PERSON WITH RESPECT TO ANY BUILDING
COMPONENT, MACHINERY, EQUIPMENT, FURNISHINGS, FIXTURE OR MATERIAL COMPRISING A
PART OF ANY IMPROVEMENT OR WITH RESPECT TO ANY PERSONAL PROPERTY OR CONTRACT
(COLLECTIVELY, "WARRANTIES");
TO THE EXTENT IN THE POSSESSION OF MBCR OR SELLER, AND TO THE EXTENT ASSIGNABLE,
ALL AS-BUILT BUILDING PLANS AND SPECIFICATIONS RELATING TO THE REAL PROPERTY
(COLLECTIVELY, "PLANS");
ALL CURRENT ON-SITE BOOKS AND RECORDS EXCLUSIVELY PERTAINING TO THE CURRENT
OPERATION OF THE PROPERTY, TO THE EXTENT IN MBCR'S OR SELLER'S POSSESSION,
EXCLUDING PRIVILEGED MATERIAL (COLLECTIVELY, "BOOKS AND RECORDS");
6
ALL LICENSES, PERMITS, BUILDING INSPECTION APPROVALS, CERTIFICATES OF OCCUPANCY,
APPROVALS, SUBDIVISION MAPS AND ENTITLEMENTS, IF ANY, ISSUED, APPROVED OR
GRANTED BY GOVERNMENTAL AUTHORITIES IN CONNECTION WITH THE REAL PROPERTY
(COLLECTIVELY, "LICENSES AND PERMITS"); AND
ALL RIGHTS TO ANY AWARD MADE OR TO BE MADE OR SETTLEMENT IN LIEU THEREOF FOR
DAMAGE TO THE LAND OR IMPROVEMENTS BY REASON OF CONDEMNATION, EMINENT DOMAIN,
EXERCISE OF POLICE POWER OR CHANGE OF GRADE OF ANY STREET.
PURCHASE PRICE
PURCHASE PRICE.
(A)
The purchase price for the Membership Interests
is Fifty-One Million Two Hundred Fifty Thousand Dollars ($51,250,000) ("Purchase
Price").
(B)
The Purchase Price shall be paid by Buyer as
follows:
ON THE DEPOSIT DATE, BUYER SHALL DEPOSIT BY DELIVERY OF A BANK DRAFT OR WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS PURSUANT TO THE WIRE TRANSFER
INSTRUCTIONS SET FORTH IN THE DEPOSIT ESCROW AGREEMENT, IN ESCROW WITH THE TITLE
INSURANCE COMPANY, A CASH PAYMENT OF FIVE HUNDRED THOUSAND DOLLARS ($500,000)
(SUCH CASH PAYMENT, TOGETHER WITH ALL INTEREST EARNED ON SUCH FUNDS, THE
"DEPOSIT").
THE DEPOSIT SHALL BE HELD IN ESCROW, IN AN INTEREST-BEARING ACCOUNT
WITH A FEDERALLY INSURED BANK (WHICH MAY BE AN AFFILIATE OF SELLER), AND
DISBURSED BY THE TITLE INSURANCE COMPANY PURSUANT TO THE PROVISIONS OF THIS
AGREEMENT AND THE DEPOSIT ESCROW AGREEMENT.
AT CLOSING, THE DEPOSIT (INCLUDING
ALL ACCRUED INTEREST) SHALL BE PAID TO SELLER AS A CREDIT AGAINST THE PURCHASE
PRICE.
THE BALANCE OF THE PURCHASE PRICE OVER AND ABOVE THE DEPOSIT, PLUS OR MINUS ANY
APPORTIONMENTS, PRORATIONS, CREDITS AND COSTS IN ACCORDANCE WITH SECTION 11
HEREOF, SHALL BE PAID BY BUYER AT CLOSING, BY WIRE TRANSFER OF IMMEDIATELY
AVAILABLE FUNDS TO THE TITLE INSURANCE COMPANY, PURSUANT TO THE WIRE TRANSFER
INSTRUCTIONS SET FORTH IN THE DEPOSIT ESCROW AGREEMENT, OR ANY REPLACEMENT
INSTRUCTIONS, FOR PAYMENT TO SELLER OR ON ITS BEHALF AT CLOSING.
Failure to Pay Deposit.
In the event that Buyer fails to fund the Deposit on
the Deposit Date (with time being of the essence) for any reason whatsoever,
this Agreement shall immediately and automatically terminate.
Upon any
termination of this Agreement pursuant to this Section 3.2, no party shall have
any further rights, duties or obligations under this Agreement, except as
otherwise expressly set forth herein.
DUE DILIGENCE
Seller Deliverables.
Seller hereby represents and warrants to Buyer that, to
Seller's Knowledge, the copies previously or hereafter delivered to Buyer
(collectively, the "Seller
7
Deliverables") of the following items (which, to the extent not previously
delivered by