AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made by and
between CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation
("Seller"), CEDAR INCOME FUND PARTNERSHIP, L.P.,, a Delaware limited partnership
("Purchaser"), as of the "Effective Date" (as defined below).
Article I.
Property
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Seller hereby agrees to sell, and Purchaser hereby agrees to buy, all
of the following property: (a) a parcel of real property (the "Land"), located
in the Borough of Camp Hill, Township of East Pennsboro, County of Cumberland,
and Commonwealth of Pennsylvania, more particularly described on Exhibit A
attached to this Agreement, containing approximately 45 acres; (b) the buildings
and other improvements located on the Land, (collectively, the "Improvements")
including, without limitation, a shopping center containing approximately
522,629 square feet of gross rentable space, generally known as "Camp Hill
Mall", together with all rents, issues, profits, appurtenant easements, and
other rights, parking areas, tenements and hereditaments belonging or pertaining
to the Land or the Improvements (the Land and the Improvements are referred to
herein, collectively, as the "Real Property"); and (c) all fixtures, equipment,
leases, licenses, trade names, permits, franchises, license agreements, and
equipment leases (all to the extent any of the foregoing are assignable by
Seller), and other personal property (both tangible and intangible, including,
without limitation, any service and maintenance agreements that Purchaser has
agreed to assume pursuant to the terms of this Agreement, but shall exclude the
property management agreement, which shall be terminated) owned by Seller and
used in the operation or management of the Real Property (the "Personal
Property") (collectively, the Real Property and the Personal Property are
sometimes referred to herein as the "Property").
Page 1
Article II.
Purchase Price and Deposits
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The purchase price which the Purchaser agrees to pay and the Seller
agrees to accept for the Property shall be the sum of Seventeen Million Two
Hundred Thousand and No/100 Dollars ($17,200,000.00) (hereinafter referred to as
the "Purchase Price"), subject to adjustment as provided in Article V hereof,
payable as follows:
(a) An ▇▇▇▇▇▇▇ money deposit (the "▇▇▇▇▇▇▇ Deposit") of Two Hundred
Thousand and No/100 Dollars ($200,000.00), in cash, to be deposited
with New York Land Services, Inc. (sometimes referred to herein as
"Escrow Holder" or the "Title Company") at the office set forth in the
section entitled "Notices" below, within three (3) business days after
execution hereof by both parties, such amount to be held in escrow and
deposited in an interest-bearing account; and
(b) An additional ▇▇▇▇▇▇▇ money deposit (the "Additional
Deposit") of Two Hundred Thousand and No/100 Dollars ($200,000.00), in
cash, to be deposited by Purchaser with the Escrow Holder within three
(3) business days after expiration of the Feasibility Period
(hereinafter defined), such amount to be held in escrow and deposited
in an interest-bearing account (the Additional Deposit and the ▇▇▇▇▇▇▇
Deposit, together with interest thereon, will be collectively referred
to hereinafter as the "Deposit"); and
(b) The balance of the Purchase Price shall be paid at time of
Closing by Federal wire transfer, with the transfer of funds to Seller
to be completed by 2:00 P.M. Eastern Time on the day of the Closing. As
used in this Agreement, the term "Eastern Time" shall be deemed to mean
Eastern Standard Time or Eastern Daylight Time, as applicable.
The Deposit shall be paid to Seller at the Closing as a credit against
the Purchase Price. Purchaser shall provide the Escrow Holder with its tax
identification number, and all interest shall be for Purchaser's account for tax
purposes.
In addition to the Deposit, Purchaser shall deliver three (3) fully
executed originals of this Agreement to the Escrow Holder immediately after
execution by both parties. The date of delivery of the originals shall be
acknowledged by the Escrow Holder on all three, and such date shall be the
"Effective Date" of this Agreement. The Escrow Holder shall retain one (1)
original of this Agreement and deliver one (1) original hereof to each of
Purchaser and Seller.
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The Escrow Holder shall hold the Deposit subject to and in accordance
with this Agreement. It is agreed that the Escrow Holder shall not release the
Deposit except upon the mutual written consent of both parties hereto, or, if
such consent is not obtained, the Escrow Holder may deliver the Deposit to the
party entitled to same pursuant to the provisions of this Contract, provided not
less than five (5) business days' prior written notice is given to the parties.
If after sending such notice, if the Escrow Holder receives written notice from
either party disputing the intended disposition of the Deposit as indicated in
said notification from the Escrow Holder, then notwithstanding anything herein
contained to the contrary, the Escrow Holder shall retain the Deposit until the
dispute is settled, as evidenced by mutual written agreement of the parties, or
until the Escrow Holder is instructed otherwise by a final judgment of a court
of competent jurisdiction. In the event of such dispute, the Escrow Holder shall
also have the right to deposit said Deposit into a court of competent
jurisdiction and from and after the date such deposit is made and notice thereof
is given to Purchaser and Seller, the Escrow Holder shall be released and
discharged of all obligations with respect thereto.
It is further agreed and understood: (1) that the Escrow Holder shall
not be liable for the disposition of the Deposit, except in the case of its
gross negligence or willful disregard of the provisions of this Agreement; and
(2) that no compensation shall be paid to the Escrow Holder for its services
performed hereunder. Seller and Purchaser hereby indemnify and hold Escrow
Holder harmless against any loss, cost, liability, judgment, claim or other
expense whatsoever (including reasonable attorneys' fees) incurred or arising
out of the performance of its duties hereunder, except claims arising from
Escrow Holder's gross negligence or willful breach of its duties.
Article III.
Failure to Close
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3.1 Purchaser's Default. If Seller has complied with all of the
covenants and conditions contained herein and is ready, willing and able to
convey the Property in accordance with this Agreement, this Agreement has not
otherwise been terminated and Purchaser fails to consummate this Agreement and
take title, then the parties hereto recognize and agree that the damages that
Seller will sustain as a result thereof will be substantial, but difficult if
not impossible to ascertain. Therefore, the parties agree that, in the event of
Purchaser's default, Seller shall, as its sole remedy, be entitled to retain the
Deposit as liquidated damages, and neither party shall have any further rights
or obligations with respect to the other under this Agreement, except for the
Surviving Covenants (hereinafter defined).
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3.2 Seller's Default. In the event that Purchaser has complied with all
of the covenants and conditions contained herein and is ready, willing and able
to take title to the Property in accordance with this Agreement, and Seller
fails to consummate this Agreement and convey title as set forth herein, then
Purchaser may, as its sole remedy, elect within thirty (30) days of such failure
to either: (i) terminate this Agreement and recover the Deposit plus all
reasonable third-party out of pocket costs and expenses up to a maximum of
Thirty Thousand Dollars ($30,000), or (ii) seek specific performance of this
Agreement provided, however, that unless Purchaser notifies Seller within thirty
(30) days after the Closing Date (as hereinafter defined) that it intends to
enforce specific performance, commences such action for specific performance
within sixty (60) days after the Closing Date, and provides Seller a copy of the
complaint filed in connection therewith in accordance with the notice provisions
of this Agreement within such sixty (60) day period, the remedy of specific
performance shall be deemed waived by Purchaser and Purchaser shall be deemed to
have elected the remedy specified in clause (i) above.
Article IV.
Closing and Transfer of Title
-----------------------------
4.1 Closing. The parties hereto agree to conduct a closing of this sale
(the "Closing") on or before 10:00 a.m. on October 10, 2002 (the "Closing Date")
in the principal office of Seller's counsel or at such other place as may be
agreed upon by the parties hereto. This Agreement shall terminate if transfer of
title is not completed by the Closing Date (unless such failure to close is due
to Seller's default, the date for Closing is extended pursuant to any provision
hereof, including, without limitation, the matters described in Sections 6.3,
6.4, 6.5 and Article VII hereof, or the date for Closing is extended by
agreement of the parties, which agreement shall be confirmed in writing).
Notwithstanding the foregoing, or any other provision herein, Seller shall have
no obligation to close if the closing and transfer of title does not occur on or
before December 19, 2002, unless such failure to close is due solely to the
default of Seller.
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4.2 Closing Procedure. Seller shall execute and deliver or cause to be
delivered: (a) a Special Warranty Deed, in the form attached hereto as Exhibit
C, proper for recording, conveying Seller's interest in the Real Property to
Purchaser, subject, however, to: (i) restrictions as reported in the Title
Commitment (defined in Section 6.5) or shown on the Survey (as defined in
Section 6.4) and either approved by Purchaser or as to which objection has been
waived by Purchaser, (ii) taxes not yet due and payable, (iii) the rights of
lessees and licensees of space in the Improvements at the time of Closing (to
the extent shown on the Rent Roll), and (iv) any encumbrances permitted by the
terms of this Agreement; (b) a ▇▇▇▇ of Sale and General Assignment in the form
attached hereto as Exhibit D, dated as of the date of Closing, conveying to
Purchaser any and all Personal Property; (c) an Assignment and Assumption of
Leases and Security Deposits in the form attached hereto as Exhibit E, dated the
date of Closing, assigning all of the landlord's right, title and interest in
and to any tenant and other leases covering all or any portion of the Real
Property and in and to any and all security deposits; (d) an Assignment and
Assumption of Borough of Camp Hill Agreement (the "Assignment and Assumption of
Borough of Camp Hill Agreement") assigning that certain Borough of Camp Hill
Agreement for Completion and Guarantee of Plan Improvements, a copy of which is
attached hereto as Exhibit H; (e) Tenant Notification Letters (the "Tenant
Notices"), dated the date of the Closing, executed by Seller, and complying with
applicable statutes in order to relieve Seller of liability for tenant security
deposits (provided the security deposits are paid to Purchaser), notifying the
tenants of the Real Property that the Property has been sold to Purchaser and
directing the tenants to pay rentals to Purchaser (or Purchaser's designated
agent); (f) the originals of all leases, lease files and, to the extent in
Seller's possession or under Seller's control, as built plans and specifications
and maintenance and service contracts that are to be assumed; (g) tenant
estoppel certificates executed by all tenants listed on Exhibit I attached
hereto, and at least seventy-five percent (75%), as measured by floor area, of
the remaining tenants of space in the Improvements, in the form attached hereto
as Exhibit J, and a representation and warranty by Seller as to the same matters
for all leases shown on the Rent Roll for which no tenant estoppel certificate
was obtained; (h) an updated Rent Roll, in the form of the Rent Roll attached
hereto as Exhibit B, dated as of the date of Closing; (i) an affidavit that
Seller is not a "foreign person" in the form attached as Exhibit F; (j) a master
key or duplicate key for all locks in the Improvements; and (k) to the extent in
the possession of Seller or Seller's property management company, all
maintenance records and other non-proprietary files related to and located at
the Property or at the offices of Seller's property manager.
Page 5
Purchaser shall be responsible for obtaining an Owner's Title Insurance
Policy provided, however, that Purchaser's obligation to proceed with the
consummation of this transaction shall be conditioned upon there being no items
listed on Schedule B of the Title Insurance Policy other than those listed on
Schedule B of the Title Commitment (as hereinafter defined) that were either
approved by Purchaser or as to which objection has been waived by Purchaser in
accordance with the provisions of Section 6.5 of this Agreement.
4.3 Purchaser's Performance. At the Closing, Purchaser will cause the
Purchase Price to be delivered to the Title Company, will execute and deliver
the Tenant Notices, the Assignment and Assumption of Leases and Security
Deposits, the Assignment and Assumption of Borough of Camp Hill Agreement, and
the ▇▇▇▇ of Sale and General Assignment.
4.4 Evidence of Authority; Miscellaneous. Both parties will deliver to
the Title Company and each other such evidence or documents as may reasonably be
required by the Title Company or either party hereto evidencing the power and
authority of Seller and Purchaser and the due authority of, and execution and
delivery by, any person or persons who are executing any of the documents
required hereunder in connection with the sale of the Property. Both parties
will execute and deliver such other documents as are reasonably required to
effect the intent of this Agreement.
Article V.
Prorations of Rents, Taxes, Etc.
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Real estate taxes for the year of closing shall be prorated as of 12:01
a.m. on the date of Closing either using actual tax figures or, if actual
figures are not available, then using as a basis for said proration the most
recent assessed value of the Real Estate multiplied by the current tax rate,
with a subsequent cash adjustment to be made between Purchaser and Seller when
actual tax figures are available. Purchaser acknowledges that the costs
associated with the appeal of real estate taxes shall be treated as an expense
of the Property, and to the extent tenant leases provide for payment of a
portion of such costs, such amounts shall be prorated and reimbursed to Seller
in accordance with this Article V. Personal property taxes, annual permit or
inspection fees, sewer charges and other expenses normal to the operation and
maintenance of the Property shall also be prorated as of 12:01 a.m. on the date
of Closing. With respect to any property tax appeals or reassessments filed by
Seller before or after the Closing Date for tax years prior to the tax fiscal
year in which the Closing occurs, any and all payments received shall belong to
Seller. Rents that have been collected for the month of the Closing will be
prorated at the Closing, effective as of 12:01 a.m. on the date of the Closing.
With regard to rents that are delinquent as of the date of the Closing, (i) no
proration will be made at the Closing, (ii) Purchaser will make a good faith
effort after the Closing to collect the rents in the usual course of Purchaser's
operation of the Property, and (iii) Purchaser will apply all rents so collected
first to the current rents, second to delinquent rents owed to Purchaser, third
to costs of collection of any such delinquent rents, and the excess amount, if
any, shall then be applied to delinquent rents owed to Seller. It is agreed,
however, that Purchaser will not be obligated to institute any lawsuit or other
collection procedures to collect delinquent rents. Rents collected by Seller
after the Closing Date shall be promptly delivered to Purchaser for allocation
and distribution as set forth hereinabove.
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As of the Closing Date, Purchaser shall be entitled to a credit for any
tenant deposits under the leases.
Final readings on all gas, water and electric meters shall be made as
of 12:01 a.m. on the date of closing, if possible. If final readings are not
possible, gas, water and electricity charges will be prorated based on the most
recent period for which costs are available. Any deposits made by Seller with
utility companies shall be returned to Seller. Purchaser shall be responsible
for making all arrangements for the continuation of utility services and Seller
shall cooperate with Purchaser to the extent required to accomplish such
continuation. After the Closing, Purchaser will assume full responsibility for
all security deposits and advance rental deposits of current tenants of the Real
Property currently held by Seller, which items will be itemized by Seller and
credited to Purchaser at the Closing.
All items (including taxes) that are not subject to an exact
determination shall be estimated by the parties. When any item so estimated is,
within twelve months after the Closing, capable of exact determination, the
party in possession of the facts necessary to make the determination shall send
the other party a detailed report on the exact determination so made and the
parties shall adjust the prior estimate within thirty (30) days after both
parties have received said reports.
Notwithstanding the foregoing, Purchaser acknowledges that Seller
reserves the right to any appeal of the real property tax assessments for the
Property for the year 2002 and all years prior to the Closing. Seller agrees to
cooperate and coordinate with Purchaser in connection with any appeal for tax
year 2002. Seller further agrees to take no action that may prejudice any tax
appeal rights that Purchaser may have for its period of ownership during tax
year 2002.
The provisions of this Article V shall survive the Closing.
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ARTICLE VI.
Purchaser Inspections and Contingencies
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6.1 Document Inspection. Seller has made the following items relating
to the Real Property available for review by Purchaser, to the extent in
Seller's or its property manager's possession:
1. Copies of all service and maintenance agreements;
2. A rent roll of the tenants of the Property
3. Copies of all tenant leases
4. Copies of any certificates of occupancy, licenses and permits
and governmental approvals
5. Copies of any lease commission agreements
6. Copies of any major warranties currently in effect
7. Books and records of the Property
8. Copies of any environmental or engineering studies
9. Delinquency report
10. Copy of Seller's existing title policy, with exceptions
11. Seller's most recent survey of property
12. Copy of current operating budget
13. Any tax appeal documents
14. All plans and construction drawings
15. Financial statements for the Property for the past three (3)
years
16. Monthly operating statements for the past three (3) years
17. Real estate tax bills for the past three (3) years
18. Utility bills for the past twelve (12) months
19. Detail on tenant by tenant basis for reimbursements for CAM,
taxes and insurance with supporting schedule of expenses
Page 8
Purchaser agrees that if for any reason the Closing is not consummated,
Purchaser will immediately return to Seller all materials furnished to Purchaser
pursuant to this Section 6.1. Seller agrees to provide its environmental
consultants with written authorization to permit certification of all
environmental reports to Purchaser. Seller agrees to authorize its environmental
consultant, ATC Associates Inc. to issue a letter during the Feasibility Period
stating that Purchaser may use and rely upon the environmental reports that it
has prepared for the Real Property.
6.2 Physical Inspection. In addition to the items set forth in Section
6.1, Seller will make the Property available for inspection by Purchaser and
Purchaser may, at Purchaser's risk, conduct an engineering and/or market and
economic feasibility study of the Property and undertake such physical
inspection of the Property as Purchaser deems appropriate as soon as possible
after the Effective Date of this Agreement. Such inspection shall be conducted
at reasonable times upon reasonable oral or written notice to Seller's property
manager. Seller shall have the right to designate a representative to accompany
Purchaser's employees, agents, and independent contractors on any such
inspections. Prior to its entry on the Property, Purchaser shall provide Seller
with evidence of liability and property damage insurance coverage covering its
activities under this Article, in an amount not less than $1,000,000, which
insurance shall name Seller as an additional insured.
Purchaser hereby agrees to pay, protect, defend, indemnify and save
Seller harmless from, against, and with respect to, and to be responsible for
any and all liabilities, obligations, claims (including mechanic's lien claims),
damages, penalties, causes of action, judgments, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) imposed upon,
incurred by or asserted against Seller in connection with or arising out of the
entry upon the Real Property by Purchaser's employees, agents or independent
contractors and the actions of such persons on the Real Property. In the event
any part of the Property is damaged or excavated by Purchaser, its employees,
agents or independent contractors, Purchaser agrees in the event its purchase
hereunder is not consummated, to make such additional payments to Seller as may
be reasonably required to return the Property to its condition immediately prior
to such damage or excavation or, at Seller's option, to cause such work to be
done. Notwithstanding any provision to the contrary herein, Purchaser's
obligations under this subparagraph shall survive the expiration or termination
of this Agreement, and shall survive Closing.
Page 9
6.3. Feasibility Period. Purchaser shall have a period ending September
10, 2002 (the "Feasibility Period") to conduct its inspection of the documents
delivered in accordance with Section 6.1 and to conduct studies and a physical
inspection of the Property as set forth in Section 6.2. On or before 5:00 p.m.
Eastern Time of the last day of the Feasibility Period, Purchaser may, in its
sole discretion without obligation to specify which aspect of its inspection was
unsatisfactory, terminate this Agreement by providing a written notice to Seller
so providing. Upon receipt of such notice, this Agreement shall terminate and
Seller shall instruct the Escrow Holder to return the Deposit to Purchaser, less
one-half of any escrow fee charged by the Escrow Holder, and neither party shall
have any obligation to the other, except for the Surviving Covenants. If
Purchaser fails to provide such notice of termination on or before 5:00 p.m.
Eastern Time of the last day of the Feasibility Period, Purchaser shall be
deemed to have approved such inspections and this Agreement shall remain in full
force and effect.
6.4. Survey Contingency. Seller shall submit to Purchaser a copy of
Seller's most recent ALTA survey of the Real Property (the "Survey").
Purchaser shall have until 5:00 p.m. Eastern Time on the last day of
the Feasibility Period to object in writing to the Survey, including, without
limitation, any objection to the boundaries set forth in the Survey and to the
legal description. This contingency shall be deemed satisfied or waived if
Seller has not received written notice of Purchaser's objection on or before
such time and date. Any such written notice shall state all of Purchaser's
objections with specificity. Upon receipt of such notice, Seller may, but shall
not be obligated to, cure such objections. If Seller cures such objections
within fifteen (15) days, or, if such objections are such that they cannot be
cured within fifteen (15) days and Seller has commenced curing such objections
and thereafter diligently proceeds to perfect such cure (but in no event beyond
forty-five (45) days unless agreed to by Purchaser), then this Agreement shall
continue in force and effect, and the Closing Date shall be adjusted
accordingly. If Seller is unable to, or chooses not to, cure such objections
within the time permitted, this Agreement shall terminate, Seller shall instruct
the Escrow Holder to return the Deposit to Purchaser, less one-half of any
escrow fee charged by the Escrow Holder, and neither party shall have any
further obligations hereunder except for the Surviving Covenants.
Notwithstanding the foregoing, however, Purchaser may waive such objections that
Seller is unable to or chooses not to cure, and upon receipt by Seller of such
waiver in full from Purchaser within ten (10) days of notice from Seller that it
is unable or chooses not to cure such objections, this Agreement shall remain in
full force and effect with no reduction in the Purchase Price.
Page 10
If requested by Seller, Purchaser will confirm in writing whether this
survey contingency has been satisfied and, if so, the date on which it was
satisfied.
6.5. Title Contingency. Promptly after execution of this Agreement,
Purchaser shall obtain a commitment for an Owner's Title Insurance Policy (the
"Title Commitment"), at Purchaser's sole expense, issued by the Title Company,
together with legible copies of all items and documents referred to in the Title
Commitment. The Title Commitment will commit the Title Company to issue the
Owner's Title Policy to Purchaser at the Closing in the amount of the Purchase
Price. Upon receipt of the Title Commitment and accompanying documents by
Purchaser, Purchaser shall have until the last day of the Feasibility Period to
state any objections in writing. This contingency shall be deemed satisfied or
waived if such written notice of objection is not received by Seller before 5:00
p.m. Eastern Time on such date. Such written notice of objection shall state all
of Purchaser's objections with specificity. Upon receipt of such notice, Seller
may, but shall not be obligated to, cure such objections; provided, however that
Seller agrees to remove any mortgages and remove or bond over any liens that are
due and payable prior to the Closing Date. If Seller cures such objections
within fifteen (15) days, or, if such objections are such that they cannot be
cured within fifteen (15) days and Seller has commenced curing such objections
and thereafter diligently proceeds to perfect such cure, then this Agreement
shall continue in full force and effect and the Closing Date shall be adjusted
accordingly. If Seller is unable or chooses not to cure such objections within
the time permitted, then this Agreement shall terminate, and Seller shall
instruct the Escrow Holder to return the Deposit to Purchaser, less one-half of
any escrow fee charged by the Escrow Holder, and neither party shall have any
further obligations hereunder except for the Surviving Covenants.
Notwithstanding the foregoing, however, Purchaser may waive such objections that
Seller is unable or chooses not to cure within ten (10) days after receipt of a
notice that Seller is unable or chooses not to cure such objections, and upon
receipt by Seller of such waiver in full from Purchaser, this Agreement shall
remain in full force and effect with no reduction in the Purchase Price.
If requested by Seller, Purchaser will confirm in writing whether this
title contingency has been satisfied and, if so, the date on which it was
satisfied.
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Article VII.
Loss due to Casualty or Condemnation
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7.1 Loss due to Condemnation. In the event of a condemnation of all or
a Substantial Portion (as hereinafter defined) of the Real Property which
condemnation shall or would render a Substantial Portion of the Real Property
untenantable, or if any portion of the building or parking area is taken, either
party may, upon written notice to the other party given within ten (10) days of
receipt of notice of such event, cancel this Agreement, in which event Seller
shall instruct the Escrow Holder to return the Deposit to Purchaser, less
one-half of any escrow fee charged by the Escrow Holder, this Agreement shall
terminate and neither party shall have any rights or obligations hereunder
except for the Surviving Covenants. In the event that neither party elects to
terminate, or if the condemnation affects less than a Substantial Portion or
does not affect the building or parking area, then this Agreement shall remain
in full force and effect, and Seller shall be entitled to all monies received or
collected by reason of such condemnation prior to closing. In such event, the
transaction hereby contemplated shall close in accordance with the terms and
conditions of this Agreement except that there will be an abatement of the
Purchase Price equal to the amount of the net proceeds, less actual third party
out of pocket costs and reasonable attorney's fees, that are received by Seller
prior to Closing by reason of such condemnation. If the condemnation proceeding
shall not have been concluded prior to the Closing, then there shall be no
abatement of the Purchase Price and Seller shall assign any interest it has in
the pending award to Purchaser. For purposes of this Section 7.1, a Substantial
Portion shall mean a condemnation of in excess of $250,000 in value of the Real
Property or a condemnation that gives Boscov's the right to terminate its lease.
7.2 Loss due to Casualty. In the event of Substantial Loss or Damage
(as hereinafter defined) to the Real Property by fire or other casualty (not
resulting from acts of Purchaser), Purchaser may, upon written notice to Seller
given within ten (10) days of receipt of notice of such event, cancel this
Agreement in which event Seller shall instruct the Escrow Holder to return the
Deposit to Purchaser, less one-half of any escrow fee charged by the Escrow
Holder, and this Agreement shall terminate and neither party shall have any
rights or obligations hereunder except for the Surviving Covenants. In the event
that neither party elects to terminate, or if the casualty results in less than
Substantial Loss or Damage, then: (i) this Agreement shall remain in full force
and effect and Seller shall be entitled to all insurance proceeds received or
collected by reason of such damage or loss, whereupon the transaction hereby
contemplated shall close in accordance with the terms and conditions of this
Agreement except that there will be abatement of the Purchase Price equal to the
amount of the net proceeds, plus Seller's deductible, costs and attorney's fees
that are received by Seller as a result of such damage or loss, provided that
such abatement will be reduced by the amount expended by Seller in accordance
with Article VIII hereof for restoration or preservation of the Property
following the casualty, or (ii) Seller may, in its discretion, elect to repair
or replace the damaged Property, the date of Closing shall be extended
accordingly for up to, but not to exceed, an additional three (3) months, and
there shall be no abatement of the Purchase Price in such case. For purposes of
this Section 7.2, "Substantial Loss or Damage" shall mean loss or damage, the
cost for repair of which exceeds $1,000,000 or which permits Boscov's to
terminate its lease.
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Article VIII.
Maintenance of the Property; Leasing Before Closing
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Between the Effective Date and the Closing, Seller shall keep the
Property insurance in full force and effect, maintain the Property in good
repair, reasonable wear and tear excepted, shall perform all work required to be
done under the terms of any lease or agreement relating to the Property, and
shall timely make all repairs, maintenance and replacements of equipment or
improvements, the same as though Seller were retaining the Property; except that
in the event of a fire or other casualty, damage or loss, Seller shall have no
duty to repair said damage, other than as stated in Section 7.2 above. However,
Seller may repair any such damage with Purchaser's prior, written approval and
may, without Purchaser's approval, repair damage where such repair is necessary
in Seller's reasonable opinion to preserve and protect the health and safety of
tenants of the Property or to preserve the Property from imminent risk of
further damage or if required to do so by Seller's insurance carrier. Any such
emergency repairs shall be reported to Purchaser within forty-eight (48) hours
after their commencement. During the period after the Effective Date and prior
to the Closing, Seller shall not amend any existing lease in any material
respect and shall not lease any portion of the Real Property unless such lease
has been approved in writing by Purchaser. Seller's request for approval shall
include a copy of any leasing commission agreement, a quote for the cost of any
tenant improvements and a copy of the proposed lease. Any such proposed lease
shall be on Seller's standard form of lease and, (i) during the Feasibility
Period shall be reviewed and approved or rejected within two (2) business days
after receipt thereof by Purchaser; and (ii) after the Feasibility Period and
prior to Closing shall be reviewed and approved or rejected within five (5)
business days after receipt thereof by Purchaser, approval during both time
periods not to be unreasonably withheld. Failure to approve or reject such
proposed lease within such applicable time periods shall be deemed approval. If
the proposed lease is rejected, then Seller shall not enter into such lease.
With respect to any leases entered into between the Effective Date hereof and
the Closing Date, Purchaser shall pay the unamortized cost (based on the number
of months in the entire term of the lease for which rent is paid and the number
of such months that shall have occurred as of the date of the Closing) of all
tenant improvements and commercially reasonable third-party leasing commissions
with respect thereto. Between the Effective Date and the Closing Date, Seller
shall not enter into any new or modify any current service or maintenance
contracts for the Property the term(s) of which extend beyond the Closing Date.
Page 13
Article IX.
Broker
------
Purchaser and Seller represent to each other that they have dealt with
no agent or broker who in any way has participated as a procuring cause of the
sale of the Property, except Metro Commercial Real Estate, Inc. ("Broker").
Seller shall pay any commission due Broker at the Closing, and Broker shall be
responsible for paying any applicable co-broker under terms of any separate
agreement between the parties. Purchaser and Seller each agree to defend,
indemnify and hold harmless the other for any and all judgments, costs of suit,
attorneys' fees, and other reasonable expenses which the other may incur by
reason of any action or claim against the other by any broker, agent, or finder
with whom the indemnifying party has dealt arising out of this Agreement or any
subsequent sale of the Property to Purchaser, except for the above-described
commissions, which shall be paid by Seller. The provisions of this Article IX
shall survive the Closing and any termination of this Agreement.
Article X.
Representations and Warranties
------------------------------
10.1 Limitations on Representations and Warranties. Purchaser hereby
agrees and acknowledges that, except as set forth in Section 10.2 below, neither
Seller nor any agent, attorney, employee or representative of Seller has made
any representation whatsoever regarding the subject matter of this sale, or any
part thereof, including (without limiting the generality of the foregoing)
representations as to the physical nature or condition of the Property or the
capabilities thereof, and that Purchaser, in executing, delivering and/or
performing this Agreement, does not rely upon any statement and/or information
to whomever made or given, directly or indirectly, orally or in writing, by any
individual, firm or corporation. Purchaser agrees to take the Real Property and
the Personal Property "as is," as of the date hereof, reasonable wear and tear,
excepted. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL
CONDITION OF THE PROPERTY OR THE SUITABILITY THEREOF FOR ANY PURPOSE FOR WHICH
PURCHASER MAY DESIRE TO USE IT, EXCEPT AS SET FORTH IN SECTION 10.2 HEREOF.
SELLER HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY AND/OR
FITNESS FOR A PARTICULAR PURPOSE AND, EXCEPT AS SET FORTH IN SECTION 10.2
HEREOF, ANY OTHER WARRANTIES OR REPRESENTATIONS AS TO THE PHYSICAL CONDITION OF
THE PROPERTY. PURCHASER, BY ACCEPTANCE OF THE DEED, AGREES THAT IT HAS INSPECTED
THE PROPERTY AND ACCEPTS SAME "AS IS" AND "WITH ALL FAULTS".
Page 14
Purchaser understands that any financial statements and data,
including, without limitation, gross rental income, operating expenses and cash
flow statements, to be made available by Seller to Purchaser, will be unaudited
financial statements and data not prepared or reviewed by independent public
accountants, and, With the exception of the Rent Roll, that Seller makes no
representation as to the accuracy or completeness thereof.
10.2 Representations and Warranties of Seller. Seller makes the
following representations and warranties and agrees that Purchaser's obligations
under this Agreement are conditioned upon the truth and accuracy of such
representations and warranties, both as of this date and as of the date of the
Closing:
(a) Seller has the corporate power and authority to enter into this
Agreement and convey the Property to Purchaser.
(b) Except as set forth below in this subparagraph with respect to
Boscov's, and except for those tenants and licensees in possession of the Real
Property under written leases or license agreements for space in the Real
Property, as shown in the Rent Roll, to the best of Seller's knowledge there are
no parties in possession of, or claiming any possession to, any portion of the
Real Property as lessees, tenants at sufferance, licensees, trespassers or
otherwise. Boscov's is currently utilizing sections of the basement in the
Improvements for storage. There is no written lease or license agreement for
such space and Seller is currently negotiating with Boscov's to enter into a
license agreement therefor or to cause Boscov's to vacate the basement storage
space.
Page 15
(c) The certified Rent Roll attached hereto is and the updated Rent
Roll for the Real Property, which shall be delivered at the Closing, will be
true, correct and complete as of the date set forth thereon; no tenant will be
entitled to any rebates, rent concessions, or free rent (other than as reflected
in said Rent Roll) and no rents due under any of the tenant or other leases will
have been assigned, hypothecated, or encumbered, to any party except pursuant to
documents to be released at Closing.
(d) There are no attachments or executions affecting the Property,
general assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, pending or, to the best of Seller's knowledge,
threatened against Seller.
(e) To the best of Seller's knowledge, during the period of Seller's
ownership of the Property, Seller has not itself, and to the best of Seller's
knowledge, except as set forth in the Phase I Environmental Site Assessment
issued by ATC dated October 31, 2000, for the Camp Hill Mall, no prior owner, or
current or prior tenant, or other occupant of all or any part of the Property at
any time has, used Hazardous Materials (hereinafter defined) on, from, or
affecting the Property in any manner that violates any Environmental Laws, and
to the best of Seller's knowledge no Hazardous Materials have been disposed of
or exist on the Property. "Hazardous Materials" shall mean those substances
which are contained in any list of hazardous substances adopted by the United
States Environmental Protection Agency (the "EPA") or any list of toxic
pollutants designated by Congress or the EPA or which are defined as pollutant,
infectious, flammable, radioactive, or hazardous or toxic to health or the
environment by any federal, state or local environmental laws, regulations,
ordinances or code, including asbestos, radon, urea formaldehyde, petroleum,
petroleum by products and polychlorinated biphenyls. For purposes of this
subsection (f) the phrase "Environmental Laws" shall mean any currently in
effect applicable federal, Commonwealth of Pennsylvania or local laws,
regulations, ordinances or codes to the extent the same regulate or impose
liability or standards of conduct concerning the actual or alleged use, storage,
treatment, transportation, manufacture, processing, handling, production or
disposal of any Hazardous Materials.
(f) There are no employees of Seller or any independent contractor or
agent of Seller who will remain employed by Seller at the Property after the
Closing.
Page 16
(g) To the best of Seller's knowledge, no person, firm, corporation or
entity other than Purchaser has any right or option to acquire ownership of the
Premises or any portion thereof. No person, firm, corporation or entity other
than Purchaser will obtain such right or option as a result of the execution of
this Agreement.
(h) To Seller's knowledge, no special assessment with respect to the
Property is being contemplated, nor are there any tax reduction proceedings
currently pending with respect to the Property, except as otherwise disclosed to
Purchaser.
10.3 Representations and Warranties of Purchaser. Purchaser makes the
following representations and warranties and agrees that Seller's obligations
under this Agreement are conditioned upon the truth and accuracy of such
representations and warranties, both as of this date and as of the date of the
Closing:
(a) Purchaser is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware, has duly
authorized the execution and performance of this Agreement, and such execution
and performance will not violate any material terms of its limited partnership
agreement. At Closing, Purchaser's assignee will be authorized to do business in
the Commonwealth of Pennsylvania,
(b) Purchaser is acting as principal in this transaction with
authority to close the transaction.
(c) No petition in bankruptcy (voluntary or otherwise), assignment
for the benefit of creditors, or petition seeking reorganization or arrangement
or other action under federal or state bankruptcy laws is pending against or
contemplated by Purchaser.
(d) Subject to Seller's representations and warranties in this
Agreement, Purchaser acknowledges that it will have had the opportunity to
inspect the Property fully and completely at its expense in order to ascertain
to its satisfaction the extent to which the Property complies with applicable
zoning, building, environmental, health and safety and all other laws, codes and
regulations.
(e) Unless otherwise disclosed to Seller in writing, neither
Purchaser nor any officer, shareholder or affiliate of or principal in Purchaser
is other than a citizen of, or partnership, corporation or other form of legal
person domesticated in, the United States of America.
Page 17
(f) Purchaser will not use the assets of an employee benefit plan
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974 ("ERISA") and covered under Title I, Part 4 of ERISA or Section 4975 of the
Internal Revenue Code of 1988, as amended, in the performance of its obligations
hereunder.
10.4 Seller's Knowledge. Whenever the term "to the best of Seller's
knowledge" is used in this Agreement or in any representations and warranties
given to Purchaser at Closing, such knowledge shall be the actual knowledge of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the asset manager assigned to the Real Property by CIGNA
Investments, Inc., authorized agent for Seller, after review of his files
created from and after assuming his asset management duties for the Real
Property and after inquiry of Seller's property manager and of Seller'▇▇▇ ▇▇▇▇▇.
Seller shall have no duty to conduct any further inquiry in making any such
representations and warranties, and no knowledge of any other person shall be
imputed to ▇▇. ▇▇▇▇▇▇▇. Purchaser acknowledges that Seller took title to the
Property via a deed-in-lieu of foreclosure on November 10, 2000, and that Seller
has limited records and knowledge pertaining to prior periods of time.
10.5 Survival. All representations and warranties contained in Sections
10.2 and 10.3 will survive the Closing (but only as to the status of facts as
they exist as of the Closing, it being understood that Seller and Purchaser make
no representations or warranties which would apply to changes or other matters
occurring after the Closing), but shall expire on the date one year from the
date of Closing, and no action on such representations and warranties may be
commenced after such expiration.
Article XI.
Liability Surviving Closing
---------------------------
Neither Seller nor any independent property manager which Seller has
hired to manage the Property shall, by entering into this Agreement, become
liable for any costs or expenses incurred by Purchaser subsequent to the date of
Closing, including: any labor performed on, or materials furnished to, the Real
Property, or for any leasing commissions or other fees or commissions due for
renewals or extensions of existing leases or otherwise, or for compliance with
any laws, requirements or regulations of, or taxes, assessments or other charges
Page 18
thereafter due to any governmental authority, or for any other charges or
expenses whatsoever pertaining to the Property or to the ownership, title,
possession, use, or occupancy of the Property, whether or not such costs and
expenses were incurred pursuant to obligations of Purchaser under this Agreement
(including, without limitation, any costs of compliance with presently-existing
and future environmental laws, any environmental remediation costs, and any
costs of, or awards of damages for, damage to the environment, to natural
resources, or to any third party, it being the intent of this Agreement, as
between Purchaser and Seller, to shift all such liability to Purchaser, except
for any liability of Seller under the provisions of Article X hereof), and
Purchaser hereby agrees to defend, indemnify and hold Seller and any independent
property manager hired by Seller, harmless from any such liability for such
costs and expenses. Notwithstanding the foregoing, Purchaser shall have no
liability (i) to Seller for any third-party claims that arose and are
attributable time periods prior to the time of Purchaser's ownership; or (ii) to
Seller's property manager with respect to Seller's existing property management
agreement, which shall be cancelled effective as of the Closing Date. The
provisions of this Article XI shall survive the Closing.
Article XII.
Assignment
----------
This Agreement may not be assigned or transferred by Purchaser to any
party other than an entity in which Purchaser has a direct or indirect
controlling interest without the prior written consent of Seller. Seller's
consent to an assignment of this Agreement shall not be deemed to be a consent
to any subsequent transfer or assignment. No assignment shall relieve Purchaser
of any of its obligations under this Agreement.
Article XIII.
Notices
-------
All notices hereunder or required by law shall be sent via facsimile
transmission to the parties numbers set forth below, via United States Mail,
postage prepaid, certified mail, return receipt requested, or via any nationally
recognized commercial overnight carrier with provisions for receipt, addressed
to the parties hereto at their respective addresses set forth below or as they
have theretofore specified by written notice delivered in accordance herewith:
Page 19
PURCHASER: Cedar Income Fund Partnership, L.P.
c/o Cedar Bay Realty Advisors, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
Phone: ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to: Cedar Bay Realty Advisors, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SELLER: Connecticut General Life Insurance Company
c/o CIGNA Retirement and Investment Services.
Real Estate Asset Management, H-11C
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to: CIGNA Corporation
c/o CIGNA Retirement and Investment Services.
Real Estate Law, H-11F
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Phone: ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
If to Escrow Holder: New York Land Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
The effective date of any notice given as aforesaid shall be the date
on the confirmation of transmission of any facsimile delivery, one (1) Business
Day after delivery to such overnight delivery service, or three (3) Business
Days after being deposited in the United States mail, in accordance with the
provisions as set forth herein, as applicable.
Page 20
Article XIV.
Expenses
--------
Seller shall pay its own attorney's fees, its own administration fees
and expenses, one-half of the realty transfer fee, any additional sales or
conveyance taxes that are levied in connection with the sale but not those
imposed with respect to Purchaser's mortgage financing or Section 1031 exchange,
if any, and one-half of any escrow fee charged by the Escrow Holder. All other
costs and expenses related to the transaction or this Agreement including but
not limited to any update of the Survey, the Owner's Title Policy, one-half of
the realty transfer fee, all of Purchaser's attorneys' fees and expenses,
recording charges, any mortgage tax, any additional sales or conveyance taxes
levied in connection with Purchaser's Section 1031 exchange, if any, one half of
any escrow fee charged by the Escrow Holder, and any Title Policy premium
required by any mortgagee of Purchaser (if any) shall be paid by Purchaser,
notwithstanding any local practice to the contrary.
Article XV.
Assessments
-----------
15.1 Seller shall be responsible to pay for all assessments for any
improvements (including, but not limited to, roads, curbs, sewer lines and the
like) which serve the Property, provided such improvements are completed and
assessments levied against the Property, prior to the Closing Date; and, if
Closing is consummated, Purchaser shall be responsible to pay for all
improvements completed and/or assessments levied against the Property after the
Closing Date.
15.2 If at Closing the Property, or any portion or portions thereof,
shall be affected by any assessments that are required to be paid by Seller
pursuant to the provisions of this Article XV and that are payable in annual or
other installments then for the purposes of this Agreement, Seller shall be
responsible to pay only the installment or installments due prior to the Closing
Date and, if Closing is consummated, Purchaser shall be responsible to pay all
installments due after the Closing.
Page 21
Article XVI.
Zoning; Violation Notices
-------------------------
16.1 Pursuant to the requirements of Pennsylvania law, Seller
represents that:
(a) The present use of the Property is in compliance with zoning;
and
(b) Seller has received no notices of uncorrected violations of
the housing, building, safety or fire ordinances except as set forth on Exhibit
K attached hereto (the "Existing Violations").
16.2 If required by local law, Seller shall furnish Purchaser a
Certification Statement respecting the Property issued by the applicable
governmental office, as required by local law] indicating compliance with the
provisions of this Article XVI dated no earlier than 30 days prior to Closing.
16.3 Purchaser understands that Seller shall not cure, prior to
Closing, any Existing Violations. If Seller or Purchaser receives notice of any
other violations after the end of the Feasibility Period and prior to Closing,
from any governmental or quasi-governmental authority, the receiving party shall
promptly notify the other party of such notice of violation. In such event,
Purchaser may elect either (a) to proceed to Closing by delivering notice of
such fact to Seller within ten (10) days after receipt of said notice of
violation or (b) to terminate this Agreement by delivering notice of termination
to Seller within ten (10) days after receipt of said notice of violation. If
Purchaser elects to proceed to Closing, Purchaser shall be responsible for the
cure of all violations against the Property, which Seller has no obligation to
cure as set forth above. If Purchaser sends Seller a notice of termination,
Seller may elect to cure such violation by notifying Purchaser in writing within
two (2) business days after receipt of Purchaser's notice of termination. In
such event this Agreement will continue in full force and effect. If Purchaser
does not deliver timely notice of termination to Seller, Purchaser shall be
deemed to have accepted such violation, and this Agreement shall remain in full
force and effect. If Seller does not deliver timely notice to Purchaser of its
decision to cure the violation, Seller shall be deemed to have accepted
Purchaser's notice of termination. In such event, Seller shall direct the Title
Company to return the Deposit to Purchaser and neither party shall have any
further obligation to the other except for the Surviving Covenants.
Page 22
Article XVII.
Miscellaneous
-------------
17.1 Successors and Assigns. All the terms and conditions of this
Agreement are hereby made binding upon the executors, heirs, administrators,
successors and permitted assigns of both parties hereto.
17.2 Gender. Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
17.3 Captions. The captions in this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit or prescribe the
scope or intent of this Agreement or any part hereof.
17.4 Construction. No provision of this Agreement shall be construed by
any Court or other judicial authority against any party hereto by reason of such
party's being deemed to have drafted or structured such provisions.
17.5 Entire Agreement. This Agreement constitutes the entire contract
between the parties hereto and there are no other oral or written promises,
conditions, representations, understandings or terms of any kind as conditions
or inducements to the execution hereof and none have been relied upon by either
party.
17.6 Recording. The parties agree that this Agreement shall not be
recorded. If Purchaser causes this Agreement or any notice or memorandum thereof
to be recorded, this Agreement shall be null and void at the option of the
Seller.
17.7 No Continuance. Purchaser acknowledges that there shall be no
assignment, transfer or continuance of any of Seller's insurance coverage or of
the property management contract.
17.8 Time of Essence. Time is of the essence in this transaction.
Page 23
17.9 Original Document. This Agreement may be executed by both parties
in counterparts in which event each shall be deemed an original.
17.10 Governing Law. This Agreement shall be construed, and the rights
and obligations of Seller and Purchaser hereunder, shall be determined in
accordance with the laws of the Commonwealth of Pennsylvania.
17.11 Intentionally omitted.
17.12 Confidentiality. Purchaser and Seller agree that all documents
and information concerning the Property delivered to Purchaser, the subject
matter of this Agreement, and all negotiations will remain confidential.
Purchaser and Seller will disclose such information only to those parties
required to know it, including, without limitation, employees of either of the
parties, consultants and attorneys engaged by either of the parties, and
prospective or existing investors and lenders. The provisions of this Section
17.12 survive any expiration or termination of this Agreement and shall
terminate upon Closing.
17.13 Surviving Covenants. Notwithstanding any provisions hereof to the
contrary, the Purchaser's obligations under the last paragraph of Section 6.1
and Section 17.12 shall survive any termination of this Agreement, the last
paragraph of Section 6.2 and Article IX and Article XIV, and the Escrow
Instructions shall survive the Closing and any termination of this Agreement,
the provisions of Articles V, XI and XVII (other than Section 17.12) shall
survive the Closing, and the provisions of Article X shall survive the Closing
for one (1) year (collectively, the "Surviving Covenants").
17.14 Approval. Seller's obligation to perform its duties hereunder is
contingent upon approval of the transaction by all required boards and
committees in accordance with the standard policies and procedures of CIGNA
Investments, Inc. Seller will seek such approvals commencing on the Effective
Date hereof and will notify Purchaser promptly of the decision of such boards
and committees. If the transaction is not approved, then Seller may terminate
this Agreement by giving notice thereof to Purchaser, whereupon the Deposit
shall be returned to Purchaser plus Purchaser's actual third-party out of pocket
expenses up to a maximum of Thirty Thousand Dollars ($30,000) and neither party
shall have any further rights or duties hereunder except for the Surviving
Covenants.
Page 24
17.15 8-K and Audit Requirements. For the period of time commencing on
the Closing Date and continuing through the first anniversary of the Closing
Date, Seller shall, from time to time, upon reasonable advance notice from
Purchaser, provide Purchaser and its representatives, agents and employees with
access to all financial and other information pertaining to the period of
Seller's ownership and operation of the Premises, which information is relevant
and reasonably necessary, in the opinion of Cedar Income Fund, Ltd.'s ("Cedar")
outside, third party accountants (the "Accountants"), to enable Cedar and its
Accountants to prepare financial statements in compliance with any or all of (a)
Rule 3-14 of Regulation S-X of the Securities and Exchange Commission (the
"Commission"); (b) any other rule issued by the Commission and applicable to
Cedar; and (c) any registration statement, report or disclosure statement filed
with the Commission by, or on behalf of, Cedar; provided, however, that in any
such event(s), Purchaser shall reimburse Seller for those third party,
out-of-pocket costs and expenses that Seller incurs in order to comply with the
foregoing requirement, including without limitation, a representation letter in
such form as is reasonably required by Purchaser, signed by the individual(s)
responsible for Seller's financial reporting, as prescribed by generally
accepted auditing standards promulgated by the Auditing Standards Division of
the American Institute of Certified Public Accountants, which representation
letter may be required to assist the Accountants in rendering an opinion on such
financial statements.
17.16 Business Day. As used in this Agreement, the term "Business Day"
or "Business Days", shall mean any day other than a Saturday, a Sunday, or a day
on which banks are closed in Pennsylvania.
[SIGNATURES ON FOLLOWING PAGES]
Page 25
EXECUTED BY PURCHASER this _____ day of ______________, 2002.
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
INC., a Delaware limited partnership
By: Cedar Income Fund, Ltd., a Maryland
corporation, general partner
By: ______________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
Page 26
EXECUTED BY SELLER this _____ day of ___________________, 2002.
SELLER:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, a Connecticut corporation
By: CIGNA Investments, Inc., a Delaware
corporation, its authorized
signatory
By: ______________________________
Name:
Title:
Page 27
Escrow Holder acknowledges receipt of three (3) originals of this Agreement
executed by Seller and Purchaser and receipt of the Deposit this _____ day of
_______________, 2002 (the "Effective Date"), and agrees that it shall hold the
Deposit in accordance with the terms of this Agreement and the Escrow
Instructions.
ESCROW HOLDER:
NEW YORK LAND SERVICES, INC.
By: _______________________________
Name:
Title:
Page 28
AGREEMENT OF PURCHASE AND SALE
BETWEEN
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
AND
CEDAR INCOME FUND PARTNERSHIP, L.P.
Camp Hill Mall
Camp Hill Pennsylvania
TABLE OF CONTENTS
Page
----
Article 1 Property 1
Article 2 Purchase Price and Deposits 2
Article 3 Failure to Close 3
3.1 Purchaser's Default 3
3.2 Seller's Default 3
Article 4 Closing and Transfer of Title 3
4.1 Closing 3
4.2 Closing Procedure 4
4.3 Purchaser's Performance 5
4.4 Evidence of Authority; Miscellaneous 5
Article 5 Prorations of Rents, Taxes, Etc. 5
Article 6 Purchaser Inspections and Contingencies 7
6.1 Document Inspection 7
6.2 Physical Inspection 7
6.3 Feasibility Period 8
6.4 Survey Contingency 8
6.5 Title Contingency 9
Article 7 Loss due to Casualty or Condemnation 10
7.1 Loss due to Condemnation 10
7.2 Loss due to Casualty 10
Article 8 Maintenance of the Property 11
Article 9 Broker 12
Article 10 Representations and Warranties 12
10.1 Limitations on Representations and Warranties 12
10.2 Representations and Warranties of Seller 13
10.3 Representations and Warranties of Purchaser 14
10.4 Seller's Knowledge 15
10.5 Survival 15
Article 11 Liability Surviving Closing 15
Article 12 Assignment 16
Article 13 Notices 16
TABLE OF CONTENTS (Continued)
Page
----
Article 14 Expenses 17
Article 15 Miscellaneous 18
15.1 Successors and Assigns 18
15.2 Gender 18
15.3 Captions 18
15.4 Construction 18
15.5 Entire Agreement 18
15.6 Recording 18
15.7 No Continuance 18
15.8 Time of Essence 18
15.9 Original Document 19
15.10 Governing Law 19
15.11 Acceptance of Offer 19
15.12 Confidentiality 19
15.13 Surviving Covenants 19
15.14 Approval 19
15.15 Business Day 20
Exhibit A - Description of Land
Exhibit B - Rent Roll
Exhibit C - Special Warranty Deed
Exhibit D - ▇▇▇▇ of Sale and General Assignment
Exhibit E - Assignment and Assumption of Leases and Security
Deposits
Exhibit F - Form of Seller's Affidavit of Non-Foreign Status
Exhibit G - Escrow Instructions
Exhibit H - Borough of Camp Hill Agreement for Completion and
Guarantee of Plan Improvements
Exhibit I - Required Estoppel Certificates
Exhibit J - Form of Lease Estoppel Certificate
Exhibit K - Uncorrected Violations Of Housing, Building,
Safety Or Fire Ordinances
EXHIBIT A
TO
AGREEMENT OF PURCHASE AND SALE
Description of Land
-------------------
ALL THAT CERTAIN tract of ground situate in the Borough of Camp Hill and the
Township of East Pennsboro, County of Cumberland and Commonwealth of
Pennsylvania, bounded and described as follows, to wit:
BEGINNING at a point, said point being the right-of-way intersection of the
southern right-of-way line of ▇▇▇▇▇▇▇ Road and the western right-of-way line of
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; thence along the western right-of-way line of South 32nd
Street, south 40 degree 33 minutes 00 seconds east, a distance of 134.51 feet to
a point; thence along the same, south 10 degrees 26 minutes 00 seconds east, a
distance of 461.34 feet to a point; thence along the same, south 11 degrees 48
minutes 00 seconds east, a distance of 870.92 feet to a point; thence along land
of Commonwealth of Pennsylvania, Ramp "H" Harrisburg Expressway the following
seven (7) courses: (1) south 78 degrees 12 minutes 00 seconds west, a distance
of 14.00 feet to a point; thence (2) on an arc of a curve curving to the right
having a radius of 394.00 feet, an arc length of 368.30 feet to a point; thence
(3) south 41 degrees 45 minutes 28 seconds west, a distance of 511.18 feet to a
point; thence (4) south 56 degrees 19 minutes 00 seconds west, a distance of
198.36 feet to a point; thence (5) along an arc of a curve curving to the right
having a radius of 364.00 feet, an arc length of 247.77 feet to a point; thence
(6) south 05 degrees 19 minutes 00 seconds west, a distance of 16.00 feet to a
point; thence (7) north 84 degrees 41 minutes 00 seconds west, a distance of
86.77 feet to a point; thence along land now or late of Pennsylvania Real Estate
Investment Trust the following four (4) courses: (1) north 24 degrees 49 minutes
00 seconds west, a distance of 99.92 feet to a point; (2) thence north 65
degrees 11 minutes 00 seconds east, a distance of 15.00 feet to a point; (3)
thence north 24 degrees 49 minutes 00 seconds west, a distance of 120.00 feet to
a point; (4) thence north 64 degrees 26 minutes 00 seconds east, a distance of
303.09 feet to a point; thence along the same, land now or late of Hampden
Industrial Development Authority and land now or late of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Sons,
Inc., north 24 degrees 49 minutes 00 seconds west, a distance of 1,633.31 feet
to a point on the southern right-of-way line of ▇▇▇▇▇▇▇ Road; thence along said
right-of-way line, north 65 degrees 21 minutes 00 seconds east, a distance of
1,184.06 feet to a point the point of BEGINNING.
BETING THE SAME PREMISES which Camp Hill Shopping Center, Inc., a Pennsylvania
Corporation, conveyed unto Mid-Island Properties, Inc., a Pennsylvania
Corporation, by deed dated August 19, 1970 and recorded September 8, 1970, in
the Recorder's Office in and for Cumberland County, PA in Record Book U, Volume
23, Page 145.
BEING THE SAME PREMISES which ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Orleans
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustees under Trust Indenture last amended and
restated December 17, 1971 and recorded in ▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania in
Deed Book 3757, Page 307, designated as Pennsylvania Real Estate Investment
Trust, conveyed unto Mid-Island Properties, Inc., a Pennsylvania corporation, by
deed dated September 23, 1984 and recorded October 2, 1984, in the Recorder's
Office in and for Cumberland County, PA in Record Book X, Volume 30, Page 532.
EXHIBIT B
TO
AGREEMENT OF PURCHASE AND SALE
Rent Roll
---------
[The Rent Roll follows this page.]
EXHIBIT C
TO
AGREEMENT OF PURCHASE AND SALE
Special Warranty Deed
---------------------
[The form of Special Warranty Deed follows this page.]
SPECIAL WARRANTY DEED
PENNSYLVANIA STATUTORY FORM OF WARRANTY DEED
TO BE USED FOR THIS TRANSACTION
EXHIBIT D
TO
AGREEMENT OF PURCHASE AND SALE
▇▇▇▇ of Sale and General Assignment
-----------------------------------
[The form of ▇▇▇▇ of Sale and General Assignment follows this page.]
▇▇▇▇ OF SALE AND GENERAL ASSIGNMENT
Concurrently with the execution and delivery hereof, CONNECTICUT
GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation ("Assignor"), is
conveying to ________________________________, a _____________________
("Assignee"), by Special Warranty Deed, that certain tract of land together with
the improvements thereon (the "Property") lying and being situated in the
Borough of Camp Hill, Township of East Pennsboro, County of Cumberland, and
Commonwealth of Pennsylvania, and being more particularly described in Exhibit
A, attached hereto and made a part hereof.
It is the desire of Assignor to hereby assign, transfer, set over and
deliver to Assignee all furnishings, fixtures, fittings, appliances, apparatus,
equipment, machinery and other items of personal property, if any, affixed or
attached to, or placed or situated upon, the Property, except those not owned by
Assignor and any and all other incidental rights and appurtenances relating
thereto, all as more fully described below (such properties being collectively
called the "Assigned Properties").
NOW, THEREFORE, in consideration of the receipt of Ten Dollars ($10.00)
and other good and valuable consideration in hand paid by Assignee to Assignor,
the receipt and sufficiency of which are hereby acknowledged and confessed by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and DELIVER to
Assignee, its successors and assigns, effective as of the date hereof, all of
the Assigned Properties, without warranty (whether statutory, express or
implied), including, without limitation the following:
1. All furnishings, fittings, equipment, appliances, apparatus,
machinery fixtures and all other personal property of every kind and character
(both tangible and intangible), if any, owned by Assignor and located in or on
the Property;
2. All of Assignor's interest in and to all use, occupancy, building
and operating permits, licenses and approvals, if any, issued from time to time
with respect to the Property or the Assigned Properties;
3. All of Assignor's interest in and to the maintenance, service and
supply contracts, if any, set forth on Exhibit __ attached hereto, relating to
the Property or the Assigned Properties (to the full extent same are
assignable);
4. All of Assignor's interest in and to all existing and assignable
guaranties and warranties (express or implied), if any, issued in connection
with the construction, alteration and repair of the Property and/or the
purchase, installation and the repair of the Assigned Properties;
5. All rights which Assignor may have to use any names commonly used in
connection with the Property, if any; and
6. All rights, which Assignor may have, if any, in and to any tenant
data, telephone numbers and listings, all master keys and keys to common areas,
all good will, if any, and any and all other rights, privileges and
appurtenances owned by Assignor and related to or used in connection with the
existing business operation of the Property.
TO HAVE AND TO HOLD the Assigned Properties, subject as aforesaid, unto
Assignee, its successors and assigns, to WARRANT AND FOREVER DEFEND, all and
singular, title to the Assigned Properties unto Assignee, its successors and
assigns, against every person whomsoever lawfully claiming or to claim the same,
or any part thereof, by, through or under Assignor, but not otherwise, subject
to all terms and provisions hereof and subject to the same Permitted
Encumbrances listed and described on Exhibit B to that certain Special Warranty
Deed of even date herewith from Assignor to Assignee.
ASSIGNOR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL
CONDITION OF THE ASSIGNED PROPERTIES OR THE SUITABILITY THEREOF FOR ANY PURPOSE
THAT ASSIGNEE MAY DESIRE TO USE IT. ASSIGNOR HEREBY EXPRESSLY DISCLAIMS ANY
WARRANTIES AS TO MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND ANY
OTHER WARRANTIES OR REPRESENTATIONS AS TO THE PHYSICAL CONDITION OF THE ASSIGNED
PROPERTIES. ASSIGNEE ACKNOWLEDGES AND AGREES THAT IT HAS INSPECTED THE ASSIGNED
PROPERTIES AND ACCEPTS SAME IN THEIR PRESENT CONDITION, "AS IS" AND "WITH ALL
FAULTS."
Assignor on behalf of itself and its successors and assigns does hereby
agree to indemnify and hold Assignee, its successors and assigns, harmless from
all obligations accruing under the maintenance, service and supply contracts
assigned hereby and any liabilities arising out of events occurring thereunder,
prior to the date hereof but not thereafter.
Assignee on behalf of itself, its successors and assigns, hereby agrees
to assume and perform all obligations accruing under the maintenance, service
and supply contracts from and after the date hereof, and Assignee on behalf of
itself, its successors and assigns does hereby agree to indemnify and hold
Assignor, its successors and assigns, harmless from all such obligations and any
liabilities arising out of events occurring thereunder from and after the date
hereof.
This document may be executed in any number of counterparts, each of
which may be executed by any one or more of the parties hereto, but all of which
shall constitute one instrument, and shall be binding and effective when all
parties hereto have executed at least one counterpart.
[SIGNATURES FOLLOW ON NEXT PAGE]
IN WITNESS WHEREOF, Assignor and Assignee have caused this ▇▇▇▇ of Sale
and General Assignment to be executed as of the _____ day of
_______________________, 2002.
ASSIGNOR:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, a Connecticut corporation
By: CIGNA Investments, Inc., a
Delaware corporation, its
authorized signatory
By _________________________
Name:
Title:
ASSIGNEE:
__________________________, a
_________________
By: ________________________
Name:
Title:
EXHIBIT E
TO
AGREEMENT OF PURCHASE AND SALE
Assignment and Assumption of Leases and Security Deposits
---------------------------------------------------------
[The form of Assignment and Assumption of Leases and
Security Deposits follows this page.]
ASSIGNMENT AND ASSUMPTION OF
LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is executed as of this _____ day of ________________, 2002, by
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation
("Seller"), and _____________________, a ______________________ ("Purchaser").
Purchaser is this day purchasing from Seller and Seller is conveying to
Purchaser the real property described on Exhibit A attached hereto and made a
part hereof together with all improvements thereon and appurtenances thereto
(herein called the "Property"). The Property is occupied by various tenants
(herein called the "Tenants") claiming under written space leases listed and
described on Exhibit B attached hereto and made a part hereof (the "Leases").
Seller has required certain of the Tenants to pay and has collected from such
Tenants a security or other deposit, a list of which deposits and the Tenants
from whom the deposits were collected being set forth on Exhibit B attached
hereto and made a part hereof (herein the total of all such deposits are
referred to as the "Security Deposits"). Seller desires to transfer and assign
all of Seller's right, title and interest in and to: (i) the Leases and (ii) the
Security Deposits.
NOW, THEREFORE in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller hereby transfers and assigns to Purchaser, effective as of
the date hereof, all right, title and interest of Seller in and to: (i) the
Leases and (ii) the Security Deposits.
Seller on behalf of itself, its successors and assigns does hereby agree
to indemnify and hold Purchaser, its successors and assigns, harmless from and
against all liabilities arising out of events occurring under the Leases prior
to the date hereof but not thereafter, provided, however, that the foregoing
indemnity shall not imply any warranty or indemnity with respect to compliance
with environmental and land use laws or the use, generation or disposal of
hazardous materials, such matters being governed solely by the terms of that
certain Agreement of Purchase and Sale between Seller and Purchaser having an
Effective Date (as defined therein) of ___________, 2002.
Purchaser on behalf of itself, its successors and assigns does hereby
agree to indemnify and hold Seller, its successors and assigns harmless from all
liabilities arising out of events occurring under the Leases from and after the
date hereof; provided, however, Purchaser shall not be liable under this
indemnity for or with respect to any inaccuracies set forth in Exhibit B.
Purchaser hereby assumes all obligations: (i) of the landlord under the
Leases arising from and after the date hereof, and (ii) under the Leases to pay
or account for the Security Deposits hereby transferred to Purchaser.
It is specifically agreed that Seller does not hereby transfer or assign
to Purchaser and Purchaser does not hereby assume liability for, any deposits
other than as set forth on Exhibit B.
This Assignment may be executed in any number of counterparts, each of
which may be executed by any one or more of the parties hereto, but all of which
shall constitute one instrument, and shall be binding and effective when all
parties hereto have executed at least one counterpart.
The terms and provisions of this Assignment shall be binding upon and
inure to the benefit of the respective parties hereto and their respective
successors and assigns.
[SIGNATURES FOLLOW ON NEXT PAGE]
EXECUTED as of the day and year first written above.
SELLER:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, a Connecticut corporation
By: CIGNA Investments, Inc., a
Delaware corporation, its
authorized agent
By: ________________________
Name:
Title:
PURCHASER:
_________________________________,
a ________________________________
By: ______________________________
Name:
Title:
EXHIBIT F
TO
AGREEMENT OF PURCHASE AND SALE
[The form of Seller's Affidavit of Non-Foreign Status follows this page.]
-------------------------------------------------------------------------
FORM OF SELLER'S AFFIDAVIT OF NON-FOREIGN STATUS
STATE OF CONNECTICUT)
) ________________, 2002
COUNTY OF HARTFORD )
I, _______________________, as _______________________ of CONNECTICUT GENERAL
LIFE INSURANCE COMPANY ("Seller"), being duly authorized to make this affidavit
on behalf of Seller and being duly sworn, do depose and say, that:
1. Seller's taxpayer identification number is ____________________.
2. Seller is not a "foreign person" within the meaning of Section 1445(f)(3), of
the Internal Revenue Code of 1986 (as amended, the "Code"), and
_____________________________ ("Buyer") is not required, pursuant to Section
1445 of the Code, to withhold ten percent (10%) of the amount realized by Seller
on the disposition of the property to Buyer.
3. I understand that I am making this Affidavit under penalty or perjury
pursuant to the requirements of Section 1445 of the Code.
SELLER:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, a Connecticut corporation,
By: CIGNA Investments, Inc., a
Delaware corporation
By: _______________________-
Name:
Title:
SWORN TO and subscribed before me this ______ day of _______________, 2002.
___________________________________
Notary Public
My Commission Expires:
EXHIBIT G
TO
AGREEMENT OF PURCHASE AND SALE
Escrow Instructions
-------------------
EXHIBIT H
TO
AGREEMENT OF PURCHASE AND SALE
Borough of Camp Hill Agreement for
----------------------------------
Completion and Guarantee of Plan Improvements
---------------------------------------------
[Agreement follows this page.]
EXHIBIT I
TO
AGREEMENT OF PURCHASE AND SALE
Required Estoppel Certificates
------------------------------
Boscov's
▇▇▇▇▇▇ & Nobel
Zainy Brainy
Giant Foods
Pannera Bread
Commerce Bank
EXHIBIT J
TO
AGREEMENT OF PURCHASE AND SALE
Form of Lease Estoppel Certificate
----------------------------------
[The form of Lease Estoppel Certificate follows this page.]
LEASE ESTOPPEL CERTIFICATE
Tenant:
-------
Landlord: Connecticut General Life Insurance Company
---------
Trade Name:
-----------
Floor Area: Square Feet
-----------
Lease Date:
-----------
Term: Years Months
-----
"Rental Commencement Date":
---------------------------
"Termination Date":
-------------------
"Current Monthly Minimum Rent Payment": $
---------------------------------------
Common Area Maintenance $
-----------------------
Taxes $
-----
Percentage Rent $
---------------
Security Deposit: $
----------------
The undersigned Tenant of the above-referenced lease (the "Lease"), a true
correct and complete copy of which is attached hereto, hereby ratifies the
above-referenced lease (the "Lease") and certifies to Cedar Income Fund
Partnership, L.P., its successors and assigns ("Purchaser"), as Purchaser of the
real property known as "Camp Hill Mall" (the "Premises"), as follows:
1. That the term of the Lease commenced on the Rental Commencement Date, and
the Tenant is in full and complete possession of the premises demised under
the Lease and has commenced full occupancy and use of the Premises.
2. That rent commenced to be due on the Rent Commencement Date and that the
Tenant is paying monthly installments of rent of Current Total Monthly
Payment.
3. That no advance rental or other payment has been made in connection with
the Lease, except rental for the current month, there is no "free rent" or
other concession under the remaining term of the lease and the rent has
been paid to and including _________, 2002.
4. That the Lease is a valid lease and in full force and effect and represents
the entire agreement between the parties; that there is no existing default
on the part of the Landlord or the Tenant in any of the terms and
conditions thereof and no event has occurred which, with the passing of
time or giving of notice or both, would constitute an event of default; and
that said Lease has: (initial one)
( ) not been amended, modified, supplemented, extended, renewed or
assigned.
( ) been amended, modified, supplemented, extended, renewed or assigned as
follows by the following described agreements:
___________________________________________________________________________
____________________________________________________________
5. That the Lease provides for a primary term set forth above; the term of the
Lease expires on the Expiration Date; and that: (initial one)
( ) neither the Lease nor any of the documents listed above in Paragraph 4,
(if any), contain an option for any additional term or terms.
( ) the Lease and/or the documents listed above in Paragraph 4 contain an
option for _________ additional term(s) of __________ year(s) and
__________ months(s) (each) at a rent to be determined as follows:
6. That this certification is made knowing that Purchaser is relying upon the
representations herein made.
Tenant:
By: _________________________
Typed Name:
Title:
Date: ____________________, 2002
EXHIBIT K
TO
AGREEMENT OF PURCHASE AND SALE
NOTICES OF UNCORRECTED VIOLATIONS OF THE HOUSING, BUILDING, SAFETY OR
FIRE ORDINANCES
NONE