______________________________________________________________________


 


 


 


SALE-PURCHASE AGREEMENT


 


 


between


 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company,


                                                                            
                   


                                                                                                 
Seller,


 


and


 


 


THE PHILLIPS EDISON GROUP LLC,


an Ohio limited liability company,


 


                                                        
                                        Purchaser. 


 


 


Premises:


 


Fairlawn Town Centre


Fairlawn, Ohio


_____________________________________________________________________







 








 








 


TABLE OF CONTENTS


 


	
  1

  	
  Sale-Purchase 

  	
  1

  
	
  2

  	
  Purchase Price 

  	
  2

  
	
  3

  	
  Assignment of Sanborn
  Contract 

  	
  3

  
	
  4

  	
  Closing Date

  	
  3

  
	
  5

  	
  Violations 

  	
  4

  
	
  6

  	
  Apportionments 

  	
  6

  
	
  7

  	
  Closing Documents 

  	
  11

  
	
  8

  	
  Title Insurance and Survey
  Matters 

  	
  13

  
	
  9

  	
  Disposition of Downpayment
  

  	
  15

  
	
  10

  	
  Purchaser’s Default 

  	
  16

  
	
  11

  	
  Representations 

  	
  16

  
	
  12

  	
  Fixtures and Personal
  Property 

  	
  22

  
	
  13

  	
  Brokers 

  	
  22

  
	
  14

  	
  Condemnation and
  Destruction 

  	
  22

  
	
  15

  	
  Escrow 

  	
  24

  
	
  16

  	
  Closing Costs 

  	
  25

  
	
  17

  	
  Seller’s Covenants 

  	
  26

  
	
  18

  	
  Approval of Leases,
  Contracts 

  	
  27

  
	
  19

  	
  Non-Liability 

  	
  28

  
	
  20

  	
  Seller’s Default 

  	
  28

  
	
  21

  	
  Condition of Premises 

  	
  29

  
	
  22

  	
  Notices 

  	
  31

  
	
  23

  	
  Entire Agreement 

  	
  33

  
	
  24

  	
  Amendments 

  	
  33

  
	
  25

  	
  No Waiver 

  	
  33

  
	
  26

  	
  Successors and Assigns 

  	
  34

  
	
  27

  	
  Partial Invalidity 

  	
  35

  
	
  28

  	
  Paragraph Headings 

  	
  35

  
	
  29

  	
  Governing Law 

  	
  35

  
	
  30

  	
  Binding Effect 

  	
  35

  
	
  31

  	
  No Recording or Lis
  Pendens 

  	
  35

  
	
  32

  	
  Prevailing Party to
  Receive Attorneys’ Fees 

  	
  36

  
	
  33

  	
  Tax-Deferred Exchange 

  	
  36

  
	
  34

  	
  Confidentiality 

  	
  37

  
	
  35

  	
  Due Diligence Period 

  	
  37

  
	
  36

  	
  Estoppel Certificates 

  	
  38

  
	
  37

  	
  Survival 

  	
  41

  
	
  38

  	
  Arbitration of Matters in
  Dispute 

  	
  42

  
	
  39

  	
  Submission To Jurisdiction
  

  	
  43

  
	
  40

  	
  Waiver Of Jury Trial 

  	
  43

  
	
  41

  	
  Certain Definitions 

  	
  43

  
	
  42

  	
  Determination of Estimated
  Calculations

  	
  44

  
	
  43

  	
  No Third Party
  Beneficiaries 

  	
  44

  
	
  44

  	
  Time of Performance 

  	
  45

  
	
  45

  	
  Counterpart Execution;
  Execution by Facsimile Transmission/ PDF Format 

  	
  45

  
	
  46

  	
  Ambiguities Not Construed
  Against Drafter 

  	
  45

  
	
  47

  	
  No Special Relationship
  Between Seller and Purchaser 

  	
  45

  
	
  48

  	
  No Financing Contingency 

  	
  45

  
	
  49

  	
  Assumed Loan 

  	
  45

  
	
  50

  	
  Acknowledgement 

  	
  48

  
	
  51

  	
  Books and Records 

  	
  48

  
	
  52

  	
  Giant Eagle Contingency 

  	
  49

  




 









 










 








 








 


Exhibits






Exhibit            Description 


 


A                     Description
of the Land


B                     Existing
Leases


C                     Existing
Contracts


D                     Existing
Violations


E                      Form of Deed


F                      Form of Bill
of Sale


G                     Form of
Assignment and Assumption of Leases


H                     Form of
Assignment and Assumption of Contract


I                      Form of
Assignment and Assumption of Intangible Property


J                      Form of FIRPTA
Certification


K                     Form of
Notice to Tenants


L                     Form of
Notice to Contract Party


M                    Form of
Assignment and Assumption of O&M Plan Documents


N                     Notice of
O&M Plan Documents Transfer


O                     Owner’s Title
Affidavit


P                      Existing
Title/Survey Matters


Q                     Rent Roll


R                     List of
Material Litigation


S                     Environmental
Reports


T                     Existing Work
Required Under Leases/Outstanding Leasing Costs


U                     Reserved. 


V                     O&M Plan
Documents


W                    List of
Required Estoppels


X                     Form of
Seller Estoppel Certificate


Y                     Form of
Tenant Estoppel Certificate
















 










 








 








SALE-PURCHASE
AGREEMENT


 


          THIS SALE-PURCHASE AGREEMENT (this “Agreement”),
is made as of this 13th day of December, 2012 (the “Effective Date”),
between AG/WP FAIRLAWN OWNER, L.L.C., a limited liability company organized
under the laws of the State of Delaware, having an office at c/o Angelo, Gordon
& Co., L.P., 245 Park Avenue, 26th Floor, New York, New York 10167 (“Seller”),
and THE PHILLIPS EDISON GROUP LLC, a limited liability company organized under
the laws of the State of Ohio, having an office at 1150 North Lake Drive,
Cincinnati, Ohio  45249 (“Purchaser”). 


 


W  I  T  N  E  S  S  E  T  H: 


 


            WHEREAS, Seller is the owner of the
Premises (as hereinafter defined); and


 


             WHEREAS, Seller desires to sell, and
Purchaser desires to purchase, the Premises, on the terms and conditions set
forth herein.


 


             NOW, THEREFORE, in consideration of
the mutual covenants and agreements hereinafter set forth, and for other good
and valuable consideration, the mutual receipt and legal sufficiency of which
are hereby acknowledged, Seller and Purchaser hereby agree as follows:


 


1.                 
Sale-Purchase. 


 


             1.1. Seller agrees to sell and convey
to Purchaser, and Purchaser agrees to purchase from Seller, upon the terms and
conditions hereinafter set forth, the following (collectively, the “Premises”): 


 


               (a) all that certain plot, piece and
parcel of land located in the City of Fairlawn, County of Summit and the State
of Ohio, described in Exhibit A attached hereto and made a part hereof,
together with all easements, rights of way, privileges, appurtenances and other
rights, if any, pertaining thereto (the “Land”);  


 


               (b) all buildings, structures and
improvements located on the Land and all of Seller’s right, title and interest
in and to any and all fixtures attached thereto (collectively, the “Improvements”); 


 


              (c) all equipment, machinery,
apparatus, appliances, and other articles of personal property located on and
used in connection with the operation of the Improvements (collectively, the “Personal
Property”), to the extent any of same are owned by Seller; 


 


             (d)  all of Seller’s right, title and
interest in and to the Sanborn Contract (as such capitalized term is
hereinafter defined);


 


            (e) to the extent assignable and
subject to the terms hereof, all licenses, franchises, permits, certificates of
occupancy, authorizations and approvals used in or relating to the ownership,
occupancy or operation of any part of the Improvements (the “Permits”); 


 


            (f)  all of Seller’s right, title and
interest in and to the leases and occupancy agreements described on Exhibit
B attached hereto and made a part hereof (as amended, modified, renewed or
extended as of the Effective Date, the “Existing Leases”), and all
Approved Lease Amendments and Approved New Leases (as such capitalized terms
are hereinafter defined) (the Existing Leases, the Approved Lease Amendments
and the Approved New Leases are referred to herein, collectively, as the “Leases”);
 


 




 








 








            (g)  to the
extent assignable and subject to the terms hereof, all of the interest of
Seller in any and all rights, warranties and guaranties pertaining to the Land,
Improvements, Personal Property, the Sanborn Contract, Permits and Leases
(collectively the “Intangible Property”); and


 


           (h) all of Seller’s right, title and
interest in and to the documents and other materials listed in Exhibit V
(collectively, the “O&M Plan Documents”); 


 


(i)                
to the extent assignable, all of Seller’s right, title and interest in
and to the name “Fairlawn Town Centre” as it relates to the Premises. 


 


2.                 
  Purchase Price.


 


      Subject to the terms of this Agreement,
including, without limitation, Section 49 below, the purchase price for
the Premises (the “Purchase Price”) is Forty-Two Million and 00/100
Dollars ($42,000,000), payable as follows:


 


             2.1. Within one (1) Business Day after the Effective Date ,
Purchaser shall deliver the amount of Two Hundred Thousand and 00/100 Dollars
($200,000) (the “Initial Deposit”), by wire transfer of immediately
available federal funds to the order of [Land Services USA, Inc.] (in such
capacity, the “Escrow Agent”), which Initial Deposit shall be held by
Escrow Agent in escrow pursuant to the provisions of Section 15 of this
Agreement. If the
Initial Deposit is not received by the Escrow Agent within such one (1)
Business Day period, this Agreement shall automatically terminate.


 


           2.2.  In the event Purchaser does not
terminate this Agreement at the expiration of the Due Diligence Period (as
hereinafter defined) pursuant to Section 35 of this Agreement, Purchaser
shall, on or prior to one (1) Business Day after the expiration of the Due
Diligence Period, deliver the amount of Four Hundred Thousand and 00/100
Dollars ($400,000) (the “Additional Deposit”) by wire transfer of
immediately available federal funds to the order of Escrow Agent.  As used
herein, (a) “Deposit” shall mean the Initial Deposit, together with the
Additional Deposit (to the extent same is deposited with Escrow Agent pursuant
to the provisions of Section 35 below) and (b) “Downpayment”
shall mean the Deposit together with all interest thereon.


 


          2.3   Purchaser acknowledges and agrees
that time shall be of the essence with respect to Purchaser’s obligation to
deliver the Initial Deposit and the Additional Deposit.  The Downpayment shall
automatically become nonrefundable upon the expiration of the Due Diligence
Period, unless Purchaser terminates (or is deemed to have terminated) this
Agreement in accordance with the express provisions of this Agreement and
Purchaser is entitled to the return of the Downpayment in accordance with the
express provisions of Section 9 of this Agreement or as otherwise
expressly provided in this Agreement.


 


         2.4.   An amount equal to the Purchase
Price less the Downpayment on the Closing Date (as hereinafter defined), as
adjusted for prorations and apportionments as herein provided, by wire transfer
of immediately available federal funds to an account or accounts designated by
Seller (such funds, the “Closing Funds”); provided, however,
solely in the event that Purchaser assumes the Assumed Loan (as hereinafter
defined) pursuant to Section 49 below, an amount equal to the
outstanding principal balance of the Assumed Loan (the “Assumed Loan Balance”)
on the Closing Date shall be subtracted from the Purchase Price.  In the event
that the Closing Funds are not received on or before 3:00 P.M. (New York time)
on the Closing Date, then Purchaser shall be deemed to have defaulted under
this Agreement. 


 










2 




 










 








 








3.                 
  Assignment of Sanborn
Contract. 


 


             3.1.   Purchaser
acknowledges that Seller has disclosed to it that the Premises is subject to
the contracts and agreements described on Exhibit C attached hereto and
made a part hereof (as amended, modified, renewed or extended as of the
Effective Date, the “Existing Contracts”).  Seller shall terminate all
Existing Contract at Closing at Seller’s expense, in which event Seller shall
indemnify Purchaser from any damage, cost or liability (including, without
limitation, reasonable attorneys’ fees and costs of enforcing the foregoing
indemnity) arising from such termination; provided, however, at
Closing, except as provided in Section 3.2 below, Seller shall assign to
Purchaser and Purchaser shall assume that certain Proposal for Continued
Operation, Maintenance, and Monitoring Services, Addendum #1 – from June 2012
through May 2013, dated as of June 27, 2012, by and between Sanborn, Head &
Associates, Inc., as consultant, and Seller, as client, which is subject to
those certain Terms and Conditions, dated as of May 4, 2010 (the “Sanborn
Contract”). 


 


           3.2.  If the Sanborn Contract is not
assignable by its terms and the required consent to the assignment thereof is
not obtained by the Closing Date, then the parties shall nevertheless proceed
to Closing and Seller shall terminate the Sanborn Contract at Closing at
Seller’s expense, in which event Seller shall indemnify Purchaser from any
damage, cost or liability (including, without limitation, reasonable attorneys’
fees and costs of enforcing the foregoing indemnity) arising from such
termination.  Purchaser agrees that the failure of Seller to obtain any such
consent to assignment of the Sanborn Contract shall not constitute a default by
Seller hereunder, constitute a failure of condition precedent in favor of
Purchaser or grant Purchaser any right or remedy.


 


4.                 
Closing Date.


 


4.1.  The consummation of the transactions
contemplated hereby (the “Closing”), shall take place through escrow at
the offices of the Escrow Agent, on the date that is fifteen (15) days after
the expiration of the Due Diligence Period (unless an earlier date is agreed to
by Seller and Purchaser in writing) (the “Initial Scheduled Closing Date”). 


 


4.2. Notwithstanding the
foregoing provisions of this Section 4, (A) Purchaser shall have the
one-time right to cause the Initial Scheduled Closing Date to be adjourned for
a period of up to fifteen (15) days by delivering Seller written notice of such
election at least one (1) Business Day prior to the Initial Scheduled Closing
Date (such date, the “Purchaser Adjourned Closing Date”) in order (i) to
allow the Purchaser to satisfy the Loan Assumption Condition (as hereinafter
defined) (it being agreed that if Purchaser extends pursuant to this clause
(i) it shall use good faith efforts to cause the satisfaction of the Loan
Assumption Condition on or before the Purchaser Adjourned Closing Date) and/or
(ii) in the event that the Estoppel Condition (as such term is hereinafter
defined) has not been satisfied on or before five (5) days prior to the Initial
Scheduled Closing Date (but only to the extent Seller does not elect to extend
the Initial Scheduled Closing Date in accordance with its rights under this
Agreement in order to continue to cause the Estoppel Condition to be satisfied),
and (B) in the event the Purchaser reasonably determines that the Loan
Assumption Condition will not be satisfied by the Initial Scheduled Closing
Date (or, if the Purchaser has previously adjourned the Initial Closing Date to
the Purchaser Adjourned Closing Date, then by Purchaser Adjourned Closing Date),
then Purchaser shall have the one-time right to cause the Initial Scheduled
Closing Date or the Purchaser Adjourned Closing Date, as applicable, to be
adjourned for a period of up to fifteen (15) days by delivering Seller written
notice of such election at least one (1) Business Day prior to the Initial
Scheduled Closing Date or the Purchaser Adjourned Closing Date, as applicable
(such date, the “Purchaser Adjourned Closing Date II”).  For the
avoidance of doubt, (x) Purchaser shall not have the right to adjourn the
Closing for any reason other than for the specific reason set forth in this Section
4.2, and (y) if Purchaser elects to exercise its rights to adjourn the
Closing under Section 4.2(B) above, it shall be deemed to waive any
rights to adjourn the Closing under Section  







3 




 










 








 








4.2(A)(i)
above, but Purchaser shall continue to have its right to adjourn the Closing
under Section 4.2(A)(ii) above in event that the Estoppel Condition has
not been satisfied on or before five (5) days prior to the Purchaser Adjourned
Closing Date II (but only to the extent Seller does not elect to extend the
Purchaser Adjourned Closing Date II in accordance with its rights under this
Agreement in order to continue to cause the Estoppel Condition to be
satisfied), and (z) in no event shall Purchaser have the right to adjourn the
Closing for more than thirty (30) days in the aggregate (as expressly provided
in this Section 4.2). 


 


4.3.  Notwithstanding the
foregoing provisions of this Section 4, Seller shall have the right, by
delivering notice to Purchaser on or before the then scheduled Closing Date, to
adjourn the Closing one or more times for any reason specified in this
Agreement (including, without limitation, to cure title matters and/or to
obtain consents and approvals of third parties as herein specified) and for the
time period specified in this Agreement (but in no event for more than
forty-five (45) days in aggregate) to a date specified by Seller in such notice
(any date to which Seller so adjourns the Closing pursuant to this Section
4.3 being referred to herein as a “Seller Adjourned Closing Date”).  


 


4.4.  As used herein, the term “Closing
Date” shall mean the Initial Scheduled Closing Date, the Purchaser
Adjourned Closing Date, the Purchaser Adjourned Closing Date II or, if the
Closing is adjourned by Seller, any Seller Adjourned Closing Date.  It is
expressly agreed by Seller and Purchaser that time is of the essence with
respect to Purchaser’s and Seller’s obligation to close this transaction on the
Closing Date.  For the avoidance of doubt, Purchaser acknowledges that if
Seller adjourns the Closing Date pursuant to any right of adjournment granted
hereunder, then time shall be of the essence with respect to Purchaser’s and
Seller’s obligation to close this transaction on such adjourned Closing Date.


 


5.                 
  Violations.   


 


          Purchaser shall accept title to the
Premises subject to all violations of law or municipal ordinances, orders or
requirements issued by the departments of buildings, fire, labor, health or
other federal, state, county, municipal or other departments and governmental
agencies having jurisdiction against or affecting the Premises, and any
outstanding work orders, whether outstanding as of the Effective Date or
noticed at any time on or before the expiration of the Due Diligence Period
(each, an “Existing Violation”).  Any violation that is noticed (i.e.,
issued by the applicable governmental authority) after the expiration of the
Due Diligence Period is referred to herein as a “New Violation”.  The
Existing Violations and the New Violations are referred to herein, collectively,
as the “Violations”.  To the extent that the Seller receives written
notice of any New Violation between the Effective Date and the Closing Date,
Seller shall deliver to Purchaser written notice of such New Violation on or
before the earlier of one (1) day prior to the Closing Date or five (5) days
after it becomes aware of the existence of any New Violation.  Purchaser and
Seller agree that the following shall apply in respect of any Violation:


 


            (a)  In respect of Existing Violations,
Seller shall have no restoration, repair or other obligation or liability of
any kind or nature with respect thereto and Purchaser shall be required to take
title to the Premises without adjustment of the Purchase Price.  Without
limiting the generality of the foregoing, and notwithstanding anything to the
contrary contained in this Agreement, Seller shall have no obligation to
obtain, update or modify any certificate of occupancy for all or any portion of
the Premises, nor shall it be a condition to Purchaser’s obligation to close
title hereunder that Seller obtain, update or modify any such certificate of
occupancy.


 


           (b) In respect of
New Violations:


 


                       (i) Purchaser shall deliver
notice to Seller (“Purchaser’s Violations Notice”) on or before the
earlier of one (1) day prior to the Closing Date or five (5) days after it
becomes aware of the existence 







4 




 










 








 








of any New Violation (it
being acknowledged and agreed by Purchaser that Purchaser’s failure to deliver
Purchaser’s Violations Notice within such time period shall be deemed to be (x)
Purchaser’s waiver of any rights under this Section 5(b) and (y)
Purchaser’s agreement to take title to the Premises subject to such New
Violation(s) without adjustment of the Purchase Price).


 


              (ii)  Within five (5) Business Days
after Seller receives Purchaser’s Violations Notice (and if the expiration of
such five (5) Business Day period is after the Closing Date, then, at the
option of Seller, the Closing shall be adjourned to the date three (3) Business
Days after the expiration of such five (5) Business Day period), Seller shall
deliver notice to Purchaser (“Seller’s Violations Response Notice”)
stating either (x) that Seller agrees, at Seller’s sole option, to (A) cure
such New Violation prior to the Closing, (B) credit Purchaser at Closing
against the Purchase Price in an amount equal to the reasonably estimated cost
of curing same (it being agreed that if there is a dispute as to the amount of
the credit under this clause (B) then the provisions of Section 42
of this Agreement shall apply) or (C) credit Purchaser at Closing against the
Purchase Price an amount equal to the reasonably estimated diminution in value
to the Premises caused by such New Violation (it being agreed that if there is
a dispute as to the amount of the credit under this clause (C) then the
provisions of Section 42 of this Agreement shall apply), or (y) that
Seller does not elect to cure such New Violation or grant Purchaser such credit
against the Purchase Price.  Seller’s failure to deliver Seller’s Violations
Response Notice within such five (5) Business Day period shall be deemed to be
Seller’s election under clause (y) at 5:00 p.m. (New York time) on the
last day of such five (5) Business Day period.  In the event that Seller’s
reasonably estimated cost of curing any such New Violation (when aggregated
with any other New Violations properly noticed by Purchaser to Seller pursuant
to the terms of this Agreement) is less than $75,000, then Seller shall be required
to make Seller’s election under clause (x). 


 


              (iii) If, in Seller’s Violations
Response Notice, Seller makes (or is required to make) the election under clause
(x) of Section 5(b)(ii) above, then Seller shall, at Seller’s sole
option, either cause the applicable New Violation to be cured prior to the
Closing (and Seller shall be entitled to adjourn the Closing one or more times
(but for not more than twenty (20) days in the aggregate) to effectuate such
cure) or grant Purchaser a credit against the Purchase Price at Closing
pursuant to either subclause (B) or (C)  of Section 5(b)(ii)(x)
above (it being agreed that if there is a dispute as to the amount of such
credit under this Section 5(b)(iii), then the provisions of Section
42 of this Agreement shall apply).  If Seller agrees to cure a New
Violation as aforesaid and thereafter fails so to do within the above time
period, then the Closing shall take place and Seller shall grant Purchaser the
foregoing credit against the Purchase Price.  If, in Seller’s Violations
Response Notice, Seller makes (or is deemed to have made) the election under clause
(y) of Section 5(b)(ii) above, then by the earlier of one (1) day
prior to the Closing Date (as it may have been adjourned by Seller pursuant to Section
5(b)(ii) above, or five (5) days after Purchaser receives Seller’s
Violations Response Notice making such election, Purchaser shall deliver notice
to Seller (“Purchaser’s Violations Response Notice”) stating either (x)
that Purchaser elects to accept title to the Premises subject to the applicable
New Violation without adjustment of the Purchase Price, in which event the
Closing hereunder shall occur without any further obligation of Seller under
this Section 5, or (y) that Purchaser elects to terminate this
Agreement, in which event the provisions of Section 9 of this Agreement
shall apply to such termination (and if Purchaser fails to deliver any such
notice on or before the expiration of such five (5) days period, Purchaser
shall be deemed to have elected to proceed under clause (y) above).


 


                   (iv)Without limiting the
generality of the foregoing provisions of this Section 5, in the event
that Purchaser takes title to the Premises without raising any objection to any
New Violation in accordance with the provisions of this Section 5, same
shall constitute a complete waiver of any right Purchaser may have to object to
such New Violation or to make any claim against Seller on account thereof and
any such claim is hereby waived by Purchaser.


 









5 




 










 

                (c)  Purchaser
shall not, without first obtaining the prior written consent of Seller, request
that any governmental authority inspect or otherwise evaluate the condition of
the Premises in respect of the existence of Violations, provided that the
foregoing shall not prohibit Purchaser from making customary inquiries of
governmental authorities as to whether Violations have been noticed by any such
governmental authorities (it being agreed that such customary inquiries shall
expressly permit Purchaser to request a zoning compliance letter from the
applicable governmental authorities).


 


              (d) Purchaser (i) acknowledges that
Seller has disclosed to Purchaser and/or Purchaser is otherwise aware of the
existence of the matters listed on Exhibit D attached hereto and made a
part hereof, (ii) agrees that same constitute Existing Violations for purposes
of this Section 5, and (iii) acknowledges that, except as set forth in Section
11.1, Seller has not made any representation regarding such Existing
Violations nor made any representation that such matters constitute all
Existing Violations.


 


6.                 
  Apportionments. 


 


                        6.1.
 The following are to be apportioned as of the Closing Date:


 


                                (i) Real property
taxes and assessments (including, without limitation, any assessments relating
to Permitted Title/Survey Exceptions (as hereinafter defined), business
improvement district assessments or similar charges), water rates and charges,
and sewer taxes, in each case, not otherwise payable directly to the taxing
authority by any tenant under a Lease.  Seller and Purchaser each agree to
deliver to the other, as appropriate, the required portion of any funds
received by Seller or Purchaser, as the case may be, in order to effectuate the
foregoing.


 


                                  (ii) Fixed,
escalation, additional and percentage rent, parking charges and all other
charges under the Leases (including, without limitation, electricity and
utility surcharges, administrative fees in connection with security deposits
held by Seller under the Leases),
if, as and when collected in accordance with Section 6.6 of this
Agreement (all of the foregoing being collectively referred to as “Rents”). 


 


                               (iii) Charges under
the Sanborn Contract.


 


                                 (iv) To the extent
that Purchaser assumes the Assumed Loan, interest payable under the Assumed
Loan.


 


                               (v) All other items
customarily apportioned in connection with the sale of similar properties
similarly located. 


 


The parties acknowledge agree that to the extent
that any deposits made by Seller on account with utility companies servicing
the Premises are returned to Seller on or before the Closing Date, Purchaser
shall provide Purchaser’s own utility deposits directly to the applicable
utility companies; provided, however, in the event that that
Seller is not able to obtain such refunds on or before the Closing Date, then
Seller shall receive a credit at Closing in the amounts of such unreturned
deposits (and Seller and Purchaser each agrees to cooperate to effectuate the
transfer of any such unreturned deposits); provided, further, however,
if after the Closing Date the Seller actually receives any portion of such
unreturned deposit for which Seller was given a credit at Closing, then Seller
shall promptly remit such portion to Purchaser.


 


                        6.2. If the real property
taxes and assessments (including, without limitation, any assessments relating
to Permitted Title/Survey Matters, business improvement district assessments or
similar charges), water rates and charges, and sewer taxes, in each case, not
otherwise payable directly to the taxing authority by any tenant under a Lease
are not finally fixed before the Closing Date, the 


 








 








apportionments
thereof made at the Closing shall be based on the real property taxes and
assessments assessed and reflected in the most recently issued tax duplicate,
or on estimated water and sewer charges (and the parties acknowledge  and agree
that notwithstanding anything to the contrary contained in this Agreement,
including, without limitation, Section 6.11 below, or any Seller
Document, such prorations made at the Closing shall be final and shall not be
subject to any recalculation after the Closing Date regardless of the final
fixed amounts of the real property taxes, assessments and/or water and sewer
charges obtained after the Closing Date).


 


                      6.3.       (i) If the Premises
or any part thereof shall be or shall have been affected by any bond or special
assessment prior to the Closing Date, such bond or special assessment due and
relating to the period of time prior to the Closing Date shall be paid by
Seller and such bond or special assessment due or relating to the period of
time from and after the Closing Date shall be paid by Purchaser.  If any bond
or special assessment on the Premises is payable in installments, then the
installment for the current period shall be prorated (with Purchaser assuming
the obligation to pay any installments due from and after the Closing Date) (it
being agreed that if there is a dispute as to the obligations of the parties
under this Section 6.3(i), then the provisions of Section 42 of
this Agreement shall apply).


 


                                    (ii)  If the
Premises or any part thereof shall be or shall have been affected by any bond
or special assessment on or subsequent to the Closing Date, whether or not
payable in annual installments, the entire amount of such assessment shall be
paid by Purchaser.


 


                      6.4.       If there are any
water meters on the Premises (other than meters measuring water consumption
costs which are the obligation of tenants to pay under Leases), Seller shall
furnish readings, and the unfixed water rates and charges and sewer taxes and
rents, if any, based thereon for the intervening time, shall be apportioned on
the basis of such last readings.  If there is any fuel on hand, Seller shall
furnish a reading, and the unfixed charges for such fuel, for the period from
the date of such reading until the Closing Date shall be apportioned based upon
such reading.


 


                    6.5.       The amount of any
unpaid taxes, assessments, water charges, sewer taxes and rents and vault
charges and taxes for which Seller is obligated to pay and discharge under Section
6.2, with interest and penalties thereon through and including the Closing
Date may, at the option of Seller, be satisfied at Closing out of the Purchase
Price, provided that official bills therefor with interest and penalties
thereon are furnished by Seller at the Closing.  In addition, at the Closing,
Seller shall receive a credit against the amount of any unpaid taxes Seller is
obligated to pay and discharge under Section 6.2 in an amount equal to
the amount that will become due and owing by the tenants that pay such taxes in
lump sum payments.  If there are any other liens or encumbrances which Seller
is paying and discharging pursuant to Section 8 of this Agreement,
Seller may use any portion of the Purchase Price to satisfy the same, provided
that the Title Company (as hereinafter defined) shall be willing to insure
Purchaser against collection of such liens and/or encumbrances, including interest
and penalties, in which event such liens and encumbrances shall not be
objections to title. 


 


                6.6. (i)  To the extent that
Purchaser receives Rents under Leases (including monthly payments of escalation
and percentage rents and “pass throughs”) after the Closing Date, the amount of
such Rents shall be applied in the following order of priority: (x) first,
to the calendar month in which the Closing occurs, (y) second, to any
calendar month or months following the calendar month in which the Closing
occurred until such tenant is current on post-Closing Rents, and (z) third,
to the calendar months preceding the Closing Date until such tenant is current
on pre-Closing Rents.  Purchaser shall render an accounting to Seller with
respect to any Rents received from each tenant that owes Rent to Seller as of
the Closing Date until, as a result of the application of Rents pursuant to
this Section 6.6, such tenant has paid all Rents owed to Seller for that
period of time prior to the Closing Date. The obligation to render such
accounting to Seller shall terminate upon the earlier to occur of (A) Seller
having been paid all Rents 







7 




 










 








 








owed to Seller for that
period of time prior to the Closing Date, and (B) the first (1st)
anniversary of the Closing Date.


 


              (ii) Notwithstanding the foregoing
provisions of this Section 6.6, Purchaser and Seller acknowledge that
Rents in the nature of percentage rents (“Percentage Rents”) under
certain Leases for each calendar year may be collected in advance monthly based
upon estimated gross sales under the applicable Lease by Seller and may
subsequently be subject to adjustment, on an annualized basis, after the
expiration of the calendar year for which such Percentage Rents are due based
upon the reconciliation of annualized gross sales under the applicable Lease by
Seller.  In furtherance of the foregoing, Purchaser and Seller agree that in
the event any tenant is obligated to pay any such Percentage Rents to Seller,
then solely with respect to such Percentage Rents for the calendar year in
which the Closing Date occurs, Purchaser shall render an accounting to Seller
with respect thereto within thirty (30) days after the date on which Purchaser,
as landlord under the applicable Lease, has reconciled the annualized gross
sales under such Lease, and, in the event the applicable tenant is obligated to
render a payment on account of the Percentage Rents payable under its Lease to
the landlord thereunder for the calendar year in which the Closing Date occurs,
then such payment shall be prorated on a “straight-line” basis between
Purchaser and Seller, based upon the number of days in such calendar year that
Purchaser and Seller were the owner of the Premises, and in the event the
applicable tenant is entitled to a reimbursement on account of the Percentage
Rents payable under its Lease to the landlord thereunder for the calendar year
in which the Closing Date occurs, then such reimbursement shall be prorated on
a “straight-line” basis between Purchaser and Seller based upon the number of
days in such calendar year that Purchaser and Seller were the owner of the
Premises.  In connection with the foregoing, Percentage Rents shall be
pro-rated at Closing based on amounts billed by Seller, and any reconciliation
shall be completed on a post-Closing basis (and each party shall provide to the
other all reasonably requested information with respect to the Percentage Rents
in order to complete such reconciliation). 


 


             (iii)  Notwithstanding the foregoing
provisions of this Section 6.6, Purchaser and Seller acknowledge that
Rents in the nature of so called “CAM” charges (collectively, “CAM Charges”)
under certain Leases for each calendar year may be collected in advance monthly
based upon estimated operating expenses under the applicable Lease by Seller
and may subsequently be subject to adjustment, on an annualized basis, after
the expiration of the calendar year for which such CAM Charges are due based
upon the reconciliation of annualized operating expenses under the applicable
Lease by Seller.  In furtherance of the foregoing, Purchaser and Seller agree
that in the event any tenant is obligated to pay any such CAM Charges to
Seller, then solely with respect to such CAM Charges for the calendar year in
which the Closing Date occurs, Purchaser shall render an accounting to Seller
with respect thereto within thirty (30) days after the date on which Purchaser,
as landlord under the applicable Lease, has reconciled the annualized so called
“CAM” charges under such Lease, and, in the event the applicable tenant is
obligated to render a payment on account of the CAM Charges payable under its
Lease to the landlord thereunder for the calendar year in which the Closing
Date occurs, then such payment shall be prorated on a “straight-line” basis
between Purchaser and Seller, based upon the number of days in such calendar
year that Purchaser and Seller were the owner of the Premises, and in the event
the applicable tenant is entitled to a reimbursement on account of the CAM Charges
payable under its Lease to the landlord thereunder for the calendar year in
which the Closing Date occurs, then such reimbursement shall be prorated on a
“straight-line” basis between Purchaser and Seller based upon the number of
days in such calendar year that Purchaser and Seller were the owner of the
Premises.  In connection with the foregoing, CAM Charges shall be pro-rated at
Closing based on amounts billed by Seller, and any reconciliation shall be
completed on a post-Closing basis (and each party shall provide to the other
all reasonably requested information with respect to the CAM Charges in order
to complete such reconciliation).


 


                      (iv) Purchaser shall have no
obligation to collect any and all Rents due pursuant to the Leases that would
otherwise be payable to Seller pursuant to the terms and conditions of this
Agreement.  


 

Notwithstanding the foregoing, if
Purchaser shall commence any legal action to collect any amounts due from a
tenant under a Lease and such tenant shall also owe amounts which Seller shall
be entitled to receive pursuant to the provisions of this Agreement, then, at
Seller’s option, Purchaser shall include in Purchaser’s legal action the claim
for amounts due to Seller, and Seller shall reimburse Purchaser for a portion
of the reasonable and actual out-of-pocket legal fees and disbursements
incurred by Purchaser in prosecuting such action in an amount equal to the
total amount of such fees and disbursements multiplied by a fraction, the
numerator of which is the total amount realized by Seller in such action and
the denominator of which is the total amount realized by Seller and Purchaser
in such action.  If Seller is entitled, in accordance with the provisions of
this Agreement, to all or any portion of any Rents owed by any tenant under a
Lease and such tenant shall be in default of such tenant’s obligation to pay
such Rents, Seller reserves the right to commence any and all appropriate legal
proceedings to collect such amounts (but Seller shall not commence any action
against a tenant to dispossess such tenant from possession of space in the
Premises), and Purchaser agrees to cooperate with Seller, at Seller’s sole cost
and expense, in connection with such proceedings; provided, however,
that Purchaser, at Seller’s request and without cost to Purchaser, shall (1)
assign to Seller all rights to all amounts owed Seller from tenants prior to
and as of Closing including, without limitation, all rights to collect from
such tenants for all such amounts owed; and (2) execute and deliver to Seller
any and all documents Seller shall reasonably request in order to effectuate
such assignment (clause (1) and (2) collectively, the “Retained Rights”). 
The Retained Rights shall survive the Closing.


 


(v) Without limiting the foregoing
provisions of the Section 6.6, Seller shall reasonably cooperate with
Purchaser and otherwise exercise commercially reasonable efforts prior to and
subsequent to the Closing Date (if same has not been completed prior to the
Closing) in order to obtain a Certificate of Transfer of Title to Leased
Property and Lease Assignment and Assumption (or similar instrument) (the “USPS
Documents”) from the United States Postal Service (“USPS”).  If USPS
does not enter into the USPS Documents prior to the Closing, then anything in
this Agreement to the contrary notwithstanding, if, by virtue thereof, USPS
pays its rent or additional rent to Seller in lieu of Purchaser for any period
from and after the Closing Date, the same shall be held in trust by Seller (on Purchaser’s
behalf) and paid in accordance with this Section 6.6. 


 


                     6.7.   Prior to the Closing,
Purchaser and Seller shall cooperate to arrange for utility services to the
Premises to be discontinued in Seller’s name, as of the day immediately prior
to the Closing Date, and to be reinstated in Purchaser’s name, as of the
Closing Date.  In the event that the foregoing cannot be effectuated, then
Seller shall furnish readings of the applicable utility meters to a date not
more than thirty (30) days prior to the Closing Date, and the unfixed charges,
if any, based thereon for the intervening time, shall be apportioned on the
basis of such last readings.


 


                     6.8.  (a) Seller agrees that
it shall be responsible for the payment of the commissions payable to brokers,
including, without limitation, commissions payable to the Exclusive Leasing
Agent referred to in Section 6.8(c) below under the Exclusive Leasing
Agreement referred to in Section 6.8(c) below (collectively, “Leasing
Commissions”), the costs incurred or to be incurred for tenant improvements
(“Tenant Improvement Costs”), and all other out-of-pocket costs and
expenses, including, without limitation, legal fees, costs and disbursements
and tenant relocation costs (collectively, “Other Leasing Costs”;
together with any Leasing Commissions and Tenant Improvement Costs, “Leasing
Costs”) arising out of Leases that were executed before the Effective Date.


 


                          (b)  Notwithstanding the
provisions of Section 6.8(a) above, Purchaser agrees that if the Closing
occurs, it shall be responsible for the payment of all Leasing Costs arising
out of, under or in connection with any Approved Lease Amendments and Approved
New Leases (and a future renewal of, extension of, or expansion under any
Approved Lease Amendments and Approved New Leases).  In connection with the
foregoing, Purchaser hereby (x) assumes, effective as of the Closing Date, the 







9 




 










 








 








obligation to pay all Leasing Costs with respect to the
leasing matters described in in this clause (b), (y) indemnifies Seller
against any liability arising therefrom, and (z) agrees that if Seller pays any
such amount in respect of any such leasing matters described in this clause
(b) prior to the Closing Date, then at Closing Purchaser shall reimburse
Seller for same.


 


               (c) Seller has informed Purchaser
that Seller is party to a certain Exclusive Leasing Agreement, dated as of June
3, 2012 (as amended, the “Exclusive Leasing Agreement”) with Charter
Realty and Development Corp., a Delaware corporation (the “Exclusive Leasing
Agent”), as agent. Seller agrees to terminate the Exclusive Leasing
Agreement as of the Closing Date.


 


              (d)     Purchaser hereby indemnifies
Seller and holds Seller harmless from and against any and all liabilities
(including, without limitation, reasonable attorneys’ fees, costs and
disbursements and costs incurred in the enforcement of the foregoing indemnity)
arising out of Purchaser’s failure to comply with Purchaser’s obligations under
this Section 6.8.  The foregoing indemnification by Purchaser shall
survive the Closing indefinitely.  Seller hereby indemnifies Purchaser and
holds Purchaser harmless from and against any and all liabilities (including,
without limitation, reasonable attorneys’ fees, costs and disbursements and
costs incurred in the enforcement of the foregoing indemnity) arising out of
Seller’s failure to comply with Seller’s obligations under this Section 6.8. 
The foregoing indemnification by Seller shall survive the Closing for a period
of one (1) year.


 


                6.9. It is the intention of the
parties for Seller to transfer to Purchaser concurrently with the Closing as a
credit against the Purchase Price all security deposits of tenants under the
Leases, together with any interest accrued on such security deposits; provided,
however, prior to the expiration of the Due Diligence Period, upon
written notice to Purchaser, Seller shall have the right, subject to and in
accordance with the terms of the Leases, to deduct from any security deposit
any amount due from a tenant of the Premises as a result of a default (after
the expiration of any expressly provided notice and grace periods) by such
tenant under such tenant’s Lease; provided, further, however,
Seller shall use commercially reasonable efforts to pursue its rights under the
Leases to require the applicable tenants to replenish such security deposits in
accordance with the terms of the Leases (it being acknowledged and agreed that
the failure of the tenants to replenish such security deposits shall not (i) be
a condition to any of Purchaser’s obligations under this Agreement, including,
without limitation, Closing (b) give Purchase any right to terminate this
Agreement, and (c) give rise to any remedy of any kind against Seller).


 


                 6.10. At Closing, to the extent
that Purchaser assumes the Assumed Loan, Seller shall be credited with the
amounts of any escrows and/or holdbacks held by or on the Lender’s (as
hereinafter defined) behalf in connection with the Assumed Loan and such
escrows and holdbacks shall be assigned by Seller to Purchaser at Closing
pursuant to the Loan Assumption Documents (as hereinafter defined).


 


                6.11. Subject to the provisions of Section
37 of this Agreement, in the event the Closing occurs, the provisions of
this Section 6 shall survive the Closing Date for one (1) year and
either party shall have the right prior to expiration of such one (1) year
period to require that errors and adjustments related to computations and
calculations under this Section 6 be corrected and the parties agree
that any errors and adjustments not raised prior to the expiration of such one
(1) year period shall be deemed to be waived.  For the avoidance of doubt, the
parties acknowledge that after the expiration of such one (1) year period, the
indemnification obligations of Seller, if any, contained in this Section 6,
shall expire, and that the indemnification obligations of Purchaser, if any,
contained in this Section 6 shall survive the Closing Date for a period
of one (1) year (except as otherwise expressly provided in this Section 6).  
 


 










10 




 










 








 








7.                 
  Closing Documents.


 


                         7.1.
 At the Closing, Seller shall deliver (or caused to be delivered) to Purchaser
the following:


                              (a)  a limited
warranty deed, executed by Seller, in the form attached hereto as Exhibit E
and made a part hereof (the “Deed”), duly executed by Seller and
acknowledged on behalf of Seller;


 


                           (b)a quitclaim bill of
sale, in the form attached hereto as Exhibit F and made a part hereof
(the “Bill of Sale”), executed by Seller;


 


                              (c) an assignment and
assumption of Leases, in the form attached hereto as Exhibit G and made
a part hereof (the “Assignment and Assumption of Leases”), executed by
Seller;


 


                              (d)  an assignment
and assumption of the Sanborn Contract, in the form attached hereto as Exhibit
H and made a part hereof (the “Assignment and Assumption of Contract”),
executed by Seller;


 


                              (e)  an assignment
and assumption of Intangible Property, in the form attached hereto as Exhibit
I and made a part hereof (the “Assignment and Assumption of Intangible
Property”), executed by Seller; 


 


                            (f) a “non-foreign
person certification” that meets the requirements of Section 1445(b)(2) of the
Internal Revenue Code of 1986, as amended, or any successor statute thereto (“Code”),
in the form attached hereto as Exhibit J and made a part hereof,
executed by (or on behalf of) Seller;


 


                              (g)   a signed notice
to the tenants of the Premises, substantially in the form attached hereto as Exhibit
K and made a part hereof (the “Notice to Tenants”), executed by
Seller;


 


                              (h)  a signed notice
to the service provider under the Sanborn Contract, substantially in the form
attached hereto as Exhibit L and made a part hereof (the “Notice to
Contract Party”), executed by Seller;


 


                             (i)  all forms,
affidavits and certificates required to be filed in connection with the
imposition and/or payment of any and all applicable federal, state, county,
municipal and other transfer taxes with respect to the transactions set forth
herein (collectively, the “Conveyance Tax Documents”), in proper form
for submission, prepared, executed and acknowledged by Seller;


 


                            (j) the Tenant Estoppel
Certificates (as hereinafter defined) and/or Seller Estoppel Certificates (as
hereinafter defined) to the extent required to be delivered by Seller pursuant
to Section 36 of this Agreement;


 


                            (k)   such documents
(such as limited liability company resolutions, corporate resolutions or
partnership authorizations and certified limited liability company, corporate
or partnership organizational documents) as are reasonably required by the
Title Company to evidence the authorization of the transactions contemplated by
this Agreement;


 


                              (l) on or before five (5) Business
Days after Closing, Seller shall deliver to Purchaser’s offices at 11501
Northlake Drive, Cincinnati, Ohio 45249, Attention Director of Lease
Administration, (i) all original Leases (or copies if Seller and/or its
property and/or asset manager do not have possession of originals), lease
files, all plans and specifications with respect to the Premises correspondence
files and other books and records, keys to all leased premises, security codes,
if any, and maintenance agreements (e.g., HVAC maintenance agreement)
relating solely to the Premises and to the extent in Seller’s and/or 


 








 








its property and/or asset manager’s possession, and (ii)
all original Assumed Loan Documents (or copies if Seller and/or its property
and/or asset manager do not have possession of originals), loan files,
correspondence files and other books and records related solely to the Assumed
Loan and to the extent in Seller’s and/or its property and/or asset manager’s
possession;


 


                 (m) to the extent the same are in
the possession of Seller and are transferable to Purchaser, all original
licenses, certificates and permits pertaining to the Premises and required for
the use or occupancy thereof;


 


                 (n) an assignment and assumption
of the O&M Plan Documents, in the form attached hereto as Exhibit M
and made a part hereof (the “Assignment and Assumption of O&M Plan
Documents”), executed by Seller;


 


                (o) a notice of the Assignment and
Assumption of O&M Plan Documents to the Ohio Environmental Protection
Agency, substantially in the form attached hereto as Exhibit N and made
a part hereof (the “Notice of O&M Plan Documents Transfer”)(it being
agreed that any requested changes to such form shall neither increase Seller’s
obligations hereunder nor decrease any of Seller’s rights and protections
hereunder), which Notice of O&M Plan Documents Transfer shall include
evidence of Purchaser’s compliance with Section 10 of that certain Operation
and Maintenance Agreement, dated October 29, 2002 (the “O&M Agreement”)
with respect to the provision of reasonable and adequate funds in the amount of
at least $8,500 to comply with the O&M Agreement, executed by Seller; 


 


                (p) the USPS Documents, executed by
Seller; 


 


                (q) an owner’s title affidavit in
the form of Exhibit O attached hereto, executed by Seller;


 


                (r)
subject to terms and conditions of Section 11 below, a certificate
executed by Seller indicating that the representations and warranties of
Seller set forth in Section 11.1 are true and correct on the Closing
Date in all material respects, which certificate
shall describe any changes to such representations and warranties as to which
Seller has actual knowledge as of the Closing Date;  


 


                (s) to the extent that Purchaser
assumes the Assumed Loan, any Loan Assumption Documents required to be executed
by Seller to satisfy the condition in Section 49.2(c) and (d); 


                 


                (t) exclusive possession of the
Premises, subject to the rights of all tenants of the Premises, the Permitted
Title/Survey Exceptions, any obligations expressly assumed by the Purchaser
pursuant to this Agreement and Seller Document and applicable laws;


 


               (u) such other documents,
instruments and/or deliveries as are required to be delivered by Seller
pursuant to the terms of this Agreement.


 


               7.2. At the
Closing, Purchaser shall deliver to Seller the following:


 


                (a) the Closing Funds;


 


                (b) the Assignment and Assumption
of Leases, executed by Purchaser;


 


                (c) the Assignment and Assumption
of Contract, executed by Purchaser;


 


                (d) the Assignment and Assumption
of Intangible Property, executed by Purchaser;


 









12 




 










 








 








                (e)
reserved;


 


                (f) the Notice to Contract Party,
executed by Purchaser;


 


                (g) the Conveyance Tax Documents,
executed and acknowledged by Purchaser, if required by applicable law, each in
proper form for submission;


 


                (h) such documents (such as limited
liability company resolutions, corporate resolutions or partnership
authorizations and certified limited liability company, corporate or partnership
organizational documents) as are reasonably required by Title Company
evidencing the authorization of the purchase of the Premises by Purchaser and
the delivery by Purchaser of all of the Closing documents required by this
Agreement;


 


 


                (j) the Assignment and Assumption
of O&M Plan Documents, executed by Purchaser; 


 


                (k) the Notice of O&M Plan
Documents Transfer, executed by Purchaser; 


 


                 (l) the USPS Documents, executed
by Purchaser; 


 


                 (m) to the extent that Purchaser
assumes the Assumed Loan, the Loan Assumption Documents; and


 


                (n) such other documents,
instruments and/or deliveries as are required to be delivered by Purchaser
pursuant to the terms of this Agreement (including, without limitation,
documents, agreements and opinions to be delivered in connection with the
assumption of the Assumed Loan pursuant to Section 49 hereof). 


 


                7.3. The acceptance of transfer of
title to the Premises by Purchaser shall be deemed to be full performance and
discharge of any and all obligations on the part of Seller to be performed
pursuant to the provisions of this Agreement, except where such agreements and
obligations are specifically stated to survive the Closing.


 


                8. Title
Insurance and Survey Matters.


 


                  8.1. Prior to the Effective Date
Seller delivered to Purchaser Seller’s existing survey of the Premises (the “Existing
Survey”).  Purchaser shall obtain and deliver to Seller (i) an update of
the Existing Survey or a new survey (any such update or new survey being
referred to as the “Updated Survey”) and (ii) a commitment for title
insurance (the “Title Commitment”) from First American Title Insurance
Company (the “Title Company”) with respect to the Premises upon the
earlier to occur of Purchaser’s receipt of same and the expiration of the Due
Diligence Period.  The Existing Survey or the Updated Survey, as applicable,
are referred to herein individually or collectively as the “Survey”.  If
the Title Commitment or Survey discloses exceptions to title which are both (A)
not included within the list of permitted title matters listed on Exhibit P
attached hereto and made a part hereof (the “Existing Title/Survey Matters”)
and (B) material and adverse to Purchaser in Purchaser’s reasonable judgment
(any such exception being referred to herein as an “Unpermitted Title/Survey
Matters”), then Purchaser shall have the right to give Seller notice of any
such Unpermitted Title/Survey Matters on or prior to the earlier of (X) ten
(10) days after Purchaser’s receipt of the Title Commitment and Survey and (Y)
the expiration of the Due Diligence Period (such earlier date, the “Title/Survey
Objection Out Date”).  Any matters revealed by the Title Commitment and/or
Survey that are not objected to by Purchaser on or prior to the Title/Survey
Objection Out Date shall be deemed “Permitted Title/Survey Exceptions”. 
In 







13 




 










 








 








addition, any matters revealed by the Title
Commitment and/or Survey that do not constitute Unpermitted Title/Survey
Matters, regardless of whether Purchaser objects thereto, shall constitute
Permitted Title/Survey Exceptions.  Seller shall have ten (10) Business Days
following the receipt of any such notice in which to give Purchaser notice that
Seller will either (a) cause such Unpermitted Title/Survey Matter(s) to be
deleted from the Title Commitment or Survey or insured against by the Title
Company or (b) not cause such Unpermitted Title/Survey Matter(s) to be deleted
from the Title Commitment or Survey or insured against by the Title Company. 
If Seller gives notice pursuant to clause (a) above, then Seller will
cause such Unpermitted Title/Survey Matter(s) to be deleted from the Title
Commitment or Survey, or cause such Unpermitted Title/Survey Matter(s) to be
insured against by the Title Company, prior to the Closing Date (and Seller
shall have the right to adjourn the Closing Date one or more times (but for not
more than thirty (30) days in the aggregate) in order to effectuate same); provided,
however, if at Closing Seller has failed to cause any such Unpermitted
Title/Survey Matter(s) to be deleted from the Title Commitment or Survey, or
insured against by the Title Company, then Purchaser’s sole and absolute remedy
shall be to terminate this Agreement at Closing (in which event the provisions
of Section 9 of this Agreement shall apply to such termination).  If
Seller (i) fails to give any such notice within said ten (10) Business Day
period, or (ii) gives notice pursuant to clause (b) above, then
Purchaser shall give written notice to Seller within three (3) Business Days
following the earlier of the expiration of such ten (10) Business Day period or
the giving of such notice by Seller either (x) terminating this Agreement (in
which event the provisions of Section 9 of this Agreement shall apply to
such termination) or (y) waiving the right to terminate this Agreement as a
result of any such Unpermitted Title/Survey Matter(s).  If Purchaser fails to
deliver such notice terminating this Agreement pursuant to clause (x)
above within said three (3) Business Day period, then Purchaser shall be deemed
to have elected under clause (x) above.  If Purchaser elects under clause
(y) above in accordance with the foregoing, then any Unpermitted Title/Survey
Matters previously objected to by Purchaser shall become Permitted Title/Survey
Exceptions.  Purchaser acknowledges that Seller shall be entitled to deliver
Seller’s notice under clause (a) or clause (b) above in Seller’s
sole and absolute discretion subject to the provisions of Section 8.3 of
this Agreement and that Purchaser shall be required to accept title to the
Premises subject to all Permitted Title/Survey Exceptions.  Notwithstanding
anything to contrary contained herein, in the event that Purchaser fails to
obtain (I) the Title Commitment in the time period set forth in this Section
8.1 and submit any objections thereto within such time period set forth
above, then Purchaser will be deemed to have waived its right to object to
matters appearing on the Title Commitment (or update thereto) pursuant to Section
8.1 or Section 8.2, and (II) an Updated Survey in the time period
set forth in this Section 8.1 and submit any objections thereto within
such time period set forth above, then Purchaser will be deemed to have waived
its right to object to matters appearing on any Updated Survey (or update
thereto) pursuant to Section 8.1 or Section 8.2.  


 


              8.2. Except as provided in Section
8.1 above, in the event that any update of the Title Commitment or the
Survey shows any new matters or conditions which are both (A) not included
within the list of Existing Title/Survey Matters, and (B) material and adverse
to Purchaser in Purchaser’s reasonable judgment, Purchaser shall deliver notice
(each such notice, a “Purchaser’s Title/Survey Update Notice”) thereof
to Seller prior to the date that is the earlier of (X) the Closing Date or (Y)
the date that is five (5) Business Days after Purchaser receives such update of
the Title Commitment or the Survey (and if Purchaser fails to deliver such
notice within such five (5) Business Day (or shorter) period, then Purchaser
shall be deemed to have accepted such matters or conditions as Permitted
Title/Survey Exceptions).  Seller shall have ten (10) Business Days following
the receipt of any Purchaser’s Title/Survey Update Notice (and if the
expiration of such ten (10) Business Day period is after the Closing Date,
then, at the option of Seller, the Closing shall be adjourned to the date three
(3) Business Days after the expiration of such ten (10) Business Day period) in
which to give Purchaser notice (each such notice, a “Seller’s Title/Survey
Update Response”) that Seller will either (a) cause such new matter or
condition to be deleted from the Title Commitment or Survey or insured against
by the Title Company, or (b) not cause such new matter or condition to be
deleted from the Title Commitment or Survey or 







14 




 










 

insured
against by the Title Company.  If Seller gives a Seller’s Title/Survey Update
Response pursuant to clause (a), then Seller will cause such new matter
or condition to be deleted from the Title Commitment or Survey or insured
against by the Title Company, to occur on or prior to the Closing Date, as same
may be adjourned pursuant to the foregoing provisions of this Section 8.2
(and Seller shall have the further right to adjourn the Closing Date one or
more times (but for not more than fifteen (15) days in the aggregate) in order
to effectuate same); provided, however, if at Closing Seller has
failed to cause any such new matter or condition to be deleted from the Title
Commitment or Survey, or insured against by the Title Company, then Purchaser’s
sole and absolute remedy shall be to terminate this Agreement at Closing (in
which event the provisions of Section 9 of this Agreement shall apply to
such termination).  If Seller (i) fails to give any Seller’s Title/Survey
Update Response within said ten (10) Business Day period, or (ii) gives notice
pursuant to clause (b), then Purchaser will deliver written notice to
Seller on or before the earlier of (I) one (1) Business Day prior to the
Closing Date (as same may be adjourned pursuant to the foregoing provisions of
this Section 8.2) or (II) the date that is three (3) Business Days
following the earlier of the expiration of such ten (10) Business Day period or
the delivery of the Seller’s Title/Survey Update Response either (x)
terminating this Agreement (in which event the provisions of Section 9
of this Agreement shall apply to such termination) or (y) waiving the right to
terminate this Agreement as a result of any such new matter or condition.  If
Purchaser fails to deliver such notice terminating this Agreement pursuant to clause
(x) within said three (3) Business Day (or shorter) period, then Purchaser
shall be deemed to have elected under clause (x) above.  If Purchaser
elects to waive the right to terminate this Agreement pursuant to clause (y)
above, then any new matter or condition previously objected to by Purchaser
shall become Permitted Title/Survey Exceptions.  Purchaser acknowledges that
Seller shall be entitled to deliver Seller’s notice under clause (a) or clause
(b) above in Seller’s sole and absolute discretion subject to the
provisions of Section 8.3 of this Agreement and that Purchaser shall be
required to accept title to the Premises subject to all Permitted Title/Survey
Exceptions.


 


              8.3. Notwithstanding anything
contained herein to the contrary, except as specified in this Section 8.3,
Seller shall have no obligation to take any steps, bring any action or
proceeding or incur any effort or expense whatsoever to cure any title or
survey objection, provided, however, notwithstanding the
foregoing, Seller shall cause to be removed as exceptions to title (a) the
liens of any mortgages or deeds of trust of Seller affecting the Premises (other
than the Assumed Loan, to the extent that Purchaser assumes it as provided in Section
49 hereof), and (b) any mechanic’s or materialmen’s liens filed against the
Premises due to work performed at the Premises by Seller at Seller’s direction
(and Seller shall have the right to adjourn the Closing Date one or more times
(but for not more than twenty (20) days in the aggregate) in order to
effectuate same), and (c) any lien or encumbrance placed upon the Property
subsequent to the Effective Date without Seller’s consent and not as a result
of Seller’s action or omission, provided, however, the total
amount required to be expended by Seller in respect of this Section 8.3(c)
shall not exceed $75,000.00 (and Seller shall have the right to adjourn the
Closing Date one or more times (but for not more than fifteen (15) days in the
aggregate) in order to effectuate same). 


 


           9. Disposition
of Downpayment.


 


            If (a) Purchaser is entitled to and
does elect to terminate this Agreement in accordance with the provisions of Sections
5, 8, 11, 14, 20, 35,  36  or
52  of this Agreement, or (b) Seller is entitled to and does elect to
terminate this Agreement in accordance with the provisions of Section 11
of this Agreement, then Seller and Purchaser shall direct Escrow Agent to
refund to Purchaser the Downpayment (or such portion thereof as shall have been
deposited with Escrow Agent).  Upon such delivery of the Downpayment to
Purchaser, this Agreement shall terminate and neither party to this Agreement
shall have any further rights or obligations hereunder, except for the
Post-Termination Obligations (as hereinafter defined), which shall survive such
termination.


 





 








 








           10.          Purchaser’s
Default. 


 


(a)               
If Purchaser shall default hereunder (after taking into consideration
any cure periods specified in Section 10(b) below, if applicable) in its
obligation to purchase the Premises in the manner required pursuant to this
Agreement or otherwise fails or refuses to perform Purchaser’s obligation to
purchase the Premises in accordance with this Agreement (including, without
limitation, such a failure which is due to a breach of any of Purchaser’s
Representations (as hereinafter defined) discovered prior to Closing) (such default, a “Closing Default”),
Seller, as Seller’s sole remedy (except as provided in this Section 10),
shall have the right to cause Escrow Agent to deliver to Seller the
Downpayment, as and for Seller’s liquidated damages (the parties hereto
acknowledging that it would be difficult or impossible to accurately ascertain
the amount of Seller’s damages), whereupon this Agreement shall terminate and
neither party shall have any further rights or obligations under this Agreement
other than the Post-Termination Obligations, which shall survive such
termination.  If Purchaser shall default under this Agreement as a result of a
breach of Section 17.4 or Section 34, then the Seller shall have
all rights available to it at law or in equity without limitation. 
Notwithstanding the foregoing, the liquidated damages limitation set forth
above shall have no application to any claim made by Seller against Purchaser
based on Purchaser’s obligations under the Post-Termination Obligations, and in
the event Seller has a claim against Purchaser based on any such
Post-Termination Obligations, Seller shall be entitled to recover damages for
such claim in addition to retention of the Downpayment.  For example, if under Section
17.4 of this Agreement Purchaser is obligated to indemnify Seller for
damages of $10,000 and Purchaser defaults under this Agreement, then Seller
shall be entitled to receive $10,000 plus the entire Downpayment plus amounts
under Section 32 of this Agreement.


 


(b)  
If, at any time on or prior to the Closing Date, Purchaser shall default
hereunder and, by the nature of such default, such default is capable of being
cured (such a default, a “Curable Default”), Purchaser shall have until
the earlier to occur of (x)  the date ten (10) days after Purchaser receives
notice from Seller of such Curable Default, and (y) the Closing Date, to cause
such Curable Default to be cured to the reasonable satisfaction of Seller.  If
such Curable Default is not cured on or before the earlier of such dates, then
the Purchaser shall be deemed to have defaulted under this Agreement and the
provisions of Section 10(a) above shall apply to such default.


 


                        11. 
Representations.  


 


                        11.1. Seller hereby
represents and warrants to Purchaser that, as of the Effective Date:


 


                        (a)  Seller is a limited
liability company duly organized and in good standing under the laws of the
State of Delaware, and is (or will be by Closing) in good standing under the
laws of the State where the Premises are located;


 


                       (b) the execution, delivery
and performance of this Agreement by Seller (i) are within Seller’s corporate,
partnership, limited liability company or other applicable powers and (ii) have
been duly authorized by all necessary corporate, partnership, limited liability
company or other applicable action;


 


                      (c) reserved;


 


                        (d) attached hereto as Exhibit
Q is a rent roll (the “Rent Roll”) for the Premises, which Rent
Roll, is accurate in all material respects as of the Effective Date; 


 









16 




 










 








 








                      (e)  except
as set forth on Exhibit R, there is no litigation pending with respect
to the Premises (other than as is covered by insurance), and, to the actual
knowledge of Seller, there is no litigation threatened in writing with respect
to the Premises (other than as is covered by insurance);


 


                     (f) Seller is not a “foreign
person” within the meaning of Section 1445 of the Code;


 


                      (g) except with respect to
Purchaser, Seller has not granted to any person or entity any option or other
right to purchase to the Property and no person or entity has any option or
other right to purchase the Property; 


 


                      (h) Seller has not (i) made a
general assignment for the benefit of creditors, (ii) filed a petition for
voluntary bankruptcy or filed a petition or answer seeking reorganization or
any arrangement or composition, extension or readjustment of its indebtedness,
(iii) consented, in any creditor’s proceeding, to the appointment of a receiver
or trustee of Seller or any of its property or any part thereof, of (iv) been
named as a debtor in an involuntary bankruptcy proceeding or received a written
notice threatening the same;


 


(i)                       
  no condemnation or eminent domain proceedings are pending or, to the
actual knowledge of Seller,  have been threatened in writing with respect to
the Premises;


 


                     (j) Seller does not directly
employ any employees;


 


                      (k)  to the actual knowledge
of Seller, except as set forth in the environmental reports listed on Exhibit
S, Seller has not received any written notice alleging a violation of any
law with respect to the Premises relating to any Environmental Conditions (as
hereinafter defined); 


 


                       (l)   Exhibit B sets
forth a true, correct and complete list of all Existing Leases in effect as of
the Effective Date (and none of the Existing Leases have been modified, except
as set forth on Exhibit B).  Each Existing Lease set forth on Exhibit
B represents the entire written agreement between Seller and the applicable
tenant with respect to the Premises;


 


                     (m) to the actual knowledge of
Seller, except as set forth on Exhibit D, Seller has not received any
written notice of any Existing Violation which remains uncured as of the
Effective Date;  


 


                      (n)   except as otherwise set
forth on Exhibit T, Seller has performed all work required of the landlord
under the Existing Leases and paid in full all Leasing Costs payable by Seller
in connection with the Existing Leases;


 


                     (o) Seller is not (i)
identified on any Governmental List (as hereinafter defined), or otherwise
qualifies as a Prohibited Person (as hereinafter defined) or (ii) in violation
of any applicable law, rule or regulation relating to anti-money laundering or
anti-terrorism, including, without limitation, any applicable law, rule or
regulation related to transacting business with Prohibited Persons or the
requirements of any Anti-Terrorism Law (as hereinafter defined).  As used
herein the term (A) “Anti-Terrorism Law” shall mean (w) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. Law No. 107-56, 115 Stat.
296 (2001); (x) the International Emergency Economic Powers Act, 50 U.S.C. §§
1701 et. seq. (2003); (y) the Trading with the Enemy Act, 50 U.S.C. App.
§§ 1 et. seq. (2003); and (z) other similar laws enacted or promulgated
from time to time; in each case, together with any executive orders, rules or
regulations promulgated thereunder, including, without limitation, temporary
regulations, all as amended or otherwise modified from time to time; (B) “Governmental
List” shall mean (x) the List of Specially Designated Nationals and Blocked
Persons promulgated by the U.S. Department of the Treasury Office of 







17 




 










 








 








Foreign Assets Control from time to time and (y) any
other similar list (including, without limitation, any list of Prohibited
Persons) promulgated by any governmental authority from time to time; and (C) “Prohibited
Person” shall mean any Person who is (x) designated by the United States
federal government as a terrorist or as a suspected terrorist, whether on a
Governmental List, or otherwise or (y) otherwise subject to trade, anti-money
laundering or anti-terrorism restrictions under United States federal or state
law from time to time, including, without limitation, under any Anti-Terrorism
Law;


 


                    (p) Seller has not delivered
any written notices to any of the tenants under the Existing Leases asserting
that such tenant is in default under any of the Existing Leases (other than
defaults which have been cured or waived), and, to Seller’s actual knowledge,
no tenant is in default under any of the Existing Leases;


 


                   (q) Except as set forth in the
Existing Leases, no tenants of the Premises under Existing Leases are entitled
to any concessions, rebates, allowances, or free rent for any period after the
Closing; and


 


                   (r) to the actual knowledge of
Seller, no event of default currently exists under the Assumed Loan.


 


                   11.2.  Purchaser hereby
represents and warrants to Seller that, as of the Effective Date:


 


                    (a) Except as provided in this
Agreement, Purchaser has not paid or agreed to pay any consideration to Seller
or to any agent or representative of Seller in order to induce Seller to enter
into this Agreement;


 


                    (b) Purchaser is a limited
liability company, validly existing, duly organized and in good standing under
the laws of the State of Ohio and is (or will be by Closing) in good standing
under the laws of the State where the Premises are located; 


 


                     (c) the execution, delivery
and performance of this Agreement by Purchaser (i) are within Purchaser’s
corporate, partnership, limited liability company or other applicable powers,
and (ii) have been duly authorized by all necessary corporate, partnership,
limited liability company or other applicable action;


 


                    (d) Purchaser is not and is not
acting on behalf of (i) an “employee benefit plan” within the meaning of
Section 3(3) of ERISA/the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), (ii) a “plan” within the meaning of Section 4975 of
the Code or (iii) an entity deemed to hold “plan assets” within the meaning of
29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA, of any such
employee benefit plan or plan;


 


                  (e) Neither Purchaser, nor any person or entity who owns
any direct or indirect equity or other interest in or controls Purchaser is (x)
identified on any Governmental List, or otherwise qualifies as a Prohibited
Person or (y) in violation of any applicable law,
rule or regulation relating to anti-money laundering or anti-terrorism,
including, without limitation, any applicable law, rule or regulation related
to transacting business with Prohibited Persons or the requirements of any
Anti-Terrorism Law.  No funds or assets directly or indirectly invested in
Purchaser constitute the property of or are beneficially owned, directly or
indirectly, by any person or entity which is (A) identified on any Governmental
List, or otherwise qualifies as a Prohibited Person or (B) in violation of any
applicable law, rule or regulation relating to anti-money laundering or
anti-terrorism, including, without limitation, any applicable law, rule or
regulation related to transacting business with Prohibited Persons or the
requirements of any Anti-Terrorism Law; and 




 








 








 


             (f) Purchaser is a Permitted Assignee
(as hereinafter defined) or an Affiliated Assignee (as hereinafter defined).


 


            11.3. (a)  Each of the representations
and warranties set forth in Section 11.1 of this Agreement
(collectively, “Seller’s Representations”) shall be deemed to have been
remade at and as of the Closing Date with the same force and effect as if first
made on and as of the Closing Date; provided, that, at the Closing,
Seller may submit to Purchaser one (1) or more schedules, certified by Seller
as true and correct as of the Closing Date, which modify or update any of
Seller’s Representations, or any exhibits referred to therein, to reflect
matters, if any, which arise subsequent to the Effective Date, and Seller’s
Representations shall be deemed to have been remade with the changes, if any,
set forth in such schedule or schedules; provided, however,
notwithstanding anything to the contrary contained in this Agreement,
including, without limitation, Section 11, Seller’s Representation made
in Section 11.1(r) shall not be required to be remade at and as of the
Closing Date (i.e., such Seller’s Representation shall only be required
to be true in all material respect as of the Effective Date).


 


(b) If prior to Closing, Seller’s Representations,
as made as of the Effective Date, are determined to be untrue in any material
respect as of the Effective Date or if Seller’s Representations, as remade on
the Closing Date, shall result in Seller’s Representations made as of the
Effective Date being untrue in any material respect as of the Closing Date,
then, Purchaser may, at Purchaser’s option and as Purchaser’s sole remedy (Purchaser
specifically waiving any right to bring any action against Seller for damages
arising therefrom), either (i) terminate this Agreement by notice in writing to
Seller, in which event (subject to the provisions of this Section 11.3)
the provisions of Section 9 of this Agreement shall apply to such
termination, and, solely in the event that a Seller’s Representation was
actually false in any material respect when made on the Effective Date (as
opposed to a Seller’s Representation that first becomes untrue after the
Effective Date, due to changed circumstances or matters which arise or first
come to Seller’s attention after the Effective Date), Seller shall reimburse
Purchaser for Purchaser’s reasonable out-of-pocket expenses actually incurred
by Purchaser in connection with the transaction contemplated by this Agreement,
through the date of such termination; provided, however, such
expenses shall not exceed Seventy Five Thousand and 00/100 Dollars ($75,000),
in the aggregate, when taking into account any other Seller reimbursement of
Purchaser’s expenses set forth in this Agreement)(such obligation of Seller
shall survive such termination of this Agreement and shall be payable upon
demand by Purchaser), or (ii) waive the same and accept title to the Premises
without any abatement of the Purchase Price; provided, however,
that Purchaser shall have no right to terminate this Agreement as a result of
any modification to or updating of Seller’s Representations to reflect (it
being acknowledged and agreed that Purchaser may still have other rights to
terminate this Agreement pursuant to the express terms and conditions of this
Agreement, including, Sections 5, 14  and 36): 


 


                   (w) Approved New Leases and/or
Approved Lease Amendments;


 


                     (x)  changes after the
Effective Date to the Rent Roll that arise after the Effective Date (it being
expressly acknowledged and agreed by Purchaser that the risk of changes to the
Rent Roll or the leasing status of the Premises, for any reason after the
Effective Date is Purchaser’s risk and no such change is intended to grant
Purchaser any right to terminate this Agreement or obtain any damages from
Seller);


 


                     (y)  changes after the
Effective Date to the schedule of litigation set forth in Exhibit R to
reflect any additions or deletions other than litigation that, if adversely
determined, would affect title to the Premises (it being expressly acknowledged
and agreed that (A) the risk of changes after the Effective Date to the schedule
of litigation for any reason that does not affect title to the Premises or does
not seek to restrain or prevent the sale of the Property to Purchaser,
including, without limitation, landlord/tenant 


 








 








litigation
and claims covered by insurance, after the Effective Date is Purchaser’s risk
(meaning that no such change is intended to grant Purchaser any right to
terminate this Agreement or obtain any damages from Seller); provided, however,
if at Closing, the change to the schedule of litigation is a claim against
Seller which relates to the Premises, which is not covered by insurance and, if
adversely determined, is anticipated to result in losses and damages exceeding
$100,000, as reasonably determined by Seller, then Purchaser shall be entitled
to terminate this Agreement (if at all) subject to and in accordance with the
provisions of this Section 11.3 but no such changes to the schedule of
litigation shall, if not cured by Seller, entitle Purchaser to bring any action
against Seller or constitute a breach of any representation or warranty of
Seller, including, without limitation, any Seller’s Representation), and (B)
changes after the Effective Date to the schedule of litigation for matters
affecting title to the Premises, including, without limitation, any lawsuit,
arbitration or other legal proceeding which seeks to restrain or prevent the
sale of the Property to Purchaser, is Seller’s risk (it being acknowledged that
any such changes to the schedule of litigation (other than pursuant to clause
(A) above) shall (1) entitle Seller to terminate this Agreement by
delivering notice of such termination to Purchaser, in which event the
provisions of Section 9 of this Agreement shall apply to such
termination or (2) entitle Purchaser to terminate this Agreement (if at all)
subject to and in accordance with the provisions of this Section 11.3
but no such changes to the schedule of litigation shall, if not cured by
Seller, entitle Purchaser to bring any action against Seller or constitute a
breach of any representation or warranty of Seller, including, without
limitation, any Seller’s Representation); 


 


                    (z) actions that Seller is not
prohibited from taking pursuant to the terms of this Agreement; 


 


                  (aa) any Violations that are not
listed on Exhibit D attached hereto or condemnation or eminent domain
proceedings commenced after the Effective Date (it being agreed that
Purchaser’s rights in respect of Violations are governed by Section 5 above and
Purchaser’s rights in respect of condemnation and eminent domain proceedings
are governed by Section 14 below); or


 


                 (bb)  any written notices of
default delivered by Seller to any of the tenants under the Existing Leases
after the Effective Date asserting that such tenant is in default under any of
the Existing Leases (or any default that Seller first obtains actual knowledge
of after the Effective Date); provided, however, if at Closing
there are events of default existing under the Existing Leases which relate to
the failure by tenants under such Existing Leases to make payments of base
rental amounts and other charges due under such Existing Leases in excess of
$100,000 (on an aggregate basis for all such Existing Leases), then, Purchaser
shall be entitled to terminate this Agreement (if at all) subject to and in
accordance with the provisions of this Section 11.3 but no such event of
defaults shall, if not cured by Seller, entitle Purchaser to bring any action
against Seller or constitute a breach of any representation or warranty of
Seller, including, without limitation, any Seller’s Representation). 


 


                (cc) Notwithstanding the provisions
of Section 11.3(b) of this Agreement, Purchaser shall have no right to
terminate this Agreement pursuant to the provisions of this Section 11.3
as a result of the untruth of any Seller’s Representation if, within ten (10)
days after the delivery of Purchaser’s notice terminating this Agreement,
Seller delivers written notice to Purchaser of Seller’s intention to cure, in
which event Purchaser’s notice of termination shall be without effect and
Seller shall, at Seller’s option, either:


 


                (x) cause such untrue Seller’s
Representation to be corrected at or before Closing (and Seller shall be
entitled to adjourn the Closing Date one or more times (but for not more than
fifteen (15) days in the aggregate) to effectuate such cure), and if Seller
fails to effectuate such cure on or before the Closing Date (as same may have
been adjourned), then Purchaser shall have the right at Closing, as Purchaser’s
sole remedy (Purchaser specifically waiving any right to bring an action
against Seller for damages arising therefrom), to either (i) terminate this
Agreement by notice in writing to Seller, in which event 







20 




 










 








 








(subject
to the provisions of this Section 11.3) the provisions of Section 9
of this Agreement shall apply to such termination, and, solely in the event
that a Seller’s Representation was actually false in any material respect when
made on the Effective Date (as opposed to a Seller’s Representation that first
becomes untrue after the Effective Date, due to changed circumstances or
matters which arise or first come to Seller’s attention after the Effective
Date), Seller shall reimburse Purchaser for Purchaser’s reasonable out-of-pocket
expenses actually incurred by Purchaser in connection with the transaction
contemplated by this Agreement, through the date of such termination; provided,
however, such expenses shall not exceed Seventy Five Thousand and 00/100
Dollars ($75,000), in the aggregate, when taking into account any other Seller
reimbursement of Purchaser’s expenses set forth in this Agreement)(such
obligation of Seller shall survive such termination of this Agreement and shall
be payable upon demand by Purchaser), or (ii) waive the same and accept title
to the Premises without any abatement of the Purchase Price; or 


 


                  (y) credit Purchaser at Closing
with an amount equal to the diminution of value to the Premises caused by the
untrue Seller’s Representation (it being agreed that if there is a dispute as
to the amount of the credit under this subparagraph (y) then the
provisions of Section 42 of this Agreement shall apply).


 


                 (d) If (i) prior to the Closing
Date, Purchaser delivers notice to Seller that any Seller’s Representations are
false in any material respect as hereinabove provided and/or (ii) on the date
to which Seller adjourns the Closing pursuant to Section 11.3(c)(x)
above, Purchaser delivers notice to Seller that Seller has failed to cure the
relevant untrue Seller’s Representations, then Purchaser shall be required to
elect one of the remedies set forth in Section 11.3(b) or Section
11.3(c)(x) (as applicable) above prior to the Closing Date and if Purchaser
fails to make such an election same shall conclusively mean that Purchaser has
determined to proceed under clause (i) of Section 11.3(b) above
or clause (i) of Section 11.3(c)(x) above (as applicable). 
Without limitation of the foregoing, on or before the earlier to occur of (x)
the Closing Date or (y) the date that is ten (10) days after the date that
Purchaser becomes aware that any of Seller’s Representations are untrue in any
material respect, Purchaser shall deliver notice thereof to Seller stating
whether Purchaser desires to proceed in respect thereof under clause (i)
or clause (ii) of Section 11.3(b) above, or clause (i) or clause
(ii) of Section 11.3(c)(x) above, whichever is applicable.  In the
event that Purchaser fails to so notify Seller of any such untrue Seller’s
Representation(s)  within such ten (10) day (or shorter) period, then Purchaser
shall be deemed to have waived Purchaser’s right to terminate this Agreement
and/or assert the untruth of such representation against Seller pursuant to the
terms hereof.  Without limitation of the foregoing, in the event that Purchaser
becomes aware that any of Seller’s Representations are untrue in any material
respect prior to the Closing Date and nonetheless proceeds to Closing without
making a claim under this Section 11.3, then same shall be deemed to be
a waiver by Purchaser of any further right to make a claim arising out of such
untrue nature of such Seller’s Representation(s).


 


                    11.4. Seller’s Representations
(as modified or updated by Seller in accordance with the provisions of Section
11.3 of this Agreement) shall survive the Closing for a period of one (1)
year.  Each of the representations and warranties set forth in Section 11.2
of this Agreement (collectively, “Purchaser’s Representations”) shall be
deemed to have been remade at and as of the Closing Date with the same force
and effect as if first made on and as of the Closing Date.  Purchaser’s
Representations shall survive the Closing for a period of one (1) year; provided,
however, the Purchaser’s Representations set forth in Sections 11.2
(b), (c), (d), and (f) shall survive the Closing
indefinitely.


 


                   11.5. If any of Purchaser’s
Representations or Seller’s Representations is discovered to be untrue in any
material respect after Closing, and a claim is asserted within the time periods
set forth in Section 11.4 of this Agreement, then Seller or Purchaser,
as the case may be, shall, subject to the provisions of Sections 19 and 37 
of this Agreement, have the right to pursue any and all remedies available
against Purchaser or Seller, as the case may be, as a result of such
inaccuracy.




 

 


               11.7.  For purposes of this
Agreement, (a) the term “to the actual knowledge of Seller” and words of
similar import, shall mean the actual knowledge of Randall C. Stein and Thomas
R. Pisano without any obligation to make inquiry of any kind, and (b) the term
“to the actual knowledge of Purchaser” and words of similar import, shall mean
the actual knowledge of Hal Scudder and Joel Staffilino.


 


             12.    
  Fixtures and Personal Property.


 


             All of Seller’s right, title and
interest in and to all fixtures, machinery, equipment and other articles of
personal property attached or appurtenant to, or used in connection with, the
Premises are included in this sale. 


 


           
13.        Brokers. 


 


             13.1.  Purchaser represents and
warrants that Purchaser has not dealt with any broker, agent, finder or similar
party in connection with the transaction contemplated hereby other than CB
Richard Ellis (“Broker”) and Purchaser hereby indemnifies and holds
harmless Seller and each Seller Exculpated Party (as hereinafter defined) from
any liability, cost or expense (including, without limitation, reasonable
attorneys’ fees and costs of enforcement of the foregoing indemnity) arising
out of the falsity of the foregoing representation. 


 


            13.2.  Seller represents and warrants
that Seller has not dealt with any broker, agent, finder or similar party in
connection with the transaction contemplated hereby other than Broker, and
Seller hereby indemnifies and holds harmless Purchaser and each Purchaser
Exculpated Party (as hereinafter defined) from any liability, cost or expense
(including, without limitation, reasonable attorneys’ fees and costs of
enforcement of the foregoing indemnity) arising out of the falsity of the
foregoing representation.  Seller agrees to pay Broker a commission pursuant to
a separate agreement. 


 


                      13.3.  The provisions of this
Section 13 shall survive the Closing or any earlier termination of this
Agreement.


 


          14.     
  Condemnation and Destruction.


 


                       14.1.   If, prior to the
Closing Date, a Non-Material Taking (as hereinafter defined) occurs, then (i)
Seller shall notify Purchaser of such fact, (ii) Purchaser shall not have any
right or option to terminate this Agreement and this Agreement shall continue
in effect, (iii) at the Closing, Purchaser shall accept the Premises subject to
such Non-Material Taking or so much of the Premises as remains after such
Non-Material Taking, as the case may be, with no abatement of the Purchase
Price, and (iv) at the Closing, Seller shall assign and turn over to Purchaser,
and Purchaser shall be entitled to receive and keep, all of Seller’s interest
in and to all awards for such Non-Material Taking.  If, prior to the Closing
Date, a Material Taking (as hereinafter defined) occurs, then (a) Seller shall
notify Purchaser of such fact and (b) Purchaser shall have the right to
terminate this Agreement by delivering notice of such termination to Seller on
or before the earlier of the Closing Date or the date ten (10) days after it
receives such notice from Seller.   In the event that Purchaser delivers a
notice of termination within such ten (10) day (or shorter) period (or fails to
waive its termination right in writing within such ten (10) day (or shorter)
period)), this Agreement shall terminate upon the delivery of the notice of
termination (or upon the expiration of such ten (10) day (or shorter period) in
the event the Purchase fails to waive the termination right in writing) and the
provisions of Section 9 of this Agreement shall apply to such
termination.  If Purchaser waives its termination right in writing within such
ten (10) day (or shorter) period, then (x) Purchaser shall not have any right
or option to terminate this Agreement due to such 







22 




 










 








 








Material
Taking and this Agreement shall continue in effect, (y) at the Closing,
Purchaser shall accept the Premises subject to such Material Taking or so much
of the Premises as remains after such Material Taking, as the case may be, with
no abatement of the Purchase Price, and (z) at the Closing, Seller shall assign
and turn over to Purchaser, and Purchaser shall be entitled to receive and
keep, all of Seller’s interest in and to all awards for such Material Taking.


 


                     14.2.  If, prior to the
Closing Date, a Non-Material Casualty (as hereinafter defined) occurs, then (i)
Seller shall notify Purchaser of such fact, (ii) Purchaser shall not have any
right or option to terminate this Agreement and this Agreement shall continue
in effect, (iii) at the Closing Purchaser shall accept the Premises in the then
“as is” condition of such Premises with no abatement of the Purchase Price, and
(iv) at the Closing, Seller shall assign and turn over to Purchaser, and
Purchaser shall be entitled to receive and keep, all of Seller’s interest in
and to all insurance proceeds payable in connection with such Non-Material Casualty,
and Purchaser shall receive a credit against the Purchase Price at the Closing
in the amount of any loss deductible payable in connection with such insurance
proceeds.  If, prior to the Closing Date, a Material Casualty (as hereinafter
defined) occurs, then (a) Seller shall notify Purchaser of such fact and (b)
Purchaser shall have the right to terminate this Agreement by delivering notice
of such termination to Seller on or before the earlier of the Closing Date or
the date ten (10) days after it receives such notice from Seller.  In the event
that Purchaser delivers a notice of termination within such ten (10) day (or
shorter) period (or fails to waive its termination right in writing within such
ten (10) day (or shorter) period)), this Agreement shall terminate upon the
delivery of the notice of termination (or upon the expiration of such ten (10)
day (or shorter period) in the event the Purchase fails to waive the
termination right in writing) and the provisions of Section 9 of this
Agreement shall apply to such termination.  If Purchaser waives its termination
right in writing within such ten (10) day (or shorter) period, then (x)
Purchaser shall not have any right or option to terminate this Agreement due to
such Material Casualty and this Agreement shall continue in effect, (y) at the
Closing Purchaser shall accept the Premises in the then “as is” condition of
the Premises with no abatement of the Purchase Price, and (z) at the Closing,
Seller shall assign and turn over to Purchaser, and Purchaser shall be entitled
to receive and keep, all of Seller’s interest in and to all insurance proceeds
payable in connection with such Material Casualty, and Purchaser shall receive
a credit against the Purchase Price at the Closing in the amount of any loss deductible
payable in connection with such insurance proceeds.  


 


           14.3. Notwithstanding anything to the
contrary set forth in this Section 14, Seller shall have no obligation
to repair any damage or destruction to the Premises caused by any Casualty (as
hereinafter defined) or to otherwise restore the Premises after any Taking (as
hereinafter defined), and Seller shall have no other obligation or liability of
any kind or nature in respect of any Casualty or Taking affecting the Premises,
provided however, notwithstanding the foregoing, Seller shall reasonably secure
the Premises.


 


          14.4.  As used
herein, the following terms shall have the following meanings:


 


                     “Casualty” means the
destruction of all or a portion of the Premises by fire or other casualty.


 


                    “Material Casualty”
means a Casualty affecting more than ten percent (10%) of the Premises. 


 


                    “Material Taking” means
a Taking (a) affecting more than ten percent (10%) of the Premises or (b)
affecting any means of ingress thereto or egress therefrom. 


 


                  “Non-Material Casualty”
means any Casualty other than a Material Casualty.


 


                  “Non-Material Taking”
means any Taking other than a Material Taking.


 









23 




 










 








 








                       “Taking”
means any taking of any portion of the Premises by condemnation or eminent
domain.


 


          15.     
Escrow. 


 


          15.1.   Escrow Agent shall deposit the
Deposit in an interest bearing escrow account in a federally insured
institution.  


 


           15.2.  If the Closing takes place,
Escrow Agent shall deliver the Downpayment to, or upon the instructions of,
Seller at the Closing.


 


           15.3.  If Purchaser or Seller terminates
this Agreement pursuant to the express provisions of this Agreement (including Section
9 of this Agreement), then Escrow Agent shall pay the Downpayment as
required by the terms of this Agreement, provided, however, that
notwithstanding the foregoing, Escrow Agent shall not pay over the Downpayment
to any party hereunder unless and until the following procedure is complied
with:


 


(a)                     
      the party requesting disbursement of the Downpayment (the “Requesting
Party”) shall deliver notice to Escrow Agent and the other party hereto
requesting such disbursement;


 


(b)                    
      within five (5) days after receipt of such notice of request,
Escrow Agent shall deliver notice to all other parties hereto stating that the
Requesting Party has requested such disbursement (and including a copy of the
Requesting Party’s notice);


 


(c)                     
      within ten (10) days after receipt of Escrow Agent’s notice, the
non-requesting party shall either (i) agree to permit such disbursement by
Escrow Agent, or (ii) inform Escrow Agent that the non-requesting party does
not agree to permit such disbursement;


 


(d)                    
      if the non-requesting party acts under clause (i) of Section
15.3(c), then Escrow Agent shall make the disbursement as requested by the
Requesting Party;


 


(e)                     
      if the non-requesting party acts under clause (ii) of Section
15.3 (c), then Escrow Agent shall not make any disbursement except as
provided in Section 15.5 of this Agreement; and


 


                      (f)                  if the
non-requesting party fails to respond during the foregoing ten (10) day period,
same shall be deemed to be the response of the non-requesting party under clause
(i) of Section 15.3(c) on the last day of such ten (10) day period.


 


                   15.4.   It is agreed that;


 


(a)                   
  the duties of Escrow Agent are only as herein specifically provided and
are purely ministerial in nature, and Escrow Agent shall incur no liability
whatever except for willful misconduct or gross negligence, as long as Escrow
Agent has acted in good faith;


 


(b)                  
   in the performance of Escrow Agent’s duties hereunder, Escrow Agent
shall be entitled to rely upon any document, instrument or signature believed
by it to be genuine and signed by either or both of the parties or their
successors;


 


(c)                   
   Escrow Agent may assume that any person purporting to give any notice
or instructions in accordance with the provisions hereof has been duly
authorized to do so;


 




 








 








(d)                  
     Escrow Agent shall not be bound by any modification, cancellation or
rescission of this Agreement unless in writing and signed by Seller and
Purchaser, and to the extent such modification, cancellation or rescission of
this Agreement would affect Escrow Agent’s rights or obligations under this
Agreement, by Escrow Agent;


 


(e)                   
     Seller and Purchaser shall jointly and severally reimburse and
indemnify Escrow Agent for, and hold it harmless against, any and all loss,
liability, costs or expenses in connection herewith, including reasonable
attorneys’ fees and disbursements, incurred without willful misconduct or gross
negligence on the part of Escrow Agent arising out of or in connection with Escrow
Agent’s acceptance of, or the performance of Escrow Agent’s duties and
obligations under, this Agreement, as well as the reasonable costs and expenses
of defending against any claim or liability arising out of or relating to this
Agreement; and


 


(f)                   
      Seller and Purchaser each hereby release Escrow Agent from any act
done or omitted to be done by Escrow Agent in good faith without gross
negligence or willful misconduct in the performance of Escrow Agent’s duties
hereunder.


 


                     15.5.          Escrow Agent is
acting as a stake-holder only with respect to the Downpayment.  If there is any
dispute as to whether Escrow Agent is obligated to deliver all or any portion
of the Downpayment or as to whom the proceeds of the Downpayment are to be
delivered, Escrow Agent shall not be required to make any delivery, but in such
event Escrow Agent shall hold the Downpayment until receipt by Escrow Agent of
an authorization in writing, signed by all of the parties having any interest
in such dispute, directing the disposition of the Downpayment, or, in the
absence of such authorization, Escrow Agent shall hold the Downpayment, until
the final determination of the rights of the parties in an appropriate
proceeding.  If such written authorization is not given, or proceedings for
such determination have not begun within ninety (90) days after the date Escrow
Agent receives written notice of such dispute, and thereafter diligently
continued, Escrow Agent may, but is not required to, bring an appropriate action
or proceeding for leave to deposit the Downpayment in court, pending such
determination.  Escrow Agent shall be reimbursed for all costs and expenses of
such action or proceeding including, without limitation, reasonable attorneys’
fees and disbursements, by the party determined not to be entitled to the
Downpayment, or if the Downpayment is split between the parties hereto, such
costs of Escrow Agent shall be split, pro  rata, between Seller
and Purchaser, based upon the amount of Downpayment received by each.  Upon
making delivery of the Downpayment, in the manner provided in this Agreement,
Escrow Agent shall have no further liability hereunder.


 


                 15.6.           Escrow Agent has
executed this Agreement solely to confirm (i) receipt of the Deposit and (ii)
that Escrow Agent, upon receipt thereof, will hold the Downpayment in escrow,
pursuant to the provisions of this Agreement.


 


          16. Closing
Costs.


 


           Purchaser shall pay (a) (i) fifty
percent (50%) all title insurance premiums (after taking into consideration any
so-called re-issue credit available to Seller based on Seller’s existing
owner’s title policy), and (ii) any and all premiums charged by the Title
Company for endorsements (except those endorsements, if any, that Seller
expressly agrees in writing to pay for)  and affirmative coverages to the title
policy and all other title insurance company charges, (b) all survey costs in
connection with the transaction contemplated by this Agreement, (c) fifty
percent (50%) of any escrow fees charged by Escrow Agent, (d) all due diligence
costs incurred by or on behalf of Purchaser, (e) all recording fees and charges
for the Deed, (f) all sales and use taxes with respect to the transaction
contemplated hereby, if any, and (g) except as expressly provided in Section
49 below, all costs relating to the assumption of the Assumed Loan by
Purchaser (whether or not Purchaser assumes the Assumed Loan).  Seller shall
pay (x) 


 

all state, county, municipal and/or local
conveyance taxes with respect to the recording of the Deed, and (y) fifty
percent (50%) of any escrow fees charged by Escrow Agent, (z) cost to record
the mortgage release if the Assumed Loan is not assumed by Purchaser, and (aa)
fifty percent (50%) all title insurance premiums (after taking into
consideration any so-called re-issue credit available to Seller based on
Seller’s existing owner’s title policy); provided, however, in no
event shall Seller have to pay any premiums charged by the Title Company for
endorsements (except those endorsements, if any, that Seller expressly agrees
in writing to pay for), and affirmative coverages to the title policy and all
other title insurance company charges.  Each party hereto shall pay such
party’s own legal fees and all of such party’s other expenses in connection
with this transaction.


 


          17.       
Seller’s Covenants.


 


          Seller agrees as
follows:


 


                            17.1. Between the
Effective Date and the Closing Date or earlier termination of this Agreement,
Seller will provide or cause to be provided substantially such services with
respect to the Premises that have been provided by Seller in the past in
accordance with Seller’s customary practice.


 


                            17.2. Between the
Effective Date and the Closing Date or earlier termination of this Agreement,
Seller will maintain casualty and liability insurance with respect to the
Premises (which insurance may be effected under a blanket policy or policies of
insurance) in accordance with Seller’s past practice.


 


                            17.3. Between the
Effective Date and the Closing Date or earlier termination of this Agreement,
subject to Section 34 of this Agreement, Seller will make all books,
records, billing information, Leases, the Sanborn Contract, and other documents
relating to the operation of the Premises available to Purchaser and
Purchaser’s accountants and attorneys, upon advance written request therefor,
and will permit Purchaser’s accountants and attorneys to examine the same,
during regular business hours, at Purchaser’s sole cost and expense, provided,
however, notwithstanding the foregoing, Seller shall not be required to
make available to Purchaser any of the foregoing to the extent that same (i)
constitutes privileged information pertaining to any potential or existing
litigation or other proceeding or (ii) constitutes confidential information
prepared by Seller pertaining to the Premises (including internal evaluations,
appraisals, reports or other documentation and information pertaining to the
business relationships among the members comprising Seller).  The making
available to Purchaser of the foregoing shall in no event be deemed to
constitute a representation by Seller as to the accuracy, correctness or
completeness thereof.


 


                         17.4. Between the
Effective Date and the Closing Date or earlier termination of this Agreement,
subject to the rights of all tenants and other occupants of the Premises,
Seller will permit Purchaser and Purchaser’s engineers, architects, agents and
employees, at Purchaser’s sole cost and expense, to inspect the Premises and
all portions thereof from time to time upon reasonable advance request therefor
and accompanied by a representative of Seller; provided, however,
Purchaser will not be permitted to perform any such inspection unless and until
Purchaser delivers to Seller reasonably satisfactory evidence that Purchaser
has obtained such insurance as Seller shall reasonably require in connection
with any such inspection, which insurance shall name Seller and Seller’s
managing agent as additional insureds (it being agreed by Purchaser that such
insurance shall include (i) policies of workers’ compensation and employers’
liability for all employees of Purchaser, (ii) commercial general liability
insurance which insure Purchaser’s Representatives (as hereinafter defined)
with liability insurance limits of not less than $3,000,000 combined single
limit on a per location and occurrence basis for personal injury and property
damage, (iii) pollution legal liability coverage of not less than $3,000,000
per claim/annual aggregate for any of Purchaser’s environmental consultants),
and (iv) Automobile Liability 







26 




 










 








 








Insurance for Bodily
Injury and Property Damage in the amount of $1,000,000 combined and covering
all owned, non-owned and hired vehicles.  
In no event shall Purchaser be permitted to conduct any drilling or other
invasive testing of the Premises without the prior written consent of Seller. 
Purchaser hereby agrees to repair and restore any portion of the Premises
damaged as a result of any inspection of the Premises by Purchaser and, in
addition, hereby indemnifies and holds harmless Seller and each Seller
Exculpated Party from and against any and all damages, demands, claims, losses,
liabilities, costs (including the cost of remediation, if necessary) and
expenses (including, without limitation, reasonable attorneys’ fees and
disbursements and costs incurred in the enforcement of the foregoing indemnity)
incurred by Seller and any Seller Exculpated Party by reason of or in
connection with any entry onto, or inspection of, the Premises by Purchaser or
Purchaser’s agents, employees, representatives or contractors in connection
therewith, which indemnity shall survive the Closing or earlier termination of
this Agreement. 


 


                        17.5. Between the Effective
Date and the Closing Date or earlier termination of this Agreement, Seller will
cause to be performed all normal operational repairs and replacements required
to be made to the Premises in order to maintain the Premises in the condition
of the Premises as of the Effective Date, reasonable wear and tear and natural
deterioration and damage by fire or other casualty or condemnation excepted,
provided that nothing set forth in this Section 17.5 shall have the
effect of requiring Seller to make any repairs or replacements of a capital
nature to the Premises.


 


                       17.6. Between the Effective
Date and the Closing Date or earlier termination of this Agreement, if
requested in writing by Purchaser, Seller shall provide Purchaser with copies
of any updated rent rolls and accounts receivable reports that may have been
prepared by Seller as of the date of such written request.


 


                       17.7. Between the
Effective Date and the Closing Date or earlier termination of this Agreement,
(i) Seller shall not show or otherwise offer for sale the Property or any
interest therein, and (ii) Seller shall not commit, agree to, or acquiesce in,
any act which could, affect or impair the current zoning of the Premises.


 


                       17.8. Between the
Effective Date and the Closing Date or earlier termination of this Agreement, Seller
shall (i) promptly deliver any written notice of default received by Seller
under the Assumed Loan (it being agreed that no such notice of default shall
constitute a default by Seller hereunder, constitute a failure of condition
precedent in favor of Purchaser or grant Purchaser any right or remedy), and
(ii) use commercially reasonably efforts to provide any non-privileged or
confidential information received by Seller related to any litigation covered
by insurance prior to the expiration of the Due Diligence Period (and
thereafter) (it being agreed that Seller’s inability to provide such
information (and no information actually provided) shall constitute a default
by Seller hereunder, constitute a failure of condition precedent in favor of
Purchaser or grant Purchaser any right or remedy).


 


          18. Approval of
Leases, Contracts.


 


                      18.1. From and after the
Effective Date through the earlier of the Closing Date or the termination of
this Agreement in accordance with the terms hereof, in the event that Seller
desires to enter into (i) any amendment, modification, renewal or extension of
any Existing Lease (a “Proposed Lease Amendment”) or (ii) any new lease
affecting any portion of the Premises (a “Proposed New Lease”), Seller
shall deliver written notice (“Leasing Notice”) to Purchaser, which
Leasing Notice shall contain a copy of such Proposed Lease Amendment or
Proposed New Lease and request Purchaser’s consent to such Proposed Lease
Amendment or Proposed New Lease.  Within five (5) Business Days after Seller
delivers the Leasing Notice to Purchaser, Purchaser shall deliver written
notice to Seller approving or disapproving such Proposed Lease Amendment or
such Proposed New Lease (and if Purchaser disapproves such Proposed Lease
Amendment or Proposed New Lease Purchaser shall specify in such 







27 




 










 








 








notice the reasons for such disapproval).  Purchaser
shall not unreasonably withhold Purchaser’s consent to any such Proposed Lease
Amendment or Proposed New Lease.  In the event that Purchaser fails to deliver
notice either approving or disapproving a Proposed Lease Amendment or a
Proposed New Lease within the five (5) Business Day period set forth above,
Purchaser shall be deemed to have disapproved such Proposed Lease Amendment or
such Proposed New Lease.  If Purchaser shall approve a Proposed Lease Amendment
or a Proposed New Lease, then Seller shall have the right to execute such
Proposed Lease Amendment or Proposed New Lease and upon such execution and
delivery, the same shall be deemed to be an “Approved Lease Amendment”
or an “Approved New Lease”, as the case may be, for purposes of this
Agreement.  If Purchaser shall reasonably disapprove a Proposed Lease Amendment
or a Proposed New Lease, then Seller shall not enter into such Proposed Lease
Amendment or Proposed New Lease, as applicable.


 


                      18.2. Seller shall have the
right, without the necessity of obtaining the approval of Purchaser, to execute
any amendment, modification, renewal or extension of an Existing Contract and
any new contract affecting the Premises if and to the extent that such amendment,
modification, renewal or extension of an Existing Contract or such new contract
will not be binding upon Purchaser after the Closing Date.  At Closing, Seller
shall terminate (at Seller’s cost) any management agreement in existence with
respect to the Premises. 


 


          19.   
Non-Liability. 


 


          Notwithstanding anything to the contrary
contained in this Agreement, no director, officer, employee, shareholder,
member, manager, partner or agent of Seller nor any of the directors, officers,
employees, shareholders, members, managers, partners, joint venturers or agents
of any of the directors, officers, employees, shareholders, members, managers,
partners, joint venturers or agents of Seller nor any other person,
partnership, limited liability company, corporation, joint venture or trust, as
principal of Seller, whether disclosed or undisclosed (collectively, the “Seller
Exculpated Parties”), shall have any personal obligation or liability
hereunder, and Purchaser shall not seek to assert any claim or enforce any of
Purchaser’s rights hereunder against any Seller Exculpated Party.


 


          Notwithstanding anything to the contrary
contained in this Agreement, no director, officer, employee, shareholder,
member, manager, partner or agent of Purchaser nor any of the directors,
officers, employees, shareholders, members, managers, partners, joint venturers
or agents of any of the directors, officers, employees, shareholders, members,
managers, partners, joint venturers or agents of Purchaser nor any other
person, partnership, limited liability company, corporation, joint venture or
trust, as principal of Purchaser, whether disclosed or undisclosed
(collectively, the “Purchaser Exculpated Parties”), shall have any
personal obligation or liability hereunder, and Seller shall not seek to assert
any claim or enforce any of Seller’s rights hereunder against any Purchaser
Exculpated Party.


 


          20.  
Seller’s Default.


 


            Subject to the provisions of Sections
19 and 37  of this Agreement, if Seller shall default under this
Agreement, then Purchaser, as Purchaser’s sole remedy (Purchaser specifically
waiving any right to bring an action for monetary damages, including, without
limitation, consequential, speculative or punitive damages), may either:


 


                  20.1. deliver written notice to
Seller that Purchaser elects to terminate this Agreement, in which event the
provisions of Section 9 of this Agreement shall apply to such
termination (and in the event of any such termination under this Section
20.1, Seller shall reimburse Purchaser for Purchaser’s reasonable
out-of-pocket expenses actually incurred by Purchaser in connection with the
transaction contemplated by this Agreement, through the date of such
termination; provided, however, such expenses 


 








 








shall
not exceed Seventy Five Thousand and 00/100 Dollars ($75,000), in the
aggregate, when taking into account any other Seller reimbursement of
Purchaser’s expenses set forth in this Agreement) (such obligation of Seller
shall survive such termination of this Agreement and shall be payable upon
demand by Purchaser); or  


 


                  20.2.
bring an action against Seller to seek specific performance of Seller’s
obligations hereunder with respect to the Premises within sixty (60) days following
the earlier of (x) the scheduled Closing Date or (y) the date of Purchaser’s
knowledge of Seller’s breach.  Such action for specific performance will not be
construed to require Seller to cure any title defect (except as specifically
provided in Section 8.3 of this Agreement), cure any untrue
representation, comply with any covenant hereunder, cure any physical condition
existing at the Premises (except as specifically provided in Section 17.5
of this Agreement), or cause any third party to take any action with respect to
the Premises or Seller).


 


Notwithstanding anything to the contrary contained
in this Agreement, in the event that Purchaser becomes aware that Seller has
defaulted in any respect under this Agreement prior to the Closing Date and nonetheless
proceeds to Closing, then same shall be deemed to be a waiver by Purchaser of
any further right to make a claim arising out of such default.  For the
avoidance of doubt, Purchaser and Seller acknowledge that a breach of Seller’s
Representations that is alleged by Purchaser under this Agreement shall not be
deemed to fall within this Section 20 (it being acknowledged that
Purchaser’s remedies in respect thereof are as set forth in Section 11
of this Agreement).


 


            21. Condition
of Premises.


 


                  21.1. Except as otherwise
expressly provided in this Agreement and except for the Seller’s
Representations, Purchaser shall accept the Premises at the Closing in the “as
is”, “where is” condition of the Premises with all faults as of the Closing
Date.  Purchaser agrees that, except as expressly set forth in this Agreement,
Seller shall not be liable for any construction, latent or patent defects in
the Premises, and shall not be bound in any manner whatsoever by any
guarantees, promises, projections, operating expenses, set-ups or other
information pertaining to the Premises made, furnished or claimed to have been
made or furnished by Seller or any other person or entity, including, without
limitation, Broker, or any partner, member, manager, shareholder, employee,
agent, attorney or other person representing or purporting to represent Seller
or Broker, whether verbally or in writing.  Purchaser acknowledges that neither
Seller nor any of the employees, agents or attorneys of Seller has made any
verbal or written representations or warranties whatsoever to Purchaser,
whether express, implied, statutory, or by operation of law, except as
expressly set forth in this Agreement and, in particular, that no such
representations and warranties have been made with respect to the physical or
environmental condition or operation of the Premises, the layout or footage of
the Premises, the actual or projected revenue and expenses of the Premises or
any of the Leases, zoning, environmental, and other laws, regulations and rules
applicable to the Premises, or the compliance of the Premises therewith, the
quantity, quality or condition of the articles of personal property and
fixtures included in the transactions contemplated hereby, the use or occupancy
of the Premises or any part thereof or any other matter or thing affecting or
relating to the Premises or the transactions contemplated hereby, except as
specifically set forth in this Agreement.  Purchaser has not relied and is not
relying upon any representations or warranties, other than Seller’s
Representations and the representations of Seller set forth in Section 13.2
of this Agreement, or upon any statements made in any informational materials
with respect to the Premises provided by Seller or any other person or entity,
including Broker or any shareholder, member, manager, employee, agent, attorney
or other person representing or purporting to represent Seller or Broker. 
Without limitation of the foregoing, Purchaser specifically acknowledges and agrees
that it has assumed the risk of changes in the condition of the Premises
between the Effective Date and the Closing Date and no adverse change in such
condition shall grant Purchaser any right to terminate this Agreement (except
as expressly set forth in Section 14 of this Agreement) or to obtain any
damages against Seller.  IN ADDITION TO, AND 







29 




 










 








 








WITHOUT
LIMITATION OF THE FOREGOING, EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER
MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, AS TO THE
QUANTITY, QUALITY, MERCHANTABILITY, TITLE, MARKETABILITY, FITNESS, OR
SUITABILITY FOR A PARTICULAR PURPOSE OF THE PREMISES OR ANY COMPONENT THEREOF,
AND THE PREMISES AND EACH COMPONENT THEREOF ARE SOLD IN AN “AS IS”, “WHERE IS”
CONDITION, WITH ALL FAULTS. BY EXECUTING THIS AGREEMENT, EXCEPT AS SET FORTH IN
THIS AGREEMENT, PURCHASER AFFIRMS AND AGREES THAT (A) PURCHASER HAS NOT RELIED
ON SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PREMISES OR ANY
COMPONENT THEREOF FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES NO WARRANTY THAT
THE PREMISES OR ANY COMPONENT THEREOF ARE FIT FOR ANY PARTICULAR PURPOSE, (C)
THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR BY
OPERATION OF LAW, WITH RESPECT TO THE PREMISES OR ANY COMPONENT THEREOF, (D)
PURCHASER HAS BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PREMISES AND EACH
COMPONENT THEREOF AND HAS DETERMINED TO PURCHASE THE PREMISES AND EACH
COMPONENT THEREOF BASED ON SUCH INSPECTION, AND (E) UPON CLOSING, EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN, PURCHASER SHALL ASSUME THE RISK THAT
ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND
ADVERSE PHYSICAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S
INVESTIGATIONS, AND PURCHASER, ON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED, AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS,
CAUSES OF ACTION (INCLUDING, WITHOUT LIMITATION, CAUSES OF ACTION IN TORT,
LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, ATTORNEYS’ FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, THAT PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES, OR MATTERS
REGARDING THE PREMISES.


 


                 21.2. Without limiting the
generality of the provisions of Section 21.1 of this Agreement,
Purchaser specifically acknowledges and agrees as follows: 


 


                          (a) except as expressly
set forth in the Seller’s Representations, neither Seller nor any other party
acting (or purporting to act) on behalf of Seller, has made any (and Seller
hereby disclaims any) representation or warranty of any kind or nature
concerning any environmental condition existing at the Premises;


 


                          (b) Seller has delivered
to Purchaser copies of the environmental reports listed on Exhibit S
(the matters stated therein being referred to as the “Environmental
Disclosed Matters”); 


 


                        (c) Purchaser shall take
title to the Premises subject to any and all environmental conditions thereat
(or the presence of any matter or substance relating to any such environmental
condition at the Premises), whether known or unknown, disclosed or undisclosed,
including, without limitation, the Environmental Disclosed Matters, all of the
obligations under the O&M Plan Documents and any and all claims and/or liabilities
relating to (in any manner whatsoever) any hazardous, toxic or dangerous
materials or substances located in, at, about or under the Premises, or for any
and all claims or causes of action (actual or threatened) based upon, in
connection with or arising out of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq., and the Superfund
Amendments and Reauthorization Act, 42 U.S.C. §9601 et seq., or any other law
or cause of action (including any federal 







30 




 










 








 








or state
based statutory, regulatory or common law cause of action) related to
environmental matters or liability (“Environmental Laws”) with respect
to or affecting the Premises (any of the foregoing described in this clause
(c) being referred to as “Environmental Conditions”); 


 


                         (d)  Purchaser hereby
releases Seller and each Seller Exculpated Party from any liability of any kind
or nature relating to Environmental Laws or otherwise arising with respect to
any Environmental Conditions and, specifically, agrees that if any claim is
brought against Purchaser arising out of any Environmental Conditions Purchaser
shall have no claim of any kind or nature against Seller or any Seller
Exculpated Party; provided, however, subject to the terms of this
Agreement, including, without limitation, Sections 11 and 37,
Seller shall remain liable for Seller’s Representations;


 


                        (e) Purchaser hereby
assumes liability for any and all Environmental Conditions and hereby
indemnifies and holds harmless Seller and each Seller Exculpated Party from any
and all liabilities, claims, losses, costs, expenses and damages (including,
without limitation, reasonable attorneys’ fees, costs and disbursements and
costs incurred in the enforcement of the foregoing indemnification obligation)
arising out of any Environmental Condition, whether or not pre-existing at the
Closing and whether or not disclosed to Purchaser, it being the intention of
the parties hereto that from and after the Closing (i) Seller shall have no
further liability or obligation in respect of environmental matters of any kind
or nature pertaining to the Premises, and (ii) Purchaser shall fully assume any
such liability or obligation, including, without limitation, the cost of any
cleanup, remediation or removal of any hazardous substances or other
Environmental Conditions; provided, however, subject to the terms
of this Agreement, including, without limitation, Sections 11 and 37,
Seller shall remain liable for Seller’s Representations.


 


                    21.3. PURCHASER, WITH
PURCHASER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH
IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION
21, AND UNDERSTANDS THEIR SIGNIFICANCE AND EFFECT.  PURCHASER ACKNOWLEDGES
AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 21,
ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED
TO SELL THE PREMISES TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE
DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 21.  THE TERMS AND
CONDITIONS OF THIS SECTION 21 WILL EXPRESSLY SURVIVE THE CLOSING AND
WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.


 


                       Initials of Seller:                                            
Initials of Purchaser:


 


 


                       _____CL__________                                     
_____RM__________ 


 


            22.   
Notices. 


 


                     22.1. All notices or other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and shall be considered as properly given or made (i) upon
the date of personal delivery (if notice is delivered by personal delivery),
(ii) on the date of delivery, as confirmed by electronic answerback (if notice
is delivered by facsimile transmission), (iii) on the day one (1) Business Day
after deposit with a nationally recognized overnight courier service (if notice
is delivered by nationally recognized overnight courier service); provided,
however, with respect to the Diligence Notice 







31 




 










 

(as
hereinafter defined) such notice shall be considered as properly given or made
on the same day it is deposited with a nationally recognized overnight courier
service (if notice is delivered by nationally recognized overnight courier
service) so long as such notice is also delivered to Seller prior to the
expiration of the Due Diligence Period by email, or (iv) on the third (3rd)
Business Day following mailing from within the United States by first class
United States mail, postage prepaid, certified mail return receipt requested
(if notice is given in such manner), and in any case addressed to the parties
at the addresses set forth below (or to such other addresses as the parties may
specify by due notice to the other). The parties also agree to endeavor to send
a courtesy copy via email of any notice delivered hereunder; provided, however,
except pursuant to the proviso in clause (iii) above, in no event shall
the failure to so deliver such courtesy copy via email negate or otherwise
nullify the effect of any notice otherwise delivered in accordance with this Section
22.1. 


 


            If to Seller:


 


            AG/WP Fairlawn Owner, L.L.C.


            c/o Angelo, Gordon & Co., L.P.


245
Park Avenue, 26th Floor


New
York, New York 10167


Attention:
Michael Chang


Facsimile:
(212) 867-5436


Email:
mchang@angelogordon.com 


 


with a copy to:


 


            WP Realty, Inc.


            940 Haverford Road


            Byrn Mawr, Pennsylvania 19010


            Attention:         Jerry Rosenberg,
Esq.


            Facsimile:         (610) 552-6004 


            Email: jrosenberg@WPRealty.com 


 


            with an
additional copy to:


 


            Duval &
Stachenfeld LLP


            101 Park Avenue,
11th Floor


            New York, New
York 10178


            Attention:        Terri
L. Adler, Esq.


            Facsimile:        (212) 883-8883


            Email: tadler@dsllp.com 


 


            If to Purchaser:


 


            Phillips Edison Group LLC


            11501 Northlake Drive


            Cincinnati, Ohio 45249


            Attention:        Hal Scudder and Joel
Staffilino


            Facsimile:        (513) 956-5660


            Email:              hscudder@phillipsedison.com 


                                    jstaffilino@phillipsedison.com 


 




 








 








           
With a copy to:


 


            Honigman Miller
Schwartz and Cohn 


            39400 Woodward
Avenue, Suite 101


            Bloomfield
Hills, Michigan  48304


           
Attention:         J. Adam Rothstein, Esq.


           
Facsimile:         (248) 566-8479


            Email:   JRothstein@honigman.com 


 


            If to Escrow
Agent:


 


            Land Services
USA, Inc. 


            1835 Market Street, Suite 420


            Philadelphia, Pennsylvania 19103


            Attention:        Michael G. Moyer,
Esquire


Facsimile:        (215) 568-8219


            Email:    moyer@lsutitle.com 


 


                      22.2.      Purchaser
acknowledges that in order for a notice, consent, approval or any other
communication from Seller to be effective hereunder, such notice consent,
approval or any other communication must be in writing and must be executed by
AG Real Estate Manager, Inc., a Delaware corporation (“AG Real Estate
Manager”), as manager of the sole member of Seller, or AG Real Estate
Manager’s duly appointed successor, on behalf of Seller (Seller agrees that an
email or other written communication from Adam R. Schwartz or Michael Chang of
Angelo, Gordon & Co., L.P. shall be deemed to be effective on behalf of
Seller in satisfaction of this sentence).  


 


           23.      
Entire Agreement.


 


             This Agreement contains all of the
terms agreed upon by and between Purchaser and Seller with respect to the
subject matter hereof, and all agreements heretofore had or made by and between
Purchaser and Seller are merged in this Agreement which alone fully and
completely expresses the agreement of Purchaser and Seller with respect to the
transaction set forth in this Agreement.


 


           24.       
Amendments. 


 


            Subject to the provisions of Section
15.4(d) of this Agreement, this Agreement may not be changed, modified or
amended, except by an instrument executed by the parties hereto who are or will
be affected by the terms of such instrument.  Purchaser acknowledges that in
order for any such change, modification or amendment of this Agreement to be
effective and binding with respect to Seller, same must be executed by AG Real
Estate Manager, as manager of the sole member of Seller, or AG Real Estate
Manager’s duly appointed successor, on behalf of Seller (Seller agrees that an
email or other written communication from Adam R. Schwartz or Michael Chang of
Angelo, Gordon & Co., L.P. shall be deemed to be effective on behalf of
Seller in satisfaction of this sentence).


 


          25.       
No Waiver.


 


            No waiver by either Purchaser or Seller
of any failure or refusal to comply with Purchaser’s or Seller’s, as
applicable, obligations under this Agreement shall be deemed a waiver of any
other or subsequent failure or refusal to so comply. 


 










33 




 










 








 








         26.          Successors and
Assigns.


 


                        26.1.     The provisions of
this Agreement shall inure to the benefit of, and shall be binding upon, the
heirs, executors, administrators, successors and assigns of the respective
parties, provided, however, Purchaser may not assign this
Agreement or any of Purchaser’s rights thereunder, or permit a Change of
Ownership (as hereinafter defined) in respect of Purchaser without the prior
written consent of Seller, provided, further, however,
Seller’s consent shall not be required for (a) an assignment of this Agreement
by Purchaser to an Affiliated Assignee or a Permitted Assignee or (b) a
Permitted Change of Ownership (as hereinafter defined) in respect of Purchaser,
provided, that the following shall apply with respect to any such
assignment to an Affiliated Assignee or a Permitted Assignee or to a Permitted
Change of Ownership:


 


(a)                       
In the event of a proposed assignment of this Agreement by Purchaser to
an Affiliated Assignee or a Permitted Assignee, (i) Purchaser shall provide
Seller with the name, signature block, address and federal taxpayer
identification number and, to the extent reasonably requested by the Title
Company, any other information pertaining to the proposed Permitted Assignee or
Affiliated Assignee, as applicable, reasonably requested by Seller (including,
without limitation, evidence that the Permitted Assignee or Affiliated
Assignee, as applicable, satisfies the ownership and control requirements set
forth in the definition of same) not later than five (5) days prior to the
Closing Date, (ii) such Permitted Assignee or Affiliated Assignee, as
applicable, assumes all of the obligations of Purchaser under this Agreement
pursuant to an assignment and assumption agreement in form reasonably
acceptable to Seller, (iii) no assignment of this Agreement to a Permitted
Assignee or Affiliated Assignee, as applicable, shall relieve Purchaser from
any of Purchaser’s obligations hereunder, (iv) no such assignment shall have
the effect of delaying the Closing in any respect, (v) such Permitted Assignee
or Affiliated Assignee, as applicable, shall be fully and completely liable for
any and all state, county, municipal and local transfer taxes that may be
payable in connection with such assignment, (vi) no such assignment shall
obligate any Seller to cause any other third party to re-deliver any document,
instrument or other agreement previously delivered by such third party pursuant
to the terms of this Agreement and (vii) any such assignment will not be
effective until the Closing Date (i.e., Purchaser’s ability to assign hereunder
shall be limited to an assignment that is effective concurrently with the
Closing hereunder).


 


(b)                      
In the event of a proposed Change of Ownership in respect of Purchaser,
(i) Purchaser shall provide Seller with such information pertaining to
Purchaser and the proposed Change of Ownership reasonably requested by Seller
(including, without limitation, evidence that after the consummation of the
proposed change of ownership, Purchaser satisfies the ownership and control
requirements set forth in the definition of Permitted Change of Ownership) not
later than five (5) Business Days prior to the Closing Date, (ii) no such
proposed Change of Ownership shall have the effect of delaying the Closing in any
respect, (iii) Purchaser shall be fully and completely liable for any and all
State and local transfer taxes that may be payable in connection with such
proposed Change of Ownership, and (iv) no such proposed Change of Ownership
shall obligate Seller to cause any third party to re-deliver any document,
instrument or other agreement previously delivered by such third party pursuant
to the terms of this Agreement.


 


For the avoidance of doubt, no permitted assignment
of this Agreement shall relieve Purchaser from any of Purchaser’s obligations
hereunder.


 


                        26.2.    As used herein the
following capitalized terms shall have the following definitions:


 


                                  “Affiliated
Assignee” shall mean an entity which is 100% owned and controlled 


by Purchaser or a Permitted Assignee.


 









34 




 










 








 








                                 
“Controlled” shall mean, with respect to any natural person,
partnership, corporation, limited liability company or any other form of
business or legal entity, possession, directly or indirectly, through one or
more intermediaries, of the power to direct or cause the direction of the
management and policies of such natural person, partnership, corporation,
limited liability company or any other form of business or legal entity,
whether through ownership of voting securities or by contract.


 


                                     “Change of
Ownership” shall mean any direct or indirect change in the ownership
structure or control of Purchaser, including, without limitation, any direct or
indirect change of beneficial ownership and any change of managing member,
general partner or other control party, and any agreement to do any of the
foregoing.


 


                                  “Permitted
Assignee” shall mean an entity that is Controlled and directly or
indirectly owned by one (1) or more Purchaser Principals.


 


                                     “Permitted
Change of Ownership” shall mean any Change of Ownership such that after the
completion thereof Purchaser would satisfy the requirements of a Permitted
Assignee or Affiliated Assignee.


 


                                  “Purchaser
Principals” shall mean Michael C. Phillips and Jeffrey S. Edison.


 


             27.       
Partial Invalidity.


 


             If any term or provision of this
Agreement or the application thereof to any person or circumstances shall, to
any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other than
such persons or circumstances as to which such term or provision is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.


 


             28.      
Paragraph Headings.


 


             The headings of the various paragraphs
of this Agreement have been inserted only for the purposes of convenience, and
are not part of this Agreement and shall not be deemed in any manner to modify,
explain or restrict any of the provisions of this Agreement.


 


             29.        
Governing Law.


 


             This Agreement shall be governed by,
and shall be interpreted, construed and enforced in accordance with, the laws
of the State where the Premises are located without regard to the rules
regarding conflicts of law in such laws of such State.


 


             30.       
Binding Effect.


 


             This Agreement does not constitute an
offer to sell and shall not bind Seller unless and until Seller, in Seller’s
sole discretion, elects to be bound hereby by executing and delivering to
Purchaser an original counterpart hereof.


 


             31.       
No Recording or Lis Pendens.


 


(a)               
       The parties hereto agree that neither this Agreement nor any
memorandum of notice hereof shall be recorded, and, except as otherwise
provided in Section 31(b) below, Purchaser 







35 




 










 








 








agrees
not to file any lis pendens or other instrument against the Premises in
connection herewith.  In furtherance of the foregoing, Purchaser:


 


                                        (i) acknowledges
that the filing of a lis pendens or other evidence of Purchaser’s rights or the
existence of this Agreement against or encumbering the Premises could cause
significant monetary and other damages to Seller; and


 


                                        (ii)       hereby
indemnifies Seller (and each Seller Exculpated Party) from and against any and
all liabilities, damages, losses, costs or expenses (including, without
limitation, reasonable attorneys’ fees and costs incurred in the enforcement of
the foregoing indemnification obligation) arising out of the breach by
Purchaser of any of Purchaser’s obligations under this Section 31(a).  


 


                           (b)           Notwithstanding
the provisions of Section 31(a) above, Purchaser shall have the right to
file a lis pendens against the Premises solely under circumstances under which
Purchaser is seeking specific performance of Seller’s obligations hereunder,
provided (A) Purchaser files such claim within sixty (60) days following the
earlier of (x) the scheduled Closing Date or (y) the
date of Purchaser’s knowledge of Seller’s breach and (B) if it is
ultimately determined by a court order that Purchaser was not entitled to
specific performance under this Agreement and that Purchaser acted in a manner
that constitutes gross negligence, willful misconduct, fraud and/or bad faith
in connection with the filing of such lis pendens by Purchaser, Purchaser
shall, and hereby does, indemnify and hold harmless Seller (and each Seller
Exculpated Party) from and against any and all liabilities, damages, losses,
costs or expenses (including, without limitation, reasonable attorneys’ fees
and costs incurred in the enforcement of the foregoing indemnification
obligation) arising out of the filing of such lis pendens by Purchaser
(including, without limitation, consequential damages incurred by Seller as a
result thereof).


 


                          (c)         The
provisions of this Section 31 shall survive the termination of this
Agreement.


 


            32.       
Prevailing Party to Receive Attorneys’ Fees.


 


             In the event of any litigation arising
out of this Agreement, the Prevailing Party (as hereinafter defined) shall be
entitled to receive from the losing party an amount equal to the Prevailing
Party’s costs incurred in such litigation, including, without limitation, the
prevailing party’s attorneys’ fees, costs and disbursements. For purposes of
this Section 32, (a) the term “Prevailing Party” shall be deemed to be
that party who obtains substantially the result sought, whether by settlement,
mediation, judgment or otherwise, and (b) the term “attorneys’ fees” shall
include, without limitation, the reasonable attorneys’ fees incurred in
retaining counsel for advice, negotiations, suit, appeal and any other legal
proceeding, including mediation and arbitration.  The provisions of this Section
32 shall survive the Closing or any earlier termination of this Agreement.


 


            33.      
Tax-Deferred Exchange.


 


                         33.1.           In the
event that Seller desires to effectuate the transaction contemplated by this
Agreement as a tax-free exchange, then upon request made by Seller, Purchaser
shall cooperate fully with Seller in effectuating such tax-free exchange, such
cooperation to include, without limitation, executing and delivering all
documents and instruments necessary, for such purpose, provided that (i) Seller
shall reimburse Purchaser for any costs or expenses incurred by Purchaser in
connection with such cooperation, (ii) Seller shall indemnify and hold harmless
Purchaser for, from and against any and all costs, loss, liability or damages
incurred by Purchaser in cooperating with such tax free exchange on a post-tax
basis, (iii) Purchaser shall not be required to take title to any other
property in connection with such tax free exchange, (iv) Seller shall reimburse
Purchaser for any costs or expenses incurred by 







36 




 










 

Purchaser
in connection with such cooperation, (v) Purchaser shall not be required to
undertake any additional liability in connection with such cooperation, and
(vi) such tax-free exchange shall not delay the Closing.


 


                         33.2.          
In the event that Purchaser desires to effectuate the transaction contemplated
by this Agreement as a tax-free exchange, then upon request made by Purchaser,
Seller shall cooperate fully with Purchaser in effectuating such tax-free
exchange, such cooperation to include, without limitation, executing and
delivering all documents and instruments necessary, for such purpose, provided
that (i) Purchaser shall not be released from liability under the Agreement in
connection with any assignment of the Agreement made by Purchaser to effectuate
such tax free exchange, (ii) Purchaser shall indemnify and hold harmless Seller
for, from and against any and all costs, loss, liability or damages incurred by
Seller in cooperating with such tax free exchange on a post-tax basis, (iii)
Seller shall not be required to take title to any other property in connection
with such tax free exchange, (iv) such tax-free exchange shall not delay the
Closing or obligate Seller to cause any other third party to re-deliver any
document, instrument or other agreement previously delivered by such third party
pursuant to the terms of this Agreement, and (vi) Purchaser shall reimburse
Seller for any costs or expenses incurred by Seller in connection with such
cooperation (and that Seller shall not be required to undertake any additional
liability in connection with such cooperation).


 


                       33.3          The provisions
of this Section 33 shall survive the Closing. 


 


            34.     
Confidentiality. 


 


            Purchaser acknowledges and agrees that
the terms and provisions of any confidentiality agreement delivered by
Purchaser (or any affiliate of Purchaser) shall be applicable to Purchaser and
shall remain in effect on and after the execution and delivery of this
Agreement.  In furtherance of the foregoing, any documents, instruments, records
or other information delivered by Seller to Purchaser pursuant to the
provisions of this Agreement shall be deemed confidential information for
purposes of such confidentiality agreement.  The provisions of this Section
34 shall survive the Closing or any earlier termination of this Agreement.


 


            35.      
Due Diligence Period.


 


             Purchaser shall have the right to
conduct a due diligence review (the “Due Diligence Review”) of the
Premises during the period beginning on the Effective Date and ending on
December 19, 2012, at 11:59 P.M. (New York time) (the “Due Diligence Period”). 
On or before the expiration of the Due Diligence Period, Purchaser shall
deliver written notice (the “Diligence Notice”) to Seller stating
either:


 


                           35.1.     that Purchaser
elects to terminate this Agreement, in which event the provisions of Section
9 of this Agreement shall apply to such termination; or


 


                           35.2.     that Purchaser
elects not to terminate this Agreement, in which event Purchaser shall
thereupon be deemed to have waived any right to terminate this Agreement
pursuant to the provisions of this Section 35, this Agreement shall
continue in full force and effect in accordance with its terms, and the Deposit
shall thereupon become nonrefundable (except as expressly set forth in this
Agreement). 


 


Purchaser shall be deemed to have delivered a
Diligence Notice at 11:59 P.M. (New York time) on the last day of the Due
Diligence Period under Section 35.1 above if Purchaser fails to deliver
any Diligence Notice to Seller during the Due Diligence Period.  In the event
that Purchaser has delivered a Diligence Notice under Section 35.2 on or
prior to the expiration of the Due Diligence Period, but nevertheless fails 







37 




 










 








 








to deliver the Additional Deposit to Escrow Agent
pursuant to Section 2.2 of this Agreement on or prior to one (1)
Business Day after the expiration of the Due Diligence Period, then Purchaser
shall be in default under this Agreement and Seller shall have it remedies
under Section 10 above.  The parties acknowledge and agree that the
failure of Purchaser to deliver the Additional Deposit as required by this
Agreement is not a Curable Default.  Time shall be of the essence with respect
to Purchaser’s delivery of the Diligence Notice and the Additional Deposit.  


 


            36.       
Estoppel Certificates.


 


                          36.1.     During the
period commencing on the Effective Date and ending on the Closing Date or
earlier termination of this Agreement, Seller shall exercise reasonable efforts
to obtain an estoppel certificate (each, a “Tenant Estoppel Certificate”)
from each tenant under a Lease as of the Closing Date (any space demised to a
tenant under a Lease as of the Closing Date being referred to as “Leased
Space”). 


 


                         36.2.      As a condition
precedent to Purchaser’s obligation to acquire the Premises, Seller shall
deliver Tenant Estoppel Certificates at least five (5) days prior to the then
scheduled Closing from (a) the tenants (the “Required Tenants”) listed
on Exhibit W (the “Required Estoppel Certificates”) and (b) a
sufficient number of tenants such that estoppel certificates received in
aggregate shall cover seventy-five percent (75%) of the Leased Space (inclusive
of the square footage of the Leases of the Required Tenants) (the “Estoppel
Condition”).  In the event that Seller is unable to satisfy the Estoppel
Condition on or before at least five (5) days prior the Closing (it being
acknowledged that Seller shall have the right to adjourn the Closing Date one
or more times (but for not more than thirty (30) days in the aggregate) in
order to satisfy the Estoppel Condition) then Purchaser shall have the right,
as Purchaser’s sole remedy (Purchaser specifically waiving any right to bring
an action against Seller for damages), by written notice to Seller on or before
the Closing Date (as may be adjourned by Purchaser pursuant to Section 4.2
above), to either (i) terminate this Agreement (in which event the provisions
of Section 9 of this Agreement shall apply to such termination) or (ii)
waive the same and accept title to the Premises without any abatement of the
Purchase Price (it being agreed that in the event that Seller is unable to
satisfy the Estoppel Condition at least five (5) days prior to the Closing
Date, and Purchaser does not deliver any such notice to Seller on or before the
Closing Date, Purchaser shall be deemed to have elected under clause (i)
above), provided, however, Purchaser shall not have the right to
terminate this Agreement under clause (i) as a result of the failure of
Seller to satisfy the Estoppel Condition in the event that Seller delivers an
estoppel certificate from Seller (each, a “Seller Estoppel Certificate”)
in the form attached hereto as Exhibit X on behalf of sufficient tenants
of Leased Space such that the Estoppel Condition is satisfied by either Tenant
Estoppel Certificates or Seller Estoppel Certificates (or a combination of
both), provided, further,  however, (x) Seller shall not be
permitted to deliver a Seller Estoppel Certificate in place of a Required
Estoppel Certificate, and (y) Seller shall only be permitted to deliver Seller
Estoppels for up to ten percent (10%) of the Leased Space based on the total
square footage of all Leased Space (exclusive of the square footage of the
Leases of the Required Tenants).  Purchaser hereby acknowledges and agrees that
Seller shall have no obligation whatsoever to deliver a Seller Estoppel
Certificate with respect to any Tenant of the Premises or any Leased Space. 
Purchaser specifically acknowledges and agrees that the failure of Seller to
deliver Tenant Estoppel Certificates or the existence of adverse matters
disclosed in Tenant Estoppel Certificates or Seller Estoppel Certificates shall
not give rise to any remedy of any kind against Seller (other than any
extension rights set forth in this Agreement and the termination right in
accordance with and subject to the provisions of this Section 36.2). 


 


                         36.3.      For purposes of
this Section 36, Seller and Purchaser agree that the following shall
apply:


 


(a)               
          Seller shall request Tenant Estoppel Certificates from the
tenants in the form attached hereto as Exhibit Y (the “Form Tenant
Estoppel Certificate”).  The delivery of a Tenant 







38 




 










 








 








Estoppel
Certificate from a tenant in form substantially similar to the Form Tenant
Estoppel Certificate shall be deemed to be the delivery of a Tenant Estoppel
Certificate from such tenant for purposes of Section 36.2, provided,
however, if the tenant fails or refuses to deliver a Tenant Estoppel
Certificate in the form of the Form Tenant Estoppel Certificate, then the
delivery of a Tenant Estoppel Certificate by such tenant that substantially
complies with the estoppel requirements in such tenant’s Lease shall be deemed
to be the delivery of a Tenant Estoppel Certificate from such tenant for
purposes of Section 36.2 (it being acknowledged that if a Lease provides
for a Tenant Estoppel Certificate containing certain specified items and such
other items as landlord may “reasonably require”, then the delivery by the
tenant thereunder of a Tenant Estoppel Certificate without any items other than
the specified items shall be deemed to be the
delivery of a Tenant Estoppel Certificate by such tenant in compliance with the
terms of such Lease), provided, further, however,
Purchaser acknowledges and agrees that notwithstanding the foregoing provisions
of this Section 36.3(a), (A) if any tenant under the Lease is the
General Services Administration, the United States Postal Service or any other
governmental agency, such tenant shall be deemed to have delivered a Tenant
Estoppel Certificate in form acceptable to Purchaser (subject to the provisions
of Section 36.3(b), (d)  and (e)) if (i) such tenant
furnishes such tenant’s Tenant Estoppel Certificate with respect to its Lease
on such tenant’s then current standard form (notwithstanding any other form
that is attached to such tenant’s Lease), or (ii), in the event tenant is
required by the terms of applicable federal, state, county, municipal or other
local law not to furnish a Tenant Estoppel Certificate, such tenant furnishes a
letter or certificate in compliance with the requirements or restrictions of
such applicable federal, state, county, municipal or other local law, and (B)
with respect to any statement regarding hazardous substances from the Form
Tenant Estoppel Certificate, if any tenant under the Lease (i) does not include
such statement or (ii) does include such statement, but modifies it in any way,
then, in either such case, the delivery of such a Tenant Estoppel Certificate
from such tenant shall be deemed to be the delivery of a Tenant Estoppel
Certificate from such tenant for purposes of Section 36.2 (and Purchaser
shall not have any right or remedy against Seller as result thereof). 


 


(b)              
  In order to be treated as a delivered Tenant Estoppel Certificate for
purposes of Section 36.2, the estoppel certificate delivered by a tenant
shall be dated no earlier than December 4, 2012, provided  however,
if the Closing Date is after January 31, 2013, then no estoppel certificate
delivered by a tenant shall be dated any earlier than forty-five (45) days
prior to Closing.


 


(c)               
The Seller Estoppel Certificates shall (i) be in the form of Exhibit
X, (ii) be dated the day before the Closing Date, and (iii) survive the
Closing for a period of one hundred eighty (180) days (the “Estoppel
Survival Period”).  


 


(d)              
  (i) Subject to Section 36.3(d)(ii) below, if a Tenant Estoppel
Certificate or a Seller Estoppel Certificate contains material and adverse
information or omissions unacceptable to Purchaser in its reasonable
discretion, Purchaser shall object thereto by written notice to Seller within 


the earlier of three (3) Business Days after
receipt by Purchaser of the objectionable Tenant Estoppel Certificate or Seller
Estoppel Certificate or the Closing Date.  If no such notice is delivered by
Purchaser, Purchaser shall be deemed to have waived such condition and accepted
such Tenant Estoppel Certificate or a Seller Estoppel Certificate.  If such
written notice is delivered, then Seller shall either (x) cure such objection
prior to Closing (and Seller shall be entitled to adjourn the Closing one or
more times (but for not more than thirty (30) days in the aggregate) to effectuate
such cure), or (y) notify Purchaser that Seller does not intend to cure such
objection.  If Seller acts under clause (x) above, then Seller shall
exercise reasonable efforts to cure the applicable objection prior to Closing,
provided that if Seller is unable (in spite of the exercise of reasonable
efforts by Seller) to cause such objection to be cured at or prior to Closing,
then Purchaser’s sole remedy at Closing shall be either to (X) terminate this
Agreement, in which event the provisions of Section 9 of this Agreement
shall apply to such termination or (Y) elect to proceed to the Closing without
abatement of the Purchase Price and without further obligation of Seller in
respect of such Tenant Estoppel Certificate or a Seller Estoppel Certificate. 
If Seller acts under clause (y)  







39 




 










 








 








above, then
Purchaser shall, on or before the earlier of three (3) Business Days after
Purchaser receives notice from Seller pursuant to such clause (y) or the
Closing Date, deliver notice to Seller stating either (A) that Purchaser elects
to proceed to the Closing without abatement of the Purchase Price and without
further obligation of Seller in respect of such Tenant Estoppel Certificate or
a Seller Estoppel Certificate or (B) that Purchaser elects to terminate this Agreement,
in which event the provisions of Section 9 of this Agreement shall apply
to such termination. 


 


(ii)              
              Notwithstanding the foregoing provisions of Section
36.3(d)(i) above, a Tenant Estoppel Certificate or a Seller Estoppel
Certificate that discloses defaults by the tenant under the applicable Lease
(including, for example, a statement that the tenant is in default and/or in
bankruptcy and as a result has not paid rent for an extended period of time)
that has occurred on or after the Effective Date shall nonetheless be deemed to
be the delivery of a Tenant Estoppel Certificate or a Seller Estoppel
Certificate for purposes of Section 36.2 and no such delivery of a
Tenant Estoppel Certificate or Seller Estoppel Certificate shall entitle
Purchaser to any remedy against Seller, it being acknowledged that for all
purposes of this Agreement the risk of tenant defaults on or after the
Effective Date is solely that of Purchaser, provided, however, if
a Tenant Estoppel Certificate discloses that Seller has defaulted under a Lease
or discloses that Seller’s Representations contained in Section 11.1(d),
Section 11.1(l), Section 11.1(n), Section 11.1(p) or Section
11.1(q) of this Agreement are untrue in a material respect, then (x) same
shall nonetheless be deemed to be the delivery of a Tenant Estoppel Certificate
for purposes of Section 36.2, (y) the provisions of Section 36.3(e)
shall apply with respect to any Seller default under a Lease and (z) the
provisions of Section 11.3 shall apply with respect to any materially
untrue Seller Representation.


 


(e)               
If a Tenant Estoppel Certificate delivered by a tenant discloses a
default by Seller under such tenant’s Lease, then Seller shall either (i) cure
such default prior to Closing (and Seller shall be entitled to adjourn the
Closing one or more times (but for not more than twenty (20) days in the
aggregate) to effectuate such cure), or (ii) notify Purchaser that Seller does
not intend to cure such default, provided, however, if the total
cost to cure a default by Seller referenced in a Tenant Estoppel Certificate
(when aggregated with costs to cure defaults by Seller under all other Tenant
Estoppel Certificates) is less than $100,000, then Seller shall not act under clause
(ii).   


 


                                                (x)     
If Seller acts under clause (i) above, then Seller shall exercise
reasonable efforts to cure the applicable default by Seller prior to Closing,
provided that if Seller is unable (in spite of the exercise of reasonable
efforts by Seller) to cause such default to be corrected at or prior to
Closing, then Purchaser’s sole remedy at Closing shall be either to (A)
terminate this Agreement, in which event the provisions of Section 9 of
this Agreement shall apply to such termination, or (B) elect to proceed to the
Closing without abatement of the Purchase Price and without further obligation
of Seller in respect of such Tenant Estoppel Certificate.


 


                                                   
(y)        If Seller acts under clause (ii) above, then Purchaser shall,
on or before the earlier of three (3) Business Days after Purchaser receives
notice from Seller pursuant to such clause (ii) or the Closing Date,
deliver notice to Seller stating either (A) that Purchaser elects to proceed to
the Closing without abatement of the Purchase Price and without further
obligation of Seller in respect of such Tenant Estoppel Certificate or (B) that
Purchaser elects to terminate this Agreement, in which event the provisions of Section
9 of this Agreement shall apply to such termination and Seller shall
reimburse Purchaser for Purchaser’s reasonable out-of-pocket expenses actually
incurred by Purchaser in connection with the transaction contemplated by this
Agreement, through the date of such termination; provided, however,
such expenses shall not exceed Seventy Five Thousand and 00/100 Dollars
($75,000), in the aggregate, when taking into account any other Seller
reimbursement of Purchaser’s expenses set forth in this Agreement)(such
obligation of Seller shall survive such termination of this Agreement and shall
be payable upon demand by Purchaser).









40 




 










 

 


                        36.4.       In the event
that one (1) or more Seller Estoppel Certificates is delivered by Seller
pursuant to the provisions of this Section 36, then the following shall
apply:


 


(a)                 
In the event that Purchaser discovers after the Closing Date but prior
to the expiration of the Estoppel Survival Period, that a statement of Seller
set forth in a Seller Estoppel Certificate is false in a material respect as of
the date made, then Purchaser shall have the right to make a claim (each, an “Estoppel
Claim”) against Seller for an amount equal to the damages caused to
Purchaser as a result of such false statement, provided that the maximum amount
recoverable by Purchaser for an Estoppel Claim (when aggregated with all other
claims under this Agreement) shall not exceed the Maximum Amount (as
hereinafter defined).  In order to properly assert an Estoppel Claim against
Seller, Purchaser shall be required to deliver written notice (an “Estoppel
Claim Notice”) of such Estoppel Claim (stating in reasonable detail the
basis for the Estoppel Claim) to Seller on or before the expiration of the
Estoppel Survival Period.  In the event that Purchaser has not delivered an
Estoppel Claim Notice by the expiration of the Estoppel Survival Period, then
Purchaser shall be deemed to have waived any right to assert an Estoppel Claim.


 


(b)                 
    If Purchaser delivers an Estoppel Claim Notice prior to the end of
the Estoppel Survival Period, then Seller shall within fifteen (15) days after
Seller receives the Estoppel Claim Notice, deliver notice (an “Estoppel
Response Notice”) to Purchaser stating either (i) that Seller agrees with
the Estoppel Claim made by Purchaser, in which event Seller shall reimburse
Purchaser for the amount equal to the damages caused to Purchaser as asserted
in the Estoppel Claim or (ii) Seller disputes the Estoppel Claim made by
Purchaser, in which event Purchaser shall have the right to make a claim against
Seller for an amount equal to the damages caused to Purchaser as asserted in
the Estoppel Claim, provided that (x) the maximum amount recoverable by
Purchaser for an Estoppel Claim (when aggregated with all other claims under
this Agreement) shall not exceed the Maximum Amount, and (y) in no event shall
Purchaser have any right to recover speculative, consequential or punitive
damages against Seller all of which are expressly hereby waived by Purchaser.


 


(c)                 
   If subsequent to the delivery of a Seller Estoppel Certificate with
respect to a tenant’s Leased Space, Seller delivers the applicable Tenant
Estoppel Certificate from such tenant and such Tenant Estoppel Certificate
confirms the information provided in such Seller Estoppel Certificate, then the
Seller Estoppel Certificate will be without further force or effect and
Purchaser shall rely solely upon the applicable Tenant Estoppel Certificate.


 


           37.        
Survival. 


 


                         37.1.      Except as
otherwise specifically herein provided or provided in a Seller Document (as
hereinafter defined), no representation, warranty, covenant or obligation of
Seller set forth in (a) this Agreement or (b) Seller Document, shall survive
the Closing and the delivery of the Deed. In addition, any representation,
warranty, indemnification or other obligation of Seller that is stated in this
Agreement or any Seller Document to survive the Closing and the delivery of the
Deed shall survive the Closing for a period of one (1) year (unless a shorter period
of time is specifically herein provided or provided in any Seller Document in
which case such shorter period of time shall apply). Any representation,
warranty, indemnification or other obligation of Purchaser that is stated in
this Agreement, any Seller Document or any other documents to survive the
Closing shall survive the Closing for a period of one (1) year (unless a longer
period of time is specifically herein provided or provided in any Seller
Document or such other documents in which case such longer period of time shall
apply).  For purposes of this Agreement, a “Seller Document” means any
document or instrument executed and delivered by Seller to Purchaser in
connection herewith, including, without limitation, the Deed, the Bill of Sale,
the Assignment and Assumption of Leases, the Assignment and Assumption of
Contract, the Assignment and 







41 




 










 

Assumption of Intangible
Property, the Assignment and Assumption of O&M Plan Documents and any
Seller Estoppel Certificate.


 


     37.2.    Notwithstanding
anything to the contrary set forth in this Agreement, (a) Purchaser shall not
pursue any claim against Seller that causes damage to Purchaser that is less
than the Floor (as hereinafter defined), and (b) the maximum amount of
liability that Seller shall have under any circumstance for any surviving
obligation under this Agreement (including, without limitation, any obligation
arising out of any Seller’s Representation that survives the Closing, any
indemnification or other obligation contained herein that is specifically
stated to survive the Closing, any obligation of Seller under any Seller
Estoppel Certificate, any liability under any other document or instrument
delivered by Seller in connection with the Closing, and any Post-Termination
Obligation) shall not exceed a total aggregate amount of six-hundred thousand
dollars ($600,000) (the “Maximum Amount”).  As used herein, the term “Floor”
shall mean, with respect to any claim against Seller for the breach of any of
Seller’s Representations an amount equal to $10,000.


 


            38.       
Arbitration of Matters in Dispute.


 


             38.1.       In the
event that there is a disagreement between Purchaser and Seller as to any
matter arising out of this Agreement for which arbitration is expressly stated
to be the sole procedure or mechanism for the resolution of such disagreement
(the “Matter in Dispute”), then the Matter in Dispute shall be submitted
to arbitration pursuant to the rules of the American Arbitration Association
within the City of Fairlawn or the County of Summit, State of Ohio.  The
arbitrators will be entitled to award monetary damages, declaratory relief and
injunctive relief interpreting the provisions of this Agreement, however the
arbitrators will not be entitled to award punitive or consequential damages or
to act inconsistently with the terms of this Agreement.  The arbitrators will
be entitled, but not required, to provide that the losing party in any
arbitration will pay all or a portion of the prevailing party’s costs incurred
in connection therewith, including, without limitation, the costs and fees of
the arbitrators, provided, however, if the arbitrators decline to
make such a provision, then the costs of the arbitration will be split equally
between the parties (except that each party will bear such party’s own
attorneys’ fees).  The determination of the arbitrators in the foregoing
proceeding shall be binding upon the parties, subject only to the provision of Section
38.3 below.


 


38.2.     In the event that the
arbitrators make a determination in favor of a party (the “Prevailing Party”)
and the Matter in Dispute is monetary in nature, then the other party (the “Non-Prevailing
Party”) shall pay to the Prevailing Party the amount determined by the
arbitrators to be necessary to make the Prevailing Party whole (the “Arbitrated
Amount”) within ten (10) days after the determination is made in such
arbitration proceeding, provided, however, in the event this
Agreement expressly provides that an escrow of funds (each, a “Funds Escrow”)
be established (and such Funds Escrow is established) by the Non-Prevailing
Party with respect to a monetary Matter in Dispute and the amount in the Funds
Escrow is greater than the Arbitrated Amount, then the Non-Prevailing Party
shall, within such ten (10) day period, instruct the escrow agent for the Funds
Escrow to disburse an amount equal to the Arbitrated Amount from the Funds
Escrow to the Prevailing Party and, unless otherwise provided in this
Agreement, the Non-Prevailing Party shall be entitled to a return of the
remaining funds in the Funds Escrow.  In the event that the arbitrators make a
determination in favor of the Prevailing Party and the Matter in Dispute is
non-monetary in nature, then the Non-Prevailing Party shall take such action as
is required by the arbitrators in connection therewith within ten (10) days
after the determination is made in such arbitration proceeding.


 


38.3.      The parties agree that
the arbitration proceeding described in this Section 38 is the sole and
exclusive manner in which the parties may resolve Matters in Dispute and the
parties fully waive any right to commence any action or proceeding in any court
arising out of any Matter in Dispute, 


 








 








subject only to
the right of a party hereto to bring an action in court to enforce the
determination made in an arbitration proceeding.  For the avoidance of doubt
the parties hereto acknowledge and agree that any dispute arising out of this
Agreement that is not a Matter in Dispute shall not be required to be submitted
to arbitration as hereinabove provided.


 


            39.        
Submission To Jurisdiction.


 


PURCHASER AND SELLER EACH HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING
IN SUMMIT COUNTY, STATE OF OHIO, OVER ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT.  SOLELY IN THE EVENT THAT SELLER IS
UNABLE TO GET JURISDICTION IN ANY STATE OR FEDERAL COURT SITTING IN SUMMIT
COUNTY, STATE OF OHIO, OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THEN IN SUCH EVENT SELLER MAY ELECT THE STATE OF
NEW YORK, NEW YORK COUNTY, OR THE UNITED STATES OF AMERICA, FEDERAL DISTRICT
COURT HAVING JURISDICTION OVER NEW YORK COUNTY, STATE OF NEW YORK, AS THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING.  PURCHASER HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE TO SUCH VENUES AS BEING AN INCONVENIENT FORUM.  THE PROVISIONS OF THIS SECTION
39 SHALL SURVIVE THE CLOSING OR EARLIER TERMINATION OF THIS AGREEMENT.


 


            40.         
Waiver Of Jury Trial.


 


            PURCHASER AND SELLER EACH HEREBY AGREES
NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES
ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR ANY CLAIM, COUNTERCLAIM OR
OTHER ACTION ARISING IN CONNECTION THEREWITH.  THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY PURCHASER AND SELLER, AND IS INTENDED
TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO
A TRIAL BY JURY WOULD OTHERWISE ACCRUE.  SELLER OR PURCHASER, AS APPLICABLE, IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY PURCHASER OR SELLER, AS APPLICABLE.  THE
PROVISIONS OF THIS SECTION 40 SHALL SURVIVE THE CLOSING OR EARLIER
TERMINATION OF THIS AGREEMENT.


 


             41.         Certain
Definitions.


 


             As used herein,
the following capitalized terms shall have the following definitions:


 


                          “Business Day”
shall mean any day other than (a) a Saturday or a Sunday, (b) a national
holiday, or (c) a day on which banks are not required to be open for business
within the State of Ohio or the State of New York.


 


                          “Post-Termination
Obligations” shall mean the obligations of Purchaser and/or Seller pursuant
to Sections 13, 17.4, 31, 32, 34  39 
and 40  of this Agreement that are expressly stated to survive the termination
of this Agreement.


 










43 




 










 

           42.         Determination of
Estimated Calculations.


 


                          The parties acknowledge
and agree that, in the event that this Agreement provides that (A) Purchaser is
entitled to receive a credit under this Agreement, or a sum is to be escrowed
hereunder at Closing, or an amount hereunder is to be prorated or adjusted, or
another calculation or determination is to be made hereunder at or before
Closing (each, a “Calculation”) and (B) disputes in respect of the
amount of such Calculation are to be determined pursuant to this Section 42,
then the following shall apply:


 


(a)                   
    if Seller and Purchaser do not agree upon a Calculation, Seller shall
at any time prior to the Closing deliver to Purchaser a notice (“Seller’s
Calculation Notice”) setting forth (i) Seller’s estimate of the amount of
such Calculation (“Seller’s Calculation”), and (ii) the reasons (which
may include (but shall not require) third party bids or estimates regarding any
work to which such credit to Purchaser, proration, adjustment, escrowed sum or
other calculation, as applicable, applies) for Seller’s Calculation;


 


(b)                  
    Purchaser shall have until the date that is five (5) Business Days
following the receipt of Seller’s Calculation Notice (and if the expiration of
such five (5) Business Day period is after the Closing Date, then the Closing
Date shall automatically be adjourned to the date five (5) Business Days
following the receipt of Seller’s Calculation Notice), in which to deliver a
notice to Seller (“Purchaser’s Calculation Response”), stating either
(i) that Purchaser agrees with Seller’s Calculation, or (ii) that Purchaser
disagrees with Seller’s Calculation, and if Purchaser delivers Purchaser’s
Calculation Response under this clause (ii), such Purchaser’s
Calculation Response shall further set forth (x) Purchaser’s estimate of the
Calculation (“Purchaser’s Calculation”) and (y) the reasons (which may
include (but shall not require) third party bids or estimates regarding any
work to which such Calculation applies) for Purchaser’s Calculation;


 


(c)                   
   in the event Purchaser delivers Purchaser’s Calculation Response under
clause (i) of Section 42(b) above, then Seller’s Calculation
shall be deemed to be the Calculation, and the Closing shall take place, and
the amount of the Calculation shall equal the Seller’s Calculation; and


 


(d)                  
   in the event Purchaser delivers Purchaser’s Calculation Response under
clause (ii) of Section 42(b) above, then, the amount of the
Calculation (for purposes of the Closing only) shall equal the lesser of
Purchaser’s Calculation and Seller’s Calculation, and the difference between
such Calculations shall be withheld from the Purchase Price, and paid over to
Escrow Agent and held by Escrow Agent in escrow and, subsequent to the Closing,
the parties hereto shall submit the dispute to arbitration pursuant to Section
38 of this Agreement, the determination of which shall be conclusive and
binding upon the parties and the costs of which shall be paid by the
substantially losing party (i.e., the non-prevailing party), and the
escrowed amount shall be released and disbursed in accordance with such
determination. To the extent the provisions of this Section 42(d) become
applicable at Closing (i.e., funds are escrowed with Escrow Agent pursuant to
the terms of this Section 42(d)), then the provisions of this Section
42(d) shall survive the Closing.


 


           
43.        No
Third Party Beneficiaries.


 


             PURCHASER AND SELLER HEREBY
ACKNOWLEDGE AND AGREE THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN TO THE
CONTRARY, THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT, AND,
ACCORDINGLY, EXCEPT AS EXPRESSLY SET FORTH HEREIN TO THE CONTRARY, NO THIRD
PARTY (INCLUDING, WITHOUT LIMITATION, ANY BROKER) SHALL HAVE THE RIGHT TO ENFORCE
THIS AGREEMENT FOR THE BENEFIT OF SUCH THIRD PARTY OR AGAINST THE INTERESTS OF
PURCHASER 







44 




 










 








 








OR SELLER.  EITHER OF SELLER OR PURCHASER IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING BROUGHT BY
ANY SUCH THIRD PARTY AGAINST SELLER OR PURCHASER IN CONNECTION WITH THIS
AGREEMENT AS CONCLUSIVE EVIDENCE OF THE PARTIES INTENTIONS. 


 


           
44.        Time
of Performance.


 


             In the event the provisions of this
Agreement provide for the performance of an obligation by Purchaser or Seller
on a day other than a Business Day, then the time for the performance of such
obligation shall be automatically adjourned to the first (1st) Business Day
immediately succeeding the day on which such obligation would otherwise be
required to be performed.  In the event the provisions of this Agreement
provide that Purchaser or Seller shall have the right to adjourn the
performance of an obligation by Purchaser or Seller, as applicable, to a day
that is other than a Business Day, then Purchaser or Seller, as applicable,
shall have the right to adjourn the time for the performance of such obligation
to the first (1st) Business Day immediately succeeding the day on which such
adjourned obligation would otherwise be required to be performed.


 


       
    45.        Counterpart Execution; Execution by Facsimile Transmission/.PDF
Format.


 


            This Agreement may be executed in more
than one counterpart, each of which, when taken together, shall be deemed to be
one (1) instrument.  This Agreement may be executed by facsimile transmission
or by email via .pdf format, in each case, with the same force and effect as
originals.


 


           
46.        
Ambiguities Not Construed Against Drafter.


 


             Ambiguities in this Agreement shall
not be construed against the party drafting this Agreement, notwithstanding any
contrary rule of construction or interpretation at law or in equity. 


 


           
47.       
No Special Relationship Between Seller and Purchaser.


 


             Purchaser and Seller acknowledge and
agree that the relationship between Purchaser and Seller is solely a commercial
relationship, and the execution of this Agreement by Purchaser and Seller shall
not create (and neither Purchaser nor Seller intends to create) any
relationship of principal and agent between Purchaser and Seller, or any
partnership or joint venture relationship between Purchaser and Seller. 
Neither Purchaser nor Seller shall be deemed to be a fiduciary of the other
party.


 


           48.        No Financing
Contingency.


 


Notwithstanding anything to the
contrary contained in this Agreement, including, without limitation, Section
49 below, Purchaser expressly acknowledges and agrees that Purchaser’s
obligations under this Agreement are not in any way conditioned upon or
qualified by Purchaser’s ability to obtain financing of any type or nature
whatsoever (i.e., whether by way of debt financing, equity investment,
or otherwise) to consummate the transaction contemplated by this Agreement,
including, without limitation, the Assumed Loan.


 


49.       
Assumed Loan. 


 


            Seller and Purchaser acknowledge and
agree that (a) the Premises is currently subject to that certain loan from Wells
Fargo Bank, National Association (together with its successors and assigns, the
“Lender”) to Seller in the original principal amount of up to $23,100,000.00
(the “Assumed Loan”) pursuant to the terms of the Assumed Loan Documents
(as hereinafter defined), (b) in connection with 







45 




 










 








 








Purchaser’s
proposed acquisition of the Premises, Purchaser may (but shall not be required
to) assume the Assumed Loan and the Assumed Loan Documents and (c) Lender’s
consent to the sale of the Premises and the assumption of the Loan by Purchaser
is required pursuant to the terms of the Assumed Loan Documents (including,
without limitation, the replacement of the Guarantors (as defined in the
Assumed Loan Documents) with a guarantor satisfactory to the Lender).  In
connection with the foregoing, the following shall apply: 


 


                          49.1    In connection
with the assumption of the Assumed Loan by Purchaser, Purchaser shall (i)
promptly provide such information as is required by Lender regarding Purchaser
and deliver such documents, agreements and opinions as are required by the
Lender (including, without limitation, organizational documents of Purchaser
and its direct and indirect constituent entities, non-consolidation opinions,
enforceability opinions, certificates and any other information or
documentation reasonably required by Lender), (ii) reserved, (iii) cause its
organizational structure to satisfy the special purpose entity/separateness
requirements of the Lender and the Assumed Loan Documents, (iv) cause the new
property manager and management agreement to satisfy the requirements of the Lender,
(v) cause to be provided a substitute guarantor that is acceptable to Lender
and (vi) take such other steps and deliver such other documents and agreements
as are reasonably required to be taken or delivered to the Lender (it being
acknowledged that any application fee, assumption fee, and the fees and costs
charged by the Lender in connection with reviewing the assumption, approving
Purchaser, preparing the assumption documents, any title charges, appraisal
costs and other amounts charged by the Lender in approving Purchaser shall be
paid by Purchaser, which payment obligation shall survive the Closing or
earlier termination of this Agreement; provided, however, if the
Closing occurs and Purchaser assumes the Assumed Loan in accordance with the
terms and conditions of this Agreement, Seller shall be obligated to pay up to
one and one-half percent (1.5%) of the outstanding principal balance of the
Assumed Loan towards the assumption fee, if any, charged by the Lender (it
being agreed that such contribution by the Seller shall not apply to any other
amounts charged by Lender in connection with the Purchaser’s assumption of the
Assumed Loan, including, without limitation, any attorneys’ fees of the
Lender’s counsel and other fees charged by the Lender).


 


                         49.2      On or prior to
the Closing Date, Purchaser shall deliver to Seller evidence (in form
satisfactory to Seller) that:


 


                                       (a)      Lender
has consented to the acquisition of the Premises by Purchaser and to the
assumption of the Assumed Loan by Purchaser (including, without limitation,
approval of the assumption of the Assumed Loan Documents, including, without
limitation, the Swap Agreement (as hereinafter defined), approval of the substitute
guarantor, approval of the form of opinions to be delivered by Purchaser,
confirmation from the applicable rating agencies, if any, and other deliveries
or matters required from Purchaser by Lender or required for the Assumed Loan
to be assumed by Purchaser); 


 


                                    (b)     Lender
and Purchaser have agreed upon the form of loan assumption document to be
entered into by Purchaser and/or the substitute guarantor at the Closing and
Lender has agreed to execute and deliver such agreed-upon form without
condition other than (i) the payment by Purchaser of the assumption fee and
costs required to be paid to Lender, (ii) the execution and delivery of the
Loan Assumption Documents by Purchaser and (iii) delivery by Purchaser of the opinions,
certificates and other deliveries required by Lender pursuant to the Assumed
Loan Documents (the conditions set forth in subclauses (a), (b), (c) 
and (d), the “Loan Assumption Condition”; the documents agreed to
between Purchaser and Lender, the “Loan Assumption Documents”);  


 


                                     (c)     the
Loan Assumption Documents provide, among other things, upon execution and
delivery thereof that the Seller and the Guarantors (as defined in the Loan
Agreement) shall be released from all liability under the Assumed Loan
Documents (including, without limitation, under 







46 




 










 








 








any
guaranties and/or environmental indemnities) first accruing from and after the
Closing Date, such release to be in form and substance acceptable to Seller, in
its sole discretion.; 


 


                                          (d)      without
limiting clause (c) above, the Loan Assumption Documents provide, among
other things, upon execution and delivery thereof that the Seller and the
Guarantors (as defined in the Loan Agreement) shall not be liable for any
amounts under the Swap Agreement, including, without limitation, any
termination fees, breakage cost and/or any other amounts that would otherwise
be payable had such Swap Agreement been terminated; and


 


In connection with the foregoing, Purchaser shall,
promptly (and in any event not more than two (2) Business Days) after Seller’s
or Lender’s request therefor: (A) comply with Lender’s requests for information
under Section 49.1 above and (B) participate in telephone calls and, if
required and upon not less than five (5) Business Days’ notice, personal
face-to-face meetings to discuss and negotiate the matters referenced in Sections
49.1 and 49.2. 


 


                         49.3     Seller and
Purchaser acknowledge and agree as follows:


 


(a)            
    If the Loan Assumption Condition is not satisfied on or prior to the
Closing Date for any reason, then this Agreement shall remain in full force and
effect and the Closing shall be consummated on the Closing Date; provided,
however, in such event, the Purchase Price shall be Forty-Two Million
Two Hundred Fifty Thousand and 00/100 Dollars ($42,250,000).  Seller shall be
entitled to adjourn the Closing one or more times (but for not more than thirty
(30) days in the aggregate) in order to satisfy the Loan Assumption Condition. 
For the avoidance of doubt, the failure of the Loan Assumption Condition to be
satisfied shall not give rise to any remedy of any kind against Seller.


 


(b)              
    In the event that the Loan Assumption Condition is satisfied and the
Closing occurs hereunder, Purchaser shall be required to assume the Assumed
Loan and execute the Loan Assumption Documents (and cause the substitute
guarantor to execute such Loan Assumption Documents as are required by the
Lender to be executed and delivered by such substitute guarantor) in the form
agreed upon between Purchaser and Lender on or prior to the Closing Date.


 


(c)               
From and after the expiration of the Due Diligence Period, in the event
that Seller desires to enter into any amendment, modification or extension of
the Assumed Loan Documents (a “Proposed Loan Document Amendment”) that
would modify the terms of the Assumed Loan Documents, Seller shall deliver
written notice to Purchaser requesting Purchaser’s consent to such Proposed Loan
Document Amendment.  Within five (5) Business Days after Seller delivers such
request to Purchaser, Purchaser shall deliver written notice to Seller
approving or disapproving such Proposed Loan Document Amendment, in Purchaser’s
sole and absolute discretion.  In the event that Purchaser fails to deliver
notice disapproving a Proposed Loan Document Amendment within such five (5)
Business Day period, Purchaser shall be deemed to have disapproved such
Proposed Loan Document Amendment.  If Purchaser shall approve a Proposed Loan
Document Amendment, then Seller shall have the right to execute such Proposed
Loan Document Amendment and, promptly after execution thereof, Seller shall
deliver a true, correct and complete copy thereof to Purchaser.  If Purchaser shall
disapprove a Proposed Loan Document Amendment, then Seller shall not enter into
such Proposed Loan Document Amendment.


 


(d)                  
   For the avoidance of doubt, Seller and Purchaser acknowledge and agree
that (i) if the Loan Assumption Condition is not satisfied as a result of an
Event of Default (as defined in the Assumed Loan Documents) under the Assumed
Loan Documents then the provisions of Section 49.3(a) shall apply and
(ii) if on or before the Closing, an Event of Default occurs under the Assumed
Loan Documents, then, if Seller does not elect to cure such Event of Default on
or before the Closing Date (and Seller shall be entitled to adjourn the Closing
one or more times (but for not more than 


 








 








twenty (20)
days in the aggregate) to effectuate such cure), then the provisions of Section
49.3(a) shall apply.


 


                49.4       As used
herein, “Assumed Loan Documents” shall mean (a) that certain Loan
Agreement, dated as of May 26, 2010, by and between Seller and Lender, (b) that
certain Promissory Note (Secured), dated as of May 26, 2010, by Seller in favor
of Lender, (c) that certain Open-End Mortgage and Absolute Assignment of Rents
and Leases and Security Agreement (and Fixture Filing), dated as of May 26,
2010, by Seller in favor of Lender, (d) that certain Absolute Assignment of
Leases and Rents, dated as of May 26, 2010, by Seller in favor of Lender, (e)
that certain Assignment of Management Contracts, dated as of May 26, 2010, by
Seller in favor of Lender, (f) that certain Consent, Subordination and Agreement
of Manager, dated as of May 26, 2010, by WP Realty, Inc., in favor of Lender,
(g) that certain Consent, Subordination and Agreement of Broker, dated as of
July 1, 2010, by Charter Realty and Development Corp., in favor of Lender, (h)
that certain Hazardous Materials Indemnity Agreement (Unsecured), dated as of
May 26, 2010, by and among AG Realty Fund VII (TE), L.P., AG Realty Fund VII,
L.P., AG Realty VII (AU) Investments, L.P., AG Realty Fund  VII (AC),
L.P., AG KIC Realty Fund, L.P., WP Real Estate Fund V, L.P. (collectively, the
“Fairlawn Guarantors”), Seller and Lender, (i) that certain Limited
Guaranty, dated as of May 26, 2010, by the Fairlawn Guarantors in favor of
Lender,  (j) that certain Certification of Taxpayer Identification Number
and Non-Foreign Status, dated as of May 26, 2010, by Seller and AG/WP Fairlawn
Parent, L.L.C., in favor of Lender, (k)  that certain Payment Method
Agreement, dated as of May 26, 2010, by Seller in favor of Lender, (l) that
certain Borrower’s Certification, dated as of May 26, 2010, by Seller in favor
of Lender, (m)  that certain Borrower Authorization Form, dated as of May
26, 2010, by Seller in favor of Lender, (n) that certain Arrearage Letter and
Rent Roll Certification Letter from Angelo Gordon Real Estate Inc. to Lender,
dated May 25, 2010, (o) that certain O&M Plan Letter, dated May 26, 2010,
by Seller in favor of Lender, (p) any tenant estoppel certificates and/or
Subordination, Non-Disturbance and Attornment Agreements executed in connection
with the Assumed Loan, (q) that certain Collateral Assignment of Interest Rate
Protection Agreement, dated as of May 26, 2010, by Seller in favor of Lender,
and (r) that certain ISDA Master Agreement, dated as of May 26, 2010, between
Seller and Lender, including all Schedules and SWAP Transaction Confirmations
thereto (collectively, the “Swap Agreement”). 


 


           
50.         Acknowledgement. 


 


             Seller and Purchaser acknowledge that
the transaction contemplated by this Agreement is the sale and purchase of the
Premises and that Purchaser is not acquiring the membership interests in the
Seller (accordingly Seller shall remain solely liable for (i) its own federal
and state income taxes, (ii) those debts, liabilities and other obligations for
which Seller alone is liable (it being agreed that Seller shall not be liable
for those debts, liabilities and other obligations of Seller that Purchaser has
agreed to assume or otherwise be liable for pursuant to this Agreement or any
of the Seller Documents), (iii) all payments, benefits and contribution
agreements with respect to past and/or present employees of Seller or its
affiliates in connection with the business of Seller or its affiliates
(including, but not limited to, salaries, wages, commissions, bonuses, vacation
pay, health and welfare contributions or benefits including any group health
continuation coverage obligation under COBRA, pensions, profit sharing,
severance or termination pay, or any other form of compensation or fringe
benefit).  For the avoidance of doubt, the parties do not intend for this Section
50 to limit or otherwise modify Section 21 (and to the extent there
is any conflict between such Section 21 and this Section 50, then
the provisions of Section 21 shall prevail). 


 


           
51.         
Books and Records.


 


Purchaser has advised Seller that
Purchaser may be required to file, in compliance with certain laws and
regulations (including, without limitation, Regulation S-X of the Securities
and Exchange Commission), audited financial statements, pro forma financial
statements and other financial information 







48 




 










 








 








related to
the Premises for up to three (3) fiscal years prior to Closing and any interim
period during the fiscal year in which the Closing occurs (the “Financial
Information”).  For a period of three (3) years after the Closing (the “Cooperation
Period”), Seller agrees to use its commercially reasonably efforts to
cooperate with Purchaser and its representatives and agents in the preparation
of the Financial Information to the extent such required documentation and/or
information is in Seller’s possession or control; provided, however,
Seller shall not be required to incur any out of pocket expenses or costs
unless Purchaser reimburses Seller for the same.  Seller shall maintain and allow
access to, during normal business hours, such books and records of Seller and
Seller’s manager of the Premises reasonably related to the Premises; provided,
however, any request for such access must be made in writing at least
thirty (30) days in advance and such access shall be limited to one (1) time
during the Cooperation Period.  Notwithstanding the foregoing, Seller shall not
be required to provide (a) any information concerning Seller’s capital
structure or debt, (b) any information concerning Seller’s financial analyses
or projections, investment analyses, account summaries or other documents
prepared solely for Seller’s internal purposes, (c) the tax returns of Seller
(or any of its direct or indirect owners) or (d) financial statements of Seller
or any affiliate of Seller (other than Premises-level financial statements),
(e) any information that constitutes privileged information pertaining to any
litigation or other proceeding, or (f) any information that constitutes any of
the following confidential information prepared by Seller pertaining to the
Property: internal evaluations, internal memos, internal appraisals,
information pertaining to the business relationships among the members
comprising Seller or documents showing Seller’s plans or strategy for the
pricing or marketing of the Premises.  Notwithstanding anything to the contrary
contained in this Section 51 or elsewhere in this Agreement, (x) Seller
shall not be require to conduct its own audits or generate any requested
materials that are not in its possession, (y) neither Seller’s delivery of any
documentation and/or information under this Section 51 to Purchaser nor
Seller’s cooperation in the preparation of the Financial Information shall be
deemed to constitute a representation by Seller as to the accuracy, correctness
or completeness of any documentation and/or information (it being agreed that
any such documentation and/or information shall be for informational purposes),
and (z) Purchaser agrees that nothing in this Section 51 shall grant
Purchaser any right or remedy against Seller or any Seller Exculpated Party,
including, without limitation, as a result of the delivery of any documentation
and/or information under this Section 51 (or the use of such
documentation and/or information by Purchaser or any of its affiliates).


 


            52.          Giant Eagle
Contingency.


 


The parties acknowledge and agree
that it shall be a condition precedent to Purchaser’s obligation to acquire the
Premises that, as of the Closing Date, Giant Eagle has not (i) filed for
bankruptcy protection (or delivered Seller written notice of its intent to do
so), or (ii) permanently closed its store located at the Premises (or delivered
Seller written notice of its intent to do so).  It being further agreed that if
such condition is not satisfied as of the Closing Date, then Purchaser’s sole
and exclusive remedy shall be to either (a) waive the same and accept title to
the Premises without any abatement of the Purchase Price, or (b) terminate this
Agreement by notice in writing to Seller, in which event the provisions of Section
9 of this Agreement shall apply to such termination.  Without limiting the
generality of the foregoing provision, in the event that Purchaser takes title
to the Premises without raising any objection to such failed condition, same
shall constitute a complete waiver of any right Purchaser may have to object to
such failed condition or to make any claim against Seller on account thereof
and any such claim is hereby waived by Purchaser.


 


[The rest of this page is intentionally
blank.]


        IN WITNESS WHEREOF, this Agreement has been
duly executed by the parties hereto as of the Effective Date.


 


SELLER: 




 








 








 


AG/WP
FAIRLAWN OWNER, L.L.C., 


a
Delaware limited liability company


 


By:    
 AG/WP Fairlawn Parent, L.L.C., 


           
a Delaware limited liability company, its sole member


  


                                                                       
By:      AG Real Estate Manager, Inc.,


                                                    
                               a Delaware corporation, its manager


 


 


By:         /s/ Christina Lyndon_____________


Name: Christina Lyndon


Title:  Vice President


 


Federal
I.D. No. 27-2457051


 


(Signatures continue on next page)







 








 








PURCHASER: 


 


THE
PHILLIPS EDISON GROUP LLC, an Ohio limited liability company


 


By:       Phillips Edison Limited Partnership, a Delaware
limited partnership, its managing member


 


By:     Phillips Edison & Company, Inc., a Maryland
corporation, its general partner


 


 


 


By:        /s/ Robert F. Myers______________


Name:  Robert F. Myers


Title:  President


 


 


Federal
I.D. No. 27-1449019 


 












51 




 










 








 








 


             Escrow Agent has executed this
Agreement solely to confirm Escrow Agent’s acceptance of the duties of Escrow
Agent as set forth in Section 15 of this Agreement.


 


Land Services USA, Inc.


 


 


 


By:         /s/ Alison Neumann________


Alison Neumann


Title Services Coordinator


EXHIBIT A


Description of the Land


 


(Attached hereto)


 


 












52 




 










 








 








EXHIBIT B


Existing Leases


 


(Attached hereto)





 









53 




 










 








 








  









54 




 










 











55 




 










 

EXHIBIT C


Existing Contracts


 


	
  CONTRACTOR

  	
  SERVICE

  
	
  1.   Buckeye Sweeping, Inc.

  	
  Parking Lot Sweeping

  
	
  2.   Cintas Corporation

  	
  Uniform Rental

  
	
  3.   Midwest Property Tax Associates

  	
  Property Tax Services

  
	
  4.   Nelson Contracting, Inc.

  	
  Landscaping

  
	
  5.   Nelson Contracting, Inc.

  	
  Snow Removal

  
	
  6.   Republic Services, Inc.

  	
  Trash Removal

  
	
  7.   RWK Services, Inc.

  	
  Office Cleaning/Janitorial

  
	
  8.   S.A. Communale Co., Inc.

  	
  Inspection and Testing f/s

  
	
  9.   Sanborn, Head & Associates,
  Inc.

  	
  Environmental

  
	
  10. Schindler Elevator Corporation

  	
  Elevator Preventative Maintenance

  
	
  11. Tennant Sales & Service Co.

  	
  Equipment Maintenance

  
	
  12. The Geopfert Co., Inc.

  	
  HVAC Preventative Maintenance (FL Office
  Building)

  
	
  13. The Geopfert Co., Inc.

  	
  HVAC Preventative Maintenance (Post Office)

  
	
  14. U.S. Protective Services

  	
  Sprinkler Alarm Monitoring (North Riser
  Room, former space 20)

  














56 




 










 

EXHIBIT D


Existing Violations


 


None












57 




 










 








 








EXHIBIT E


Form of Deed


 


 


LIMITED WARRANTY DEED


 


 


KNOW ALL MEN BY THESE PRESENTS, that AG/WP
FAIRLAWN OWNER, L.L.C., a Delaware limited liability company ("Grantor"), for and in consideration of the
sum of Ten Dollars ($10.00) and other valuable consideration, to it paid by
[_________________], a [____________] ("Grantee"), whose tax mailing
address is [_______________], the receipt and sufficiency of which is hereby
acknowledged, subject to the conditions, matters, and/or reservations herein
set forth, if any, and by these presents does grant, with limited warranty
covenants, unto the said Grantee, the following described property:


 


The real estate described on Exhibit
“A” attached hereto.


 


DERIVATION: This being the same piece, parcel, or
tract of land conveyed to Grantor by Limited Warranty Deed recorded June 1,
2010, in the Office of the Recorder of Summit County, Ohio as document number
55703478.


 


PM Nos.:          09-03156


                        09-03159


                        09-00666


                        09-00670


                        09-02030


 


TOGETHER WITH all and singular, the rights,
members, hereditaments, and appurtenances to the said premises belonging or in
anywise incident or appertaining.


 


THIS CONVEYANCE is made subject to easements,
conditions, and restrictions of record.


 


THIS CONVEYANCE is made subject to that certain
Declaration of Use Restrictions for Environmental Purposes, dated as of April
11, 2000, and filed for record with the Office of the Recorder of Summit County
on the 19th day of April, 2000 in File No. 54413203 as if the same were fully
set forth herein.


 


TO HAVE AND TO HOLD all and singular the premises
before mentioned unto the said Grantee, its successors and assigns forever.


 


[Signature on following page]







 

WITNESS Grantor’s hand and
seal this day of [_____], 20[__].


 


             GRANTOR:


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                                  
AG/WP Fairlawn Parent, L.L.C., 


                                                                          
a Delaware limited liability company, its sole member


 


                                                                         By:    
AG Real Estate Manager, Inc.,


                                                                        
a Delaware corporation, its manager


 


 


By:     _________________________


Name:


Title:


 


 


 


 


STATE
OF NEW YORK                                 )


)          
SS.


COUNTY
OF NEW YORK                             )


 


 


On
this               day of                , ________, before me
appeared                     , to me personally known, who, being by me
duly sworn, did say that he is the ___________ of
AG Real Estate Manager, Inc., a Delaware corporation, the manager of AG/WP
Fairlawn Parent, L.L.C., a Delaware limited liability
company, the sole member of AG/WP Fairlawn Owner, L.L.C., a Delaware limited
liability company, and that the foregoing instrument was signed in behalf of
said corporation, by authority of its board of
directors; and _________________  acknowledged said instrument to be the
free act and deed of said corporation.


  


IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in
the County and State aforesaid, the day and year first above written.


 


 


____________________________________


Notary
Public


My
term expires:


 


__________________________


 


 


This instrument prepared by:


 


Joseph J. Galvano, Esquire

Duval & Stachenfeld LLP

101 Park Avenue, 11th Floor

New York, NY 10178













59 




 










 

EXHIBIT A


 


Legal Description


 


(Attached hereto)












60 




 










 

EXHIBIT F


Form of Bill of Sale


 


            For good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the undersigned,
AG/WP FAIRLAWN OWNER, L.L.C., a limited liability company organized under the
laws of the State of Delaware (the “Seller”), does hereby quitclaim unto
[______________], a [_________]  organized under the
laws of the State of [________]  (the “Purchaser”), all of
Seller’s right, title and interest in and to all equipment, appliances, tools,
machinery, supplies, building materials and other personal property of every
kind and character located on and used in connection with the Premises
described in Schedule l attached hereto (the “Personalty”)
relating to the real property described in Schedule 2 hereto.  The
conveyance contained in this Bill of Sale is made without representation or
warranty by the Seller of any kind or nature and is expressly without recourse
to the Seller of any kind or nature whatsoever.  


 


             IN ADDITION TO, AND WITHOUT LIMITATION
OF THE FOREGOING, SELLER MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR BY
OPERATION OF LAW, AS TO THE QUALITY, QUANTITY, MERCHANTABILITY, TITLE,
MARKETABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE OF THE
PERSONALTY, AND THE PERSONALTY IS SOLD IN AN “AS IS”, “WHERE IS” CONDITION,
WITH ALL FAULTS.  BY ACCEPTANCE OF THIS BILL OF SALE, PURCHASER AFFIRMS AND
AGREES THAT (A) PURCHASER HAS NOT RELIED ON SELLER’S SKILL OR JUDGMENT TO
SELECT OR FURNISH THE PERSONALTY FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES
NO WARRANTY THAT THE PERSONALTY IS FIT FOR ANY PARTICULAR PURPOSE, AND (C)
THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR BY
OPERATION OF LAW, WITH RESPECT TO THE PERSONALTY.  PURCHASER HAS BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PERSONALTY AND HAS DETERMINED TO PURCHASE THE
PERSONALTY BASED ON SUCH INSPECTION.  PURCHASER HEREBY ASSUMES THE RISK THAT
ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND
ADVERSE PHYSICAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S
INVESTIGATIONS, AND PURCHASER HEREBY WAIVES, RELINQUISHES, AND RELEASES SELLER
FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING,
WITHOUT LIMITATION, CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES,
COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND COURT
COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, THAT PURCHASER
MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR
ARISING OUT OF ANY LATENT OR PATENT DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS
OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS,
CIRCUMSTANCES, OR MATTERS REGARDING THE PERSONALTY.


 


           This Bill of Sale is subject to the
express provisions of that certain Sale-Purchase Agreement, dated as of [___________],
20[__] (the “Purchase Agreement”), by and between Seller and Purchaser [(as
assignee of [____________])], including, without
limitation, the provisions of Sections 19, 29, 32, 37,
38, 39  and 40  thereof.  Unless otherwise stated herein,
all capitalized terms used in this Bill of Sale shall have the meanings
specified in the Purchase Agreement.


 


[Signatures Appear on the Following Page]


 












61 




 










 








 








 


            IN WITNESS WHEREOF, intending to be
legally bound, the parties have executed this instrument as of this [____] 
day of [________], 20[__].


 


 


SELLER: 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                                 
AG/WP Fairlawn Parent, L.L.C., 


                                                                       
a Delaware limited liability company, its sole member


 


                                                                       
By:      AG Real Estate Manager, Inc.,


                                                                                   
a Delaware corporation, its manager


 


 


By:            _________________________


Name:


Title:


 


[Signatures Continue on the Following
Page]


 


 












62 




 










 








 








PURCHASER: 


 


[_____________________] 


 


By:      [____________________] 


 


 


By:      _________________________


Name:


Title:


 












63 




 










 








 








Schedule l


Schedule of Personalty


 


          All equipment, appliances, tools,
machinery, supplies, building materials and other personal property of every
kind and character owned by Seller and located on and used in connection with
that certain land (the “Land”) and the improvements located thereon
located in the County of Summit, State of Ohio, which Land is more particularly
described in Schedule 2 attached to the Bill of Sale to which this Schedule
1 is attached.


 


 












64 




 










 








 








Schedule 2


Legal Description of the Land


 


(Attached hereto)


       












65 




 










 








 








EXHIBIT G


Form of Assignment and Assumption of
Leases


 


THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this “Assignment”),
made as of the [____]  day of [________], 20[__]
(the “Effective Date”), by and between AG/WP FAIRLAWN OWNER, L.L.C., a
limited liability company organized under the laws of the State of Delaware,
having an office at c/o Angelo, Gordon & Co., L.P., 245 Park Avenue, 26th
Floor, New York, New York 10167, as assignor (“Assignor”), and [__________________],
a [___________]  organized under the laws of the State of [___________],
having an office [________________________], as assignee (“Assignee”). 


 


W  I  T  N  E  S  S  E  T  H: 


 


             WHEREAS, Assignor is the landlord
under the leases set forth on Schedule A attached hereto and made a part
hereof (the “Leases”), pursuant to which Leases, Assignor has demised to
the tenants thereunder certain premises located in Fairlawn, Ohio, and more
particularly described in Schedule B attached hereto (the “Premises”); 


 


             WHEREAS, Assignor and The Phillips
Edison Group LLC, an Ohio limited liability company (“Contract Vendee”)
are parties to that certain Sale-Purchase Agreement, dated as of [________],
20[__] (as amended, the “Purchase Agreement”), by and between Assignor,
as seller, and Contract Vendee, as purchaser, pursuant to which Purchase
Agreement, Assignor has agreed to sell to Contract Vendee, and Contract Vendee
has agreed to purchase from Assignor, the Premises;


 


            WHEREAS, Contract Vendee and Assignee
are parties to that certain [Assignment and Assumption Agreement, dated
as of [__________], 20[__] (the “Purchase Agreement Assignment”),
by and between Contract Vendee, as assignor, and Assignee, as assignee,
pursuant to which Purchase Agreement Assignment, Contract Vendee has assigned
to Assignee, and Assignee has assumed from Contract Vendee, all of Contract
Vendee’s right, title and interest in, to and under the Purchase Agreement;


 


            WHEREAS, in connection with the
Purchase Agreement (a) Assignor is required to assign, transfer and convey to
the purchaser thereunder all of Assignor’s right, title and interest in, to and
under the Leases, together with any and all right, title, estate and interest
of Assignor in and to such security deposits and prepaid rents, if any, as have
been paid to Assignor pursuant to such Leases, less any amounts deducted
therefrom as provided in Section 6.9 of the Purchase Agreement
(collectively, the “Security Deposits”), and (b) such purchaser is
required to accept such assignment and to assume Assignor’s obligations under
the Leases and the Security Deposits from and after the Effective Date; and


 


             WHEREAS, Assignee and Assignor are
consummating the transactions set forth in the Purchase Agreement on the
Effective Date.


 


             NOW, THEREFORE, in consideration of
the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable
consideration, the mutual receipt and sufficiency of which are hereby
acknowledged, the parties hereto to hereby agree as follows: 


 


 


1.                 
Unless otherwise stated herein, all capitalized terms used in this
Assignment shall have the meanings specified in the Purchase Agreement. 


 


2.                 
Subject to the terms of the Purchase Agreement, Assignor hereby assigns,
transfers, releases and sets over unto Assignee all of the right, title and
interest of Assignor in, to and under (a) the 


 








 








Leases
and (b) the Security Deposits.  Assignee acknowledges that concurrently with
the Effective Date and in connection with the consummation of the transactions
under the Purchase Agreement, Assignor has granted Assignee a credit in an
amount equal to the Security Deposits, and such amount constitutes all of the
Security Deposits due Assignee pursuant to the provisions of the Purchase
Agreement, including, without limitation, Section 6.9 thereof.


 


3.                 
Assignee hereby accepts the foregoing assignment and hereby assumes (a)
all of the obligations of Assignor under the Leases from and after the
Effective Date and (b) all obligations of Assignor with respect to the Security
Deposits, including, without limitation, the obligation to return same to the
tenants under the Leases in accordance with the terms of such Leases.


 


            4.          Assignor hereby indemnifies
and holds Assignee harmless from and against any and all claims, expenses,
costs, obligations or other liabilities relating to acts or omissions of the
Assignor with respect to the Leases and Security Deposits accruing prior to the
Effective Date.  The foregoing indemnification obligation shall survive
the delivery of this instrument for a period of one (1) year and any claim not
made within such one (1) year period shall be deemed waived by Assignee.


 


            5.           Assignee hereby
indemnifies and holds Assignor harmless from and against any and all claims, expenses,
costs, obligations, or other liabilities relating to acts or omissions of the
Assignee with respect to the Leases and Security Deposits accruing from and
after the Effective Date.  The foregoing indemnification obligation shall
survive the delivery of this instrument for a period of one (1) year.


 


            6.           This Assignment may not be
amended, modified or terminated except by an instrument in writing executed by
the parties hereto.


 


            7.          This Assignment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.


 


8.                 
  This Assignment may be executed in counterparts, each of which shall
constitute an original, and all of which taken together shall constitute one and
the same instrument.  For purposes hereof, facsimile or .pdf signatures
transmitted electronically shall be binding on the parties to this Assignment.


 


9.                 
The provisions hereof are subject to the provisions of the Purchase
Agreement, including, without limitation, the provisions of Sections 19,
29, 32, 37, 38, 39  and 40  thereof.


 


[Signatures Appear on the Following Page]












67 




 










 








 








 


     IN WITNESS WHEREOF, intending to be legally
bound the parties hereto have executed this Assignment as of the Effective
Date.


 


 


ASSIGNOR: 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                                 
AG/WP Fairlawn Parent, L.L.C., 


                                                                       
a Delaware limited liability company, its sole member


 


                                                                       
By:      AG Real Estate Manager, Inc.,


                                                                       
a Delaware corporation, its manager


 


 


By:_________________________


Name:


Title:


 


[Signatures Continue on the Following
Page]


 


 







 








 








ASSIGNEE: 


 


[__________], a [__________] 


 


By: [_________], a [__________],
its [__________] 


 


 


 


By: _________________________


Name:


Title:


 


 












69 




 










 








 








Schedule A


 


Leases


 


(Attached hereto)








70 




 










 








 








Schedule B


 


Legal Description of the Premises


 


(Attached hereto)


 












71 




 










 

EXHIBIT H


Form of Assignment and Assumption of
Contracts 


 


THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS  (this
“Assignment”), made as of the [____]  day of [________],
20[__] (the “Effective Date”), by and between AG/WP FAIRLAWN OWNER,
L.L.C., a limited liability company organized under the laws of the State of
Delaware, having an office at c/o Angelo, Gordon & Co., L.P., 245 Park
Avenue, 26th Floor, New York, New York 10167, as assignor (“Assignor”),
and [__________________], a [___________]  organized
under the laws of the State of [___________], having an office [________________________],
as assignee (“Assignee”). 


 


W  I  T  N  E  S  S  E  T  H: 


 


              WHEREAS, Assignor is party to certain
(the “Contracts”) contracts with the parties set forth on Schedule
A-1 attached hereto and made a part hereof, pursuant to which Contracts
Assignor has entered into certain agreements regarding the provision of certain
services and the supply of certain goods to or for certain premises located
Fairlawn, Ohio, and more particularly described in Schedule B attached
hereto (the “Premises”), as further described therein;


 


              WHEREAS, Assignor and The Phillips
Edison Group LLC, an Ohio limited liability company (“Contract Vendee”)
are parties to that certain Sale-Purchase Agreement, dated as of [________],
20[__] (as amended, the “Purchase Agreement”), by and between Assignor,
as seller, and Contract Vendee, as purchaser, pursuant to which Purchase
Agreement, Assignor has agreed to sell to Contract Vendee, and Contract Vendee
has agreed to purchase from Assignor, the Premises;


 


             WHEREAS, Contract Vendee and Assignee
are parties to that certain [Assignment and Assumption Agreement, dated
as of [__________], 20[__] (the “Purchase Agreement Assignment”),
by and between Contract Vendee, as assignor, and Assignee, as assignee,
pursuant to which Purchase Agreement Assignment, Contract Vendee has assigned
to Assignee, and Assignee has assumed from Contract Vendee, all of Contract
Vendee’s right, title and interest in, to and under the Purchase Agreement;


 


             WHEREAS, in connection with the
Purchase Agreement (a) Assignor is required to assign, transfer and convey to
the purchaser thereunder all of Assignor’s right, title and interest in, to and
under the Contracts, and (b) such purchaser is required to accept such
assignment and to assume Assignor’s obligations under the Contracts from and
after the Effective Date; and


 


              WHEREAS, Assignee and Assignor are
consummating the transactions set forth in the Purchase Agreement on the
Effective Date.


 


              NOW, THEREFORE, in consideration of
the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable
consideration, the mutual receipt and sufficiency of which are hereby
acknowledged, the parties hereto to hereby agree as follows: 


 


1.                 
         Unless otherwise stated herein, all capitalized terms used in
this Assignment shall have the meanings specified in the Purchase Agreement. 


 


2.                 
          Subject to the terms of the Purchase Agreement, Assignor hereby
assigns, transfers, releases and sets over unto Assignee all of the right,
title and interest of Assignor in, to and under the Contracts.


 









72 




 










 








 








3.                 
         Assignee hereby accepts the foregoing assignment and hereby
assumes all of the obligations of Assignor under the Contracts from and after
the Effective Date.


 


4.                 
         Assignor hereby indemnifies and holds Assignee harmless from and
against any and all claims, expenses, costs, obligations or other liabilities
relating to acts or omissions of the Assignor with respect to the Contracts
accruing prior to the Effective Date.  The foregoing indemnification
obligation shall survive the delivery of this instrument for a period of one
(1) year and any claim not made within such one (1) year period shall be deemed
waived by Assignee.


 


5.                 
          Assignee hereby indemnifies and holds Assignor harmless from
and against any and all claims, expenses, costs, obligations, or other
liabilities relating to acts or omissions of the Assignee with respect to the
Contracts accruing from and after the Effective Date.  The foregoing
indemnification obligation shall survive the delivery of this instrument for a
period of one (1) year.


 


6.                 
         This Assignment may not be amended, modified or terminated
except by an instrument in writing executed by the parties hereto.


 


7.                 
         This Assignment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.


 


8.                 
        This Assignment may be executed in counterparts, each of which
shall constitute an original, and all of which taken together shall constitute
one and the same instrument.  For purposes hereof, facsimile or .pdf signatures
transmitted electronically shall be binding on the parties to this Assignment.


 


9.                 
        The provisions hereof are subject to the provisions of the
Purchase Agreement, including, without limitation, the provisions of Sections
19, 29, 32, 37, 38, 39  and 40 
thereof.


 


[Signatures Appear on the Following Page]












73 




 










 

 


                   IN WITNESS WHEREOF, intending to
be legally bound, the parties hereto have executed this Assignment as of the
Effective Date.


 


 


ASSIGNOR: 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                                  
AG/WP Fairlawn Parent, L.L.C., 


                                                                        
a Delaware limited liability company, its sole member


 


By:                                                                 
AG Real Estate Manager, Inc.,


                                                                       
a Delaware corporation, its manager


 


 


By:_________________________


Name:


Title:


 


[Signatures Continue on the Following
Page]


 


 












74 




 










 








 








ASSIGNEE: 


 


[__________], a [__________] 


 


By:[_________], a [__________],
its [__________] 


 


 


 


By:_________________________


Name:


Title:












75 




 










 








 








Schedule A


 


List of Contract Parties


 


Sanborn,
Head & Associates, Inc.












76 




 










 








 








Schedule B


 


Legal Description of the Premises


 


(Attached hereto)












77 




 










 

EXHIBIT I


Form of Assignment and Assumption of
Intangible Property


 


THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLE
PROPERTY (this “Assignment”), made as of the [____]  day of
[________], 20[__] (the “Effective Date”), by and between
AG/WP FAIRLAWN OWNER, L.L.C., a limited liability company organized under the
laws of the State of Delaware, having an office at c/o Angelo, Gordon &
Co., L.P., 245 Park Avenue, 26th Floor, New York, New York 10167, as assignor
(“Assignor”), and [__________________], a [___________] 
organized under the laws of the State of [___________], having an
office [________________________], as assignee (“Assignee”). 


 


W  I  T  N  E  S  S  E  T  H: 


 


              WHEREAS, Assignor and The Phillips
Edison Group LLC, an Ohio limited liability company (“Contract Vendee”)
are parties to that certain Sale-Purchase Agreement, dated as of [________],
20[__] (as amended, the “Purchase Agreement”), by and between Assignor,
as seller, and Contract Vendee, as purchaser, pursuant to which Purchase
Agreement, Assignor has agreed to sell to Contract Vendee, and Contract Vendee
has agreed to purchase from Assignor, the premises located Fairlawn, Ohio, and
more particularly described in Schedule A attached hereto (the “Premises”),
as further described therein;


 


             WHEREAS, Contract Vendee and Assignee
are parties to that certain [Assignment and Assumption Agreement, dated
as of [__________], 20[__] (the “Purchase Agreement Assignment”),
by and between Contract Vendee, as assignor, and Assignee, as assignee,
pursuant to which Purchase Agreement Assignment, Contract Vendee has assigned
to Assignee, and Assignee has assumed from Contract Vendee, all of Contract
Vendee’s right, title and interest in, to and under the Purchase Agreement;


 


             WHEREAS, in connection with the
Purchase Agreement (a) Assignor is required to assign, transfer and convey to
the purchaser thereunder all of Assignor’s right, title and interest in, to and
under the Intangible Property (as defined in the Purchase Agreement), and (b)
such purchaser is required to accept such assignment and to assume Assignor’s
obligations with respect to the Intangible Property from and after the
Effective Date; and


 


              WHEREAS, Assignee and Assignor are
consummating the transactions set forth in the Purchase Agreement on the
Effective Date.


 


              NOW, THEREFORE, in consideration of
the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable
consideration, the mutual receipt and sufficiency of which are hereby
acknowledged, the parties hereto to hereby agree as follows: 


 


1.                 
     Unless otherwise stated herein, all capitalized terms used in this
Assignment shall have the meanings specified in the Purchase Agreement. 


 


2.                 
     Subject to the terms of the Purchase Agreement, Assignor hereby
assigns, transfers, releases and sets over unto Assignee all of the right,
title and interest of Assignor in, to and under Intangible Property.  For
purposes of this Assignment, Intangible Property shall include all of the
right, title and interest of Assignor in and to (a) the name “Fairlawn Town
Centre” and (b) the Permits.


.


3.                 
     Assignee hereby accepts the foregoing assignment and hereby assumes
all of the obligations of Assignor with respect to the Intangible Property from
and after the Effective Date.


 




 

4.                 
     Assignor hereby indemnifies and holds Assignee harmless from and
against any and all claims, expenses, costs, obligations or other liabilities
relating to acts or omissions of the Assignor with respect to the Intangible
Property accruing prior to the Effective Date.  The foregoing
indemnification obligation shall survive the delivery of this instrument for a
period of one (1) year and any claim not made within such one (1) year period
shall be deemed waived by Assignee.


 


5.                 
     Assignee hereby indemnifies and holds Assignor harmless from and
against any and all claims, expenses, costs, obligations, or other liabilities
relating to acts or omissions of the Assignee with respect to the Intangible
Property accruing from and after the Effective Date.  The foregoing
indemnification obligation shall survive the delivery of this instrument for a
period of one (1) year.


 


6.                 
     This Assignment may not be amended, modified or terminated except by
an instrument in writing executed by the parties hereto.


 


7.                 
      This Assignment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.


 


8.                 
     This Assignment may be executed in counterparts, each of which shall
constitute an original, and all of which taken together shall constitute one
and the same instrument.  For purposes hereof, facsimile or .pdf signatures
transmitted electronically shall be binding on the parties to this Assignment.


 


9.                 
     The provisions hereof are subject to the provisions of the Purchase
Agreement, including, without limitation, the provisions of Sections 19,
29, 32, 37, 38, 39  and 40  thereof.


 


[Signatures Appear on the Following Page]


 












79 




 










 

 


          IN WITNESS WHEREOF, intending to be
legally bound, the parties hereto have executed this Assignment as of the
Effective Date.


 


 


ASSIGNOR: 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                                  
AG/WP Fairlawn Parent, L.L.C., 


                                                                       
a Delaware limited liability company, its sole member


 


                                                                       
By:       AG Real Estate Manager, Inc.,


                                                                                    
a Delaware corporation, its manager


 


 


By:_________________________


Name:


Title:


 


[Signatures Continue on the Following
Page]


 







 








 








ASSIGNEE: 


 


[__________], a [__________] 


 


By:[_________], a [__________],
its [__________] 


 


 


 


By:_________________________


Name:


Title:







 

Schedule A


Legal Description of the Premises


 


(Attached hereto)


 


 







 








 








EXHIBIT J


Form of FIRPTA Certification


 


Section 1445 of the Internal
Revenue Code provides that a transferee of a U.S. real property interest must
withhold tax if the transferor is a foreign person.  For U.S. tax purposes
(including section 1445), the owner of a disregarded entity (which has legal
title to a U.S. real property interest under local law) will be the transferor
of the property and not the disregarded entity.  To inform [___________________],
a [___________________]  (“Transferee”), that withholding
of tax is not required upon the disposition of a U.S. real property interest by
AG/WP Fairlawn Parent, L.L.C., a Delaware limited liability company (“Transferor”),
the sole member of AG/WP Fairlawn Owner, L.L.C., a Delaware limited liability
company (a disregarded entity for federal tax purposes that holds legal title
to a U.S. real property interest under local law), Transferor hereby certifies
the following:


 


1.  Transferor is not a foreign
corporation, foreign partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax Regulations);


 


2.  Transferor is not a
disregarded entity, as such term is defined in Internal Revenue Code Income Tax
Regulation § 1.1445–2(b)(2)(iii); 


 


3.  Transferor’s U.S. employer
identification number is 27-2457051; and 


 


4.  Transferor’s office address
is c/o Angelo, Gordon & Co., L.P., 245 Park Avenue, 26th Floor,
New York, New York 10167.


 


Transferor understands that
this certificate (this “Certificate”) may be disclosed to the Internal
Revenue Service by Transferee and that any false statement contained herein
could be punished by fine, imprisonment, or both.


 


Under penalties of perjury, Transferor declares
that Transferor has examined this Certificate and to the best of Transferor’s
knowledge and belief this Certificate is true, correct and complete, and
Transferor further declares that Transferor has authority to sign this
Certificate.


 


[Signature Appears on the Following Page]


 












83 




 










 








 








IN WITNESS WHEREOF, this
Certificate has been executed as of this [____]  day of [_________],
20[__].


 


 


 


                                                                        AG/WP
FAIRLAWN PARENT, L.L.C., 


                                                                       
a Delaware limited liability company


 


                                                            
            By:     AG Real Estate Manager, Inc.,


                                                                                   
a Delaware corporation, its manager


 


 


By:_________________________


Name:


Title:


 












84 




 










 








 








EXHIBIT K


Form of Notice to Tenants


 


 


[_________], 20[__]


 


 


VIA [Insert Form of Delivery under the
Lease] 


 


[Name of Tenant] 


[Address of Tenant] 


Town and Country, Missouri, 63017


 


Re:[Description of Lease], dated as
of [Date of Lease]  (as amended, the “Lease”), by and between
AG/WP Fairlawn Owner, L.L.C., as landlord (“Landlord”), and [Name
of Tenant], as tenant (“Tenant”)__________________


 


Ladies & Gentlemen:


 


             Reference is made to the Lease. 
Pursuant to the Lease, Tenant has leased from Landlord certain premises located
in that certain property known as Fairlawn Town Centre, located in Fairlawn,
Ohio (the “Property”). 


 


Landlord hereby notifies
Tenant that Landlord is, on the date hereof, conveying and otherwise
transferring its interest in the Property to [_________]  (“Purchaser”),
including, without limitation, Landlord’s interest in the Lease.


 


            Please be advised that all future
rentals and payments under the Lease should be delivered to Purchaser (as the
new landlord under the Lease) as follows:


 


c/o [_________] 


[_________] 


[_________] 


Attention: [__________] 


 


           Please be further advised that all
future notices and correspondence under the Lease should be delivered to
Purchaser (as the new landlord under the Lease) as follows:


 


 


c/o [_________] 


[_________] 


[_________] 


Attention: [__________] 












85 




 










 








 








 


with a copy to:


 


 


c/o [_________] 


[_________] 


[_________] 


Attention: [__________] 


 


           Please call Purchaser’s representative [_________],
at [________], if you have any questions regarding the Lease
after the date hereof.


 


[Signatures Appear on the Following Page]


 


 


 


 







 








 








Very truly yours,


 


Seller: 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                                 
AG/WP Fairlawn Parent, L.L.C., 


                                                                        a
Delaware limited liability company, its sole member


 


                                                                        
By:AG Real Estate Manager, Inc.,


                                                                         a
Delaware corporation, its manager


 


 


By:_________________________


Name:


Title:


 


[Signatures Continue on the Following
Page]


 


 












87 




 










 








 








Purchaser: 


 


[__________] 


 


By:[__________], its [___________] 


 


 


By:_________________________


Name:


Title:


 


 


cc:[Required Notice Parties Under the Lease] 


 












88 




 










 








 








EXHIBIT L


Form of Notice to Contract Parties


 


 


[_________], 20[__]


 


 


VIA [Insert Form of Delivery under the
Service Contract] 


 


[Name of Service Contractor] 


[Address of Service Contractor]    


[Address of Service Contractor] 


 


Re:Fairlawn Town Centre, located in Fairlawn,
Ohio (the “Property”)


 


Ladies & Gentlemen:


 


              You have a contract (the “Service
Contract”) for the supply of services or the furnishing of goods to the
owner of that certain property known as Fairlawn Town Centre, located in
Fairlawn, Ohio (the “Property”). 


 


            Please be
advised that the current owner of the Property, AG/WP Fairlawn Owner, L.L.C. (“Seller”),
is, on the date hereof, conveying and otherwise transferring its interest in
the Property to [_________]  (“Purchaser”), and in
connection with such transfer, Seller is also assigning its interest in the
Service Contract to Purchaser.


 


             Please be advised that all demands for
payment, correspondence and notices under the Service Contract should be
delivered to Purchaser (as the new owner of the Property) as follows:


 


c/o [_________] 


[_________] 


[_________] 


Attention: [__________] 


 


             Please call Purchaser’s representative
[_________], at [________], if you have any
questions regarding the Service Contract after the date hereof.


 


[Signatures Appear on the Following Page]


 












89 




 










 








 








 


 


Very truly yours,


 


Seller: 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                                  AG/WP
Fairlawn Parent, L.L.C., 


                                                                       
a Delaware limited liability company, its sole member


 


                                                                         By:   
AG Real Estate Manager, Inc.,


                                                                                  
a Delaware corporation, its manager


 


 


By:_________________________


Name:


Title:


 


[Signatures Continue on the Following
Page]


 


 












90 




 










 








 








Purchaser: 


 


[__________] 


 


By:[__________], its [___________] 


 


 


By:_________________________


Name:


Title:


 







 








 








EXHIBIT M


 


Form of Assignment and Assumption of
O&M Plan Documents 


 


THIS ASSIGNMENT AND ASSUMPTION OF O&M PLAN
DOCUMENTS (this “Assignment”), made as of the [____]  day
of [________], 20[__] (the “Effective Date”), by and
between AG/WP FAIRLAWN OWNER, L.L.C., a limited liability company organized
under the laws of the State of Delaware, having an office at c/o Angelo, Gordon
& Co., L.P., 245 Park Avenue, 26th Floor, New York, New York 10167, as
assignor (“Assignor”), and [__________________], a [___________] 
organized under the laws of the State of [___________], having an
office [________________________], as assignee (“Assignee”). 


 


W  I  T  N  E  S  S  E  T  H: 


 


             WHEREAS, Assignor and The Phillips
Edison Group LLC, an Ohio limited liability company (“Contract Vendee”)
are parties to that certain Sale-Purchase Agreement, dated as of [________],
20[__] (as amended, the “Purchase Agreement”), by and between Assignor,
as seller, and Contract Vendee, as purchaser, pursuant to which Purchase
Agreement, Assignor has agreed to sell to Contract Vendee, and Contract Vendee
has agreed to purchase from Assignor, the premises located Fairlawn, Ohio, and
more particularly described in Schedule A attached hereto (the “Premises”),
as further described therein;


 


            WHEREAS, Contract Vendee and Assignee
are parties to that certain [Assignment and Assumption Agreement, dated
as of [__________], 20[__] (the “Purchase Agreement Assignment”),
by and between Contract Vendee, as assignor, and Assignee, as assignee,
pursuant to which Purchase Agreement Assignment, Contract Vendee has assigned
to Assignee, and Assignee has assumed from Contract Vendee, all of Contract
Vendee’s right, title and interest in, to and under the Purchase Agreement;


 


            WHEREAS, in connection with the
Purchase Agreement (a) Assignor is required to assign, transfer and convey to
the purchaser thereunder all of Assignor’s right, title and interest in, to and
under the O&M Plan Documents (as defined in the Purchase Agreement), and
(b) such purchaser is required to accept such assignment and to assume
Assignor’s obligations with respect to the O&M Plan Documents from and
after the Effective Date; and


 


             WHEREAS, Assignee and Assignor are
consummating the transactions set forth in the Purchase Agreement on the
Effective Date.


 


             NOW, THEREFORE, in consideration of
the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable
consideration, the mutual receipt and sufficiency of which are hereby
acknowledged, the parties hereto to hereby agree as follows: 


 


1.                 
     Unless otherwise stated herein, all capitalized terms used in this
Assignment shall have the meanings specified in the Purchase Agreement. 


 


2.                 
     Subject to the terms of the Purchase Agreement, Assignor hereby
assigns, transfers, releases and sets over unto Assignee all of the right,
title and interest of Assignor in, to and under the O&M Plan Documents.


 


3.                 
     Assignee hereby accepts the foregoing assignment and hereby assumes
all of the obligations of Assignor with respect to the O&M Plan Documents
from and after the Effective Date.


 









92 




 










 








 








4.                 
     Assignee hereby acknowledges receipt of the O&M Plan Documents,
as the same are listed on Schedule B attached hereto and made a part
hereof.


 


5.                 
     Assignee hereby indemnifies and holds Assignor harmless from and
against any and all claims, expenses, costs, obligations, or other liabilities
with respect to the O&M Plan Documents.  The foregoing indemnification
obligation shall survive the delivery of this instrument indefinitely.


 


6.                 
     This Assignment may not be amended, modified or terminated except by
an instrument in writing executed by the parties hereto.


 


7.                 
     This Assignment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.


 


8.                 
     This Assignment may be executed in counterparts, each of which shall
constitute an original, and all of which taken together shall constitute one
and the same instrument.  For purposes hereof, facsimile or .pdf signatures
transmitted electronically shall be binding on the parties to this Assignment.


 


9.                 
     The provisions hereof are subject to the provisions of the Purchase
Agreement, including, without limitation, the provisions of Sections 19,
29, 32, 37, 38, 39  and 40  thereof.


 


[Signatures Appear on the Following Page]


 







 








 








 


           IN WITNESS WHEREOF, intending to be
legally bound, the parties hereto have executed this Assignment as of the
Effective Date.


 


 


ASSIGNOR: 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                                 
AG/WP Fairlawn Parent, L.L.C., 


                                                                        a
Delaware limited liability company, its sole member


 


                                                                       
By:      AG Real Estate Manager, Inc.,


                                                                                    a
Delaware corporation, its manager


 


 


By:_________________________


Name:


Title:


 


[Signatures Continue on the Following
Page]


 












94 




 










 








 








ASSIGNEE: 


 


[__________], a [__________] 


 


By:[_________], a [__________],
its [__________] 


 


 


 


By:_________________________


Name:


Title:












95 




 










 








 








Schedule A


Legal Description of the Premises


 


(Attached hereto)







 








 








 


Schedule B

O&M Plan Documents


 


[To be provided]


 


 


 












97 




 










 








 








EXHIBIT N


Form of Notice of O&M Plan Documents
Transfer


 


AG/WP FAIRLAWN OWNER, L.L.C.


c/o Angelo, Gordon & Co., L.P.


245 Park Avenue, 26th Floor


New York, NY 10167


 


 


[__________] [__], 20[__]


 


 


 


VIA [___________________]


 


[__________], Director


[Ohio EPA – Director’s Office]


[50 West Town Street, Suite 700]


[Columbus, Ohio  43215] 


 


RE:  FAIRLAWN TOWN CENTRE, NOTICE OF
PROPERTY TRANSFER AND ASSIGNMENT OF OBLIGATIONS UNDER NFA LETTER NO. 00FA093,
COVENANT NOT TO SUE/ FINDINGS AND ORDERS, AND OPERATION AND MAINTENANCE
AGREEMENT


 


Dear [___________]:


 


           As you may be aware, the Ohio Environmental
Protection Agency (“OEPA”) previously issued E&A Northeast Limited
Partnership (“E&A”) a Covenant Not to Sue/ Findings and Orders dated
January 29, 2002 (the “Covenant”) based upon a No Further Action Letter,
No.00NFA093, dated June 22, 2000, as amended October 5, 2001 (the “NFA
Letter”) relating to the Fairlawn Town Centre Property in Fairlawn, Ohio
(the “Property”).  In addition, OEPA entered into an Operation and
Maintenance Agreement with E&A dated January 29, 2002 (the “O&M
Agreement”).  Pursuant to that certain Assignment and Assumption of O&M
Documents, dated as of May 26, 2012, between E&A, as assignor, and AG/WP
Fairlawn Owner, L.L.C., a Delaware limited liability company (the “Seller”),
as assignee, E&A has assigned and transferred to Seller, and Seller has
assumed and accepted from E&A, all of the obligations of E&A from and
after May 26, 2010 with respect to the Covenant, NFA Letter and O&M
Agreement.


 


In accordance with the requirements of the Covenant
and O&M Agreement, this letter is written to notify you that, pursuant to
that certain Sale-Purchase Agreement, dated [________], 20[__] (as it may be
amended, the “Purchase Agreement”), by and between [____________], a
[____________] [(as successor-by-assignment to[________])] (“Purchaser”), and
Seller, Purchaser has acquired the Property on [____________], from Seller.


 


           In accordance with the requirements of Paragraphs
13.b. and c. of the O&M Agreement, please note that the Purchase
Agreement, attached hereto as Schedule A, affirms the Purchaser’s
intentions regarding on-going environmental matters.  Pursuant to that certain
Assignment and Assumption of O&M Documents, dated as of the date hereof, a
true, correct, and complete copy of which is attached hereto as Schedule B,
in addition to the foregoing, Seller has assigned to Purchaser all of its
rights and interests under the O&M Documents (which include, but are not
limited to the NFA Letter, Covenant, and O&M 







98 




 










 








 








Agreement),
pertaining to the Property, and Purchaser has assumed these obligations from
and after the date hereof and further acknowledged its receipt of the O&M
Documents.


 


           In accordance with the requirements of Paragraphs
12 and 13.a. of the O&M Agreement, the following information is hereby
provided to you:


 


a.                 
The name, address, and telephone number of the new Property
owner/ Transferee and the name of the contact person for the new Property
owner/ Transferee:  


 


 


[________________]


 


[________________]                                                        
   Copy: [________________]


[________________]                                                                      [________________]


[________________]                                                                      [________________]


[________________]                                                                      [________________]


 


 


 


 


[________________]                                                               Copy:[________________]


[________________]                                   
                                    [________________]


[________________]                                                                       
[________________]


[________________]                                                                       
[________________]


 


 


b.                 
A legal description of the portion of the Property being
transferred, if the transfer was limited to a portion of the Property:


 


The entire Property has been
transferred to Purchaser.  A legal description of the Property that has been transferred
is attached hereto as Schedule C.   


 


c.                  
The Closing date of the transfer of ownership of the Property:  


 


As described above, Closing
(as defined in the Purchase Agreement) on the transfer of the Property occurred
on [________________].  


 


In accordance with the
requirements of Paragraph 13.d. of the O&M Agreement, the following
information is also provided to you:  


 


In order to comply with the requirements of Paragraph
10 of the O&M Agreement, Purchaser proposes a financial assurance
mechanism in the form of an Irrevocable Letter of Credit in the amount of
$8,500; a copy of the proposed form of Irrevocable Letter of Credit is attached
hereto as Schedule D.   


 


In accordance with the requirements of Paragraph
12 of the Covenant and Paragraph 11 of the Declaration of Use
Restrictions for Environmental Purposes, dated April 11, 2000 (the “Declaration”),
a copy of the instrument conveying the Property to Purchaser with the notice of
the Declaration  is attached hereto as Schedule E. 


 


Please acknowledge (i) your receipt of the
attached, (ii) your approval of Purchaser’s proposed financial assurance
mechanism and (iii) your approval of the cancellation of Seller’s irrevocable
letter of credit in 







99 




 










 








 








the amount of $8,500, a copy of
which is attached hereto as Schedule E, in each case, by signing where
indicated below and returning this letter to me at your earliest convenience. 
Upon receipt of this approval, Purchaser will have the approved form of
financial assurance mechanism fully executed and funded. 


 


Please feel free to contact us if you need any
additional information.


 


[Signatures Appear on the Following Page]


 












100 




 










 








 








Sincerely,


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                              
    AG/WP Fairlawn Parent, L.L.C., 


                                                                        
a Delaware limited liability company, its sole member


 


                                                                        
By:     AG Real Estate Manager, Inc.,


                                                                                   
a Delaware corporation, its manager


 


 


By:_________________________


Name:


Title:


 


 


 


 


 


                                                                   
                Acknowledged and agreed:


 


                                                                                   
Ohio Environmental Protection Agency


 


 


                                                                                   
By:  _____________________________


                                                                                   
Name:  ___________________________


                                                                                   
Title:  ____________________________


                                                                                   
Date:  ____________________________


 


 


cc: [__________________]












101 




 










 

Schedule A


Purchase Agreement


 


(Attached hereto)







 








 








Schedule B


Assignment and Assumption of O&M
Documents


 


(Attached hereto)


 


 







 

Schedule C


Description of the Property


 


(Attached hereto)


 












104 




 










 








 








Schedule D


Irrevocable Letter of Credit


 


(Attached hereto)












105 




 










 








 








 


Schedule E


Seller’s Existing Irrevocable Letter
of Credit


 


(Attached hereto)


 












106 




 










 








 








Schedule E


Deed of Conveyance


 


(Attached hereto)


 












107 




 










 








 








EXHIBIT O


Form of Owner’s Affidavit 


 


 


State of New York                               )


)          ss.                                        
Commitment File No. [__________]


County of New York                           )


 


On this [_______________] day of [_______________],
20[__] before me personally appeared [_______________] (in his/her capacity as
the Vice President of AG Real Estate Manager, Inc., a Delaware corporation (“AG”),
the manager of AG/WP Fairlawn Parent, L.L.C., a Delaware limited liability
company, the sole member of AG/WP Fairlawn Owner, L.L.C., a Delaware limited
liability company (“Fairlawn”)), being duly sworn according to law and
intending to be legally bound, deposes and says the following statements are
true and correct to the knowledge of the undersigned:


 


1.                                                                                               
Fairlawn is the owner of the land described in the above-referenced
commitment (the “Land”). 


 


2.                                                                                               
As of the date hereof, all tenants or parties who have leasehold or
tenancy rights to occupy any portion of the premises are those listed on Exhibit
A attached hereto, and none of such parties has any right to said premises
other than its right as tenant, nor any optional right of first refusal to
purchase any portion of said premises.


 


3.                                                                                               
Fairlawn has not entered into any easements, deeds or mortgages that
affect the Land, except as shown on above-referenced commitment.


 


4.                                                                                               
There has not been any construction, repairs, alterations or
improvements made, ordered or contracted by Fairlawn to be made on or to the
Land, nor materials ordered therefore by Fairlawn, within the last ninety (90)
days which have not been paid for in full (or will be paid for), except for
[____________________].   The foregoing statement shall not apply to any
construction, repairs, alterations or improvements made, ordered or contracted
by any tenant on the Land to be made on or to the Land, nor materials ordered
therefore by any such tenants.


 


Notwithstanding the foregoing, (a) nothing
contained herein shall be deemed to apply to leases, documents, agreements,
declarations, restrictions or other matters delivered to [_________________]
(the “Company”) (and/or their authorized agent) for recordation
concurrently with the sale by the undersigned of the Land, (b) the maximum
liability of the undersigned hereunder shall not exceed [_________________] [Final
Purchase Price to be inserted] in the aggregate and (c) the certifications
contained herein shall survive for a period of ninety (90) days.


 


The undersigned makes the above statements for
purposes of inducing the Company to issue its owner’s policy to
[________________________] pursuant to the above-referenced commitment and may
not be relied upon by anyone other than the Company.


 


(Signature on Next Page)



 








 











 


 


AG/WP FAIRLAWN OWNER, L.L.C., 


                                                         a
Delaware limited liability company


 


By:                                                  
AG/WP Fairlawn Parent, L.L.C., 


a Delaware limited liability company, its sole
member


 


                                                                          By:   
AG Real Estate Manager, Inc.,


                                                                                   
a Delaware corporation, its manager


 


 


By:________________________


Name:


Title:


 












109 




 










 

EXHIBIT P


Existing Title/Survey Matters


 


1.                 
All exceptions listed on Part I of
Schedule B of that certain Policy of Title Insurance, dated June 1, 2010,
Policy No. O-9301-1474611, issued by Stewart Title Guaranty Company.


 


2.                 
ALTA 2006 title policy standard
preprinted exceptions, exclusions and conditions, including preprinted
exceptions, exclusions and conditions contained in the outside and inside
so-called jacket of such policy and rights of possession, as tenants only.


 


3.                 
Encroachments of stoop areas, cellar
steps, trim and cornices, if any, upon any street or highway.


 


4.                 
Any state of facts as a physical
inspection of the Premises would disclose, and any additional facts that an
update of the Survey, provided that such update is not materially adverse to
Purchaser. 


 


5.                 
Possible lack or revocable nature of
the right, if any, to maintain or use any space, facilities or appurtenances
outside the building lines, whether on, over or under the ground, including,
without limitation, all vaults, conduits, walls, columns, vent pipes, stone,
brick or masonry work, chimneys, decorations, planting, flagpoles, standpipes,
marquees, signs and sidewalk openings. 


 


6.                 
The lien of any unpaid real estate
taxes, assessments, water or sewer rents or charges, or vault charges, for
fiscal and other tax years, subject to Seller and Purchaser satisfying their
respective obligations regarding prorations and adjustments pursuant to the
terms of this Agreement. 


 


7.                 
Variations between record lot lines of
the Premises and those shown on the Tax Map of the City of Fairlawn, Ohio. 


 


8.                 
Rights of the public and adjoining
owners in highways, streets, roads and lanes bounding or abutting the Premises.


 


9.                 
Retaining walls or other walls, bushes,
trees, hedges, fences and the like, extending from or onto the Premises, and
any portion of the Premises lying in the bed of any street.


 


10.             
Rights of the municipal, county and/or
state government and/or any subdivision thereof and/or any public or private
utility or cable television company to maintain, repair and operate lines,
wires, cables, conduits, pipes, poles, distribution boxes and other equipment,
fixtures or facilities in, on, over, through or under the Premises. 


 


11.             
Party walls and party wall agreements,
if any. 


 


12.             
Consents, or lack of consents, by any
present or former owner of the Premises or any part thereof for the erection or
maintenance of any structure or structures on, under or over any abutting
street or streets. 


 




 








 








13.             
The effect of any present and future
laws of the United States, the State of Ohio and other governmental instrumentalities,
agencies, subdivisions or authorities relating to the rights and obligations of
tenants under their leases and the rents permitted to be charged them. 


 


14.             
Any judgments of record or unpaid
franchise taxes of any person or corporation which may have had an interest in
the Premises, provided that the Title Company is willing to insure Purchaser
against collection of such sums. 


 


15.             
Consent to the erection and maintenance
of a bridge, and other openings and passages, connecting the Premises to
property adjoining the Premises, and to any state of facts existing by reason
thereof. 


 


16.             
Right, lack of right or restricted
right of any owner of the Premises to construct and/or maintain any vault or
vaulted area in or under the sidewalks abutting the Premises, any licensing
statute, ordinance or regulation and the terms of any license pertaining
thereto and any fees for vault space which may hereafter be assessed.


 


17.             
Right, lack of right or restricted
right of any owner of the Premises to construct and/or maintain marquees,
canopies and signs over the sidewalks abutting the Premises. 


 


18.             
Right, lack of right or restricted
right of any owner of the Premises to construct and/or maintain fuel chutes,
sidewalks, elevators, gratings, cellar steps, manholes, hoists or excavations
under, in, upon or over the sidewalks abutting the Premises. 


 


19.             
Consequences of the exercise and enforcement
or attempted enforcement of any governmental war or police powers over the
Premises. 


 


20.             
All present and future zoning, building and
other applicable governmental laws, ordinances, codes, restrictions and
regulations of the municipality in which the Premises are located and all other
governmental authorities having jurisdiction, and all present or future
violations thereof, if any.


 







 








 








EXHIBIT Q


Rent Roll


 


(Attached hereto)












112 




 










 

 












113 




 










 








 


















114 




 










 








 





















115 




 










 








 


















116 




 










 








 


















117 




 










 








 








 





 









118 




 










 








 


















119 




 










 








 

















120 




 










 








 










EXHIBIT R


List of Material Litigation


 


None


 












121 




 










 








 








EXHIBIT S


Environmental Reports


 


1.      2012 06 29 Notification of Occupancy to Ohio EPA from SHA


2.      2012 04 02 Ohio EPA Review of 2011 Annual O&M letter
to SHA


3.      2011 02 24 Ohio EPA Review of 2010 Annual O&M letter
to SHA


4.      2010 07 08 Ohio EPA Acknowledgment of Transfer of
O&M Obligations 


5.      2010 05 26 Notification of Property Transfer and Transfer
of O&M Obligations 


6.     
2010 04 09 Phase I Environmental Site
Assessment Report by Penn E&R


7.      2010 02 22 Ohio EPA Review of 2009 Annual O&M letter
to SHA


8.      2009 12 07 Interim Status Report Jan 1 - Nov 20, 2009 by
SHA


9.      2009 02 05 Ohio EPA Review of Annual O&M letter to
SHA


10.  2008 01 07 Report of Asbestos unit 250 by HzW


11.  2008 03 06 Ohio EPA letter response to SHA 2007 Annual
O&M


12.  2007 09 06 Meeting Minutes with Ohio EPA about Target
Expansion


13.  2007 07 23 March & May 2007 Groundwater Sampling by
SHA


14.  2007 04 02 Summary of analytical GW sampling Monitoring
by SHA


15.  2007 02 21 FTC O&M 2006 O&M letter from Ohio EPA


16.  2005 07 12 Notification of Contingency Plan by SHA


17.  2005 01 31 Notification of Change Generator Status by SHA


18.  2004 03 10 FTC O&M Addendum 2004 O&M letter from
Ohio EPA


19.  2004 02 24 2003 Annual Haz Waste Report Forms by SHA


20.  2003 02 28 FTC O&M 2002 O&M letter from Ohio EP A


21.  2003 02 03 2002 Annual Haz Waste Report Forms by SHA


22.  2002 03 13 COVENTANT NOT TO SUE (recorded original)


23.  2002 01 29 Issuance of CNS for FTC/former Fussy by Ohio
EPA


24.  2001 10 05 Addendum to NFA Letter & Revised O&M
Plan by SHA


25.  2001 09 18 Revised O&M Plan by SHA


26.  2000 06 01 Summary by Brad Hubbard with Earth Mgt Service


27.  2000 06 20 NFA Letter Form by SHA


28.  2000 05 03 (O&M Plan) Operations and Maintenance Plan
by SHA


29.  2000 05 03 Phase II Property Assessment Report by SHA 4
volumes


30.  2000 04 20 Phase I Property Assessment Report by SHA


31.  2000 04 18 Risk Assessment Report by SHA


32. 
2000 04 11 Declaration of Use Restrictions


33. 
2000 03 06 EcoSearch ESA


34. 
1998 09 18 EMG fax with cost breakdown and summary


35. 
1998 08 24 Fairlawn Environmental Remediation Escrow Agreement


36. 
2001 06 21 Ohio EPA Letter


37. 
2000 11 01 Ohio EPA Letter


38. 
2000 09 13 Ohio EPA Letter


39. 
2011 Annual Report of O & M Monitoring dated March 2012 by SHA


40. 
2010 Annual Report of O & M Monitoring dated February 2011 by SHA


41. 
2009 Annual Report of O & M Monitoring dated February 2010 by SHA


42. 
2008 Annual Report of O & M Monitoring dated January 2009 by SHA


43. 
2007 Annual Report of O & M Monitoring dated January 2008 by SHA


44. 
2006 Annual Report of O & M Monitoring dated January 2007 by SHA


45. 
2005 Revised Annual Report of O & M Monitoring dated February 2006
by SHA


46. 
2005 Annual Report of O & M Monitoring dated January 2006 by SHA


47. 
2004 Annual Report of O & M Monitoring dated January 2005 by SHA


48. 
2003 Annual Report of O & M Monitoring dated January 2004 by SHA









122 




 










 

49.  2002 Annual Report of O
& M Monitoring dated January 2003 by SHA


50. 
2001 Annual Report of O & M Monitoring dated February 2002 by SHA


51. 
2000 Annual Report of O & M Monitoring dated July 2001 by SHA


 


 












123 




 










 








 








EXHIBIT T


Existing Work Required Under
Leases/Outstanding Leasing Costs


 


(Attached hereto) 







 

EXHIBIT U

Reserved







 








 








 


EXHIBIT V

O&M Plan Documents


 


1.      2012 06 29 Notification of Occupancy to Ohio EPA from SHA


2.      2012 04 02 Ohio EPA Review of 2011 Annual O&M letter
to SHA


3.      2011 02 24 Ohio EPA Review of 2010 Annual O&M letter
to SHA


4.      2010 07 08 Ohio EPA Acknowledgment of Transfer of
O&M Obligations 


5.      2010 05 26 Notification of Property Transfer and Transfer
of O&M Obligations 


6.     
2010 04 09 Phase I Environmental Site
Assessment Report by Penn E&R


7.      2010 02 22 Ohio EPA Review of 2009 Annual O&M letter
to SHA


8.      2009 12 07 Interim Status Report Jan 1 - Nov 20, 2009 by
SHA


9.      2009 02 05 Ohio EPA Review of Annual O&M letter to
SHA


10.  2008 01 07 Report of Asbestos unit 250 by HzW


11.  2008 03 06 Ohio EPA letter response to SHA 2007 Annual
O&M


12.  2007 09 06 Meeting Minutes with Ohio EPA about Target
Expansion


13.  2007 07 23 March & May 2007 Groundwater Sampling by
SHA


14.  2007 04 02 Summary of analytical GW sampling Monitoring
by SHA


15.  2007 02 21 FTC O&M 2006 O&M letter from Ohio EPA


16.  2005 07 12 Notification of Contingency Plan by SHA


17.  2005 01 31 Notification of Change Generator Status by SHA


18.  2004 03 10 FTC O&M Addendum 2004 O&M letter from
Ohio EPA


19.  2004 02 24 2003 Annual Haz Waste Report Forms by SHA


20.  2003 02 28 FTC O&M 2002 O&M letter from Ohio EP A


21.  2003 02 03 2002 Annual Haz Waste Report Forms by SHA


22.  2002 03 13 COVENTANT NOT TO SUE (recorded original)


23.  2002 01 29 Issuance of CNS for FTC/former Fussy by Ohio
EPA


24.  2001 10 05 Addendum to NFA Letter & Revised O&M
Plan by SHA


25.  2001 09 18 Revised O&M Plan by SHA


26.  2000 06 01 Summary by Brad Hubbard with Earth Mgt Service


27.  2000 06 20 NFA Letter Form by SHA


28.  2000 05 03 (O&M Plan) Operations and Maintenance Plan
by SHA


29.  2000 05 03 Phase II Property Assessment Report by SHA 4
volumes


30.  2000 04 20 Phase I Property Assessment Report by SHA


31.  2000 04 18 Risk Assessment Report by SHA


32. 
2000 04 11 Declaration of Use Restrictions


33. 
2000 03 06 EcoSearch ESA


34. 
1998 09 18 EMG fax with cost breakdown and summary


35. 
1998 08 24 Fairlawn Environmental Remediation Escrow Agreement


36. 
2001 06 21 Ohio EPA Letter


37. 
2000 11 01 Ohio EPA Letter


38. 
2000 09 13 Ohio EPA Letter


39. 
2011 Annual Report of O & M Monitoring dated March 2012 by SHA


40. 
2010 Annual Report of O & M Monitoring dated February 2011 by SHA


41. 
2009 Annual Report of O & M Monitoring dated February 2010 by SHA


42. 
2008 Annual Report of O & M Monitoring dated January 2009 by SHA


43. 
2007 Annual Report of O & M Monitoring dated January 2008 by SHA


44. 
2006 Annual Report of O & M Monitoring dated January 2007 by SHA


45. 
2005 Revised Annual Report of O & M Monitoring dated February 2006
by SHA


46. 
2005 Annual Report of O & M Monitoring dated January 2006 by SHA


47. 
2004 Annual Report of O & M Monitoring dated January 2005 by SHA




 

48.  2003 Annual Report of O
& M Monitoring dated January 2004 by SHA


49. 
2002 Annual Report of O & M Monitoring dated January 2003 by SHA


50. 
2001 Annual Report of O & M Monitoring dated February 2002 by SHA


51. 
2000 Annual Report of O & M Monitoring dated July 2001 by SHA


 












127 




 










 








 








EXHIBIT W

List of Required Estoppels


 


1.          Giant Eagle


2.          Marcs


3.          U.S. Post Office


4.          Home Goods


5.          Ashley Furniture


 


 


 












128 




 










 

EXHIBIT X


Form of Seller Estoppel Certificate


 


To:       [_________] 


            [_________] 


            [_________] 


 


            Re:         [Description
of Lease] 


 


Ladies & Gentlemen:


 


            [[___________]/[___________] 
as assignee of [__________], as landlord (the “Landlord”)
entered into the above referenced lease (the “Original Lease”; as
amended pursuant to the amendments and modifications described in Section 2
below, the “Lease”) with [__________], as tenant, for
certain space (the “Demised Premises”) located at [Description of
Demised Premises], located in the property known as Fairlawn Town
Centre, located Fairlawn, Ohio (the “Property”). 


 


             Pursuant to that certain Sale-Purchase
Agreement, dated as of [_________], 20[__] (as heretofore
amended, the “Purchase Agreement”), and knowing that Purchaser (as
defined in the Purchase Agreement) and Purchaser’s lender are relying upon the
accuracy of the information contained herein, Landlord certifies, to the actual
knowledge of the undersigned, as follows:


 


1. The Lease is in full force and
effect, and Tenant is in actual possession of the Premises, except as follows: [____________]. 


 


2. The Original Lease has not been
modified, supplemented or amended in any way except as indicated therein or as
follows: [____________]. 


 


3. All work required by the Lease
to be performed by the Landlord has been completed and is in accordance with
the provisions of the Lease.


 


4.    (a) The fixed monthly rent
presently payable under the terms of the Lease is $[____________] 


 


(b) The fixed monthly rent
payable under the terms of the Lease has been paid through [__________] 


 


(c)All additional charges (rent
or otherwise (i.e., taxes, insurance common area maintenance, CPI or porter
wage rate escalations, if applicable) payable under the terms of the Lease has
been paid through [__________________] 


 


(d) The Lease shall terminate on [______________] 
 


 


(e) The Lease contains a [_______] 
year option to renew on the following terms and conditions: [_____________________________]. 


 


5. Except as set forth in the
Lease, there are no claims, offsets, set-offs, rebates, concessions, abatements
or defenses against or with respect to rent, additional rent or other sums
payable under the terms of the Lease.


 









129 




 










 

6. There
are no defaults under the terms of the Lease by the Landlord that have
continued beyond the expiration of any applicable grace period provided for in
the Lease for the cure thereof.  Landlord has not delivered any written notices
to the Tenants asserting that such Tenant is in default (other than defaults
which have been cured or waived), and, to Landlord’s actual knowledge, the
Tenant is not in default under the Lease.


 


7. The amount of the security
deposit under the Lease is $[____________] 


 


8. Tenant has no option or right
to purchase the Premises or any part thereof.


 


9. The provisions hereof are
subject to the provisions of the Purchase Agreement, including, without
limitation, the provisions of Sections 11.1, 19, 29, 32,
36, 37, 38, 39  and 40  thereof.


 


[Signatures Appear on the Following Page]












130 




 










 








 








 


 


In Witness whereof, the undersigned has executed
this Seller’s Estoppel Certificate (this “Certificate”) as of this [___] 
day of [_________], 20[__].


 


Very truly yours,


 


AG/WP FAIRLAWN OWNER, L.L.C., 


a Delaware limited liability company


 


By:                                                      
AG/WP Fairlawn Parent, L.L.C., 


                                                                         
a Delaware limited liability company, its sole member


 


                                                                    
By:         AG Real Estate Manager, Inc.,


                                                                                   
a Delaware corporation, its manager


 


 


By: _________________________


Name:


Title:


 


 


 


Purchaser has executed this Certificate


to evidence Purchaser’s acceptance of this
Certificate


and to acknowledge that this Certificate has been


delivered by Seller to Purchaser in accordance with
the


provisions of Section 36 of the Purchase
Agreement:


 


[_________], a [__________] 


 


By:      [__________], a [__________], 


            [__________] 


 


 


By:_________________________


            Name:


            Title:


 












131 




 










 

 


EXHIBIT Y


Form of Tenant Estoppel Certificate


 


To:       The Phillips
Edison Group LLC, its successors and assigns (“Purchaser”)


            11501 Northlake Drive


Cincinnati, Ohio 45249


 


Re:                                     
Lease Pertaining to ________________________ (the "Project")


 


Ladies and Gentlemen:


 


The undersigned, as tenant
("Tenant"), hereby states and declares as follows:


 


1. Tenant is the lessee under that certain lease
(the "Lease") pertaining to the Project which is dated _______.


 


2 The name of the current
Landlord (Seller) is: _________________.


 


3. The Lease is for the
following portion of the Project ____________________________ (the
"Demised Premises") (if the entire Project, so state):


 


4.The Lease has not been
modified or amended except by the following documents (if none, so state):
_________


 


5.The initial term of the
Lease commenced on _________, 2____ and shall expire on ______, 2_____, unless
sooner terminated in accordance with the terms of the Lease. Tenant has no
option to renew or extend the term of the Lease, except as follows (if none, so
state): ______________


 


6.The Lease, as it may have
been modified or amended, contains the entire agreement of Landlord and Tenant
with respect to the Demised Premises, and is in full force and effect.


 


7.As of the date hereof,
Tenant is occupying the Demised Premises and is paying rent on a current basis
under the Lease.


 


(a)The minimum monthly or
base rent currently being paid by Tenant for the Demised Premises


pursuant to the terms of the
Lease is $______ per month.


 


(b)Percentage rent
("Percentage Rent"), if any, due under the Lease has been paid
through _________


and the amount of Percentage
Rent for the last period paid was $________.


 


(c)Common area maintenance,
taxes, insurance and other charges (the "Reimbursables"), if any, due
under the Lease have been paid through


 


8.Tenant has accepted
possession of the Demised Premises, and all items of an executory nature
relating thereto to be performed by Landlord have been completed, including,
but not limited to, completion of construction thereof (and all other
improvements required under the Lease) in accordance with the terms of the
Lease and within the time periods set forth in the Lease. 


Landlord has paid in full any required contribution
towards work to be performed by Tenant under the Lease, except as follows (if
none, so state):









132 




 










 








 








 


9.The Demised Premises shall
be expanded by the addition of the following space on the dates hereinafter
indicated (if none, so state):  _________________.


 


10.No default or event that
with the passage of time or notice would constitute a default (hereinafter
collectively a "Default") on the part of Tenant exists under the
Lease in the performance of the terms, covenants and conditions of the Lease
required to be performed on the part of Tenant.


 


11.To the best of Tenant's
knowledge, no Default on the part of Landlord exists under the Lease in the
performance of the terms, covenants and conditions of the Lease required to be
performed on the part of Landlord.


 


12.Tenant has no option or
right to purchase all or any part of the Project.


 


13.Tenant has not assigned,
sublet, transferred, hypothecated or otherwise disposed of its interest in the
Lease and/or the Premises, or any part thereof.


 


14.Neither the Lease nor any
obligations of Tenant thereunder have been guaranteed by any person or entity,
except as follows (if none, so state):  ______________________.


 


15.No hazardous substances
are being generated, used, handled, stored or disposed of by Tenant on the
Demised Premises or on the Project in violation of any applicable laws, rules
or regulations or the terms of the Lease.


 


16.No rentals are accrued
and unpaid under the Lease, except for Percentage Rent, if any, or
Reimbursables, if any, which are not yet due and payable.


 


17.No prepayments of rentals
due under the Lease have been made for more than one month in advance.  No
security or similar deposit has been made under the Lease, except for the sum
of $_____ which has been deposited by Tenant with Landlord pursuant to the
terms of the Lease.


 


18.Tenant has no defense as
to its obligations under the Lease and asserts no setoff, claim or counterclaim
against Landlord.


 


19.Tenant has not received
notice of any assignment, hypothecation, mortgage or pledge of Landlord's
interest in the Lease or the rents or other amounts payable thereunder, except
as follows (if none, so state): ______________.


 


20.Tenant understands and
acknowledges that Purchaser is about to purchase the Project and that Purchaser
is relying upon the representations and warranties contained herein in making
such purchase.  


 


21.The undersigned is
authorized to execute this Tenant Estoppel Certificate on behalf of Tenant.


 


22.This Tenant Estoppel
Certificate may be executed in any number of separate counterparts, each of
which shall be deemed an original, but all of which, collectively and
separately, shall constitute one and the same instrument.


 


23.Purchaser and its lender,
if any, and its successors and assigns, shall have the right to rely on this
Estoppel Certificate.  


 


Very truly yours,









133 




 










 

 


TENANT:


_____________________________,


a
____________________________


 


By
___________________________


Name:
________________________


                    
Its: _____________


 











134