EXHIBIT 2.1
_________________________________________________________________
AGREEMENT OF SALE
between
LAKEWOOD - 9 INVESTORS, L.P.
a New Jersey limited partnership, and
ARC - LAKEWOOD - 9 L.L.C., a
New Jersey limited liability company
(as Seller)
- and -
▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P.
a Delaware limited partnership
(as Buyer)
_________________________________________________________________
Dated: January 21, 1999
Property: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
_________________________________________________________________
AGREEMENT OF SALE
between
LAKEWOOD - 9 INVESTORS, L.P.
a New Jersey limited partnership, and
ARC - LAKEWOOD - 9 L.L.C., a
New Jersey limited liability company
(as Seller)
- and -
▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P.
a Delaware limited partnership
(as Buyer)
_________________________________________________________________
TABLE OF CONTENTS
Page
1. Agreement to Sell and Purchase. . . . . . . . . . . . . . .1
2. Purchase Price. . . . . . . . . . . . . . . . . . . . . . .2
3. Escrow of Deposit . . . . . . . . . . . . . . . . . . . . .2
3.1 Deposit . . . . . . . . . . . . . . . . . . . . .2
3.2 Disbursement. . . . . . . . . . . . . . . . . . .2
3.3 Escrow Agent's Responsibility . . . . . . . . . .3
4. Title . . . . . . . . . . . . . . . . . . . . . . . . . . .3
4.1 Condition of Title. . . . . . . . . . . . . . . .3
4.2 Inability to Convey Title . . . . . . . . . . . .4
5. Closing . . . . . . . . . . . . . . . . . . . . . . . . . .4
5.1 Closing Date. . . . . . . . . . . . . . . . . . .4
5.2 Prorations. . . . . . . . . . . . . . . . . . . .4
5.3 Miscellaneous Closing Costs . . . . . . . . . . .7
5.4 Seller's Delivery Obligations at Closing. . . . .7
5.5 Buyer's Delivery Obligations at Closing . . . . 10
6. Covenants, Representations and Warranties of Seller . . . 10
6.1 Authority . . . . . . . . . . . . . . . . . . . 10
6.2 No Defaults . . . . . . . . . . . . . . . . . . 11
6.3 Leases. . . . . . . . . . . . . . . . . . . . . 11
6.4 Service Contracts . . . . . . . . . . . . . . . 12
6.5 Notices Regarding Physical Condition. . . . . . 12
6.6 Intentionally omitted.. . . . . . . . . . . . . 12
6.7 Notices of Violations . . . . . . . . . . . . . 12
6.8 Assessments . . . . . . . . . . . . . . . . . . 13
6.9 Condemnation. . . . . . . . . . . . . . . . . . 13
6.10 Litigation. . . . . . . . . . . . . . . . . . . 13
6.11 Environmental Disclosures . . . . . . . . . . . 13
6.12 Employees . . . . . . . . . . . . . . . . . . . 14
6.13 Title . . . . . . . . . . . . . . . . . . . . . 14
6.14 Approvals . . . . . . . . . . . . . . . . . . . 14
6.15 Untrue Statements . . . . . . . . . . . . . . . 14
6A. Relocation; Master Lease. . . . . . . . . . . . . . . . . 15
6A.1 China Wok . . . . . . . . . . . . . . . . . . . 15
6A.2 Master Lease. . . . . . . . . . . . . . . . . . 15
6A.3 Post-Closing. . . . . . . . . . . . . . . . . . 15
7. Obligations and Operations Prior to Closing . . . . . . . 16
7.1 Existing Surveys and Reports. . . . . . . . . . 16
7.2 Intentionally omitted.. . . . . . . . . . . . . 16
7.3 Intentionally omitted.. . . . . . . . . . . . . 16
7.4 Maintenance of Operation. . . . . . . . . . . . 16
7.5 Leases and Service Contracts. . . . . . . . . . 16
7.6 Replacements. . . . . . . . . . . . . . . . . . 17
7.7 Liens . . . . . . . . . . . . . . . . . . . . . 17
7.8 Insurance . . . . . . . . . . . . . . . . . . . 17
7.9 Books and Records . . . . . . . . . . . . . . . 17
7.10 Inspections . . . . . . . . . . . . . . . . . . 17
8. Conditions Precedent to Buyer's Obligations . . . . . . . 18
8.1 Inspection. . . . . . . . . . . . . . . . . . . 18
8.2 Estoppel Certificates . . . . . . . . . . . . . 18
8.3 China Wok Rent and Occupancy. . . . . . . . . . 18
8.4 ▇▇▇▇▇▇▇ Bankruptcy. . . . . . . . . . . . . . . 18
8.5 Title Policy. . . . . . . . . . . . . . . . . . 18
8.6 No Material Adverse Change. . . . . . . . . . . 19
8.7 Third Party Approvals . . . . . . . . . . . . . 19
8.8 Representations and Warranties. . . . . . . . . 19
8.9 Compliance by Seller. . . . . . . . . . . . . . 19
8.10 Board Approval. . . . . . . . . . . . . . . . . 19
8.11 Failure of Conditions . . . . . . . . . . . . . 19
9. Damage or Destruction; Condemnation; Insurance. . . . . 20
9.1 Termination . . . . . . . . . . . . . . . . . . 20
9.2 Condemnation; No Termination. . . . . . . . . . 20
9.3 Casualty; No Termination. . . . . . . . . . . . 20
9.4 Disputes. . . . . . . . . . . . . . . . . . . . 21
10. Buyer's Default . . . . . . . . . . . . . . . . . . . . . 21
10A. Seller's Default. . . . . . . . . . . . . . . . . . . . . 21
11. Undertakings by Seller and Buyer. . . . . . . . . . . . . 21
12. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 21
13. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . 22
14. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 23
14.1 Effective Date. . . . . . . . . . . . . . . . . 23
14.2 Headings. . . . . . . . . . . . . . . . . . . . 23
14.3 Parties at Interest . . . . . . . . . . . . . . 23
14.4 Computation of Time . . . . . . . . . . . . . . 23
14.5 Recording . . . . . . . . . . . . . . . . . . . 23
14.6 Waiver. . . . . . . . . . . . . . . . . . . . . 23
14.7 Survival. . . . . . . . . . . . . . . . . . . . 23
14.8 Entire Agreement; Amendments. . . . . . . . . . 24
14.9 Governing Law . . . . . . . . . . . . . . . . . 24
14.10 "As Is" Purchase . . . . . . . . . . . . . 24
14.11 Counterparts . . . . . . . . . . . . . . . 24
14.12 Construction . . . . . . . . . . . . . . . 24
14.13 Partial Invalidity . . . . . . . . . . . . 24
14.14 Prevailing Party . . . . . . . . . . . . . 25
14.15 Time is of the Essence . . . . . . . . . . 25
14.16 Confidentiality. . . . . . . . . . . . . . 25
14.17 Undertakings by Seller and Buyer . . . . . 25
14.18 Buyer's Consultants. . . . . . . . . . . . 25
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") is made as of the
______ day of ______, 1999, by and between LAKEWOOD - 9
INVESTORS, L.P., a New Jersey limited partnership, and ARC -
LAKEWOOD - 9 L.L.C., a New Jersey limited liability company whose
address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(collectively, "Seller"), and ▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P., a
Delaware limited partnership, whose address is ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Pike, Suite 200, Plymouth Meeting, PA
19462 ("Buyer"). (A list of all defined terms used in this
Agreement is set forth in Exhibit "A", attached hereto and made
a part hereof.)
WHEREAS, Seller is the owner of a certain parcel of land,
together with the buildings and improvements thereon erected
("Improvements"), and known as the Lakewood Plaza Shopping
Center, located in the Township of Lakewood, County of Ocean and
State of New Jersey, as more fully described and defined below as
the "Property"; and
WHEREAS, Seller desires to sell the Property, and Buyer
desires to purchase the Property, upon the terms and conditions
set forth in this Agreement.
NOW THEREFORE, in consideration of the covenants and
provisions contained herein and other good and valuable
consideration, and intending to be legally bound hereby, the
parties hereto agree as follows:
a. Agreement to Sell and Purchase. Seller agrees to
sell to Buyer, and Buyer agrees to purchase from
Seller, subject to the terms and conditions of this
Agreement, the following property:
(a) All that certain tract or piece of land situate in
Lakewood Township, Ocean County, New Jersey, as more fully
described by metes and bounds on Exhibit "B" hereto, with
the buildings and other improvements situate thereon; together
with all easements, rights of way, licenses, privileges,
hereditaments and appurtenances, if any, belonging to or inuring
to the benefit of the land, and all right, title and interest of
Seller in and to any land lying in the bed of any highway,
street, road or avenue, opened or proposed, in front of, or
abutting or adjoining, the real property (collectively, the "Real
Estate"); and
(b) All fixtures, equipment, systems, furniture,
furnishings, appliances, supplies and other personal property of
every nature and description, tangible or intangible, attached or
appurtenant to, or located in or on, or used in connection with
the Real Estate, including, but not limited to, the heating, air
conditioning, plumbing, sprinkler, ventilation and all utility
systems, except such as are owned by tenants of the Real Estate,
and any and all rights Seller may have in or to all intangible
property useful in connection with the foregoing or the Real
Estate, including, without limitation, all trademarks, trade
names, contract rights, guarantees, licenses, permits, warranties
and the right to use the name "Lakewood Plaza" (collectively, the
"Personalty"); and
(c) All Leases, as defined in Section 4.1, and all
Service Contracts, as defined in Section 6.4. (The Real Estate,
the Personalty, the Leases and the Service Contracts are
hereinafter collectively referred to as the "Property.")
b. Purchase Price. The aggregate purchase price for
the Property (the "Purchase Price") shall be Twenty-Four Million
Nine Hundred Sixty Thousand Dollars ($24,960,000), which, subject
to the terms and conditions hereinafter set forth, shall be paid
to Seller by Buyer, plus or minus any net cash adjustments made
pursuant to prorations under this Agreement, at Buyer's option,
in cash, by wire transfer, by a bank, certified or cashier's
check, or by plain check of a title insurance company
chosen by Buyer ("Title Insurer"), at Closing (as defined in
Section 5.1 hereof).
c. Escrow of Deposit.
i. Deposit. An irrevocable, unconditional letter
of credit in the form of Exhibit "I" hereto with an expiration
date of May 1, 1999 or later in the amount of Two Hundred Fifty
Thousand Dollars ($250,000) (the "Deposit") shall be delivered by
Buyer to Escrow Agent (as defined in Section 3.2 hereof) within
one business day after the Roof Decision Date (as defined in
Section 5.2.7). Within thirty-five (35) days after the
Effective Date (as defined in Section 14.1), in the event this
Agreement is still in effect, Buyer shall post another
irrevocable, unconditional letter of credit with an expiration
date of May 1, 1999 or later in the amount of Two Hundred Fifty
Thousand Dollars ($250,000), which amount shall constitute part
of the "Deposit" for all purposes under this Agreement and
shall be delivered by Buyer to Escrow Agent.
ii. Disbursement. The Deposit shall be held in
escrow by Chicago Title Insurance Company or Lawyers Title
Insurance Company ("Escrow Agent"), in accordance with the
provisions of this Section 3 and the laws of the State of New
Jersey. The parties and Escrow Agent agree that the Deposit
shall be disbursed as follows:
(1) If Closing is held, the Deposit shall be
returned by Escrow Agent to Buyer at Closing.
(2) If Closing is not held by reason of Buyer's
default, the Deposit shall be delivered to Seller by Escrow Agent
within twelve (12) business days of Escrow Agent's receipt of a
written certification (a copy of which shall be delivered
contemporaneously to Buyer) from Seller that Seller is entitled
to the Deposit pursuant to the terms of this Agreement, unless
Buyer disputes such notice by written notice to Escrow Agent
within ten (10) business days after Buyer's receipt of Seller's
notice. In such event Escrow Agent shall not deliver the Deposit
to Seller unless ordered to do so by a court of competent
jurisdiction.
(3) If Closing is otherwise not held for any
reason other than a default of Buyer, the Deposit shall be
delivered to Buyer by Escrow Agent within twelve (12) business
days of Escrow Agent's receipt of a written certification (a copy
of which shall be delivered contemporaneously to Seller) from
Buyer that Buyer is entitled to the Deposit pursuant to the terms
of this Agreement, unless Seller disputes such notice by written
notice to Escrow Agent within ten (10) business days after
Seller's receipt of Buyer's notice. In such event, Escrow Agent
shall not deliver the Deposit to Buyer unless ordered to do so by
a court of competent jurisdiction. In addition, if there shall
be a default of Seller under this Agreement, Buyer may avail
itself of any and all other rights and remedies at law or in
equity, including, but not limited to, the right to (a) collect
monetary damages from Seller; or (b) enforce specific performance
of any or all of Seller's obligations under this Agreement. The
exercise of (or the failure to exercise) any one of Buyer's
rights or remedies under this Agreement shall not be deemed to be
in lieu of, or a waiver of, any other right or remedy contained
herein or available to Buyer at law or in equity.
(4) The parties agree that if the Deposit is not
replaced with a letter of credit in the same form and amount at
least ten (10) days prior to the expiration of any letter(s) of
credit constituting the Deposit, or if the Escrow Agent initiates
an interpleader action to resolve a dispute concerning the
Deposit, the Escrow Agent shall present the letter of credit for
payment and hold or deposit into court (as the case may be) the
cash proceeds thereof as the Deposit under this Agreement. If
the Escrow Agent is holding such proceeds, it shall do so in one
or more money market type interest bearing accounts with one or
more banking or savings institutions insured in the full
principal amount by any agency of the federal government. In the
event the Deposit is converted to cash, interest on the Deposit
shall be paid to the party who receives the Deposit under this
Agreement.
iii. Escrow Agent's Responsibility. The Escrow Agent
is acting only as escrowee responsible for holding the Deposit in
accordance with the provisions of this Agreement. If there is a
dispute between the parties relating to the Deposit, then the
Escrow Agent shall either (a) continue to hold the Deposit until
directed otherwise by notice of both Seller and Buyer or court
order or (b) deliver the Deposit into court. Neither the
Escrow Agent, nor any firm of which the Escrow Agent is a member,
shall, by virtue of so acting, be disqualified from representing
any party to this Agreement whether in the event of litigation or
otherwise.
d. Title.
i. Condition of Title. Title to the Real Estate
shall be good and marketable, free and clear of all liens,
encumbrances, encroachments, covenants, conditions, restrictions,
leases, licenses, security interests, easements, rights of way
and other title objections, except those leases,
tenancies, licenses and other rights of occupancy and use for all
or any portion of the Property (the "Leases") set forth in
Exhibit "C" hereto, and those other title objections described in
Exhibit "D" hereto (collectively the "Permitted Conditions of
Title"); and title shall be insurable as such under an ALTA Form
B owner's policy of title insurance (as most recently
revised) issued at regular rates (with no additional charge for
the endorsements hereinafter described) by any reputable title
insurance company, in the amount of at least Twenty-Four Million
Nine Hundred Sixty Thousand Dollars ($24,960,000) ("Title
Policy"), which Title Policy shall include, without limitation,
the endorsements commonly known as a "separate tax lot"
endorsement, an "access" endorsement, a "survey" endorsement, a
"contiguity" endorsement, a "tax parcel" endorsement, an
endorsement insuring that the covenants, conditions and
restrictions which constitute part of the Permitted Conditions of
Title have not been violated and that any future violation
thereof will not cause a forfeiture or reversion of title, ALTA
endorsement 3.1, commonly known as a "zoning" endorsement, ALTA
endorsement 9, commonly known as a "comprehensive" endorsement
and additional endorsements as may be reasonably required by
Buyer or the Lender. Title to the Personalty shall be good and
marketable and free and clear of all liens, security interests
and other encumbrances, other than the Permitted Conditions of
Title. Buyer shall order a commitment for title insurance
("Title Commitment") promptly following the date of this
Agreement. Buyer shall deliver a copy of the Title Commitment,
together with a list of all objections to title, including,
without limitation, Permitted Conditions of Title, which Buyer
deems unacceptable, to Seller by February 8, 1999. In the event
Buyer is dissatisfied, for any reason, with the status of title
(including, without limitation, the Permitted Conditions of
Title), then Buyer may terminate this Agreement as a failure of
the condition described in Section 8.1 hereof. Seller and Buyer
acknowledge and agree that they may, but shall not be obligated
to, enter into an amendment to this Agreement which modifies the
Permitted Conditions of Title, to the extent that Buyer is
dissatisfied with the same and the parties desire to continue
with their respective obligations under the terms of this
Agreement and agree upon the condition of the title as it is to
be delivered by Seller to Buyer at Closing.
ii. Inability to Convey Title. In the event Seller
is unable to convey good and marketable title to the Real Estate
to Buyer and such as will be insured by the Title Policy (subject
to the Permitted Conditions of Title), Buyer shall have the
option of (a) waiving its right to terminate this Agreement due
to the state of title and taking such title as Seller can give
without abatement of the Purchase Price, except that any existing
liens or encumbrances which can be removed by the payment of
money shall be paid and discharged by Seller prior to Closing, or
(b) terminating this Agreement, in which event the Escrow Agent
shall return the Deposit, together with all interest earned
thereon, to Buyer, Seller shall reimburse Buyer for any Title
Insurer charges incurred and additional out-of-pocket
costs not to exceed Fifty Thousand Dollars ($50,000), this
Agreement shall become null and void, and neither party shall
have any further obligations hereunder, provided, however, that
if the inability to convey title is due to the breach by Seller
of any of its obligations hereunder, then Buyer's remedies with
respect thereto shall not be limited by the foregoing
provisions of this Section 4.2, and Buyer's remedies in respect
thereof shall be as described in Section 10A.
e. Closing.
i. Closing Date. Closing under this Agreement (the
"Closing") shall occur at 10:00 a.m. on or before April 1, 1999,
at the offices of Fox, Rothschild, O'Brien and ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
the offices of Title Insurer, as Buyer may elect.
ii. Prorations. The following items of income and
expense shall be prorated as follows, based on a three hundred
sixty-five (365) day year:
(1) Rents (excluding "Additional Rent" as
defined in Section 5.2.2 hereof, and "Percentage Rent" described
in Section 5.2.3 hereof) relating to the Property and collected
by Seller for the month of Closing shall be deemed earned ratably
on a per diem basis and shall be prorated as of midnight on the
day immediately preceding the date of Closing ("Proration Date").
Prepaid rents shall be credited to Buyer at Closing. Unpaid or
unbilled rents shall not be adjusted or pro-rated at Closing but
instead shall be handled in accordance with the remaining
provisions of this Section 5.2.1. All such unpaid or unbilled
rents collected by Seller or Buyer from tenants or other payors
after Closing shall be paid over and applied in the following
order of priority: (i) first, on account of such rents due to
Buyer after Closing until all current rents are paid; and (ii)
thereafter, provided all rents then due Buyer have been paid in
full, an account of rents due to Seller for the period prior to
Closing.
(2) "Additional Rent" (i.e., common area
maintenance charges, taxes, insurance, utilities and similar
charges paid by the landlord and billed to tenants, but not
Percentage Rent) relating to the Property shall be prorated in
the following manner. At least five (5) days prior to Closing,
Seller shall deliver to Buyer a statement of expenses paid and
payable by Seller which have been billed or are billable to
tenants under their Leases. Such statement shall include
an adjustment of prepaid and payable items as of Closing, in
accordance with Section 5.2.6. The total amount of expenses paid
by Seller, as so adjusted, which have been billed or are billable
to tenants under the Leases is referred to herein as the "Expense
Amount". The statement delivered by Seller to Buyer under this
paragraph shall also include a calculation by Seller of
Additional Rent collected by Seller (including, without
limitation, Additional Rent billed and collected on an estimated
basis) on account of the Expense Amount ("Collected Additional
Rent"). If the Expense Amount exceeds the Collected Additional
Rent, then at the time of each tenant's reconciliation of
Additional Rent at the end of the period in which such
reconciliation is to be made under the tenant's Lease (the
"Reconciliation Period"), Buyer shall ▇▇▇▇ the appropriate
portion of such excess amount to such tenant, together with any
deficiency in any estimated Additional Rent collected by Buyer
after Closing on account of expenses incurred by Buyer after
Closing which are applicable to the Reconciliation Period. Buyer
shall remit to Seller after Closing any amount received by Buyer
in excess of that which is due to Buyer on account of expenses
incurred by Buyer and billed to the tenant after Buyer has been
reimbursed for its share of expenses incurred after Closing and
during the Reconciliation Period which have been billed to such
tenant. In the event the Collected Additional Rent is greater
than the Expense Amount, then Buyer shall receive a credit at
Closing for the excess. Buyer and Seller shall make their books
and records available to each other to the extent necessary in
order to carry out the intent of the foregoing provisions and
shall cooperate with each other in connection therewith. In the
event that, subsequent to Closing, a tenant makes a claim or
files an action against Seller on account of Seller's collection
from such tenant of such tenant's share of Collected Additional
Rent in excess of such tenant's share of the Expense Amount, and
Seller has credited Buyer at Closing for the amount which the
tenant claims was overpaid to the Seller, then Buyer shall
indemnify, defend and hold Seller harmless from and against any
such claim or action.
(3) Percentage rents relating to the Property
("Percentage Rent") shall be allocated and apportioned over the
period of time during which the sales giving rise thereto were
made. For example, if a tenant owes Percentage Rent for the
calendar year 1999, then Seller's share shall be based on the
number of days during 1999 that Seller held title to the
Property. Within ten (10) days after Buyer receives Percentage
Rent (or a statement thereof) from a tenant, Buyer shall forward
the appropriate amount thereof (or a copy of said statement) to
Seller.
(4) At Closing, Seller shall credit to Buyer
against the Purchase Price the amounts of all unapplied security
deposits which have been received from tenants under their
Leases, if any, together with all interest on such security
deposits, if any, which are due to the tenants under the
provisions of the Leases or applicable law, statute, code, order
or regulation.
(5) All real estate taxes affecting the
Property shall be pro-rated on a per diem basis as of the
Proration Date, disregarding any discount or penalty and on the
basis of the fiscal year of the authority levying the same,
whether or not such have been levied as of the date of Closing.
If any of the same have not been finally assessed, as of the date
of Closing, for the current fiscal year of the taxing authority,
then the same shall be adjusted at Closing based upon the most
recently issued bills therefor, and shall be re-adjusted im-
mediately when and if final bills are issued. All special
charges and assessments for public improvements which are
proposed and enacted prior to Closing shall be paid in full by
Seller.
(6) Charges for water, electricity, sewer
rental, gas, telephone and all other utilities, and charges under
all Service Contracts assumed by Buyer shall be pro-rated on a
per diem basis as of the Proration Date, disregarding any
discount or penalty and on the basis of the fiscal year or
billing period of the authority, utility or other person
levying or charging for the same. If the consumption of any of
the foregoing is measured by meters, then in lieu of
apportionment as aforesaid, Seller shall (i) not earlier than one
(1) week preceding the date of Closing, obtain a reading of each
such meter, (ii) prior to Closing pay all charges thereunder
through the date of the meter readings, and (iii) at Closing
credit Buyer with an amount, on an estimated basis, that is
sufficient to pay all charges for such metered utilities from the
date of the readings through the date of Closing. If there is no
such meter or if the bills for any of the foregoing charges have
not been issued prior to the date of Closing, the charges
therefor shall be adjusted at the Closing on the basis of
the charges for the prior period for which bills were issued and
shall be further adjusted when the bills for the current period
are issued. Seller and Buyer shall cooperate to cause the
transfer of the Property's telephone numbers and utility accounts
from Seller to Buyer. To the extent deposits held on Seller's
behalf by utility companies are transferable to Buyer, Seller
shall receive a credit at Closing in the amount of such deposits
(and any interest thereon), and such deposits (and any interest
thereon) shall be transferred and placed in the name of Buyer.
To the extent said deposits are not transferable to Buyer, Seller
shall seek a refund of such deposits, and Buyer shall have no
claim with regard to the same.
(7) Buyer, at Buyer's expense, has arranged for
an inspection of the roofs of the Property to determine a course
of action with respect to repairs and/or replacements thereof.
Within seven (7) days after the Effective Date (the "Roof
Decision Date"), the parties will attempt to agree on the cost of
repairs/replacements of the roofs of the Property to be borne by
Seller (the "Seller's Share"), in the form of a credit against
the Purchase Price. In the event the parties do not agree in
writing to the Seller's Share by the Roof Decision Date, then,
notwithstanding anything to the contrary contained in this
Agreement, this Agreement shall automatically terminate
without further action by either party and become null and void
and of no force or effect. In the event the parties do agree in
writing upon the Seller's Share on or before the Roof Decision
Date, then the Purchase Price and the portion thereof due at
Closing shall be reduced by the agreed upon Seller's Share, and
this Agreement shall remain in full force and effect subject to
the terms and conditions hereof.
iii. Miscellaneous Closing Costs. Seller and Buyer
shall share equally all realty transfer and recording fees, taxes
and similar charges assessed with respect to the conveyance of
the Property. Buyer shall pay all basic, additional or special
title premiums or other title charges. Unless otherwise
specified in this Agreement, each party shall pay all other fees,
costs and expenses incurred by such party in the performance of
such party's obligations hereunder, and shall make such
additional adjustments as are normally made in connection with
the sale of property similar to the Property in the county and
state where the Property is located.
iv. Seller's Delivery Obligations at Closing.
At Closing, Seller, at Seller's expense, shall deliver
to Buyer the following:
(1) A bargain and sale deed with covenants as
to grantor's acts (the "Deed"), duly executed and acknowledged by
Seller, by which fee title to the Real Estate shall be conveyed
to Buyer, subject only to the Permitted Conditions of Title.
(2) A ▇▇▇▇ of Sale, duly executed and
acknowledged by Seller, conveying to Buyer all of Seller's right,
title, and interest in and to the tangible Personalty, free and
clear of all liens, encumbrances, claims and security interests,
subject only to the Permitted Conditions of Title, with express
warranties of good title.
(3) A valid assignment to Buyer of all of
Seller's right, title and interest in and to all Leases and
guarantees and/or sureties of any obligations of tenants
thereunder ("Guarantees"), and all of Seller's right, title and
interest in and to all security deposits, prepaid rent and other
monies, if any, deposited by tenants under the Leases, and the
interest earned thereon, if any, to date, (along with an
accounting of such security deposits, prepaid rents and said
other monies) duly executed and acknowledged by Seller,
containing a warranty that Seller has not previously assigned or
encumbered the Leases, or Seller's right, title and interest in
and to said security deposits, prepaid rent and said other
monies, and a provision wherein Seller agrees to indemnify,
defend and hold Buyer harmless from and against any and all
liability, claims, or damages arising from or in connection with
Seller's duties and obligations to tenants under the Leases prior
to the date of Closing, and any and all liability to or claims or
damages of tenants arising from or in connection with those
security deposits, prepaid rent and said other monies, made by
tenants with Seller but not delivered by Seller to Buyer at
Closing pursuant to Section 5.2.4 hereof (the "Assignment and
Assumption of Leases"). The Assignment and Assumption of Leases
shall also be executed by Buyer, who shall therein agree to
assume and agree to perform Seller's duties and obligations under
the Leases accruing on and after the date of Closing and to
indemnify, defend and hold Seller harmless from any liability,
claims or damages arising from or in connection with Buyer's
duties and obligations thereunder from and after the date
of Closing and any and all liability to or claims or damages of
tenants arising from or in connection with those security
deposits, prepaid rent and said other monies, if any, credited to
Buyer pursuant to Section 5.2.4 hereof.
(4) Subject to Buyer's right under Section 7.5
not to accept the assignment of any or all of the Service
Contracts, a valid assignment to Buyer of all of Seller's right,
title and interest in and to all Service Contracts, duly executed
and acknowledged by Seller (the "Assignment and Assumption of
Service Contracts"), wherein (i) Seller agrees to indemnify,
defend and hold Buyer harmless from and against any and all
liability, claims or damages arising from or in connection with
Seller's duties and obligations under the Service Contracts prior
to the date of Closing, and (ii) Buyer agrees to assume and agree
to perform Seller's duties and obligations under the Service
Contracts accruing on and after the date of Closing and to
indemnify, defend and hold Seller harmless from any liability,
claims or damages arising from or in connection with Buyer's
duties and obligations thereunder from and after the date
of Closing.
(5) A valid assignment to Buyer of all existing
assignable written guarantees and warranties issued in connection
with the construction, improvement, alteration or repair of the
buildings, structures and other improvements constituting part of
the Real Estate and in connection with the purchase or repair of
any Personalty, duly executed and acknowledged by Seller,
together with the original of each such guarantee and warranty,
to the extent available and in Seller's possession.
(6) A valid assignment to Buyer of all of
Seller's right, title and interest in and to the intangible
Personalty, to the extent assignable or transferable, together
with such documents as may be required to assign to Buyer, and to
withdraw Sellers' right to use, the name "Lakewood Plaza".
(7) The originals of (i) all Leases and
Guarantees, (ii) all Service Contracts, and (iii) all other
materials identified in the Exhibits hereto and then in Seller's
possession, and all other records and files relating to the
current leasing, operation and maintenance of the Property
(whether or not specifically enumerated herein) including,
without limitation, all keys to all locks on the Property.
(8) To the extent existing and in Seller's
possession or control, all certificates of occupancy, licenses,
permits, authorizations, consents and approvals required by any
law, ordinance, or regulation for the use and occupancy of the
Property and issued by any governmental or quasi-governmental
authority having jurisdiction over the Property, and copies of
all certificates, if any exist and are in Seller's possession,
issued by the local board of fire underwriters (or other body
exercising similar functions) with respect to the Property. In
addition, Seller shall obtain and deliver to Buyer any
certificate(s) of occupancy required to transfer the Property
from Seller to Buyer.
(9) To the extent existing and in Seller's
possession or control, a full set of final "as built" plans and
specifications used in the construction of the buildings,
structures and other improvements constituting part of the Real
Estate, as well as any off-site improvements constructed in
connection therewith, together with "as-built" drawings of
underground utilities (including storm sewer, sanitary sewer,
water, and telephone electric service cables) located under the
Real Estate.
(10) The real estate and personal property tax
bills and notices of assessed valuation pertaining to all or any
part of the Property for the five most recent years, including
any pending or past tax protests or appeals, if any, and all
documents and pleadings relating thereto.
(11) An up-to-date rent roll as required by
Section 6.3 hereof.
(12) Notices to tenants, in the form prepared by
Buyer, duly executed by Seller, advising of the sale of the
Property and directing that rent and other payments thereafter be
sent to Buyer (or its agent) at the address provided by Buyer at
Closing, unless otherwise directed by Buyer.
(13) A tenant estoppel certificate in the form
of Exhibit "E" attached hereto and a Subordination,
Nondisturbance and Attornment Agreement ("SNDA") in the form of
Exhibit "E-1" hereto, to the extent executed by any tenant
leasing space at the Property, dated not earlier than thirty (30)
days prior to the date of Closing and consistent with Seller's
representations set forth in Section 6.3 and Exhibits "C" and
"C-1". Seller shall deliver tenant estoppel certificates in the
form of Exhibit "E" and SNDA's in the form of Exhibit "E-1" to
all of the tenants under Leases, and shall use its best efforts
to have such certificates and SNDA's executed, such efforts to
include, without limitation, the enforcement of all Leases
which require tenants to execute such certificates and/or SNDA's.
For each tenant from whom Seller is unable to obtain an estoppel
certificate in the form of Exhibit "E", Seller shall deliver to
Buyer a Landlord's Affidavit, in the form of Exhibit "E-2",
providing the same information requested from the tenants in the
tenant estoppel certificate.
(14) A written certification dated no earlier
than ten (10) days prior to the date of Closing, in compliance
with The Tax Reform Act of 1984 (the "Act") and the regulations
thereunder that are imposed by the Foreign Investment in Real
Property Tax Act ("FIRPTA"), stating that Seller is not a person
or entity subject to withholding under FIRPTA and the Act, and
containing Seller's tax identification number and address. In
the event that Seller does not provide such written
certification, which shall be duly executed and acknowledged by
Seller, Buyer may withhold at Closing ten percent (10%) of the
Purchase Price for remittance to the Internal Revenue Service in
accordance with the provisions of the Act.
(15) An affidavit to the Title Insurer of the
type customarily provided by sellers of real property to induce
title companies in the area of the Real Estate to insure over
certain "standard" or "pre-printed" exceptions to Buyer's Title
Policy, and such other affidavits and documents reasonably
required by the Title Insurer to issue the Title Policy,
including, without limitation, resolutions, good standing
certificates, the limited partnership agreement of Lakewood - 9
Investors, L.P. ("LP Agreement"), the limited liability company
operating agreement of ARC - Lakewood - 9 L.L.C. (the "L.L.C.
Agreement"), and the organizational documents creating Seller
(collectively, the "Certificates"), and similar items
requested by Buyer.
(16) A certificate executed by Seller to the
effect that the representations and warranties made by Seller to
Buyer are true and correct in all material respects on and as of
the date of this Agreement and on and as of the Closing.
(17) A letter from the appropriate governmental
entity stating that the Property is zoned to allow the present
use of the Property and that the Property and its use do not
violate any existing applicable laws, statutes, codes or
ordinances. If the municipality in which the Property is located
requires the issuance of a new certificate of occupancy upon the
sale of the Property to Buyer, then the issuance of such a
certificate of occupancy in the Buyer's name shall satisfy the
requirements of this Section 5.4.17.
(18) A "letter of non-applicability" issued by
the New Jersey Department of Environmental Protection ("NJDEP"),
confirming that the terms and conditions of the Industrial Site
Recovery Act, and the regulations promulgated thereunder
(collectively, "ISRA"), do not apply to the conveyance of the
Property to Buyer, together with copies of all affidavits and
other documents and statements submitted to NJDEP in connection
with Seller's request for such letter of non-applicability, which
affidavits and documents shall be true and correct in all
respects as submitted, and shall not omit or fail to state any
fact or circumstance which might result in NJDEP refusing to
issue such a letter of non-applicability. Seller shall
apply for such a letter of non-applicability within fifteen (15)
days following the date of this Agreement. In lieu of delivery
of such a letter of non-applicability to Buyer, Seller may
deliver to Buyer a "Negative Declaration" (as defined in ISRA)
obtained by Seller from NJDEP confirming the environmental
condition of the property and its compliance with the terms and
conditions of ISRA.
All assignments shall be duly executed and
acknowledged by Seller and shall convey title to Buyer or its
nominee, free and clear of all liens, encumbrances, claims
and security interests, subject to the Permitted Conditions of
Title.
v. Buyer's Delivery Obligations at Closing. At
Closing, Buyer shall deliver to Seller the following:
(1) At Buyer's option, a bank, certified or
cashier's check, a check of Title Insurer payable to the order of
Seller, or a wire transfer of immediately available federal funds
to Seller's account, in the amount required under Section 2
hereof. Notwithstanding anything to the contrary contained in
this Agreement, Seller may require that any funds to be used to
discharge any existing mortgage lien which effect the Property be
wired directly to the holder of the mortgage by the Buyer or the
Title Insurer.
(2) The Assignment and Assumption of Leases.
(3) The Assignment and Assumption of Services
Contracts.
f. Covenants, Representations and Warranties of
Seller. Seller (jointly and severally) covenants, represents and
warrants to Buyer as follows (each of which is material and is
being relied upon by Buyer):
i. Authority. Lakewood - 9 Investors, L.P. is a
limited partnership duly formed and validly existing under the
laws of the State of New Jersey. ARC - Lakewood - 9 L.L.C. is a
limited liability company duly formed and validly existing under
the laws of the State of New Jersey. Seller has full power,
authority and legal right to execute, deliver and comply with
this Agreement, any other document relating thereto, and the
transaction contemplated hereby. The persons executing this
Agreement and all other documents required to consummate the
transactions contemplated hereby on behalf of Seller are duly
authorized to execute this Agreement and such other documents on
behalf of Seller, and are authorized to bind Seller. All
actions of Seller and other authorizations necessary or
appropriate for the execution and delivery of and compliance with
this Agreement and such other documents have been taken or
obtained and, upon their execution, his Agreement and such other
documents shall constitute the valid and legally binding
obligations of Seller, enforceable against Seller in
accordance with their respective terms.
ii. No Defaults. The execution of this Agreement by
Seller does not, and the performance by Seller of the
transactions contemplated by this Agreement shall not, violate or
constitute a breach of (a) the LP Agreement, L.L.C. Agreement or
Certificates, of Seller, (b) any permit, license, order or decree
affecting Seller or its assets, or (c) any indenture, mortgage,
deed of trust or other agreement to which Seller is a party or by
which Seller or its assets are bound.
iii. Leases. There is stated on Exhibit "C" a
complete and correct list of all Leases and Guarantees in effect
on the date of this Agreement, and the information set forth
therein is true and correct as of the date hereof. A
revised Exhibit "C", to be designated Exhibit "C-1", shall be
certified by Seller to be true and correct as of Closing, shall
reflect those Leases and Guarantees in effect on the date of
Closing and shall be delivered to Buyer at Closing as provided in
Section 5.4.11 hereof. As of the date hereof, each of the Leases
and Guarantees described in Exhibit "C" is valid and
subsisting and in full force and effect, has not been amended,
modified or supplemented other than as indicated thereon, and the
tenant under each is in actual possession of the leased premises
in the normal course of business. The copies of the Leases and
Guarantees previously or hereafter delivered by Seller to Buyer
for Buyer's review were and will be, respectively, true and
complete copies thereof. No tenant under any of the Leases has
given Seller written notice of any claim which would in any
way affect the collection of rent from such tenant, Seller has
received no written notice of default or breach on the part of
the landlord under any of the Leases which remains uncured by the
landlord (and Seller shall correct any such notices received
prior to Closing), and all repairs, alterations and other
obligations required to be performed by the landlord under each
of the Leases have been fully performed and paid for by Seller.
The rents and other income and charges set forth in Exhibit "C"
are the actual rents, income and charges presently being charged
by Seller under the Leases, and the same have been actually
received as indicated on Exhibit "C", except as otherwise set
forth therein. No space within the Property is occupied rent
free or by any employee of Seller. Except as expressly set forth
on Exhibit "C", no tenant under any of the Leases is entitled to
any purchase option, concessions, allowances, set-off, rebates
or refunds or has prepaid any rents or other charges for more
than the current month, and none of such Leases and none of the
rents or other amounts payable thereunder have been assigned,
pledged or encumbered by Seller, except as set forth in Exhibit
"C" hereto. Except as shown on Exhibit "C", no party, person or
entity is in possession of the Property or any portion thereof,
and, no party, person or entity has legal title of any interest
in the Property, or any portion thereof, except Seller. All of
the Leases are free and clear of any right or interest of any
real estate broker or any other person, and no brokerage or
leasing commission or other compensation is or will be due or
payable to any person, firm, corporation or other entity with
respect to or on account of any of the Leases or any
extensions or renewals thereof, except for the unaccrued leasing
commissions which may become due with respect to renewal option
terms and which are set forth on Exhibit "C-2" attached hereto
and made a part hereof (the "Described Unaccrued Commissions").
Buyer shall pay the Described Unaccrued Commissions if and when
they become due, at the time they become due, and Seller shall
remain solely responsible for any other leasing commissions.
There are currently no security deposits required under, or being
held pursuant to, any of the Leases, except as set forth in
Exhibit "C" hereto.
iv. Service Contracts. There are no contracts
relating to the ownership, development, construction, operation,
management, servicing or use of all or any portion of the
Property (including, without limitation, all equipment, supply,
maintenance and concession agreements), or any guarantees and
warranties extended or assigned to Seller in connection therewith
(collectively "Service Contracts") in effect on the date hereof
other than those which are described in Exhibit "F", and the
information set forth therein with respect to such Service
Contracts is true, correct and complete as of the date hereof.
There are no persons employed on-site by Seller in
connection with the management, operation or maintenance of all
or any portion of the Property whose employment will not be
lawfully terminated, prior to Closing, without recourse to Buyer.
The Service Contracts delivered by Seller to Buyer are true and
complete copies of all Service Contracts now in effect. No
person or entity bound by any Service Contract has given notice
to Seller of any claim of default under any such Service Contract
(and Seller shall correct any such default or breach of which
notice is received prior to Closing). The fees and other charges
described in the Service Contracts have been paid on a current
basis through the date hereof. No contractor under any of the
Service Contracts is entitled by agreement or has otherwise
claimed any additional fees or other charges, or has received any
prepaid fees or charges for other than the current month.
v. Notices Regarding Physical Condition. No notice
has been given to Seller by any holder of any mortgage on the
Property, by any insurance company which has issued a policy with
respect to any portion of the Property, or by any board of fire
underwriters (or other body exercising similar functions), any of
which notices claim any defect or deficiency or request the
performance of any repairs, alterations or other work to the
Property, and Seller, at Seller's cost and expense, shall comply
with any such notice or requirement that is received by Seller
prior to Closing.
vi. Intentionally omitted.
vii. Notices of Violations. Seller has not received,
and has no knowledge of the issuance of, any notices of any
existing violations of any federal, state, county or municipal
laws, ordinances, orders, codes, regulations or requirements
affecting all or any portion of the Property, including,
without limitation, violations of the housing, building, safety,
health, fire, subdivision or zoning laws, ordinances, codes and
regulations of the municipality or county within which the
Property is located. Seller shall cure, prior to Closing, any
violation of which Seller receives notice prior to the Closing
from any governmental or quasi-governmental authority having
jurisdiction over the Property.
viii. Assessments. No portion of the Property is
subject to or is affected by any special assessment (for public
improvements or otherwise) whether or not there is presently a
lien thereon and, to the best of Seller's knowledge, no such
assessment has been proposed. Seller shall be responsible for
the payment of any such assessment proposed and enacted prior to
Closing. Seller has received no notice of any proposed increase
in the assessed valuation of the Property for tax purposes, or of
any proceeding pending for the reduction of the assessed
valuation of all or any portion of the Property for tax purposes.
ix. Condemnation. Seller has not received notice of
any pending condemnation, expropriation, eminent domain or
similar proceeding affecting all or any portion of the Property
and, to the best of Seller's knowledge, no such proceeding is
contemplated or has been threatened.
x. Litigation. No actions, suits or proceedings
have been instituted and served upon Seller and, to the best of
Seller's knowledge, there are no actions, suits or proceedings
pending or threatened, which would affect the Property or the
right to occupy or utilize the Property, at law or in equity,
before any federal, state, county or municipal governmental
department, commission, board, bureau, agency or instrumentality,
except for that which is described on Exhibit "G" attached hereto
(the "Pending Litigation"). Seller shall indemnify, defend and
hold Buyer harmless from and against any and all claims, demands,
damages, liabilities, losses, costs and expenses arising out or
of in any way relating to the Pending Litigation.
xi. Environmental Disclosures. The Property has not
been used at any time during or, to the best of Seller's
knowledge prior to, Seller's ownership thereof for the disposal
of any industrial refuse or waste, or for the processing,
manufacture, storage, handling, treatment or disposal of any
hazardous or toxic substance or material, other than cleaning
materials used by Seller in the ordinary course of Seller's
business which have been used in compliance with all
environmental laws. No asbestos containing materials have been
installed or used on the Property at any time during or, to the
best of Seller's knowledge prior to, Seller's ownership of the
Property. No machinery, equipment or fixtures containing
polychlorinated biphenyls (PCBs) have been located on, in or
under the Property at any time during, or to the best of Seller's
knowledge prior to, Seller's ownership of the Property. No toxic
or hazardous substances or materials have been located on, in or
under the Property by Seller or its agents or employees during
Seller's ownership of the Property, nor, to the best of
Seller's knowledge, have any such toxic or hazardous substances
or materials been located on, in or under the Property by any
tenant or other person during or prior to Seller's ownership of
the Property, which substances or materials, if found on the
Property, would subject the owner or occupant of the Property to
damages, penalties, liabilities or to an obligation to clean-up
or remove such substances or materials under any applicable
federal, state or local law, regulation or ordinance, and no
notice from any governmental body has ever been served upon
Seller, its agents or employees or, to the best of Seller's
knowledge, upon any tenant of the Property or prior owner of the
Property, claiming any violation of any federal, state or local
law, regulation or ordinance concerning the environmental state,
condition, or quality of the Property, or requiring or
calling attention to the need for any work, repairs,
construction, alterations, demolition, renovation or installation
on or in connection with the Property in order to comply with
any law, regulation or ordinance concerning the environmental
state, condition or quality of the Property. Seller hereby
agrees to indemnify, defend and hold Buyer and its successors,
assignees, subsidiaries, affiliates, agents, representatives,
employees, officers, directors, stockholders, successors and
assignees harmless from and against any and all losses,
liabilities, damages, injuries, costs (including court costs
and reasonable attorneys fees), expenses and claims of any and
every kind whatsoever paid, incurred or suffered by or asserted
against Buyer for, with respect to, or as a direct or indirect
result of Seller's breach of the warranties and representations
stated herein. Seller agrees to deliver to Buyer within ten (10)
days after this Agreement has been fully executed all
environmental reports relating to the Property in Seller's
possession or control which environmental reports shall show, to
the best of Seller's knowledge, all information which is
presently available relating to any hazardous or toxic substance
or material on or at the Property and the compliance by Seller
and the Property with environmental laws.
xii. Employees. There are no ERISA or other employee
benefit plans for employees of Seller with respect to the
Property that will in any manner impose any liability or
responsibility upon Buyer from and after the date of Closing.
The wages and employee taxes of all of Seller's employees
who are employed in connection with the operation of the
Property, if any, have been fully paid and the employment of all
such employees may be rightfully terminated by Seller or Buyer at
any time prior to Closing at no cost or expense to Buyer.
xiii. Title. Seller has good, marketable and
indefeasible fee simple title to the Real Estate and the
Personalty, subject only to the Permitted Conditions of Title.
There are no unrecorded monetary liens or other type of
encumbrances which affect all or any part of the Property
(including, but not limited to, liens relating to environmental
matters) except such liens and encumbrances disclosed in the
Title Commitment. At all times through the Closing, Seller shall
have the right and authority to convey or assign all of the
Property to Buyer. No person, firm or corporation or
other entity has any right or option to acquire the Property, or
any part thereof, from Seller. There are no violations by
Seller, or by any other person or entity, of any restrictive
covenants affecting the Property. There are no outstanding
licenses of, or fictitious name registrations of, or other
rights to use, the name "Lakewood Plaza".
xiv. Approvals. The Property complies with all
applicable zoning and use requirements. The Property is properly
zoned for the existing uses of the Property. Seller has all
necessary agreements, licenses, utility contracts, access to
public roads and rights-of-way to operate the Property. Seller
has all approvals and licenses required from or by all
governmental authorities having jurisdiction over the Property or
from private parties to make use of water, storm sewer, sanitary
sewer, gas, electric, telephone and drainage facilities and all
other utilities required by law to operate the Property and to
ensure vehicular and pedestrian ingress to and egress from
the Property.
xv. Untrue Statements. No representation or
warranty by Seller contained herein, and no statement or other
information contained in any exhibit hereto, financial
information or statements, certificates or other instruments
or documents furnished or to be furnished by Seller to Buyer in
connection with the transaction contemplated hereunder contains,
or at the Closing shall contain, any untrue statement of a
material fact, or omits or shall omit to state a material fact
necessary to make it not misleading.
6A. Relocation; Master Lease.
▇▇.▇. ▇▇▇▇▇ Wok. The tenant of the Property
identified on Exhibit "C" as China Wok ("China Wok") has entered
into an agreement with Seller, as part of such tenant's Lease
(the "China Wok Lease"), pursuant to which such tenant is to be
relocated to an approximately two thousand square foot (2,000')
space within the Property (the "New China Wok Space"), from such
tenant's existing space containing approximately thirteen hundred
fifty (1,350) square feet (the "Existing China Wok Space").
Prior to Closing, Seller shall perform all obligations of Seller
arising out of or in connection with the relocation of China Wok
to the New China Wok Space, at Seller's sole cost and expense,
including performing all construction work necessary to prepare
the New China Wok Space for occupancy in a good and workmanlike
manner and in accordance with applicable law.
6A.2. Master Lease. The tenant of the Property
identified on Exhibit "C" as Shop-Rite has entered into an
agreement with Seller, as part of such tenant's Lease (the
"Shop-Rite Lease"), pursuant to which the space leased by
Shop-Rite under the Shop-Rite Lease will be expanded into a
vacant space of approximately fifty-six hundred square feet
(5,600') and the Existing China Wok Space (collectively the
"Shop-Rite Expansion Space"). Seller represents and
warrants to Buyer that all conditions set forth in such agreement
which, if not fulfilled, would entitle such tenant to terminate
such agreement, including the relocation of China Wok and
delivery of possession of the Shop-Rite Expansion Space to
Shop-Rite, have been fulfilled. Prior to Closing, Seller shall
perform all obligations of Seller arising out of or in connection
with the expansion of the space leased by Shop-Rite into the
Shop-Rite Expansion Space, including performing all construction
work which Seller is obligated to perform in connection therewith
in a good and workmanlike manner and in accordance with
applicable law. In the event that, as of the date of Closing,
Shop-Rite has not commenced the payment of rent under the
Shop-Rite Lease with respect to the Shop-Rite Expansion Space,
including minimum rent, common area maintenance charges,
insurance premiums, real estate taxes and any other charges with
respect to or attributable to the lease of the Shop-Rite
Expansion Space (collectively, the "Additional Shop-Rite Rent"),
Buyer shall receive a credit at Closing (the "Rent Credit"),
against the Purchase Price, in the amount of the Additional
Shop-Rite Rent that would have been paid had payment of
Additional Shop-Rite Rent commenced under the Shop-Rite Lease at
the time of Closing, rather than the latest date when Additional
Shop-Rite Rent is to commence under the Shop-Rite Lease (the
"Latest Rent Commencement Date"). For example, if Closing occurs
on March 1, 1999, and, at such time, the Shop-Rite Lease
specifies a Latest Rent Commencement Date of June 1, 1999, then,
at Closing, Buyer shall receive a Rent Credit in an amount equal
to the first three (3) months of Additional Shop-Rite Rent. In
the event that the Latest Rent Commencement Date cannot be
determined at the time of Closing, the parties agree to estimate
the latest date upon which the Additional Shop-Rite Rent is to
commence under the Shop-Rite Lease (the "Projected Latest Rent
Commencement Date") and to calculate the Rent Credit based upon
such Projected Latest Rent Commencement Date.
6A.3. Post-Closing. After the commencement of
Additional Shop-Rite Rent and Buyer's notice thereof to Seller,
Seller and Buyer shall adjust the Rent Credit if the actual date
when Additional Shop-Rite Rent is required to commence under the
Shop-Rite Lease (the "Rent Commencement Date") differs from the
Latest Rent Commencement Date or Projected Latest Rent
Commencement Date (whichever was used in determining the Rent
Credit), by applying the formula described in Section 6A.2 for
determining the Rent Credit based on the actual Rent
Commencement Date. The period between the Closing Date and the
Rent Commencement Date is referred to herein as the "Compensation
Period". With respect to any components of Additional Shop-Rite
Rent, such as common area maintenance charges, taxes or
insurance, for which Shop-Rite was charged an estimated amount
under the terms of the Lease ("Estimated Amounts"), Seller and
Buyer shall further adjust the Rent Credit after Buyer's delivery
to Shop-Rite and Seller of a statement of the actual charges to
Shop-Rite on account of such components of Additional Shop-Rite
Rent by substituting such actual charges for the Estimated
Amounts, redetermining Additional Shop-Rite Rent accordingly, and
applying the formula described in Section 6A.2 for determining
the Rent Credit. Seller shall pay Buyer, or Buyer shall pay
Seller, the amount necessary to adjust the Rent Credit to its
appropriate figure based on the redeterminations of the Rent
Credit pursuant to this Section 6A.3 within ten (10) days after
each such redetermination is made and notice thereof is delivered
by Buyer to Seller.
g. Obligations and Operations Prior to Closing.
Within the period of time set forth in Sections 7.1 through 7.3,
Seller, at Seller's sole cost and expense, shall deliver to Buyer
the documents set forth therein. Between the date of this
Agreement and Closing, Seller, at Seller's sole cost and expense,
shall comply with the obligations set forth in Sections 7.4
through 7.10, inclusive:
i. Existing Surveys and Reports. Within ten (10)
days after the Effective Date, copies of (a) the most recent
surveys of the Real Estate (or portions thereof) which have been
issued to Seller or are otherwise in Seller's possession or
control, and (b) any and all existing environmental and/or
soil assessments, studies, tests, reports and analyses of the
Property (or portions thereof) which have been issued to or are
otherwise in Seller's possession or control, all of which shall
be certified by Seller to be true, correct and accurate in all
respects.
ii. Intentionally omitted.
iii. Intentionally omitted.
7.4 Maintenance of Operation. Seller shall maintain
the Property and all portions thereof in the same condition as on
the date hereof (subject to reasonable wear and tear, casualty
loss and condemnation) and shall perform all routine or ordinary
maintenance, repairs and replacements thereto. The Property
shall be operated by Seller in substantially the same
manner as it has been operated prior to the date hereof.
7.5 Leases and Service Contracts. No new Leases,
Guarantees or Service Contracts shall be entered into, and there
shall be no amendment, modification, extension, renewal (subject
to existing tenant options) or termination of any existing
Leases, Guarantees or Service Contracts, without Buyer's prior
written consent. Seller shall keep and perform all of the
obligations to be performed by Seller under the Leases and
Services Contracts. Seller shall deliver Buyer copies of any
notices of default from or to Seller with respect thereto. At or
prior to Closing, Seller shall terminate all Service Contracts
which Buyer does not elect to assume. In such event, Seller
shall indemnify, defend and hold Buyer harmless from any
liability, claims or damages arising from Seller's duties and
obligations under such Service Contracts.
7.6 Replacements. Seller shall not convey or remove
from the Property or any portion thereof any of the Improvements
or Personalty (except for the replacement of Personalty
with similar items which are of equal or better quality than the
items which are replaced).
7.7 Liens. Seller shall not create or permit the
creation of any liens, encumbrances, encroachments, covenants,
conditions, restrictions, security interests, easements,
rights of way or other title objections which would affect the
Property on or after the Effective Date.
7.8 Insurance. Seller shall maintain Seller's
existing casualty insurance, liability insurance and other
insurance policies respecting the Property, and such liability
insurance policies shall name Buyer as an additional insured. A
schedule of Seller's existing insurance coverage, including the
insurer, type, and limits of coverage currently in place, the
premiums paid therefor, and the period through which premiums
have been paid, is attached hereto as Exhibit H and made a part
hereof. Upon the execution of this Agreement and at least
fifteen (15) days prior to the expiration of any such policy,
Seller shall deliver a certificate of such insurance,
which certificate shall state that the insurance policy shall not
be amended, terminated or permitted to expire without fifteen
(15) days prior written notice to Buyer.
7.9 Books and Records. Buyer, its accountants and
other representatives shall be afforded reasonable access to all
books, records and files relating to the Property. There shall
be furnished to Buyer all information possessed by Seller
concerning the Property which Buyer, its accountant and its
representatives shall reasonably request, including, without
limitation, an income and expense statement indicating, in
detail, all income generated from the Property, and all operating
and capital expenses incurred in connection with Seller's
ownership, operation and management of the Property for the two
most recent calendar years and the month(s) of January
through November, 1998, and for December, 1998 as soon as
available. Said costs shall include, without limitation, taxes,
insurance, utility charges, repairs, maintenance, management
fees, capital replacement costs, advertising costs and leasing
commissions. In addition, Seller shall provide Buyer with (i)
the operating and maintenance budget for the Property for the
calendar year 199_. and (ii) any and all operating or income
statements for the Property prepared after the date of this
Agreement, as soon as they are available. All of the books and
records maintained for the Property by Seller or Seller's agents,
employees or representatives shall be located at the Property.
All such information, together with a certification by Seller as
to the completeness and accuracy of such information, shall be
delivered to Buyer.
7.10 Inspections. Buyer and its architects,
contractors, engineers, inspectors, agents and other
representatives shall have access to and permission to enter the
Property (interior and exterior) between the date hereof and
Closing, at reasonable times, upon reasonable notice
to Seller, to inspect, survey, test, measure or appraise the
Property, and the books and records relating thereto. Buyer
shall not unreasonably interfere with the business of any tenants
of the Property in conducting such activities at the Property.
Buyer shall indemnify, defend and hold Seller harmless from and
against any claim or damage that may be caused by Buyer or its
representatives entering upon the Property after the date hereof.
8 Conditions Precedent to Buyer's Obligations.
Buyer's obligation hereunder to purchase and accept the Property
from Seller is expressly conditioned on the satisfaction of all
of the following conditions (any one or more of which may be
waived in writing in whole or in part by Buyer, at Buyer's
option):
8.1 Inspection. On or before February 8, 1999,
Buyer shall have inspected the Property and shall be satisfied,
in its sole and absolute discretion, with the physical condition
of the Property, with the Leases, Guarantees, Service Contracts
and books, records and files relating to the Property, with the
status of title to the Property (including, without limitation,
all Permitted Conditions of Title), and with such matters related
to the acquisition of the Property as Buyer deems appropriate.
Without limiting the generality of the foregoing, Buyer shall
have obtained a Phase I environmental inspection report, which
shall disclose no hazardous or toxic substances or materials
present at or below the Property, and shall have obtained a
survey of the Property which is satisfactory to Buyer in its sole
and absolute discretion.
8.2 Estoppel Certificates. Buyer shall have
received tenant estoppel certificates in the form of Exhibit "E"
and SNDAs in the form of Exhibit "E-1" executed by the tenants
identified in Exhibit "C" as Shop-Rite, Staples, Odd Job Trading,
R & S ▇▇▇▇▇▇▇, D & K Stores, ▇▇▇-Bee Toy & Hobby and Spa Lady,
and by seventy-five percent (75%) of the balance of the tenants
who have executed Leases, as of the time of Closing, with respect
to space at the Property.
8.3 China Wok Rent and Occupancy. China Wok shall
have commenced occupancy of the New China Wok Space and shall
have commenced the payment of rent (including minimum rent and
rent on account of common area maintenance charges, insurance
premiums, taxes and similar charges) with respect thereto.
8.4 ▇▇▇▇▇▇▇ Bankruptcy. The parties acknowledge
that the entity doing business at the Property under the name R &
S ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), has filed a voluntary bankruptcy
petition with the United States Bankruptcy Court for the District
of Delaware ("Bankruptcy Court") under Chapter 11 of the United
States Bankruptcy Code, Case No. 98-1241 (JJF) ("Bankruptcy
Proceeding"). ▇▇▇▇▇▇▇ shall have assumed its existing Lease of a
portion of the Property, a copy of which, together with all
amendments and modifications thereto, is attached hereto as
Exhibit "C-2" (the "▇▇▇▇▇▇▇ Lease"), and there shall have been
entry by the Bankruptcy Court of a final, unappealable order
confirming the assumption by ▇▇▇▇▇▇▇ of the ▇▇▇▇▇▇▇ Lease,
without any assignment or modification of the ▇▇▇▇▇▇▇ Lease in
conjunction with or as a result thereof. ▇▇▇▇▇▇▇ shall also be
in occupancy of the space covered by the ▇▇▇▇▇▇▇ Lease and paying
rent on a current basis under the terms of the ▇▇▇▇▇▇▇ Lease.
8.5 Title Policy. Title to the Real Estate shall be
delivered to Buyer in the form described in Section 4.1 hereof,
and the Title Insurer shall have issued the Title Policy to Buyer
on the date of Closing.
8.6 No Material Adverse Change. No material adverse
change shall have occurred with respect to the Property, or the
business or financial condition of the Property, since the date
of this Agreement.
8.7 Third Party Approvals. Buyer shall have
received all third-party consents, waivers or approvals required
for the transfer of the Property to Buyer and the assignment by
Seller to Buyer of any contract, agreement, license or operating
permit which in the reasonable judgment of Buyer is necessary or
required for the development and operation of the Property,
or any portion thereof.
8.8 Representations and Warranties. All of the
representations and warranties of Seller contained in this
Agreement shall have been true and correct when made, and shall
be true and correct on the date of Closing with the same effect
as if made on and as of such date, and Buyer shall have received
a certificate executed by Seller to said effect.
8.9 Compliance by Seller. Seller shall have
performed, observed and complied with all covenants, agreements
and conditions required by this Agreement to be performed, ob-
served and complied with on its part prior to or as of Closing
hereunder, including, without limitation, the delivery of all
documents and other items to be delivered under Sections 5.4 and
7.1 hereof.
8.10 Board Approval. Within fifteen (15) working
days after the Effective Date, the Board of Directors of CV REIT,
Inc., the parent corporation of the general partner of Buyer,
shall have approved the acquisition of the Property and this
Agreement.
8.11 Failure of Conditions. If any of the
conditions of Sections 8.1 through 8.10 are not satisfied (and
not waived in writing by Buyer) prior to Closing (or within the
period set forth in said sections, if applicable), then Buyer, at
Buyer's option and in Buyer's sole and absolute discretion, may
terminate this Agreement, as Buyer's sole and exclusive remedy,
in which event the Deposit, together with all accrued interest
thereon, shall forthwith be returned to Buyer (and, in the event
of termination pursuant to Sections 4.2 or 8.5 hereof, Seller
shall reimburse Buyer for all Title Insurer charges incurred by
Buyer and additional out-of-pocket costs not to exceed Fifty
Thousand Dollars ($50,000), this Agreement shall be null and
void, and the parties hereto shall have no further rights,
obligations or liabilities hereunder, provided, however,
that if a failure of a condition is due to the breach by Seller
of any of its obligations hereunder or a material
misrepresentation or breach of warranty made by Seller in this
Agreement, then Buyer's remedies in respect thereof shall not be
limited to the right to terminate this Agreement as set forth
above, and Buyer's remedies in respect thereof shall be as
described in Section 10A. Notwithstanding the foregoing, if any
of the conditions set forth in Sections 8.2 through 8.9 are
not satisfied or waived by the date set forth for the Closing in
Section 5.1, Buyer shall have the option to extend the date for
the satisfaction or waiver of the conditions, and the date for
Closing, for a period of thirty (30) days.
9. Damage or Destruction; Condemnation; Insurance.
9.1 Termination. If at any time prior to the date
of Closing, all or any portion of the Property is destroyed or
damaged as a result of fire or any other casualty whatsoever
("Casualty Damage") and the cost of restoring such Casualty
Damage exceeds Two Hundred Fifty Thousand Dollars ($250,000), or
if all or any portion of the Property is condemned or taken by
eminent domain proceedings by any public authority
("Condemnation"), then Buyer, at Buyer's option, may terminate
this Agreement within thirty (30) days after Seller's written
notice to Buyer of such Casualty Damage or Condemnation (subject
to the extension of such thirty (30) day period, if necessary,
until ten (10) days following the final adjustment of any
insurance claim based on casualty damage or an irrevocable
written acknowledgment by the insurance company that the cost of
restoration is fully insured excluding any deductible, or
following a final adjustment of estimated just compensation based
on a Condemnation), in which event the Deposit, together with all
interest earned thereon, shall be returned to Buyer, this
Agreement shall be null and void, and the parties hereto shall
have no further rights, obligations or liabilities here-
under. If the deadline for Closing set forth in Section 5.1
would expire within such thirty (30) day period (as extended),
such deadline shall be extended to fifteen (15) days after the
end of said thirty (30) day period (as extended). Seller shall
give prompt written notice to Buyer of any Casualty Damage or
Condemnation, and shall promptly submit proof of loss in the
event of Casualty Damage and diligently thereafter pursue final
adjustment of its insurance claim.
9.2 Condemnation; No Termination. If there is a
Condemnation and Buyer does not elect to terminate this Agreement
as permitted by Section 9.1, then all Condemnation proceeds paid
or payable to Seller shall belong to Buyer and shall be paid over
and assigned to Buyer at Closing, and Seller shall further
execute all assignments and any other documents or instruments as
Buyer may reasonably request or as may be necessary to transfer
all interest in all such proceeds to Buyer or to whomever Buyer
shall direct.
9.3 Casualty; No Termination. If there is Casualty
Damage and Buyer does not elect to terminate (or is not permitted
to terminate) this Agreement as provided in Section 9.1,
then (a) in the event such Casualty Damage is fully insured
(exclusive of any insurance policy deductible), (i) all insurance
proceeds paid or payable to Seller shall belong to Buyer and
shall be paid over and assigned to Buyer at Closing, (ii) Seller
shall further execute all assignments and any other documents or
other instruments as Buyer may reasonably request or as may be
necessary to transfer all interest in all such proceeds to Buyer
or to whom-ever Buyer shall direct, and (iii) Seller shall credit
Buyer at Closing with an amount equal to the amount of any
insurance policy deductible; and (b) in the event such Casualty
Damage is not fully insured (exclusive of any insurance policy
deductible), then (i) all insurance proceeds paid or payable to
Seller shall belong to Buyer and shall be paid over and assigned
to Buyer at Closing, (ii) Seller shall further execute all
assignments and any other documents as Buyer may reasonably
request or as may be necessary to transfer all interest in all
such proceeds to Buyer or to whomever Buyer shall direct,
and (iii) Seller shall credit Buyer at Closing with the amount of
any insurance policy deductible plus an amount equal to all
additional funds (in excess of available insurance proceeds)
required to fully restore the Property to its condition prior to
the Casualty Damage.
9.4 Disputes. In the event of a dispute between
Seller and Buyer with respect to the cost of restoration under
Section 9.1 above, an engineer designated by Seller and an
engineer designated by Buyer shall select an independent engineer
licensed to practice in the State of New Jersey, who shall
resolve the dispute, and said engineer's decision shall be final,
binding and unappealable. All fees, costs and expenses of the
engineer so selected shall be shared equally by Buyer and Seller.
Such a selection process may be initiated by either party
upon ten (10) days prior written notice to the other given at any
time during the period within which Buyer may terminate this
Agreement under Section 9.1, and, in the event such notice is
given, the deadline for Buyer's termination of this Agreement
under Section 9.1 and the deadline for Closing set forth in
Section 5.1 shall be extended until fifteen (15) days following
the decision of the independent engineer selected under this
Section 9.4.
10. Buyer's Default. In the event Buyer defaults under
this Agreement, then Seller, as Seller's sole and exclusive
remedy, shall be entitled to retain the Deposit and all interest
which has accrued thereon as liquidated damages (and not as a
penalty) in lieu of, and as full compensation for, all rights or
claims of Seller against Buyer by reason of such default; and
thereupon this Agreement shall be null and void and the parties
hereto shall have no further rights, obligations or liabilities
hereunder.
10A. Seller's Default. In the event that there is a breach
by Seller of any of Seller's obligations hereunder or a material
misrepresentation or breach of warranty made by Seller in
this Agreement, then Buyer, in addition to any right to terminate
this Agreement set forth elsewhere herein, shall have the right
to (a) specific performance of this Agreement, and (b) (i)
if Closing does not occur, recovery of third-party out-of-pocket
expenditures (including, without limitation, expenditures on
account of environmental, structural and other investigations of
the Property and the books and records related thereto,
attorneys' fees and expenses, title insurance charges, accounting
fees and expenses, charges for any survey prepared for Buyer,
consultant fees and expenses, travel expenses and all other costs
incurred by Buyer) made by Buyer in preparation for Closing, or
(ii) if Closing does occur, then subject to the limitations of
Section 14.7, recovery of all damages suffered by Buyer as a
result of Seller's breach. Further, and notwithstanding the
foregoing, in the event of a willful breach by Seller of Seller's
obligations hereunder or a willful, material misrepresentation or
breach of warranty by Seller hereunder, and such willful breach
or misrepresentation does not permit Closing to occur in
accordance with the terms of this Agreement, Buyer shall not be
limited to its pre-Closing remedies as described above in this
Section 10A, and may pursue any rights or remedies available to
Buyer at law or in equity on account of such breach or
misrepresentation.
11. Undertakings by Seller and Buyer. In addition to the
obligations required to be performed hereunder by Seller and
Buyer at Closing, Seller and Buyer each agrees to perform such
other acts, and to execute, acknowledge and deliver, prior to, at
or subsequent to Closing, such other instruments, documents and
other materials as the other may reasonably request and as shall
be necessary in order to effect the consummation of the
transaction contemplated hereby and to vest title to the
Property in Buyer.
12. Notices. All notices, consents and other
communications hereunder shall be in writing (whether or not a
writing is expressly required hereby), and either hand
delivered, sent by overnight mail such as Federal Express or sent
by first class certified mail, return receipt requested, postage
prepaid, and addressed to the respective parties at the addresses
listed below (or at such other address as a party may hereafter
designate for itself by notice to the other party as required
hereby), and such notices, consents and communications shall be
deemed given when received, unless (a) hand delivery or delivery
by mail as aforesaid is refused, in which case notice shall be
deemed given when hand delivery is attempted or delivery by mail
is posted, as the case may be, or (b) delivery by mail is
unclaimed, in which case notice shall be deemed given three (3)
business days after posting:
If to Buyer:
▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty L.P.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Pike
Suite 200
Plymouth Meeting, PA 19462
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With a required contemporaneous copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Fox, Rothschild, O'Brien & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Seller:
▇▇▇▇ ▇▇▇▇▇, Executive Vice President
Lakewood - 9 Investors, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a required contemporaneous copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
Brach, Eichler, Rosenberg, Siler,
▇▇▇▇▇▇▇▇▇, Hammer & Gladstone
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices, consents and other communications may be given on
behalf of the parties by their respective counsel.
13. Brokers. Seller and Buyer each warrant and represent
to the other that each has had no dealings, negotiations or
communications with any brokers or other intermediaries in
connection with this Agreement or the sale of the Property other
than The ▇▇▇▇▇▇▇ Organization ("Broker"). Seller shall pay all
fees, commissions and other charges due to Broker. In the event
that any claim is asserted by any other person, firm or
corporation, whether broker or otherwise, claiming a
commission and/or finder's fee with respect to the sale and
purchase of the Property resulting from any act, representation
or promise of Seller, Seller shall indemnify, defend and hold
Buyer harmless from and against any such claim, and in the event
any such claim shall be made against Seller resulting from any
act, representation or promise of Buyer with respect to said sale
and purchase, Buyer shall likewise indemnify, defend and hold
Seller harmless from and against any such claim.
14. Miscellaneous.
14.1 Effective Date. The date that Buyer receives
an original fully-signed copy of this Agreement, with all
exhibits attached, is herein referred to as the "Effective Date".
14.2 Headings. The headings preceding the text of
the paragraphs and subparagraphs hereof are inserted solely for
convenience of reference and shall not constitute a part of this
Agreement, nor shall they affect its meaning, construction or
effect.
14.3 Parties at Interest. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors
and permitted assigns. This Agreement and Buyer's rights
hereunder may be assigned by Buyer to Buyer's nominee upon
written notice to Seller and without the prior consent of Seller.
Any such assignment shall provide that Buyer's nominee assumes
all of the provisions of this Agreement to be performed by Buyer,
and Buyer shall be released and discharged of all further
liability under this Agreement. All references to Buyer in this
Agreement shall be deemed to include references to Buyer's
nominee.
14.4 Computation of Time. In computing any period
of time pursuant to this Agreement, the day of the act or event
from which the designated period of time begins to run shall not
be included. The last day of the period so computed shall be
included, unless it is a Saturday, Sunday or legal holiday in the
State of New Jersey, in which event the period shall run until
the end of the next day which is not a Saturday, Sunday or such
legal holiday.
14.5 Recording. This Agreement shall not be
recorded in any office or place of public record, and if Buyer
shall record this Agreement or cause the same to be recorded
without Seller's express written consent thereto, Seller may, at
Seller's option, elect to treat such act as a breach of this
Agreement.
14.6 Waiver. The failure of either party to insist
upon strict compliance with any of the terms or conditions of
this Agreement shall not be deemed a waiver thereof, nor shall
any waiver of any right hereunder at any one or more times be
deemed a waiver or relinquishment of such right at any other time
or times.
14.7 Survival. Only the provisions of Sections 5.2,
6, 6A, the last two sentences of 7.5, 9.2, 9.3, 10A, 11, 13, and
14 hereof shall survive Closing, and such surviving Sections
shall survive only for a period of two (2) years following
Closing, except for Seller's and Buyer's respective
representations, warranties, agreements and indemnities set forth
in Sections 6.10, the last three sentences of Section 6.3, the
last two sentences of 7.5, 10A and 13, which shall survive
without time limitation, and the provisions of Section 6.11,
which shall only survive for a period of six (6) months following
Closing. If a party has not received written notice within such
two (2) year period of a claim by the other party of a breach or
default under any of the aforementioned surviving sections (or
within six (6) months in the case of claims under Section
6.11), specifying with particularity the nature and extent of the
claimed breach or default, then all covenants, representations,
agreements, conditions, obligations and undertakings contained in
the surviving section, except as so specified and except as set
forth in Sections 6.10, the last two sentences of 7.5, 10A and
13, shall be deemed to have been fully performed, waived or
otherwise discharged. All covenants, representations,
warranties, agreements, conditions, obligations and
undertakings hereunder which are not specified to survive Closing
shall be deemed to have been fully performed, waived or otherwise
discharged by the occurrence of a Closing, and shall merge
into the Deed.
14.8 Entire Agreement; Amendments. This Agreement
and the exhibits hereto set forth all of the promises, covenants,
agreements, conditions and undertaking between the parties hereto
with respect to the subject matter hereof, and supersede all
prior and contemporaneous agreements and understandings,
inducements or conditions, expressed or implied, oral or written,
between the parties, except as contained herein. This Agreement
may not be changed orally but only by an agreement in writing,
duly executed by or on behalf of the party against whom
enforcement of any waiver, change, modification, consent or
discharge is sought.
14.9 Governing Law. This Agreement and any and all
disputes arising out of or in connection herewith shall be
governed by the laws of the State of New Jersey.
14.10 "As Is" Purchase. Buyer hereby acknowledges
the Property has been inspected prior to the date of this
Agreement, or will be inspected by Buyer prior to Closing.
Subject to the provisions of this Agreement, Buyer hereby agrees
to purchase the Property "as is" and not in reliance upon any
statement, representation or warranty of Seller not otherwise
expressly set forth herein.
14.11 Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
14.12 Construction. As used herein, the terms (a)
"person" and "party" shall mean an individual, a corporation, a
limited liability company, a partnership, a trust, an
unincorporated organization or any agency or political
subdivision thereof; and (b) "including" shall mean including,
without limiting the generality of the foregoing.
14.13 Partial Invalidity. If any provision of this
Agreement is found by a court of law to be in violation of any
applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if
such court should declare such provision of this Agreement to be
illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent both of Seller and Buyer that the remainder
of this Agreement shall be construed as if such illegal, invalid,
unlawful, void or unenforceable provision was not contained
herein, and the rights, obligations and interest of Seller and
Buyer under the remainder of this Agreement shall continue in
full force and effect.
14.14 Prevailing Party. If either Buyer or Seller
brings an action to enforce its rights under this Agreement, the
successful party shall be reimbursed by the unsuccessful party
for all costs of enforcement, including reasonable attorneys'
fees and court costs. Tender of deed or purchase money shall not
be necessary where the other party has defaulted.
14.15 Time is of the Essence. Time is of the
essence of this Agreement.
14.16 Confidentiality. Each of the parties to this
Agreement shall use its best efforts to maintain the
confidentiality of the information provided to the other, and the
transactions which occur pursuant to this Agreement; provided
that, each such party shall have the right to disclose
information relating to this Agreement and such transactions to
their respective lenders, counsels, accountants, consultants and
employees engaged in providing services in connection with this
Agreement or such transactions.
14.17 Undertakings by Seller and Buyer.
(a) In addition to the obligations required to be
performed hereunder by Seller and Buyer at Closing, Seller and
Buyer each agrees to perform such other acts, and to execute,
acknowledge and deliver, prior to, at or subsequent to Closing,
such other instruments, documents and other materials as the
other may reasonably request and as shall be necessary in
order to effect the consummation of the transaction contemplated
hereby and to vest title to the Property in Buyer.
(b) Without limiting the generality of the
foregoing, Seller agrees that Seller shall cooperate with Buyer
and any affiliate or agent of Buyer ("Buyer's Affiliate") in
Buyer's compliance with the reporting requirements of the
Securities and Exchange Commission ("SEC") and Buyer's or Buyer's
Affiliate's primary commercial lender. Such cooperation shall
include, without limitation, providing copies of audited
financial statements, prepared by Seller's accountant, along with
a representation letter from Seller's accountant and/or attorney,
permitting the attachment of such financial statements as part of
filings with the SEC, for up to three (3) years prior to the
Closing. If audited financial statements are not available for
any year for which an audited statement is required by Buyer or
Buyer's Affiliate, Seller shall provide Buyer with access to
Seller's books and records sufficient to permit Buyer to prepare
such audited statements, at Buyer's sole cost and expense. Buyer
shall reimburse Seller and Seller's accountant for any reasonable
costs incurred by Seller or Seller's accountant in complying with
the requirements of this Section 14.17(b), including, without
limitation, paying Seller's accountant a reasonable fee for the
use of the audited financials and the issuance of the consent
letter, if applicable.
14.18 Buyer's Consultants. Seller agrees that if
and to the extent that Buyer's counsel, accountants, engineers or
other consultants perform services for or on behalf of Seller
in connection with the consummation of the transactions described
herein, including, without limitation, rendering tax advice to
Seller, then Seller shall credit the Purchase Price at Closing
for the cost of Buyer's services.
IN WITNESS WHEREOF, the parties have executed and
delivered this Agreement.
SELLER:
ARC - LAKEWOOD - 9 L.L.C.,
a New Jersey limited liability company
Attest:_____________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇
LAKEWOOD - 9 INVESTORS, L.P.,
a New Jersey limited partnership
By: ARC - LAKEWOOD, L.P., a New Jersey limited
partnership, its Sole General Partner
By: ARC - LAKEWOOD/G.P., Inc., a New Jersey
corporation, its Sole General Partner
Attest:_____________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇
BUYER:
▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P.
By: ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty Trust,
its general partner
Witness:___________________ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LIST OF EXHIBITS
Exhibit A Defined Terms
Exhibit B Legal Description of Property
Exhibit C List of Leases
Exhibit C-1 Revised List of Leases
Exhibit C-2 List of Unaccrued Commissions
Exhibit D Permitted Conditions of Title
Exhibit E Tenant Estoppel Certificate
Exhibit E-1 SNDA
Exhibit E-2 Landlord's Affidavit
Exhibit F Service Contracts
Exhibit G Pending Litigation
Exhibit H Insurance
Exhibit I Form of Letter of Credit
EXHIBIT A
Defined Terms. The following terms shall have the meanings set
forth in the following sections
of this Agreement:
ALPHABETICAL LISTING
Act - Section 5.4.14
Additional Rent - Section 5.2.2
Additional Shop-Rite Rent - Section 6A.2
Agreement - Introduction
Assignment and Assumption of Service Contracts - Section 5.4.4
Assignment and Assumption of Leases - Section 5.4.3
Bankruptcy Court - Section 8.4
Bankruptcy Proceeding - Section 8.4
Broker - Section 13
Buyer - Introduction
Buyer's Affidavit - Section 14.17
Casualty Damage - Section 9.1
Certificates - Section 5.4.15
China Wok - Section 6A.1
China Wok Lease - Section 6A.1
Closing - Section 5.1
Collected Additional Rent - Section 5.2.2
Condemnation - Section 9.1
Compensation Period - Section 6A.3
Deed - Section 5.4.1
Deposit - Section 3.1
Described Unaccrued Commissions - Section 6.3
Effective Date - Section 14.1
Escrow Agent - Section 3.2
Estimated Amounts - Section 6A.3
Existing China Wok Space - Section 6A.1
Expense Amount - Section 5.2.2
FIRPTA - Section 5.4.14
Improvements - Introduction
including - Section 14.12
ISRA - Section 5.4.18
Latest Rent Commencement Date - Section 6A.2
Leases - Section 4.1
LP Agreement - Section 5.4.15
L.L.C. Agreement - Section 5.4.15
Negative Declaration - Section 5.4.18
New China Wok Space - Section 6A.1
NJDEP - Section 5.4.18
Pending Litigation - Section 6.10
Percentage Rent - Section 5.2.3
Permitted Conditions of Title - Section 4.1
person - Section 14.12
Personalty - Section 1
Projected Latest Rent Commencement Date - Section 6A.2
Proration Date - Section 5.2.1
Property - Introduction
Property - Section 1
Purchase Price - Section 2
Real Estate - Section 1
Reconciliation Period - Section 5.2.2
Rent Commencement Date - Section 6A.3
Rent Credit - Section 6A.2
Roof Decision Date - Section 5.2.7
SEC - Section 14.17
Seller - Introduction
Seller's Share - Section 5.2.7
Service Contracts - Section 6.4
Shop-Rite Lease - Section 6A.2
Shop-Rite Expansion Space - Section 6A.2
SNDA - Section 5.4.13
▇▇▇▇▇▇▇ - Section 8.4
▇▇▇▇▇▇▇ Lease - Section 8.4
Survey - Section 7.3
Surveyor - Section 7.3
Title Commitment - Section 4.1
Title Insurer - Section 2
Title Policy - Section 4.1
SECTION LISTING
Agreement - Introduction
Seller - Introduction
Buyer - Introduction
Improvements - Introduction
Property - Introduction
Real Estate - Section 1
Personalty - Section 1
Property - Section 1
Purchase Price - Section 2
Title Insurer - Section 2
Deposit - Section 3.1
Escrow Agent - Section 3.2
Leases - Section 4.1
Permitted Conditions of Title - Section 4.1
Title Policy - Section 4.1
Title Commitment - Section 4.1
Closing - Section 5.1
Proration Date - Section 5.2.1
Additional Rent - Section 5.2.2
Expense Amount - Section 5.2.2
Collected Additional Rent - Section 5.2.2
Reconciliation Period - Section 5.2.2
Percentage Rent - Section 5.2.3
Roof Decision Date - Section 5.2.7
Seller's Share - Section 5.2.7
Deed - Section 5.4.1
Assignment and Assumption of Leases - Section 5.4.3
Assignment and Assumption of Service Contracts - Section 5.4.4
SNDA - Section 5.4.13
Act - Section 5.4.14
FIRPTA - Section 5.4.14
Certificates - Section 5.4.15
LP Agreement - Section 5.4.15
L.L.C. Agreement - Section 5.4.15
NJDEP - Section 5.4.18
ISRA - Section 5.4.18
Negative Declaration - Section 5.4.18
Described Unaccrued Commissions - Section 6.3
Service Contracts - Section 6.4
Pending Litigation - Section 6.10
China Wok - Section 6A.1
China Wok Lease - Section 6A.1
Existing China Wok Space - Section 6A.1
New China Wok Space - Section 6A.1
Additional Shop-Rite Rent - Section 6A.2
Latest Rent Commencement Date - Section 6A.2
Projected Latest Rent Commencement Date - Section 6A.2
Rent Credit - Section 6A.2
Shop-Rite Expansion Space - Section 6A.2
Shop-Rite Lease - Section 6A.2
Compensation Period - Section 6A.3
Estimated Amounts - Section 6A.3
Rent Commencement Date - Section 6A.3
Survey - Section 7.3
Surveyor - Section 7.3
Bankruptcy Court - Section 8.4
Bankruptcy Proceeding - Section 8.4
▇▇▇▇▇▇▇ - Section 8.4
▇▇▇▇▇▇▇ Lease - Section 8.4
Casualty Damage - Section 9.1
Condemnation - Section 9.1
Broker - Section 13
Effective Date - Section 14.1
person - Section 14.12
including - Section 14.12
Buyer's Affiliate - Section 14.17
SEC - Section 14.17
EXHIBIT 2.2
REINSTATEMENT AND AMENDMENT AGREEMENT
This Reinstatement and Amendment Agreement is made this 5th
day of February, 1999, by and between LAKEWOOD-9 INVESTORS, L.P.
AND ARC-LAKEWOOD-9 L.L.C. (collectively, "Seller") and ▇▇▇▇▇▇▇▇▇▇
▇▇ REALTY L.P. ("Purchaser").
BACKGROUND
A. Seller and Purchaser were parties to an Agreement of
Sale dated January 21, 1999 (the "Purchase Agreement"), pursuant
to which Purchaser agreed to buy from Seller and Seller
agreed to sell to Purchaser all that certain land with buildings
and improvements thereon erected known as Lakewood Plaza Shopping
Center, Lakewood Township, Ocean County, NJ, as more
particularly described therein (the "Property"). All terms not
separately defined herein shall have the meanings that are
ascribed to them in the Purchase Agreement
B. Pursuant to Section 5.2.7 of the Purchase Agreement,
the parties had until January 28, 1999 to agree upon the cost of
roof repairs/replacements to be borne by Seller ("Seller's
Share").
C. The parties were unable to agree in writing upon the
Seller's Share within the stipulated time period and the Purchase
Agreement became null and void and of no further force or effect.
Seller and Purchaser have now agreed to delete Section 5.2.7 from
the Purchase Agreement and to reduce the Purchase Price, and
desire to reinstate the Purchase Agreement as set forth in more
detail hereafter.
D. Furthermore, in accordance with Section 4.1 of the
Purchase Agreement, Purchaser has obtained a title insurance
commitment ("Title Commitment") from Lawyers Title Insurance
Corporation (the "Title Insurer"), being commitment no.
02-14166-T, and Purchaser has delivered a copy thereof to Seller.
Pursuant to Section 4.1 of the Purchase Agreement, Seller and
Purchaser have agreed to amend the Purchase Agreement to modify
the Permitted Conditions of Title in accordance with the terms
and conditions herein contained.
NOW, THEREFORE, for and in consideration of the promises and
the mutual covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be
legally bound, Seller and Purchaser agree as follows:
1. Reinstatement. The Purchase Agreement is hereby
reinstated and shall hereafter be in full force and effect as a
binding agreement among the parties, subject to the amendments
thereof described below.
2. Amendments.
(a) Section 2 of the Purchase Agreement is hereby
amended to reflect an Eight Hundred Fifty Thousand Dollar
($850,000) reduction in the Purchase Price so that the aggregate
Purchase Price shall be Twenty-Four Million One Hundred Ten
Thousand Dollars ($24,110,000).
(b) Section 5.2.7 of the Purchase Agreement is hereby
deleted in its entirety.
(c) The matters disclosed in Schedule B - Section 1 of
the Title Commitment, Items (i) through (n), and in Schedule B -
Section 2 of the Title Commitment, Items 1, 5 and 7 are hereby
identified as objections to title ("Title Objections") by
Purchaser. Seller hereby undertakes and agrees to cause the
foregoing Title Objections to be removed from the Title
Commitment on or before the Closing.
(d) The matters disclosed in Schedule B-Section 2 of
the Title Commitment, Items 2 and 6 are hereby identified as
Title Objections by Purchaser but will be considered
acceptable so long as Purchaser secures from the Title Insurer
modifications to such items of the Title Commitment prior to
February 22, 1999 in substantially the following form:
"Item 2 - rights or claims of tenants in possession who
are listed on the current rent roll for the insured premises
attached hereto as Schedule "__".
Item 6 - Liens for unpaid taxes for 1999 which are not
yet due and payable."
The foregoing modifications shall constitute conditions
precedent to Purchaser's obligation to complete Closing under the
Purchase Agreement.
(e) The matters disclosed in Schedule B - Section 2,
Items 8, 9, the easement recorded in Deed Book 4967, Page 137
which is part of Item 12 and Item 14 of the Title
Commitment are hereby identified as Title Objections by
Purchaser, but will be considered as acceptable to Purchaser so
long as on or before February 22, 1999, Purchaser secures either
the removal of the Title Objections or, in the case of the
easement recorded in Deed Book 4967, Page 137 which is part of
Item 12 and Item 14, an endorsement to the Title Commitment or
affirmative coverage from the Title Insurer satisfactory to
Purchaser which insures against loss or damage resulting from the
forced or attempted forced removal of (i) the concrete pads of
the loading dock which encroaches upon, the easement recorded in
Deed Book 4967, Page 137 which is part of Item 12, and (ii) the
building erected over the right of way for gas pipes described as
Item 14.
(f) In the event Purchaser is unable to secure the
removal of and/or affirmative coverage with respect to Items 8,
9, 12 and 14 of Schedule B-Section 2 of the Title
Commitment as described in paragraph (e) above, or the
modification of Items 2 and 6 of Schedule B-Section 2 of the
Title Commitment as described in paragraph (d) above, Purchaser
shall so notify Seller in writing on or before February 23, 1999.
In the event Purchaser does not so notify Seller on or before
February 23, 1999, Purchaser shall be deemed to have accepted
the Property subject to such Items 2, 6, 8, 9, 12 and 14 as
currently described in the Title Commitment or as may have been
modified prior to February 22, 1999. If Purchaser does so
notify Seller in accordance hereof, Seller shall then have until
March 5, 1999 to replace the Title Insurer with a nationally
recognized title insurance company who will issue a title
insurance commitment which is the same as the Title Commitment in
all respects except that the replacement title insurance
commitment will provide for the modification of Items 2 and 6
described above and the removal of and/or affirmative coverage
described above with respect to Items 8, 9, 12 and 14. In the
event Seller does not deliver to Purchaser such replacement
title insurance commitment on or before March 5, 1999, this
Agreement will automatically be null and void and of no further
force or effect.
5. All of the other terms and conditions of the Purchase
Agreement, as amended hereby, shall remain in full force and
effect, as so amended.
IN WITNESS WHEREOF, the parties have executed this
Reinstatement and Amendment Agreement on the date set forth
above.
SELLER:
ARC - LAKEWOOD - 9 L.L.C.,
a New Jersey limited liability company
Attest:_____________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇
LAKEWOOD - 9 INVESTORS, L.P.,
a New Jersey limited partnership
By: ARC - LAKEWOOD, L.P., a New Jersey limited
partnership, its Sole General Partner
By: ARC - LAKEWOOD/G.P., Inc., a New Jersey
corporation, its Sole General Partner
Attest:_____________________ By: /s/ ▇▇▇▇ ▇▇▇▇▇
PURCHASER:
▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P.
By: ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty Trust,
its general partner
Witness:___________________ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
EXHIBIT 2.3
ASSIGNMENT OF AGREEMENT OF SALE
This ASSIGNMENT OF AGREEMENT OF SALE is made as of the 17th
day of March, 1999, by and between ▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P., a
Delaware limited partnership ("Assignor") and LAKEWOOD PLAZA 9
ASSOCIATES, L.P., a Delaware limited partnership ("Assignee").
Assignor and LAKEWOOD - 9 INVESTORS, L.P., a New Jersey
limited partnership, and ARC - LAKEWOOD - 9 L.L.C., a New Jersey
limited liability company ("Seller") are parties to an Agreement
of Sale dated January 21, 1999 (the "Agreement"), pursuant to
which Assignor agreed to purchase from Seller and Seller agreed
to sell to Assignor, certain real estate and the buildings and
improvements erected thereon located in the Township of Lakewood,
Ocean County, New Jersey and more particularly described on
Exhibit A hereto (the "Property"). Assignor now desires to
assign its right, title and interest in and to the Agreement to
Assignee.
Accordingly, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by
Assignor, and intending to be legally bound hereby, Assignor
hereby transfers and assigns to Assignee all of Assignor's right,
title and interest in and to the Agreement, including, without
limitation, the right to acquire the Property and all other items
to be purchased from the Seller thereunder, for the purchase
price stated therein. Assignee hereby accepts such assignment
from Assignor and assumes Assignor's obligations under the
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment of Agreement of Sale as of the date and year first
above written.
ASSIGNOR: ASSIGNEE:
▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P. LAKEWOOD PLAZA 9 ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty
Trust,
its general partner By: LAKEWOOD PLAZA 9, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P.,
Member
By: ▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY TRUST,
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Managing Trustee