CERTAIN
OF THE PROJECTS LOCATED IN *** WERE CONSTRUCTED (ASSETS NOS. 202 AND 204) FROM
*** INVESTMENT COMPANY (""), SELLER AGREED TO PAY TO *** CERTAIN ADDITIONAL
FUTURE CONSIDERATION FOR SUCH LAND (THE "LAND"), BASED UPON SELLER'S DEVELOPMENT
OF THE *** LAND AND THE EXTENT TO WHICH THOSE BUILDINGS THAT SELLER CONSTRUCTS
AND DEVELOPS ON THE *** LAND ARE BUILT OUT AND IMPROVED AS OFFICE SPACE.
SELLER
HAS FURTHER ADVISED BUYER THAT SUCH OBLIGATION TO PAY ADDITIONAL CONSIDERATION
TO *** IS PURELY A CONTRACTUAL OBLIGATION BETWEEN SELLER AND ***; THE OBLIGATION
DOES NOT ENCUMBER OR RUN WITH THE *** LAND; AND THE OBLIGATION SHALL NOT BE
BINDING UPON BUYER, ITS SUCCESSORS AND ASSIGNS.
THE PARTIES ACKNOWLEDGE,
HOWEVER, THAT THOSE BUILDINGS CONSTRUCTED ON THE *** LAND ARE NOT YET ENTIRELY
IMPROVED, BUILT OUT AND FINISHED; AS A RESULT, ADDITIONAL OFFICE-BASED TENANT
IMPROVEMENTS AND FINISHES MAY BE CONSTRUCTED AND INSTALLED, BY BUYER, ON A
POST-CLOSING BASIS.
BUYER HEREBY COVENANTS AND AGREES THAT BUYER SHALL USE
REASONABLE, GOOD FAITH EFFORTS TO PROMPTLY ADVISE SELLER, IN WRITING, FROM TIME
TO TIME AFTER CLOSING, WHEN AND AS BUYER COMPLETES THE INSTALLATION AND
CONSTRUCTION OF TENANT IMPROVEMENTS AND FINISHES THAT CONSTITUTE OFFICE SPACE IN
EITHER OR BOTH OF ASSETS NOS.*** .
SELLER IS AND SHALL REMAIN SOLELY AND
EXCLUSIVELY RESPONSIBLE FOR THE TIMELY PAYMENT, IN FULL, OF ANY AND ALL
ADDITIONAL CONSIDERATION OWED TO *** AS A RESULT OF, OR DUE TO, THE CONSTRUCTION
AND INSTALLATION, IN EITHER OR BOTH OF ASSETS NOS.*** , OF TENANT IMPROVEMENTS
AND BUILD OUT DESIGNED TO CREATE OFFICE SPACE ("OFFICE IMPROVEMENTS
CONSIDERATION"), WHETHER SUCH CONSTRUCTION AND INSTALLATION OF OFFICE
IMPROVEMENTS OCCURS PRIOR TO, OR SUBSEQUENT TO, CLOSING.
SELLER HEREBY
INDEMNIFIES, DEFENDS AND HOLDS BUYER, ITS MEMBERS, AND THE SUCCESSORS AND
ASSIGNS OF BUYER AND ITS MEMBERS (COLLECTIVELY, "*** INDEMNIFIED PARTIES"),
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES (ACTUAL, BUT NOT
CONSEQUENTIAL), LOSSES, CAUSES OF ACTION, JUDGMENTS, COSTS AND EXPENSES
(INCLUDING, BUT NOT LIMITED TO, COURT COSTS AND ATTORNEYS' REASONABLE FEES)
ACTUALLY SUFFERED OR INCURRED BY ANY OR ALL OF THE *** INDEMNIFIED PARTIES AS A
DIRECT RESULT OF SELLER'S FAILURE TO TIMELY PAY TO*** , AT ANY TIME OR FROM TIME
TO TIME, ANY OR ALL OF THE OFFICE IMPROVEMENTS CONSIDERATION.
THE FOREGOING
INDEMNITY SHALL NOT APPLY WITH RESPECT TO ANY OFFICE IMPROVEMENTS CONSIDERATION
DUE AND OWING TO *** SOLELY AND DIRECTLY AS A RESULT OF, OR IN CONNECTION WITH,
IMPROVEMENTS ABOUT WHICH BUYER FAILS TO NOTIFY SELLER, AS CONTEMPLATED ABOVE.
THE PROVISIONS OF THIS SECTION 19.2 SHALL SURVIVE THE CLOSING AND SHALL NOT BE
SUBJECT TO, OR INCLUDED WITHIN, THE MONETARY LIMITATION IMPOSED UNDER SECTION
11.3.
19.13
POTENTIAL ACQUISITION OF MEMBERSHIP INTERESTS.
SELLER AND BUYER
ACKNOWLEDGE AND AGREE THAT, PRIOR TO CLOSING AND UPON BUYER'S REQUEST AND COST,
SELLER SHALL TRANSFER AND CONVEY THOSE OF THE PROJECTS LOCATED IN OHIO TO A
NEWLY CREATED DELAWARE LIMITED LIABILITY
41
COMPANY ("NEWCO") IN WHICH THE INITIAL MEMBER(S) SHALL BE THAT SELLER ENTITY
THAT CURRENTLY HOLDS FEE SIMPLE TITLE