Definitive Proxy Solicitation Material — Merger or Acquisition — Schedule 14A
Filing Table of Contents
Document/Exhibit Description Pages Size
1: DEFM14A Definitive Proxy Solicitation Material -- Merger 77 261K
or Acquisition
2: EX-10 Material Contract 70 206K
3: EX-10.1 Material Contract 3 13K
4: EX-10.2 Material Contract 9 25K
5: EX-10.3 Material Contract 2 11K
6: EX-10.4 Material Contract 16 47K
7: EX-12 Statement re: Computation of Ratios 39 158K
8: EX-12.1 Statement re: Computation of Ratios 9 38K
9: EX-12.2 Statement re: Computation of Ratios 9 42K
10: EX-12.3 Statement re: Computation of Ratios 10 45K
11: EX-20 Other Document or Statement to Security Holders 68 241K
12: EX-20.1 Other Document or Statement to Security Holders 1 7K
13: EX-20.2 Other Document or Statement to Security Holders 2 16K
ANNEX VIII
THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
This THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this
"Amendment") is dated as of the 23rd day of December, 1999 by and among
SHOPCO MALLS L.P., a Delaware limited partnership ("Seller") and
CRANBERRY PROPERTIES MM CORP., a Delaware corporation ("Buyer").
BACKGROUND
A. Seller and Barker Pacific Group, Inc., a Delaware corporation
("Assignor") executed an Agreement of Purchase and Sale as of September
11, 1999 (the "Initial Agreement"), as amended by a First Amendment to
Agreement of Purchase and Sale dated as of October 28, 1999, a Second
Amendment to Agreement of Purchase and Sale dated as of November 29, 1999
and letters dated December 13, December 14, December 16, December 17,
December 20 and December 21, 1999 (such Initial Agreement, as the same
has been heretofore amended and is hereby amended by this Amendment, the
"Agreement").
B. Pursuant to an Assignment of Purchase and Sale Agreement
dated as of November 11, 1999, Assignor assigned all of its right, title
and interest in and to the Agreement to Buyer, as same has been consented
to by Seller pursuant to a Seller's Consent of even date herewith (the
"Assignment").
C. Seller and Buyer now desire to further amend the Agreement in
order to modify certain terms and conditions thereof. All capitalized
terms not otherwise defined in this Amendment, shall have the meaning
given such terms in the Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Section I.1 is hereby amended by adding or modifying the
following definitions:
"Additional Earnest Money" shall mean an amount equal to
$150,000.
"Approved Met Life Commitment" shall mean a written commitment
(or other evidence satisfactory to Buyer in its sole
discretion) from Lender regarding Buyer's assumption of the
Third Party Loan, which sets forth the agreement of Lender to
amend and restructure the Third Party Loan in a manner
acceptable to Buyer, in Buyer's sole discretion.
"Business Day" shall mean any day other than (a) Saturday or
Sunday or (b) a day on which commercial banks in New York, New
York are authorized or required by applicable law or executive
order to close.
"Funding Expiration Date" shall mean January 24, 2000, with a
right in favor of Buyer to extend such date for five (5)
business days if an Approved Met Life Commitment has not been
received.
"General Partner" shall mean Regional Malls, Inc., the general
partner of Shopco Regional Malls, L.P.
"Limited Partners" shall mean the limited partners of Shopco
Regional Malls, L.P.
"Limited Partner Approval" is hereby modified by substituting
"50%" in lieu of "66.66%".
"Permitted Exceptions" is modified by (i) adding "subject to
Seller's obligation to deliver customary title affidavits as
provided in Section VIII.8 hereof" at the end of clause (iii)
thereof and (ii) adding "subject to Buyer's right to terminate
this Agreement pursuant to Section VIII.5 hereof" at the end
of clause (B) thereof.
"Third Party Loan Documents" shall mean the documents
evidencing and/or securing the Third Party Loan.
"Voluntary Title Exceptions" is hereby modified by adding the
following to clause (e): "unless the same are the result of
Seller's failure to make any payment for which it is
responsible."
2. Section II.2(a) is hereby amended by deleting the first three
lines and substituting in lieu thereof:
"The consideration for the Asset shall be equal to Thirty-
Three Million Five Hundred Thousand Dollars ($33,500,000) (the
'Purchase Price')."
3. Sections II.2(b)(i) and (ii) are hereby deleted and replaced
by the following:
"(i) Seller acknowledges that Escrow Agent has received an
amount equal to $200,000 representing the Initial Earnest
Money required by the Initial Agreement. In
consideration of certain rights granted to Buyer in this
Amendment, Buyer agrees that $150,000 of the Initial
Earnest Money shall be deemed non-refundable, subject to
Buyer's right to receive a refund of the Earnest Money as
provided in the Agreement. The aforesaid non-refundable
$150,000, together with all interest earned thereon, and
any Additional Earnest Money, together with all interest
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earned thereon, shall be hereinafter referred to as the
Earnest Money.
In connection with the foregoing agreements, the amount
by which $200,000 exceeds $150,000 shall be wired to
Buyer simultaneously with the execution and delivery of
this Amendment pursuant to the information set forth
below:
Phoenix Four, Inc. Treasury Bill Account
(Account No. 398119120)
Republic National Bank of New York
415 Madison Avenue, New York, New York 10017
ABA No. 021004823
(ii) The Earnest Money shall be held in escrow in accordance
with the provisions of Section 14.4 of the Agreement and
shall be nonrefundable to Buyer except as provided in the
Agreement.
(iii) The parties acknowledge and agree that it is their
intent that the Additional Earnest Money shall be
paid, at Buyer's option, to be determined by Buyer
in its sole discretion, either upon Buyer's receipt
of (i) a No-Review SEC Notice (hereinafter defined),
as provided in Section II.3(b) or (ii) the Approved
Met Life Commitment, as provided in Section VII.2.
If Buyer receives a Yes-Review SEC Notice
(hereinafter defined) and does not terminate the
Agreement, Buyer shall have a third option, which is
to pay the Additional Earnest Money upon
notification from Seller that the SEC has completed
its review process and that Seller is prepared to
mail the Proxy Statement (hereinafter defined) to
the Limited Partners. Notwithstanding the
foregoing, it is understood and agreed that Buyer is
required to deposit the Additional Earnest Money
pursuant to Section VII.2 hereof."
4. Section II.3(a) is hereby deleted and replaced by the
following:
"The closing (the "Closing") of the sale and purchase of the
Asset (the "Transaction") shall take place on February 8, 2000
(the "Scheduled Closing Date"; the actual date of Closing, the
"Closing Date"). Buyer shall have the right from time to time
to extend the Scheduled Closing Date until March 7, 2000, if
required by Buyer in connection with Buyer's financing of the
Transaction, subject to one adjournment of the said Scheduled
Closing Date past March 7, 2000 but not later than March 15,
2000, TIME OF THE ESSENCE with respect to Buyer's obligation
to consummate the Transaction by such date."
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5. Section II.3(b) is hereby deleted and replaced by the
following:
(i) "Seller agrees to file a preliminary proxy statement
pursuant to Section 14(a) of the Securities Exchange Act
of 1934 (the "Proxy Statement") with the Securities
Exchange Commission ("SEC") for the purpose of soliciting
the Limited Partner Approval by the close of business on
December 31, 1999. Seller agrees to use reasonable
efforts to establish contact with the SEC to ascertain
the status of the filing on or before January 12, 2000.
Seller, promptly after any communications with the SEC
and in any event on or before January 12, 2000, shall
advise Buyer by written notice given by facsimile (the
"SEC Notice") of the status of the filing and whether the
SEC has indicated it will review and/or comment on the
Proxy Statement. Buyer shall have the right to terminate
this Agreement by notice given to Seller within two (2)
business days of its receipt of a SEC Notice stating that
the SEC intends to review and/or comment on the Proxy
Statement (a "Yes-Review SEC Notice"), in which event
this Agreement shall terminate and the Initial Earnest
Money shall be returned to Buyer, but Buyer shall have no
right to receive the Break-Up Fee.
(ii) If (i) the SEC Notice sets forth that the SEC has
indicated that it will not review and/or comment on the
Proxy Statement or (ii) Seller has determined that the
SEC has waived its right to do so (collectively, a "No-
Review SEC Notice"), Buyer shall have the right to
deposit the Additional Earnest Money with Seller, in
which event Seller shall mail the Proxy Statement to the
Limited Partners within two (2) business days of receipt
of the Additional Earnest Money, it being understood
that, if Buyer receives a No-Review SEC Notice on
January 12, 2000 and immediately thereafter wires the
Additional Earnest Money, the mailing shall take place on
January 14, 2000.
(iii) If Buyer receives a Yes-Review SEC Notice, but Buyer
does not elect to terminate this Agreement pursuant
to Section II.3(b)(i) or otherwise waives in writing
its right to terminate, Seller shall promptly
proceed to use reasonable efforts to complete the
SEC review process and, provided that Buyer has
deposited the Additional Earnest Money with Seller,
thereafter mail the Proxy Statement and use
reasonable efforts to solicit the Limited Partner
Approval.
(iv) Without limiting Seller's reasonable efforts obligations
in clauses (ii) and (iii) above, Seller shall (I) during
the SEC review process, prepare printing labels and cause
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the Proxy Statement to be "printer ready"; (II) cause the
Proxy Statement to provide for a proposed special meeting
of the Limited Partners by no later than February 7, 2000
(assuming a Proxy Statement mailing on January 14, 2000)
and for response by facsimile transmission; (III) retain
a proxy solicitation firm which shall at a minimum
provide the following services: (A) initial call to
every Limited Partner within three (3) business days
after the mailing is made; (B) follow up calls every four
(4) days thereafter; and (C) forwarding another Proxy
Statement by express mail or other national prepaid
overnight delivery service if the calls indicate that a
Proxy Statement has not been received by such Limited
Partner; and (IV) keep Buyer advised of the solicitation
process and, in connection therewith, advise Buyer
regarding the Limited Partner vote count on a daily basis
commencing February 1, 2000.
(v) Seller shall have the right from time to time to extend
the Scheduled Closing Date up to sixty (60) days after
the Scheduled Closing Date (prior to any extensions
thereof) (the "LP Outside Date") pending receipt of
Limited Partner Approval. In the event Limited Partner
Approval has not been obtained by the LP Outside Date
(TIME OF THE ESSENCE with respect thereto), either Seller
or Buyer may terminate this Agreement and in such event
Seller shall promptly (i) cause the Earnest Money to be
returned to Buyer and (ii) deliver the Break-Up Fee to
Buyer, which obligation shall be deemed an obligation
that survives the termination of the Agreement."
6. Section III.2 is hereby amended by adding the following:
"(g) Employees. Seller does not have any employees at the
Property.
(h) Notices from Anchor Tenants. Seller has not received
written notice from Sears, Roebuck and Co., Leggett of
Maryland Inc. or Montgomery Ward & Co., Incorporated
(collectively, the "Major Tenants"), that a Major Tenant has
exercised the right pursuant to such tenant's Space Lease to
vacate its demised premises, cease its present business
operations or terminate its Space Lease or given any written
indication of its desire to do so. Notwithstanding the
foregoing, it is understood and agreed that if this
representation is untrue as of, or at any time prior to the
Closing, Buyer shall have the rights afforded to Buyer set
forth in the Agreement for a breach of a representation, but
in no event shall Buyer have any right or claim to the Break-
Up Fee."
7. Section III.2(b) is hereby supplemented by adding the
following thereto:
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"Without limiting the generality of the foregoing, Seller
hereby represents and warrants that the sole management and
leasing contract (the "Management Contract") for the Property
is with Insignia, which Management Contract, together with all
obligations thereunder, will be terminated as of the Closing
Date and Buyer shall have no obligations in respect of said
Management Contract or the termination thereof, except for the
brokerage commissions in respect of the potential tenants
listed on Schedule 3 attached hereto, provided that such
leases are executed at any time prior to thirty (30) days
after the Closing Date."
8. Section III.3(d) is hereby supplemented to provide that Seller
agrees that it will continue to use Buyer as a consultant in respect of
the marketing and leasing of the Property and in connection therewith
shall institute a procedure for regular weekly meeting and frequent
telephone consultations with Buyer with respect to (i) the marketing
efforts to secure prospective tenants for the Property, (ii) all
renewals, extensions and space options of present tenants and (iii)
during the early negotiation period with any prospective tenants, the
(I) economic terms of the proposed transaction, such as the Fixed Rent,
any additional rent, TI Costs and term of lease, and (II) any design and
location issues.
Section III.3 is modified by adding the following at the end
thereof:
(i) "In consideration of Buyer's efforts to negotiate an
assumption of the Third Party Loan in connection with the
Transaction, and in order to more efficiently address the
thirty (30) day prepayment notice period (the "Prepayment
Notice Period") under the Third Party Loan Documents,
Seller shall use reasonable efforts to obtain a written
waiver from Lender of the Prepayment Notice Period (or a
written agreement reducing same)."
9. Section IV.1.(e)(ii) is hereby supplemented to provide that
attached hereto as Schedule 1 is to Seller's knowledge a list of all the
environmental reports in Seller's possession. True, correct and complete
copies have been delivered to Buyer.
10. Section V.1(g) is hereby further amended by deleting clause
(iii) thereto and substituting the following:
"(iii) Seller shall pay to Buyer a break-up fee (the
"Break-Up Fee") in an amount up to $300,000, calculated as
follows: (I) up to $200,000 for general due diligence costs
and (II) the balance for any costs incurred by Buyer in
obtaining financing for its purchase of the Asset, including,
without limitation, lender's fees, commitment fees, reasonable
attorneys' fees and the costs of any professional reports
required by its lender."
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11. Section V.2(f) of the Agreement is hereby supplemented by
adding the following:
"Seller hereby agrees that the information in the executed
Tenant Estoppel Certificates required to be delivered by
Seller pursuant to this Section V.2(f) must (i) be in the form
attached hereto as Schedule 2 which is substituted for Exhibit
G (other than as provided below with respect to Major
Tenants), (ii) substantially conform to the information set
forth in the Asset File, (iii) not modify the attached form of
tenant estoppel attached hereto in any material way (unless
such modification has been added to conform to information in
the Asset File) and (iv) be dated no earlier than thirty (30)
days prior to the Scheduled Closing Date ('Conforming Tenant
Estoppel Certificates'). If any Tenant Estoppel Certificate
is not a Conforming Tenant Estoppel Certificate, Buyer shall
so notify Seller and Seller may deliver a Seller Estoppel in
lieu thereof containing the information which would have
otherwise been included in the Conforming Tenant Estoppel
Certificate, provided, however, delivery of a tenant estoppel
certificate from all Major Tenants, in the form required by
such Major Tenant's lease and otherwise being a Conforming
Tenant Estoppel Certificate, shall be a pre-condition to
Buyer's obligation to close on the purchase of the Asset. If
the required number of Conforming Tenant Estoppel Certificates
(including estoppel certificates from Major Tenants as
required by the foregoing sentence) are not received by the
Scheduled Closing Date, Seller shall be entitled to extend the
Scheduled Closing Date for an additional fifteen (15) days in
order for Seller to satisfy its obligations with respect
thereto (TIME OF THE ESSENCE with respect to Seller's
obligation to close after such extension unless Limited
Partner Approval has not been obtained and subject to any
extensions permitted under Section VIII.5.)"
12. Section VII.2 is hereby deleted and replaced by the following:
"(a) The Buyer confirms to the Seller that Buyer has
conducted a detailed inspection of the Asset File, has made
multiple site visits and in certain instances consulted with
third party professionals in satisfying itself that the
Property is appropriate for Buyer's acquisition. In addition,
Buyer has satisfied itself with respect to matters relating to
environmental Phase I audits and engineering analysis and has
conducted such tests, examination and studies of the Property
as Buyer deems necessary or appropriate and has examined all
applicable records relating to the income, operation and
maintenance of the Property and has determined the compliance
of the Property with applicable laws and regulations,
including, without limitation, zoning, building, land use and
environmental protection laws.
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(b) Buyer shall have the absolute right to terminate its
obligations hereunder on or before the Funding Expiration Date
(5:00 p.m. E.S.T.) unless Buyer has received an Approved Met
Life Commitment by such date. If such notice is given on or
before 5:00 p.m. E.S.T. on the Funding Expiration Date, then
this Agreement shall terminate and neither Seller nor Buyer
shall have any further obligation hereunder, however, Seller
shall retain the Initial Earnest Money. If such notice is not
given and Buyer has not already deposited the Additional
Earnest Money, Buyer covenants and agrees to deposit the
Additional Earnest Money within two (2) business days of its
receipt of the Approved Met Life Commitment, but no later than
two (2) business days after the Funding Expiration Date. If
such deposit is not made within such two (2) business day
period, TIME OF THE ESSENCE with respect to such deposit, (i)
this Agreement shall be deemed terminated and (ii) Seller
shall be entitled to retain the Initial Earnest Money."
13. Section IX.1 is hereby amended by deleting clause (ii) of sub-
section (c) thereof and modifying said Section IX.1 to delete any
reference to Buyer's obligation to pay fees, costs and transfer taxes in
respect of any portion of the Purchase Price that is in excess of
$33,500,000.
14. Sections X.1 and X.2 are hereby modified to provide that,
inasmuch as Caldor and CVS Pharmacy are significantly in arrears with
respect to the payment of Fixed Rents and/or Overage Rent due and payable
in respect of the premises occupied by such tenants (the "Rent Arrearage
Amounts"), the parties agree that Buyer shall (i) be under no obligation
to deliver any Rent Arrearage Amounts in respect of such tenants and (ii)
not be accountable to Seller for any amounts due and payable from such
tenants for the period prior to the Closing Date and Seller waives any
right to further pursue collection of any Rent Arrearage Amounts in
respect of such tenants in connection therewith. Seller further
acknowledges that any Fixed Rents or Overage Rent collected by Buyer
after the Closing Date from tenants who have exercised their so-called
"co-tenancy rights" under their respective leases (or who have otherwise
negotiated the right to pay reduced rent) shall be similarly excluded
from the provisions of Sections X.1 and X.2.
15. Section X.7(c) is hereby modified to provide that the non-
binding letters of intent for the proposed leases with The Gap and Old
Navy have been approved by Buyer, but that the form of lease to be
executed and delivered in connection therewith has not yet been submitted
to Buyer. If the Space Leases for The Gap and Old Navy are approved by
Buyer, at Closing Buyer shall assume the obligation to pay and/or
reimburse Seller for the paid portion of the TI Costs in connection with
such Space Leases.
16. Section X.11 is hereby deleted.
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17. Section XI.2 is modified by deleting clause (iv), moving
the "and" from in front of clause (iv) to in front of clause (iii) and
adding the following:
"Notwithstanding anything to the contrary in this
Section, Buyer's liability for all matters occurring
prior to the Closing Date shall in no event exceed the
Initial Earnest Money (reduced to $150,000 as provided
herein) prior to the Funding Expiration Date and the
Earnest Money subsequent thereto."
18. The Survival Period defined in Section XI.3 shall be
extended to six (6) months after the Closing Date.
19. Section XIII.1(b) is hereby modified by adding the
following at the end thereof: "or the termination of this Agreement
prior to Closing pursuant to terms hereof."
20. Section XIV.6 is hereby modified by deleting the first
sentence thereof and amending the second sentence to provide that Buyer
may also assign the Agreement to unaffiliated third parties, provided
that Buyer will continue to remain primarily liable under the Agreement
notwithstanding any such assignment.
21. Seller acknowledges and agrees that (i) Buyer is
presently contemplating an assumption of the Third Party Loan as part of
its financing strategy for the purchase of the Asset, (ii) in connection
therewith, there may be a restructuring of the Third Party Loan
consistent with the current economic state of the Property and its
tenancies (which restructuring shall only be applicable to Buyer and
shall be effective from and after the date that Buyer assumes the Third
Party Loan), (iii) such discussions are an appropriate part of Buyer's
due diligence and (iv) Buyer is entitled to disclose to Lender Buyer's
present financial assessment of the Property, Buyer's business plans, any
engineering and environmental reports and any other reports, documents or
other information obtained or created by Buyer in respect of the Property
or the proposed financing. Seller agrees, at no expense to it, and
without liability, to cooperate with Buyer in connection with Buyer's
efforts to negotiate and restructure the Third Party Loan and, in respect
of the foregoing and at Buyer's request from time to time, Seller will
participate in meetings and other negotiations with the holder of the
Third Party Loan relating thereto, provided, however, in no event shall
Seller be in any way responsible or liable with respect to the outcome of
such efforts; provided, however, no such amendment or restructuring shall
be in effect until and unless Closing occurs. Buyer agrees to keep
Seller informed regarding the status of its negotiations with Lender.
22. Except as expressly set forth in this Amendment, the
parties hereto ratify and confirm all of the terms and provisions of the
Agreement.
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23. This Amendment may be executed in counterparts, each of
which shall be deemed an original and all of which together, shall be
deemed one Agreement.
24. This Amendment shall be governed and construed in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties have executed this
Amendment as of the day and year first above written.
SELLER:
SHOPCO MALLS L.P.
By: Shopco Regional Malls, L.P.
By: Regional Malls, Inc.
By: ----------------------
Name:
Title:
BUYER:
CRANBERRY PROPERTIES MM CORP.
By: -------------------------------
Name:
Title:
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By: -------------------------------
Name:
Title:
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SCHEDULE 1
LIST OF ENVIRONMENTAL REPORTS IN SELLER'S POSSESSION
Environmental Site Assessment of Cranberry Mall by EMG
as reissued on 2/8/99.
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SCHEDULE 2
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TENANT ESTOPPEL CERTIFICATE
Metropolitan Life Insurance Company
-------------------------------
-------------------------------
-------------------------------
Re: Lease ("Lease") dated ----------------, 199--
of -------------- square feet of space known as Suite No.
-------, in --------------------------, located at
---------------------------------------, City of
----------------, ------------------- County, ---------
------------- ("Premises") between ---------------------
---------------------- ("Landlord") and --------------------
----------------------------- ("Tenant") as Tenant. INCLUDE
ANY MODIFICATIONS OR AMENDMENTS
Ladies and Gentlemen:
1. The term of the Lease commenced on ---------------------,
199--, and will expire on -------------------, 199--.
2. The Lease as described above constitutes the entire
agreement of Landlord and Tenant with respect to the Premises, is true,
correct and complete, has not been modified or amended except as
described above, and is in good standing and in full force and effect.
3. Tenant has commenced payment of monthly fixed rent under
the Lease in the amount of $-------------, and such rent has been paid
for the period ending on -----------------, 199--.
4. Tenant has paid a security deposit under the Lease in
the amount of $------------.
5. Under the Lease, Tenant is required to pay as additional
rent its share of increases in taxes, operating expenses and common area
maintenance charges, if applicable, commencing ------------------,
199--.
6. As far as is known to Tenant, there are no defaults of
Landlord under the Lease and there are no existing circumstances which
with the passage of time, or notice, or both, would give rise to a
default under the Lease.
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7. Construction of all tenant improvements required under
the Lease has been satisfactorily completed and Tenant has accepted and
is occupying the Premises.
8. Tenant has not generated, stored, handled or otherwise
dealt with any hazardous or toxic waste, substance or material, or
contaminants, oil, pesticides, radioactive or other materials on the
Premises, the removal of which is required or the maintenance of which is
prohibited, regulated or penalized by any local, state or federal agency,
authority or governmental unit, nor will it do so in the future.
9. Tenant has no charge, lien, claim of set-off or defense
against rents or other charges due or to become due under the Lease or
otherwise under any of the terms, conditions or covenants contained
therein.
10. Tenant has not received any concession (rental or
otherwise) in connection with renting the Premises as follows:
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
11. Tenant has received no notice from any insurance company
of any defects or inadequacies in the Premises, or any part thereof,
which would adversely affect the insurability of the Premises.
12. There are no pending suits, proceedings, judgments,
bankruptcies, liens or executions against Tenant or any affiliate of
Tenant.
13. Tenant does not have any rights or options to purchase
the building in which the Premises are located.
14. Tenant does not have any rights or options to renew the
Lease or to lease additional space in any building owned by the Landlord
except as follows:
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
15. Tenant has no knowledge of any assignment by Landlord of
its interest in the Lease other than to MetLife.
16. From and after the date hereof, Tenant will not pay any
rent under the Lease more than thirty (30) days in advance of its due
date.
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17. From and after the date hereof, so long as there shall
be any assignment, the Lease to MetLife, or any successor thereto, Tenant
will not surrender or consent to the modification of any of the terms of
the Lease, nor to the termination thereof by Landlord, nor seek to
terminate the Lease by reason of any act or omission of Landlord until
Tenant shall have given written notice of such act or omission to the
holder of the note or other obligation secured or to be secured by a
security instrument upon the property of which the Premises is a part (at
such holder's last address furnished Tenant) and until a reasonable
period of time shall have elapsed following the giving of such notice,
during which period such holder shall have the right, but not the
obligation, to remedy such act or omission.
18. Upon written notice of the default of Landlord under any
of the loan documents held by MetLife and assignment of the Lease by
Landlord to MetLife, Tenant will thereafter pay rent and other sums to
MetLife (or to the party designated by MetLife) in accordance with the
terms of the Lease and following any foreclosure, Tenant shall recognize
MetLife as the Landlord under the Lease.
19. The certifications contained herein are made in the
knowledge that MetLife, as a prospective Mortgagee of the Premises, will
place substantial reliance thereon.
Very truly yours,
-----------------------------------
[Name of Tenant]
By: ------------------------------
Title:
Date: ----------------------------
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SCHEDULE 3
----------
BROKERAGE COMMISSIONS DUE TO INSIGNIA
Tenant Square Footage Broker
------ -------------- ------
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Dates Referenced Herein and Documents Incorporated by Reference
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