Agreement of Sale And Purchase And Joint Escrow Instructions

AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROW INSTRUCTIONS
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THIS AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of this 5th day of October, 2005, by and between PASSCO COLIMA, LLC, a Delaware limited liability company, PASSCO PHM, LLC, a Delaware limited liability company, PHM-1, LLC, a Delaware limited liability company, PHM-2, LLC, a Delaware limited liability company, PHM-3, LLC, a Delaware limited liability company, PHM-4, LLC, a Delaware limited liability company, PHM-5, LLC, a Delaware limited liability company, PHM-6, LLC, a Delaware limited liability company, PHM-7, LLC, a Delaware limited liability company, PHM-8, LLC, a Delaware limited liability company, PHM-9, LLC, a Delaware limited liability company, PHM-10, LLC, a Delaware limited liability company, PHM-11, LLC, a Delaware limited liability company, PHM-12, LLC, a Delaware limited liability company, PHM-13, LLC, a Delaware limited liability company, PHM-14, LLC, a Delaware limited liability company, PHM-15, LLC, a Delaware limited liability company, PHM-16, LLC, a Delaware limited liability company, PHM-17, LLC, a Delaware limited liability company, PHM-18, LLC, a Delaware limited liability company, PHM-20, LLC, a Delaware limited liability company, PHM-21, LLC, a Delaware limited liability company, PHM-23, LLC, a Delaware limited liability company, PHM-24, LLC, a Delaware limited liability company, PHM-25, LLC, a Delaware limited liability company, PHM-26, LLC, a Delaware limited liability company, PHM-27, LLC, a Delaware limited liability company, PHM-28, LLC, a Delaware limited liability company and PHM-29, LLC, a Delaware limited liability company, each as tenants in common(referred to herein collectively as the "Seller"), and (B) GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership (the "Buyer"). In consideration of the mutual agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller agrees to sell, and Buyer desires to purchase, the Property described below, for the Purchase Price and upon the terms and conditions set forth below:


ARTICLE 1
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CERTAIN DEFINITIONS AND FUNDAMENTAL PROVISIONS
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This Article 1 sets forth certain definitions and fundamental provisions for purposes of this Agreement.


1.1 "Buyer's Address" means:


Glimcher Properties Limited Partnership
150 East Gay Street
Columbus, OH 43215
Attn: General Counsel
Facsimile: 614-621-8863
Telephone No.: 614-887-5621


1.2 "Closing Date" means thirty (30) days from the expiration of the Inspection Period (or any other date which is approved in writing by both Buyer and Seller) (as such date may be extended in accordance with the provisions of Section 3.6 and Section 3.7 hereinbelow).


1.3 "Deposit" means collectively: (a) Two Million Dollars ($2,000,000.00) (the "Initial Deposit"), and (b) One Million Dollars ($1,000,000.00) (the "Additional Deposit"). The Deposit shall be increased by all interest actually accrued thereon while held by the Escrow Holder.


1.4 "Effective Date" means the date of mutual execution of this Agreement (which date shall be confirmed in writing to the Buyer and the Seller by the Escrow Holder upon receipt of fully executed copies of this Agreement).


1.5 "Escrow Holder" means Chicago Title Company, whose address is:


Chicago Title Company
16969 Von Karman Avenue, Suite 200
Irvine, California 92606
Attn: Lorri Beasley
Facsimile: (949) 263-0536
Telephone No.: (949) 263-2544


1.6 "Inspection Period" means the period commencing on the Effective Date and ending at 5:00 p.m., P.S.T., on the date that is thirty (30) calendar days following the Effective Date.


1.7 "Property" means, collectively, the Real Property, and all of Seller's right, title and interest, if any, in the Contracts, the Intangible Property, the Leases, the Personal Property and the Security Deposits, as such terms are defined below.


1.7.1 "Real Property" means the Land and the Improvements consisting of an indoor mall commonly known as "Puente Hills Mall", and located at 1600 South Azusa Avenue, City of Industry, County of Los Angeles, California.


1.7.2 "Land" means that certain land more particularly described on Exhibit "A" attached hereto, together with all right, title and interest of Seller in and to all easements in or upon such land and all other rights and appurtenances belonging or in anywise pertaining to such land.


1.7.3 "Improvements" means all structures, improvements and fixtures located on the Land.


1.7.4 "Contracts" means all assignable service, supply, maintenance and construction contracts, if any, relating to the Real Property or Personal Property.


1.7.5 "Intangible Property" means all assignable intangible personal property, if any, owned by Seller on the Closing Date, including the right to use the current names, logos, trademarks and trade names of the Real Property (but not of the Seller or its affiliates, parents or subsidiaries) and all licenses, permits and certificates of occupancy issued by governmental authorities relating to the use, maintenance, occupancy and/or operation of the Real Property and Personal Property.


1.7.6 "Leases" means any tenant leases directly affecting the Real Property on the Closing Date.


1.7.7 "Personal Property" means all fixtures, furniture, carpeting, draperies, appliances, building supplies, equipment, machinery, inventory, and other tangible items of personal property owned by Seller and affixed, attached to, placed or situated upon the Real Property and used in connection with the ownership of the Real Property. Personal Property does not include any items of personal property which are either (a) leased to Seller, or (b) owned by third parties or Tenants.


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1.7.8 "Security Deposits" means all refundable security deposits of tenants at the Property (the "Tenants"), if any, held by and in the possession of Seller.


1.8 "Purchase Price" means One Hundred Seventy Million Five Hundred Thousand Dollars ($170,500,000.00).


1.9 "Seller's Address" means: With copies to:


c/o Passco Real Estate Enterprises, Inc. Bouza, Klein & Goosenberg
96 Corporate Park, Second Floor 950 South Flower Street,
Irvine, California 92606 Suite 100
Attn: Mr. Gary L. Smith Los Angeles, California 90015
Facsimile: (949) 442-2490 Attn: Michael J. Kaminsky
Telephone No.: (949) 442-1000 Facsimile: (213) 488-1316
Telephone No.: (213) 488-0675


1.10 "Title Company" means Flager Title Company, whose address is:


Flager Title Company
5 Harvard Circle, Suite 110
West Palm Beach, FL 33409
Attn: Roger Gamblin
Facsimile: 561-686-5039
Telephone No.: 561-687-1300


ARTICLE 2
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CONSIDERATION
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2.1 Purchase Price. The Purchase Price to be paid by Buyer to Seller for the sale and conveyance of the Property is specified in Section 1.8, and shall be payable (after accounting for the entire Deposit and the outstanding principal balance of the "Greenwich Capital Loan" [as hereinafter defined]) to Seller at the closing of the transaction contemplated hereby ("Closing") by wire transfer in immediately available federal funds, which funds must be delivered in a manner to permit Escrow Holder to deliver good funds to the Seller or its designee on the Closing Date. It is estimated that the balance of the Greenwich Capital Loan is currently $89,136,443.00.


2.2 Deposit. On or prior to the date which is two (2) business days following the Effective Date, Buyer shall deposit with Escrow Holder, by wire transfer of immediately available federal funds, the Initial Deposit. If Buyer does not properly terminate this Agreement on or before the expiration of the Inspection Period, Buyer shall, prior to the expiration of the Inspection Period, deposit with Escrow Holder, by wire transfer of immediately available federal funds, the Additional Deposit. The Initial Deposit shall remain refundable until the expiration of the Inspection Period. The Additional Deposit shall be non-refundable upon deposit into Escrow (except in the event of Seller's default under the Agreement). Upon receipt, Escrow Holder shall deposit the Initial Deposit into an interest-bearing money market account maintained at a federally insured state or national bank located in California. All interest earned shall be reported to the Internal Revenue Service as income of Buyer. Buyer shall promptly execute all forms reasonably requested by Escrow Holder in connection with depositing the Initial Deposit in an interest-bearing account. Upon the Buyer's delivery of the Additional Deposit, the entire Deposit (including the Initial Deposit and the Additional Deposit) shall become non-refundable (except in the event of Seller's default under the Agreement).


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2.3 Disposition of Deposit. If the transaction contemplated hereby is consummated in accordance with the terms and provisions hereof, the entire Deposit shall be credited against the Purchase Price at Closing. If this Agreement is terminated by either Seller or Buyer as specifically set forth in this Agreement, Escrow Holder shall deliver the entire portion of the Deposit then held by Escrow Holder to the party hereto entitled to same pursuant to the applicable terms of this Agreement pertaining to such termination.


ARTICLE 3
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CONDITIONS PRECEDENT; INSPECTION AND TITLE
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3.1 Buyer's Inspections.


3.1.1 Inspections, Tests and Studies. Seller shall permit Buyer and its authorized agents and representatives to enter upon the Real Property at all reasonable times (and upon prior written notice to Seller) during normal business hours to inspect and conduct tests and studies of the Real Property. Buyer shall notify Seller, in writing, of its intention, or the intention of its agents or representatives, to enter the Real Property at least forty-eight (48) hours prior to such intended entry, and obtain Seller's prior written consent to any inspections, studies and tests to be conducted (which consent shall not be unreasonably withheld). At Seller's option, Seller may be present for any inspection, test or study. Buyer shall bear the cost of all inspections, tests and studies. Notwithstanding the foregoing or anything herein to the contrary, in no event shall Buyer (i) make any intrusive physical testing (environmental, structural or otherwise) at the Property (such as soil borings, water samples and the like) without Seller's prior written consent, or (ii) contact any Tenant without Seller's prior written consent.


3.1.2 Buyer's Delivery of Information to Seller. As additional consideration for the transaction contemplated herein, Buyer agrees that, at Buyer's expense, it will provide Seller, promptly following the receipt of same by Buyer, copies of any and all reports, tests, studies and test results obtained by Buyer or prepared by or on behalf of Buyer with respect to the Property, including, without limitation, those involving the structural, geologic, environmental or other condition of or relating to the Property (collectively, "Buyer's Information"). Seller hereby acknowledges that Buyer has not made and does not make any warranty or representation regarding the truth or accuracy of any Buyer's Information, except as expressly set forth in Section 5.6 of this Agreement.


3.2 Document Review.


3.2.1 Documents. Within five (5) business days following the Effective Date, Seller shall deliver to Buyer the documents and materials regarding the Property set forth on Exhibit "E" hereto, to the extent the same are in Seller's possession. In addition, during the Inspection Period and following at least forty-eight (48) hours' prior written notice from Buyer, Seller agrees to allow Buyer, its authorized agents or representatives, at Buyer's expense, to inspect at Seller's offices in Irvine, California, and make copies of any other documents and property records (other than the Excluded Documents, as defined below) relating exclusively to the Seller's ownership and operation of the Property, but only if and to the extent such documents and property records are in Seller's possession. All documents and property records delivered to, made available to, copied and/or reviewed by Buyer pursuant to this Section 3.2 (including the Leases and Contracts, if any) shall sometimes be referred to collectively herein as the "Documents". Notwithstanding anything in this Agreement to the contrary, Seller shall have no obligation to make available to Buyer, and Buyer shall have no right to inspect or make copies of, any of the Excluded Documents. As used herein, "Excluded Documents" shall mean any documents involving either Seller's financing or refinancing of the Property, any purchase and escrow agreements and correspondence pertaining to Seller's


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acquisition of the Property, any documents pertaining to the potential acquisition of the Property by any past or prospective purchasers, any third party purchase inquiries and correspondence, appraisals of the Property, internal budgets or financial projections, and any other internal documents.


3.2.2 Proprietary Information. Buyer acknowledges and agrees that the Documents are proprietary and confidential in nature and have been or will be made available to Buyer solely to assist Buyer in determining the feasibility of purchasing the Property. Buyer agrees not to disclose the Documents or any of the provisions, terms or conditions thereof, nor shall Buyer disclose any of Buyer's Information, to any party outside of Buyer's organization except (i) to Buyer's attorneys, accountants, lenders, prospective lenders, investors and/or prospective investors (collectively, the "Permitted Outside Parties"), or (ii) as may be required by law. Buyer further agrees to notify all Permitted Outside Parties that the Documents and Buyer's Information are to be kept confidential and not disclosed to third parties. In permitting Buyer and the Permitted Outside Parties to review the Documents to assist Buyer, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either expressed or implied, have been offered, intended or created by Seller and any such claims are expressly rejected by Seller and waived by Buyer.


3.2.3 Return of Documents. Buyer shall return to Seller all of the Documents and any and all copies Buyer has made of the Documents, together with all of Buyer's Information not previously delivered to Seller, at such time as this Agreement is terminated for any reason, which obligation shall survive such termination.


3.2.4 No Representation or Warranty By Seller. Buyer acknowledges that many of the Documents were prepared (a) by third parties other than Seller, and/or (b) prior to Seller's ownership of the Property. Buyer further acknowledges, confirms, and agrees that, except as expressly set forth in Section 5.6 of this Agreement: (i) neither Seller nor any of its partners, agents, employees or contractors has made any warranty or representation regarding the truth, accuracy or completeness of any of the Documents or the source(s) thereof, and Buyer has not relied on the truth or completeness of the Documents, and (ii) Seller has not undertaken any independent investigation as to the truth, accuracy or completeness of the Documents and is providing the Documents or making the Documents available to Buyer solely as an accommodation to Buyer.


3.3 Title. Promptly following Effective date, the Title Company shall deliver to Buyer: (i) a preliminary title report (the "PTR") for the Real Property, issued by the Title Company; and (ii) a photocopy of all documents ("Title Documents") describing all Schedule B title exceptions shown on the PTR. Buyer shall have until the last day of the Inspection Period to satisfy itself regarding the condition of title to the Property. Buyer's delivery of the Additional Deposit to the Escrow Holder shall conclusively be deemed to constitute Buyer's acceptance of all title matters relating to the Property, including, without limitation, all exceptions to title shown on the PTR and all matters (if any) disclosed by any survey prepared by or on behalf of Buyer, other than matters first appearing of record after the date of the PTR. Notwithstanding the preceding, but subject to the provisions set forth in Section 3.7 hereinbelow, at the Closing, Seller shall pay in full (or cause to be paid in full) all loans which (a) have been obtained by Seller, and (b) are recorded against the Property.


3.4 Inspection Obligations.


3.4.1 Buyer's Responsibilities. In conducting any investigations, inspections, tests and studies of the Property and/or Documents, Buyer and its agents and representatives shall: (i) comply with all terms of the Leases regarding entry rights and obligations of third parties and not disturb the tenants or interfere with their use of the Property pursuant to the Leases; (ii) not interfere with the operation, use and maintenance of the Property; (iii) not damage any part of the Property or any personal property owned or held by any


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tenant or any third party; (iv) not injure or otherwise cause bodily harm to Seller or any of its partners, agents, contractors and employees, or any tenant or other third party; (v) maintain commercial general liability (occurrence) insurance in the amount of One Million Dollars ($1,000,000) and on terms otherwise satisfactory to Seller covering any accident arising in connection with the presence of Buyer, its agents and representatives on the Real Property and shall deliver a certificate of insurance verifying such coverage to Seller prior to any entry upon the Real Property; (vi) promptly pay when due the costs of all tests, investigations, studies and examinations done with regard to the Property; (vii) not permit any liens to attach to the Property by reason of the exercise of its rights hereunder; (viii) fully restore the Real Property and Personal Property to the condition in which the same was found before any such inspections, tests or studies were undertaken; and (ix) not reveal or disclose any information obtained prior to Closing concerning the Property to anyone outside Buyer's organization except in accordance with the confidentiality standards set forth in Section 3.2 above.


3.4.2 Buyer's Indemnity. Buyer shall indemnify, defend, protect and hold Seller and its agents, employees and contractors harmless from and against any and all liens, claims, losses, liabilities, damages, costs, expenses, causes of action and expenses (including reasonable attorneys' fees and court costs) arising out of (i) Buyer's inspections, tests and/or studies of the Property and Documents, and/or (ii) any violation by Buyer of the provisions of this Section 3. Notwithstanding any provision to the contrary contained in this Agreement, Buyer's obligations and indemnity set forth in Section 3.2 and this Section 3.4 shall survive the Closing or earlier termination of this Agreement and shall not be merged with the Deed (as defined below) or any other Closing documents.


3.5 Additional Deposit Delivery; Termination. In the event that, on or prior to the expiration of the Inspection Period, Buyer elects to approve all matters relating to the Property, Buyer shall deliver the Additional Deposit to the Escrow Holder. Buyer's delivery of the Additional Deposit to the Escrow Holder shall be conclusive evidence of Buyer's approval of each and every aspect of the Property, including, without limitation, (a) the structural, physical and environmental condition of the Property, (b) all Property Leases and Contracts, (c) Buyer's financial analyses of the Property, and (d) all title and survey matters; provided, however, that the foregoing shall not release Seller from liability for the breach of any of the representations and/or warranties of Seller pursuant to Section 5.6 of this Agreement. If, however, Buyer shall fail to deliver the Additional Deposit to the Escrow Holder on or prior to the last day of the Inspection Period, then this Agreement and the Escrow shall automatically terminate. Upon such termination, neither Seller nor Buyer shall have any further obligation or liability to the other hereunder (except as otherwise specifically set forth in this Agreement), and the Initial Deposit (plus all interest actually accrued thereon while held by Escrow Holder) shall be returned to Buyer. Upon Buyer's delivery of the Additional Deposit to Escrow, the entire Deposit shall become and remain non-refundable (except in the event of Seller's default hereunder).


3.6 Estoppel Certificates. Within five (5) days after the expiration of the Inspection Period, Seller shall forward an estoppel certificate to all Property tenants, substantially in the form of Exhibit "B" attached to this Agreement (or the agreed form of estoppel that is attached to a Property tenant's lease) containing information that is consistent with the information set forth in the applicable tenant lease, and thereafter use reasonable efforts to obtain, prior to the Closing Date, executed tenant estoppel certificates (the "Estoppel Certificates") from all of the then-current Property tenants. Notwithstanding anything to the contrary contained in this Agreement, in no event shall Seller be in default hereunder for its failure to obtain all or any of the Estoppel Certificates, provided, however, that it shall be a condition precedent to Buyer's obligation to purchase the Property (which may be waived by Buyer) that prior to the Closing Date, Seller deliver to Buyer: (a) an executed Estoppel Certificate for tenants occupying not less than seventy (70%) of the inline rentable square footage of the Property; and (b) an executed Estoppel Certificate from eighty percent (80%) of the Major Anchor Tenants (defined as any tenant leasing 19,000 square feet or more of floor space on the Property) (the "Required Tenant Estoppels"). Notwithstanding anything herein to the contrary, in the event that Seller has been unable to obtain (and deliver to


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Buyer) the Required Tenant Estoppels at least five (5) days prior to the Closing Date, and Buyer is not willing to waive the Required Tenant Estoppel condition, then Seller shall have the right to delay the Closing Date by up to thirty (30) days in order to attempt to obtain the missing Required Tenant Estoppels.


3.7 Assumption of Greenwich Capital Loan. The Property is currently encumbered by a loan (the "Greenwich Capital Loan") from Greenwich Capital Finance Products, Inc., which has been assigned to LaSalle Bank National Association, as Trustee for the Registered Holders of Greenwich Capital Funding Corp., Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through Certificates, Series 2003-C1 ("Existing Lender"), evidenced by a promissory note dated May 9, 2003 in the original principal amount of Ninety Two Million Dollars ($92,000,000.00) (the "Existing Note"), and secured by a Deed of Trust, Assignment of Rents and Security Agreement dated May 9, 2003 (the "Existing Deed of Trust"). The Existing Note, the Existing Deed of Trust and all other documents executed in connection with the Greenwich Capital Loan are sometimes hereinafter collectively referred to as the "Greenwich Capital Loan Documents." Within twenty-four (24) hours of the Effective Date, Seller shall contact the Existing Lender and request the Existing Lender to start the approval process as quickly as possible. Promptly following mutual execution of this Agreement, Buyer shall apply to the Existing Lender for the assumption of the Greenwich Capital Loan with a release of Seller from any and all obligations under the Greenwich Capital Loan and the Existing Loan Documents, respectively, including any personal guarantees thereunder. Buyer shall diligently pursue and use commercially reasonable efforts to obtain approval of the foregoing assignments, assumptions and releases. Buyer shall keep Seller informed, upon Seller's reasonable written request, as to the progress of the assignment of the Greenwich Loan process. Seller shall fully cooperate with the Existing Lender and Buyer to complete the approval process and shall promptly provide to Buyer and Existing Lender any documents or reports in Seller's possession requested by Existing Lender to review and grant such approval. Buyer shall provide Seller with written confirmation that the Existing Lender has approved the foregoing assignments, assumptions and releases within one (1) business day following receipt by Buyer of such approvals. In the event that Buyer and Existing Lender (or its loan servicer, as applicable) agree on assumption documents as set forth above, then on or prior to the date on which Buyer assumes the Greenwich Capital Loan, Buyer shall pay any assumption fee required by the Existing Lender (or the loan servicer), and Seller shall pay all other costs related to the proposed assumption, including all out-of-pocket costs and expenses incurred by Existing Lender and the loan servicer, which may include, without limitation, attorneys fees and title costs. Notwithstanding anything contained herein to the contrary, Seller and Buyer agree that Seller's obligation to pay the foregoing Existing Lender costs related to the proposed assumption, including all out-of-pocket costs and expenses incurred by Existing Lender and the loan servicer, shall not exceed the aggregate sum of Seventy Five Thousand Dollars ($75,000) and Buyer shall pay any and all other such costs in excess of Seventy Five Thousand Dollars ($75,000). If Buyer fails to obtain Existing Lender's consent to Buyer's assumption of the Greenwich Capital Loan Documents or Buyer disapproves the assumption documents or the Greenwich Capital Loan Documents on or prior to twenty five (25) days following the end of the Inspection Period (the "Loan Assumption Date"), and provided that Buyer (i) is proceeding with good faith to obtain Existing Lender approval to the Buyer's assumption of the Greenwich Capital Loan, and (ii) has provided Seller (prior to the Loan Assumption Date) with a written status report of the progress Buyer has made toward obtaining loan assumption approval, Buyer shall have until thirty (30) days after the Loan Assumption Date (the "Outside Assumption Date") to obtain Existing Lender's consent to Buyer's assumption of the Greenwich Capital Loan Documents and the Closing Date shall be extended for thirty (30) days. However, if, despite using its commercially reasonable good faith efforts, Buyer fails to obtain Existing Lender's consent to Buyer's assumption of the Greenwich Capital Loan Documents or Buyer reasonably disapproves the assumption documents required by the Existing Lender on or prior to the Outside Assumption Date, this Agreement shall terminate automatically on the Outside Assumption Date, in which event the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder (except as otherwise specifically set forth in this Agreement to the contrary). Buyer hereby specifically confirms and acknowledges that if the proposed assumption of the Greenwich Capital Loan is timely approved in accordance with the terms of this Section 3.7, but Buyer


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fails to close the transaction prior to the Closing Date for any reason other than (x) Seller's default hereunder, or (y) Buyer's exercise of any other termination right specifically set forth in this Agreement, B ...