Execution Copy
AGREEMENT OF SALE
Between
WASHINGTON CENTRE SHOPS, L.P.,
PORT RICHMOND ASSOCIATES, LLC,
ACADEMY STORES, L.P. and
GREENTREE ROAD LAND, INC.,
as Seller,
and
CEDAR INCOME FUND PARTNERSHIP, L.P.,
as Purchaser.
DATED: AS OF MAY 16, 2001
PROPERTIES:
ACADEMY PLAZA, PHILADELPHIA, PENNSYLVANIA
PORT RICHMOND VILLAGE, PHILADELPHIA, PENNSYLVANIA
WASHINGTON CENTER, ▇▇▇▇▇▇, NEW JERSEY
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement") is made and entered into as
of this ___ day of May, 2001, by and between WASHINGTON CENTRE SHOPS, L.P.
("Washington Centre"), a Delaware limited partnership, PORT RICHMOND ASSOCIATES,
LLC ("Port Richmond"), a New York limited liability company, ACADEMY STORES,
L.P. ("Academy Stores"), a Delaware limited partnership, and GREENTREE ROAD
LAND, INC. ("Greentree"), a Delaware corporation, each having an address at c/o
Bryant Asset Management, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(Washington Centre, Port Richmond, Academy Stores and Greentree being
collectively and sometimes individually referred to as "Seller"), and CEDAR
INCOME FUND PARTNERSHIP, L.P., a Delaware limited partnership, having an address
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Purchaser").
WITNESSETH:
FOR AND IN CONSIDERATION of the mutual covenants and agreements herein
contained, Ten ($10.00) Dollars, and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
GENERAL
1.1 Agreement to Sell and Purchase. Seller hereby agrees to sell and
convey to Purchaser, and Purchaser hereby agrees to purchase and accept from
Seller, for the Purchase Price (as hereinafter defined) and upon and subject to
the terms and conditions hereinafter set forth, all of the following described
property (collectively, the "Property"):
(a) As to the property known as Academy Plaza:
(i) That certain tract or parcel of land (the "Academy Land")
lying and being situated in the City of Philadelphia, Philadelphia
County, Pennsylvania, and being more particularly described on Exhibit
"A-1" attached hereto;
(ii) The shopping center buildings and other improvements
situated on the Academy Land (the "Academy Improvements");
(iii) All of the rights of and appurtenances pertaining to the
Academy Land and Academy Improvements, including all right, title and
interest of Academy Stores in and to adjacent streets, alleys, strips
or gores, easements and rights-of-way, reservation and privileges, and
utilities servicing the Academy Land and Academy Improvements
excluding, however, all utility deposits held by utility companies or
other suppliers of utilities or services to the Academy Land and
Academy Improvements;
(iv) All of the interest of Academy Stores, if any, in all
furniture, furnishings, fixtures, building materials, supplies,
hardware, appliances, equipment,
machinery, warranties, guaranties, trademarks, tradenames, air rights,
development rights and entitlements and other items of tangible and
intangible personal property, if any, situated in the Improvements
(collectively, the "Academy Personal Property");
(v) All of the interest of Academy Stores in all leases
(collectively, the "Academy Tenant Leases") with tenants, if any, now
or hereafter occupying space in the Academy Improvements, including all
security deposits held by Academy Stores under the Academy Tenant
Leases, together with interest thereon payable pursuant to the Academy
Tenant Leases or at law, as of the Closing Date (as hereinafter
defined)(a schedule of Academy Tenant Leases for the Property is
attached hereto as Exhibit "B-1" and incorporated herein);
(vi) All of the interest of Academy Stores in all assignable
maintenance, service and supply agreements and contracts affecting the
Academy Improvements (collectively, the "Academy Service Contracts")(a
schedule of all presently existing Academy Service Contracts is
attached hereto as Exhibit "C-1" and incorporated herein) to the extent
Purchaser desires to assume any thereof; and
(vii) All of the interest of Academy Stores in all assignable
permits, licenses, certificates and approvals relating to the Academy
Land and Academy Improvements (collectively, the "Academy Permits").
(b) As to the property known as Port Richmond Village:
(i) That certain tract or parcel of land (the "Port Richmond
Land") lying and being situated in the City of Philadelphia,
Philadelphia County, Pennsylvania, and being more particularly
described on Exhibit "A-2" attached hereto;
(ii) The shopping center buildings and other improvements
situated on the Port Richmond Land (the "Port Richmond Improvements");
(iii) All of the rights of and appurtenances pertaining to the
Port Richmond Land and the Port Richmond Improvements, including all
right, title and interest of Port Richmond in and to adjacent streets,
alleys, strips or gores easements and rights-of-way, reservation and
privileges, and utilities servicing the Port Richmond Land and Port
Richmond Improvements excluding, however, all utility deposits held by
utility companies or other suppliers of utilities or services to the
Port Richmond Land and Port Richmond Improvements;
(iv) All of the interest of Port Richmond, if any, in all
furniture, furnishings, fixtures, building materials, supplies,
hardware, appliances, equipment, machinery, warranties, guaranties,
trademarks, tradenames, air rights, development rights and entitlements
and other items of tangible and intangible personal property, if any,
situated in the Improvements (collectively, the "Port Richmond Personal
Property");
(v) All of the interest of Port Richmond in all leases
(collectively, the "Port Richmond Tenant Leases") with tenants, if any,
now or hereafter occupying space in the Port Richmond Improvements,
including all security deposits held by Port
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Richmond under the Port Richmond Tenant Leases together with interest
thereon payable pursuant to the Port Richmond Tenant Leases or at law
as of the Closing Date (a schedule of Port Richmond Tenant Leases is
attached hereto as Exhibit "B-2" and incorporated herein);
(vi) All of the interest of Port Richmond in all assignable
maintenance, service and supply agreements and contracts affecting the
Port Richmond Improvements (collectively, the "Port Richmond Service
Contracts")(a schedule of all presently existing Port Richmond Service
Contracts is attached hereto as Exhibit "C-2" and incorporated herein)
to the extent Purchaser desires to assume any thereof; and
(vii) All of the interest of Port Richmond in all assignable
permits, licenses, certificates and approvals relating to the Port
Richmond Land and Port Richmond Improvements (collectively, the "Port
Richmond Permits").
(c) As to the property known as Washington Center:
(i) That certain tract or parcel of land (the "Washington
Land") lying and being situated in the Town of ▇▇▇▇▇▇, Gloucester
County, New Jersey, and being more particularly described on Exhibit
"A-3" attached hereto;
(ii) The shopping center buildings and other improvements
situated on the Washington Center Land (the "Washington Improvements");
(iii) All of the rights of and appurtenances pertaining to the
Washington Land and the Washington Improvements, including all right,
title and interest of Washington in and to adjacent streets, alleys,
strips or gores, easements and rights-of-way, reservation and
privileges, and utilities servicing the Washington Land and
Improvements excluding, however, all utility deposits held by utility
companies or other suppliers of utilities or services to the Washington
Land and Washington Improvements;
(iv) All of the interest of Washington, if any, in all
furniture, furnishings, fixtures, building materials, supplies,
hardware, appliances, equipment, machinery, warranties, guaranties,
trademarks, tradenames, air rights, development rights and entitlements
and other items of tangible and intangible personal property, if any,
situated in the Improvements (collectively, the "Washington Personal
Property");
(v) All of the interest of Washington in all leases
(collectively, the "Washington Tenant Leases") with tenants, if any,
now or hereafter occupying space in the Washington Improvements,
including all security deposits held by Washington under the Washington
Tenant Leases, together with interest thereon payable pursuant to the
Washington Tenant Leases or at law, as of the Closing Date (a schedule
of Tenant Leases is attached hereto as Exhibit "B-3" and incorporated
herein);
(vi) All of the interest of Washington in all assignable
maintenance, service and supply agreements and contracts affecting the
Washington Improvements (collectively, the "Washington Service
Contracts")(a schedule of all presently existing Washington Service
Contracts is attached hereto as Exhibit "C-3" and incorporated
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herein) to the extent Purchaser desires to assume any thereof; and
(vii) All of the interest of Washington in all assignable
permits, licenses, certificates and approvals relating to the
Washington Land and Washington Improvements (collectively, the
"Washington Permits").
(d) As to the property known as ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇:
(i) That certain tract or parcel of land (the "Greentree
Land") lying and being situated in the Town of ▇▇▇▇▇▇, Gloucester
County, New Jersey, and being more particularly described on Exhibit
"A-5" attached hereto.
(ii) The buildings and other improvements situated on the
Greentree Land (the "Greentree Improvements");
(iii) All of the rights of and appurtenances pertaining to the
Greentree Land and the Greentree Improvements, including all right,
title and interest of Greentree in and to adjacent streets, alleys,
strips or gores, easements and rights-of-way, reservation and
privileges, and utilities servicing the Greentree Land and Greentree
Improvements excluding, however, all utility deposits held by utility
companies or other suppliers of utilities or services to the Greentree
Land and Greentree Improvements; and
(iv) All of the interest of Greentree, if any, in all
furniture, furnishings, fixtures, building materials, supplies,
hardware, appliances, equipment, machinery, warranties, guaranties,
trademarks, tradenames, air rights, development rights and entitlements
and other items of tangible and intangible personal property, if any,
situated in the Improvements (the "Greentree Personal Property").
Tenants under the Academy Tenant Leases, the Port Richmond Tenant
Leases or the Washington Tenant Leases are hereinafter referred to,
collectively, as "Tenants" and individually as a "Tenant".
The Academy Personal Property, the Port Richmond Personal Property, the
Washington Personal Property and the Greentree Personal Property are
collectively referred to as the "Personal Property".
The Academy Tenant Leases, the Port Richmond Tenant Leases and the
Washington Tenant Leases are collectively referred to as the "Tenant Leases".
The Academy Service Contracts, the Port Richmond Service Contracts and
the Washington Service Contracts are collectively referred to as the "Service
Contracts".
The Academy Permits, the Port Richmond Permits and the Washington
Permits are collectively referred to as the "Permits".
Each of the aforementioned parcels of Land is sometimes hereinafter
referred to as a "parcel".
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1.2 Purchase Price. The purchase price (the "Purchase Price") to be
paid for the Property is Thirty Five Million Thirty Four Thousand Three Hundred
Fifty Three and 00/100 ($35,034,353.00) Dollars (the "Purchase Price"), the
Purchase Price being allocated to the Property as set forth in Exhibit "D"
annexed hereto, and payable at the Closing (as hereinafter defined), subject to
prorations and adjustments pursuant to Sections 4.5 and 4.6 and Article V
hereof, as follows:
(a) Deposit. (i) Upon the execution of this Agreement, Purchaser shall
simultaneously deliver its check, subject to collection, payable to the order of
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP ("Escrow Agent"), in the sum of Three Hundred
Fifty Thousand and 00/100 ($350,000.00) Dollars (the "Deposit"). The Deposit
shall be kept in an interest bearing escrow account by Escrow Agent in
accordance with the provisions of Article IX hereof, and shall either be applied
toward the payment of the Purchase Price if the Closing occurs, or returned to
Purchaser if Purchaser elects to terminate this Agreement pursuant to any right
expressly granted to Purchaser by this Agreement or if Purchaser is otherwise
entitled to the Deposit, or paid to Seller in the event of the failure by
Purchaser to comply with any of Purchaser's obligations pursuant to this
Agreement, subject to and in accordance with Section 9.2.
(b) A sum equal to the outstanding principal balance of the notes
payable by Seller in connection with the financing which currently encumbers the
Property (collectively, the "Notes") on the Closing Date will be paid by
Purchaser by assuming the obligation to pay the Notes and by accepting
conveyance of the Property subject to the existing mortgages described on
Exhibit "E" annexed hereto (collectively, the "Existing Mortgages") and all
other Loan Documents as defined below.
(c) The balance shall be payable in federal funds by wire transfer(s)
(Seller shall furnish Purchaser with complete wire transfer instructions at
least two (2) business days prior to the Closing).
(d) Seller agrees that it shall be responsible to use commercially
reasonable efforts to obtain the consent of the holders of the Notes
(collectively, the "Payees") for the assumption of the obligations of Seller
under the Notes and for the conveyance of the Property from Seller to Purchaser
(collectively, the "Assumptions"), subject to the Existing Mortgages and all
other documents executed in connection with the Notes and Existing Mortgages
(collectively, the "Loan Documents"). Seller agrees to contact the Payees to
apply for the assumption of the Notes by Purchaser, and Purchaser agrees to
cooperate with Seller and will provide Payees and Seller with any and all
reasonable information requested by Payees necessary to accomplish same. Seller
shall pay all application fees required by the Payees in connection with the
Assumptions. Except for the aforementioned application fees and any assumption
fees payable to the Payees in connection with the Assumptions, which Seller
agrees to pay, Purchaser shall be responsible for the payment at Closing of any
and all reasonable costs and expenses of Purchaser and Seller associated with
the Assumptions (including legal fees and disbursements of the Payees'
respective counsel); other costs and expenses reasonably incurred by either
Seller or Purchaser in connection therewith; and all applicable tangible or
documentary stamps in connection with the Assumptions.
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(e) It is understood and agreed that it will be a condition to the
Closing that Purchaser (1) receive the written approval and consent of the
Payees to the Assumptions; and (2) obtain written verification from the Payees
that the payments under the Notes are current and that Seller is not in default
under the Loan Documents beyond any applicable grace, notice and cure periods.
ARTICLE II
TITLE COMMITMENT AND SURVEY; INSPECTION BY PURCHASER
2.1 Title Commitment. Immediately following the execution and delivery
of this Agreement by all parties hereto (the "Effective Date"), Purchaser shall
order commitments for title insurance, including legible copies of all
exceptions and ALTA/ASCM surveys for each parcel (the "Title Commitment") to be
underwritten by a reputable title company selected by Purchaser (the "Title
Company") and shall cause a copy thereof to be delivered to be simultaneously
delivered to Seller's counsel. Purchaser agrees to take title to the Property
subject to those exceptions set forth on Exhibit "F" annexed hereto and the
standard printed title exceptions (collectively, the "Permitted Exceptions"),
provided, however, that such standard printed exceptions shall not require
Purchaser to take title subject to unrecorded easements of which Seller has
knowledge or mechanics liens; and provided, further that Purchaser shall take
title subject to (i) any facts an accurate survey of the parcels may reveal
provided such facts do not render title uninsurable, (ii) the lien of real
estate taxes not yet due and payable and (iii) rights of tenant as tenants only.
In the event the Title Company shall report to Purchaser any objection to title
other than the Permitted Exceptions which renders title uninsurable at standard
rates, Purchaser shall notify Seller of any such objection ("Purchaser's
Objection") no later than five (5) business days after receipt of each of the
Title Commitments. Seller shall have the right, but not the obligation, to cure
Purchaser's Objection, and Seller shall have the right to adjourn the Closing
Date for up to thirty (30) days to cure Purchaser's objections. In the event
Seller is unwilling or unable to cure Purchaser's Objection, Seller shall so
notify Purchaser within ten (10) business days after receipt of Purchaser's
notice (the "Seller's Response Period"), and within five (5) business days after
receipt of Seller's notice (the "Purchaser's Response Period"), Purchaser shall
either (i) accept title in its current condition without any adjustment in the
Purchase Price in which event Purchaser's Objection shall be deemed to have been
waived for all purposes, or (ii) terminate this Agreement by written notice to
Seller and the Escrow Agent, in which event the Deposit shall be paid to
Purchaser and this Agreement shall be of no further force and effect, except for
those provisions expressly set forth herein to survive. If Seller fails to give
Purchaser notice within Seller's Response Period that it will cure Purchaser's
Objection as aforesaid, Seller shall be deemed to have elected not to cure
Purchaser's Objection. If Purchaser fails to terminate this Agreement by written
notice to Seller and the Escrow Agent within Purchaser's Response Period (or
within five (5) business days after the date Seller shall be deemed to have
elected not to cure Purchaser's Objection), Purchaser shall be deemed to have
elected to accept title in its current condition without any adjustment in the
Purchase Price, and Purchaser's Objection shall be deemed to have been waived
for all purposes. In the event the Title Company should issue any revisions to
the Title Commitments (including, but not limited to, updates of existing
surveys), which revisions reveal for the first time any new encumbrance
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or other title defect affecting the Property first arising after May 1, 2001 and
which was not previously identified on an earlier Title Commitment, the
procedure set forth above with regard to Seller's Response Period, Purchaser's
Response Period and Seller's right to adjourn the Closing Date shall again apply
with respect to such new encumbrance, except that Purchaser shall be deemed to
have waived its right to object to such new encumbrance unless Purchaser objects
to Seller in writing within five (5) business days from the issuance of any such
revision. Seller shall not, during the term of this Agreement, cause or allow
any part of the Property to be conveyed or encumbered by acts of Seller.
Notwithstanding the foregoing, Seller shall satisfy at or before Closing any
monetary liens, judgments or encumbrances affecting the Property, except those
arising under the Loan Documents, of a fixed or ascertainable amount first
arising after the date hereof.
2.2 Review and Inspection by Purchaser.
(a) Subject to the provisions of Section 2.2(d), Purchaser shall have
the right to inspect the Property, including environmental conditions, building
conditions and such other financial, legal and physical audits, tests and
investigations as Purchaser deems appropriate in its reasonable discretion,
until 5:00 p.m. Eastern Standard Time on the date that is thirty (30) calendar
days following the Effective Date (the "Inspection Period"). The costs and
expenses of such inspections shall be borne solely by Purchaser, and shall be
paid by Purchaser whether or not the Closing occurs. Any physical inspection of
the Property shall be conducted by Purchaser on business days during normal
business hours after no less than one (1) business day's prior written notice to
Seller and in a manner not to disrupt the Tenants or Seller's business in any
unreasonable manner. In addition, Purchaser covenants and agrees to restore any
damage to the Property or any adjacent property caused by such physical
inspections and shall indemnify, defend and save Seller harmless of and from any
and all claims and/or liabilities which Seller may suffer or be subject to by
reason of or in any manner relating to such inspections or entry on the Property
including, without limitation, any claims by Tenants and/or invitees of the
Property. To facilitate Purchaser's inspection and review, Seller agrees that on
or before the Effective Date, Seller shall at Seller's election, either (i)
furnish to Purchaser or (ii) make available to Purchaser at a location (or
locations) in New York City or Westchester County to be specified by Seller (in
which case Purchaser may reproduce such information at Purchaser's sole cost and
expense), the following information and documents, to the extent in Seller's
possession or under its control:
(i) copies of Tenant Leases covering any part of the Property
including any exhibits and amendments thereto, assignment or subleases thereof,
and guaranties thereof, any Tenant financial information and historical
delinquency and/or rent payment information;
(ii) copies of the 1999, 2000 and 2001 budgets and
year-to-date operating statements for each of the parcels constituting the
Property (other than with respect to the Greentree Land) including information
on expense pass-through income from Tenants and calculations used therefor;
(iii) copies of the 1999 and 2000 property tax statements and
2001 assessed valuation, if available, for each of the parcels the Property;
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(iv) a current rent roll for each of the parcels constituting
the Property (other than with respect to the Greentree Land) indicating all
Tenants, spaces occupied and vacant (including the square footage thereof), Base
Rent, escalations, "pass-throughs" (including, but not limited to, real estate
taxes, utilities, insurance and/or operating expenses), rent adjustments
(including, but not limited to, Consumer Price Index, or other adjustments),
lease commencement and expiration dates, security and/or other deposits and any
leasing commissions due on expansions/renewals and the amount thereof; provided,
however, that Seller shall have the option of providing some of the foregoing
data on separate schedules;
(v) copies of all Permits, warranties, equipment leases,
service contracts and material agreements in effect for each of the parcels
constituting the Property;
(vi) a list of the Personal Property owned by Seller and used
in connection with the operation of each of the parcels constituting the
Property;
(vii) copies of all building plans (including architectural
and engineering) for each of the parcels constituting the Property (other than
with respect to the Greentree Land);
(viii) environmental reports, ALTA/ASCM and other surveys,
engineering or architectural reports, maintenance records and title insurance
policies;
(ix) copies of utility bills for 1999 and 2000 for each of
the parcels constituting the Property (other than with respect to the Greentree
Land);
(x) copies of all Loan Documents;
(x) complete leasing files (including all correspondence
with Tenants);
(x) appraisals;
(x) audited financial statements for each of the entities
comprising Seller for the years 1998 and 1999; and
(x) sales results for all Tenants who report sales.
(b) In addition to the above, prior to the Closing, Seller agrees to
use reasonable commercial efforts to obtain and provide to Purchaser estoppel
certificates from one hundred percent (100%) of the Tenants of the Property
substantially in the form attached hereto as Exhibit "G" or such other form as
may be required under any Tenant Lease and dated no more than thirty (30) days
prior to the original Closing Date (the "Tenant Estoppels"). Purchaser's
obligation to close hereunder shall be conditioned upon the execution and
delivery of a Tenant Estoppel from each of the Tenants listed on Exhibit "H"
annexed hereto (collectively, the "Major Tenants"), and not less than
seventy-five percent (75%) of the remaining Tenants (calculated based on total
leased and occupied square footage), which Tenant Estoppels do not indicate that
a Tenant or Tenants is/are (i) claiming that a material default exists by the
"Landlord" under a Tenant Lease, (ii) claiming material rights not disclosed in
the rent rolls and/or the Leases or (iii) claiming a material variance in the
amounts payable under the Lease.
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In the event Seller is unable to obtain such Tenant Estoppels from the Major
Tenants and seventy-five percent (75%) of the remaining Tenants (calculated
based on total leased and occupied square footage), and Purchaser does not waive
the requirement of such Tenant Estoppels, Seller may, by written notice to
Purchaser, elect to extend the Closing Date for a period not to exceed thirty
(30) days, during which ▇▇▇▇ ▇▇▇▇▇▇ shall seek to obtain such Tenant Estoppels.
Seller shall not be required to exercise any remedies it may have under any
Tenant Leases, incur any obligations or spend any money to obtain any Tenant
Estoppels. In the event that the required Tenant Estoppels have not been
delivered by the extended Closing Date, Purchaser's sole and exclusive remedy
will be to terminate this Agreement within five (5) business days of the
extended Closing Date and receive back the Deposit or to waive the requirement
for any further Tenant Estoppels.
(c) All information that may be provided by Seller to Purchaser or
obtained by Purchaser relating to the Property in the course of its review shall
be treated as confidential information by Purchaser. Seller makes and shall make
no representations or warranties whatsoever regarding the accuracy of any
information prepared or delivered to Purchaser by Seller or any third party in
connection with this Agreement or the Property other than a representation to
Purchaser that such information provided by Seller is true, complete and correct
in all material respects to Seller's current actual knowledge without
investigation or inquiry. As used herein, the phrase "to Seller's current actual
knowledge" shall mean to the current actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior
Vice President of ▇▇▇▇▇▇ Asset Management ("Seller's Representative"), without
investigation or inquiry and shall include all written materials, including
correspondence in the possession of Seller.
Except as otherwise expressly stated herein, such representations and
warranties shall not survive the Closing of the transactions contemplated
herein. In the event such representations and warranties shall prove incorrect
prior to Closing, Purchaser's sole and exclusive remedy shall be to terminate
this Agreement and receive the Deposit.
(d) Prior to any entry to perform any on-site testing, Purchaser shall
give Seller written notice thereof including the identity of the company or
persons who will perform such testing and the proposed scope of the testing.
Seller shall approve or disapprove, which approval shall not be unreasonably
withheld, the proposed testing within one (1) business day after receipt of such
notice, unless such notice proposes invasive or intrusive testing, in which case
Seller shall have three (3) business days after receipt of such notice to
approve or disapprove such invasive or intrusive testing. If Purchaser or its
agents, employees or contractors take any sample from the Property in connection
with any approved testing, Purchaser shall provide to Seller a portion of such
sample being tested to allow Seller, if it so chooses, to perform its own
testing (Seller's approval of such testing being deemed a request for such
samples). Seller or its representative may be present to observe any testing or
other inspection performed on the Property. Upon the request of Seller,
Purchaser shall promptly deliver to Seller copies of any reports relating to any
testing of the Property performed by Purchaser or its agents, employees or
contractors. Neither Purchaser nor its agents, employees or contractors shall
contact any governmental authority, unless otherwise required by applicable law
(provided Purchaser gives prior notice to Seller), or any Tenant or prospective
tenant without first obtaining the prior written consent of Seller thereto
(which consent shall not be unreasonably withheld or delayed), and Seller, at
Seller's election, shall be entitled to have a
9
representative on any phone or other contact made by Purchaser and present at
any meeting by Purchaser with a governmental authority, Tenant or prospective
tenant.
(e) Purchaser shall maintain, and shall ensure that its agents and
contractors maintain, public liability and property damage insurance with single
occurrence coverage of at least One Million ($1,000,000) Dollars and aggregate
coverage of at least Two Million ($2,000,000) Dollars, naming Seller and its
property manager as additional insureds, to insure against all liability
(including, without limitation, environmental liability) incurred by or caused
by Purchaser and its agents, employees or contractors, arising out of any entry
or inspections of the Property pursuant to the provisions thereof, and Purchaser
shall provide Seller with evidence of such insurance coverage prior to any entry
onto the Property by Purchaser, its employees, agents and/or contractors.
Purchaser shall be solely responsible for the proper management and disposal,
including, but not limited to, the execution of any necessary documentation, of
any wastes created or extracted during Purchaser's investigation of the
Property. The entry onto the Property and the performance of the inspections,
testing or inquiries provided for in this Agreement by Purchaser, its agents,
employees or contractors shall at all times be subject to the provisions of
Article VII hereof.
(f) (i) If Purchaser's review of the income and expense records for
the Property reveals that the net operating income for the
Property for the calendar year 2000 in the aggregate is less
than $3,300,000.00, and as a result Purchaser is not prepared
to purchase the Property, Buyer may, by written notice to both
Seller and Escrow Agent received no later than 5 p.m. on the
day which is the expiration of the Inspection Period, elect to
terminate this Agreement. Purchaser acknowledges that in
calculating such net operating income, the Notes to Operating
Statements annexed hereto as Exhibit "NOI" shall be taken into
consideration.
(ii) If Purchaser's environmental or structural inspections of
the Property discloses the presence of any Hazardous
Substances, Contaminants or Waste on a particular parcel or a
structural defect to the improvements on a particular parcel,
in either case the cost to remediate of which in accordance
with the least stringent requirements of Environmental Laws
(as hereinafter defined) or, in the case of a structural
defect, the cost to repair of which in accordance with the
least stringent requirements of applicable governmental
regulations, as the case may be, will be in excess of
Twenty-Five Thousand and 00/100 ($25,000.00) Dollars in the
aggregate for such parcel, then Purchaser shall have the right
to terminate this Agreement by written notice to both Seller
and Escrow Agent ("Purchaser's Termination Notice") received
prior to 5 p.m. on the day which is the expiration of the
Inspection Period (provided that such Termination Notice is
accompanied by any environmental or engineering report issued
in connection with its environmental and/or structural
inspection and the written estimate of Purchaser's
environmental and/or engineering consultant as aforesaid).
(iii) Upon Purchaser's termination of this Agreement set forth
in (i) or (ii)
10
above, the Deposit shall be paid by Escrow Agent to Purchaser,
this Agreement shall terminate and become void and of no
further force or effect, and Purchaser and Seller shall be
released from any and all obligations herein with respect to
such parcel except those that expressly survive such a
termination. Notwithstanding the foregoing, within ten (10)
business days after Seller's receipt of Purchaser's
Termination Notice, Seller shall have the right to nullify
Purchaser's Termination Notice by written notice to Purchaser
indicating that Seller agrees to a reduction of the Purchase
Price in an amount equal to the cost to remediate or repair in
excess of Twenty-Five Thousand and 00/100 ($25,000.00) Dollars
(based upon the written estimate of Purchaser's environmental
or engineering consultant as aforesaid), in which event this
Agreement shall remain in full force and effect, the parties
shall proceed to the Closing in accordance with the provisions
hereof and Purchaser waives any right to claim any objections
to the Property or a particular parcel and any matter related
thereto with respect to this Section 2.2(f).
(iv) In the event that this Agreement is terminated for any
reason, Purchaser shall immediately (i) return to Seller any
and all information and documents that Purchaser has received
from Seller regarding the Property, and (ii) except in the
case of Seller's default, provide Seller with copies of any
and all reports, documents or information that Purchaser has
obtained from sources or parties other than Seller. In the
event Purchaser fails to terminate this Agreement pursuant to
this Section 2.2(f) prior to the expiration of the Inspection
Period, Purchaser shall be deemed to have waived any
objections to the Property and any matter related thereto with
respect to this Section 2.2(f).
2.3 Cooperation. Seller will assist Purchaser in giving notice to
applicable government agencies and in transferring or reissuing to Purchaser any
permit, license, certificate, registration or other approval necessary to
continue operations at the Property, or in obtaining for Purchaser any new
permit, license, certificate, registration or approval required of, or
reasonably desired by, Purchaser, all at no cost or expense to Seller.
2.4 Operation of Property before Closing. The Property shall be
maintained in substantially the same condition as it is presently in, reasonable
wear and tear, condemnation and casualty excepted, subject to the provisions of
Article V. Seller shall operate the Property in the ordinary course of business
until the Closing. Notwithstanding the foregoing, without Purchaser's prior
consent, which shall not be unreasonably withheld, conditioned or delayed,
pending Closing: (i) Seller shall not modify, extend or amend any Service
Contract or enter into any new Service Contracts which are not terminable
without cause on thirty (30) days or less written notice or before Closing, and
(ii) Seller shall not enter into any new Tenant Leases or renewals or
modifications of Tenant Leases that it is not required to enter into pursuant to
the terms of such Tenant Leases, or as may be required by law. With regard to
any proposed new Tenant Leases, renewals or modifications of Tenant Leases,
Purchaser shall indicate its consent or disapproval (stating the reason for such
disapproval) within five (5) business days after the receipt of a copy of the
proposed Lease, renewal agreement or modification agreement. Failure
11
to respond in writing within said five (5) business days shall be deemed a
consent. Seller shall not remove any of its personal property from any Property
unless replaced by personal property of equal or greater value or utility.
Seller shall maintain insurance on all Improvements for the full replacement
value thereof.
2.5 ISRA. In the event that the transfer of those parcels located in
the State of New Jersey (the "NJ Parcels") contemplated herein is not subject to
the New Jersey Industrial Site Recovery Act, N.J.S.A. 13: 1k-6, et seq.
("ISRA"), Seller shall use commercially reasonable efforts to cause to be
delivered the necessary documentation to the New Jersey Department of
Environmental Protection ("DEP") in order to obtain a "non-applicability" letter
referencing the proposed transfer, together with the affidavit for a
determination of non-applicability referenced in the letter and all information,
reports, studies and analyses submitted by Seller to DEP. In the event Seller is
unable to obtain a non-applicability letter for the NJ Parcels by the Closing
Date, provided Seller is able to obtain the consent of the Payees to such
extension, the Closing Date shall be extended for up to sixty (60) days to allow
Seller to obtain same. If Seller, after using commercially reasonable efforts,
has been unable to obtain a non-applicability letter for the NJ Parcels by the
expiration of the sixty (60) day extension period, or if the Payees do not
consent to such extension, Purchaser shall have the right to terminate this
Agreement and if this Agreement is terminated, the Deposit shall be returned to
Purchaser and thereafter neither party shall have any further liability
hereunder (except for matters stated herein which are specifically designated to
survive termination of this Agreement).
In the event it is determined that the transfer of the NJ Parcels
contemplated by this Agreement is subject to ISRA, Purchaser shall elect to: (i)
either terminate this Agreement and receive back the Deposit; or (ii) extend the
Closing Date for up to six (6) months in which event Seller shall use its
commercially reasonable efforts to obtain the approval necessary from DEP for
the transfer of title of the NJ Parcels hereunder; provided, however, that
nothing herein shall be construed as requiring Seller to undertake any
environmental testing or remediation on the NJ Parcels. If such approval has not
been obtained within six (6) months from the original applicability
determination by DEP, at the end of said extension period this Agreement shall
be deemed null and void (except for matters stated herein which are specifically
designated to survive termination of this Agreement) and the Deposit shall be
returned to Purchaser.
2.6 Tax Certiorari. Seller shall provide Purchaser with a copy of any
and all agreements that the Seller has with attorneys or consultants with
respect to tax certiorari or similar proceedings for the current tax year.
Seller agrees that it will not, without the prior written consent of Purchaser,
which consent shall not be unreasonably withheld, delayed, conditioned or
charged for, prior to the Closing Date, settle any proceeding or application for
a reduction in the real estate tax assessment of the Premises for the current
tax year.
ARTICLE III
REPRESENTATIONS AND WARRANTIES BY SELLER AND PURCHASER
3.1 Disclaimer of Seller. EXCEPT AS EXPRESSLY SET FORTH IN THIS
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AGREEMENT: (a) PURCHASER IS ACQUIRING THE PROPERTY "AS IS" WITH ALL FAULTS AND
DEFECTS, AND PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES
NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, OR THE
PRESENCE OR ABSENCE OF ANY POLLUTANT, HAZARDOUS WASTE, GAS OR SUBSTANCE OR SOLID
WASTE ON, ABOUT OR ADJACENT TO THE PROPERTY; (B) THE INCOME TO BE DERIVED FROM
THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND
USES WHICH PURCHASER MAY INTEND TO CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY
THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF
ANY GOVERNMENTAL AUTHORITY OR BODY HAVING JURISDICTION INCLUDING, WITHOUT
LIMITATION, ALL APPLICABLE ENVIRONMENTAL OR ZONING LAWS; (E) THE HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; OR (F) ANY
OTHER MATTER RELATED TO OR CONCERNING THE PROPERTY; AND (b) PURCHASER SHALL NOT
SEEK RECOURSE AGAINST SELLER ON ACCOUNT OF ANY LOSS, COST OR EXPENSE SUFFERED OR
INCURRED BY PURCHASER WITH REGARD TO ANY OF THE MATTERS DESCRIBED IN CLAUSES (A)
THROUGH (F) ABOVE.
3.2 Independent Verification by Purchaser. Purchaser acknowledges that,
except as herein specified otherwise, Purchaser, having been given the
reasonable opportunity to inspect the Property and all information relating
thereto, is relying solely on its own investigation of the Property and all
information relating thereto and not on any information provided or to be
provided by or on behalf of Seller. Purchaser further acknowledges that no
independent investigation or verification has been or will be made by Seller
with respect to any information supplied by or on behalf of Seller concerning
the Property, and Seller makes no representation as to the accuracy or
completeness of such information (except as set forth in Section 2.2(c) hereof),
it being intended by the parties that Purchaser shall verify the accuracy and
completeness of such information itself. Purchaser acknowledges that the
disclaimers, agreements and other statements set forth in this Article III are
an integral portion of this Agreement and that Seller would not agree to sell
the Property to Purchaser for the Purchase Price without the disclaimers,
agreements and other statements set forth in this Article III.
3.3 Seller's Representations. Notwithstanding the foregoing, Seller
hereby represents to Purchaser as follows:
(a) (i) Academy Stores L.P. is a limited partnership duly
organized and validly existing under the laws of the State of Delaware and is
and will be qualified in the Commonwealth of Pennsylvania to conduct business
therein on the Closing Date; (ii) Port Richmond Associates, LLC is a New York
limited liability company and is and will be qualified in the Commonwealth of
Pennsylvania to conduct business therein on the Closing Date; (iii) Washington
Centre Shops, L.P. is a limited partnership duly organized and validly existing
under the laws of the State of Delaware and is and will be qualified in the
State of New Jersey to
13
conduct business therein on the Closing Date; and (iv) Greentree Road Land, Inc.
is a Delaware corporation and is and will be qualified in the State of New
Jersey to conduct business therein on the Closing Date.
(b) The execution and delivery of this Agreement and the
performance by Seller of its obligations hereunder have been duly authorized by
all requisite partnership, company or corporate action, as the case may be, and
will not conflict with or result in a breach of any of the terms, conditions or
provisions of the organizational documents of Seller, and will not conflict with
or result in a breach of any law, regulation or order; or any agreement or
instrument to which Seller is a party, by which Seller is bound or the Property
is subject; and this Agreement and the documents delivered by Seller pursuant to
this Agreement will each constitute the legal, valid and binding obligations of
Seller, enforceable in accordance with their respective terms, covenants and
conditions;
(c) There are no leases, licenses or other occupancy agreements
with Seller or Seller's predecessor affecting any portion of the Property on the
date hereof except for the Tenant Leases listed in the rent rolls annexed hereto
as Exhibits "B-1" through "B-3" and made a part hereof. The Tenant Leases
described in Exhibits "B-1" through "B-3" comprise all of the Tenant Leases
presently existing and each is in full force and effect; no Tenant Lease has
been modified or supplemented in any material respect except (if at all) as set
forth on Exhibits "B-1" through "B-3"; to Seller's knowledge, the information
set forth in Exhibits "B-1" through "B-3" is true, correct and complete in all
material respects. To Seller's knowledge, there is no material default of either
the landlord or any Tenant under any of the Tenant Leases, and Seller is not
holding any security deposit on behalf of any Tenants, except as set forth on
Exhibits "B-1" through "B-3". To Seller's knowledge, there are no persons or
entities entitled to possession of the Property other than those listed on
Exhibits "B-1" through "B-3". No Tenant has prepaid rent or any other charge
under its Lease more than one (1) month in advance (and Seller shall not accept
any such prepayment unless an adjustment therefor is made at the Closing);
(d) Seller has not received written notice from any governmental
authority, mortgagee, Tenant or insurer (i) that either the Property or the use
or operation thereof is currently in violation of any zoning, environmental or
other land use or building regulations in any material respect, and to Seller's
knowledge no such notice has been issued; or (ii) asserting that Seller is
required to perform work at any parcel constituting the Property and to Seller's
knowledge no such notice has been issued. If Seller receives such notice or a
violation is issued or filed prior to Closing, Seller shall promptly notify
Purchaser;
(e) Seller has heretofore delivered to or made available to
Purchaser true, correct and complete copies of the Service Contracts, all of
which Service Contracts are in full force and effect and either (i) are
terminable by Seller upon not more than thirty (30) days' prior written notice
or (ii) unless Purchaser notifies Seller in writing otherwise, shall be
terminated by Seller prior to the Closing Date;
(f) No portion of the Property is a "plan asset" within the
meaning of that term under the U.S. Department of Labor's Regulations
promulgated under the Employee Retirement and Income Security Act of 1974, as
amended;
14
(g) Except as set forth on Exhibit "3.3(g)" annexed hereto, there
are no pending actions, suits, proceedings or investigations to which Seller is
a party before any court or other governmental authority or which, to Seller's
current actual knowledge, are threatened, which would, if adversely determined,
have a material adverse impact on the Property or any portion thereof or the
transactions contemplated hereby, other than as may be covered by insurance;
(h) All tenant fit-out work required to be performed by Seller,
as landlord, under any Tenant Lease required to have been completed prior to the
Closing Date shall have been completed, accepted by the Tenant under such Tenant
Lease and paid for by Seller on or prior to the Closing Date. There is no tenant
fit-out work required to be performed by the landlord under any Tenant Lease
other than described in the preceding sentence or as set forth in the rent rolls
delivered by Seller hereunder;
(i) Except as set forth on Exhibit "3.3(x)" annexed hereto,
Seller has received no notice of any condemnation proceedings pending with
regard to any part of the Property, and Seller has no knowledge of any proposed
condemnation proceeding with regard to any portion of the Property.
(j) Seller has heretofore delivered to or made available to
Purchaser true and correct copies of all the Loan Documents. Seller is current
with all payments due and payable under the Notes. Seller is not in material
default in the performance of its obligations under the Loan Documents beyond
any applicable grace, notice and cure periods, and no written notice has been
received from the Payees asserting that a default or breach exists under the
Loan Documents which remains uncured and no such notice shall have been received
and remain uncured on the Closing Date. As of the date of this Agreement, the
principal balances due under the respective Notes are as set forth on Exhibit
"E";
(k) All existing public improvements in, on and with respect to
the Property are installed and have been fully paid for, and Seller has received
no notice of any assessment for public improvements;
(1) Seller employs no on-site personnel at any part of the
Property that Buyer would be required to hire or be otherwise responsible for
after Closing;
(m) Except as set forth on Exhibit "B-1" through "B-4" hereto,
there are no leasing commissions due or which may become due on account of any
of the Tenant Leases, including the future extension or renewal thereof;
(n) Seller is not a "foreign person" within the meaning of
Section 1445 of the United States Internal Revenue Code, as amended, or its
regulations;
(o) No person, firm, corporation or entity other than Purchaser
has any right or option to acquire the Premises or any portion thereof and no
person, firm, corporation or entity other than Purchaser will obtain such right
or option as a result of the execution of this Agreement; and
(p) To the best of Seller's knowledge, no guarantor(s) of any
Lease has been
15
released or discharged, voluntarily or involuntarily, or by operation of law,
from any obligation under or in connection with any Lease or any transaction
related thereto.
(q) With respect to the Academy Land and the Port Richmond Land
(i) the existing use of such parcels is for a shopping center, (ii) the zoning
classification of the Academy Land under the applicable zoning ordinance is ASC
Area Shopping Center and that the zoning classification of the Port Richmond
Land under the applicable zoning ordinance is G-2 Industrial, (iii) the zoning
classification authorizes the use now being made of the Academy Land and the
Port Richmond Land and the use, location and construction of the buildings,
structures and improvements as presently used, located and constructed thereon,
and (iv) such present use and building construction and location do not violate
the zoning of any applicable subdivision ordinance.
3.4 Purchaser's Representations. Purchaser hereby represents and
warrants to Seller as follows:
(a) Purchaser is a limited partnership duly organized and validly
existing under the laws of the State of Delaware, and is or will be qualified
under the laws of the State of New Jersey or Commonwealth of Pennsylvania, as
required for the particular parcel, to conduct business therein on the Closing
Date;
(b) The execution and delivery of this Agreement and the
performance by Purchaser of its obligations hereunder have been duly authorized
by all requisite company action and will not conflict with or result in a breach
of any of the terms, conditions or provisions of the organizational documents of
Purchaser, and will not conflict with or result in a breach of any law,
regulation or order; or any agreement or instrument to which Purchaser is a
party, by which Purchaser is bound or the Property is subject; and this
Agreement and the documents delivered by Purchaser pursuant to this Agreement,
will each constitute the legal, valid and binding obligations of Purchaser,
enforceable in accordance with their respective terms, covenants and conditions.
Purchaser has the financial ability to execute and deliver this Agreement and
all documents now or hereafter to be executed by it pursuant to this Agreement
(collectively, "Purchaser's Documents"), to consummate the transactions
contemplated hereby, and to perform its obligations hereunder and under
Purchaser's Documents;
(c) This Agreement and Purchaser's Documents do not and will not
contravene any provision of the partnership agreement or certificate of
formation of Purchaser, any judgment, order, decree, writ or injunction issued
against Purchaser, or any provision of any laws applicable to Purchaser. The
consummation of the transactions contemplated hereby will not result in a breach
or constitute a default or event of default by Purchaser under any agreement to
which Purchaser or any of its assets are subject or bound and will not result in
a violation of any laws applicable to Purchaser; and
(d) There are no pending actions, suits, proceedings or
investigations to which Purchaser is a party before any court or other
governmental authority which could, if adversely determined, have a material
adverse impact on the transactions contemplated hereby.
3.5 Survival of Provisions.
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(a) Acceptance by Purchaser of the Deeds at the Closing shall
constitute an acknowledgment by Purchaser of full performance by Seller of all
of Seller's obligations under this Agreement, except for the obligations of
Seller which are expressly provided in this Agreement to survive the Closing.
(b) Any of Purchaser's obligations under this Agreement that are
expressly provided in this Agreement to survive the Closing or that shall
require performance or observance after the Closing Date shall survive the
Closing and delivery of the Deeds, notwithstanding any presumption to the
contrary.
(c) Notwithstanding any provision to the contrary set forth in
this Agreement, none of Seller's representations and/or warranties shall survive
the Closing, except that the representations and/or warranties of Seller
expressly set forth in Section 3.3 of this Agreement shall survive the Closing
under this Agreement for a period of six (6) months (the "Survival Period");
provided, however, that (y) such representations and/or warranties are, and are
intended to be, given as of the Effective Date and repeated as of the Closing
Date (subject to any changes with respect to (A) the Tenant Leases to the extent
permitted herein and/or (B) Exhibits "B-1" through "B-4") and (z) the
representations and/or warranties of Seller set forth in this Agreement with
respect to the Tenant Leases for which a Tenant Estoppel Certificate is
delivered shall not survive the Closing (or, if a Tenant Estoppel Certificate
shall be delivered after the Closing, Seller's representation and/or warranties
with respect to such Tenant Lease shall not survive delivery of such Tenant
Estoppel Certificate but only to the extent such specific representation or
warranty is substantially confirmed by the terms of such Estoppel Certificate).
If Purchaser actually determines prior to the Closing Date that any of
the representations and/or warranties of Seller were not true when given and
Purchaser's damages for all such breaches collectively aggregate more than Fifty
Thousand and 00/100 ($50,000.00) Dollars, Purchaser's sole right and remedy
shall be to terminate this Agreement by giving to Seller written notice of such
termination within ten (10) business days after Purchaser actually learns of the
breach of such representation and/or warranties (but in no event later than the
Closing Date). If Purchaser fails to give such written termination notice to
Seller within such time period, Purchaser shall be deemed to have waived any
right or remedy (including, without limitation, any right under this Agreement
to terminate this Agreement) by reason of such breach.
Seller shall have no liability to Purchaser by reason of a breach or
default of any of Seller's representations and/or warranties unless Purchaser
shall have given to Seller written notice ("Warranty Notice") of such breach or
default within the Survival Period, and shall have given to Seller an
opportunity to cure any such breach or default within a reasonable period of
time after Purchaser's Warranty Notice. No claim for breach of any
representation and or warranty of Seller shall be actionable or payable unless
the valid claims for all such breaches collectively aggregate more than
Twenty-Five Thousand and 00/100 ($25,000.00) Dollars. In no event shall the
aggregate liability of Seller to Purchaser by reason of a breach or default of
one or more of Seller's representations and/or warranties exceed One Hundred
Thousand and 00/100 ($100,000.00) Dollars. The foregoing limitation on Seller's
liability shall not apply to a breach of Seller's covenants set forth in
penultimate sentence of Section 2.1 or Section 2.4 (i) and (ii). Seller's
liability shall be limited to actual damages and shall not include consequential
damages. Any litigation with respect to any representation and/or warranties
must be commenced within
17
forty-five (45) days from the date of the Warranty Notice, and if not commenced
within such time period, Purchaser shall be deemed to have waived its claims for
such breach or default.
(d) The provisions of this Section 3.5 shall survive the Closing
and the delivery of the Deeds.
3.6 Definitions. As used in this Agreement, "Hazardous Substances",
"Contaminants" and/or "Waste" are those materials defined by Environmental Laws
as such or regulated by any Environmental Law, including, but not limited to,
asbestos, asbestos-containing materials, polychlorobiphenyls, petroleum and
petroleum by-products and components. For the purpose of this Agreement,
"Environmental Laws" shall include, but not be limited to, each and every
federal, state and local law, statute, code, ordinance, regulation, rule or
other requirement of governmental authorities having jurisdiction over the
Property (including, but not limited to, consent decrees and judicial or
administrative orders), relating to the environment, including, but not limited
to, those applicable for storage, treatment, disposal, handling and release of
any Hazardous Substances, Contaminants or Waste, all as amended or modified from
time to time, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. ss.9601, et. seq.)
as amended by the Superfund Amendments and Reauthorization Act of 1986 (42
U.S.C. ss.9601-9675) and as further amended; the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. ss.6901, et. seq.); the Clean Water
Act, as amended (33 U.S.C. ss.1251, et. seq.); the Clean Air Act, as amended (42
U.S.C. ss.7401, et. seq.); the Federal Insecticide, Fungicide and Rodenticide
Act, as amended (7 U.S.C. ss.136, et. seq.); the Toxic Substance and Control Act
of 1976, as amended (15 U.S.C. ss.2601, et. seq.); and the Emergency Planning
and Community Right to Know Act of 1986, as amended (42 U.S.C. ss.11001 to
11050).
For the purpose hereof, the words "Seller's knowledge" or words of
similar import shall be deemed to mean, and shall be limited to, the actual (as
distinguished from implied, imputed or constructive) knowledge of Seller after,
and based solely upon, making inquiry of Seller's Representative (without
imposing any independent duty of inquiry on such individual).
ARTICLE IV
THE CLOSING
4.1 The Closing Date. The consummation of the transaction contemplated
by this Agreement (the "Closing") shall take place in the offices of Seller's
counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ at 10:00 a.m., on or before thirty (30) days after the expiration of the
Inspection Period (the "Closing Date"), subject to extension as expressly
provided herein, on a Tuesday, Wednesday or Thursday, unless otherwise agreed to
in writing among the parties hereto; provided that if such thirtieth (30th) day
occurs on a day other than a Tuesday, Wednesday or Thursday, such thirty (30)
day period shall be extended until the next occurring Tuesday.
4.2 Seller's Obligations at the Closing. Subject to the terms,
conditions and provisions hereof and contemporaneously with the performance by
Purchaser of its obligations set forth in Section 4.3 below, Seller shall
deliver or cause to be delivered to Purchaser the
18
following items at Closing:
(a) A special warranty deed for each parcel of real estate
comprising a part of the Property (collectively, the "Deeds"), executed by each
Seller, conveying the Land and Improvements to Purchaser subject to the
Permitted Exceptions, in the form of the Deeds attached hereto as Exhibit "I-1"
and "I-2";
(b) A ▇▇▇▇ of sale for the Personal Property (collectively, the
"Bills of Sale") executed by each Seller, assigning the Personal Property to
Purchaser in the form of the ▇▇▇▇ of Sale attached hereto as Exhibit "J";
(c) An assignment and assumption of leases and contracts for each
parcel of real estate comprising a part of the Property other than the Greentree
Land (collectively, the "Assignments") executed by each Seller, assigning the
then-existing Tenant Leases and Service Contracts (to the extent Purchaser
desires to assume any such Service Contract) to Purchaser, in the form of the
Assignment attached hereto as Exhibit "K";
(d) A certificate of nonforeign status (the "FIRPTA Affidavit"),
executed by each Seller, in the form of the FIRPTA Affidavit attached hereto as
Exhibit "L";
(e) Notices (the "Tenant Notices") to each of the Tenants
executed by each Seller and Purchaser advising each of the Tenants of the sale
of that parcel which such Tenant occupies to Purchaser, and stating that future
rent should be paid as specified by Purchaser and that Purchaser will be
responsible for the security deposits of the Tenants delivered to Purchaser by
Seller;
(f) All security deposits to be acquired by Purchaser pursuant
to Section 1.1 hereof;
(g) All Tenant Estoppels required pursuant to Section 2.2(b)
hereof;
(h) All original Tenant Leases, Tenant operating files, Service
Contracts, Permits, plans and other items conveyed under this Agreement, to the
extent in Seller's possession or under its control;
(i) A termination of the existing management agreements for the
Property;
(j) An estoppel from each of the Payees stating that, as of the
Closing Date (or no earlier than five (5) days prior to the Closing), all
payments due under the Notes are current and that no default or breach exists
under the Loan Documents which remains uncured;
(k) Such documents, in a form reasonably acceptable to Purchaser,
as are required, at no cost or expense to Seller, to be executed by Seller,
Purchaser and the Payees to assign to Purchaser the Loan Documents which
Purchaser has agreed to assume connection with the Assumptions;
(l) All keys and security codes (if any);
19
(m) Such other documents, instruments and matters that may be
reasonably required by the Title Company in connection with the Closing;
(n) With respect to those parcels located in Philadelphia,
Pennsylvania, a Certification Statement from the City of Philadelphia Department
of Licenses and Inspections; and
(o) Any other documents or materials required hereunder to be
delivered by Seller.
4.3 Purchaser's Obligations at the Closing. Purchaser shall deliver or
cause to be delivered to Seller the following items at the Closing:
(a) The balance of the Purchase Price, as described in Section
1.2(c);
(b) Assumption agreements with respect to the Notes, Existing
Mortgages and Loan Documents;
(c) The Assignments executed by Purchaser;
(d) The Tenant Notices executed by Purchaser;
(e) Such other documents, instruments and matters that may be
reasonably required by the Title Company in connection with the Closing; and
(f) Any other documents or materials required hereunder to be
delivered by Purchaser.
4.4 Closing Costs. Seller and Purchaser shall each pay one-half (1/2)
of the transfer tax on account of the Deeds conveying that portion of the
Property located in the Commonwealth of Pennsylvania. Seller shall pay the
transfer tax on account of the Deeds conveying that portion of the Property
located in the State of New Jersey. In addition, Seller shall pay any and all
open space or similar "roll back" taxes, as well as the recording fees for the
release of any existing liens upon the Property that are not Permitted
Exceptions. Attorneys' fees incurred by both Seller and Purchaser in connection
with this transaction shall be paid by the party incurring the same. Purchaser
shall pay the costs of any title premiums, survey, financing (excluding as
provided herein respecting the Assumptions, the application fees and the 1%
assumption fees payable to the Payees), recording fees (except those paid by
Seller as aforesaid), obtaining of building plans, appraisal and any
engineering, soil, environmental or property inspections, tests or reports which
Purchaser obtains from third parties engaged by Purchaser.
4.5 Prorations. The following shall be apportioned between Seller and
Purchaser at the Closing as of 11:59 p.m. of the day preceding the Closing Date:
(a) Rents and other income (including real estate tax, insurance
and common area maintenance reimbursements) derived from the operation the
Property that have been collected for the calendar month in which the Closing
occurs (if any) shall be prorated as of the Closing Date. Any amounts received
from Tenants after the Closing shall be applied on a
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Tenant by Tenant basis as follows: The rents shall be prorated as if the current
month were paid. No "Delinquent Rents" (i.e., rents or other charges that are
due for the periods prior to the month of the Closing) shall be prorated in
favor of Seller. All rents and other charges received by (or for the benefit of)
Purchaser from any Tenants after the Closing shall be first applied against
current and past due obligations owed to, or for the benefit of, Purchaser, and
any excess shall be delivered to Seller, but only to the extent of amounts in
default and owed to, and for the benefit of, Seller for the period prior to the
Closing Date. In no event, however, shall any sums be paid to Seller to the
extent Seller has been previously reimbursed for such default out of any
security deposit and security deposits have been appropriately prorated
hereunder. Seller shall have the right to collect delinquent rents directly from
Tenants after the Closing, and in connection therewith, Purchaser agrees to
reasonably cooperate with Seller, at no expense to Purchaser and short of
litigation, but in no event shall Seller disturb a Tenant's occupancy or
commence litigation against any Tenant after the Closing. Seller agrees that it
will not unreasonably interfere with Purchaser's relationship with its Tenants
generally in collecting delinquent rents hereunder. Purchaser will furnish to
Seller upon the expiration of three (3) months following the Closing and each
three (3) month period thereafter until the first anniversary of the Closing
Date, an accounting setting forth in reasonable detail the amounts owed and the
amounts collected from delinquent Tenants which are payable to Seller under the
provisions of this Paragraph 4.5(a). Upon receipt of delinquent rents from
Tenants that are owed to Seller hereunder, Purchaser shall promptly pay such
amounts to Seller. Upon receipt of any amount directly from Tenants after the
Closing due to Purchaser, Seller shall promptly pay over such amount to
Purchaser.
(b) Real estate taxes, water charges and sewer rents, on the
basis of the fiscal or tax years, respectively, for which same have been
assessed, regardless of whether or not then due and payable or a lien. Seller
shall pay at or prior to the Closing (or Purchaser shall receive a credit for)
any unpaid taxes attributable to periods prior to the Closing Date, (whether or
not then due and payable or a lien as aforesaid), and Seller shall receive a
credit for any previously paid taxes attributable to periods from and after the
Closing Date. Notwithstanding the foregoing, Section 4.6 shall govern with
respect to all general, special and/or betterment assessments on the Property at
the Closing Date. Any assessments after the Closing Date, including any
assessments for prior years due to a change in land, usage or ownership, shall
be paid solely by Purchaser, without any adjustment.
(c) Personal property taxes, if any, on the basis of the fiscal
year for which assessed.
(d) Fees for inspections, permits or licenses which are
transferred to Purchaser at the Closing.
(e) In the event that final meter readings are not available,
utilities (including telephone, steam, electricity and gas) shall be adjusted on
the basis of the most recently issued bills therefor, subject to adjustment
after the Closing when the next bills are available. Seller shall use good faith
efforts to arrange for final meter readings for all utilities serving the
Property on the day prior to the Closing. If final meter readings are available,
Seller shall pay all charges based upon the metered usage prior to the Closing.
21
(f) All ordinary operating expenses of the Property including,
without limitation, maintenance, service charges (including ad valorem tax
appeal contracts), expenses and charges under those Service Contracts being
assumed by Purchaser, and all other normal operating charges with respect to the
Property.
(g) Permitted administrative charges, if any, on those security
deposits transferred by Seller pursuant to Section 4.2(f).
(h) Interest accruing under the Notes.
(i) Such other items as are customarily apportioned between
sellers and purchasers of real property of a type similar to the Property and
located in the city or town and state where the Property is located.
Notwithstanding anything to the contrary contained herein, all brokerage
and leasing commissions or other compensation due or accrued to any broker,
agent or other person in connection with the Property for brokerage or other
services rendered to Seller or any predecessor of Seller in connection with or
on account of the Tenant Leases shall (A) be paid by Seller in connection with
any Tenant Lease (or extension or modification option with respect thereto)
which has been executed and delivered (or exercised) by the parties thereto
prior to the execution and delivery of this Agreement; (B) provided such
commission or compensation has been disclosed to Purchaser, be paid by Purchaser
in connection with any Tenant Lease (or extension or modification option with
respect thereto) which has been executed and delivered (or exercised) by the
parties thereto after the Closing Date; (C) provided such commission or
compensation has been disclosed to Purchaser, be paid by Purchaser in connection
with any Tenant Lease (or extension or modification option with respect thereto)
which has been approved by Purchaser and executed and delivered (or exercised)
by the parties thereto after the execution and delivery of this Agreement and
prior to the Closing, but for which the payment of Rent shall have commenced
after the Closing Date; and (D) be adjusted as of 11:59 p.m. of the day
preceding the Closing Date in connection with any Tenant Lease (or extension or
modification option with respect thereto) which has been executed and delivered
(or exercised) by the parties thereto, and for which the payment of Rent shall
have commenced after the execution and delivery of this Agreement and prior to
the Closing Date.
Notwithstanding anything to the contrary contained herein, all prepaid
rentals, other prepaid payments, security deposits, electric, gas, sewer and
water deposits deposited with Seller by Tenants (including all accrued interest
on all of the foregoing, unless Seller is entitled to retain the benefit
thereof) under any Tenant Leases, license agreements or concession agreements
relating to the Property, shall all belong to Purchaser. Notwithstanding the
foregoing, Purchaser shall receive at the Closing a cash credit in the amount of
all such deposits, prepaid rentals and other prepaid payments, which shall all
be retained by Seller unless otherwise required by law, any lender or any Tenant
Leases.
Notwithstanding anything to the contrary contained herein, percentage
rent (i.e., that portion of the rent payable to the landlord by a Tenant under a
Tenant Lease which is a percentage of the amount of sales or of the dollar
amount of sales), if any, payable under each
22
Tenant Lease shall be prorated with respect to the lease year thereunder in
which the Closing occurs on a per diem basis as and when collected, and paid to
the parties in the same priority as set forth in Section 4.5(a). Any percentage
rent collected by Purchaser, including any percentage rent which is delinquent
and pertaining to (i) an entire lease year or accounting period of a Tenant
under a Tenant Lease which ends on a date prior to the Closing Date, and (ii)
that portion of a lease year or accounting period of such Tenant covering a
period prior to the Closing Date where such lease year or accounting period
begins prior to the Closing Date and ends thereafter, shall in both cases be
paid to Seller within ten (10) days of receipt by Purchaser. Purchaser shall not
be required to institute any action or proceeding to collect any delinquent
percentage rent.
Notwithstanding anything to the contrary contained herein, Seller shall
be paid Seller's share, if any, of all revenues from the operation of the
Property prior to the Closing Date other than rent, real estate tax, insurance
and common area reimbursements (including parking charges and telephone booth
and vending machine revenues), if, as and when received by Purchaser.
Except as expressly set forth in this Section 4.5, if the exact amount
of any item to be prorated is not known as of the Closing Date, the proration
shall be based upon a reasonable estimate thereof made by Seller and Purchaser
and as soon after the Closing as the exact amount of the item is known, the
adjustment for such item shall be re-prorated pursuant to Section 4.6.
4.6 Reproration. If the Closing shall occur before a new real estate or
personal property tax rate is fixed, the apportionment of such taxes at the
Closing shall be upon the basis of the old tax rate for the preceding fiscal
year applied to the latest assessed valuation. Promptly after the new tax rate
is fixed, the apportionment of taxes shall be recomputed and any discrepancy
resulting from such recomputation and any errors or omissions in computing
apportionments at the Closing shall be promptly corrected and the proper party
reimbursed. If any of the items subject to apportionment hereunder cannot be
definitively apportioned at the Closing because of the unavailability of the
information necessary to compute such apportionment, or if any errors or
omissions in computing apportionments at Closing are discovered subsequent to
the Closing, then such item shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing for a period of one (1)
year after the Closing Date as hereinafter provided. Neither party hereto shall
have the right to require a recomputation of a Closing apportionment or a
correction of an error or omission in a closing apportionment unless within the
aforestated one (1) year period one of the parties hereto (a) has obtained the
previously unavailable information or has discovered the error or omission, and
(b) has given notice thereof to the other party together with a copy of its good
faith recomputation of the apportionment and copies of all substantiating
information used in such recomputation. The failure of a party to obtain any
previously unavailable information or discover an error or omission with respect
to an item subject to apportionment hereunder and to give notice thereof as
provided above within one (1) year after the Closing Date shall be deemed a
waiver of its right to cause a recomputation or a correction of an error or
omission with respect to such item after the Closing Date.
4.7 Special Adjustment. At Closing Seller shall deposit in escrow with
Escrow Agent the sum of $96,000.00. Until such time as Purchaser shall have
entered into a lease for that
23
portion of the Washington Land known as the "pad site" (the "Washington Pad
Lease") and rent is being paid thereunder, upon delivery to Escrow Agent (with a
copy to Seller) of an affidavit of Purchaser's chief executive officer stating
that the Washington Pad Lease has not been executed or that rent thereunder is
not yet payable, Purchaser shall be entitled to receive from Escrow Agent
monthly the amount of $8,000.00. Purchaser may make such request for payment
from the Escrow Agent no more frequently than once every month.
4.8 Survival. The provisions of Section 4.5 through Section 4.7 shall
survive the Closing for a period of one (1) year.
ARTICLE V
DAMAGE OR CONDEMNATION PRIOR TO THE CLOSING
5.1 Notification of Fire, Casualty or Taking. Seller agrees to give
Purchaser prompt written notice of any fire or other casualty affecting all or
any material portion of the Property and of any actual or threatened taking or
condemnation of all or any material portion of the Property between the date
hereof and the Closing Date.
5.2 Minor Loss. Purchaser shall be bound to purchase the Property for
the full Purchase Price as required by the terms hereof, without regard to the
occurrence or effect of any damage to the Property or destruction of any
improvements thereon or condemnation of any portion of the Property, provided
that: (a) the cost to repair any such damage or destruction, or the diminution
of the value of the remaining Property as a result of partial condemnation, does
not exceed $250,000.00, as reasonably determined by Seller, or allow any Major
Tenant to terminate its Tenant Lease or withhold or reduce its rent in excess of
rent insurance proceeds; and (b) at the Closing, there shall be credit against
the Purchase Price due hereunder equal to the amount of any insurance proceeds
or condemnation awards collected by Seller as a result of any such damage or
destruction or condemnation, together with any rent insurance proceeds to the
extent allocable to the period following the Closing, plus the amount of any
insurance deductible, less any sums expended by Seller toward the restoration or
repair of the Property. If the proceeds or awards have not been collected as of
the Closing in whole or in part, then such uncollected proceeds or awards shall
be assigned to Purchaser, except to the extent needed to reimburse Seller for
sums expended to repair or restore the Property as a result of such casualty or
condemnation.
5.3 Major Loss. If the amount of damage or destruction or condemnation
as specified above is in excess of ten percent (10%) of the Purchase Price
$250,000.00 or allows any Tenant to terminate its Tenant Lease, then Purchaser
may, at its option to be exercised within ten (10) days of Seller's notice of
the occurrence of the damage or destruction or the commencement of condemnation
proceedings, either terminate this Agreement or consummate the purchase for the
full Purchase Price as required by the terms hereof. If Purchaser timely elects
to terminate this Agreement, then the Deposit shall be returned to Purchaser and
neither party shall have any further rights or obligations hereunder except with
respect to those that are herein specified to expressly survive such a
termination. If Purchaser elects to proceed with the purchase, or fails to give
Seller notice within such ten (10) day period that Purchaser has terminated this
Agreement, then at the Closing, there shall be a credit against the Purchase
Price due hereunder equal to the
24
amount of any insurance proceeds or condemnation awards collected by Seller as a
result of any such damage or destruction or condemnation, together with any rent
insurance proceeds to the extent allocable to the period following the Closing,
plus the amount of any insurance deductible, less any sums expended by Seller
toward the restoration or repair of the Property. If the proceeds or awards have
not been collected as of the Closing, in whole or in part, then such uncollected
proceeds or awards shall be assigned to Purchaser, except to the extent needed
to reimburse Seller for the sums previously expended to repair or restore the
affected Property as a result of such casualty or condemnation.
ARTICLE VI
PROVISIONS WITH RESPECT TO FAILURE OF TITLE AND DEFAULT
6.1 Failure of Title. In the event Seller is unable (through no fault
of Seller) to convey title to the Property on the Closing Date in accordance
with the provisions of this Agreement, Seller shall, on or before the Closing
Date, give notice of such inability (and the nature thereof) to Purchaser, and
Purchaser may either (i) accept such title as Seller can convey, without any
reduction of the Purchase Price, or (ii) terminate this Agreement by written
notice to Seller and Escrow Agent given on or before the Closing Date, in which
event the Deposit shall be returned to Purchaser and neither party shall have
any further right or obligation hereunder except with respect to those
obligations which expressly survive such a termination.
6.2 Default by Seller. In the event Seller shall default in the
performance of any obligation under this Agreement, Purchaser may, as its sole
and exclusive remedy for such breach, either (i) enforce specific performance of
this Agreement against Seller, so long as Purchaser brings an action for
specific performance against Seller within forty-five (45) days after the date
of Seller's default, or (ii) terminate this Agreement by written notice to
Seller and Escrow Agent given on or before the Closing Date, in which event the
Deposit shall be returned to Purchaser in accordance with the terms of Article
IX and neither party shall have any further right or obligation hereunder except
with respect to those obligations which expressly survive such a termination. In
no event shall Seller be liable to Purchaser for any actual, punitive,
speculative, consequential or other damages.
6.3 Default by Purchaser. In the event Purchaser shall default in the
performance bf any obligation under this Agreement, Seller, as its sole and
exclusive remedy for such breach, may, after five (5) days' notice and
opportunity to cure (time being of the essence as to such 5-day period),
terminate this Agreement by written notice to Purchaser and Escrow Agent, and
upon any such termination Escrow Agent shall deliver the Deposit to Seller in
accordance with the terms of Article IX, as liquidated damages, and not as a
penalty or forfeiture, Seller and Purchaser hereby agreeing that in the event of
a default by Purchaser hereunder, the damages which would be suffered by Seller
would be extremely difficult and impracticable to ascertain and that the Deposit
represents the parties' reasonable estimate of the amount of damages which
Seller would suffer by reason of Purchaser's default.
ARTICLE VII
INDEMNITY
25
7.1 Indemnity. Purchaser hereby agrees to indemnify, protect, defend,
save and hold Seller harmless from and against any and all debts, duties,
obligations, liabilities, suits, claims, demands, causes of action, damages,
losses, costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses and court costs) in any way relating to, in connection with or
arising out of (a) the entry onto the Property by Purchaser or its respective
officers, directors, members, trustees, agents, employees, attorneys, managers,
contractors and/or invitees between the execution and delivery of this Agreement
and the Closing Date, and/or (b) the Property or the ownership, leasing, use,
operation, maintenance and management thereof from and after the Closing Date,
including, without limitation, any debts, duties, obligations, liabilities,
suits, claims, demands, causes of action, damages, loses, costs and expenses in
any way relating to, connected with or arising under any of the Tenant Leases
(including the security deposits held thereunder) encumbering the Property from
and after the Closing Date. IN ADDITION, PURCHASER HEREBY AGREES TO INDEMNIFY
SELLER AND TO HOLD AND DEFEND SELLER HARMLESS FROM AND AGAINST ANY AND ALL
CLAIMS, CAUSES OF ACTION, COSTS, EXPENSES, DAMAGES, LIABILITIES OR LOSSES
ARISING IN EQUITY OR LAW, INCLUDING STRICT LIABILITY CLAIMS AND IRRESPECTIVE OF
ANY NEGLIGENCE OF SELLER, ASSERTED AGAINST, SUFFERED OR INCURRED BY SELLER AS A
RESULT OF THE USE, MANAGEMENT, SPILL, DISPOSAL, MANUFACTURE, STORAGE OR RELEASE
OF ANY HAZARDOUS OR TOXIC WASTES, SUBSTANCE, CHEMICALS OR MATERIALS BY PURCHASER
OR ITS SUCCESSORS OR ASSIGNS OR BY ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
MEMBERS, TRUSTEES, AGENTS, EMPLOYEES, ATTORNEYS, MANAGERS, CONTRACTORS, INVITEES
OR TENANTS, ON OR ABOUT THE PROPERTY. THE FOREGOING INDEMNIFICATION SHALL
INCLUDE, WITHOUT LIMITATION, (I) REASONABLE ATTORNEYS' FEES AND COURT COSTS
INCURRED BY SELLER IN CONNECTION WITH ANY OF THE FOREGOING AND (II) ANY COSTS OR
EXPENSES ASSESSED AGAINST OR INCURRED BY SELLER AS A RESULT OF ANY REMOVAL OR
REMEDIAL OBLIGATIONS IMPOSED WITH RESPECT TO THE PROPERTY UNDER ANY APPLICABLE
ENVIRONMENTAL LAWS.
7.2 Survival. The indemnifications contained in this Article VII shall
survive the Closing or the earlier termination of this Agreement.
ARTICLE VIII
NOTICES
8.1 Notices. All notices, elections, consents, approvals, demands,
objections, requests or other communications which Seller, Purchaser or Escrow
Agent may be required or desire to give pursuant to, under or by virtue of this
Agreement must be in writing and shall be sent by (a) first class U.S. certified
or registered mail, return receipt requested, with postage prepaid; (b)
depositing the same into the custody of a nationally recognized overnight
delivery service such as Federal Express Corporation for next business day
delivery; (c) same-day hand delivery with proof of service endorsed thereon; or
(d) telecopier, provided it is also delivered by express mail or courier (for
next business day delivery). All such notices, elections, consents, approvals,
demands, objections, requests or other communications sent in compliance with
the provisions hereof shall be deemed given and received on (i) the third (3rd)
business day following the date it
26
is deposited in the U.S. mail, (ii) one (1) business day after delivery to a
nationally recognized overnight delivery service, (iii) the date it is delivered
by hand delivery, or (iv) the date it is delivered to the other party if sent by
telecopier (if received before 3:00 p.m. on a business day, or, if not, on the
next business day, except for the Termination Notice, which explicitly provides
for 5 p.m. delivery) provided it is confirmed by express mail or courier (for
next business day delivery). For purposes of this Section 8.1, the addresses of
the parties shall be as follows:
If to Seller, to: ▇▇▇▇▇▇ Asset Management
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser to: Cedar Income Fund Partnership, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Cedar Bay Realty Advisors, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
From time to time either party may designate another address or addresses for
all purposes of this Agreement by a notice given to all other parties in
accordance with the provisions hereof.
27
ARTICLE IX
ESCROW AGENT
9.1 General. Escrow Agent shall hold the Deposit in escrow and shall
dispose of the Deposit only in accordance with the provisions of this Section 9.
9.2 Delivery of Deposit. Escrow Agent shall deliver the Deposit to
Seller or Purchaser, as the case may be, as follows:
(a) to Seller, upon completion of the Closing; or
(b) to Seller, after receipt of Seller's demand in which Seller
certifies that Purchaser has defaulted under this Agreement, but Escrow Agent
shall not honor Seller's demand until more than ten (10) days after Escrow Agent
has given a copy of Seller's demand to Purchaser in accordance with Section
9.3(a), nor thereafter if Escrow Agent receives a Notice of Objection (as
hereinafter defined) from Purchaser within such ten (10) day period; or
(c) to Purchaser, after receipt of Purchaser's demand in which
Purchaser certifies either that (i) Seller has defaulted in its obligation to
convey the Property to Purchaser under this Agreement, or (ii) this Agreement
has been terminated or canceled and Purchaser is thereby entitled to receive the
Deposit; but Escrow Agent shall not honor Purchaser's demand until more than ten
(10) days after Escrow Agent has given a copy of Purchaser's demand to Seller in
accordance with Section 9.3(a), nor thereafter if Escrow Agent receives a Notice
of Objection from Seller within such ten (10) day period. Notwithstanding the
foregoing, if Purchaser terminates this Agreement prior to the expiration of the
Inspection Period in accordance with Section 2.2(f), Escrow Agent shall,
promptly after receipt of Purchaser's demand, deliver the Deposit to Purchaser.
Upon delivery of the Deposit, Escrow Agent shall be relieved of all
liability hereunder and with respect to the Deposit. Escrow Agent shall deliver
the Deposit, at the election of the party entitled to receive the same, by a
bank wire transfer of immediately available U.S. cash funds to an account
designated in writing by such party.
9.3 Objections.
(a) Upon receipt of a written demand from Seller or Purchaser
under Section 9.2(b) or (c), except in the event of a demand which states that
Purchaser has terminated the Agreement prior to the expiration of the Inspection
Period, Escrow Agent shall send a copy of such demand to the other party. Within
ten (10) days after the date of receiving same, but not thereafter, the other
party may object to delivery of the Deposit to the party making such demand by
giving a notice of objection (a "Notice of Objection") to Escrow Agent. After
receiving a Notice of Objection, Escrow Agent shall send a copy of such Notice
of Objection to the party who made the demand; and thereafter, in its sole and
absolute discretion, Escrow Agent may elect either (i) to continue to hold the
Deposit until Escrow Agent receives a written agreement of Purchaser and Seller
directing the disbursement of the Deposit, in which event Escrow Agent
28
shall disburse the Deposit in accordance with such agreement; and/or (ii) to
take any and all actions as Escrow Agent deems necessary or desirable, in its
sole and absolute discretion, to discharge and terminate its duties under this
Agreement (other than paying the Deposit to one of the parties), including,
without limitation, depositing the Deposit into any court of competent
jurisdiction and bringing any action of interpleader or any other proceeding;
and/or (iii) in the event of any litigation between Seller and Purchaser, to
deposit the Deposit with the clerk of the court in which such litigation is
pending.
(b) If Escrow Agent is uncertain for any reason whatsoever as to
its duties or rights hereunder (and whether or not Escrow Agent has received any
written demand under Section 9.2(b) or (c), or Notice of Objection under
Section 9.3(a)), notwithstanding anything to the contrary herein, Escrow Agent
may hold and apply the Deposit pursuant to Section 9.3(a)(i), (ii) or (iii) and
may decline to take any other action whatsoever. In the event the Deposit is
deposited in a court by Escrow Agent pursuant to Section 9.3(a)(ii) or (iii),
Escrow Agent shall be entitled to rely upon the decision of such court. In the
event of any dispute whatsoever among the parties with respect to disposition of
the Deposit, Purchaser and Seller shall pay in equal shares the reasonable
attorneys' fees and costs incurred by Escrow Agent (which said parties shall
share equally, but for which said parties shall be jointly and severally liable)
for any litigation in which Escrow Agent is named as, or becomes, a party.
9.4 Investment of Deposit. Notwithstanding anything to the contrary set
forth in this Agreement, Escrow Agent shall place the Deposit in an Approved
Investment (as hereinafter defined). The interest, if any, which accrues on such
Approved Investment shall be deemed part of the Deposit; and Escrow Agent shall
dispose of such interest as and with the Deposit pursuant to this Agreement.
Escrow Agent may not commingle the Deposit with any other funds held by Escrow
Agent. Escrow Agent may convert the Deposit from the Approved Investment into a
non-interest-bearing demand account at an Approved Institution as follows:
(a) at any time within three (3) business days prior to the
Closing Date; or
(b) if the Closing Date is accelerated or extended, at any time
within three (3) business days prior to the accelerated or the extended Closing
Date; provided, however, that Seller and Purchaser shall give Escrow Agent
timely notice of any such acceleration or extension and that Escrow Agent may
hold the Deposit in a non-interest-bearing deposit account if Seller and
Purchaser do not give Escrow Agent timely notice of any such adjournment.
9.5 Approved Investment. As used herein, the term "Approved Investment"
means (a) any interest-bearing demand account or money market fund in a major
financial institution located in the City of New York or in any other
institution otherwise approved by both Seller and Purchaser (collectively, an
"Approved Institution"), or (b) any other investment approved by both Seller and
Purchaser. The rate of interest or yield need not be the maximum available and
deposits, withdrawals, purchases, reinvestment of any matured investment and
sales shall be made in the sole discretion of Escrow Agent, which shall have no
liability whatsoever therefor. Discounts earned shall be deemed interest for the
purpose hereof.
29
9.6 Duties of Escrow Agent. Escrow Agent shall have no duties or
responsibilities except those set forth herein, which the parties hereto agree
are ministerial in nature. Seller and Purchaser acknowledge that Escrow Agent is
serving without compensation, solely as an accommodation to the parties hereto,
and except for Escrow Agent's own willful default, misconduct or gross
negligence, Escrow Agent shall have no liability of any kind whatsoever arising
out of or in connection with its activity as Escrow Agent. Seller and Purchaser
jointly and severally agree to and do hereby indemnify and hold harmless Escrow
Agent from all loss, cost, claim, damage, liability, and expense (including
reasonable attorneys' fees and disbursements) which may be incurred by reason of
its acting as Escrow Agent provided the same is not the result of Escrow Agent's
willful default, misconduct or gross negligence. Escrow Agent may charge against
the Deposit any amounts owed to it under the foregoing indemnity or may withhold
the delivery of the Deposit as security for any unliquidated claim, or both.
9.7 Notices. Any Notice of Objection, demand or other notice or
communication which may or must be sent, given or made under this Agreement to
or by Escrow Agent shall be sent in accordance with the provisions of Section.
9.8 Tax Information. Simultaneously with their execution and delivery
of this Agreement, Purchaser and Seller shall furnish Escrow Agent with their
true Federal Taxpayer Identification Numbers so that Escrow Agent may file
appropriate income tax information returns with respect to any interest in the
Deposit or other income from the Approved Investment. The party ultimately
entitled to any accrued interest on the Deposit shall be the party responsible
for the payment of any tax due thereon.
9.9 Amendments. Any amendment of this Agreement which could alter or
otherwise affect Escrow Agent's obligations hereunder will not be effective
against or binding upon Escrow Agent without Escrow Agent's prior consent, which
consent may be withheld in Escrow Agent's sole and absolute discretion.
9.10 Waiver of Conflict. Seller and Purchaser waive any claim of
conflict of interest by reason of Escrow Agent's actions in that capacity under
this Agreement. Purchaser hereby acknowledges that Escrow Agent are the
attorneys for Seller, and agrees that Escrow Agent may represent Seller in
connection with any and all matters, including without limitation, the
transaction contemplated by this Agreement and any litigation, including any
action arising out of this Agreement; provided that in no event shall Purchaser
be responsible for payment of any fees incidental to any such representation
(except as set forth in Section 9.3(b) hereof).
9.11 Survival. The provisions of this Article IX shall survive Closing
and the termination of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 Brokerage Fees and Commissions. Each of Seller and Purchaser
represents and warrants to the other that it has not engaged any real estate
broker, agent, finder or similar person
30
in connection with the negotiation and execution of this Agreement, the
transactions contemplated hereby or the sale and purchase of the Property, other
than Ripco Real Estate Corp. ("Broker"), whose commission shall be paid by
Seller pursuant to a separate agreement. It is agreed that if any claims for a
brokerage commission or finder's fee are ever made against Seller or Purchaser
in connection with the transactions contemplated by this Agreement, all such
claims shall be the responsibility of the party whose commitments and/or actions
form the basis of such claims. Seller and Purchaser each agrees to save and hold
harmless the other from and against any and all liabilities, claims, demands or
actions for commissions in connection with this Agreement or the transactions
contemplated hereby, and any court costs, attorneys' fees and disbursements or
other costs and expenses arising therefrom, insofar as any such liabilities,
claims, demands or actions are based upon a contract, commitment and/or action
of the indemnifying party. This Section 10.1 shall survive Closing or the
termination of this Agreement, as applicable.
The Pennsylvania Legislature has established a Real Estate Recovery
Fund. The purpose of the Fund is to compensate persons who obtain a judgment
because of fraud, misrepresentation or deceit of an agent. For further
information call (▇▇▇) ▇▇▇-▇▇▇▇.
10.2 Entire Agreement; Merger. This Agreement embodies and constitutes
the entire understanding between the parties hereto with respect to the
transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged into
this Agreement. Except as otherwise expressly provided herein, Purchaser's
acceptance of the Deeds shall be deemed a discharge of all of the obligations of
Seller hereunder and all of Seller's representations, warranties, covenants and
agreements herein shall merge in the documents and agreements executed at
Closing and shall not survive Closing.
10.3 Modification. Neither this Agreement nor any provision hereof may
be waived, modified, amended, discharged or terminated except as provided herein
or by an instrument in writing signed by the party against which the enforcement
of such waiver, modification, amendment discharge or termination is sought, and
then only to the extent set forth in such instrument.
10.4 Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Pennsylvania, (with respect
to the portions of the Property located in such Commonwealth) and the State of
New Jersey (with respect to portions of the Property located in such State)
without regard to conflict of laws principles.
10.5 Headings. Descriptive headings are used in this Agreement are for
convenience only and shall not control, limit, amplify or otherwise modify or
affect the meaning or construction of any provision of this Agreement.
10.6 Binding Effect. This Agreement shall not be binding upon either
party hereto unless and until a fully executed original is delivered to each
party. Once so fully executed and delivered, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
legal representatives, successors and permitted assigns.
10.7 Assignment. Except as set forth herein, Purchaser shall not have
the right to
31
assign its rights under this Agreement without the prior written consent of
Seller which consent may be withheld in Seller's sole judgment and discretion.
Any assignment or attempted assignment in violation of the foregoing shall be
deemed to be void and of no force and effect, and shall constitute a default by
Purchaser. Notwithstanding the foregoing, Purchaser shall have the right, upon
delivery of written notice to Seller, not less than five (5) business days prior
to Closing, to assign all or any portion of its rights under this Agreement to
an entity controlled by, which controls or which is under common control with
Purchaser; and/or ▇▇▇ ▇. ▇▇▇▇▇▇; provided, however, that such assignee shall, in
writing, agree to assume Purchaser's obligations hereunder with respect to the
portion of the Property so assigned. For the purposes of this Section 10.7,
control means the possession of the exclusive right or power to direct or cause
the direction of the management, business and policies of an entity, whether by
contract or otherwise. Furthermore, this Agreement may be assigned by Purchaser
in its sole discretion pursuant to Section 10.18. Finally, upon prior written
notice to Seller, Purchaser may assign its rights hereunder with respect to the
Greentree Land and Improvements to an unrelated third party without the consent
of Seller.
10.8 Survival of Indemnification Provisions. Any indemnification by
Purchaser and other provisions contained herein for the benefit of Seller shall
survive the Closing or any termination of this Agreement by Seller or Purchaser
pursuant to the terms hereof.
10.9 Time of Essence. Time is of the essence of this Agreement and of
each covenant and agreement that is to be performed at a particular time or
within a particular period of time. However, if the final date of any period
which is set out in any provision of this Agreement or the Closing Date falls on
a Saturday, Sunday or legal holiday under the laws of the United States, the
State of New Jersey or the Commonwealth of Pennsylvania, then the time of such
period or the Closing Date, as the case may be, shall be extended to the next
date which is not a Saturday, Sunday or legal holiday.
10.10 Invalid Provision. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision has never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid or unenforceable provision or by its severance from this
Agreement.
10.11 Multiple Counterparts; Facsimile Signatures. This Agreement may
be executed in a number of identical counterparts, each of which for all
purposes is deemed an original, and all of which collectively constitute one
agreement, but in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart. Facsimile signatures
shall be binding for the purposes of the execution and delivery of this
Agreement.
10.12 Exhibits. The following exhibits are attached to this Agreement,
are incorporated herein and are made a part hereof
(a) Exhibits "A-1" through "A-5" - Legal Descriptions of the Land
(b) Exhibits "B-1" through "B-4" - Rent Rolls
32
(c) Exhibit "C-1" through "C-4" - List of Service Contracts
(d) Exhibit "D" - Allocation of Purchase Price
(e) Exhibit "E" - Schedules of Mortgages
(f) Exhibit "F" - Permitted Exceptions
(g) Exhibit "3.3(g)" - Schedule of Litigation
(h) Exhibit "3.3(i)" - Condemnation Notices
(i) Exhibit "G" - Form of Tenant Estoppel
(j) Exhibit "H" - Major Tenants
(k) Exhibit "I" - Deeds
(1) Exhibit "J" - ▇▇▇▇ of Sale
(m) Exhibit "K" - Assignment of Leases and Contracts
(n) Exhibit "L" - FIRPTA Affidavit
(o) Exhibit "M" - 8-K and Audit Requirements
(p) Exhibit "NOI"
10.13 Confidentiality No Memorandum. Purchaser shall not disclose the
terms, provisions and conditions of this Agreement prior to Closing to any
person or entity without the prior written consent of Seller, other than to
appraisers, lenders and other consultants of Purchaser, provided that such
appraisers, lenders and other consultants each agree in writing to comply with
the provisions of this Section 10.13. Purchaser shall not record this Agreement
or a memorandum hereof and any attempted recordation of this Agreement or a
memorandum hereof shall be void and shall constitute a default by Purchaser;
provided, however, that Purchaser may record a Notice of Settlement after the
expiration of the Inspection Period with respect to those parcels located in New
Jersey.
10.14 Zoning, Etc. Purchaser shall not attempt to obtain any zoning
change, modification of the zoning classification or variance for the Property
or any part thereof at any time prior to the Closing Date without Seller's prior
written consent, which may be withheld in Seller's sole and absolute discretion.
10.15 Construction. All of the terms and provisions of this Agreement
have been negotiated by Seller and Purchaser with the assistance of their
respective legal counsel. Therefore, it is the intent of Seller and Purchaser
that this Agreement shall not be construed for or against either of the parties
hereto, and that neither of the parties hereto be deemed the draftsmen of this
Agreement. Unless otherwise specified herein, (a) references to persons or
33
parties include their legal representatives, successors and permitted assigns;
(b) references to modifications or amendments shall in all events mean
modifications and amendments hereto; (c) references to statutes are to be
construed as including all rules and regulations adopted pursuant to the statute
referred to and all statutory provisions consolidating, amending or replacing
the statute referred to; (d) references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto entered into from time to time after the date hereof; (e)
references to a mortgage shall be deemed to mean or include a deed of trust,
depending on the jurisdiction in which the Property is located; (f) the words
"include" or "including", and words of similar import, shall be deemed to be
followed by the words "but not limited to" or "without limitation"; (g) the
words "hereto", "herein", "hereof" and "hereunder", and words of similar import,
refer to this Agreement in its entirety; (h) unless otherwise specified herein,
all references to Sections are to Sections of this Agreement; and (i) the
feminine or masculine gender shall each include the other gender. Terms defined
herein may be used in the singular or the plural; when used in the singular and
preceded by "a", "an" or "any", such term shall be taken to indicate one or more
members of the relevant class; and when used in the plural, such term shall be
taken to indicate all members of the relevant class.
10.16 Additional Acts. In addition to the acts and deeds recited herein
and contemplated to be performed, executed and delivered by the parties, each
party shall perform, execute and deliver or cause to be performed, executed and
delivered at the Closing or thereafter any and all further acts, deeds and
assurances as the other party or the Title Company may reasonably require to
consummate or evidence the consummation of the transactions contemplated herein.
10.17 Exclusivity. Seller covenants not to offer, show, option, enter
into contracts to sell, letters of intent, rights of first refusal or offer or
other conveyances of any interest in the Property with any party for so long as
this Agreement remains in full force and effect.
10.18 Tax Free Exchange. Purchaser and Seller agree that, provided
there is no adjournment of the Closing Date, in furtherance of a so-called
like-kind exchange (an "Exchange") under Section 1031 of the Internal Revenue
Code of 1986, as amended, and the regulations relating thereto, Purchaser may
assign (and Seller agrees to sign a notice acknowledging such assignment) this
Agreement to an intermediary or an exchange accommodation titleholder, or an
entity related thereto (a "Purchase Intermediary") to act in place of Purchaser
as the purchaser of the Property or any part thereof. Such an assignment shall
be made in writing by Purchaser. Upon assignment of this Agreement to a Purchase
Intermediary, the Purchase Intermediary shall be substituted for Purchaser as
the purchaser of the Property or part thereof in question. Seller agrees to
convey the applicable portion of the Property to the Purchase Intermediary and
to render its performance of all of its applicable obligations to the Purchase
Intermediary. Seller agrees, at no cost or expense to Seller, to cooperate fully
with Purchaser to accomplish the Exchange.
10.19 No Waiver. No failure or delay of either party in the exercise of
any right or remedy given to such party hereunder or the waiver by any party of
any condition hereunder for its benefit (unless the time specified herein for
exercise of such right or remedy has expired) shall constitute a waiver of any
other or further right or remedy nor shall any single or partial exercise of any
right or remedy preclude other or further exercise thereof or any other right or
34
remedy. No waiver by either party of any breach hereunder or failure or refusal
by the other party to comply with its obligations shall be deemed a waiver of
any other or subsequent breach, failure or refusal to so comply.
10.20 Attorney's Fees. If either party hereto fails to perform any of
its obligations under this Agreement or if a dispute arises between the parties
hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such dispute
shall pay any and all costs and expenses incurred by the other party on account
of such default and/or enforcing or establishing its rights hereunder, including
without limitation court costs and reasonable attorney's fees and disbursements.
Any such attorney's fees and other expenses incurred by either party in
enforcing a judgment in its favor under this Agreement shall be recoverable
separately from and in addition to any other amount included in such judgment.
Such attorney's fee obligation is intended to be severable from the other
provisions of this Agreement and to survive and not be merged into any such
judgment.
10.21 WAIVER OF JURY TRIAL. SELLER AND PURCHASER HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR
CONTRACT) BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS AGREEMENT.
10.22 Post-Closing Cooperation.
(a) Availability of Records. Upon Purchaser's request, for a
period of one (1) year after Closing, Seller shall (i) make Seller's records
available to Purchaser for inspection, copying and audit by Purchaser's
designated accountants; and (ii) cooperate with Purchaser (without any third
party expense to Seller) in obtaining any and all permits, licenses,
authorizations and other governmental approvals necessary for the operation of
the Premises. This obligation shall survive the Closing for a period of one (1)
year and shall not be merged into any instrument of conveyance delivered at
Closing.
(b) 8-K Requirements. Upon Purchaser's request, for a period of
one (1) year after Closing, to the extent not previously delivered to Purchaser
in connection with this Agreement or the Closing, Seller shall provide
Purchaser, without third-party expense to Seller, with copies of, or access to,
such factual information as may be reasonably requested by Purchaser, and in the
possession or control of Seller, to enable Cedar Income Fund, Ltd. to file Form
8-K (as specified on Exhibit "M" attached hereto), if, as and when such filing
may be required by the Securities and Exchange Commission (the "SEC"). Without
limitation of the foregoing, (x) Purchaser or its designated independent or
other accountants may audit the operating statements of Seller for the Property,
and Seller shall supply such documentation in its possession or control as
Purchaser or its accountants may reasonably request in order to complete such
audit and (y) Seller shall furnish Purchaser with such financial and other
information as may be reasonably required by Purchaser or its assigns to make
any required filings with the SEC or other governmental authority. This
obligation shall survive the Closing for a period of one (1) year and shall not
be merged into any instrument of conveyance delivered at Closing.
35
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement on
the dates indicated below. For the purposes hereof, "the date of this Agreement"
or "the date hereof" shall be the date on which the last party to this Agreement
has executed the same.
WITNESS: SELLER:
WASHINGTON CENTRE SHOPS, L.P.,
a Delaware limited partnership
(TAX I.D #▇▇-▇▇▇▇▇▇▇)
By: Washington Centre Land, Inc., its sole
general partner
/s/ (illegible) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- By: ---------------------------------------
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
PORT RICHMOND ASSOCIATES, LLC
a New York limited liability company
(TAX I.D. #▇▇-▇▇▇▇▇▇▇)
By: Port Richmond Land, Inc., its managing
member
/s/ (illegible) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- By: ---------------------------------------
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ACADEMY STORES, L.P.
a Delaware limited partnership
(TAX I.D. #▇▇-▇▇▇▇▇▇▇)
By: Academy Land, Inc., its sole general
partner
/s/ (illegible) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- By: ---------------------------------------
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
GREENTREE ROAD LAND, INC.
a Delaware corporation
(TAX I.D. #▇▇-▇▇▇▇▇▇▇)
/s/ (illegible) /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- By: ---------------------------------------
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Date of execution by Seller: May 11, 2001
[signatures continued on next page]
36
WITNESS: PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delaware limited partnership
(TAX I.D. # ▇▇-▇▇▇▇▇▇▇)
By: Cedar Income Fund, Ltd., its general
partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- By: ---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Date of execution by Purchaser: May 14, 2001
For purposes of agreeing to be bound by the provisions of Section 4.7 and
Article IX of this Agreement.
ESCROW AGENT:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
By: --------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Date of execution by Escrow Agent: May ___, 2001
37