PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
ARTICLE 1: PROPERTY/PURCHASE PRICE
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(a) |
Buyer and Notice Address. |
c/o Peakstone Realty Trust
150 N. Riverside Plaza, Suite 1950
Chicago, Illinois 60606
Attn: Max Kaminsky; Rich Hoopis
Email: mkaminsky@pkst.com; rhoopis@pkst.com
With copies to:
c/o Peakstone Realty Trust
1520 E. Grand Ave.
El Segundo, CA 90245
Attn: Michael Patterson; Nina Momtazee Sitzer
Email: mpatterson@pkst.com; nsitzer@pkst.com
O’Melveny & Myers LLP
400 S. Hope Street, Suite 1800
Los Angeles, California 90017
Attn: Michael Hamilton, Esq.; Peter Breckheimer, Esq.; Aaron Amankwa, Esq.
Email: mhamilton@omm.com; pbreckheimer@omm.com; aamankwa@omm.com
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(b) |
Seller and Notice Address.
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c/o Alterra Property Group, LLC
414 S. 16th Street, Suite 100
Philadelphia, Pennsylvania 19146
Attn: Leo Addimando; Jeffrey Pustizzi, Esq.
Email: leo@alterraproperty.com; jeff@alterraproperty.com
With copies to:
Rittenhouse Law, LLC
414 S. 16th Street, Suite 101
Philadelphia, Pennsylvania 19146
Attn: Catharine E. Sibel, Esq.
Email: csibel@rittenhouselaw.com
c/o J.P. Morgan Asset Management
277 Park Avenue, Floor 9
New York, New York 10172
Attn: Eric Hoffman
Email: eric.hoffman@jpmorgan.com
c/o J.P. Morgan Investment Management Inc.
P.O. Box 5005
New York, New York 10163-5005
Hogan Lovells US LLP
390 Madison Avenue
New York, NY 10017
Attn: Elsa Ben Shimon, Esq.
Email: elsa.benshimon@hoganlovells.com
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(c)
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Purchase Price. |
$490,000,000.00, which sum is allocated to each real property comprising the Real Properties (as defined below) in accordance with Schedule 1.1(c) attached hereto. |
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(d)
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$5,000,000.00 (the “Deposit”), in immediately available federal funds, evidencing Buyer’s good faith to perform Buyer’s obligations under this Agreement, to be
deposited with Escrow Agent on the Effective Date. |
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References to Earnest Money shall include the Deposit and interest thereon and exclude $100.00 (the “Independent Contract Consideration”) therefrom. The Independent
Contract Consideration, a non-refundable portion of the Earnest Money, is consideration for Buyer’s right to inspect and purchase the Property pursuant to this Agreement and shall be delivered to Seller under all circumstances. |
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(e)
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Effective Date. |
November 4, 2024 |
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(f)
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Due Diligence Period.
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Intentionally Omitted
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(g)
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Closing Date.
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November 4, 2024
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(h)
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Title Company.
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Land Services USA, LLC
1835 Market Street, Suite 420
Philadelphia, Pennsylvania 19103
Attn: Jennifer Shectman
Telephone/Email:215-255-8967; jshectman@lsutitle.com
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(i)
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Escrow Agent.
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Land Services USA, LLC
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(j)
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Broker.
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None.
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(k)
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Seller
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Each of the entities listed on Exhibit A-1 attached hereto, severally. Furthermore, in each instance, all covenants, obligations, representations and warranties of “Seller” under this Agreement shall be
severally made by each Seller listed on Exhibit A-1 on an individual basis as to itself and/or the portion of the Property that it owns, as applicable.
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(l)
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Buyer
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Each of the entities listed on Exhibit A-2 attached hereto, severally. Furthermore, in each instance, all covenants, obligations, representations and warranties of “Buyer” under this Agreement shall be
severally made by each Buyer listed on Exhibit A-2 on an individual basis as to itself. (Together with Seller, each a “Party and collectively, the “Parties”).
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1.2 Property. Subject to the terms of this Purchase and Sale Agreement (the “Agreement”), Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the
following property (each individually and collectively, the “Property”):
(a) Each of the real properties described in Exhibit 1.2(a) (each a “Real Property” and, collectively, the “Real Properties”), together with any
and all buildings and improvements thereon (the “Improvements”), and all appurtenances of each of the above-described Real Properties, including without limitation, all easements, water and riparian rights, air and solar rights, mineral
rights, development rights, rights-of-way relating thereto, and, without warranty, all right, title, and interest, if any, of Seller in and to the land lying within any street or roadway adjoining each of the Real Properties or any vacated or
hereafter vacated street or alley adjoining said Real Property.
(b) All of Seller’s right, title and interest, in and to all fixtures, furniture, equipment, and other tangible personal property, if any, owned by Seller (the “Personal
Property”) presently located on each of the Real Properties and used exclusively in the operation or maintenance of said Real Property, but specifically excluding any items of personal property owned by tenants and any signage with the name
“Alterra”, “Alterra Property Group”, “APG”, “Alterra Industrial Outdoor Storage”, “Alterra IOS” or “IOS” on it.
(c) All of Seller’s right, title and interest, as landlord, in all leases of the Real Property or Improvements set forth on Schedule 1.2(c) attached hereto,
any and all guaranties, letters of credit, and security deposits (or similar) of the leases, including all amendments thereto (collectively, the “Leases”).
(d) All of Seller’s right, title and interest, if any, in and to all of the following items, to the extent assignable and without warranty (the “Intangible Personal
Property”): (A) licenses, plans, and permits relating to the operation of the Property, (B) all claims, rights and remedies of Seller at law or in equity, including without limitation under all contracts, agreements and undertakings between
Seller any applicable third party affecting the Property, and (C) if still in effect and at Buyer’s cost, guaranties and warranties received by Seller from any contractor, manufacturer or other person in connection with the construction or
operation of the Property. Notwithstanding the foregoing, the following are excluded from the definition of Intangible Personal Property under this Agreement: any trade names, trademark, service marks, logos, graphics and other rights with respect
to any of the names of the Seller and/or its affiliates, including, without limitation, “Alterra”, “Alterra Property Group”, “APG”, “Alterra Industrial Outdoor Storage”, “Alterra IOS” and/or “IOS”.
For avoidance of doubt, Buyer acknowledges and agrees that (i) Seller is selling, and Buyer is acquiring, the Property as a portfolio and notwithstanding anything contained in this Agreement to the
contrary, under no circumstances shall any term, condition or provision contained in this Agreement be construed or interpreted to imply that Buyer has a right to purchase, or Seller is obligated to sell, any portion (i.e., and not the entirety) of
the Property, (ii) in no event shall Buyer have the right to terminate this Agreement with respect to any individual Property (i.e., any such termination right of Buyer may only be exercised in connection with all of the Properties collectively),
and (iii) the closing of the purchase and sale of all the Properties hereunder shall occur simultaneously.
ARTICLE 2: INSPECTIONS
2.1 Property Information. Pursuant to the terms of that certain Access License and Exclusivity Agreement, dated as of September 19, 2024, between IOS JV, LLC, on behalf of Seller,
and PKST Realty, LLC, on behalf of Buyer (the “Access Agreement”), Seller has provided to Buyer copies of the documents, reports, and other materials described on Schedule 2.1 to this Agreement. The items enumerated in Schedule
2.1 and other documentation and information provided or otherwise made available by Seller, in each case on or prior to October 31, 2024 (and November 1, 2024 as to an insurance certificate for the property at 5300 S Cooks in Atlanta, GA)
are collectively referred to as the “Property Information.” Notwithstanding anything to the contrary contained herein, Seller shall not be obligated hereto to make any of the following available to Buyer: (a) any appraisals or economic
evaluations of a Property; (b) any attorney-client privileged information or attorney work product, (c) any proprietary analysis, models, software or systems, or trade secrets, or (d) any confidential information that Seller is contractually
prohibited from disclosing or privileged information. Except as otherwise expressly provided herein, (i) Seller makes no representations or warranties as to the accuracy or completeness of the Property Information, and (ii) Buyer agrees that
neither Seller nor any of its affiliates shall have any liability to Buyer or any of Buyer’s Agents resulting from the use of the Property Information by Buyer or any of Buyer’s Agents, including, without limitation, any errors therein,
incompleteness thereof or omissions therefrom.
2.2 Investigations; Due Diligence Complete. Buyer acknowledges and agrees that (i) Buyer and its affiliates, subsidiaries, current and prospective, direct or indirect, partners,
members, shareholders, and each of their respective officers, directors, employees, agents, professional advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, “Buyer’s Agents”)
were given the full opportunity to enter the Property for the purpose of performing due diligence, inspections and tests on or concerning the Property, including Phase I environmental audits and surveys of the Property and such other tests, surveys
or inspections of the Property as desired by Buyer (collectively, the “Investigations”), (ii) all Investigations were conducted at Buyer’s sole risk, cost and expense pursuant to and in accordance with the terms of the Access Agreement and
subject to the rights of tenants under their Leases, and (iii) all Investigations of the Property and the Property Information are complete and Buyer is satisfied with the results of all such Investigations, such that Buyer’s obligation to proceed
to and consummate Closing is not contingent upon any further due diligence. Buyer has been obligated through Closing, at its sole cost and expense and in strict accordance with all requirements of applicable law, promptly repair any damage or
alteration of the physical condition of any Property which results from any inspection or activity conducted by Buyer or any of Buyer Agent’s and restore the Property to substantially the same condition (to the extent reasonably practicable) as
existed prior to such inspection or activity. TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER, ON BEHALF OF ITSELF AND BUYER’S AGENTS, SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER AND SELLER’S AFFILIATES AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, AGENTS, EMPLOYEES, CONSULTANTS, INVESTMENT MANAGERS, PROPERTY MANAGERS, AND TRUSTEES OF EACH OF THEM AND THEIR RESPECTIVE HEIRS, SUCCESSORS, PERSONAL REPRESENTATIVES AND ASSIGNS (COLLECTIVELY, THE “SELLER PARTIES”) AGAINST AND FROM ANY AND ALL CLAIMS FOR LIABILITIES, LIENS, LOSSES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES, BUT EXCLUDING CONSEQUENTIAL, PUNITIVE, SPECIAL, OR OTHER SIMILAR
DAMAGES IN ALL CASES), DAMAGES OR INJURIES (“CLAIMS”) ARISING OUT OF OR RESULTING FROM THE INVESTIGATIONS BY BUYER OR OTHER BUYER AGENTS (EXCEPT TO THE EXTENT ARISING OUT OF THE MERE DISCOVERY OF ANY
PRE-EXISTING CONDITIONS AT ANY PROPERTY, BUT NOT INCLUDING ANY EXACERBATION OF SUCH PRE-EXISTING CONDITIONS CAUSED BY A BUYER AGENT (TO THE EXTENT OF SUCH EXACERBATION)). THE INDEMNIFICATION OBLIGATIONS HEREIN SHALL NOT APPLY WITH RESPECT TO ANY
CLAIMS TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER OR ANY SELLER PARTY. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. Buyer and Buyer’s Agents shall keep the Property free
and clear of all mechanics,’ materialmen’s and other liens resulting from the Investigations, or any of its other work under this Agreement and shall, promptly after notice from Seller, cause any such lien or notice thereof to be canceled and
released or otherwise bonded over or insured against in accordance with applicable law and to Seller’s reasonable satisfaction. The provisions of this paragraph shall survive the termination of this Agreement.
2.3 No Right to Terminate. Buyer acknowledges and agrees that all of the Investigations are complete, the Earnest Money is non-refundable (except as expressly set forth herein) and
applicable to the Purchase Price at Closing, and Buyer shall be obligated to purchase, and Seller shall be obligated to sell, all of the Property at the Closing, subject to and in accordance with the terms of this Agreement.
2.4 Buyer’s Reliance on its Investigations and Release. The provisions of this Section 2.4 shall survive indefinitely the Closing, close of escrow and recordation of the
Deeds (hereinafter defined) and shall not be deemed merged into any of the Closing documents.
(a) Buyer acknowledges and agrees, by consummating the Closing, it will be deemed to have been given a full opportunity to inspect and investigate each and every aspect
of the Property, either independently or through agents of Buyer’s choosing. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, SELLER AND BUYER AGREE THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION IN SECTION 7.1 BELOW AND IN THE CLOSING DOCUMENTS EXECUTED AND DELIVERED TO BUYER BY SELLER (COLLECTIVELY, “SELLER’S WARRANTIES”), SELLER IS SELLING AND BUYER IS PURCHASING AND TAKING THE PROPERTY ON
AN “AS IS” BASIS, WITH ANY AND ALL LATENT AND PATENT DEFECTS. BUYER ACKNOWLEDGES THAT, EXCEPT FOR SELLER’S WARRANTIES, IT IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY AND, EXCEPT FOR SELLER’S WARRANTIES, IT IS NOT RELYING UPON ANY
REPRESENTATION, STATEMENT OR OTHER ASSERTION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ITS AGENTS OR BROKERS AS TO ANY MATTER CONCERNING THE PROPERTY, INCLUDING, WITHOUT LIMITATION: (I) THE QUALITY, NATURE, ADEQUACY AND PHYSICAL
CONDITION OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ACCESS, THE STRUCTURAL ELEMENTS, FOUNDATION, ROOF, APPURTENANCES, ACCESS, PARKING FACILITIES AND THE ELECTRICAL, MECHANICAL, HVAC, PLUMBING, SEWAGE, AND UTILITY SYSTEMS, FACILITIES AND
APPLIANCES, (II) THE QUALITY, NATURE, ADEQUACY, AND PHYSICAL CONDITION OF SOILS, GEOLOGY AND ANY GROUNDWATER, (III) THE EXISTENCE, QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION OF UTILITIES SERVING THE PROPERTY, (IV) THE DEVELOPMENT POTENTIAL
OF THE PROPERTY, AND THE PROPERTY’S USE, HABITABILITY, MERCHANTABILITY, SUITABILITY, VALUE OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE, (V) THE ZONING OR OTHER LEGAL STATUS OF THE PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON
USE OF THE PROPERTY, (VI) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY GOVERNMENTAL OR QUASI-GOVERNMENTAL ENTITY OR OF ANY OTHER
PERSON OR ENTITY, (VII) THE PRESENCE OF HAZARDOUS MATERIALS ON, UNDER OR ABOUT THE PROPERTY OR THE ADJOINING OR NEIGHBORING PROPERTY, (VIII) THE QUALITY OF ANY LABOR AND MATERIALS USED IN ANY IMPROVEMENTS ON THE REAL PROPERTIES, (IX) EXCEPT FOR
SELLER’S OBLIGATION TO CURE THE REQUIRED CURE ITEMS, THE CONDITION OF TITLE TO THE PROPERTY, AND (X) THE ECONOMICS OF THE OPERATION OF THE PROPERTY.
(b) WITHOUT LIMITING THE ABOVE, EXCEPT WITH RESPECT TO A BREACH BY SELLER OF ANY OF THE SELLER’S WARRANTIES OR EXCLUDED CLAIMS (AS
DEFINED BELOW), EFFECTIVE AS OF THE CLOSING, BUYER, FOR AND ON BEHALF OF ITSELF, ANY ENTITY AFFILIATED WITH BUYER AND ITS SUCCESSORS AND ASSIGNS, WAIVES ITS RIGHT TO RECOVER FROM AND FOREVER RELEASES AND DISCHARGES THE SELLER PARTIES FROM AND
AGAINST ANY AND ALL DEMANDS, CLAIMS, LEGAL OR ADMINISTRATIVE PROCEEDINGS, LOSSES, LIABILITIES, DAMAGES, PENALTIES, FINES, LIENS, JUDGMENTS, COSTS OR EXPENSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND COSTS) OF WHATEVER KIND
OR NATURE, DIRECT OR INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, EXISTING OR FUTURE, CONTINGENT OR OTHERWISE (INCLUDING ANY ACTION OR PROCEEDING, BROUGHT OR THREATENED, OR ORDERED BY ANY APPROPRIATE GOVERNMENTAL ENTITY) THAT MAY ARISE ON
ACCOUNT OF OR IN ANY WAY CONNECTED WITH OR RELATING TO THE PROPERTY OR ITS CONDITION OR ANY LAW OR REGULATION APPLICABLE THERETO, INCLUDING WITHOUT LIMITATION, THE PRESENCE, MISUSE, USE, DISPOSAL, RELEASE OR THREATENED RELEASE OF ANY HAZARDOUS OR
TOXIC MATERIALS, CHEMICALS OR WASTES AT THE PROPERTY AND ANY LIABILITY OR CLAIM RELATED TO THE PROPERTY ARISING UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980, AS AMENDED (42 U.S.C. SECTION 9601 ET SEQ.),
THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976 (42 U.S.C. SECTION 6901 ET SEQ.), THE CLEAN WATER ACT (33 U.S.C. SECTION 1251 ET SEQ.), THE SAFE DRINKING WATER ACT (42 U.S.C. SECTION
300F ET SEQ.), THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. SECTION 5101 ET SEQ.), THE TOXIC SUBSTANCES CONTROL ACT (15 U.S.C. SECTION 2601 ET SEQ.), THE WASHINGTON MODEL TOXICS CONTROL ACT, EACH AS AMENDED, OR ANY OTHER CAUSE OF ACTION
BASED ON ANY OTHER STATE, LOCAL, OR FEDERAL ENVIRONMENTAL LAW, RULE OR REGULATION (COLLECTIVELY, “ENVIRONMENTAL LAWS”); PROVIDED HOWEVER, THE FOREGOING RELEASE SHALL NOT OPERATE TO RELEASE ANY CLAIM BY BUYER AGAINST ANY PERSON OR ENTITY OTHER
THAN SELLER PARTIES. AS USED HEREIN, “EXCLUDED CLAIMS” SHALL MEAN ANY CLAIM OR CAUSE OF ACTION BY BUYER AGAINST SELLER: (I) PURSUANT TO THE EXPRESS TERMS OF THIS AGREEMENT FOR ANY SELLER BREACH OF REPRESENTATIONS, WARRANTIES, OR
OBLIGATIONS OF SELLER THAT SURVIVE THE CLOSING OR ARE CONTAINED IN THE CLOSING DOCUMENTS OR (II) BASED ON SELLER’S FRAUD.
2.5 Service Contracts. The parties acknowledge that Buyer has notified Seller that Buyer does not wish to assume any of the service contracts furnished to Buyer with the Property
Information (collectively, the “Service Contracts”). Accordingly, Seller shall cause all Service Contracts to be terminated at or prior to Closing at Seller’s sole cost and expense. In addition, any Service Contracts not included in the
Property Information, if any, will not be assumed by Buyer, and Seller shall be and remain responsible, at its sole cost and expense, including without limitation any costs, fees or expenses associated with Seller’s termination of the same.
2.6 CC&Rs. Seller has delivered to Buyer executed estoppel certificates from each party (“CC&R Estoppels”) or Seller (“Seller Estoppels”), as applicable,
listed on Schedule 2.6 with respect to certain of the covenants, conditions and restrictions, reciprocal access easements or similar agreements affecting the Real Property (collectively, the “CC&Rs”) listed on Schedule 2.6
attached hereto. The consummation of Closing as contemplated herein shall be conclusive evidence that the requirements of this Section 2.6 shall have been either fully satisfied or waived by Buyer. Seller shall not be obligated to deliver
an estoppel certificate for any covenants, conditions and restrictions, reciprocal access easements or similar agreements affecting the Real Property other than the CC&R Estoppels and the Seller Estoppels listed on Schedule 2.6 and
delivered to Buyer at or prior to Closing.
ARTICLE 3: TITLE AND SURVEY REVIEW
3.1 Delivery of Title Report. Pursuant to the terms of the Access Agreement, Seller has provided to Buyer copies of Seller’s title insurance policies for each of the Real Properties
as described on Exhibit 1.2(a) of this Agreement. Prior to the Effective Date, Seller has caused to be delivered to Buyer or to provide Buyer and its designee access to a preliminary report or title commitment issued by the Title Company
for each real property comprising the Real Properties (each, a “Title Report” and, collectively, the “Title Reports”), together with copies of all documents referenced in the Title Reports. Buyer, at its option and expense, may obtain
new surveys or updates to existing surveys (collectively, the “Surveys”) of each real property comprising the Real Properties.
3.2 Title Review and Cure. Buyer and Seller acknowledge and agree that, (a) during the Investigations conducted by Buyer pursuant to the Access Agreement, (i) Buyer notified Seller
and the Title Company of Buyer’s title and survey objections with respect to items disclosed in the Title Reports or the Surveys, and (ii) Seller and the Title Company timely responded to all of Buyer’s title and survey objections, and (b) giving
effect and consideration to Seller’s Warranties and the other agreements herein, Buyer is fully satisfied with the respective responses of Seller and the Title Company as to Buyer’s title and survey objections. Those items approved by Buyer or
deemed approved by Buyer are hereinafter referred to as the “Permitted Exceptions”.
3.3 Title Policies; No Change Affidavits. Provided that Buyer has satisfied all obligations imposed upon Buyer set forth in the Title Reports, delivery of title in accordance with
the foregoing shall be evidenced by the irrevocable commitment of the Title Company to issue, at Closing, one or more owner’s policies of title insurance in the form of one or more proforma policies or marked-up commitments approved or deemed
approved by Buyer in accordance with Section 3.2 (collectively, the “Title Policies”). At or prior to Closing, Seller shall deliver to the Title Company survey “no-change” affidavits in such form and substance as is reasonably
satisfactory to the Title Company for each Property listed on Schedule 3.3 attached hereto.
ARTICLE 4: INTENTIONALLY OMITTED
ARTICLE 5: CLOSING
5.1 Closing and Escrow Instructions. The consummation of the transaction contemplated herein (the “Closing”) shall occur on the Closing Date through the offices of the
Escrow Agent and Buyer’s funds shall be received on or before 2:00 P.M. Eastern Time on the Closing Date.
5.2 Conditions to the Parties’ Obligations to Close.
(a) The obligations of Buyer to consummate the transaction contemplated by this Agreement are contingent upon the following conditions (collectively, “Buyer’s
Closing Conditions”), unless waived in writing by Buyer:
(1) Buyer’s receipt and approval of executed estoppel certificates (“Tenant Estoppels”), consistent with the information in the Leases and in the form
delivered to Buyer on or prior to the Effective Date, for Leases covering at least eighty percent (80%) of the gross base rents payable under all Leases for the Real Properties (collectively, the “Estoppel Requirement”). Tenant Estoppels
shall be dated not earlier than thirty (30) days prior to the scheduled Closing Date. Buyer acknowledges and agrees that Buyer shall not have the right to object to any of the following modifications by a tenant to a Tenant Estoppel and such
modifications shall nevertheless be deemed to meet the Estoppel Requirements if such modifications: (a) are non-economic and non-material, (b) note items which constitute Permitted Exceptions, items which the applicable Seller discharges
before the Closing at such Seller’s cost, (c) conform such certificate to the applicable Lease or other information delivered by Seller to Buyer prior to the Effective Date, or (d) limit tenant’s statements “to tenant’s knowledge” (or words of
similar import;
(2) There shall be no actions, suits, arbitrations, claims, proceedings, litigation, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or
other proceedings, or regulatory proceedings (including, without limitation, condemnation proceedings), pending or threatened against any Seller or with respect to any Property which would reasonably be expected to materially and adversely affect
the use or value of any Property or any Seller’s ability to consummate the transactions contemplated by this Agreement;
(3) The Title Company shall be irrevocably committed to issue the Title Policies on the Closing Date;
(4) All of Seller’s representations and warranties contained in or made pursuant to this Agreement shall have been true and correct when made in all material respects,
and shall be true and correct as of the Closing Date in all material respects;
(5) As of the Closing Date, each Seller shall have performed its obligations and covenants contained in or made pursuant to this Agreement in all material respects,
and all deliveries to be made at Closing by each Seller shall have been tendered as required herein; and
(6) Prior to the Closing, Seller shall have delivered to Buyer terminations or written waivers (each, a “Purchase Right Waiver”) of any right of first refusal,
right of first offer, or any other right or option to purchase any portion of the Property granted to any party other than Buyer, as identified on Schedule 7.1(j) (each, a “Purchase Right”), each in a form that is reasonably
acceptable to Buyer and sufficient to cause the Title Company to: (a) remove the Purchase Right as an exception to the Title Policy for the applicable Property and (b) at Buyer’s election, affirmatively insure over such Purchase Right by
endorsement (to the extent such endorsement is available in the subject state).
Subject to those matters that survive the Closing, the consummation of Closing as contemplated herein shall be conclusive evidence that each of the aforementioned conditions to Closing shall have
been either fully satisfied or waived by Buyer to the extent the Buyer had actual knowledge of any failed condition.
(b) The obligations of Seller to consummate the transaction contemplated by this Agreement are contingent upon the following conditions (collectively, “Seller’s
Closing Conditions” and together with the Buyer’s Closing Conditions, the “Closing Conditions” and each a “Closing Condition”), unless waived in writing by Seller:
(1) All of Buyer’s representations and warranties contained in or made pursuant to this Agreement shall have been true and correct when made in all material respects, and
shall be true and correct as of the Closing Date in all material respects;
(2) As of the Closing Date, each Buyer shall have performed its obligations and covenants contained in or made pursuant to this Agreement in all material respects, and
all deliveries to be made at Closing by each Buyer shall have been tendered as required herein; and
(3) There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, litigation, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings, pending or threatened against any Buyer which would reasonably be expected to materially and adversely affect such Buyer’s ability to perform its obligations under this Agreement.
Subject to those matters that survive the Closing, the consummation of Closing as contemplated herein shall be conclusive evidence that each of the aforementioned conditions to Closing shall have
been either fully satisfied or waived by Seller.
(c) Buyer acknowledges and agrees that Buyer’s obligations under this Agreement shall not be contingent upon Buyer obtaining any financing with respect to the
transaction contemplated herein.
5.3 Seller’s Deliveries in Escrow. On or before the Closing Date, each Seller shall deliver in escrow to the Escrow Agent the following:
(a) Deeds. A deed in the form approved by Seller and Buyer for each applicable jurisdiction on or before the Effective Date for the Real Property owned by such
Seller (collectively, the “Deeds”), executed and acknowledged by such Seller, subject to all zoning and building laws, ordinances, maps, resolutions, and regulations of all governmental authorities having jurisdiction which affect such Real
Property and the use and improvement thereof; the Leases applicable to such Real Property; all Permitted Exceptions applicable to such Real Property; any state of facts which an accurate survey made of such Real Property at the time of Closing
would show; and any state of facts which a personal inspection of such Real Property made at the time of Closing would disclose. Any discrepancy between the description of such Real Property in the deed from such Seller’s immediate grantor and in
the applicable Deed shall be quitclaimed by such Seller;
(b) Assignment of Leases and General Assignment/Bill of Sale. (i) An Assignment and Assumption of Leases in the form of Exhibit 5.3(b)(1) attached
hereto with respect to all of the Properties except for the Property located at 3812 28th Place NE, Everett, Washington, (ii) an Assignment and Assumption of Leases substantially in the form of Exhibit 5.3(b)(2) attached hereto with respect
to the Property located at 3812 28th Place NE, Everett, Washington only, and (iii) a General Assignment and Bill of Sale in the form of Exhibit 5.3(b)(3) attached hereto (collectively, the “Assignments”), executed by such Seller;
(c) FIRPTA. A Foreign Investment in Real Property Tax Act affidavit executed by such Seller;
(d) Association Related Resignations. If applicable, resignation letters from current directors and officers who are employees of any affiliates of such
Seller;
(e) Notice to Tenants. A notice regarding the sale in substantially the form of Exhibit 5.3(e) attached hereto, or such other form as may be required
by applicable state law for delivery by Buyer to each tenant immediately after the Closing;
(f) Post-Closing Holdback Agreement. The Post-Closing Holdback Agreement in the form attached hereto as Exhibit 5.3(f), governing the Post-Closing
Escrow (the “Post-Closing Holdback Agreement”), executed by each Seller; and
(g) Additional Documents. Any additional documents that Escrow Agent or the Title Company may reasonably require to be executed by such Seller for the proper
consummation of the transaction contemplated by this Agreement.
5.4 Buyer’s Deliveries in Escrow. On or before the Closing Date, Buyer shall deliver in escrow to the Escrow Agent the following:
(a) Purchase Price. The Purchase Price, less the Earnest Money that is applied to the Purchase Price, plus or minus applicable prorations, deposited by Buyer
with the Escrow Agent in immediate, same day federal funds into the Escrow Agent’s escrow account;
(b) Assignment of Leases and General Assignment/Bill of Sale. The Assignments, executed by Buyer; and
(c) Additional Documents. Any additional documents that Escrow Agent or the Title Company may reasonably require for the proper consummation of the transaction
contemplated by this Agreement.
5.5 Closing Statements/Escrow Fees. At the Closing, Seller and Buyer shall deposit with the Escrow Agent executed closing statements consistent with this Agreement in the form
required by the Escrow Agent and reasonably approved by Seller and Buyer.
5.6 Possession. Each Seller shall deliver possession of the Property owned by such Seller to Buyer at the Closing, subject to the Permitted Exceptions.
5.7 Post-Closing Deliveries.
(a) State / Property Specific Post-Closing Matters. Seller and Buyer acknowledge and agree that certain closing documents and/or inspections required by the
applicable state, county, city or municipality to be (i) executed or performed by Seller or (ii) executed by Buyer, in each case for the proper consummation of the transaction contemplated by this Agreement, could not have been executed or
performed prior to Closing, as set forth on Schedule 5.7(a) attached hereto. Seller and Buyer shall cooperate in good faith to diligently execute and/or complete the items set forth on Schedule 5.7(a) as soon as practicable after
Closing. If and to the extent any amounts are obligated to be paid by Buyer or Seller, as the case may be, in accordance therewith (subject to any different allocation in accordance with Schedule 5.8), the applicable party shall pay the
same in accordance therewith. The provisions of this Section 5.7(a) shall survive the Closing, close of escrow and recordation of the Deeds.
(b) Other Post-Closing Deliveries. Immediately after the Closing, each Seller shall deliver to Buyer or Buyer’s designated agent the following items for the
Property owned by such Seller: copies of the Leases (or originals, if in Seller’s possession or control); all keys, and other access control devices, codes and passwords (if any) for the Improvements, if any, used in the operation of the applicable
Property; if in such Seller’s possession or control, any “as-built” plans and specifications of the Improvements; if in such Seller’s possession or control, at Buyer’s cost, all unexpired warranties and guarantees that Seller or any predecessor has
received in connection with any work or services performed with respect to, or equipment installed in, the Improvements; all tenant leasing information, leasing files and other material documents relating to past and ongoing operations and
maintenance of the Property, and past property taxes and other operating expenses; and all books and records pertaining to the leasing or other operation of each Property in such Seller’s possession or control. Following the Closing, Seller shall
reasonably cooperate with Buyer to facilitate the orderly transition of the ownership, operation, maintenance, and management of each Property and reporting requirements of Buyer’s parent company, including without limitation, by providing Buyer
with such additional information or materials reasonably requested by Buyer in Seller’s possession and control relating to the foregoing; provided, however, Seller shall have no obligation to incur any cost or expense in connection therewith and
Seller shall not be required to deliver any information Seller deems proprietary or confidential. Seller’s obligations under this Section 5.7 shall survive the Closing.
5.8 Closing Costs. At Closing, (a) Buyer shall pay (i) the cost of any new Surveys and/or any Survey updates obtained by Buyer, (ii) the cost of recording any security instruments
related to any financing obtained by Buyer, (iii) the fees and costs, if any, to transfer any warranties that are included with the Intangible Property to Buyer, and (iv) ½ of the escrow fees due in connection with the transaction contemplated by
this Agreement, (b) Seller shall pay (i) the cost of recording any satisfactions or similar instruments with respect to any Required Cure Items, (ii) ½ of the escrow fees due in connection with the transaction contemplated by this Agreement, (iii)
intentionally omitted, and (iv) the cost of any required Certificate of Continued Occupancy Inspections in the State of New Jersey to the extent not the responsibility of the tenant for any affected Property. All other closing costs, charges and
expenses (including, without limitation, (x) the cost of the premiums for the Title Policies and endorsements thereto, (y) the cost of recording the Deeds, and (z) all transfer fees and taxes due in connection with the transaction contemplated by
this Agreement) shall be paid by Seller and/or Buyer in accordance with local custom for the applicable Property as set forth on Schedule 5.8 attached hereto. Each party shall pay its own attorneys’ fees.
5.9 Close of Escrow. Upon satisfaction or completion of the foregoing conditions and deliveries, the parties shall direct the Escrow Agent to immediately record and deliver the
documents described above to the appropriate parties and make disbursements according to the closing statements executed by Seller and Buyer.
ARTICLE 6: PRORATIONS
6.1 Prorations. The day of Closing shall belong to Buyer and all prorations hereinafter provided to be made as of the Closing shall each be made as of the end of the day before the
Closing Date. In each such proration set forth below, the portion thereof applicable to periods beginning as of Closing shall be credited to Buyer or charged to Buyer as applicable and the portion thereof applicable to periods ending as of Closing
shall be credited to Seller or charged to Seller as applicable.
(a) Rent and Income. All collected rent and other income collected under Leases in effect on the Closing Date (including without limit applicable state or local
tax on rent, prepaid rent, tenant reimbursements for Reimbursable Tenant Expenses (as defined below), additional rent and percentage rent) (collectively, “Collected Rent”) shall be prorated as of the Closing. Buyer shall receive a credit
against the Purchase Price at Closing in the amount of any Collected Rent collected by Seller before Closing but applicable to any period of time after Closing. Schedule 6.1(a) attached hereto is a schedule of all uncollected rent and
other uncollected income under Leases in effect on the Closing Date (including without limit applicable state or local tax on rent, prepaid rent, tenant reimbursements for Reimbursable Tenant Expenses, additional rent and percentage rent) for the
period prior to the Closing (the “Pre-Closing Uncollected Rent”). Buyer covenants and agrees to use its commercially reasonable efforts after the Closing in the usual course of operation of the Property to send notices to such tenants
regarding all Pre-Closing Uncollected Rent until July 21, 2025; provided, however, Buyer shall have no obligation to incur any costs in connection with such efforts, nor shall Buyer have any obligation to commence proceedings against, or threaten
the occupancy of, any tenant under any the Lease in connection with Buyer’s efforts to collect Pre-Closing Uncollected Rent. From and after the Closing, Seller may not institute or prosecute any action, lawsuit, proceeding or other collection
effort against any existing tenants under Leases; provided, however, the foregoing limitation shall not impair Seller’s ability to pursue any such collection efforts against former tenants whose leases have expired or terminated prior to the
Closing and who are not then leasing another location at a Property. All rent and other income under Leases received by Buyer following the Closing shall be applied (i) first, to Buyer’s reasonable costs of collection of such rent and other income
(including reasonable attorneys’ fees); (ii) second, to rent and other income due for the month in which such payment is received by Buyer; (iii) third, to rent and other income attributable to any period after Closing which are past due on the
date of receipt; (iv) fourth, to rent and other income due for the month in which Closing occurs and prorated in accordance with the terms of this subparagraph, with the portion allocable to Seller being paid by Buyer to Seller; and (v) finally, to
delinquent rent and other income allocable to Seller in the form of a payment by Buyer to Seller.
(b) Reimbursable Tenant Expenses. A Seller, as landlord under the applicable Leases, may be currently collecting from tenants under the Leases additional rent
to cover ad valorem taxes, insurance, utilities, maintenance and other operating costs and expenses (collectively, “Reimbursable Tenant Expenses”) incurred by such Seller in connection with the ownership, operation, maintenance, and
management of the applicable Property. Tenant reconciliation statements for Reimbursable Tenant Expenses for calendar year 2023 (“2023 CAM Rec”) have been sent to tenants and all reconciliations thereunder have been completed prior to
Closing (subject to any ongoing audits by a tenant and/or pending property tax appeals). Buyer agrees to prepare tenant reconciliation statements for Reimbursable Tenant Expenses for calendar year 2024 by March 31, 2025, and each applicable Seller
agrees to furnish to Buyer by February 1, 2025 all information and documentation reasonably requested by Buyer in connection with Buyer’s preparation of the same. After Buyer has completed its preparation of the tenant reconciliation statements for
Reimbursable Tenant Expenses for calendar year 2024, Buyer shall deliver such reconciliation statements to the applicable Seller for such Seller’s approval (not to be unreasonably withheld, conditioned or delayed) and following receipt of such
Seller’s approval, Buyer shall transmit to tenants and bill the tenants for any amounts due under such reconciliation statements (with copies delivered to the applicable Seller) on or prior to the date such reconciliations are due under the
applicable Lease(s). All Reimbursable Tenant Expenses for calendar year 2024 (and any amounts arising under the 2023 CAM Rec or any prior reconciliation of Reimbursable Tenant Expenses, to the extent not completed, and/or amounts due and payable
with respect thereto having not been paid, prior to Closing) shall be apportioned between the applicable Seller and Buyer based on the amounts so collected by them and the amounts so paid or incurred by them during their respective periods of
ownership (including amounts prorated hereunder). If any such reconciliation statements show that the amounts collected by a Seller prior to the Closing Date exceed that Seller’s allocable share of such Reimbursable Tenant Expenses, then that
Seller shall pay such amounts to Buyer within fifteen (15) days after all reconciliation statements are approved by Buyer and Seller for prompt payment to the tenants. If such reconciliation statements show an applicable Seller is owed any such
Reimbursable Tenant Expenses from a tenant under a Lease, then Buyer shall pay such amounts to that Seller within fifteen (15) days after receipt thereof by Buyer from the applicable tenant. Seller shall be and remain responsible, at its sole cost
and expense, for all amounts owed to any tenant under a Lease for any overpayments of Reimbursable Tenant Expenses made prior to the Closing by such tenant and discovered pursuant to an audit right under a tenant’s Lease, and Seller shall indemnify
and defend Buyer from and against all such claims (“Tenant Audits”). Without limitation to the foregoing, if and to the extent any amounts are determined, prior to Closing, to be due and payable to Tenants for Tenant Reimbursable Expenses,
but have not been paid at Closing (“Delinquent Reimbursements”), then Buyer shall receive a credit against the Purchase Price at Closing in the amount of any such Delinquent Reimbursements, and Buyer shall promptly pay the same to the
applicable Tenant(s).
(c) Taxes and Assessments. Real estate taxes and assessments imposed by governmental authority shall be prorated as of the Closing Date. At Closing, Buyer
shall be credited with the amount of unpaid taxes for the current tax year in the jurisdiction where the Property is located and with respect to the period prior to the Closing, with respect to those Properties identified on and as set forth on Schedule
6.1(c). If and to the extent a Tenant pays such taxes either directly to the taxing authority, or pursuant to a reimbursement requirement under its Lease, then Buyer shall pay to Seller within 30 days after receipt such reimbursement or
evidence of payment, the amount so credited with respect thereto to Buyer at Closing. Notwithstanding anything seemingly to the contrary contained herein, Buyer shall be solely responsible for and shall assume any and all similar taxes or
assessments applicable to the Property as a result of the change in ownership resulting from the transaction contemplated by this Agreement, regardless of when assessed, any and all ad valorem taxes relating to a subsequent change in usage or
ownership of the Property (including any rollback taxes) by Buyer after the Closing, whether by reason of this conveyance or otherwise.
(d) Property Tax Appeals. Certain Sellers have filed appeals to certain tax bills identified on Schedule 6.1(d) (each, a “Pending Tax Appeal”)
with the applicable taxing authorities described therein (each, a “Taxing Authority”). In the event any Seller receives a tax refund as a result thereof after the Closing for any period prior to the Closing, Seller shall (i) pay Seller’s
actual, out of pocket and reasonable costs and expenses of the applicable appeal from such refund, (ii) retain the portion (if any) of such refund which is attributable to any period prior to the Closing and is not reimbursable to tenants of the
applicable Real Property, and (iii) promptly remit the balance of such refund which is reimbursable to tenants of the applicable Real Property to Buyer and Buyer shall thereafter be and remain responsible, at its sole cost and expense, to reimburse
tenants of the applicable Real Property for their share of the refund (net of the amounts set forth above) (“Savings”) for the period of such Seller’s ownership of such Real Property for the applicable tax year, and the balance (if any)
shall be prorated between such Seller and Buyer as of the Closing Date in the same manner set forth above. In the event any Buyer receives a tax refund after the Closing arising out of any appeal filed by any Seller for any period prior to the
Closing, Buyer shall (i) promptly remit to Seller an amount equal to Seller’s actual, out of pocket and reasonable costs and expenses of the applicable appeal from such refund plus the portion (if any) of such refund which is attributable to any
period prior to the Closing and is not reimbursable to tenants of the applicable Real Property, and (ii) thereafter be and remain responsible, at its sole cost and expense, to reimburse tenants of the applicable Real Property for their share of the
balance of such Savings for the period of such Seller’s ownership of such Real Property for the applicable tax year, and the balance (if any) shall be prorated between such Seller and Buyer as of the Closing Date in the same manner set
forth above. In the event Buyer elects, after Closing, to file an appeal with any Taxing Authority for the year in which Closing occurs or any other period prior to Closing and Buyer receives a tax refund as a result thereof after the Closing,
Buyer shall be responsible, at its sole cost and expense, to reimburse tenants of the applicable Real Property for their share of the Savings for the applicable tax year, and the balance (net of Buyer’s actual, out of pocket and reasonable
cost and expenses of the appeal) shall be prorated between such Seller and Buyer as of the Closing Date in the same manner set forth above. In the event a final determination with respect to any Pending Tax Appeal results in an amount due to the
Taxing Authority for any period preceding the Closing, and if such amount may not be passed through to tenants pursuant to their leases, then Seller shall be liable for and shall pay the same prior to delinquency. In the event any Taxing Authority
increases the taxes on any applicable Real Property for the tax year in which Closing occurs, then to the extent such increased taxes may not be passed through to tenants of such Real Property, the same shall be prorated between the applicable
Seller and Buyer as of the Closing Date in the same manner set forth above. Notwithstanding anything to the contrary herein, Seller shall not submit, file, prosecute or settle any tax appeals, protests or similar for the tax year in which the
Closing occurs (or any year thereafter) without Buyer’s written consent, in Buyer’s sole and absolute discretion, provided that Buyer acknowledges and agrees that Seller shall be permitted to prosecute to completion the Pending Tax Appeals
identified on Schedule 6.1(d).
(e) Utilities. To the extent not paid by tenants under Leases, Seller shall arrange for a billing for utilities, to include all utilities or services used up
to the day Closing occurs, and Seller shall pay (and shall be and remain solely responsible for) the resultant bills.
(f) Final Adjustment After Closing. If final prorations cannot be made at Closing for any item being prorated under this Section 6 (other than 6.2(b)
and 6.2(c)) or if any of the aforesaid prorations were calculated inaccurately, then Buyer and Seller agree to allocate such items on a fair and equitable basis as soon as reasonably possible after the Closing Date but in no event later than
December 1, 2025. Payments in connection with the final adjustment shall be due within thirty (30) days of the notice. Following the Closing, Seller and Buyer shall have reasonable access to, and the right to inspect and audit, the other’s books
to confirm the final prorations. Except as set forth above, Seller shall not be charged for any increase in Reimbursable Tenant Expenses or real estate taxes due to increased costs or reassessments incurred by Buyer after the Closing to the extent
the same are triggered by the consummation of the transaction contemplated by this Agreement.
6.2 Tenant Improvement Costs, Lease Termination Payments, and Other Post-Closing Items.
(a) At Closing, Buyer shall receive a credit for all unpaid tenant improvement expenses (including all hard and soft construction costs, whether payable to the
contractor or the tenant), unapplied free rent and rent abatement, tenant allowances, moving expenses, other leasing inducements and other out-of-pocket costs which are the obligation of the landlord for the current term of any Leases that were in
place on or prior to the Closing Date (collectively, the “Existing Leases”) in the amount set forth on Schedule 6.2(a) attached hereto (collectively, the “Existing TI Obligations”), and Buyer shall assume in writing at Closing
the Existing TI Obligations (but only to the extent of the credit received from Seller for the same at Closing. Seller shall be responsible for the payment of any commissions, fees and expenses that are unpaid as of Closing or may become due and
payable after the Closing, with respect to any current lease term, under any leasing or listing agreements relating to Existing Leases (“Current Term Leasing Commissions”).
(b) At Closing, Buyer shall receive a credit for the amounts set forth on Schedule 6.2(b) attached hereto for certain Property-related matters as more
particularly described thereon.
(c) Holdback. Seller and Buyer acknowledge and agree that, to the extent the actual costs and expenses for any of the work and other undertakings described in Schedule
6.2(b), clauses (3) through (6) (collectively, the “Post-Closing Work”) exceed the amount of the respective credit set forth on Schedule 6.2(b), Buyer may assert a claim for and recover such documented excess costs (if any)
from the Holdback (as defined below) in accordance with the terms of the Post-Closing Holdback Agreement. In addition, if any Post-Closing Work is not completed by August 4, 2025, then (i) a portion of the Holdback shall remain in escrow with
Escrow Agent thereafter in an amount equal to $200,000.00 (the “Post-Survival Escrow”), which amount shall secure any and all Post-Closing Work which is not then complete, and Buyer may assert a claim for and recover documented costs in
excess of the credits at Closing in relation thereto, from the Holdback until such time as all Post-Closing Work is completed in accordance with the terms of this Agreement and the Post-Closing Holdback Agreement, and (ii) the remaining undisbursed
portion of the Holdback (less any amounts then in dispute for claims timely made by Buyer in accordance with this Section 6.2(c) and/or Section 10.6(a) and the Post-Closing Holdback Agreement, if any) shall be released and disbursed to
Seller pursuant to Section 10.6 hereof and in accordance with the Post-Closing Holdback Agreement. If, following the establishment of the Post-Survival Escrow, the actual costs and expenses incurred by Buyer in excess of the credit from
Seller to complete any remaining Post-Closing Work are less than the amount of the Post-Survival Escrow, then any remaining funds in the Post-Survival Escrow upon completion of the remaining Post-Closing Work shall be released and disbursed to
Seller. The provisions of this Section 6.2(c) and other normal and customary terms and conditions for a post-closing escrow for environmental, construction or similar work shall be incorporated into the Post-Closing Holdback Agreement.
6.3 Tenant Deposits.
(a) All tenant security deposits actually received by Seller and not theretofore applied to tenant obligations under the Leases in accordance with the terms thereof,
in the amount set forth on Schedule 6.3(a) attached hereto, shall be transferred or credited to Buyer at Closing or placed in escrow if required by law. As of the Closing, Buyer shall assume Seller’s obligations related to tenant security
deposits but only to the extent of the tenant security deposits transferred to Buyer at Closing.
(b) On the date of Closing, if applicable, Seller shall have delivered into Escrow (with instruction to the Escrow Agent to deliver to the issuing bank) executed
transfer forms required by the issuing bank of any security deposits which are held in the form of letters of credit (the “SD Letters of Credit”) if the same are transferable. If any of the SD Letters of Credit are not transferable, Seller
shall cooperate with Buyer and use commercially reasonable efforts to cause the tenants obligated under such SD Letters of Credit to cause new letters of credit to be issued in favor of Buyer in replacement thereof at no cost to Buyer and, until
such transfer or issuance, Seller shall take all reasonable actions, as directed by Buyer and at Buyer’s expense, in connection with the presentment of such SD Letters of Credit for payment as permitted under the terms of the applicable tenant
Lease.
(c) BUYER WILL INDEMNIFY, DEFEND, AND HOLD SELLER HARMLESS FROM AND AGAINST ALL DEMANDS AND CLAIMS MADE BY TENANTS ARISING OUT OF THE
APPLICATION OR DISPOSITION OF ANY SECURITY DEPOSITS OR DRAW ON THE SD LETTERS OF CREDIT WHICH ARE MADE AFTER THE CLOSING AND, IF APPLICABLE, AFTER THE TRANSFER OF THE SD LETTERS OF CREDIT TO BUYER, AND WILL REIMBURSE SELLER FOR ALL REASONABLE
ATTORNEYS’ FEES ACTUALLY INCURRED BY SELLER AS A RESULT OF ANY SUCH CLAIMS OR DEMANDS AS WELL AS FOR ALL LOSSES, EXPENSES, VERDICTS, JUDGMENTS, SETTLEMENTS, INTERESTS, COSTS AND OTHER EXPENSES INCURRED BY SELLER AS A RESULT OF ANY SUCH CLAIMS OR
DEMANDS BY TENANTS.
(d) WITH RESPECT TO THE PROPERTY IN EVERETT, WASHINGTON, SELLER WILL INDEMNIFY, DEFEND, AND HOLD BUYER HARMLESS FROM AND AGAINST ALL
DEMANDS AND CLAIMS MADE BY TENANTS ARISING OUT OF THE APPLICATION OR DISPOSITION OF ANY SECURITY DEPOSITS WHICH WERE MADE PRIOR TO THE CLOSING, AND WILL REIMBURSE BUYER FOR ALL REASONABLE ATTORNEYS’ FEES ACTUALLY INCURRED BY BUYER AS A RESULT OF
ANY SUCH CLAIMS OR DEMANDS AS WELL AS FOR ALL LOSSES, EXPENSES, VERDICTS, JUDGMENTS, SETTLEMENTS, INTERESTS, COSTS AND OTHER EXPENSES INCURRED BY BUYER AS A RESULT OF ANY SUCH CLAIMS OR DEMANDS BY TENANTS.
6.4 Utility Deposits. Buyer shall be responsible for making any deposits required with utility companies. Seller shall receive a credit at Closing for any utility deposits
transferred or assigned to Buyer.