with this Contract and Purchaser’s investigation of the Premises, in an amount not to exceed One Hundred Thousand and 00/100 Dollars ($100,000.00) in the aggregate. From and after the date hereof, through and including the date of the Closing hereunder (with respect to the Premises or the Northwoods Premises, as the case may be), in no event shall Purchaser (i) engage in any discussions with, (ii) disclose any terms or provisions of this Contract or the transactions contemplated thereby to, or (iii) enter into, or agree to enter into, a contract with, the seller (or its affiliates, agents or representatives) of the Best Buy Property with respect to the Best Buy Property or any portion thereof. The provisions of this Section 2.3(b) shall survive the Closing or the earlier termination of this Contract.

 

 

3.          Purchase Price.

 

The purchase price (the “Purchase Price”) for the Premises is the sum of THIRTY-FIVE MILLION AND 00/100 DOLLARS ($35,000,000.00), payable by Purchaser to Seller as follows:

 

3.1           On the signing of this Contract, the sum of FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00) (the “Initial Deposit”) to be paid by electronic wire transfer of immediately available federal funds to an account designated by Fidelity National Title Insurance Company, Attention: Angie Yarbrough (“Escrowee”) or by certified check of Purchaser or bank teller’s check to the order of Escrowee.

 

3.2           Prior to the expiration of Purchaser’s Review Period, the sum of FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($500,000.00) (the “Additional Deposit”) to be paid by electronic wire transfer of immediately available federal funds to the account previously designated by Escrowee or by certified check of Purchaser or bank teller’s check to the order of Escrowee. The Initial Deposit and the Additional Deposit, to the extent then paid, together with interest earned thereon is hereinafter called the “Deposit.” In the event any check in payment of the Deposit is cancelled or returned uncollected, Seller, at its sole option, may cancel this Contract and/or pursue any legal remedies Seller may have against Purchaser on such check at the sole expense of Purchaser, such remedies being cumulative and not exclusive.

 

3.3           On the Closing Date, the sum of THIRTY-FOUR MILLION AND 00/100 DOLLARS ($34,000,000.00), subject to adjustment and proration pursuant to Section 9.4 below, to be paid by electronic wire transfer of immediately available federal funds pursuant to wiring instructions to be given by Escrowee or as Escrowee may direct to Purchaser prior to the Closing and Purchaser shall cause Escrowee to distribute such funds to Seller in accordance with this Contract. In the event Escrowee does not receive the funds to be wired pursuant to this Section 3.3 (together with unconditional and irrevocable instructions to release such funds as directed by Seller) by 10:00 A.M. Eastern Time on the date scheduled for Closing, Purchaser shall be in material default under this Contract and Seller shall be entitled to exercise its rights under Section 10.1.

 

4.            Deposit Provisions.

 

4.1           Upon the Closing, Escrowee is authorized and directed to pay the Deposit to Seller (or as Seller may direct).

 

4.2           In the event Purchaser should default under this Contract, Escrowee shall pay the Deposit to Seller, who shall retain the Deposit in accordance with Section 10.1 below.

 

4.3           In the event this Contract is terminated by reason other than Purchaser's default, Escrowee shall pay the Deposit to Purchaser.

 

 

4.4           Escrowee shall invest and reinvest the proceeds of the Deposit, and any interest earned thereon, in United States Government Treasury Bills or Certificate(s) of Deposit or bank money market account(s) as Seller shall direct. The party entitled to receive the interest earned on the Deposit shall pay all income taxes owed in connection therewith. The employer identification numbers of Seller and Purchaser are respectively set forth on the signature page hereof.

 

4.5           Escrowee, by signing this Contract at the end hereof where indicated, signifies its agreement to hold the Deposit for the purposes as provided in this Contract. In the event of any dispute, Escrowee shall have the right to deposit the Deposit in court to await the resolution of such dispute. Escrowee shall not incur any liability by reason of any action or non-action taken by it in good faith or pursuant to the judgment or order of a court of competent jurisdiction. Escrowee shall have the right to rely upon the genuineness of all certificates, notices and instruments delivered to it pursuant hereto, and all the signatures thereto or to any other writing received by Escrowee purporting to be signed by any party hereto, and upon the truth of the contents thereof.

 

4.6           Except as otherwise provided for in Section 4.1, Escrowee shall not pay or deliver the Deposit to any party unless written demand is made therefor and a copy of such written demand is delivered to the other party. If Escrowee does not receive a written objection from the other party to the proposed payment or delivery within five (5) Business Days after such demand is served by personal delivery on such party, Escrowee is hereby authorized and directed to make such payment or delivery. If Escrowee does receive such written objection within such five (5) Business Day period or if for any other reason Escrowee in good faith shall elect not to make such payment or delivery, Escrowee shall forward a copy of the objections, if any, to the other party or parties, and continue to hold the Deposit unless otherwise directed by written instructions from the parties to this Contract or by a judgment of a court of competent jurisdiction. In any event, Escrowee shall have the right to refrain from taking any further action with respect to the subject matter of the escrow until it is reasonably satisfied that such dispute is resolved or action by Escrowee is required by an order or judgment of a court of competent jurisdiction.

 

4.7           Escrowee shall be entitled to consult with counsel in connection with its duties hereunder. Seller and Purchaser, jointly and severally, agree to reimburse Escrowee, upon demand, for the reasonable costs and expenses including attorneys’ fees incurred by Escrowee in connection with its acting in its capacity as Escrowee. In the event of litigation relating to the subject matter of the escrow, whichever of Seller or Purchaser is not the prevailing party shall reimburse the prevailing party for any costs and fees paid by the prevailing party or paid from the escrowed funds to Escrowee.

 

 

5.           “As-Is”. “Where-Is”.

 

5.1           Purchaser acknowledges and agrees that (a) Purchaser has, or will have prior to the expiration of Purchaser's Review Period, independently examined, inspected, and investigated to the full satisfaction of Purchaser, the physical nature and condition of the Premises, including, without limitation, its environmental condition, and the income, operating expenses and carrying charges affecting the Premises, (b) except as expressly set forth in this Contract or in any other document executed by Seller and delivered to Purchaser at Closing, neither Seller nor any agent, member, officer, partner, employee, representative, broker or third party consultant of Seller has made any representation whatsoever regarding the subject matter of this Contract or any part thereof, including (without limiting the generality of the foregoing) representations as to the physical nature or environmental condition of the Premises, the existence or non-existence of petroleum, asbestos, lead paint, fungi, including mold, or other microbial contamination, hazardous substances or wastes, underground or above ground storage tanks or any other environmental hazards on, under or about the Property, the Space Leases, operating expenses or carrying charges affecting the Premises, the compliance of the Premises or its operation with any laws, rules, ordinances or regulations of any applicable governmental or quasi-governmental authority or the habitability, merchantability, marketability, profitability, fitness or development of the Premises for any purpose and (c) except as expressly set forth in this Contract or in any other document executed by Seller and delivered to Purchaser at Closing, Purchaser, in executing, delivering and performing this Contract, does not rely upon any statement, offering material, operating statement, historical budget, engineering structural report, any environmental reports, information, or representation to whomsoever made or given, whether to Purchaser or others, and whether directly or indirectly, orally or in writing, made by any person, firm or corporation except as expressly set forth herein, and Purchaser acknowledges that any such statement, information, offering material, operating statement, historical budget, report or representation, if any, does not represent or guarantee future performance of the Premises. Without limiting the foregoing, but in addition thereto, except as otherwise expressly set forth in this Contract or in any other document executed by Seller and delivered to Purchaser at Closing, Seller shall deliver, and Purchaser shall take, the Premises in its “as is” “where is” condition and with all faults on the Closing Date, including without limitation, any notes or notices or violations of law or municipal ordinances, orders or requirements imposed or issued by any governmental or quasi-governmental authority having or asserting jurisdiction, against or affecting the Premises and any conditions which may result in violations (collectively, “Violations”). The provisions of this Section shall survive the Closing or the earlier termination of this Contract.

 

5.2           Except as set forth in this Contract or in any other document executed by Seller and delivered to Purchaser at Closing, Purchaser hereby waives, releases and forever discharges Seller, its affiliates, subsidiaries, officers, directors, shareholders, employees, independent contractors, partners, representatives, agents, successors and assigns (collectively, the “Released Parties”), and each of them, from any and all causes of action, claims, assessments, losses, damages (compensatory, punitive or other), liabilities, obligations, reimbursements, costs and expenses of any kind or nature, actual, contingent, present, future, known or unknown, suspected or unsuspected, including, without limitation, interest, penalties, fines, and attorneys’ and experts’ fees and expenses, whether caused by, arising from, or premised, in whole or in part, upon Seller’s acts or omissions, and notwithstanding that such acts or omissions are negligent or intentional, or premised in whole or in part on any theory of strict or absolute liability, which Purchaser, its successors or assigns or any subsequent purchaser of the Premises may have or incur in any manner or way connected with, arising from, or related to the Premises, including without limitation (i) the environmental condition of the Premises, or (ii) actual or alleged violations of environmental laws or regulations in connection with the Premises and/or any property conditions. Purchaser agrees, represents and warrants that the matters released herein are not limited to matters which are known, disclosed, suspected or foreseeable, and Purchaser hereby waives any and all rights and benefits which it now has, or in the future may have, conferred upon Purchaser by virtue of the provisions of any law which would limit or detract from the foregoing general release of known and unknown claims. The provisions of this Section 5.2 shall survive the Closing or termination of this Contract.

 

 

6.            Representations.

 

6.1          Seller’s Representations. Seller represents that as of the date hereof:

 

(a)          Seller is, and at the Closing shall be, a limited liability company formed under the laws of the State of Delaware. Seller has the right, power and authority to make and perform its obligations under this Contract without the need for governmental approval, consent or filing.

 

(b)          The execution, delivery and performance of this Contract in accordance with its terms, do not violate the limited liability company agreement of Seller, or any contract, agreement, commitment, order, judgment or decree to which Seller is a party or by which it is bound.

 

(c)          Seller has the right, power and authority to make and perform its obligations under this Contract with respect to the Premises other than the Best Buy Premises, and subject to the terms of this Contract, as of the Closing, Seller shall have the right, power and authority to make and perform its obligations under this Contract with respect to the Best Buy Premises. The Best Buy Purchase Agreement is in full force and effect and Seller has not sent or received written notice of default thereunder.

 

(d)          This Contract is a valid and binding obligation of Seller enforceable against Seller in accordance with its terms.

 

(e)          Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended.

 

(f)          The tenants listed on Schedule C annexed hereto are tenants under leases (such leases are herein called the “Existing Space Leases” and the lessees thereunder are herein called the “Existing Space Tenants”), true, correct and complete copies of which have been delivered or made available to Purchaser, which constitute the only leases, licenses or other written agreements for the use or occupancy of the Premises to which Seller is (or, with respect to the Best Buy Premises, will as of Closing be) a party and which will be binding on Purchaser following the Closing, except as may otherwise be set forth in the Permitted Exceptions.

 

(g)          The information on the rent roll attached hereto as Schedule C is true and correct in all material respects.

 

(h)          Except as may be set forth in its Space Lease or Schedule C, no Existing Space Tenant has made payments to Seller in advance for more than one (1) month (exclusive of security deposits), or if such payments have been made to Seller more than one (1) month in advance (exclusive of security deposits), Seller will credit Purchaser such amounts at Closing.

 

 

(i)          Set forth on Schedule D is a true, correct and complete list of the material service contracts (the “Service Contracts”) which may be binding on Purchaser or the Property after the Closing. Seller does not guarantee or undertake that any of the Service Contracts will be in effect as of the Closing. Seller reserves the right to modify, terminate or enter into new Service Contracts prior to Closing provided such new service contracts are terminable on not more than thirty (30) days prior notice without payment of any premium or penalty (unless Seller agrees to pay the premium or penalty). Notwithstanding anything contained herein to the contrary, Purchaser shall notify Seller in writing prior to the expiration of Purchaser’s Review Period which, if any, of the Service Contracts Purchaser does not wish to assume at Closing and Seller shall terminate, prior to the Closing Date, those Service Contracts specified in Purchaser’s notice, except Seller shall have no obligation to terminate, and Purchaser hereby agrees to accept and assume in accordance with Exhibit 3 all Service Contracts (including those specified in Purchaser’s notice) which cannot be terminated by Seller (i) without cause, (ii) upon less than thirty (30) days’ notice, or (iii) without payment of a premium or penalty. Purchaser’s failure to timely deliver notice pursuant to the preceding sentence shall be deemed Purchaser’s election to accept and assume all of the Service Contracts in accordance with Exhibit 3.

 

(j)          There are no persons employed by Seller at the Premises in connection with the operation or maintenance of the Premises who will be binding upon Purchaser after the Closing.

 

(k)          Seller has not sent or received any written notice of default under the REAs within the past twelve (12) months which has not been cured or waived.

 

(l)          Seller has not received any written notice of any pending condemnation proceeding against the Premises or any portion thereof.

 

(m)          USA/PATRIOT Act Representations. Seller further represents and warrants, in addition to the representations, warranties and agreements set forth above, that Seller has reviewed the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) website at: http://www.treas.gov/offices/enforcement/ofac/ before making the following representations and covenants and that the following statements are true and correct on the date hereof and will be true and correct at all times through and including the Closing Date:

 

(i)                 Seller understands and agrees that Purchaser prohibits the payment or receipt of funds to/from any persons or entities that are acting, directly or indirectly, (A) in contravention of any U.S. or international laws and regulations, including anti-money laundering regulations or conventions, (B) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC, as such list may be amended from time to time, (C) for a “senior foreign political figure”, any member of a senior foreign political figure’s immediate family or any close associate of a senior foreign political figure, unless the Purchaser, after being specifically notified by Seller in writing that it, or any beneficial or indirect owner of Seller, is such a person, and determines in its sole discretion that such receipt of funds shall be permitted, or (D) for a foreign shell bank (such persons or entities in (A) - (D) are collectively referred to as “Prohibited Persons”). Senior foreign political figure shall have the meaning set forth in 31 CFR 103.175(r). “Foreign shell bank” and a “regulated affiliate” thereof shall have the meaning set forth in 31 CFR 103.175(j) and 31 CFR 103.175(p), respectively.

 

 

(ii)         Seller represents, warrants and covenants that: (A) it is not, nor is any person or entity controlling, controlled by or under common control with Seller, a Prohibited Person, and (B) to the extent Seller has any beneficial or indirect owners, (1) it has carried out such due diligence to establish the identities of such beneficial or indirect owners as Seller deemed to be appropriate, and (2) based on such due diligence, Seller has no current actual knowledge that such beneficial or indirect owners are Prohibited Persons.

 

(iii)        Seller (i) has no current, actual knowledge that it is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crime which in the United States would be a predicate crime to money laundering, or a violation of any Anti-Money Laundering Laws (as defined herein); (ii) has not been assessed a civil or criminal penalty under any Anti-Money Laundering Laws; or (iii) has not had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws. As used in this Contract, the term “Anti-Money Laundering Laws” shall mean all U.S. laws, regulations and sanctions, state and federal, criminal and civil, that (1) limit the use of, and/or seek the forfeiture of proceeds from illegal transactions; (2) limit commercial transactions with designated countries, or individuals believed to be terrorists, narcotics dealers, or otherwise engaged in activities contrary to the interests of the United States; (3) require identification and documentation of the parties with whom a Financial Institution (as defined in the relevant statute) conducts business; or (4) are designed to disrupt the flow of funds to terrorist organizations. Such laws, regulations, and sanctions shall be deemed to include, without limitation, the Bank Secrecy Act, 31 U.S.C. Section 5311 et. seq., as amended by the USA PATRIOT Act of 2001, Pub. L. No. 107-56 (the “USA PATRIOT Act”), as amended, and the regulations promulgated thereto; as well as 18 U.S.C. Sections 1956, 1957 and 1960.

 

(n)          Except as set forth on Schedule E annexed hereto, in the tenant files delivered or made available to Purchaser or for matters fully covered (excluding deductibles) by one or more insurance policies, there is no litigation pending against the Premises.

 

6.2           Knowledge. The representations of Seller set forth in Section 6.1 are made to the actual present knowledge of Amy Dorrian without such individual having any duty or obligation to make an independent inquiry or investigation. Any reference to Seller’s “receipt” or language similar thereto of notices or other written documents shall mean the actual receipt of the same by Amy Dorrian. In no event shall Purchaser be entitled to assert any cause of action against Amy Dorrian nor shall Amy Dorrian have any personal liability whatsoever for any matter under or related to this Contract. Amy Dorrian is an asset manager of DRA Advisors LLC, the investment advisor to the Property, and is involved in the day-to-day operation and management of the Property for DRA Advisors LLC.

 

 

6.3          Update and Survival. At Closing, Seller shall update the representations made in Section 6.1 above as the facts then exist. The representations made in Section 6.1 and any update of such representations shall survive the Closing for nine (9) months; provided, however, any representation which results in a reduction of the Purchase Price pursuant to Section 6.4 shall not survive the Closing. In any event, Seller's maximum liability after Closing for any obligations or liabilities of Seller which expressly survive Closing pursuant to the Contract (including, without limitation, the representations set forth in Section 6.1) or in any closing document executed by Seller and delivered to Purchaser at Closing, shall not exceed, in the aggregate, an amount equal to Six Hundred Thousand and 00/100 Dollars ($600,000.00), provided that with respect to the foregoing, Seller shall have no liability, and Purchaser shall make no claim against Seller if the obligations or liabilities in question result from a condition, state of facts or other matter actually known to Purchaser prior to Closing, and provided further that in the event the Closing occurs with respect to the Northwoods Premises but not the Best Buy Premises as contemplated in Section 2.3(b) or Section 7.1(d), the amount set forth in this sentence shall be reduced in proportion to the reduction in the Purchase Price by the Best Buy Purchase Price Allocation. The preceding sentence of this Section 6.3 shall survive Closing.

 

6.4          Liability for Misrepresentations.

 

(a)          Subject to the provisions of Section 6.4(b) below, if any representation of Seller shall fail to be true in any material and adverse respect, Purchaser's sole remedy shall be to terminate this Contract and receive the return of the Deposit and upon the receipt of same, this Contract shall be null and void and of no further force or effect and, except for those provisions expressly stated to survive the termination of this Contract, neither party shall have any rights or obligations against or to the other. Seller shall have the option to rescind Purchaser's termination of this Contract and adjourn the Closing for a period not to exceed thirty (30) days beyond the date scheduled for the Closing in order to make such representation true. If the Closing shall take place without Purchaser making an objection to an untrue representation of which Purchaser shall have knowledge, Purchaser shall be deemed to have waived all liability of Seller by reason of such untrue representation. Upon delivery of any Estoppel Certificates, Seller shall be entirely released from any liability under Seller’s representations (including, without limitation, any update of the representations) concerning the information contained in such Estoppel Certificates to the extent the same is consistent with, or more favorable than, the information contained in Seller’s representations. The provisions of this Section 6.4 shall survive the Closing or termination of this Contract.

 

(b)          The provisions of Section 6.4(a) above to the contrary notwithstanding, if any representation(s) shall fail to be true and such representation(s) can be made true by the payment of a liquidated sum of money only, and if both (a) such representation(s) can reasonably be expected to be made true within a period of thirty (30) days beyond the date scheduled for Closing and (b) the sum of money required to make such representation(s) true shall not exceed One Hundred Thousand and 00/100 ($100,000.00) Dollars in the aggregate (the “Maximum Representation Expense”), in such event, Seller agrees to adjourn the Closing for the period required to make such representation(s) true, but not to exceed thirty (30) days beyond the date scheduled for the Closing and to expend an amount not to exceed the Maximum Representation Expense. If there shall be any untrue representation(s) which can be made true by the payment of a sum of money only which exceeds the Maximum Representation Expense, or which can be made true by the payment of not more than the Maximum Representation Expense but not within said thirty (30) day period, and Seller notifies Purchaser that Seller elects not to, or cannot, make such representation(s) true within the available time, Purchaser may elect to (i) cancel this Contract by notice to Seller given within five (5) Business Days after receipt of Seller's notice or (ii) close with a credit from Seller equal to the lesser of the amount required to make the representation true or the Maximum Representation Expense. If Purchaser fails to timely cancel this Contract as provided in the preceding sentence, Purchaser shall nevertheless proceed to Closing and the Purchase Price shall be reduced by the lesser of the sum of money required to make such representations true or the Maximum Representation Expense. Anything in this Section to the contrary notwithstanding, an attempt by Seller to make any untrue representation to be true shall not be deemed to be or create an obligation of Seller to make the same true.

 

 

6.5          Purchaser’s Representations. Purchaser represents that:

 

(a)          The execution, delivery and performance of this Contract in accordance with its terms, do not violate the partnership agreement, corporate charter, by-laws, certificate of incorporation or operating agreement of Purchaser, or any contract, agreement, commitment, order, judgment or decree to which Purchaser is a party or by which it is bound;

 

(b)          Purchaser has the right, power and authority to make and perform its obligations under this Contract;

 

(c)          [Intentionally deleted]; and

 

(d)          USA PATRIOT Act/OFAC Representations. Purchaser further represents and warrants, in addition to the representations, warranties and agreements set forth above, that the Purchaser has reviewed the OFAC website at: http://www.treas.gov/offices/enforcement/ofac/ before making the following representations and covenants and that the following statements are true and correct on the date hereof and will be true and correct at all times through and including the Closing Date:

 

(i)          Purchaser understands and agrees that Seller prohibits the payment or receipt of funds to/from any Prohibited Persons.

 

(ii)         Purchaser represents, warrants and covenants that: (A) it is not, nor is any person or entity controlling, controlled by or under common control with Purchaser, a Prohibited Person, and (B) to the extent Purchaser has any beneficial or indirect owners, (1) it has carried out such due diligence to establish the identities of such beneficial or indirect owners as Purchaser deemed to be appropriate, and (2) based on such due diligence, Purchaser has no current, actual knowledge that such beneficial or indirect owners are Prohibited Persons.

 

(iii)        Purchaser (i) has no current, actual knowledge that it is under investigation by any governmental authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist related activities, any crime which in the United States would be a predicate crime to money laundering, or a violation of any Anti-Money Laundering Laws (as defined herein); (ii) has not been assessed a civil or criminal penalty under any Anti-Money Laundering Laws; or (iii) has not had any of its funds seized or forfeited in any action under any Anti-Money Laundering Laws.

 

 

(e)          This Contract is a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms. Purchaser covenants and warrants that the representations in the preceding sentences of this Section 6.5 will be true on the Closing with respect to Purchaser or any permitted assignee of Purchaser and Purchaser or such assignee shall deliver to Seller at Closing copies of Purchaser's organizational documents and resolutions and/or consents and certificates as necessary to substantiate that such representations of Purchaser are true as of the Closing.

 

7.          Ongoing Operations.

 

7.1          Leasing Practice.

 

(a)          The Existing Space Leases, together with any modifications, renewals and new leases made after the date hereof in accordance with this Section 7.1 hereof are herein called the “Space Leases” and the tenants thereunder are herein called the “Space Tenants”. During the period ending five (5) days before the Outside Termination Date, Seller may enter into new leases, terminate, renew and/or make modifications to the Space Leases (collectively, “New Lease(s)”) without the approval of Purchaser; provided, however, Seller shall provide Purchaser with not less than five (5) days’ prior notice of the entering into of any New Lease. Beginning with the fifth (5th) day before the Outside Termination Date, provided Purchaser is not in default under this Contract, Seller shall not enter into New Leases without the prior approval of Purchaser, which approval shall not be unreasonably withheld, conditioned or delayed. Purchaser agrees to grant or deny consent in writing (and provide, in reasonable detail, the reasons for any denial) within three (3) Business Days after Purchaser's receipt of Seller's written request, which request shall contain copies of all material information related to such request and a summary of the material terms of the proposed New Lease. Purchaser's failure to timely respond in writing to Seller's request shall be deemed a consent to the proposed New Lease. Seller shall, from time to time, inform (orally or in writing) Purchaser of any new lease negotiations to which Seller is a party and promptly give notice to Purchaser of any New Lease and a copy of any instruments executed and any material information delivered in connection with the New Lease.

 

(b)          Following the Outside Termination Date, Seller may continue to grant consent or approval to a request made by a Space Tenant if such consent or approval is required to be granted pursuant to the applicable provisions of the Space Lease or if Seller is required to exercise reasonable judgment or discretion in determining whether to grant the consent or approval and it would be unreasonable for Seller to withhold the applicable consent or approval.

 

(c)          Following the Outside Termination Date, if Section 7.1(b) is not applicable, then, Seller shall, prior to granting such consent or approval, notify Purchaser of the request made by a Space Tenant, which notice shall contain copies of all documents, if any, submitted by such Space Tenant in connection with the request. Purchaser agrees to advise Seller in writing, within three (3) Business Days after Purchaser's receipt of Seller's notice, whether Purchaser elects that the Space Tenant's request be granted or denied (and provide, in reasonable detail, the reasons for any denial), which election shall be made in Purchaser's reasonable judgment. Purchaser's failure to timely respond in writing to Seller's notice shall be deemed an election to consent to the proposed request.

 

 

(d)          Purchaser acknowledges and agrees that no representation has been made and no responsibility has been assumed by Seller with respect to the continued occupancy of the Premises, or any part thereof, by the Space Tenants from and after the date hereof. Seller does not undertake or guarantee that the Space Tenants will be in occupancy from and after the date hereof. Notwithstanding anything in this Section 7.1(d) to the contrary, it shall be a condition to Purchaser’s obligation to close title under this Contract that no individual Space Tenant who leases pursuant to a Space Lease more than ten thousand (10,000) rentable square feet in the aggregate shall, after the Outside Termination Date but prior to the Closing, commence a case (or be the subject of a case involuntarily commenced against it) under Title 11 U.S.C. Section 101 et seq., as now constituted and hereafter amended, which is not dismissed prior to the Closing (unless the Space Tenant assumes its Space Lease); provided, however, that in the event the Best Buy Space Tenant commences any such case (or is the subject of such a case involuntarily commenced against it) after the Outside Termination Date which is not dismissed prior to the Closing (and the Best Buy Space Tenant does not assume its Space Lease), this Contract shall remain in full force and effect with respect to the Northwoods Premises and the parties shall proceed to Closing with respect to the Northwoods Premises in accordance with the terms herein; provided further that, in such event, the Purchase Price shall be reduced by the Best Buy Purchase Price Allocation. Prior to the Closing, Seller shall have the right, but not the obligation, to enforce its rights against the Space Tenants by summary proceeding, drawing down or application of security deposits or in any other manner. Except as provided in this Section 7.1 above, Seller shall not terminate any Space Lease without the prior consent of Purchaser except in the event of an emergency or life-safety issue.

 

7.2           Personal Property and Equipment. During the pendency of this Contract, Seller agrees not to transfer to any third party or remove any personal property or equipment owned by Seller and material to the operation or maintenance of the Premises and located in the Premises unless such personal property or equipment is obsolete or replaced with a substantially similar item.

 

7.3           Employees. During the pendency of this Contract, Seller shall not hire any employees for whom Purchaser will have liability following the Closing.

 

7.4           Development Rights. During the pendency of this Contract, Seller shall not sell, lease, transfer or otherwise encumber any development rights appurtenant to the Premises.

 

7.5           Tax Protest Proceedings. Seller shall have sole authority to prosecute, settle and withdraw proceedings to review any real estate tax assessment for the Premises covering the fiscal years prior to and in which the Closing occurs. Purchaser acknowledges that it has no interest in any proceedings or refunds applicable to any fiscal tax year prior to the year in which the Closing occurs. The provisions of this Section shall survive the Closing.

 

 

7.6           Operation and Maintenance. From and after the date hereof until the date and time of the Closing, Seller shall operate and maintain the Premises (except for the Best Buy Premises, which Seller shall cause to be operated and maintained) in the usual course of business and consistent with past practices, excepting normal wear and tear and loss or Casualty, except that Seller shall have no obligation whatsoever to make any capital expenditures. During the period ending five (5) days before the Outside Termination Date, Seller shall have the right, but not the obligation, to make a capital expenditure in the ordinary course of business to maintain and preserve the Property, in which event Seller shall promptly notify Purchaser as to same, but, in any event, no later than the third (3^rd) Business Day before the Outside Termination Date. In the event Seller should make (or commit to make) such a capital expenditure prior to the fifth (5^th) day before the Outside Termination Date, Purchaser shall reimburse Seller on or before the Closing, for its pro rata portion (which shall be based on the portion of useful life of such expenditure occurring during each party’s respective period of ownership) of such expenditures made by Seller and Purchaser shall assume the obligation to complete the work (including, without limitation, assuming the applicable service contract(s) for any such incomplete work in accordance with Sections 6.1(i) and 9.3(b)(vii) hereof) covered by the expenditure. Beginning with the fifth (5^th) day before the Outside Termination Date, Seller shall not make any capital expenditures without the prior written approval of Purchaser (unless solely and directly as a result of an emergency), which approval may be given or withheld in Purchaser’s sole discretion. In the event Purchaser shall approve such capital expenditure from and after the fifth (5^th) day before the Outside Termination Date (or upon an emergency, as set forth above), Purchaser shall reimburse Seller and assume Seller’s remaining obligations in the manner set forth above. The 3^rd and 5^th sentence of this Section 7.6 shall survive the Closing or earlier termination of this Contract; provided, however, that in the event Purchaser duly cancels this Contract on or before the Outside Termination Date in accordance with the terms of Section 12.1 hereof, Purchaser shall have no obligation to reimburse Seller and assume Seller’s obligations pursuant to this Section 7.6.

 

8.           Title.

 

8.1           Title Commitment. Seller has (i) caused to be issued and delivered to Purchaser title commitments with respect to each of the Northwoods Property and the Best Buy Property (collectively, the “Title Commitment”) issued by Fidelity National Title Insurance Company; Attention: Angie Yarbrough (the “Title Company”), accompanied by a copy of all recorded documents affecting each of the Northwoods Property and the Best Buy Property listed as exceptions in Schedule B of the Title Commitment and (ii) delivered to Purchaser a copy of the existing ALTA/ACSM survey of the (A) Northwoods Property prepared by F. Elliotte Quinn, III, with Thomas & Hutton Engineering Co., dated May 30, 2013 (the “Northwoods Survey”) and (B) Best Buy Property prepared by Thomas & Hutton Engineering Co., dated April [_____], 2014 (the “Best Buy Survey,” and together with the Northwoods Survey, as may be further updated, the “Survey”). At least ten (10) Business Days prior to the Outside Termination Date, Purchaser shall furnish Seller with notice of any objections Purchaser has to the Title Commitment and Survey (the “Title Objection Date”); provided, however, Seller shall have no obligation to cure any such objections. In no event shall a failure by Purchaser to deliver notice of objections to the Title Commitment by the Title Objection Date be deemed a default by Purchaser under this Contract. Any matters existing as of the Title Objection Date to which Purchaser does not object, shall be deemed Permitted Exceptions. All defects, encumbrances, encroachments or other objections to title or the Survey or any survey of the Property or any part thereof that exist as of the Outside Termination Date and which Seller has not in this Contract or in a separate writing expressly agreed to remove, shall be deemed Permitted Exceptions. Following the Outside Termination Date, Purchaser shall notify Seller within five (5) Business Days of becoming actually aware of any other defects, encumbrances, encroachments or other objections to title or the Survey or any survey of the Property or any part thereof that are not Permitted Exceptions. Any defects, encumbrances, encroachments or other objections to title that are not Permitted Exceptions that are not timely objected to in accordance with this Section 8.1 shall be deemed Permitted Exceptions.

 

 

8.2          Status of Title. Seller shall deliver and Purchaser shall accept title to the Premises and consummate the transaction contemplated by this Contract subject to (a) title exceptions created or suffered by Purchaser and (b) the title exceptions deemed Permitted Exceptions under Section 8.1 above and (c) such other title exceptions which Seller may, in accordance with the provisions of this Contract, cause the Title Company to omit from Purchaser's title policy or affirmatively insure, without additional premium (unless paid by Seller), including without limitation a lien related to any loan secured by the Property which will be released in connection with a payoff at the Closing, so long as any such title exception described in this clause (c) (other than any such loan-related lien as set forth in the immediately preceding clause) does not have a material adverse effect on Purchaser (the title exceptions [whether liens, encumbrances, defects, encroachments or other objections] described in (a), (b) and (c) herein sometimes referred to collectively as "Permitted Exceptions").

 

8.3          Non-Permitted Title Objections.

 

(a)          If on the Closing it should appear that the Premises is affected by any lien, encumbrance, defect, encroachment or objection which is not a Permitted Exception (collectively, “Non-Permitted Title Objections”), then in such event, Seller, at Seller's election, shall have the privilege to remove or satisfy the same, and shall, for that purpose, be entitled to one or more adjournments of the Closing for a period not to exceed thirty (30) days beyond the date scheduled for Closing.

 

(b)          Seller shall not be required to bring any action or proceeding or to otherwise incur any expense to remove or discharge any Non-Permitted Title Objection unless such Non-Permitted Title Objection(s) can be removed or discharged by payment of a liquidated sum of money only, and if both (1) such removal or discharge can reasonably be expected to be accomplished within a period of thirty (30) days beyond the date scheduled for the Closing and (2) the sum of money required to accomplish such removal or discharge does not exceed Fifty Thousand and 00/100 Dollars ($50,000.00) in the aggregate (the “Maximum Title Expense”). In such event, Seller agrees to adjourn the Closing for the period required to remove or discharge such Non-Permitted Title Objections, but not to exceed thirty (30) days beyond the date scheduled for the Closing, and to expend (or at Seller’s election, to obligate itself to expend by indemnity agreement, bond or any other manner) an amount not to exceed the Maximum Title Expense to remove or discharge such Non-Permitted Title Objections. If there shall be any Non-Permitted Title Objections that can be removed or discharged by the payment of a sum of money only which exceeds the Maximum Title Expense, or that can be removed by the payment of not more than the Maximum Title Expense but not within thirty (30) days and Seller notifies Purchaser that Seller elects not to, or cannot, remove or discharge such Non-Permitted Title Objections, Purchaser may elect to (i) terminate this Contract by notice given within five (5) Business Days after receipt of Seller's notice in which case Purchaser shall be entitled to the return of the Deposit or (ii) close with a credit from Seller equal to the lesser of the amount required to remove or discharge such Non-Permitted Title Objection or the Maximum Title Expense. If Purchaser fails to timely cancel this Contract as provided in the preceding sentence, Purchaser shall accept such title as Seller can convey and the Purchase Price shall be reduced by the lesser of the Maximum Title Expense or the amount required to remove or discharge said Non-Permitted Title Objection. Anything in this Section to the contrary notwithstanding, an attempt by Seller to remove or discharge any Non-Permitted Title Objection shall not be deemed to be or create an obligation of Seller to remove or discharge the same.

 

 

(c)          The foregoing provisions of this Section to the contrary notwithstanding, Seller agrees to remove or discharge any monetary lien voluntarily created by Seller and any Non-Permitted Title Objections voluntarily created by Seller after the date hereof; provided, however, that Seller shall in no event be deemed to have voluntarily created (nor shall Seller be liable for) any monetary lien or Non-Permitted Title Objections if solely caused or created by an act or omission of Purchaser or by an act or omission of a Space Tenant.

 

9.           Closing.

 

9.1           Closing Date and Location. Subject to the adjournments expressly allowed elsewhere in this Contract, the closing of title (the “Closing”) shall take place, time being of the essence, on August 29, 2014 (the “Anticipated Closing Date”), or on such earlier date as may be agreed to by Purchaser and Seller. Notwithstanding anything to the contrary contained in this Contract, and in addition to the adjournment rights expressly allowed elsewhere in this Contract, Seller shall have the right to adjourn the Closing to the first (1^st) Business Day of the month following the month in which the Closing is then scheduled to occur or to a date up to five (5) Business Days thereafter (such adjourned date, the “Adjourned Closing Date”) in order to satisfy the condition hereunder that Seller own the Best Buy Property prior to the Closing and to the extent necessary for Seller to effectuate at Closing the defeasance of the existing mortgage encumbering the Best Buy Property (the “Defeasance”). The Closing shall take place by escrow deliveries to the Escrowee (the actual date of closing is herein referred to as the “Closing Date”) pursuant to reasonably acceptable escrow instructions that will provide, among other things, that the transfer documents will be released only upon Escrowee, on behalf of Seller and Purchaser, being unconditionally and irrevocably authorized to disburse the Purchase Price to Seller or as Seller may direct and otherwise in accordance with the terms of this Contract. Notwithstanding anything to the contrary contained in this Contract, Seller and Purchaser agree that Closing shall occur concurrently with the Defeasance and the closing of Seller’s acquisition of title to the Best Buy Property pursuant to the Best Buy Purchase Agreement (the “Prior Best Buy Closing”), but will be deemed to occur immediately after the Prior Best Buy Closing, provided that in no event shall the Closing occur prior to the date that is thirty (30) days after the Outside Termination Date without Purchaser’s prior written consent, and provided further that Seller shall provide Purchaser with notice of the date of the Closing at least three (3) Business Days prior to the date of the Closing in the event the Closing is accelerated to a date prior to the Anticipated Closing Date. Purchaser agrees to cooperate in good faith with Seller, in connection with the Defeasance, including finalizing and executing all closing documents required under this Contract and “pre-closing” this transaction at such time and in such manner as “Defease With Ease” (who is the third party responsible for coordinating the defeasance on Seller’s behalf) shall require, including funding to the Escrowee the balance of the Purchase Price (as forth in Article 3), but not more than, up to two (2) Business Days in advance of the then scheduled Closing Date. Subject to the provisions of Section 2.3(b) hereof, if Seller elects to adjourn the then scheduled date for Closing in accordance with this Section 9.1 and the Prior Best Buy Closing fails to occur by the Adjourned Closing Date, this Contract shall automatically terminate, upon which Purchaser shall be entitled to the return of the Deposit and this Contract shall be null and void and of no further force or effect except for those provisions expressly stated to survive the termination of this Contract; provided, however, that this sentence shall not apply in the event Purchaser timely elects to rescind such termination in accordance with the provisions of Section 2.3(b).

 

 

9.2          Closing Expenses.

 

(a)          Seller’s Expenses. Seller shall pay (i) one-half (1/2) of any reasonable escrow or closing charge of the Title Company; (ii) any real property transfer, conveyance or recording taxes imposed by the applicable governmental authority by reason of the transfer of the Premises (“Transfer Tax”); and (iii) the costs of the Survey (for expenses incurred prior to the date hereof).

 

(b)          Purchaser’s Expenses. Purchaser shall pay (i) one-half (1/2) of any reasonable escrow or closing charge of the Title Company; (ii) the cost of recording the deed including, without limitation, any recording charges imposed by the applicable governmental authority by reason of the transfer of the Premises; (iii) all expenses relating to its inspection of the Premises including, but not limited to, engineering, environmental and property condition surveys and updates to the Survey (for expenses incurred to update the Survey from and after the date hereof) whether or not Purchaser closes title to the Premises; (iv) all costs of the premiums for title policy coverage and the costs of any endorsements (other than endorsements which Seller elects to obtain to cure any Non-Permitted Title Objection); and (v) any cost incurred in connection with any financing obtained by Purchaser including, without limitation, mortgage recording tax and title insurance premiums. Seller and Purchaser shall each execute (and swear to where required) any returns and statements required in connection with the Transfer Tax. Payment of the Transfer Tax shall be made to the Title Company.

 

(c)          The provisions of this Section 9.2 shall survive the Closing or earlier termination of this Contract.

 

9.3         Closing Deliveries.

 

(a)          At Closing (or within five (5) Business Days thereafter with respect to delivery of items other than documents executed by Seller in connection with the Closing), unless expressly stated to the contrary herein, Seller shall deliver to Purchaser or Escrowee:

 

(i)               the Special Warranty Deed executed by Seller and acknowledged in the form annexed hereto as Exhibit 1;

 

 

(ii)         the Assignment of the Space Leases executed by Seller in the form annexed hereto as Exhibit 2;

 

(iii)        the Assignment of the Service Contracts (and any permitted replacements or renewals thereof) executed by Seller in the form annexed hereto as Exhibit 3;

 

(iv)        the Assignment of Licenses, Permits, Guarantees and Warranties executed by Seller in the form annexed hereto as Exhibit 4;

 

(v)         notice to the Space Tenants executed by Seller in the form annexed hereto as Exhibit 5 (which will be delivered to the Space Tenants by Seller or its property manager unless otherwise mutually agreed to by Seller and Purchaser);

 

(vi)        originals, or if originals are not available, copies of the Space Leases (which may be delivered to Purchaser’s manager at the Premises);

 

(vii)       notice to the service contractors executed by Seller in the form annexed hereto as Exhibit 6 (which will be delivered to the service contractors by Seller or its property manager unless otherwise mutually agreed to by Seller and Purchaser);

 

(viii)      duly executed certificate of Seller in the applicable form set forth in Treasury Regulations §1.1445-2(b)(2);

 

(ix)         the Transfer Tax return(s) executed by Seller;

 

 

(x)          estoppel certificates dated within thirty (30) days of the date originally scheduled for Closing (each an “Estoppel Certificate” and collectively the “Estoppel Certificates”) from (i) all Major Tenants and (ii) those Space Tenants which together with Major Tenants collectively represent eighty percent (80%) of the leased area of the Premises (“Estoppel Tenants”) (A) with respect to all Space Tenants other than the Space Tenant occupying the Best Buy Premises (the “Best Buy Space Tenant”), in form and substance which do not vary materially from the form annexed hereto as Exhibit 7 and (B) with respect to the Best Buy Space Tenant, in the form received by Seller (or its affiliate) in connection with the Best Buy Purchase Agreement (unless, in either case, such variance benefits Purchaser), or, as to any Space Tenant and/or Space Lease providing for or allowing a different form of estoppel certificate, the form provided or allowed by such Space Tenant and/or Space Lease. Notwithstanding the foregoing to the contrary, if the required Estoppel Certificates cannot be timely delivered, Seller may, but shall not be obligated to, adjourn the Closing for a period not to exceed thirty (30) days, to obtain the required Estoppel Certificates. As used herein, “Major Tenant” shall mean any Space Tenant who leases pursuant to a Space Lease more than seven thousand (7,000) rentable square feet in the aggregate; provided, however, that in the event the Closing occurs with respect to the Northwoods Premises but not the Best Buy Premises as contemplated in Section 2.3(b) or Section 7.1(d), (a) the Best Buy Space Tenant shall not be included within the definition of Major Tenant and (b) the Best Buy Premises shall not be included within the definition of “Premises” as used to determine eighty percent (80%) of the leased area of the Premises for purposes of this Section 9.3(a)(x). Seller shall deliver to Purchaser, promptly after receipt thereof, copies of each executed Estoppel Certificate obtained by Seller from the Space Tenants; provided, however, that if Seller delivers to Purchaser an executed Estoppel Certificate from a Space Tenant in form or substance to which Purchaser is entitled to object pursuant to this Section 9.3(a)(x) and delivers a subsequent executed Estoppel Certificate from such Space Tenant in form and substance to which Purchaser shall not have the right to object pursuant to this Section 9.3(a)(x), then such subsequent Estoppel Certificate shall be deemed acceptable for purposes of satisfying Seller’s obligation to deliver Estoppel Certificates under this Contract. If Seller, after exercising or waiving in writing its adjournment right set forth in this Section 9.3(a)(x), does not or cannot deliver the required Estoppel Certificates, Purchaser's sole remedy shall be to terminate this Contract and receive the return of the Deposit or to close notwithstanding the lack of the Estoppel Certificate(s) without any reduction of the Purchase Price and without any liability of Seller relative thereto. Except as set forth in Section 12.1, in the event any Estoppel Certificate shall claim a default (a claim of default or failure of an obligation by Seller or a Space Tenant which arises out of or results from information actually disclosed to and actually known by Purchaser prior to the Outside Termination Date shall not be deemed an Estoppel Default or an objection to Purchaser’s closing title to the Premises) by Seller under a Space Lease (such default hereinafter being referred to as an “Estoppel Default”), then Seller may, but shall not be obligated to, elect to cure any such Estoppel Default and shall, for that purpose, be entitled to adjourn the Closing for a period not to exceed thirty (30) days, provided, however, that in the event Seller elects not to cure such Estoppel Default or is unable to cure such Estoppel Default within such period of time, Purchaser's sole remedy shall be to terminate this Contract and receive the return of the Deposit. In the event Purchaser is permitted to terminate this Contract pursuant to the preceding sentence, if (1) Purchaser fails to terminate this Contract as provided for above, or (2) such Estoppel Default will require less than Five Hundred Thousand Dollars ($500,000) to cure and if Seller agrees to escrow at Closing sufficient funds to remedy such Estoppel Default and otherwise elects to indemnify Purchaser from and against any and all claims, loss, liability, damage, cost or expense, including reasonable attorneys' fees, that may arise as a result of such Estoppel Default, then, in either event, the rights and obligations of the parties hereto shall not be affected thereby, this Contract shall remain in full force and effect and Purchaser shall, at the Closing, accept such Estoppel Certificate subject to such Estoppel Default without any reduction of the Purchase Price. Subsequent to the Closing, Seller may deliver an Estoppel Certificate confirming that the Estoppel Default no longer exists, whereupon Seller shall be entirely released from any liability arising out of the indemnity, if any, given pursuant to subsection (2) above. Notwithstanding anything contained herein to the contrary, Purchaser shall notify Seller upon the date which is the earlier of (i) five (5) Business Days following Purchaser’s receipt of executed Estoppel Certificates and (ii) one (1) Business Day before the Closing Date, of Purchaser’s permitted objections to any such Estoppel Certificates. Purchaser’s failure to timely respond to Seller in accordance with the preceding sentence shall be deemed its approval of the Estoppel Certificates;

 

(xi)         the Bill of Sale, executed by Seller in the form of Exhibit 8 annexed hereto;

 

(xii)        keys, combinations and codes to all locks and security devices to the Premises in Seller’s possession;

 

(xiii)       an update of Seller’s representations executed by Seller in accordance with Section 6.3 above;

 

 

(xiv)      a Seller’s non-resident withholding affidavit executed by Seller, if applicable;

 

(xv)       a title certificate in the form attached hereto as Exhibit 10;

 

(xvi)      an Assignment and Assumption of Leasing Commission Agreements and Construction Contracts executed by Seller in the form annexed hereto as Exhibit 13; and

 

(xvii)     evidence of Seller’s organizational authority.

 

(b)          At Closing Purchaser shall deliver to Seller or Escrowee:

 

(i)          the balance of the Purchase Price as provided in Section 3 hereof;

 

(ii)         the Assignment of the Space Leases executed by Purchaser in the form annexed hereto as Exhibit 2;

 

(iii)        the Assignment of the Service Contracts (and any replacements or renewals thereof) executed by Purchaser in the form annexed hereto as Exhibit 3;

 

(iv)        notice to the Space Tenants executed by Purchaser in the form annexed hereto as Exhibit 5;

 

(v)         notice to the service contractors executed by Purchaser in the form annexed hereto as Exhibit 6;

 

(vi)        an Assumption Agreement executed by Purchaser in the form annexed hereto as Exhibit 12 pursuant to which Purchaser shall assume all of Seller’s obligations with respect to the leasing commission obligations to be assumed by Purchaser pursuant to Section 9.4(c) of this Contract which arise from and after the Closing Date;

 

(vii)       an Assignment and Assumption of Leasing Commission Agreements and Construction Contracts executed by Purchaser in the form annexed hereto as Exhibit 13 pursuant to which Purchaser shall assume all of Seller’s obligations with respect to the leasing commission agreements and construction contracts (i) set forth on Schedule F annexed hereto, (ii) to be assumed by Purchaser pursuant to Section 9.4(a)(i)(F) of this Contract, if applicable, and (iii) to be assumed by Purchaser pursuant to Section 7.6 of this Contract, if applicable; and

 

(viii)      Transfer Tax return(s) executed by Purchaser; and

 

(ix)         evidence of Purchaser's organizational authority.

 

9.4           Apportionments and Reimbursements. The following adjustments shall be made with respect to the Premises, and the following procedures shall be followed:

 

 

(a)          General.

 

(i)          Preparation of Prorations. Before the Closing Date, Seller shall prepare and deliver, or cause Escrowee to prepare and deliver, to Purchaser an unaudited statement for the Premises (the “Preliminary Proration Statement”) showing prorations (except as set forth in Section 9.4(a)(i)(G)) for the items set forth below, calculated as of 11:59 p.m. on the day preceding the Closing Date, on the basis of a 365-day year. Purchaser and its representatives shall be afforded reasonable access to Seller’s books and records with respect to the Premises and Seller’s work papers pertaining to the Preliminary Proration Statement to confirm the accuracy of the Preliminary Proration Statement. Purchaser and Seller shall agree upon any adjustments to be made to the Preliminary Proration Statement before the Closing, and at the Closing, Purchaser or Seller, as applicable, shall receive a credit equal to the net amount due Purchaser or Seller, as applicable, pursuant to the Preliminary Proration Statement as finally agreed upon by Purchaser and Seller. The items to be covered by the Preliminary Proration Statement are as follows:

 

(A)         rents and any miscellaneous revenue (but only to the extent collected before the Closing Date), but excluding Additional Rents (as defined in 9.4(a)(i)(B) below), which shall be prorated pursuant to Section 9.4(b) below;

 

(B)         reimbursements from Space Tenants for the cost of, or for increases (above a base amount) in the cost of, real estate taxes, parking, a marketing fund, operating expenses, insurance premiums, maintenance, or other charges of a similar nature, if any, and any additional charges and expenses (collectively, “Additional Rents”) payable under the Space Leases, which shall be prorated based on the principles and procedures set forth in Section 9.4(b) below;

 

(C)         non-delinquent personal property taxes, real property taxes and assessments, district improvement impositions and the like, except to the extent reimbursable or payable directly to the applicable taxing authority by the Space Tenants under its Space Leases (based upon the maximum discount rate available, if applicable); provided that if the tax rate or assessment for the fiscal year in which the Closing occurs has not been issued as of the Closing Date, taxes shall be prorated based on the last ascertainable tax bill, and such tax proration shall be subject to adjustment pursuant to subparagraph (v) of this Section 9.4(a);

 

(D)         water, sewer and utility charges not payable by a Space Tenant;

 

(E)         amounts payable under the Service Contracts;

 

(F)         permits, licenses and/or inspection fees (calculated on the basis of the period covered), but only to the extent transferred to Purchaser;

 

 

(G)         leasing commissions, landlord’s work, tenant improvement allowances and construction management fees incurred in connection with New Leases made in accordance with the provisions of Section 7.1 above, which shall be paid by Purchaser and Purchaser agrees to assume the obligations therefor pursuant to an Assignment and Assumption of Leasing Commission Agreements and Construction Contracts attached hereto as Exhibit 13. To the extent such amounts are paid by Seller at or prior to Closing, Purchaser shall reimburse Seller for such amounts at Closing; and

 

(H)         any other expenses normal to the operation and maintenance of the Premises.

 

(ii)         Principles of Prorations; Collections and Payments. Subject to the prorations to be made pursuant to this Section 9.4, after the Closing Purchaser shall collect all revenues and pay all expenses with respect to the Premises, even if such revenues and expenses relate to periods before the Closing; provided however, if any Space Tenant sends payments to Seller after the Closing, Seller shall deposit such payments to its bank account and, promptly after such payment has cleared, pay to Purchaser any portion of such payment to which Purchaser is entitled under the provisions of this Section 9.4. Purchaser shall use commercially reasonable efforts consistent with prudent business practices (A) to collect on Seller’s and Purchaser’s behalf all operating expenses for the Premises which are actually paid by Seller or Purchaser and permitted to be passed through to Space Tenants as Additional Rents pursuant to the terms of each Space Tenant’s respective Space Lease with respect to the 2014 calendar year, and (B) for the first one hundred eighty (180) days from and after the Closing Date, to collect on Seller’s behalf all such other delinquencies and unpaid monetary obligations owing under the Space Leases as of the Closing Date or that relate to a period prior to the Closing Date, and in the case of each of the foregoing clauses (A) and (B), Purchaser shall pay to Seller any sums collected in connection therewith which are attributable to the period of time prior to Closing. For purposes of the immediately preceding sentence, Purchaser’s use of commercially reasonable efforts shall in no event require Purchaser to sue a Space Tenant, terminate a Space Tenant’s Space Lease or disrupt a Space Tenant’s right to possession of its premises. To the extent such payments of any such unpaid monetary obligations are collected by Purchaser by judicial process, Purchaser may deduct from the amount owed to Seller an amount equal to the attorneys’ fees and costs actually incurred by Purchaser in collecting such unpaid monetary obligations due to Seller. Subject to the foregoing sentence, any rent or other payment collected after the Closing from any Space Tenant which owed any amounts under the Space Leases as of the Closing Date or that relates to any period prior to the Closing Date shall be applied first, to the applicable party’s unpaid monetary obligations with respect to any periods from the Closing Date through the end of the month in which such payment is made, in such order as Purchaser may elect, until such monetary obligations have been paid in full; any remaining amount of such payment shall be paid over to Seller, for application against such party’s unpaid monetary obligations with respect to any periods before the Closing Date, in such order as Seller may elect, until such unpaid monetary obligations have been paid in full; and any remaining amount of such payment shall be retained by Purchaser for application against such party’s future obligations. After the Closing Date, Seller shall have no right to bring any actions or proceedings against Space Tenants to collect any delinquencies or otherwise and Purchaser shall be deemed to have the exclusive right, at any time after the Closing Date, to file proofs of claim and to commence or continue any actions or proceedings to collect any pre-petition rent, pre-petition additional rent, pre-petition rejection damages under Section 365 of the Bankruptcy Code, and/or post-petition administration expense claims, for any and all damages which arise or accrue prior to the Closing Date. Notwithstanding the foregoing, or the provisions of Section 9.4(a) above, if any Space Tenant pays rent in arrears, rent due for such Space Tenant for the month in which the Closing occurs shall be prorated (based on the rent payable in the prior month) between Purchaser and Seller at Closing, whether or not same has been paid by the Space Tenant.

 

 

(iii)        Utility and Municipality Deposits. At Closing, Seller shall receive a credit in the amount of any utility, municipality or other deposits relating to the Premises made by Seller and which are assigned to Purchaser at the Closing. Seller shall be entitled to a refund from the applicable utility or municipality of any deposits not assigned to Purchaser.

 

(iv)        Security Deposits. At the Closing, Seller shall deliver to Purchaser all prepaid rent, refundable security deposits, letters of credit and other collateral actually received by Seller pursuant to any of the Space Leases, less any portions thereof applied in accordance with the respective Space Lease (together with a statement regarding such applications).

 

(v)         Post-Closing Adjustments. Notwithstanding anything to the contrary contained in this Section 9.4, (A) if the amount of the real property taxes and assessments payable with respect to the Premises for any period before Closing is determined to be more than the amount of such real property taxes and assessments that is prorated herein (in the case of the current year) or that was paid by Seller (in the case of any prior year), due to a reassessment of the value of the Premises or otherwise, Seller and Purchaser shall promptly adjust the proration of such real property taxes and assessments after the determination of such amounts, and Seller shall pay to Purchaser any increase in the amount of such real property taxes and assessments applicable to any period before Closing; provided, however, that Seller shall not be required to pay to Purchaser any portion of such increase that is payable by Space Tenants; and (B) if the amount of the real property taxes and assessments payable with respect to the Premises for any period before Closing is determined to be less than the amount of such real property taxes and assessments that is prorated herein (in the case of the current year) or that was paid by Seller (in the case of any prior year), due to an appeal of the taxes by Seller, a reassessment of the value of the Premises or otherwise, Seller and Purchaser shall promptly adjust the proration of such real property taxes and assessments after the determination of such amounts (net of any costs incurred by Seller in connection with pursuing any appeal thereof), and (1) Purchaser shall pay to Seller any refund received by Purchaser representing such a decrease in the amount of such real property taxes and assessments applicable to any period before Closing; provided, however, the Purchaser shall not be required to pay to Seller any portion of such refund (other than a portion of such refund equal to the amount of all costs incurred by Seller in connection with pursuing any appeal thereof) which is payable to Space Tenants; and (2) Seller shall be entitled to retain any refund received by Seller representing such a decrease in the amount of such real property taxes and assessments applicable to any period before Closing; provided, however, that Seller shall pay to Purchaser that portion of any such refund, after first deducting any and all actual, out of pocket costs incurred by Seller in connection with pursuing such refund, that is payable to Space Tenants or that is otherwise applicable to any period after Closing. Each party shall give notice to the other party of any adjustment of the amount of the real property taxes and assessments payable with respect to the Premises for any period before Closing within thirty (30) days after receiving notice of any such adjustment.

 

 

(b)          Additional Rents; Post Closing Reconciliation.

 

(i)          Additional Rents. If any Space Tenants are required to pay Additional Rents and the same are not finally adjusted between the landlord and Space Tenant under any Space Lease until after the preparation of the Preliminary Proration Statement pursuant to Section 9.4(a)(i) above, then, the Preliminary Proration Statement shall include an estimated reconciliation as of the Closing Date of the amounts of all billings and charges for Additional Rents for calendar year 2014 through the Closing Date, as provided in this Section 9.4(b)(i). If the amounts that have been billed to Space Tenants for Additional Rents for calendar year 2014 through the Closing Date are less than would have been owed by Space Tenants under their respective Space Leases if the reconciliations under such Space Tenant Spaces Leases were completed as of the Closing Date based on the actual costs incurred by Seller for items that are payable by the Space Tenants as Additional Rents under their respective Space Leases for calendar year 2014 up to the Closing Date, the Preliminary Proration Statement will include a credit to Seller in the amount of such shortfall, subject to final adjustment as provided below in Sections 9.4(b)(iii) through 9.4(b)(v) below. If the amounts that have been billed to Space Tenants for Additional Rents for calendar year 2014 through the Closing Date exceed what would have been owed by Space Tenants under their respective Space Leases if the reconciliations under such Space Tenant Space Leases were completed as of the Closing Date based on the actual costs incurred by Seller for items that are payable by the Space Tenants as Additional Rents under their respective Space Leases for calendar year 2014 up to the Closing Date, the Preliminary Proration Statement will include a credit to Purchaser in the amount of such excess billed amount, subject to final adjustment as provided below in Sections 9.4(b)(iii) through 9.4(b)(v) below.

 

(ii)         [Intentionally deleted.]

 

(iii)        Post-Closing Reconciliation. With respect to those Additional Rents for the 2014 calendar year which are not finally adjusted between the landlord and any Space Tenant under any Space Lease until after the preparation of the Preliminary Proration Statement pursuant to Section 9.4(a) above, Purchaser shall submit to Seller, no later than April 30, 2015, an unaudited statement for the Premises (a “Supplemental Proration Statement”) covering any such Additional Rents which have been finally adjusted between Purchaser and such Space Tenant for the 2014 calendar year containing a calculation of the prorations of such Additional Rents on the basis of a 365-day year, provided that the adjustment to be made pursuant to the Supplemental Proration Statement shall (x) take into account the adjustment of such items made on the Preliminary Proration Statement in accordance with Section 9.4(a) and Sections 9.4(b)(i) and 9.4(b)(ii) above and (y) be made in proportion to the relative amounts of Additional Rents due Purchaser and Seller based on the amounts of the charges incurred by each of them during their respective periods of ownership for items that are payable by the Space Tenants as Additional Rents under their respective Space Leases. In order to enable Purchaser to make any year-end reconciliations of Additional Rents, following the Closing, Seller shall deliver to Purchaser a final statement of (i) all operating expenses for the Premises which are actually paid by Seller and permitted to be passed through to Space Tenants as Additional Rents pursuant to the terms of each Space Tenant’s respective Space Lease, with respect to the portion of the 2014 calendar year occurring prior to the Closing (“Seller’s 2014 Actual Operating Expenses”), together with copies of all documentation evidencing Seller’s 2014 Actual Operating Expenses, including copies of third-party invoices and copies of Seller’s books and records applicable thereto, and (ii) all estimated payments of Additional Rents received by Seller from Space Tenants with respect to the portion of the 2014 calendar year occurring prior to the Closing. If Additional Rents for the 2013 calendar year have not been finally adjusted between Seller and a Space Tenant, as applicable, as of the Closing, Seller shall retain all rights and obligations with respect to the adjustment thereof directly with the Space Tenant following the Closing, subject to the provisions of Section 9.4(a)(v) above. Without limiting the generality of the foregoing, but subject to the provisions of Section 9.4(a)(v) above, Seller shall retain all rights to bill and collect any additional amounts owing by any Space Tenant with respect to Additional Rents for the 2013 calendar year, and shall remain obligated to pay any refund owing to any Space Tenant for overpayment of Additional Rents for the 2013 calendar year.

 

 

(iv)        Audit Rights for Supplemental Proration Statements. Seller and its representatives shall be afforded the opportunity to review all underlying financial records and work papers pertaining to the preparation of all Supplemental Proration Statements, and Purchaser shall permit Seller and its representatives, following not less than five (5) Business Days’ prior written notice, to have full access during Purchaser’s normal business hours at Purchaser’s office where books and records with respect to the Premises are kept, to such books and records in the possession of Purchaser or any party to whom Purchaser has given custody of the same relating to the Premises to permit Seller to review the Supplemental Proration Statements. Any Supplemental Proration Statement prepared by Purchaser shall be final and binding for purposes of this Contract unless Seller shall give written notice to Purchaser of disagreement with the prorations contained therein within sixty (60) days following Seller’s receipt of such Supplemental Proration Statement, specifying in reasonable detail the nature and extent of such disagreement. If Purchaser and Seller are unable to resolve any disagreement with respect to any Supplemental Proration Statement within ten (10) Business Days following receipt by Purchaser of the notice referred to above, either party may pursue any remedy available for the resolution of such dispute.

 

(v)         Payments for Adjustments. Any net credit due Seller or Purchaser, as the case may be, shall be paid to Seller or Purchaser, as the case may be, (A) with respect to those items payable by any Space Tenant under its respective Space Lease, within seventy-five (75) days after the date payment of any such amount is made by such Space Tenant to Purchaser and (B) with respect to all other items, in accordance with the terms of this Contract or as otherwise reflected on a Supplemental Proration Statement delivered to Seller, or unless Seller notifies Purchaser of a disagreement with respect to any such statement as provided in Section 9.4(b)(iv) above, in which case such payment (less a hold back sufficient to cover the amount of the disagreement) shall be made within fifteen (15) days after Seller notifies Purchaser of such disagreement, and any further payment due after such disagreement is resolved shall be paid within fifteen (15) days after the resolution of such disagreement.

 

 

(c)          Leasing Commissions. At Closing, Purchaser shall execute an Assumption Agreement in the form annexed hereto as Exhibit 12, pursuant to which Purchaser shall assume all obligations of Seller to pay any leasing commissions to MCM Real Estate, Inc. (“MCM Real Estate”) pursuant to paragraph 16 of that certain Leasing and Construction Management Agreement, dated as of January 24, 2011, by and between Seller, as owner, and MCM Real Estate, as leasing agent (the “Leasing Agreement”), with respect to any lease executed by Purchaser, or its successors and assigns, with an Active Prospect (as defined in paragraph 16 of the Leasing Agreement) following the Closing.

 

(d)          Survival. The obligations of Seller and Purchaser under this Section 9.4 shall survive the Closing.

 

10.         Default.

 

10.1        Purchaser’s Default. If Purchaser should default under this Contract (including the failure to timely deliver the Additional Deposit), Seller may elect to cancel this Contract by giving notice to Purchaser and Escrowee. The parties hereto agree that the damages that Seller will sustain as a result of such default will be substantial but will be difficult to ascertain. Accordingly, the parties agree that in the event that Seller shall elect to terminate this Contract as a result of such default, Escrowee is hereby directed to pay the Deposit to Seller, who shall retain the Deposit as and for its liquidated damages and sole remedy hereunder, in which event this Contract shall be null and void and of no further force or effect except for those provisions expressly stated to survive the termination of this Contract.

 

10.2        Seller's Default. If Seller defaults under the terms of this Contract, Purchaser’s sole remedy for Seller’s default shall be to elect either to (i) cause (A) the refund to Purchaser of the Deposit and (B) in the event such default is material and arising out of Seller’s bad faith intent, the reimbursement by Seller of Purchaser's actual out of pocket costs and expenses (as evidenced by paid receipts) incurred in connection with this Contract and Purchaser's investigation of the Premises, not to exceed $100,000.00 in the aggregate and upon the making of such refund and reimbursement, as applicable, this Contract shall be null and void and of no further force or effect except for those provisions expressly stated to survive the termination of this Contract and the lien, if any, of Purchaser against the Premises shall wholly cease or (ii) commence an action for specific performance. Purchaser hereby waives all other rights and remedies that it might have, including but not limited to, the right to sue for damages.

 

11.         Risk of Loss.

 

11.1        Condemnation.

 

(a)                If, at any time prior to the Closing Date, all or a Substantial Portion of the Property shall be taken in the exercise of the power of condemnation or eminent domain by any sovereign, municipality or other public or private authority or shall be the subject of a duly noticed hearing held by any such authority relating to a pending taking in the exercise of the power of condemnation or eminent domain (a “Taking”), then Purchaser may cancel this Contract by written notice given to Seller within ten (10) days after receipt of notice from Seller of such Taking, in which event this Contract shall be deemed cancelled and of no force and effect and neither party shall have any further obligations or liabilities against or to the other, except that Seller shall cause the return of the Deposit to Purchaser. In the case of a Taking of less than a Substantial Portion of the Property or if Purchaser does not elect to terminate this Contract in the case of a Taking of all or a Substantial Portion of the Property, as provided for above, then this Contract shall remain in full force and effect and on the Closing either (A) Purchaser shall be entitled to any condemnation award to be granted and Seller shall assign all of its right, title and interest to such award to Purchaser, less such sums, if any, actually and reasonably expended by Seller to prosecute such claim and restore the Premises, or (B) if such award shall have been paid to Seller, the Purchase Price shall be reduced by the amount thereof, less such sums, if any, actually and reasonably expended by Seller to prosecute such claim and restore the Premises. Seller agrees to deliver promptly after receipt thereof any and all written notices of a Taking received by Seller after the date hereof.

 

 

(b)          As used herein, a Taking of a “Substantial Portion” of the Property shall mean a Taking which (i) materially and adversely affects access to or from the Premises on a permanent basis or (ii) will result in the termination of any Space Lease in excess of 5,000 leasable square feet or a combination of Space Leases in excess of 20,000 leasable square feet in the aggregate.

 

11.2         Destruction or Damage. In the event that the Property, or any part thereof, shall be damaged or destroyed by fire or any other casualty (“Casualty”) prior to the Closing Date, Seller shall give Purchaser prompt written notice of such event together with an estimate of the cost and time to restore prepared by an independent insurance examiner or engineer selected by Seller. If the Casualty will (a) require more than ten percent (10%) of the Purchase Price to repair or (b) result in the termination of any Space Lease in excess of 5,000 leasable square feet or a combination of Space Leases in excess of 20,000 leasable square feet in the aggregate (each event described in (a) or (b) herein called a “Casualty Termination Event”), Purchaser may cancel this Contract by notice to Seller within ten (10) days after receipt of notice from Seller specifying the Casualty Termination Event, in which event this Contract shall be deemed terminated and of no force and effect and neither party shall have any further rights or liabilities against or to the other except for those provisions expressly stated to survive the termination of this Contract and Seller shall cause the return of the Deposit to Purchaser. If there is no Casualty Termination Event or if Purchaser does not timely elect to cancel the Contract in the event of a Casualty Termination Event, this Contract shall remain in full force and effect and Purchaser shall be entitled to all insurance proceeds payable to Seller on account of such Casualty, less such sums, if any, as shall have been actually and reasonably incurred by Seller or expended by Seller in connection with the repair or restoration of such Casualty or the prosecution of such claim.

 

12.         Purchaser's Review Period.

 

12.1         Purchaser shall have the right to cancel this Contract on or before June 30, 2014 (the “Outside Termination Date”) by notice to Seller to be received by Seller on or before 3:00 P.M. Eastern Time on the Outside Termination Date (the period of time from the date hereof through and including the Outside Termination Date is herein referred to as “Purchaser's Review Period”). If Purchaser duly cancels this Contract in accordance with this Section 12.1, this Contract shall be deemed terminated and of no further force or effect, except for the provisions expressly stated to survive the Closing, and the Deposit shall be returned to Purchaser. If Purchaser does not duly cancel this Contract in accordance with this subparagraph or if Purchaser waives its right to cancel this Contract, (i) this Contract shall remain in full force and effect and Purchaser shall have no further right to cancel this Contract under this Section 12.1 and (ii) Purchaser shall be deemed to have waived any liability of Seller and any right to refuse to consummate the Closing by reason of any condition actually known to Purchaser as of the Outside Termination Date, including, without limitation a misrepresentation, Non-Permitted Title Objection, any other condition which results in or could result in an Estoppel Default or any breach of a covenant by Seller. Purchaser and Seller have entered into that certain Access Agreement dated June ___, 2014 (the “Access Agreement”), a copy of which is attached hereto as Exhibit 9 and the terms of which are hereby incorporated by reference and made a part hereof, and Purchaser hereby agrees to comply with the terms set forth in the Access Agreement.

 

 

12.2         Time shall be of the essence with respect to the dates in this Section 12 for the Outside Termination Date and the giving of Purchaser's cancellation notice. The provisions of this Section 12 shall survive the Closing or termination of this Contract.

 

13.         Miscellaneous.

 

13.1         Broker. Seller and Purchaser represent to each other that neither party has dealt with any broker or real estate consultant other than CBRE, Inc. (“Broker”) in connection with the transaction contemplated by this Contract. Seller agrees to pay all fees, commissions or other charges due to Broker, if, as and when there is a Closing hereunder, pursuant to Seller’s separate agreement with Broker. Seller and Purchaser shall indemnify and hold the other free and harmless from and against any liabilities, damages, costs or expenses (including, but not limited to, reasonable attorneys' fees and disbursements) suffered by the indemnified party arising from a misrepresentation or a breach of any covenant made by the indemnifying party pursuant to this Section. The provisions of this Section shall survive the Closing or termination of this Contract.

 

13.2         Assignment of this Contract. This Contract may not be assigned by Purchaser without the consent of Seller. A direct or indirect transfer, sale or assignment of the majority stock interest in a corporate purchaser or the majority membership interest in a limited liability company purchaser or the majority or any general partnership interest of a partnership purchaser shall constitute an assignment of this Contract, which assignment or attempted assignment shall be void if made without the written consent of Seller. Purchaser shall have the right to assign its rights under this Contract, from and after the Outside Termination Date, to ARC NWNCHSC001, LLC without any consent of Seller being required, so long as such assignment is in the form approved by Seller, which includes that such assignee shall assume in writing all of the obligations of Purchaser to be performed under this Contract and an original of such fully executed assignment and assumption agreement shall be delivered to Seller at least five (5) Business Days prior to the Closing. Purchaser shall not assign this Contract to an entity or individual which would make any of the statements, representations or warranties set forth in Section 6.5(d) of this Contract untrue or incorrect and any such assignment shall be null and void and without force and effect. No assignment of this Contract shall relieve Purchaser from any of its obligations set forth herein arising prior to or after the effective date of the assignment. The provisions of this Section shall survive the Closing or termination of this Contract.

 

13.3         Attorneys’ Fees. If either party institutes a legal proceeding against the other party in connection with this Contract, the losing party in such proceeding shall reimburse the prevailing party all reasonable attorneys’ fees paid by the prevailing party in connection with such proceeding. The provisions of this Section shall survive the Closing or termination of this Contract.

 

 

13.4         Notices. All notices hereunder to Seller, Purchaser, Escrowee or the Title Company shall be sent by certified or registered mail, return receipt requested, or may be sent by Federal Express or other overnight courier which obtains a signature upon delivery, or may be sent via facsimile, or may be delivered by hand delivery addressed to such party at the address of such party set forth below or at such other address as such party shall designate from time to time by notice:

 

SELLER:

 

DRA-RCG North Charleston SPE LLC,

c/o DRA Advisors LLC

220 East 42^nd Street

New York, New York 10017

Attention: Dean Sickles

Facsimile: (212) 697-7403

 

with a copy to:

 

Blank Rome LLP

405 Lexington Avenue

New York, New York 10174

Attention: Martin Luskin, Esq. with a concurrent copy to Samantha Wallack, Esq. (Facsimile: (917) 332-3804)

Facsimile: (917) 332-3714

 

PURCHASER:

 

American Realty Capital IV, LLC

405 Park Avenue, 15^th Floor

New York, New York 10022

Attention: Jesse Galloway and Jeremy Eichel

Facsimile: (212) 421-5799

 

with a copy to:

 

Retail Centers of America, Inc.

2000 McKinney Avenue, Suite 1000

Dallas, Texas 75201

Attention: Chris Cotten and Stephen G. Seitz

Facsimile: (214) 740-3313

 

with a copy to:

 

Condon Thornton Sladek Harrell PLLC

8080 Park Lane, Suite 700

Dallas, Texas 75231

Attention: William L. Sladek, Esq.

 Facsimile: (214) 691-6311

 

 

ESCROWEE/TITLE COMPANY:

 

Fidelity National Title Insurance Company

National Commercial Services

5565 Glenridge Connector, Suite 300

Atlanta, Georgia 30342

Attention: Angie Yarbrough

Facsimile: (678) 213-1665

 

Notices shall be deemed served three (3) days after mailing, and in the case of overnight courier or hand delivery, on the date actually delivered to or rejected by the intended recipient, and in the case of facsimile, upon the sender’s receipt of confirmation of transmission of such facsimile notice produced by the sender’s facsimile machine, provided a copy of such transmission and the confirmation receipt thereof is deposited with an overnight courier for next day delivery properly addressed and paid for, except for notice(s) which advise the other party of a change of address of the party sending such notice or of such party's attorney, which notice shall not be deemed served until actually received by the party to whom such notice is addressed or delivery is refused by such party. Notices on behalf of the respective parties may be given by their attorneys and such notices shall have the same effect as if in fact subscribed by the party on whose behalf it is given. Notwithstanding the foregoing provisions of this Section (a) notices served by hand delivery shall be deemed served on the date of delivery if delivered at or prior to 5:00 P.M. Eastern Time on a Business Day and on the next Business Day if delivered after 5:00 P.M. Eastern Time on a Business Day or at any time on a non-Business Day and (b) notices served by facsimile shall be deemed served on the date of transmission if the sender receives confirmation of transmission in the manner set forth above at or prior to 5:00 P.M. Eastern Time on a Business Day and on the next Business Day if the sender receives confirmation of transmission in the manner set forth above after 5:00 P.M. Eastern Time on a Business Day or at any time on a non-Business Day.

 

13.5        Further Assurances. The parties each agree to do such other and further acts and things, and to execute and deliver such instruments and documents (not creating any obligations additional to those otherwise imposed by this Contract or diminishing any rights set forth in this Contract), as either may reasonably request from time to time, whether at or after the Closing, in furtherance of the purposes of this Contract. The provisions of this Section shall survive the Closing for three (3) months.

 

13.6        Confidentiality.

 

(a)          Purchaser agrees that, except as set forth below, all documentation made available to Purchaser by Seller (or its representatives) concerning the Premises, including, without limitation, the Space Leases, Service Contracts, development plans, proformas and rent rolls (all of the aforementioned information is collectively referred to as “Evaluation Material”) shall be treated confidentially as hereinafter provided.

 

 

(b)          All Evaluation Material shall be used or duplicated by Purchaser only for purposes of evaluating a possible purchase of the Premises by Purchaser. Purchaser agrees to keep all Evaluation Material (other than information which is a matter of public record or is provided in other sources readily available to the public other than as a result of disclosure thereof by Purchaser or Related Parties) strictly confidential; provided, however, that the Evaluation Material may be disclosed to the directors, officers, employees and partners of Purchaser, and to Purchaser's lender, attorneys, accounting firm and other consultants (all of whom are collectively referred to as “Related Parties”) who need to know or have reason to know such information for the purpose of evaluating a possible purchase of the Premises. In addition, Purchaser shall have the right to disclose the Evaluation Material or other information regarding this Contract to the extent Purchaser is required to disclose the same pursuant to a court order or applicable laws (including making such public statements or filings as may be required under any regulations of the U.S. Securities and Exchange Commission applicable to Purchaser or its affiliates, but only to the extent required by any of the foregoing). The Related Parties shall be informed of the confidential nature of the Evaluation Material and shall be directed in writing to keep all such information in the strictest confidence and use such information only for the purpose of evaluating a possible purchase by Purchaser. Purchaser will promptly, upon request of Seller following the termination of this Contract, deliver to Seller all Evaluation Material furnished by Seller, whether furnished before or after the date hereof, without retaining copies thereof. Purchaser will direct Related Parties to whom Evaluation Material is made available not to make similar disclosures and any such disclosure shall be deemed made by and be the responsibility of Purchaser.

 

(c)          Prior to the Closing, Seller and Purchaser shall keep strictly confidential and shall cause the Related Parties to keep strictly confidential the provisions of this Contract and the transactions contemplated thereunder, except as otherwise set forth in this Contract. After the Closing, Seller and Purchaser shall not, and shall cause the Related Parties not to, make any public disclosures (except as otherwise set forth in Section 13.6(b)) and shall cause the Related Parties not to make any public disclosures regarding the material economic terms of this Contract or the material economic terms of the transactions accomplished at the Closing without the prior written consent of the other party.

 

(d)          In furtherance, and not in limitation, of the foregoing, in no event shall Purchaser disclose any Evaluation Material, drafts or provisions of this Contract or any of the transactions contemplated thereunder to the seller of the Best Buy Premises pursuant to the Best Buy Purchase Agreement or any agent or representative thereof. A violation of this Section 13.6(d) is deemed a material default under this Contract and shall entitle Seller to exercise its rights under Section 10.1.

 

(e)          The provisions of this Section 13.6 shall survive the Closing or termination of this Contract.

 

13.7        Survival and Merger. The acceptance of the Deed by Purchaser shall be deemed to be a full performance and discharge of every agreement and obligation on the part of the Seller to be performed pursuant to the provisions of this Contract, except those which are herein specifically stated to survive the Closing, and Seller shall have no further liability with respect to any such agreement or obligation of Seller.

 

 

13.8         Recording. Purchaser shall not record this Contract or any memorandum thereof and any such recording shall be null and void and shall constitute a default hereunder.

 

13.9         Successors and Assigns. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns, if any, but nothing contained herein shall be deemed a waiver of the provisions of Section 13.2 hereof.

 

13.10         Entire Agreement. This Contract and the Schedules and Exhibits annexed hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof, and all understandings and agreements heretofore or simultaneously had between the parties hereto are merged in and are contained in this Contract and said Schedules and Exhibits.

 

13.11         Waiver and Modifications. The provisions of this Contract may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the party against which any waiver, change, modification or discharge is sought.

 

13.12         Captions and Titles. The captions or section titles contained in this Contract and the Index, if any, are for convenience and reference only and shall not be deemed a part of the text of this Contract.

 

13.13         Construction. The terms “hereof,” “herein,” and “hereunder,” and words of similar import, shall be construed to refer to this Contract as a whole, and not to any particular article or provision, unless expressly so stated. All words or terms used in this Contract, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require.

 

13.14         Non-Business Days. If a party is required to perform an act or give a notice on a date that is a Saturday, Sunday or national holiday, the date such performance or notice is due shall be deemed to be the next Business Day.

 

13.15         Governing Law and Jurisdiction. This Contract is to be governed and construed in accordance with the laws of the State of South Carolina. Purchaser and Seller hereby submit to the jurisdiction of the State and United States District courts located within South Carolina in respect of any suit or other proceeding brought in connection with or arising out of this Contract. The provisions of this subsection shall survive the Closing or earlier termination of this Contract.

 

13.16         Counterparts. This Contract may be executed in two or more counterparts and each of such counterparts, for all purposes, shall be deemed to be an original but all of such counterparts together shall constitute but one and the same instrument, binding upon all parties hereto, notwithstanding that all of such parties may not have executed the same counterpart.

 

13.17         No Third Party Benefits. This Contract is made for the sole benefit of Seller and Purchaser and their respective successors and assigns (subject to Section 13.2 above) and no other person shall have any right, remedy or legal interest of any kind by reason of this Contract.

 

 

13.18         Submission not an Offer. The submission of this Contract to any party by Seller shall not be construed as an offer, nor shall Purchaser have any rights with respect thereto, unless and until Seller shall execute a copy of this Contract and deliver the same to Purchaser.

 

13.19         Severability. If any provision of this Contract is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination will not affect the remaining provisions of this Contract, all of which will remain in full force and effect.

 

13.20         Insurance. Purchaser acknowledges that Seller’s insurance policies will not be transferred to Purchaser and that such insurance policies will in no way inure to the benefit of Purchaser.

 

13.21         Cooperation with Purchaser’s Auditors and SEC Filing Requirements. Seller agrees to reasonably cooperate with Purchaser after Closing in connection with Purchaser’s preparation and delivery of an audit letter and credit statements required by SEC Regulation SX3-14, including making Seller’s non-confidential books and records relating to the Premises available to Purchaser for inspection, copying and audit by Purchaser’s representatives at Purchaser’s expense, provided (i) Seller shall have no obligation to execute any document or provide any indemnity to Purchaser or any other party in connection with the preparation and delivery of such audit letter and credit statements or otherwise in connection with its cooperation under this Paragraph, (ii) Seller shall incur no cost (other than de minimis) or liability in connection with its cooperation under this Paragraph and (iii) Seller shall have no obligation to prepare any new reports, books, records or documentation of any kind in connection with its cooperation under this Paragraph.  The first sentence of this Section 13.21 shall survive Closing for six (6) months.  Purchaser hereby releases and agrees to indemnify, defend and hold Seller, its affiliates, agents, employees, and partners, harmless from and against any claims, liability, expenses (including without limitation reasonable attorneys fees), losses and damages arising out of Seller’s cooperation under this Section 13.21 or any information provided by Seller pursuant to this Section 13.21, except to the extent any such claims, liability, expenses, losses and damages are due to Seller’s commission of fraud in connection with its cooperation under this Section 13.21.  The indemnity obligations of Purchaser to Seller under this Section 13.21 shall survive the termination of this Contract for any reason, and this indemnity obligation of Purchaser shall survive the closing of this transaction.

 

 

13.22         Proposed Tax Free Exchange. Purchaser acknowledges that Seller may desire to exchange its interest in the Premises for one or more real properties of like-kind acceptable to Seller in a transaction that would qualify under Section 1031 of the Internal Revenue Code for non-recognition treatment (the "Exchange"). Such Exchange may take the form of a “forward exchange” or a “reverse exchange,” as such “reverse exchange” is permitted pursuant to Internal Revenue Service Revenue Procedure 2000-37. At Seller’s request, Purchaser shall execute such documents (in forms reasonably acceptable to Purchaser) and take such other action as may reasonably be requested for the purpose of the Exchange. Such cooperation by Purchaser shall not entail any additional expense (other than de minimus) or liability to Purchaser beyond its existing obligations under this Contract and Purchaser will not be required to take title to or contract for the purchase of any other property, and in no event shall Seller’s obligations or Purchaser’s rights under this Contract be subject to or conditioned upon the efficacy of any such Exchange. Seller agrees to indemnify and hold Purchaser harmless from and against any claims, damages, liabilities, costs and expenses (including reasonable attorney's fees and costs) arising from Purchaser’s performance under this Section 13.22. The provisions of this Section 13.22 shall survive the Closing.

 

[SIGNATURE PAGE TO FOLLOW]

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Contract the day and year first above written.

 

I.D. No: 27 ###-###-####		DRA-RCG NORTH CHARLESTON SPE LLC
		a Delaware limited liability company
		By:	DRA-RCG North Charleston LLC, a
			Delaware limited liability company, its sole member

 

		By:	/s/ Jean Marie Apruzzese
			Name: Jean Marie Apruzzese
			Title: Vice President

 

I.D. No.: 27 ###-###-####		AMERICAN REALTY CAPITAL IV, LLC,
		a Delaware limited liability company
		By:	/s/ Edward M. Weil, Jr.
			Name: Edward M. Weil, Jr.
			Title: President

 

As to Section 4:
Fidelity National Title Insurance Company, Escrowee
/s/ Angela E. Haibrough

 

Signature Page to Contract of Sale – Northwoods Marketplace

 

 

SCHEDULE A-1

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

DESCRIPTION OF NORTHWOODS PROPERTY

 

All that certain piece, parcel or tract of land situate, lying and being in the County of Charleston, State of South Carolina and being designated as Parcel A and Parcel B, together with Grantor’s right, title and interest in and to the fifty (50) foot private road, all as shown on that certain plat of survey entitled “Plat of the Subdivision and Abandonment of Property Lines to Create Northwoods Market Place Parcels A Through F & A Private Right-of-Way Owned by Northvest Associates, Limited Partnership”, prepared by SouthStar Surveying, Inc., stamped by F. Elliotte Quinn, III, SCRLS No. 10292, dated March 3, 1998, last revised April 2, 1998, recorded in Plat Book EC at Page 415 in the Register of Deeds for Charleston County, South Carolina.

 

Together with Grantor’s right, title and interest in, to and under that certain Declaration of Easements, Covenants, and Restrictions for Northwoods Marketplace, dated April 3, 1998, and recorded in Book K-300 at Page 275, Charleston County Records.

 

 

SCHEDULE A-2

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

DESCRIPTION OF BEST BUY PROPERTY

 

That certain real property located in the City of North Charleston, County of Charleston, State of North Carolina, having a street address of 7612 River Avenue, more particularly described as follows:

 

Parcel C of Northwoods Market Place, City of North Charleston, Charleston County, South Carolina, according to the Plat of Subdivision and Abandonment of Property Lines To Create Northwoods Market Place, Parcels A through F & A Private Right-of-Way, dated March 3, 1998, recorded in Plat Book EC, page 415, in the RMC Office for Charleston County, South Carolina.

 

TOGETHER WITH the rights and easements granted in that certain Declaration of Easements, Covenants and Restrictions for Northwoods Marketplace dated April 3, 1998, recorded on or about said date in the RMC office for Charleston County, South Carolina.

 

This being the same property as conveyed to the within named, Best Buy Stores, L.P., by deed from Northwest Associates, Limited Partnership dated April 2, 1998, recorded April 6, 1998 in Book 300, on Page 671 in the Register of Deed for Charleston County, South Carolina.

 

 

SCHEDULE B

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

INTENTIONALLY DELETED

 

 

SCHEDULE C

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

SPACE LEASES

 

As of _______ 20___

 

Tenant		Start		Expire		Annual Base Rent*				Security Deposit				Notes
Barnes & Noble Booksellers, Inc.		11/30/98		02/28/19		$	300,552.00			$	-
Lane Bryant #4780, LLC		08/31/12		01/31/23		$	108,380.04			$	-
America's Home Place, Inc.		11/30/99		03/31/24		$	94,023.60			$	3,709.75
Petsmart, Inc.		03/14/99		11/30/23		$	240,566.52			$	-
Casual Male Retail Store, LLC		11/11/13		11/30/23		$	128,000.04			$	-
Michaels Stores, Inc.		08/31/98		02/28/18		$	268,260.48			$	-
Guitar Center Stores, Inc.		06/06/05		07/31/15		$	164,912.04			$	-
Big Lots Stores, Inc.		10/28/10		01/31/18		$	221,000.04			$	-
Old Navy, LLC		09/20/99		09/30/16		$	121,892.04			$	-
Shoe Carnival, Inc.		08/06/99		01/31/20		$	120,000.00			$	-
Kirkland's Stores, Inc.		07/30/10		01/31/21		$	104,640.00			$	-
Catherines, Inc.		11/27/99		01/31/17		$	50,400.00			$	-
Kyoto Express-North Charleston, Inc. (assigned to Kyoto Fantasy Express and Associates, LLC)		01/30/00		01/31/20		$	49,161.00			$	2,975.00
Carolina Tree House, Inc.		05/08/11		05/31/16		$	58,800.00			$	4,316.67

 

 

Tenant		Start		Expire		Annual Base Rent*				Security Deposit				Notes
GameStop, Inc.		01/27/00		01/31/15		$	29,400.00			$	-
General Nutrition Corporation		12/10/99		12/31/17		$	33,600.00			$	-
Luxurious Nails, Inc.		12/01/07		12/31/17		$	23,100.00			$	4,491.31
Cashwell Financial of SC LLC		09/24/11		09/30/16		$	21,630.00			$	2,071.13
Brian C. Coke		02/27/00		02/29/16		$	25,200.00			$	-
Pramod Patel and Vedit Patel (assigned to Patel's Barbecue, LLC)		11/15/13		02/29/24		$	53,199.96			$	5,212.66
Ji Sheng Fang		09/07/12		09/30/17		$	27,999.96			$	2,794.17
Los Reyes Mexican Restaurant, Inc.		02/01/04		01/31/19		$	94,898.88			$	6,000.00			includes patio fee per license agreement
Best Buy Co., Inc.		11/25/98		11/25/18		$	433,564.08			$	-

 

*Annual Base Rent does not consider any contractual free rent

 

 

SCHEDULE d

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

Service contracts

 

Southern Sweeping	Parking Lot Sweeping
Ellis Creek Construction	Landscaping
Tyco Integrated Security	Alarm Monitoring

 

 

SCHEDULE E

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

PENDING LITIGATION

 

None.

 

 

SCHEDULE F

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

LEASING COMMISSION AGREEMENTS

and construction contracts

 

None.

 

 

EXHIBIT 1

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF SPECIAL WARRANTY DEED TO THE PREMISES

 

SPECIAL WARRANTY DEED – SOUTH CAROLINA

 

GRANTEE ADDRESS:	[_________________________],
	a [________________________]
	[_________________________]
	[_________________________]

 

STATE OF SOUTH CAROLINA	)
	)	TITLE TO REAL ESTATE
COUNTY OF ________________	)	(Limited Warranty)

 

THIS DEED, executed as of the ___ day of __________, 201_, by DRA-RCG NORTH CHARLESTON SPE LLC, a Delaware limited liability company, (hereinafter referred to as the “Grantor”) to [______________________], a [_________________] (hereinafter referred to as the “Grantee”)

 

IN CONSIDERATION of the sum of [_______________________] DOLLARS ($__________) the receipt and sufficiency of which are acknowledged by Grantor, Grantor has granted, bargained, sold and released, and by this Deed grants, bargains, sells and releases, subject to the easements, restrictions, covenants, reservations and conditions referenced specifically or generally below, to Grantee, its successors and assigns, the following real property:

 

SEE ATTACHED EXHIBIT A FOR PROPERTY DESCRIPTION

 

THIS conveyance is made subject to all covenants, restrictions, easements, rights-of-way, and other matters, affecting the within described property and set forth on Exhibit B attached hereto.

 

TOGETHER with all and singular rights, members, hereditaments and appurtenances belonging or in any way incident or appertaining thereto;

 

 

TO HAVE AND TO HOLD all and singular said property unto Grantee, its successors and assigns forever subject to the easements, restrictions, covenants, reservations and conditions referenced specifically or generally above.

 

SUBJECT TO the easements, restrictions, covenants, reservations and conditions referenced specifically or generally above, Grantor covenants to warrant and forever defend all and singular said property unto Grantee, its successors and assigns, from and against Grantor and its successors and assigns.

 

[SIGNATURES ON THE FOLLOWING PAGE]

 

 

WITNESS the grantor’s hand and seal this _______ day of __________________, 201_.

 

 

SIGNED, SEALED AND DELIVERED	SELLER ENTITY:
IN THE PRESENCE OF:
	DRA-RCG NORTH CHARLESTON SPE LLC, a Delaware limited liability company

 

		By:	DRA-RCG North Charleston LLC,
Witness			a Delaware limited liability
			company, its sole member

 

		By:
IN THE PRESENCE OF:			Name:
			Title:

 

Witness

 

 

 

 

STATE OF NEW YORK	)
	: ss.:
COUNTY OF NEW YORK	)

 

On _______________, before me, the undersigned, a Notary Public in and for said State, personally appeared __________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.

 

	Notary Public

 

 

EXHIBIT A

 

LEGAL DESCRIPTION

 

[NORTHWOODS PROPERTY AND BEST BUY PROPERTY LEGAL DESCRIPTIONS TO BE INSERTED]

 

 

EXHIBIT B

PERMITTED EXCEPTIONS

 

[TO BE INSERTED FROM UPDATED TITLE]

 

 

EXHIBIT 2

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF ASSIGNMENT OF THE SPACE LEASES

 

KNOW ALL MEN that DRA-RCG NORTH CHARLESTON SPE LLC (“Assignor”), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from [_____________] (“Assignee”), does hereby assign, transfer and deliver unto Assignee, the entire landlord’s interest in and to those certain leases for space (the “Leases”) at the premises known as Northwoods Marketplace, located at 7620 Rivers Avenue, North Charleston, Charleston County, South Carolina (the “Premises”) with the tenants listed on Schedule A annexed hereto including any pre-paid rents, security and other deposits and, to the extent transferable or assignable, letters of credit and guarantees held by Assignor as of the date hereof, subject to the rights Assignor has retained under Section 9.4 of that certain Contract of Sale (the “Contract”) dated [__________], between Assignor and Assignee for the Premises.

 

TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of the Leases and subject as aforesaid.

 

AND Assignee does hereby acknowledge receipt of the Leases and security deposits so delivered, and does hereby (a) accept the within assignment and (b) assume the performance of all the terms, covenants and conditions of the Leases on the part of the lessor which are to be performed or which arise from and after the date hereof.

 

This assignment is made without warranty or representation by Assignor and without recourse to Assignor in any manner whatsoever, express or implied, except as may be set forth in the Contract.

 

This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns, and shall be governed by the laws of the State of South Carolina. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument in writing signed by the parties hereto.

 

None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this [_____] day of [___________].

 

	ASSIGNOR:
	DRA-RCG NORTH CHARLESTON SPE LLC
	a Delaware limited liability company
	By:	DRA-RCG North Charleston LLC, a Delaware limited liability company, its sole member
		By:
			Name:
			Title:
	ASSIGNEE:
	[INSERT SIGNATURE BLOCK]

 

 

Schedule a

 

Leases

 

 

EXHIBIT 3

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF ASSIGNMENT OF SERVICE CONTRACTS

 

KNOW ALL MEN that DRA-RCG NORTH CHARLESTON SPE LLC (“Assignor”), in consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from [______________________] (“Assignee”), does hereby assign, transfer and deliver onto Assignee, all of its right, title and interest in and to those certain service contracts relating to the operation or maintenance of the premises known as Northwoods Marketplace, located at 7620 Rivers Avenue, North Charleston, Charleston County, South Carolina, which service contracts are listed in Schedule A annexed hereto (the “Contracts”).

 

TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions contained in the Contracts and subject aforesaid.

 

AND Assignee does hereby acknowledge receipt of the Contracts so delivered, and does hereby (a) accept the within assignment and (b) assume the performance of all the terms, covenants and conditions of the Contracts on the Assignor's part to be performed thereunder from and after the date hereof.

 

This assignment is made without warranty or representation by Assignor and without recourse to Assignor in any manner whatsoever, express or implied, except as may be set forth in that certain Contract of Sale between Assignor and American Realty Capital IV, LLC, as assigned to Assignee.

 

This assignment and assumption agreement shall inure to the benefit of Assignee and Assignor and their respective successors and assigns, and shall be governed by the laws of the State of South Carolina. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument in writing signed by the parties hereto.

 

None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this _____ day of _______________.

 

	ASSIGNOR
	DRA-RCG NORTH CHARLESTON SPE LLC,
	a Delaware limited liability company
	By:	DRA-RCG North Charleston LLC, a Delaware limited liability company, its sole member
		By:
			Name:
			Title:
	ASSIGNEE:
	[INSERT SIGNATURE BLOCK]

 

 

Schedule a

 

Service Contracts

 

 

EXHIBIT 4

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF ASSIGNMENT OF LICENSES, PERMITS,

 

GUARANTEES AND WARRANTIES

 

KNOW ALL MEN that DRA-RCG NORTH CHARLESTON SPE LLC (“Assignor”), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, receipt whereof is hereby acknowledged from [___________________] (“Assignee”), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to any and all existing licenses, permits, approvals, and land use entitlements presently held by Assignor with respect to, or otherwise benefitting, the premises known as Northwoods Marketplace, located at 7620 Rivers Avenue, North Charleston, Charleston County, South Carolina (the “Premises”) and any and all guarantees and warranties in connection with any work or services performed or equipment installed in and improvements erected on the Premises (collectively, the “Licenses and Guarantees”).

 

TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of the Licenses and Guarantees.

 

This assignment is made without warranty or representation by the Assignor, including, without limitation, any warranty or representation that Assignor has any right in the Licenses and Guarantees or that the Licenses and Guarantees are transferable, and without recourse to Assignor in any manner whatsoever.

 

This assignment agreement shall inure to the benefit of Assignee and its successors and assigns and shall be governed by the laws of the State of South Carolina. This assignment agreement may not be modified, altered or amended, or its terms waived, except by an instrument in writing signed by the parties hereto.

 

None of the provisions of this instrument are intended to be, nor shall they be construed to be, for the benefit of any third party.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

IN WITNESS WHEREOF, Assignor has executed this agreement this _____ day of ____________

 

	ASSIGNOR
	DRA-RCG NORTH CHARLESTON SPE LLC,
	a Delaware limited liability company
	By:	DRA-RCG North Charleston LLC, a Delaware limited liability company, its sole member
		By:
			Name:
			Title:

 

 

EXHIBIT 5

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

FORM OF NOTICE TO TENANTS

OF

NORTHWOODS MARKETPLACE

 

(THE “PREMISES”)

 

Dear Tenant:

 

Please be advised that the Premises have this day been conveyed and your lease (the “Lease”) has been assigned by DRA-RCG NORTH CHARLESTON SPE LLC (“Prior Owner”), to [_____________________] (“New Owner").

 

New Owner has assumed all of the obligations under your Lease accruing from and after this day, including any obligations to return your security deposit in accordance with the terms of your Lease. Notwithstanding anything contained herein to the contrary, Prior Owner retains the right to collect any delinquent rents pertaining to the period prior to ___________[insert closing date] as well as the right to collect rent and the right and obligation to reconcile operating expenses (and percentage rent, if any) under your Lease for the 2013 calendar year and prior periods.

 

Until further notice, all correspondence and notices shall be directed, and all rents, additional rents and other charges under the Lease shall be paid to New Owner at the addresses attached hereto as Exhibit A.

 

You are hereby requested to have the insurance policies required under the Lease amended to add New Owner, as additional insured thereunder, and have the certificate of insurance indicating such amendment forwarded to the New Owner.

 

Your security deposit, if any, under the Lease has been transferred to New Owner.

 

Dated: __________.

 

 

 

	Very truly yours,
PRIOR OWNER:	DRA-RCG NORTH CHARLESTON SPE LLC,
	a Delaware limited liability company
	By:	DRA-RCG North Charleston LLC, a Delaware
		limited liability company, its sole member
		By:
			Name:
			Title:

 

NEW OWNER:

 

 

EXHIBIT A

 

Addresses

 

For All Notices:

[_________________________]

[_________________________]

[_________________________]

[_________________________]

Attention: [_______________]

Facsimile: (___) ___-____

 

With a copy to:

[_________________________] c/o [Property Manager] [_________________________] [_________________________] [_________________________] Attention: Property Manager – [_______________] Telephone: (___) ___-____ Telecopy: (___) ___-____

 

Payment Address:

[___________________________] c/o [________________________] [___________________________] [___________________________]

 

 

EXHIBIT 6

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF NOTICE TO CONTRACTORS

UNDER SERVICE CONTRACTS

OF

NORTHWOODS MARKETPLACE

 

(THE “PREMISES”)

 

Dear Contractor:

 

Please be advised that the Premises have this day been conveyed and your service contract has been assigned from DRA-RCG NORTH CHARLESTON SPE LLC (“Prior Owner”), to [________________] ("New Owner").

 

Until further notice, all correspondence, notices and invoices shall be directed to the New Owner at the following address:

 

[_________________]

[_________________]

[_________________]

[_________________]

Attention:

[________________]

Facsimile:

(___) ___-____

 

Dated: _________

 

 

	Very truly yours,
PRIOR OWNER:	DRA-RCG NORTH CHARLESTON SPE
	LLC, a Delaware limited liability company
	By:	DRA-RCG North Charleston
		LLC, a Delaware limited liability
		company, its sole member
		By:
			Name:
			Title:

 

NEW OWNER:     [_______________________]

 

 

EXHIBIT 7

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

TENANT ESTOPPEL CERTIFICATE

 

The undersigned, ___________________________________, is the Tenant of a portion of the real property commonly known as Northwoods Marketplace, located at 7620 Rivers Avenue, North Charleston, Charleston County, South Carolina, (the “Property”), and hereby certifies to DRA-RCG North Charleston SPE LLC, a Delaware limited liability company (“Landlord”), to American Realty Capital IV, LLC, a Delaware limited liability company, ARC NWNCHSC001, LLC or any assignee or nominee (“Buyer”), and to any lender (“Lender”) making a loan to Buyer to be secured, in whole or in part, by the Property, the following:

 

1.        That there is presently in full force and effect a lease (as modified, assigned, supplemented and/or amended as set forth in paragraph 2 below, the “Lease”) dated as of __________, 20___ between the undersigned and ____________________, covering approximately _____ square feet of the Property (the “Leased Premises”).

 

2.        That the Lease has not been modified, assigned, supplemented or amended except by: ___________________________________.

 

3.        That the Lease represents the entire agreement between Landlord and the undersigned with respect to the Leased Premises.

 

4.        That the commencement date under the Lease was __________, _____, the termination date of said Lease is __________, 20___.

 

5.        That the present minimum monthly rent which the undersigned is paying under the Lease is $__________, and all rent has been paid through __________, 2014. Tenant is also obligated to pay common area maintenance expenses, insurance premiums and taxes under the Lease, and all such sums have been paid through ______________, 2014, except as follows: ____________________. To Tenant's knowledge, Tenant is not owed any sums for reconciliations for calendar year 2013 or any prior year.

 

6.        That the security deposit held by Landlord under the terms of the Lease is $__________ and Landlord holds no other deposit from Tenant for security or otherwise.

 

7.        That the undersigned has accepted possession of the Leased Premises and that, to the best of the undersigned’s knowledge, any improvements required to be made by Landlord to the Leased Premises by the terms of the Lease and all other conditions of the Lease to be satisfied by Landlord have been completed or satisfied to the satisfaction of the undersigned.

 

 

8.        That, to the best of the undersigned’s knowledge, the undersigned, as of the date set forth below, has no right or claim of deduction, charge, lien or offset against Landlord under the Lease or otherwise against the rents or other charges due or to become due pursuant to the terms of said Lease.

 

9.        That, to the best of the undersigned’s knowledge, Landlord is not in default or breach of the Lease, nor has Landlord committed an act or failed to act in such a manner, which, with the passage of time or notice or both, would result in a default or breach of the Lease by Landlord.

 

10.        That, to the best of the undersigned’s knowledge, the undersigned is not in default or in breach of the Lease, nor has the undersigned committed an act or failed to act in such a manner which, with the passage of time or notice or both, would result in a default or breach of the Lease by the undersigned.

 

11.        The undersigned hereby acknowledges that Buyer, or its nominee, intends to purchase the Property, that Landlord will assign its interest in the Lease to Buyer, or its nominee, in connection with such purchase, and that Buyer, or its nominee, and its lender is relying upon the representations contained herein in making such purchase.

 

12.        That the undersigned is not the subject of any pending bankruptcy, insolvency, debtor’s relief, reorganization, receivership, or similar proceedings, nor the subject of a ruling with respect to any of the foregoing.

 

This Certificate shall be binding upon and inure to the benefit of the undersigned, Landlord, Buyer and Lender and their respective successors and assigns.

 

Dated: __________, 2014.

 

			,
	a

 

	By:
	Name:
	Title:

  

 

EXHIBIT 8

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF bill of sale

 

DRA-RCG NORTH CHARLESTON SPE LLC (“Grantor”) for good and valuable consideration, the receipt and the sufficiency of which is hereby acknowledged, by these presents, does, without representation by, or warranty or recourse against, Grantor, convey, assign, transfer, sell, deliver and set over unto [__________________], its successors and assigns (“Grantee”), all of Grantor's right, title and interest in and to the personal property (including both tangible and intangible property) transferred pursuant to that certain Contract of Sale between Grantor and [______________] dated ______________ used in connection with the operation of the property known as Northwoods Marketplace, located at 7620 Rivers Avenue, North Charleston, Charleston County, South Carolina. Without limiting the generality of the foregoing, Grantor hereby assigns and conveys to Grantee all right, title and interest of Grantor in and to the name "Northwoods Marketplace."

 

IN WITNESS WHEREOF, Grantor has caused this Bill of Sale to be signed as of this _____ day of ______________.

 

	DRA-RCG NORTH CHARLESTON SPE
	LLC, a Delaware limited liability company
	By:	DRA-RCG North Charleston LLC,
		a Delaware limited liability company,
		its sole member
		By:
			Name:
			Title:

 

 

EXHIBIT 9

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

executed access agreement

 

 

ACCESS AGREEMENT

 

THIS AGREEMENT (this “Agreement”), dated the 3^rd day of June, is made by DRA-RCG NORTH CHARLESTON SPE LLC, a Delaware limited liability company, having an address at c/o DRA Advisors LLC, 220 East 42nd Street, New York, New York 10017 (“Owner”), and AMERICAN REALTY CAPITAL IV, LLC, a Delaware limited liability company, having an address at 405 Park Avenue, 15^th Floor, New York, New York 10022 (“Purchaser”).

 

WITNESSETH:

 

WHEREAS, Owner and Purchaser are currently negotiating a contract of sale (the “Contract”) for the purchase and sale of the property known as Northwoods Marketplace, located at 7620 Rivers Avenue, North Charleston, Charleston County, South Carolina (the “Property”) and the property known as Best Buy - North Charleston, located at 7612 Rivers Avenue, North Charleston, Charleston County, South Carolina (the “Best Buy Property”);

 

WHEREAS, Purchaser wishes to (i) conduct non-intrusive environmental and engineering inspections at the Property, (ii) interview tenants at the Property and (iii) have access to non-confidential records of Owner related solely to the Property (collectively, the “Inspections”); and

 

WHEREAS, Owner has agreed to allow Purchaser to conduct Inspections, subject to Purchaser entering into this Agreement and complying with the conditions set forth in this Agreement.

 

Now, Therefore, in consideration of the covenants, promises and undertakings set forth herein, and for good and valuable consideration, receipt of which is hereby acknowledged, Owner and Purchaser hereby agree as follows:

 

Owner agrees to allow Purchaser, or Purchaser’s agents, contractors or representatives, to access the Property for the limited purpose of conducting the Inspections, subject to the following terms and conditions:

 

1.      The Inspections shall only occur during business hours at reasonable times on reasonable advance notice (at least one (1) Business Day’s prior written notice) to Owner, subject to the rights of the space tenants at the Property and the terms of this Agreement.

 

2.      Prior to conducting the Inspections, Purchaser shall submit to Owner the certificates of insurance required pursuant to Exhibit A annexed hereto and neither Purchaser nor its agents, contractors or representatives shall be permitted to conduct the Inspections unless and until Owner receives such certificates.

 

 

3.      Purchaser shall obtain the written agreement of each agent, contractor or consultant hired to perform any Inspections on Purchaser’s behalf (either in the contract with such agent, contractor or consultant or in a separate agreement) substantially as follows:

 

[Name of agent, consultant or contractor] hereby waives any and all rights of recovery against [Name of Seller], its agents and employees, and their insurers, for, or arising out of, damage to or destruction of any property, or death of or injury to any person, to the extent that [Name of agent, consultant or contractor]’s liability insurance policies then in force or the policies required to be carried by [Name of agent, consultant or contractor] pursuant hereto, whichever provides broader coverage, insure against such damage, destruction, death or injury.

 

(A) Prior to conducting the Inspections, Purchaser shall submit to Owner a copy of such written agreement of each agent, consultant or contractor hired to perform any Inspections on Purchaser’s behalf, and no such agent, consultant or contractor shall be permitted to conduct any Inspections unless and until Owner confirms that such party has entered into an agreement as provided above.

 

4.      Purchaser may not conduct any intrusive Inspections or borings without Owner’s prior written consent, which consent may be withheld, granted or granted upon conditions in Owner’s sole and absolute discretion.

 

5.      Owner shall have the option to have an agent or employees accompany Purchaser at all times during its investigation or Inspection of the Property, provided that the unreasonable unavailability of a representative or employee shall not be a cause for a delay in any investigation or inspection of the Property.

 

6.      Intentionally deleted.

 

7.      If Purchaser fails to purchase the Property, all third party prepared, non-confidential, non-proprietary reports (whether such reports are final or in draft form) shall become the property of Owner. Purchaser agrees to cooperate with Owner and the preparer of the reports to have such reports assigned to Owner or its successor buyer(s). This Section 7 shall survive the termination of this Agreement.

 

8.      Any and all work with respect to the Inspections shall be at Purchaser’s sole cost and expense and Purchaser agrees to keep the Property free and clear of any liens that may arise as a result thereof.

 

9.      All activities undertaken by Purchaser in connection with the Inspections shall fully comply with applicable laws and regulations.

 

 

10.      Purchaser shall promptly restore at its sole cost and expense any damage arising in connection with the Inspections. This Section 10 shall survive the termination of this Agreement.

 

11.      Purchaser agrees to keep confidential and not to disseminate to any third party (i.e., any person or entity other than Purchaser’s directors, officers, employees, partners, lender, attorneys, accounting firm and other consultants) and to cause its agents or representatives to keep confidential and not disseminate to any third party, any information Purchaser (and/or its agents or representatives) obtains as a result of the Inspections, except to the extent disclosure is required by a court order or applicable law. This Section 11 shall survive the termination of this Agreement.

 

12.      Purchaser shall indemnify and hold Owner and Owner’s property manager harmless from and against any and all obligations, lawsuits, injuries, losses, damages, claims, liens, costs, expenses, demands, liabilities, judgments, penalties, investigation costs, including attorneys’ fees and costs, to the extent incurred in connection with, arising directly or indirectly out of, or in any way connected with (i) the Inspections, (ii) any act or omission of Purchaser, its employees, agents, consultants, contractors or anyone acting by, through, under, or at the direction, of the foregoing, in connection with this Agreement or (iii) Purchaser’s breach of any of the terms of this Agreement. Without limiting the generality of the foregoing indemnity, Purchaser shall (i) keep the Property free and clear of any mechanics’ or other lien which may be recorded or threatened against the Property by any party providing labor, materials or services to Purchaser or its agents or representatives in connection with the Inspections and (ii) not file or cause to be filed any application or make any request (other than inquiries into public records) with any governmental or quasi-governmental agency which would or could lead to a hearing before any governmental or quasi-governmental agency or which would or could lead to a note, notice or violation of law or municipal ordinance, order or requirement imposed by such an agency, at the Property or any change in zoning, parcelization, licenses, permits or other entitlements or any investigation or restriction on the use of the Property, or any part thereof. This Section 12 shall survive the termination of this Agreement.

 

13.      Owner, but not any property manager of Owner, shall be solely authorized to furnish Purchaser with all non-confidential documents reasonably requested by Purchaser in connection with the Inspections which are then in the possession of Owner or Owner’s property manager. All documents furnished to Purchaser pursuant to this Agreement are provided for information only, and without representation or warranty of any nature, and Purchaser shall be solely responsible for verifying the information contained therein. Representations of Owner, if any, shall be solely as set forth in the Contract, if applicable.

 

14.      All notices hereunder to Owner or Purchaser shall be sent by certified or registered mail, return receipt requested, or may be sent by Federal Express or other overnight courier which obtains a signature upon delivery or by fax transmission:

 

 

OWNER:

DRA-RCG North Charleston SPE LLC

c/o DRA Advisors LLC

220 East 42^nd Street, 27^th Floor

New York, New York 10017

Attention: Dean Sickles

Facsimile: (212) 697-7403

 

with a copy to:

 

Blank Rome LLP

405 Lexington Avenue

New York, New York 10174

Attention: Martin Luskin, Esq. with a concurrent copy to Samantha Wallack, Esq. (Facsimile: (917) 332-3804)

Facsimile: (917) 332-3714

 

PURCHASER:

 

American Realty Capital IV, LLC

405 Park Avenue, 15^th Floor

New York, New York 10022

Attention: Jesse Galloway and Jeremy Eichel

Facsimile: (212) 421-5799

 

with a copy to:

 

Retail Centers of America, Inc.

2000 McKinney Avenue, Suite 1000

Dallas, Texas 75201

Attention: Chris Cotten and Stephen G. Seitz

Facsimile: (214) 740-3313

 

with a copy to:

 

Condon Thornton Sladek Harrell PLLC

8080 Park Lane, Suite 700

Dallas, Texas 75231

Attention: William L. Sladek, Esq.

Facsimile: (214) 691-6311

 

(A) Notices shall be deemed served three (3) days after mailing, and in the case of overnight courier, on the date actually delivered to the intended recipient, except for notice(s) which advise the other party of a change of address of the party sending such notice or of such party's attorney, which notice shall not be deemed served until actually received by the party to whom such notice is addressed or delivery is refused by such party. Notices on behalf of the respective parties may be given by their attorneys and such notices shall have the same effect as if in fact subscribed by the party on whose behalf it is given. Notwithstanding the foregoing provisions of this Section notices served by facsimile shall be deemed given upon receipt if received at or prior to 5:00 P.M. Eastern Time on a Business Day and on the next Business Day if received after 5:00 P.M. Eastern Time on a Business Day or at any time on a non-Business Day.

 

 

15.      Nothing in this Agreement shall be deemed to impose an obligation on Owner to sell or enter into a contract of sale to sell the Property to Purchaser.

 

16.      The defined term “Owner” is used herein for purposes of convenience, and Purchaser hereby acknowledges that Owner does not currently own the Best Buy Property and that this Agreement relates only to the Property and does not relate to the Best Buy Property.

 

17.      This Agreement may be executed in two or more counterparts and each of such counterparts, for all purposes, shall be deemed to be an original but all such counterparts together shall constitute but one and the same instrument, binding upon all parties hereto, notwithstanding that all of such parties may not have executed the same counterpart. Facsimile signatures shall be binding.

 

18.      Owner’s remedies set forth under this Agreement, including, without limitation, Section 12, shall in no event be limited by any liquidated damage provision set forth in any other contract or agreement to which Owner is or will be a party and which is or will be binding on Purchaser or an affiliate thereof. This Section 18 shall survive the termination of this Agreement.

 

19.      Except for those provisions expressly stated to survive the termination of this Agreement, this Agreement shall terminate on the earlier to occur of (a) the closing under the Contract, (b) the date on which the Contract expires, is terminated or is deemed terminated and (c) the date on which Contract negotiations terminate pursuant to notice sent by Owner to Purchaser, provided that Owner may at any time prior to the execution of the Contract, terminate Purchaser’s access to the Property for Inspections or otherwise in Owner’s sole and absolute discretion for any reason or for no reason whatsoever.

 

[signatures on the following page]

 

 

In Witness hereof, the parties hereto have duly executed this Agreement the day and year first above written.

 

Owner:	DRA-RCG NORTH CHARLESTON SPE LLC,
	a Delaware limited liability company
	By:	DRA-RCG North Charleston LLC, a
		Delaware limited liability company, its sole member
		By:	/s/ Paul McEvoy
			Name: Paul McEvoy
			Title: Vice President

 

Date signed:

June 6, 2014

 

PURCHASER:	AMERICAN REALTY CAPITAL IV, LLC,
	a Delaware limited liability company
	By:	/s/ Edward M. Weil, Jr.
		Name: Edward M. Weil, Jr.
		Title: President

 

Date signed:

June 5, 2014

 

 

Exhibit A

 

Insurance Requirements

 

Prior to performing Inspections at the Property, Purchaser and Purchaser’s consultant and/or contractor and any subcontractor thereof (and other agent, contractor or consultant of Purchaser performing activities) shall have and maintain insurance coverage in form and substance reasonably acceptable to Owner complying with the requirements set forth below.

 

A.

Required Types of Insurance Coverage

 

1.

Workers’ Compensation and Employers’ Liability

 

(a)

Statutory Worker’s Compensation insurance as required by law.

 

(b)

Employers’ Liability insurance with limits of at least $1,000,000 per occurrence.

 

2.

General Liability Insurance

 

(a)

Commercial General Liability policy form on an occurrence basis including Premises/Operations Liability, Contractual Liability (which shall include coverage for, but shall not limit, Purchaser’s indemnification obligations hereunder), Independent Contractors Coverage and Products/Completed Operations Liability with the explosion, collapse and underground (XCU) exclusions eliminated.

 

(b)

Limits of Liability: Five Million Dollars ($5,000,000) combined single limit for Bodily Injury and Property Damage coverage. Limits of Liability may be provided under a Commercial General Liability and Umbrella Liability Policy, if desired.

 

B.

Additional Requirements

 

1.

Except where prohibited by law, all insurance policies shall contain provisions that the insurance companies waive the rights of recovery or subrogation against Owner, Owner’s agents and employees, and their insurers.

 

2.

Such insurance shall not be subject to cancellation except upon thirty (30) days’ prior written notice to Owner.

 

3.

All insurance required hereunder shall be with insurance companies which (i) are rated by Best’s Insurance Reports, (ii) have a rating of at least A-(VIII) and (iii) are licensed to do business in the state where the property is located. Prior to commencement of the performance of the Inspections, Purchaser shall deliver to Owner certificates of insurance evidencing the coverages required hereunder or such other evidence of compliance with the foregoing insurance requirements as is required by, and satisfactory and acceptable to, Owner.

 

 

4.

The following parties shall be named as additional insureds on ISO Form CG 20 26 under the Commercial General Liability, Automobile Liability (if any) and Umbrella Liability insurance policies required to be maintained by Purchaser and Purchaser’s consultant and/or any subcontractor thereof:

 

DRA-RCG North Charleston SPE LLC
c/o DRA Advisors LLC
220 East 42nd Street, 27th Floor
New York, New York 10017
Attention: Dean Sickles

 

All Commercial General Liability and Umbrella Liability policies maintained by Purchaser and Purchaser’s consultant and/or any subcontractor thereof shall contain a cross-liability provision and shall provide primary coverage as to Owner, and any other insurance available to Owner shall be noncontributing therewith.

 

 

EXHIBIT 10

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF TITLE CERTIFICATE

 

The undersigned, a Delaware limited liability company, hereby certifies to [______________], as agent for [______________] (the “Insurer”) the following:

 

1.          The undersigned is the owner (“Owner”) of certain property (the “Property”) situated in Charleston County, South Carolina, described in title commitment No. ________ (the "Title Commitment") issued by Insurer.

 

2.          The only tenants of the undersigned are tenants under the leases (the “Leases”) set forth on the rent roll annexed hereto as Exhibit A (or subleases thereunder).

 

3.          During the period of 120 days immediately preceding the date of this certification no improvements or alterations have been made (other than minor repairs) to the Property by or on behalf of Owner that have not been paid for (or if unpaid will be paid in the ordinary course of business) and that no claims against Owner of laborers or materialmen remain unpaid (or if unpaid will be paid in the ordinary course of business) for work performed by or on behalf of Owner and that no material incorporated into the Property by Owner is subject to a security interest (other than in connection with any mortgage described in the Title Commitment).

 

4.          No proceedings in bankruptcy or receivership have been instituted by or against Owner which are now pending, nor has the Owner made any assignment for the benefit of creditors which is in effect as to the Property.

 

5.          Owner agrees not to cause any lien or encumbrance to be filed against the Property between the date hereof and the earlier of (a) the date the documents creating the interest being insured pursuant to the Title Commitment have been filed of record and (b) three (3) days following the date hereof.

 

6.          This certification is made for the purpose of inducing Insurer to issue its title policy insuring the Property.

 

Dated this          day of _______, ______.

 

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

	DRA-RCG NORTH CHARLESTON SPE LLC,
	a Delaware limited liability company
	By:	DRA-RCG North Charleston LLC, a
		Delaware limited liability company, its sole member
		By:
			Name:
			Title:

 

 

EXHIBIT A

 

LIST OF LEASES

 

 

EXHIBIT 11

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

[Intentionally deleted]

 

 

EXHIBIT 12

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF ASSUMPTION AGREEMENT

 

KNOW ALL MEN that in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from DRA-RCG NORTH CHARLESTON SPE LLC (“Seller”), ____________________ (“Purchaser”) does hereby irrevocably assume all obligations of Seller to pay any: leasing commissions to MCM Real Estate, Inc. (“MCM Real Estate”) pursuant to paragraph 16 of that certain Leasing and Construction Management Agreement, dated as of January 24, 2011, by and between Seller, as owner, and MCM Real Estate, as leasing agent (the “Agreement”), with respect to any lease executed by the undersigned, or its successors or assigns, with an Active Prospect (as defined in the Agreement) following the date hereof. Seller shall be responsible for the payment of all leasing commissions due and payable to MCM Real Estate pursuant to the Agreement prior to the date hereof (the “Prior Commissions”), and Seller hereby agrees to indemnify and hold Purchaser harmless from and against all claims made by MCM Real Estate against Purchaser with respect to the Prior Commissions.

 

This assumption agreement may be relied upon by, and is made for the benefit of, Seller and MCM Real Estate, and shall inure to their respective successors and/or assigns, and shall be governed by the laws of the State of South Carolina. This Agreement may not be amended without the consent of Seller or MCM Real Estate.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

IN WITNESS WHEREOF, the undersigned has executed this agreement this _____ day of __________ 2014.

 

	[_________________________]
	By:
		Name:
		Title:

 

 

EXHIBIT 13

 

ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DRA-RCG NORTH CHARLESTON SPE LLC, AS SELLER
AND
AMERICAN REALTY CAPITAL IV, LLC, AS PURCHASER

 

FORM OF ASSIGNMENT AND ASSUMPTION OF LEASING COMMISSION
AGREEMENTS AND CONSTRUCTION CONTRACTS

 

KNOW ALL MEN that DRA-RCG NORTH CHARLESTON SPE LLC ("Assignor"), in consideration of Ten ($10.00) Dollars and other good and valuable consideration, received from ____________________ ("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its right, title and interest in and to those certain leasing commission agreements and construction contracts relating to the premises known as Northwoods Marketplace, located at 7620 Rivers Avenue, North Charleston, Charleston County, South Carolina, listed on Exhibit A annexed hereto (the “Agreements”).

 

TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, forever, from and after the date hereof, subject to the terms, covenants, conditions and provisions of the Leases and subject as aforesaid.

 

AND Assignee does hereby acknowledge receipt of the Agreements so delivered, and does hereby (a) accept the within assignment and (b) assume the performance of all the terms, covenants and conditions of the Agreements on the part of the Assignor to the extent specifically listed on Exhibit A annexed hereto. Seller shall be responsible for all claims under the Agreements which are not listed on such Exhibit A (the "Seller Claims"), and Seller hereby agrees to indemnify and hold Purchaser harmless from and against all claims by any party to the Agreements with respect to the Seller Claims.

 

This assignment is made without warranty or representation by Assignor and without recourse to Assignor in any manner whatsoever, express or implied.

 

This assignment and assumption agreement shall inure to the benefit of Assignee, Assignor and any other party to the documents listed on Exhibit A, and their respective successors and assigns, and shall be governed by the laws of the State of South Carolina. This assignment and assumption agreement may not be modified, altered or amended, or its terms waived, except by an instrument in writing signed by the parties hereto.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this _____ day of __________, 2014.

 

	ASSIGNOR:
	DRA-RCG NORTH CHARLESTON SPE LLC,
	a Delaware limited liability company
	By:	DRA-RCG North Charleston LLC,
		a Delaware limited liability company,
		its sole member
		By:
			Name:
			Title:

 

	ASSIGNEE:
	[_________________________]
	By:
		Name:
		Title:

 

 

EXHIBIT A

 

LEASING COMMISSION AGREEMENTS AND CONSTRUCTION CONTRACTS