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PURCHASE AND SALE AGREEMENT
---------------------------
DATED as of October 19, 1995
between
▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME PARTNERSHIP II, L.P.,
MIDWAY CROSSING LIMITED PARTNERSHIP,
▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME PARTNERSHIP III, L.P.,
GENESEE CROSSING LIMITED PARTNERSHIP,
FARMINGTON/9 MILE ASSOCIATES,
A MICHIGAN LIMITED PARTNERSHIP,
HAMPTON CROSSING ASSOCIATES,
ROCHESTER HILLS LIMITED PARTNERSHIP,
▇▇▇▇ ▇▇▇▇▇▇ REALTY YIELD PLUS, L.P.
and
NEW PLAN REALTY TRUST
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TABLE OF CONTENTS
1. Sale of Shopping enters.........................................2
1.1. Excluded Property........................................3
1.2. Closing Date.............................................3
2. Purchase Price..................................................3
3. Apportionments...................................................7
3.1. Timing of Apportionments.................................8
3.2. Taxes.....................................................8
3.3. Rents....................................................9
3.3.1. Arrearages....................................9
3.3.2. Additional Rents..............................10
3.3.3. Collection After the Closing..................10
3.3.4. Settlements by Sellers........................11
3.4. Water....................................................11
3.5. Utilities................................................11
3.6. Existing Mortgages.......................................11
3.7. Post-Closing Adjustments.................................12
4. Due Diligence Period............................................12
4.1. Access to the Shopping Centers...........................12
4.2. Purchaser's Termination Notice...........................14
4.3. Estoppel Certificates....................................14
4.4. Termination of Contracts.................................14
5. Title...........................................................15
5.1. Unacceptable Encumbrances................................16
5.2. Removal of Unacceptable Encumbrances.....................16
5.3. Options Upon Failure to Remove Unacceptable
Encumbrances.............................................17
5.4. Use of Purchase Price....................................17
5.5. Franchise Taxes..........................................18
5.6. Transfer Taxes; Title Insurance Premiums.................18
5.6.1. General.......................................18
5.6.2. New York Requirement..........................18
6. Representations and Warranties of the Sellers....................19
6.1. Survival of Representations..............................23
6.2. Waiver of Claims for Untrue Representation...............23
6.3. Limited Nature of Representations........................23
7. Representations and Warranties of the Purchaser.................25
8. Conditions Precedent to Closing.................................26
8.1. Conditions Precedent to Purchaser's Obligations..........26
8.2. Conditions Precedent to Sellers' Obligations.............27
9. Documents to be Delivered by the Sellers at Closing.............28
9.1. Further Assurances.......................................31
10. Documents to be Delivered by the Purchaser at Closing...........31
11. Operation of the Shopping Centers prior to the Closing Date....32
11.1. New Leases..............................................32
11.1.1. New Lease Expenses...........................33
11.1.2. Allocation of New Lease Expenses.............33
11.1.3. Exception to Sharing of New Lease Expenses...34
11.2. Termination of Existing Leases..........................34
11.3. Contracts...............................................35
11.4. Tax Assessments.........................................35
11.5. Copies of Notices.......................................36
/TABLE
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11.6. Existing Mortgages......................................36
11.7. Hampton Village Centre..................................36
12. Broker..........................................................36
12.1. Broker for Sale of Shopping Centers.....................36
12.2. Brokers' Fees for Extensions, Renewals of Leases........37
13. Casualty; Condemnation.........................................37
13.1. Damage or Destruction...................................37
13.2. Condemnation............................................38
13.3. New York Law............................................39
14. Remedies.......................................................39
14.1. Sellers' Inability to Perform...........................39
14.2. Purchaser's Failure to Perform..........................39
14.3. Sellers' Failure to Perform.............................40
14.4. Election to Extend Closing Date.........................40
14.4.1. Automatic Extensions.........................40
14.4.2. Extensions by Sellers........................41
14.4.3. Cure Obligations of Sellers..................41
14.4.4. Extension by Purchaser.......................42
14.5. Termination.............................................42
14.6. Termination with Respect to Multiple Shopping Centers...42
14.7. Purchaser's Cure Rights.................................42
14.8. Media Play..............................................42
15. Indemnities....................................................43
15.1. Purchaser's Indemnities.................................43
15.2. Sellers' Indemnities....................................43
16. Escrow.........................................................44
16.1. Demand for Fund.........................................44
16.2. Status of Fund Upon Termination or Extension............45
16.3. Notice of Objection.....................................45
16.4. Actions after Notice of Objection.......................46
16.5. Investment of Fund......................................46
16.6. Duties of Escrow Agent..................................47
17. Notices........................................................47
18. Property Information and Confidentiality.......................49
18.1. Press Releases..........................................49
18.2. Return of Property Information..........................49
18.3. Property Information Defined............................50
18.4. Remedies................................................50
19. Access to Records..............................................51
20. Assignments....................................................51
21. Entire Agreement, Amendments...................................51
22. Merger.........................................................52
23. Limited Recourse...............................................52
24. Time of the Essence............................................52
25. Waivers........................................................52
26. Miscellaneous..................................................53
27. Limitations on Purchaser Principals' Liability.................54
28. Liability of Yield Plus........................................54
29. Notice to or Knowledge of Sellers..............................54
30. Seller's Representatives.......................................55
/TABLE
LIST OF SCHEDULES
1 Description of the Land
2 Excluded Property
3 Existing Mortgages
4 Permitted Encumbrances
5 Rent Rolls
6 Actions
7 Environmental Disclosure
8 Intangible Property
9 Licenses
10 Certain New Leases
11 Trash Disposal Contracts
12 Title Insurance Endorsements
13 Existing Mortgage Documents
14 REAs
15 Contracts
LIST OF EXHIBITS
A Deeds
B Lease Assignment
C Contract and License Assignment
D Intangible Property Assignment
E ▇▇▇▇ of Sale
F Notice to Tenants
G Tenant Estoppel Certificate
H Landlord Estoppel Certificate
I Sellers' FIRPTA Affidavit
J Bradlee's Note
K Certificate Regarding Representations and Warranties
L Broker Receipt
M Property Manager Release
N Form of Press Release
O Media Play Lease Terms
P REA Estoppel
TABLE OF DEFINED TERMS
The following capitalized terms are defined in the respective Section of the
Agreement identified below:
"A & A Agreements" - as such term is defined in Section 9(d) hereof.
"Additional Rents" - as such term is defined in Section 3.3.2 hereof.
"Adjustment Date" - as such term is defined in Section 3 hereof.
"Agreement" - as such term is defined in the opening paragraph hereof.
"Applicable Environmental Laws" - as such term is defined in Section 6
(f) hereof.
"Approved Institution" - as such term is defined in Section 16.4
hereof.
"Approved Investment" - as such term is defined in Section 16.4 hereof.
"Bankruptcy Code" - as such term is defined in Section 2(d) hereof.
"Bankruptcy Proceeding" - as such term is defined in Section 2(d)
hereof.
"▇▇▇▇ of Sale" - as such term is defined in Section 9(f) hereof.
"Bradlee's" - as such term is defined in Section 2(d)(i) hereof.
"Bradlee's Lease" - as such term is defined in Section 2(d)(i) hereof.
"Bradlee's Note" - as such term is defined in Section 2(d)(i) hereof.
"Broker" - as such term is defined in Section 12.1 hereof.
"Buildings" - as such term is defined in Section 1 hereof.
"Closing" - as such term is defined in Section 1.2 hereof.
"Closing Date" - as such term is defined in Section 1.2 hereof.
"Closing Statement" - as such term is defined in Section 9(r) hereof.
"Contract and License Assignment" - as such term is defined in Section
9(c)
hereof.
"Contracts" - as such term is defined in Section 9(c) hereof.
"Conveyance Documents" - as such term is defined in Section 6.3 hereof.
"Deeds" - as such term is defined in Section 9(a) hereof.
"Downpayment" - as such term is defined in Section 2(a) hereof.
"Due Diligence Period" - as such term is defined in Section 4 hereof.
"Escrow Agent" - as such term is defined in Section 2(a) hereof.
"Estoppel Certificates" - as such term is defined in Section 4.3
hereof.
"Existing Mortgages" - as such term is defined in Section 2(b) hereof.
"Extension Events" - as such term is defined in Section 14.4.1 hereof.
"Farmington Broker" - as such term is defined in Section 12.1 hereof.
"Fund" - as such term is defined in Section 16 hereof.
"Gains Tax Law" - as such term is defined in Section 5.6.2 hereof.
"Hazardous Substances" - as such term is defined in Section 6(f)
hereof.
"Intangible Property Assignment" - as such term is defined in Section
9(d)
hereof.
"Investigations" - as such term is defined in Section 4.1 hereof.
"Land" - as such term is defined in Section 1 hereof.
"Landlord Estoppel Certificates" - as such term is defined in Section
9(h)
hereof.
"Laws" - as such term is defined in Section 6(c) hereof.
"Lease Assignment" - as such term is defined in Section 9(b) hereof.
"Leases" - as such term is defined in Section 6(d) hereof.
"Licenses" - as such term is defined in Section 9(c) hereof.
"Liens" - as such terms is defined in Section 5.2 hereof.
"Media Play" - as such term is defined in Section 3.7 hereof.
"New Lease" - as such term is defined in Section 11.1.1 hereof.
"New Lease Expenses" - as such term is defined in Section 11.1.1
hereof.
"Notice of Objections" - as such term is defined in Section 16.2
hereof.
"Permitted Encumbrances" - as such term is defined in Section 5 hereof.
"Personal Property" - as such term is defined in Section 1 hereof.
"Property Information" - as such term is defined in Section 18.3
hereof.
"Purchase Price" - as such term is defined in Section 2 hereof.
"Purchaser" - as such term is defined in the opening paragraph hereof.
"Purchaser's Documents" - as such term is defined in Section 7(b)
hereof.
"Purchaser's Representatives" - as such term is defined in Section
18.3
hereof.
"Purchaser's Termination Notice" - as such term is defined in Section
4.2 hereof.
"REAs" - as such term is defined in Section 13.1 hereof.
"Rent Commencement Date" - as such term is defined in Section 11.1.2
hereof.
"Representative" - as such term is defined in Section 29 hereof.
"Required Estoppel Certificates" - as such term is defined in Section
4.3
hereof.
"Seller Parties" - as such term is defined in Section 6 hereof.
"Sellers" - as such term is defined in the opening paragraph hereof.
"Sellers' Affiliates" - as such term is defined in Section 23 hereof.
"Sellers' Documents" - as such term is defined in Section 6(b) hereof.
"Shopping Centers" - as such term is defined in Section 1 hereof.
"Survey" - as such term is defined in Section 5 hereof.
"Surviving Obligations" - as such term is defined in Section 14.5
hereof.
"Title Commitment" - as such term is defined in Section 5 hereof.
"Title Company" - as such term is defined in Section 5 hereof.
"Transfer Tax Payments" - as such term is defined in Section 5.6.1
hereof.
"Transfer Tax Return" - as such term is defined in Section 5.6.1
hereof.
"Trash Disposal Contracts" - as such term is defined in Section 4.4
hereof.
"Unacceptable Encumbrances" - as such term is defined in Section 5.1
hereof.
"Yield Plus" - as such term is defined in the opening paragraph hereof.
"Yield Plus Sellers" - as such term is defined in Section 6.1 hereof.
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PURCHASE AND SALE AGREEMENT
___________________________
PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of the 19th
day of October, 1995, by and between ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Partnership II, L.P., a Delaware limited partnership, Midway Crossing
Limited Partnership, a Michigan limited partnership, ▇▇▇▇ ▇▇▇▇▇▇ Realty
Income Partnership III, L.P., a Delaware limited partnership, Genesee
Crossing Limited Partnership, a Michigan limited partnership,
Farmington/9 Mile Associates, a Michigan Limited Partnership, a
Michigan limited partnership, Hampton Crossing Associates, a Michigan
general partnership and Rochester Hills Limited Partnership, a Delaware
limited partnership, each having offices c/o ▇▇▇▇ ▇▇▇▇▇▇ Realty Inc.,
Two World Trade Center, 64th Floor, New York, New York 10048
(collectively, the "Sellers" and, individually, a "Seller"), New Plan
Realty Trust, a Massachusetts business trust, having an office at 1120
Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Purchaser"), and ▇▇▇▇ ▇▇▇▇▇▇ Realty Yield Plus, L.P., a Delaware
limited partnership ("Yield Plus").
W I T N E S S E T H
WHEREAS, the Sellers are the owners of the following shopping centers:
LOCATION OWNER
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Realty Income Partnership
II, L.P.
Midway Crossing, Elyria, Ohio Midway Crossing Limited Partnership
Delta Center, Delta Township, Michigan ▇▇▇▇ ▇▇▇▇▇▇ Realty Income Partnership
III, L.P.
Fashion Corners, Saginaw Township, Michigan ▇▇▇▇ ▇▇▇▇▇▇ Realty Income Partnership
III, L.P.
Genesee Crossing, Flint Township, Michigan Genesee Crossing Limited Partnership
Westland Crossing, Westland, Michigan ▇▇▇▇ ▇▇▇▇▇▇ Realty Income Partnership
III, L.P.
Farmington Crossroads, Farmington, Michigan Farmington/9 Mile Associates, a Michigan Limited
Partnership
Hall Road Crossing, Shelby Township, ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Michigan Partnership III, L.P.
/TABLE
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Hampton Village Centre, (other than Hampton Crossing Associates
condominium units 10, 11 and 12) Rochester
Hills, Michigan
Hampton Village Centre Rochester Hills Limited Partnersip
condominium units 10, 11
and 12, Rochester Hills, Michigan
WHEREAS, the Sellers and the Purchaser desire to enter into an
agreement whereby, subject to the terms and conditions contained
herein, the Sellers shall sell the Shopping Centers to the Purchaser
and the Purchaser shall purchase the Shopping Centers from the Sellers.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and intending to be legally bound hereby, the
parties hereby agree as follows:
1. Sale of Shopping Centers.
Each Seller agrees to sell and convey to the Purchaser, and the
Purchaser agrees to purchase from each Seller, at the price and upon
the terms and conditions set forth in this Agreement, all those certain
plots, pieces and parcels of land described in Schedule 1 hereto (the
"Land") listed thereon as owned by such Seller, together with (i) all
buildings, structures and other improvements situated on the Land
(collectively, the "Buildings"), (ii) all easements, rights of way,
reservations, privileges, appurtenances, mineral, oil and gas rights,
development, air and water rights, and other estates and rights of such
Seller pertaining to the Land and the Buildings, (iii) all right, title
and interest of such Seller in and to all signs, fixtures, machinery,
equipment, supplies and other articles of personal property attached or
appurtenant to the Land or the Buildings, or used in connection
therewith (collectively, the "Personal Property"), (iv) all right,
title and interest of such Seller, if any, in and to the trade names of
the Land and/or the Buildings, (v) all right, title and interest of
such Seller, if any, in and to all strips and gores, all alleys
adjoining the Land, and the land lying in the bed of any street, road
or avenue, opened or proposed, in front of or adjoining the Land to the
center line thereof, and all right, title and interest of such Seller,
if any, in and to any award made or to be made in lieu thereof and in
and to any unpaid award for any taking by condemnation or any damages
to the Land or the Buildings (the Land, together with all of the
foregoing items listed in clauses (i)-(v) above being hereinafter
sometimes referred to as to each separate location listed on Schedule 1
as a "Shopping Center" and, collectively, as the "Shopping Centers"),
(vi) all Leases, Licenses, Contracts and any warranties or guaranties
relating thereto, and relating to the Shopping Centers, and (vii) any
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plans and specifications, books, records and files of such Seller,
whether maintained by the Sellers or by any agent of the Sellers,
relating to any of the foregoing.
1.1 Excluded Property.
Specifically excluded from the Shopping Centers and this sale are all
items of personal property not described in Section 1 and the items
described in Schedule 2 annexed hereto and made a part hereof.
1.2 Closing Date.
The delivery of the Deeds and the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the
offices of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, at 10:00 A.M. on December 11, 1995 or such earlier date
as the Sellers and the Purchaser may agree to in writing (as the same
may be extended with respect to one or more Shopping Centers pursuant
to Section 14.4 and Section 14.8 hereof, the "Closing Date"). Time is
of the essence with respect to the occurrence of the Closing (subject
to Section 14.4 and Section 14.8 hereof).
2. Purchase Price.
The purchase price to be paid by the Purchaser to the Sellers for the
Shopping Centers (the "Purchase Price") is One Hundred Twenty-Six
Million Dollars ($126,000,000) payable as follows:
(a) One Million ($1,000,000.00) Dollars (the "Downpayment"), shall be
payable simultaneously with the execution and delivery of this
Agreement, by delivery to Lawyers Title Insurance Corporation (the
"Escrow Agent") by a bank wire transfer of immediately available funds
to an account designated in writing by the Escrow Agent.
The Downpayment shall be held and disbursed by the Escrow Agent in
accordance with the terms of Section 16. If the Closing shall occur
with respect to the last Shopping Center remaining to be disposed of
under this Agreement, the Sellers shall be entitled to receive the
Downpayment and all interest accrued thereon, if any, and such interest
shall be credited, in Purchaser's favor, against the portion of the
Purchase Price payable pursuant to Section 2(c) solely to the extent
that such interest accrues up to and including the Adjustment Date.
(b) Thirty Seven Million Five Hundred Ninety Thousand ($37,590,000)
Dollars shall be paid at the Closing by the Purchaser accepting title
to the Shopping Centers subject to the existing mortgages described on
Schedule 3 hereto (the "Existing Mortgages") the principal balance of
which is $37,590,000 on the date of this Agreement. It shall be a
condition to Purchaser's obligation to purchase the Shopping Centers
that (i) the Sellers shall not have modified any provisions of the
Existing Mortgages subsequent to the date hereof without the
Purchaser's prior written consent, which consent shall not be
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unreasonably withheld or delayed with respect to any modification
required to consummate the transaction described herein, and (ii) the
Sellers shall have paid any amounts due and payable with respect to the
Existing Mortgages as of the Closing Date. To the extent any payment
by the Sellers reduces the aggregate unpaid principal balance of the
Existing Mortgages below $37,590,000, the moneys payable at the Closing
by the Purchaser pursuant to Section 2(c) shall be increased by a like
amount. To the extent that the unpaid principal balance of the
Existing Mortgages exceeds $37,590,000 on the Closing Date, the moneys
payable at the Closing by the Purchaser pursuant to Section 2(c) shall
be decreased by a like amount.
(c) Subject to the terms of paragraph (d) of this Section 2 and
apportionments as described in Section 3, Eighty Seven Million Four
Hundred Ten Thousand ($87,410,000) Dollars shall be payable at the
Closing by bank wire transfer of immediately available funds to the
Sellers' account or to the account or accounts of such other party or
parties as may be designated by the Sellers in writing on or before the
Closing Date.
(d) (i) In the event that on the Closing Date for the Wallkill Plaza
Shopping Center the Lease to Bradlee's Department Store ("Bradlee's")
of space in such Shopping Center (the "Bradlee's Lease") has been
rejected or deemed rejected pursuant to 365 of the United States
Bankruptcy Code (the "Bankruptcy Code") in Case Nos. 95 B42777 through
95 B42784 (BRL) in the United States Bankruptcy Court for the Southern
District of New York (the "Bankruptcy Proceeding"), the Purchase Price
and the portion of the Purchase Price allocated to the Wallkill Plaza
Shopping Center pursuant to paragraph (e) of this Section 2 shall be
reduced by an amount equal to One Million Two Hundred Thousand
($1,200,000) Dollars. In the event that on the Closing Date for the
Wallkill Plaza Shopping Center the Bradlee's Lease has not been
assumed, rejected or deemed rejected pursuant to 365 of the Bankruptcy
Code, the Purchase Price and a portion of the Purchase Price allocated
to the Wallkill Plaza Shopping Center pursuant to paragraph (e) of this
Section 2 equal to $1,200,000 shall become a contingent obligation as
set forth below in this clause (d) and shall be paid by the execution
and delivery to the Seller of the Wallkill Plaza Shopping Center of a
promissory note in an amount equal to One Million Two Hundred Thousand
($1,200,000) Dollars, in the form annexed hereto as Exhibit J and made
a part hereof (the "Bradlee's Note"). At such time after the Closing
Date for the Wallkill Plaza Shopping Center as the Bradlee's Lease is
assumed or rejected or deemed rejected pursuant to 365 of the
Bankruptcy Code in the Bankruptcy Proceeding, (A) the Purchaser shall
pay to the Seller of the Wallkill Plaza Shopping Center the full amount
of the Bradlee's Note, together with interest thereon if the Bradlee's
Lease is assumed (subject to cancellation and return of the Bradlee's
Note and adjustment as set forth in Paragraph (d)(ii) below); or (B)
the entire amount of the Bradlee's Note shall be forgiven if the
Bradlee's Lease is rejected or deemed to be rejected pursuant to 365
of the Bankruptcy Code and the $1,200,000 conditional portion of the
Purchase Price shall not be payable. If the Bradlee's Lease has been
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neither assumed nor rejected nor deemed rejected pursuant to sec. 365 of
the Bankruptcy Code as of the fifth anniversary of the Closing Date for
the Wallkill Plaza Shopping Center, the Purchaser shall pay to the
Seller of the Wallkill Plaza Shopping Center an amount equal to
one-half of the face amount of the Bradlee's Note, together with
interest on such one-half, and the remaining amount of the Bradlee's
Note shall be forgiven and the Bradlee's Note shall be cancelled and
returned to the Purchaser. Each reference in this clause (d) to the
Bradlee's Lease being assumed shall be construed to mean the entry of
an order in the Bankruptcy Proceeding regarding such assumption without
modification of the Bradlee's Lease in any material respect other than
as to basic rent (as set forth in clause (d)(ii) below) or as to other
modifications to which the Purchaser consents.
(ii) Notwithstanding the assignment of the Bradlee's Lease to the
Purchaser pursuant to the terms hereof, the Purchaser hereby agrees
that the Seller of the Wallkill Plaza Shopping Center shall have
primary responsibility for negotiating the terms of the assumption of
the Bradlee's Lease by Bradlee's. No extension, renewal or
modification of the Bradlee's Lease, other than with respect to basic
rent during the initial term of the Bradlee's Lease, shall be agreed
upon without the prior written consent of the Purchaser, which consent
may, in the Purchaser's sole discretion, be withheld as to any
extension, renewal or modification of the Bradlee's Lease except for
amendments to non-material provisions of the Bradlee's Lease, in which
event such consent shall not be unreasonably withheld or delayed. The
Seller of the Wallkill Plaza Shopping Center may negotiate
modifications to basic rent during the initial term of the Bradlee's
Lease without the consent of the Purchaser, provided, that the amount
of the Bradlee's Note to be paid to the Seller of the Wallkill Plaza
Shopping Center upon the assumption of the Bradlee's Lease shall be
reduced by the net present value of any basic rent concessions in favor
of Bradlee's, calculated using a discount rate of nine percent (9%) per
annum. The Seller of the Wallkill Plaza Shopping Center shall not
negotiate an adjustment to the basic rent under the Bradlee's Lease
that would have an adverse impact on the present value of such basic
rent greater than $1,200,000.
(iii) In the event that Bradlee's or a trustee of Bradlee's
bankruptcy estate seeks to assign the Bradlee's Lease to a third party
in connection with an assumption of the Bradlee's Lease in the
Bankruptcy Proceeding, the Purchaser shall have the right to file an
objection to and contest such assignment solely on the basis of the
failure to comply with the provisions of sec. 365 of the Bankruptcy Code.
Prior to filing any such objection, the Purchaser shall provide the
Seller of the Wallkill Plaza Shopping Center with a reasonable
opportunity to review such objection to confirm that such objection is
limited to the matters set forth in this paragraph. Such Seller shall
give the Purchaser timely notice of any pleading received by such
Seller proposing such an assignment.
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(iv) With respect to the Bradlee's Lease, the Seller of the Wallkill
Plaza Shopping Center shall (x) reasonably cooperate (at no cost to
such Seller) with the Purchaser in making filings in the Bradlee's
Bankruptcy following the occurrence of the Closing, to make clear the
Purchaser's status as landlord under the Bradlee's Lease, and (y)
provide status reports to the Purchaser from time to time regarding the
negotiations for the assumption of the Bradlee's Lease.
(e) The Purchase Price for each individual Shopping Center is as
follows:
Shopping Center Purchase Price
1. Wallkill Plaza $12,200,000
2. Midway Crossing 9,700,000
3. Delta Center 12,000,000
4. Fashion Corners 11,200,000
5. Genesee Crossing 8,700,000
6. Westland Crossing 10,700,000
7. Farmington Crossroads 5,450,000
▇. ▇▇▇▇ ▇▇▇▇ Crossing 12,950,000
9. Hampton Village Centre 43,100,000
(f) If the Closing occurs with respect to any of the Shopping Centers
on different dates, then (i) the Downpayment shall not be applied to the
Purchase Price of such Shopping Center unless no further Closings remain
to occur with respect to any Shopping Center, (ii) that portion of the
Purchase Price to be paid by the assumption of the Existing Mortgages or
purchase of the Shopping Centers subject to the Existing Mortgages, as the
case may be, pursuant to Section 2(b) shall apply to the Closing with
respect to the Shopping Centers encumbered by the Existing Mortgages,
(iii) the balance of the Purchase Price to be paid at each such Closing
shall be calculated by reference to the Purchase Prices for each of the
Shopping Centers set forth in Section 2(e), as reduced by assumption of
the Existing Mortgages or purchase of the Shopping Centers subject to the
Existing Mortgages, as the case may be, as set forth in clause (ii) above,
and (iv) the apportionments to be performed pursuant to Section 3 shall
be calculated only with respect to those Shopping Centers that are to be
transferred at each such Closing.
(g) The Purchaser covenants and agrees that if the holder of the
Existing Mortgage encumbering the Hampton Village Centre Shopping Center
requires that (i) the lien of such Existing Mortgage is spread to cover
all of the Hampton Village Centre Shopping Center, or (ii) from and after
the Closing Date, condominium units 10, 11 and 12 of such Shopping Center
be held by an entity other than the holder of legal title to the remainder
of such Shopping Center, the Purchaser shall comply with such requirement,
and such requirement shall not constitute an inability, failure or refusal
of the Sellers to satisfy conditions to Closing or any other obligations
hereunder.
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(h) If, on the Closing Date for the Fashion Corners Shopping Center, the
Seller of the Fashion Corners Shopping Center has not entered into a lease
for the space in such Shopping Center occupied by T.J. Maxx with either
(i) Staples, or (ii) Office Max, or (iii) Best Products, for a monthly
rent not less than the rent currently paid by T.J. Maxx for such space,
and otherwise upon such terms and conditions as are reasonably acceptable
to the Purchaser, the Purchase Price and the portion of the Purchase Price
allocated to the Fashion Corners Shopping Center shall be reduced by an
amount equal to One Hundred Eighty Thousand Dollars ($180,000).
(i) If, on the Closing Date for the Westland Crossing Shopping Center,
the Seller of the Westland Crossing Shopping Center has not entered into
a lease with Linens 'n More for the space that is currently occupied by
Linens 'n More in such Shopping Center plus an additional 4,400 square
feet of space, the Purchaser shall receive from the Sellers a rental
income replacement credit of $250,000; provided, that this clause (i)
shall be of no force and effect if the Purchaser elects not to purchase
the Westland Crossing Shopping Center for any reason permitted under this
Agreement including, without limitation, Section 14.8.
3. Apportionments
The following shall be apportioned between the Sellers and the Purchaser
for all Closings as of 11:59 P.M. on (i) December 10, 1995 (which date
shall remain applicable even if the Closing Date is extended pursuant to
Section 14.4.1, Section 14.4.2 or Section 14.8), or (ii) the date
preceding the Closing Date if the Closing occurs prior to December 11,
1995, or (iii) December 12, 1995, in the event that the Purchaser elects
to extend the Closing Date pursuant to Section 14.4.4 (the "Adjustment
Date"), in the manner set forth in Section 3.1:
(a) prepaid rents, rents for the month in which the Closing occurs and
Additional Rents and other amounts payable by tenants, if, as and when
received, subject to Section 3.3, together with a reduction to the
Purchase Price equal to the net present value of any free occupancy
period, free tenant improvements, or other similar concessions to any
tenant under any Lease in effect as of the date hereof which, by the terms
of such Lease, are to occur on or after the Adjustment Date;
(b) interest on the Existing Mortgages;
(c) real estate taxes, special assessments (but only any installment
relating to the period in which the Adjustment Date occurs), water
charges, sewer rents and vault charges, if any, on the basis of the fiscal
years (or applicable billing period if other than a fiscal year),
respectively, for which same have been assessed, subject to Section 3.2;
(d) value of prepaid fuel belonging to Seller stored on the Shopping
Centers, at the Sellers' cost, including any taxes, on the basis of a
statement from the Sellers' suppliers;
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(e) charges and payments under Contracts that are being assigned to the
Purchaser pursuant to the terms of this Agreement or permitted renewals
or replacements thereof;
(f) any prepaid items, including, without limitation, fees for licenses
which are transferred to the Purchaser at the Closing and annual permit
and inspection fees;
(g) utilities, including, without limitation, telephone, steam,
electricity and gas, on the basis of the most recently issued bills
therefor, subject to adjustment after the Closing when the next bills are
available, or if current meter readings are available, on the basis of
such readings (provided, that the foregoing shall specifically exclude any
deposits of the Sellers with respect to such utilities);
(h) personal property taxes payable by the owner of a Shopping Center
regardless of identity, if any, on the basis of the fiscal year for which
assessed;
(i) all other expenses and revenues from the operation of the Shopping
Centers other than rents and Additional Rents (including, without
limitation, parking charges, and telephone booth and vending machine
revenues);
(j) New Lease Expenses as provided in Section 11.1.2; and
(k) such other items as are customarily apportioned between sellers and
purchasers of real properties of a type similar to the respective Shopping
Centers and located in the County in which the respective Shopping Centers
are located.
3.1. Timing of Apportionments.
At the Closing, the Sellers and the Purchaser shall adjust the Purchase
Price only for (i) rents payable for the month in which the Closing
occurs, regardless of whether such rents have been paid (and the Sellers
shall be responsible for the collection of such rents), and (ii) the
matters described in Section 3(b) and Section 3(c) (other than water
charges, sewer rents and vault charges). On the last day of the first
full calendar month following the month in which the closing occurs, the
remainder of the apportionments described in Section 3 shall be completed,
calculated as of the Adjustment Date. On such date, the Sellers or the
Purchaser, as appropriate, shall pay, in cash the amount of the remaining
net apportionments under Section 3
3.2. Taxes.
If the amount of water charges, sewer rents, personal property taxes or
real estate taxes for any Shopping Center for the fiscal year during which
the Closing occurs is not finally determined at the Adjustment Date, such
taxes and other charges shall be apportioned on the basis of the full
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amount of the assessment for such period (or the assessment for the prior
tax or other period if the assessment for the current tax period or other
period is not then known) and the rate for the immediately prior tax year,
notwithstanding any provisions of law which permit reduced payment pending
final determination, and shall be reapportioned as soon as the new tax
rate and/or rate for other charges and valuation, if any, has been finally
determined and the tax ▇▇▇▇ or other ▇▇▇▇ has been received. If any taxes
which have been apportioned shall subsequently be reduced by abatement,
the amount of such abatement, less the cost of obtaining the same and
after deduction of sums payable to tenants under Leases or expired or
terminated Leases, shall be equitably apportioned between the parties
hereto.
3.3 Rents.
3.3.1 Arrearages.
If on the Closing Date any tenant is in arrears in the payment of rent or
has not paid the rent payable by it for the month in which the Closing
occurs (whether or not it is in arrears for such month on the Closing
Date), any rents received by the Purchaser from such tenant after the
Closing shall be applied to amounts due and payable by such tenant during
the following periods (if any) in the following order of priority:
(i) first, to the month(s) following the month in which the Closing
occurred, (ii) second, to the month in which the Closing occurred, and
(iii) third, to the month(s) preceding the month in which the Closing
occurred. Notwithstanding the foregoing allocation, any rents paid by any
tenant that is not more than fifty-nine days in arrears in its rent
payments, made during the period commencing on the Closing Date and
terminating thirty (30) days thereafter, shall be applied either to rents
that are due and not yet paid for the rental period immediately preceding
the rental period in which the Closing occurred, or, if no such rents are
due, to any rents that are due and not yet paid for the rental period in
which the Closing occurred, and the remainder shall be applied in
accordance with the immediately preceding sentence. The Purchaser shall
have no obligation to collect past due rentals and other amounts from
tenants under the Leases after the Adjustment Date. If rents or any
portion thereof received by the Sellers or the Purchaser after the Closing
are due and payable to the other party by reason of this allocation or the
allocation set forth in Section 3.3.2 below, subject to the Sellers'
rights under Section 3.3.3, the appropriate sum, less, in the case of
rents received by the Purchaser, a proportionate share of any reasonable
attorneys' fees and costs and expenses expended by the Purchaser in
connection with the collection thereof, shall be promptly paid to the
other party. Subject to the Sellers' rights pursuant to Section 3.3.3,
the Sellers shall deliver to the Purchaser any rents (including Additional
Rents) received from any Tenant subsequent to the Closing Date for
application in accordance with this Section 3.3.1 or Section 3.3.2, as the
case may be. The obligations of this Section 3.3.1 shall survive the
Closing.
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3.3.2 Additional Rents.
If any tenants are required to pay percentage rent, escalation charges for
real estate taxes, parking charges, operating expenses and maintenance
escalation rents or charges, cost-of-living increases or other charges of
a similar nature ("Additional Rents") and any Additional Rents are
received from a tenant after the Closing Date, then the Purchaser shall
apply such Additional Rents (i) first, to the applicable rental period(s)
following the period in which the Closing occurred, to the extent of any
Additional Rents due and owing for such period, (ii) second, to the
applicable rental period in which the Closing occurred, to the extent of
any Additional Rents due and owing for such period, and (iii) third, to
the applicable rental period(s) preceding the period in which the Closing
occurred, to the extent of any Additional Rents due and owing for such
period, less, in the case of rents received by the Purchaser, a
proportionate share of any reasonable attorneys' fees and costs and
expenses expended by the Purchaser in connection with collection thereof.
Notwithstanding the foregoing allocation, if and to the extent that any
remittance of Additional Rents is accompanied by express directions from
a tenant that such Additional Rents are allocable to a specific rental
period, such Additional Rents shall be applied first to the rental period
so specified, and the remainder shall be applied in accordance with the
immediately preceding sentence. To the extent that such Additional Rents
consist of percentage rents, such Additional Rents shall be allocated
under this Section 3.3.2 based on the assumption that such Additional
Rents are earned at a constant rate during the course of the period for
which such Additional Rents are paid. The obligations of this Section
3.3.2 shall survive the Closing. In the event that the provisions of any
Lease regarding calculation of Additional Rents call for a partial
refunding or credit of such Additional Rents for any period paid in
advance by such tenant, the Sellers shall pay a portion of such refund or
credit, net of offsets, ratably attributable to the portion of such
Additional Rents received by the Sellers for such period.
3.3.3 Collection After the Closing.
After the Closing, each Seller shall continue to have the right, in its
own name, to demand payment of and to collect rent and Additional Rent
arrearages owed to such Seller by any tenant, which right shall include,
without limitation, the right to continue (subject to the next sentence
following) or commence legal actions or proceedings against any tenant,
and delivery of the Lease Assignment shall not constitute a waiver by the
Sellers of such right. The Sellers shall not disturb or otherwise
interfere with any tenant in its occupancy and use of its leased portion
of the Shopping Centers in the exercise of its rights under this Section
3.3.3. Subject to the preceding sentence, the Purchaser agrees to
cooperate with the Sellers in connection with all reasonable efforts by
the Sellers to collect such rents and Additional Rents and to take all
reasonable steps as may be necessary to carry out the intention of the
foregoing without out-of-pocket third party costs to the Purchaser.
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3.3.4 Settlements by Sellers.
In the case of amounts payable by tenants to any Seller for periods of
time ending before the Adjustment Date but to become payable thereafter
when bills are rendered (such as annual computations of Additional Rents)
the Sellers shall after settlement prepare and promptly deliver to the
Purchaser the information necessary to prepare the bills to the tenants.
Each Seller warrants and represents that such information will be true,
complete and correct. All such charges shall be paid to the Purchaser and
adjusted and applied as provided herein.
3.4. Water.
If there is a water meter on the Shopping Centers, the Sellers shall
furnish a reading to a date not more than thirty (30) days prior to the
Closing Date, and the unfixed water charges and sewer rent, if any, based
thereon for the intervening time shall be apportioned on the basis of such
last reading. In addition, if there are any such charges submetered to
tenants and payable by them directly to the Sellers, Sellers shall use
reasonable efforts to obtain readings thereof as of the Adjustment Date
on or before the date specified in Section 3.1, and such items shall be
prorated, and adjusted and applied in mode and manner as with respect to
Additional Rents.
3.5. Utilities.
The Sellers will obtain final cut-off readings of fuel, telephone,
electricity, and gas as of the Adjustment Date on or before the date
specified in Section 3.1. The Sellers shall pay the bills based on such
readings promptly after the same are rendered. If arrangements cannot be
made for any such cut-off reading, the parties shall apportion the charges
for such services on the basis of the ▇▇▇▇ therefor for the most recent
billing period prior to the Adjustment Date, and the Sellers and Purchaser
shall promptly readjust the apportionments in accordance with the actual
bills upon their receipt by the Purchaser or the Sellers. In addition,
if there are any such charges submetered to tenants and payable by them
directly to the Sellers, Sellers shall use reasonable efforts to obtain
readings thereof at the Adjustment Date, and such items shall be prorated,
and adjusted and applied in mode and manner as with respect to Additional
Rents. The Sellers shall retain all of their deposits with the providers
of utility services, and the Purchaser shall have no rights to such
deposits.
3.6. Existing Mortgages.
The amount of any reserves, escrows or accruals held by the holders of the
Existing Mortgages for real estate taxes, insurance premiums and other
amounts, if any, shall be paid to the Sellers by the Purchaser at the
Closing and the Sellers shall assign to the Purchaser all of the Sellers'
right, title and interest thereto.
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3.7. Post-Closing Adjustments.
If any of the items subject to apportionment under the foregoing
provisions of this Section 3 cannot be apportioned on the date specified
in Section 3.1 because of the unavailability of the information necessary
to compute such apportionment, or if any errors or omissions in computing
apportionments 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, in the case of errors or omissions,
for a period of one hundred eighty (180) days after the Closing Date.
Notwithstanding any of the foregoing provisions of this Section 3.7 to the
contrary, the Purchaser and the Sellers agree that the one hundred eighty
(180) day limitation set forth in this Section 3.7 shall not apply to an
inability to calculate apportionments as a result of the unavailability
of information necessary to compute such apportionment, and that the
obligation to reapportion in such circumstance shall survive the Closing
forever.
4. Due Diligence Period.
Notwithstanding anything to the contrary contained herein, the Purchaser
shall have until November 30, 1995 or such shorter period as the Purchaser
may elect (the "Due Diligence Period") to examine title to the Shopping
Centers, to inspect the physical and financial condition of the Shopping
Centers and to review the Property Information.
4.1. Access to the Shopping Centers.
During the Due Diligence Period, and subsequent to the end of such period
until the termination of this Agreement or the Closing, the Purchaser and
the Purchaser's Representatives shall have the right to enter upon the
Shopping Centers and their books, records and files for the sole purpose
of inspecting the Shopping Centers (including, without limitation,
interviewing tenants, and speaking to one individual at each Shopping
Center location designated by the Sellers as representing the on-site
property manager, such person to have knowledge of the management and
operations of such Shopping Centers) and making surveys, soil borings,
engineering tests and other investigations, inspections and tests
(collectively, "Investigations"), provided (i) as to each Shopping Center,
the Purchaser shall give the Sellers not less than one (1) business day's
prior notice (which notice may be telephonic) before each entry, and (ii)
neither the Purchaser nor the Purchaser's Representatives shall permit any
borings, drillings or samplings (other than asbestos samplings) to be done
on the Shopping Centers without the Sellers' prior consent, which consent
shall not be unreasonably withheld or delayed. Any entry upon the
Shopping Centers and all Investigations shall be conducted during the
Sellers' normal business hours and at the sole risk and expense of the
Purchaser and the Purchaser's Representatives, and shall not unreasonably
interfere with the activities on or about the Shopping Centers of the
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Sellers, its tenants and their employees and invitees. The Purchaser
shall:
(a) if the Closing does not occur on the Closing Date (as the same
may be postponed pursuant to Section 14.4 or Section 14.8), promptly
repair any damage to the Shopping Centers resulting from any such
Investigations and replace, refill and regrade any holes made in, or
excavations of, any portion of the Shopping Centers used for such
Investigations so that the Shopping Centers shall be in substantially the
same condition that they existed in prior to such Investigations,
provided, that until the Purchaser either repairs such damage or closes
on the acquisition of the Shopping Centers, it shall take all steps
necessary to ensure that such unrepaired conditions shall not further
deteriorate or cause any harm to persons or property;
(b) fully comply with all Laws applicable to the Investigations;
(c) permit the Sellers to have a representative present during all
Investigations at any Shopping Center undertaken hereunder;
(d) furnish to the Sellers, at the Sellers' election and at no
cost or expense to the Sellers other than reimbursement for the actual
out-of-pocket expenses of the Purchaser evidenced by copies of third party
invoices, copies of all surveys, soil test results, engineering, asbestos,
environmental and other studies and reports relating to the Investigations
prepared by third parties (other than work product of counsel) which the
Purchaser shall obtain with respect to the Shopping Centers promptly after
the Purchaser's receipt of same;
(e) not allow the Investigations to result in any liens, judgments
or other encumbrances being filed or recorded against the Shopping
Centers, and the Purchaser shall, at its sole cost and expense, promptly
discharge of record, by bond or otherwise, any such liens or encumbrances
that are so filed or recorded (including, without limitation, liens for
services, labor or materials furnished); and
(f) indemnify the Sellers and the Sellers' Affiliates and hold the
Sellers and the Sellers' Affiliates harmless from and against any and all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, attorneys' fees and
disbursements), suffered or incurred by the Sellers or any of the Sellers'
Affiliates and arising out of or in connection with (i) the Purchaser's
and/or the Purchaser's Representatives' entry upon the Shopping Centers,
(ii) any Investigations, and/or (iii) any liens or encumbrances filed or
recorded against the Shopping Centers as a consequence of the
Investigations. The foregoing indemnity shall not be deemed to apply to
claims, demands, causes of action, losses, damages, liabilities, costs or
expenses arising solely out of the Purchaser and the Purchaser's
Representatives discovering and/or reporting a pre-existing environmental
contamination or violation of Applicable Environmental Laws, even if the
act of such discovery and/or reporting imposes upon the Sellers or the
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Sellers' Affiliates or increases the amount of the Sellers' or the
Sellers' Affiliates' liability, provided, that the Purchaser and the
Purchaser's Representatives have conducted the Investigations in a
commercially reasonable manner. So long as the Purchaser and the
Purchaser's Representatives have conducted the Investigations in a
commercially reasonable manner, the foregoing indemnification of this
clause (f) shall be limited to claims, demands, causes of action, losses,
damages, liabilities, costs and expenses directly caused by the Purchaser
and/or the Purchaser's Representatives (and specifically excluding
consequential damages).
The provisions of this Section 4.1 shall survive the termination of this
Agreement and the Closing.
4.2. Purchaser's Termination Notice.
The Purchaser shall have the right in its sole and absolute discretion to
elect to terminate this Agreement by giving written notice (the
"Purchaser's Termination Notice") of such election to the Sellers at any
time prior to 5:00 P.M. New York time on the last day of the Due Diligence
Period. If for any reason whatsoever the Sellers shall not have actually
received the Purchaser's Termination Notice prior to the expiration of the
Due Diligence Period, the Purchaser shall be deemed to have irrevocably
waived its right of termination under this Section 4.2, and such right of
termination shall be of no further force or effect.
4.3. Estoppel Certificates.
Promptly after execution and delivery of this Agreement, the Sellers agree
to request an estoppel certificate (collectively, the "Estoppel
Certificates") from each tenant under a Lease. The Sellers shall deliver
to the Purchaser, on or before the Closing Date, Estoppel Certificates for
each tenant under a lease for more than 5,000 square feet of rentable
space in any Shopping Center, and for not less than seventy-five percent
(75%) of the other tenants on an individual Shopping Center basis
(collectively, the "Required Estoppel Certificates"). The Estoppel
Certificates shall be in the form annexed hereto as Exhibit G and made a
part hereof and when returned by tenant, shall not contain any
discrepancy, adverse claim or exception; provided, however, if any tenant
is required or permitted under its Lease to deliver an Estoppel
Certificate different from Exhibit G, Purchaser shall accept from the
tenant the form so required or permitted under the Lease, if any such
Estoppel Certificate is obtained, provided, that such Estoppel
Certificates shall be delivered without adverse claim or exception. The
Sellers will deliver each Estoppel Certificate received by the Sellers to
the Purchaser promptly following the Sellers' receipt thereof.
4.4. Termination of Contracts.
Attached hereto as Schedule 11 and incorporated herein by reference is a
list of certain Contracts for the disposal of trash at certain of the
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Shopping Centers (the "Trash Disposal Contracts"). If, within thirty (30)
days following the Closing Date, the Purchaser elects to terminate any of
the Trash Disposal Contracts, the Seller owning the Shopping Center
subject to such Trash Disposal Contract shall pay all amounts payable to
the service provider under such Trash Disposal Contract as a result of
such termination, provided, that such Seller shall not be required to pay
such amounts if the cost of terminating such Trash Disposal Agreement and
obtaining comparable services for the remaining term of such Trash
Disposal Agreement exceeds the cost of retaining the Trash Disposal
Contract.
In addition to the foregoing, on or before the Closing Date, the Sellers
will terminate each property management agreement or leasing agreement to
which such Seller is a party with respect to any Shopping Center. The
provisions of this Section 4.4 shall survive the Closing.
5. Title
Subject to the provisions of this Section 5, the Sellers shall convey and
the Purchaser shall accept title to the Shopping Centers subject to those
matters set forth on Schedule 4 hereto (collectively the "Permitted
Encumbrances"). The Sellers shall deliver to the Purchaser, at the
Sellers' expense, (i) within twenty (20) days after the execution of this
Agreement, commitments for owner's fee title insurance policies dated
after the date hereof with respect to the Shopping Centers from Lawyers
Title Insurance Corporation (the "Title Company"), together with true and
complete copies of all instruments giving rise to any defects or
exceptions to title to the Shopping Centers and the pro forma endorsements
for each of Michigan, New York and Ohio set forth in Schedule 12 hereto
(the "Title Commitment"), (ii) within twenty (20) days after the execution
of this Agreement, (A) UCC lien searches for each Seller and each Shopping
Center for each state and local filing office where filings must be made
to obtain perfected security interests in the personal property located
at the Shopping Center, and (B) judgment searches, bankruptcy court
searches and federal tax lien searches for each Seller for each state in
which such Seller owns a Shopping Center (collectively, the "Lien
Searches"), and (iii) on or before November 15, 1995, a current as-built
survey ("Surveys") by a licensed surveyor, acceptable to Purchaser and
Title Company, of each of the Shopping Centers which shall describe such
Shopping Center, be dated after October 1, 1995, and contain a surveyor's
certificate in favor of Purchaser and such other parties as Purchaser
shall designate in form and substance satisfactory for, among other
things, deletion of the standard survey exception from the title insurance
policy and consistent with and as required by the next succeeding
sentences. The surveyor that is to prepare the Survey will certify that
such Survey was prepared in accordance with the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys" jointly established and
adopted by ALTA and ACSM in 1992, and include items 2, 3, 4, 6, 7(A),
7(B), 7(C), 8, 9, 10, 11 and 13 on Table A thereof and pursuant to the
Accuracy Standards (as adopted by ALTA and ACSM and in effect on the date
of the surveyor's certification) of an "Urban" survey. Without limiting
the foregoing, such Surveys shall show: (i) the location of the perimeter
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of the Land of courses and distances and its square footage, (ii) the
location of all improvements and the relationship thereof by distances to
the perimeter of the Land, the building and set-back lines, and the street
lines, (iii) the lines of the streets abutting the Land and the width
thereof, (iv) any encroachments and the extent thereof in feet and inches
upon the Land, (v) any encumbrances of a physical nature, (vi) the
storefront of each Tenant occupying a portion of the Shopping Center, and
(vii) the location, by spotting, of any improvements on adjoining property
within ten feet of the perimeter of the Land. Such Surveys also shall
show all zoning and zoning-related data and information required by
Purchaser and said surveyor shall cooperate with and assist whomever shall
be working towards and furnishing zoning and zoning-related compliance
assurances and coverages to Purchaser.
5.1. Unacceptable Encumbrances.
If the Title Commitment, the Lien Searches, or the Surveys indicate the
existence of any liens, encumbrances or other defects or exceptions in or
to title to the Shopping Centers (collectively, the "Unacceptable
Encumbrances") subject to which the Purchaser is unwilling to accept title
and the Purchaser gives the Sellers notice of the same within fourteen
(14) days after receipt of the later of the Title Commitment, the Lien
Searches, the Survey, the underlying exception documents or all pro forma
endorsements, as applicable, the Sellers shall undertake to eliminate the
same subject to Section 5.2. The Purchaser hereby waives any right the
Purchaser may have to advance as objections to title or as grounds for the
Purchaser's refusal to close this transaction any Unacceptable Encumbrance
which the Purchaser does not notify the Sellers of within such fourteen
(14) day period unless (i) such Unacceptable Encumbrance was first raised
by the Title Company or surveyor subsequent to the date of the Title
Commitment or the Survey, or such Unacceptable Encumbrance was first
reflected in the Lien Searches, or the Purchaser shall otherwise first
discover same or be advised of same subsequent to the date of the Title
Commitment, the Lien Searches, or the Survey, and (ii) the Purchaser shall
notify the Sellers of the same within five (5) business days after the
Purchaser first becomes aware of such Unacceptable Encumbrance.
5.2. Removal of Unacceptable Encumbrances.
The Sellers shall not be obligated to bring any action or proceeding, to
make any payments or otherwise to incur any expense in order to eliminate
Unacceptable Encumbrances not waived by the Purchaser or to arrange for
title insurance insuring against enforcement of such Unacceptable
Encumbrances against, or collection of the same out of, the Shopping
Centers; except that the Sellers shall satisfy (i) mortgages (other than
Existing Mortgages) and any (Sellers' voluntarily created) liens secured
by or affecting the Shopping Centers regardless of the amount thereof, and
(ii) judgments against the Sellers or other liens (collectively, "Liens")
secured by or affecting the Shopping Centers which can be satisfied by
payment of liquidated amounts not to exceed the sum of (A) the amount
required to obtain discharges of all of the mechanic's liens encumbering
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the Hampton Village Centre Shopping Center, and (B) $500,000 in the
aggregate for all such other Liens. The Sellers' obligations pursuant to
the immediately preceding sentence shall not apply to Permitted
Encumbrances. The obligations of the Sellers under clause (ii)(B) above
shall include, without limitation, the posting of bonds in an aggregate
amount equal to $500,000 less other amounts expended by the Sellers
pursuant to such clause (ii)(B), regardless of whether the actual amount
of such Lien exceeds the amount of such bond. In the event of the posting
of any such bond, the Sellers shall control the settlement of the claim
giving rise to such Lien, and the out-of-pocket costs associated with such
settlement shall be paid pro-rata by the Purchaser and the Sellers. For
the purposes of this Agreement, the Sellers' failure or refusal to bring
any action or proceeding, to make any payments or to otherwise incur any
expense (except as required by this Section) in order to eliminate
Unacceptable Encumbrances not waived by the Purchaser or to arrange for
such title insurance shall be deemed an inability of the Sellers to
eliminate such Unacceptable Encumbrances or to arrange for such title
insurance and shall not be a default by the Sellers hereunder (willful or
otherwise). For purposes of this Agreement, an Unacceptable Encumbrance
that is reflected on the Title Commitment shall be considered eliminated
if such Unacceptable Encumbrance is removed from the Title Commitment or
if it is not so removed but the Title Company agrees to insure the
Purchaser against loss or damage as a result of the Unacceptable
Encumbrances.
5.5. Options Upon Failure to Remove Unacceptable Encumbrances.
If the Sellers are unable or, pursuant to the limitations on expenditures
set forth in Section 5.2, not otherwise obligated to eliminate all
Unacceptable Encumbrances not waived by the Purchaser, or to arrange for
title insurance acceptable to the Purchaser insuring against enforcement
of such Unacceptable Encumbrances against, or collection of the same out
of, the Shopping Centers, and to convey title in accordance with the terms
of this Agreement on or before the Closing Date (whether or not the
Closing is adjourned as provided in Section 14.4), the Purchaser shall
elect on the Closing Date, as its sole remedy for such inability of the
Sellers, either (i) to terminate this Agreement as to the Shopping Centers
affected by such Unacceptable Encumbrances by notice given to the Sellers
pursuant to Section 14.1, in which event the provisions of Section 14.1
shall apply, or (ii) to accept title subject to such Unacceptable
Encumbrances and receive no credit against, or reduction of, the Purchase
Price.
5.4. Use of Purchase Price.
If on the Closing Date there may be any Liens or other liens or
encumbrances which the Sellers must pay or discharge in order to convey
to the Purchaser such title as is herein provided to be conveyed, the
Sellers may use any portion of the Purchase Price to satisfy the same,
provided:
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(a) the Sellers shall deliver to the Purchaser or the Title
Company, at the Closing, instruments in recordable form and sufficient to
satisfy such Liens or other encumbrances of record together with the cost
of recording or filing said instruments; or
(b) the Sellers, having made arrangements with the Title Company,
shall deposit with said company sufficient moneys acceptable to said
company to insure the obtaining and the recording of such satisfactions.
5.3. Franchise Taxes.
Any franchise or corporate tax open, levied or imposed against the Sellers
or other owners in the chain of title that may be a Lien on the Closing
Date or for which the Purchaser may become personally liable therefor on
or after the Closing Date, shall not be an objection to title if the Title
Company omits same from the title policy issued pursuant to the Title
Commitment or excepts same but in either event insures the Purchaser
against collection thereof out of the Shopping Centers or from the
Purchaser personally.
5.6 Transfer Taxes; Title Insurance Premiums.
5.6.1 General.
At the Closing, the Sellers shall pay all local, state and county transfer
taxes, transfer gains taxes and recording taxes (the "Transfer Tax
Payments") imposed pursuant to the Laws of the States of Michigan, New
York and Ohio (or counties or municipalities therein) in respect of the
transactions contemplated by this Agreement, by delivery to the Title
Company of sufficient funds to pay such taxes together with any return
(the "Transfer Tax Return") required thereby which shall be duly executed
by the Sellers and the Purchaser to the extent required by applicable law.
At the Closing, the Purchaser shall pay the premium due the Title Company
to obtain a title insurance policy in the form contemplated by the Title
Commitment for the Shopping Center located in the State of New York. At
the Closing, the Sellers shall pay the premium due the Title Company to
obtain title insurance policies in the form contemplated by the Title
Commitment for the Shopping Centers located in the States of Michigan and
Ohio.
5.6.2. New York Requirement.
Prior to the Closing, the Seller owning the Shopping Center located in the
State of New York shall file a Transferor's Questionnaire pursuant to the
New York Real Property Transfer Gains Tax Law and the regulations issued
pursuant to the authority thereof (referred to herein as the "Gains Tax
Law"), duly signed and sworn to by such Seller. Within seven (7) business
day of such Seller's request, Purchaser shall deliver to Sellers a
Transferee Questionnaire completed in accordance with the Gains Tax Law.
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Such Seller shall file such Transferee Questionnaire simultaneously with
the filing of the Transferor's Questionnaire. The parties hereto shall
each comply with, and cooperate with each other in connection with, the
pre-transfer audit procedures adopted by the Department of Taxation and
Finance pursuant to the Gains Tax Law. The provisions of this
Section 5.6.2 shall survive the Closing.
6. Representations and Warranties of the Sellers.
Each Seller represents and warrants to the Purchaser as follows:
(a) (i) ▇▇▇▇ ▇▇▇▇▇▇ Realty Income Partnership II, L.P. is a duly
formed and validly existing limited partnership organized under the laws
of the State of Delaware and is qualified under the laws of the State of
New York to conduct business therein.
(ii) Midway Crossing Limited Partnership is a duly formed and
validly existing limited partnership organized under the laws of the State
of Michigan, and is registered under the laws of the State of Ohio.
(iii) ▇▇▇▇ ▇▇▇▇▇▇ Realty Income Partnership III, L.P. is a duly
formed and validly existing limited partnership organized under the laws
of the State of Delaware and is qualified under the laws of the State of
Michigan to conduct business therein.
(iv) Genesee Crossing Limited Partnership is a duly formed and
validly existing limited partnership under the laws of the State of
Michigan.
(v) Farmington/9 Mile Associates, a Michigan Limited Partnership
is a duly formed and validly existing limited partnership under the laws
of the State of Michigan.
(vi) Hampton Crossing Associates is a duly formed and validly
existing general partnership under the laws of the State of Michigan.
(vii) Rochester Hills Limited Partnership is a duly formed and
validly existing limited partnership under the laws of the State of
Delaware.
(b) Each Seller and Yield Plus has the full legal right, power and
authority to execute and deliver this Agreement and all documents now or
hereafter to be executed by the Seller or Yield Plus pursuant to this
Agreement (collectively, the "Seller's Documents"), to consummate the
transaction contemplated hereby, and to perform its obligations hereunder
and under the Seller's Documents. The execution and delivery of this
Agreement and the Seller Documents and the consummation of the transaction
contemplated hereby have been duly authorized by all necessary action and
parties and no other proceedings on the part of the Seller or Yield Plus
are necessary in order to permit it to consummate the transaction
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contemplated hereby. This Agreement and the Seller Documents have been
duly executed and delivered by the Seller and Yield Plus and (assuming
valid execution and delivery by Purchaser) are legal, valid and binding
obligations of the Seller and Yield Plus enforceable against each of them
in accordance with their respective terms. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr. are officers of a general partner of each Seller and
Yield Plus (or an officer of a general partner of such general partner).
(c) This Agreement and the Seller's Documents and the execution,
delivery and performance thereof do not and will not contravene any
provision of the partnership agreement of the Seller, Yield Plus or any
other Seller Parties, any judgment, order, decree, writ or injunction
issued against the Seller, Yield Plus or any other Seller Parties, or any
provision of any laws or governmental ordinances, rules, regulations,
orders or requirements (collectively, the "Laws") applicable to the
Seller, Yield Plus or any other Seller Parties. The consummation of the
transactions contemplated hereby will not result in a breach or constitute
a default or event of default by the Seller, Yield Plus or any other
Seller Parties under any agreement to which the Seller, Yield Plus or any
of its assets are subject or bound and will not result in a violation of
any Laws applicable to the Seller, Yield Plus or any other Seller Parties.
"Seller Parties" means collectively with respect to each Seller or Yield
Plus, any person or entity owning or controlling such Seller or owned or
controlled by such Seller or Yield Plus, in whole or in part, directly or
indirectly, and the successors and assigns of each and all of the
foregoing.
(d) There are no leases or other occupancy agreements, and the Seller
has no knowledge of any licenses, affecting any portion of the Shopping
Center owned by such Seller (collectively, the "Leases") on the date
hereof, except for the Leases listed in the rent rolls annexed hereto as
Schedule 5 and made a part hereof. Other than the Leases, the Seller has
no other agreements with any Tenant regarding such Tenant's occupancy of
the Shopping Center. The copies of the Leases furnished by the Seller to
the Purchaser are true, accurate and complete. All of the information set
forth in Schedule 5 is true, accurate and complete in all respects. To
the Seller's knowledge, the Leases are in full force and effect, without
any default by the Seller thereunder. Except as listed on Schedule 5, the
Seller has not given or received any written notice of default from any
tenant under any Lease which remains uncured or unsatisfied, with respect
to any of the Leases. All work and materials, if any, required to be
performed or furnished, as applicable, prior to the date hereof by
landlord under each of the Leases has been performed and furnished in
accordance with the terms of such Leases and fully paid for, except as set
forth on Schedule 5.
(e) To the Seller's knowledge, there are no pending actions, suits,
proceedings or investigations to which the Seller or the Shopping Center
is a party before any court or other governmental authority with respect
to the Shopping Center owned by the Seller, except as set forth on
Schedule 6 hereto.
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(f) Except as disclosed on Schedule 7 hereto, since the date
Seller acquired legal and beneficial title to the Shopping Center
owned by the Seller (i) to Seller's knowledge, neither Seller nor
any third party has engaged in the generation, use, manufacture,
treatment, transportation, storage or disposal of any Hazardous
Substance (as hereinafter defined) on the Shopping Center in
violation of Applicable Environmental Law (as hereinafter defined)
or which requires remediation under Applicable Environmental Law,
and (ii) to Seller's knowledge, neither Seller nor any third party
has received any written notice from any governmental authority
having jurisdiction over the Shopping Center of any violation of
Applicable Environmental Law with respect to the Shopping Center
which requires corrective action, or any notices relating to any
such corrective action. Disclosure of any matter on Schedule 7
hereto shall not constitute any admission by Seller that such matter
was material or a violation of Applicable Environmental Law, but
this sentence shall not obviate or vitiate the validity of any
representation or warranty set forth herein. As used in this
Agreement, the term "Hazardous Substance" shall mean any substance,
chemical or waste that is currently listed as hazardous, toxic or
dangerous under Applicable Environmental Law. As used in this
Agreement, the term "Applicable Environmental Law" shall mean the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. sec. 9601 et seq.; the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. sec 6901, et seq.; the Water
Pollution Control Act, 33 U.S.C. sec. 1251 et seq.; the Clean Air Act,
42 U.S.C. sec 7401 et seq.; and the Toxic Substances Control Act, 15
U.S.C. sec 2601 et seq.; as the foregoing have been amended from time
to time to the date of this Agreement; and any similar state and
local laws and ordinances and the regulations implementing such
statutes or otherwise in effect on the date hereof imposing
liability or establishing standards of conduct for environmental
protection. The Seller has delivered to the Purchaser true and
complete copies of all environmental reports with respect to the
Shopping Center in the Seller's possession as of January 1, 1995.
No such reports have been received by the Seller subsequent to such
date. The Seller knows of no fact or circumstance that would make
any matter relating to the environmental condition of the Shopping
Centers set forth in the environmental reports that the Seller has
delivered to the Purchaser false or misleading.
(g) Schedule 9 contains a list of the Licenses. To the Seller's
knowledge, the Licenses are in full force and effect and are sufficient
for the operation of the Shopping Center as currently operated.
(h) Neither the Seller nor any other Seller Party has received written
notice of:
(i) pending grievances or arbitration proceedings or unsatisfied
arbitration awards, or judicial proceedings or orders respecting awards,
relating to the Shopping Center or its ownership, operation or occupancy;
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(ii) outstanding unfulfilled requirements or recommendations of any
insurance company, any inspection or rating bureau or any board of
underwriters concerning the Shopping Center or any operation, condition,
repair or alteration thereof; or
(iii) any violation of any Laws from any federal, state or local
governmental authority.
(i) Neither the Seller nor any other Seller Party is aware of (i) any
notice to them announcing an increase in the assessed value of the
Shopping Center for real estate tax purposes since the date of the most
recent real estate tax ▇▇▇▇ issued for the Shopping Center, or (ii) any
new construction with respect to the Shopping Center since the most recent
assessment of the value of the Shopping Center for real property tax
purposes that could increase the assessed value of the Shopping Center.
None of Seller Parties has received any assessment notices against the
Shopping Center with respect to any governmental improvements which have
been substantially completed prior to the date hereof and for the cost of
which the Shopping Center can be assessed. The Seller has delivered to
the Purchaser true, accurate and complete copies of the real estate tax
▇▇▇▇ for the Shopping Center for the most recent tax period.
(j) None of Sellers owns, directly or indirectly, any other real estate
located within one mile of the boundaries of any of the Shopping Centers.
(k) The Seller has delivered true, accurate and complete copies of the
Existing Mortgages and each of the loan documents evidencing or governing
the obligations secured thereby. Each of such loan documents is
identified on Schedule 13 annexed hereto. The Seller has not received any
notice of any default with respect to the Existing Mortgages which remain
uncured.
(l) The Seller is not currently a party to any condemnation proceeding
(including any proceeding for widening, change of grade or limitation on
use of streets abutting the Premises) pending with regard to or affecting
all or any part of the Premises (including any such abutting streets) and
the Seller has received no written notice threatening any such proceeding.
(m) To the best knowledge of the Sellers, there has been no material
adverse change in the physical condition of the Improvements since the
date of Purchaser's inspection of the Improvements (to wit, September 20,
1995).
(n) The Sellers have no employees.
(o) The operating statement for the Shopping Center for the period from
January 1, 1995 to August 31, 1995, a copy of which has been delivered to
the Purchaser prior to the date hereof, is true, accurate and complete.
(p) The Sellers have no knowledge of any Contracts on the date hereof,
except for the Contracts listed on Schedule 15 annexed hereto and made a
part hereof. The copies of the Contracts furnished by the Sellers to the
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Purchaser are true and complete. To the Sellers' knowledge, the Contracts
are in full force and effect.
(q) To the best knowledge of the Sellers, there are no brokerage fees
payable by the landlord under any Leases in effect as of the date hereof
upon the extension or renewal of such Lease.
6.1. Survival of Representations.
The representations and warranties of the Sellers set forth in this
Section 6 and elsewhere in this Agreement (i) shall be true, accurate and
correct in all respects, individually and in the aggregate, upon the
execution of this Agreement and shall be deemed to be repeated on and as
of the Closing Date, subject to modification as set forth in clause (i)
of the first paragraph of Section 8.1, (ii) shall be deemed the joint and
several representations and warranties of Hampton Crossing Associates,
Farmington/9 Mile Associates, a Michigan Limited Partnership, Genesee
Crossing Limited Partnership, Midway Crossing Limited Partnership, and
Rochester Hills Limited Partnership (collectively, the "Yield Plus
Sellers") and ▇▇▇▇ ▇▇▇▇▇▇ Realty Yield Plus, L.P. ("Yield Plus"), to the
extent that such representations and warranties relate to the Yield Plus
Sellers and/or the Shopping Centers owned by the Yield Plus Sellers, and
(iii) shall remain operative and shall survive the Closing and the
execution and delivery of the Deeds for a period of one (1) year following
the Closing Date, and no action or claim based thereon shall be commenced
after such period, provided, that the representations and warranties set
forth in Sections 6(a), 6(b) and 6(c) shall survive the Closing
indefinitely.
6.2. Waiver of Claims for Untrue Representation.
In the event the Closing occurs, the Purchaser hereby expressly waives,
relinquishes and releases any right or remedy available to it at law, in
equity or under this Agreement to make a claim against the Sellers for
damages that the Purchaser may incur, or to rescind this Agreement and the
transactions contemplated hereby, as the result of any of Seller's
representations or warranties being untrue, inaccurate or incorrect in
any material respect, either individually or in the aggregate if the
Purchaser knew that such representation or warranty was so untrue,
inaccurate or incorrect at the time of the Closing and the Purchaser
nevertheless closes title hereunder.
6.3. Limited Nature of Representations.
This Agreement, as written, contains all the terms of the agreement
entered into between the parties as of the date hereof, and the Purchaser
acknowledges that neither the Sellers nor any of the Sellers' Affiliates,
nor any of their agents or representatives, nor Broker has made any
representations or held out any inducements to the Purchaser, and the
Sellers hereby specifically disclaim any representation, oral or written,
past, present or future, other than those specifically set forth in this
Section 6, Section 12 or elsewhere in this Agreement or the Conveyance
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Documents. The Purchaser acknowledges that the Sellers have afforded the
Purchaser the opportunity for full and complete investigations,
examinations and inspections of the Shopping Centers and all Property
Information. The Purchaser acknowledges and agrees that, subject to the
representations and warranties set forth elsewhere in this Agreement or
the Conveyance Documents, (i) the Property Information delivered or made
available to the Purchaser and the Purchaser's Representatives by the
Sellers or the Sellers' Affiliates, or any of their agents or
representatives may have been prepared by third parties and may not be the
work product of the Sellers and/or any of the Sellers' Affiliates; (ii)
neither the Sellers nor any of the Sellers' Affiliates has made any
independent investigation or verification of, or has any knowledge of, the
accuracy or completeness of, the Property Information; (iii) the Property
Information delivered or made available to the Purchaser and the
Purchaser's Representatives is furnished to each of them at the request,
and for the convenience of, the Purchaser; (iv) the Purchaser is relying
solely on its own investigations, examinations and inspections of the
Shopping Centers and those of the Purchaser's Representatives and is not
relying in any way on the Property Information furnished by the Sellers
or any of the Sellers' Affiliates, or any of their agents or
representatives; and (v) the Sellers expressly disclaim any
representations or warranties with respect to the accuracy or completeness
of the Property Information, and, subject to the representations and
warranties set forth in this Agreement and the Conveyance Documents, the
Purchaser releases the Sellers and the Sellers' Affiliates, and their
agents and representatives, from any and all liability with respect to the
Property Information. The Purchaser or anyone claiming by, through or
under the Purchaser, hereby fully and irrevocably releases the Sellers and
the Sellers' Affiliates, and their agents and representatives, from any
and all claims that it may now have or hereafter acquire against any of
the Sellers or the Sellers' Affiliates, or their agents or representatives
for any cost, loss, liability, damage, expense, action or cause of action,
whether foreseen or unforeseen, arising from or related to any
construction defects, errors or omissions on or in the Shopping Centers,
the presence of environmentally hazardous, toxic or dangerous substances,
or any other conditions (whether patent, latent or otherwise) affecting
the Shopping Centers, except for claims against a Seller based upon any
obligations and liabilities of such Seller expressly provided in this
Agreement and the documents to be delivered to the Purchaser pursuant to
Sections 9(a), 9(b), 9(c), 9(d), 9(f), 9(h) (to the extent that such
deliveries under Section 9(h) consist of Landlord Estoppel Certificates),
9(n), 9(s) and any other documents delivered at the Closing that by their
terms contain provisions that survive the Closing (collectively, the
"Conveyance Documents"). The Purchaser acknowledges that any covenants,
agreements, representations or warranties set forth in this Agreement are
being made by each Seller individually and that in no event (except as
expressly set forth in Section 14.1 and Section 14.3) will the Purchaser
have recourse against any Seller for any breach of this Agreement by any
other Seller.
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The provisions of this Section 6 shall survive the Closing.
7. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Sellers as follows:
(a) The Purchaser is a duly formed and validly existing business trust
organized under the laws of the Commonwealth of Massachusetts, and is
qualified or registered under the laws of the States of New York, Michigan
and Ohio to conduct business therein on the Closing Date.
(b) The Purchaser has the full, legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter to
be executed by it pursuant to this Agreement (collectively, the
"Purchaser's Documents"), to consummate the transactions contemplated
hereby, and to perform its obligations hereunder and under the Purchaser's
Documents.
(c) This Agreement and the Purchaser's Documents do not and will not
contravene any provision of the declaration of trust of the Purchaser, any
judgment, order, decree, writ or injunction issued against the Purchaser,
or any provision of any Laws applicable to the Purchaser. The
consummation of the transactions contemplated hereby will not result in
a breach or constitute a default or event of default by the Purchaser
under any agreement to which the Purchaser or any of its assets are
subject or bound and will not result in a violation of any Laws applicable
to the Purchaser.
(d) The Purchaser has not received written notice of any pending
actions, suits, proceedings or investigations to which the Purchaser is
a party before any court or other governmental authority which may have
an adverse impact on the transactions contemplated hereby or the rights
or ability of the Purchaser to fully perform the same.
(e) The Purchaser has no written agreement for the payment of brokerage
fees to ▇▇▇▇▇▇ Financial in connection with its purchase of the Farmington
Crossroads Shopping Center.
The representations and warranties of the Purchaser set forth in this
Section 7 and elsewhere in this Agreement shall be true, accurate and
correct in all material respects upon the execution of this Agreement,
shall be deemed to be repeated on and as of the Closing Date and shall
survive the Closing.
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8. Conditions Precedent to Closing.
8.1. Conditions Precedent to Purchaser's Obligations.
The Purchaser's obligation under this Agreement to
purchase the Shopping Centers is subject to the
fulfillment of each of the following conditions: (i)
the representations and warranties of the Sellers
contained herein shall be true, accurate and correct in
all material respects, individually and in the
aggregate, as of the Closing Date, subject to changes to
matters discussed in such representations and warranties
in connection with the operation of the Shopping Centers
in compliance with Section 11 hereof (other than Section
11.5); (ii) the Sellers shall be ready, willing and able
to deliver title to such Shopping Center in accordance
with the terms and conditions of this Agreement
(including without limitation insured title pursuant to
the Title Commitments and the absence of any
Unacceptable Encumbrances); (iii) no casualty with
respect to a "material" part of such Shopping Center, as
described in Section 13.1 shall have occurred, (iv) no
condemnation or eminent domain taking of any
"significant" portion of such Shopping Center, as
described in Section 13.2, shall have occurred, (v) the
Sellers shall have delivered all the documents and other
items required pursuant to Section 9, and shall have
performed all other covenants, undertakings and
obligations, and complied with all conditions required
by this Agreement to be performed or satisfied by the
Sellers at or prior to the Closing, (vi) there shall
have been no violation of any of the Permitted
Encumbrances since the date of this Agreement, (vii) the
condition to Sellers' obligations set forth in Sections
8.2(iii) shall have been satisfied other than by the
Sellers' waiver thereof, and (viii) the Purchaser shall
not have delivered a Purchaser's Termination Notice.
The Purchaser's obligation under this Agreement to purchase the Shopping
Centers is further subject to the fulfillment of the following condition
with respect to each Shopping Center that is subject to an Existing
Mortgage: if any of the Existing Mortgages, the notes secured thereby or
the related loan documents prohibits or restricts the conveyance of any
Shopping Center or any part thereof without the prior consent of the
holder or holders thereof or confers upon such holders the right to
accelerate payment of the indebtedness or to change the terms of the
Existing Mortgage(s) in the event that a conveyance is made without the
consent of such holders, the Sellers shall have obtained from such
holders, in writing, at the sole cost and expense of the Sellers, (i) the
unqualified consents of such holders to the sale contemplated by this
Agreement and the conveyance of such Shopping Center to the Purchaser and
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(ii) the waiver of such holders' right to accelerate the indebtedness
secured by, or to change the provisions of, their Existing Mortgages by
reason of such conveyance. The Purchaser shall not be entitled to require
the satisfaction of the preceding condition and such condition shall be
of no force and effect unless the Purchaser shall have timely furnished
the holders with such information as they may reasonably require.
The Purchaser's obligation under this Agreement to purchase the Shopping
Centers is further subject to the fulfillment of the following conditions
with respect to each Shopping Center that is subject to an Existing
Mortgage: (a) the Sellers shall have delivered to the Purchaser a
certificate, executed and acknowledged by the holder of each Existing
Mortgage, certifying with respect to the Existing Mortgages held by such
holder (i) the amount of the unpaid principal balance secured thereby,
(ii) the date to which interest has been paid, (iii) the interest rate in
effect, (iv) the amount of any deposits held by such holder as security
for the Existing Mortgages, and (v) the amount of the unpaid interest and
other unpaid amounts secured thereby, provided, that in addition to the
foregoing certification, either (x) each such certification shall also
include a statement that no default exists as of the date of such
certification under such Existing Mortgage and no notice of default has
been delivered by such holder, or (y) the Seller of the Shopping Center
encumbered by such Existing Mortgage shall agree to indemnify, defend and
hold the Purchaser harmless from and against any prepayment premiums or
penalties under such Existing Mortgage that become payable as the result
of the existence of such a default on the Closing Date, and provided,
further, that such Seller shall have the right to challenge and defend
against any holder's assertion of such a default under such Existing
Mortgage, so long as such challenge or defense does not permit a
foreclosure or other adverse action under such Existing Mortgage; and (b)
the Sellers shall use their reasonable efforts to obtain a further
certification, and modifications to the Existing Mortgages and the related
loan documents from the holder of each Additional Mortgage as to matters
mutually acceptable to the Sellers and the Purchaser and in a form
mutually acceptable to the Sellers and the Purchaser. The Sellers and the
Purchaser agree that the following are mutually acceptable matters to
request of the holders of the Existing Mortgages pursuant to this clause
(b): (1) waiver of escrows required by the terms of the Existing
Mortgages, (2) permitting the Purchaser to purchase the Shopping Centers
subject to the Existing Mortgages, rather than assuming the Existing
Mortgages, (3) permitting the Purchaser to manage the Shopping Centers
rather than using property managers identified in the Existing Mortgages,
(4) adding the provisions of Section 27 hereof to the Existing Mortgages,
and (5) maintaining all non-recourse provisions in the Existing Mortgages
as in effect on the date hereof.
8.2. Conditions Precedent to Sellers' Obligations.
The Sellers' obligation under this Agreement to sell the Shopping Centers
to the Purchaser is subject to the fulfillment of each of the following
conditions: (i) the representations and warranties of the Purchaser
contained herein shall be materially true, accurate and correct as of the
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Closing Date; (ii) the Purchaser shall have delivered the funds required
hereunder and all the documents to be executed by the Purchaser set forth
in Section 10 and is not otherwise in default of its obligations hereunder
in any material respect; (iii) all consents and approvals of governmental
authorities and parties to agreements to which the Purchaser is a party
or by which the Purchaser's assets are bound that are required with
respect to the consummation of the transactions contemplated by this
Agreement shall have been obtained and copies thereof shall have been
delivered to the Sellers at or prior to the Closing; and (iv) the consents
and waivers from holders of the Existing Mortgages described in the second
paragraph of Section 8.1 shall have been obtained.
9. Documents to be Delivered by the Sellers at Closing.
At the Closing, the Sellers shall execute, acknowledge and/or deliver, as
applicable, the following to the Purchaser:
(a) Deeds (collectively, the "Deeds") conveying title to the Shopping
Centers in the form of Exhibit A annexed hereto and made a part hereof.
(b) The Assignment of Leases and Security Deposits in the form of
Exhibit B annexed hereto and made a part hereof assigning all of the
Sellers' right, title and interest, if any, in and to the Leases, all
warranties and guarantees thereof and the security deposits thereunder in
the Sellers' possession, if any (the "Lease Assignment").
(c) The Assignment and Assumption of Contracts and Licenses in the form
of Exhibit C annexed hereto and made a part hereof (the "Contract and
License Assignment") assigning all of the Sellers' (and any person
managing a Shopping Center on behalf of the Sellers) right, title and
interest, if any, in and to (i) all of the assignable licenses, permits,
certificates, approvals, authorizations and variances issued for or with
respect to the Shopping Centers by any governmental authority of which the
Sellers are aware and which are in the Sellers' (or such other person's)
possession or control as of the Closing (collectively, the "Licenses"),
and (ii) all assignable purchase orders, equipment leases, advertising
agreements, franchise agreements, license agreements and other service
contracts relating to the operation of the Shopping Centers (collectively,
the "Contracts").
(d) The Assignment and Assumption of Intangible Property in the form of
Exhibit D annexed hereto and made part hereof assigning all of the
Sellers' (and any person managing a Shopping Center on behalf of the
Sellers) right, title and interest, if any, in and to all intangible
property owned by the Sellers with respect to the operation of the
Shopping Centers listed on Schedule 8 annexed hereto and made a part
hereof, including, without limitation, the trade names (the "Intangible
Property Assignment") (the Lease Assignment, the Contract and License
Assignment and the Intangible Property Assignment are herein referred to
collectively as the "A & A Agreements").
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(e) Executed counterparts or, if no such original counterpart is
available, a photocopy with all signatures, of all Leases and New Leases
and any amendments, warranties and guarantees and other documents relating
thereto, together with a schedule of all tenant security deposits
thereunder and the accrued interest on such security deposits payable to
tenants, and a good, unendorsed certified or official bank check drawn on
or by a Clearing House Bank payable to the order of the Purchaser, in the
aggregate amount of such security deposits and accrued interest thereon
payable to tenants. With respect to any lease securities which are other
than cash, the Sellers shall execute and deliver to the Purchaser at the
Closing any appropriate instruments of assignment or transfer and such
original security deposits to the extent that they are in the possession
or control of the Sellers.
(f) A ▇▇▇▇ of sale in the form of Exhibit E annexed hereto and made a
part hereof (the "▇▇▇▇ of Sale") conveying, transferring and selling to
the Purchaser all right, title and interest of the Sellers in and to all
Personal Property. It is agreed that the value of such property is
nominal.
(g) Notices to the tenants of the Shopping Centers in the form of
Exhibit F annexed hereto and made a part hereof advising the tenants of
the sale of the Shopping Centers to the Purchaser and directing that rents
and other payments thereafter be sent to the Purchaser or as the Purchaser
may direct.
(h) Executed originals of the Required Estoppel Certificates, without
discrepancy, adverse claim or exception (except for deviation as to form
as described in Section 4.3) and all other Estoppel Certificates, if any,
received by the Sellers from tenants prior to the Closing Date and not
previously delivered to the Purchaser. The Sellers shall also deliver,
for each Lease with respect to which an Estoppel Certificate is not
obtained, an estoppel certificate (collectively "Landlord Estoppel
Certificates") executed by the Seller that is landlord under such Lease,
each in the form annexed hereto as Exhibit H and made a part hereof.
(i) To the extent in the possession or control of the Sellers or their
managers for each of the Shopping Centers and not already located at the
Shopping Centers, keys to all entrance doors to, and equipment and utility
rooms located in, the Shopping Centers.
(j) To the extent in the possession or control of the Sellers or their
managers for each of the Shopping Centers and not already located at the
Shopping Centers, all Licenses.
(k) To the extent in the possession or control of the Sellers or their
managers for each of the Shopping Centers, executed counterparts of all
Contracts and all warranties and guaranties in connection therewith which
are in effect on the Closing Date and which are assigned by the Sellers.
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(l) To the extent in the possession or control of the Sellers or their
managers for each of the Shopping Centers, plans and specifications of the
Buildings.
(m) The Transfer Tax Payments together with the Transfer Tax Returns,
if any.
(n) A "FIRPTA" affidavit sworn to by the Sellers in the form of Exhibit
I annexed hereto and made a part hereof. The Purchaser acknowledges and
agrees that upon the Sellers' delivery of such affidavit, the Purchaser
shall not withhold any portion of the Purchase Price pursuant to Section
1445 of the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
(o) Notices to the holders of the Existing Mortgages advising the
holders of the sale of the Shopping Centers to the Purchaser and directing
that future bills and other correspondence should thereafter be sent to
the Purchaser or as the Purchaser may direct.
(p) An assignment of the Sellers' right, title and interest in and to
all reserves, escrows or accruals held by the holders of the Existing
Mortgages for real estate taxes, insurance premiums and other amounts, if
any, to the extent the same have been apportioned.
(q) The consents and certificates of mortgagees under the Existing
Mortgages described in Section 8.1 hereof.
(r) A closing statement setting forth the adjustments and apportionments
required pursuant to the terms of this Agreement, in form and substance
satisfactory to the Sellers and the Purchaser (the "Closing Statement"),
to be subsequently amended and restated on the date set forth in Section
3.1.
(s) A certificate of the Sellers reaffirming all of their
representations and warranties set forth herein as of the Closing Date,
in the form annexed hereto as Exhibit K and made a part hereof.
(t) All of the books, records and files in the possession or control of
the Sellers (including those in the possession of any person managing a
Shopping Center on behalf of the Sellers) relating solely to the operation
of the Shopping Centers.
(u) A receipt executed by the Broker in favor of the Purchaser, in the
form annexed hereto as Exhibit L and made a part hereof.
(v) Releases from liability executed by each manager of a Shopping
Center pursuant to a written management agreement, such release to be in
favor of the Purchaser, and in the form annexed hereto as Exhibit M and
made a part hereof, provided, that if such manager is not a Sellers'
Affiliate, Sellers shall only be required to use reasonable efforts to
obtain such release, and provided, further, that if the Sellers are unable
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to obtain any such release, the Sellers shall execute an indemnification
in favor of the Purchaser from and against any liability the Purchaser may
have to such manager.
(w) Mechanics lien affidavits, parties in possession affidavits and
"gap" indemnities in favor of the Title Company, together with a statement
delineating any tenant options or rights of first refusal for each of the
Shopping Centers, each in a form reasonably acceptable to the Sellers.
(x) The Sellers shall use reasonable efforts to obtain from each person
owning real property that is the subject of a reciprocal easement
agreement with any of the Shopping Centers an estoppel certificate in the
form of Exhibit P annexed hereto, without discrepancy, adverse claim or
exception.
(y) Assignments of the Sellers' interests in any portion of the Shopping
Centers that the Sellers hold as lessees under a ground lease.
(z) All other documents the Sellers are required to deliver pursuant to
the provisions of this Agreement.
9.1. Further Assurances.
In addition to the obligations required to be performed hereunder by the
Sellers at Closing, from time to time subsequent to the Closing the
Sellers shall perform such other acts, and shall execute, acknowledge and
deliver such other agreements and documents as the Purchaser may
reasonably request in order to effectuate the consummation of the
transaction contemplated herein consistent with the terms hereof;
provided, that the taking of such acts and/or the execution of such
documents shall be at no out-of-pocket third party cost or expense to the
Sellers.
10. Documents to be Delivered by the Purchaser at Closing.
At the Closing, the Purchaser shall execute, acknowledge and/or deliver,
as applicable, the following to the Sellers:
(a) The cash portion of the Purchase Price payable at the Closing
pursuant to Section 2, subject to credits and adjustments as provided in
this Agreement.
(b) The A & A Agreements.
(c) The Transfer Tax Returns, if any.
(d) The Closing Statement, to be subsequently amended and restated on
the date set forth in Section 3.1.
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(e) A certificate of the Purchaser reaffirming all of its
representations and warranties set forth herein as of the Closing Date,
in the form annexed hereto as Exhibit K and made a part hereof.
(f) (i) copies of the declaration of trust of the Purchaser and of the
resolutions of the board of directors of the Purchaser authorizing the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated by this Agreement certified as true and
correct by the Secretary or Assistant Secretary of the Purchaser; (ii) a
good standing certificate issued by the state of organization of the
Purchaser, dated on or after October 1, 1995; and (iii) certificates
evidencing that the Purchaser is qualified to do business in the States
of New York, Michigan and Ohio.
(g) Assumptions of the Existing Mortgages without modification, in form
and substance satisfactory to the respective holders of the Existing
Mortgages and to the Purchaser in the exercise of its reasonable business
judgment or, if the holders of the Existing Mortgages indicate that such
an assumption is not required, an indemnity in favor of the Sellers of the
Shopping Centers encumbered by the Existing Mortgages, with respect to
such Sellers' liability under the Existing Mortgages following the
Closing.
(h) An opinion of counsel to the Purchaser (which opinion may be
delivered by the Purchaser's internal counsel) in form and substance
satisfactory to the Sellers, regarding the execution and enforceability
of the Bradlee's Note.
(i) All other documents the Purchaser is required to deliver pursuant
to the provisions of this Agreement or is otherwise reasonably required
by the Title Company.
11. Operation of the Shopping Centers prior to the Closing Date.
Between the date hereof and the Closing Date, the Sellers shall, subject
to this Section 11 continue to operate and maintain the Shopping Centers
in a manner consistent with past practices. In connection therewith, the
Sellers shall maintain their books of account and records in the usual,
regular and ordinary manner.
11.1. New Leases.
After the date hereof, the Sellers shall not modify, extend or renew any
Lease or enter into any proposed Lease of any portion of the Shopping
Centers without the Purchaser's prior written consent (which may be
delivered by telecopier) in each instance, which consent shall be given
or denied, in Purchaser's sole discretion, except as otherwise set forth
in this Section 11.1, within three (3) business days after receipt by the
Purchaser of the Sellers' notice requesting the Purchaser's consent to the
proposed action relating to such existing or proposed Lease. If the
Purchaser fails to reply to the Sellers' request for consent in writing
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within such period, the Purchaser's consent shall be deemed to have been
granted. The Purchaser shall not unreasonably withhold or delay its
consent to any proposed Lease, or extension or modification of an existing
Lease, if each of the following is true: (a) such Lease (as so proposed
or modified) is for less than 25,000 square feet of rentable floor space;
(b) the Sellers' request for such consent is delivered to the Purchaser
either (i) prior to the expiration of the Due Diligence Period, or (ii)
if the Closing Date is extended pursuant to Section 14.4.2, during the
period from the Sellers' election to so extend the Closing Date to and
including the Closing Date, as so extended, and (c) such proposed Lease,
or the modifications to an existing Lease do not contain provisions (x)
granting the tenant an exclusive use as to such Shopping Center, (y)
restricting the tenants to whom the landlord may lease space in such
Shopping Center, or (z) providing a term (including all extensions) of
greater than ten (10) years from the Closing Date. For the period from
December 11, 1995 to January 20, 1996, Purchaser shall grant or withhold
its consent to such modifications, extensions or renewals in its sole
discretion. The Sellers shall have no obligation subsequent to the date
hereof to modify, extend, renew or cancel any Lease or enter into any
proposed Lease.
11.1.1 New Lease Expenses.
Subject to Section 11.1, if after the date of this Agreement the Sellers
enters into any Leases, or if there is any extension or renewal of any
Leases, whether or not such Leases provide for their extension or renewal,
or any modification of any Leases (each, a "New Lease"), the Sellers shall
keep accurate records of all expenses (collectively, "New Lease Expenses")
incurred in connection with each New Lease, including, without limitation,
the following: (i) brokerage commissions and fees relating to such
leasing transaction, (ii) expenses incurred for repairs, improvements,
equipment, painting, decorating, partitioning and other items to satisfy
the tenant's requirements with regard to such leasing transaction, (iii)
reimbursements to the tenant for the cost of any of the items described
in the preceding clause (ii), (iv) rent concessions relating to the
demised space provided the tenant has the right to take possession of such
demised space during the period of such rent concessions, and (v) expenses
incurred for the purpose of satisfying or terminating the obligations of
a tenant under a New Lease to the landlord under another lease (whether
or not such other lease covers space in the Shopping Centers).
11.1.2. Allocation of New Lease Expenses.
Subject to Section 11.1, the New Lease Expenses for each New Lease
allocable to and payable by the Sellers shall be determined by multiplying
the amount of such New Lease Expenses by a fraction, the numerator of
which shall be the number of days contained in that portion, if any, of
the term of such New Lease commencing on the date on which the tenant
thereunder shall have commenced to pay fixed rent ("Rent Commencement
Date") and expiring on the date immediately preceding the Closing Date,
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and the denominator of which shall be the total number of days contained
in the period commencing on the Rent Commencement Date and expiring on the
date of the scheduled expiration of the term of such New Lease, without
provision for any optional extensions or renewals, and the remaining
balance of the New Lease Expenses for each New Lease shall be allocable
to and payable by the Purchaser by addition to the Purchase Price. At the
Closing, the Purchaser shall reimburse the Sellers for all New Lease
Expenses theretofore paid by the Sellers, if any, in excess of the portion
of the New Lease Expenses allocated to the Sellers pursuant to the
provisions of the preceding sentence. If the Purchaser pays any such New
Lease Expenses subsequent to the Closing Date, the Sellers shall pay to
the Purchaser their pro rata share of such New Lease Expenses. For
purposes of this Section 11.1.2, the Rent Commencement Date under a
renewal, extension, expansion or modification of a Lease shall be deemed
to be (i) in the case of a renewal or extension (whether effective prior
to or after the Closing, or in the form of an option exercisable in the
future), the first date during such renewal or extension period after the
originally scheduled expiration of the term of such Lease on which the
tenant under such Lease commences to pay fixed rent, (ii) in the case of
an expansion (whether effective prior to or after the Closing, or in the
form of an option exercisable in the future), the date on which the tenant
under such Lease commences to pay fixed rent for the additional space, and
(iii) in the case of a modification not also involving a renewal,
extension or expansion of such Lease, the effective date of such
modification agreement. The provisions of this Section 11.1.2 shall
survive the Closing.
11.1.3 Exception to Sharing of New Lease Expenses.
Notwithstanding anything set forth in Section 11.1.2 to the contrary, the
Sellers shall be solely responsible for any New Lease Expenses with
respect to the New Leases identified on Schedule 10 attached hereto.
11.2 Termination of Existing Leases.
Notwithstanding anything to the contrary contained in this Agreement, the
Sellers shall not institute summary proceedings against any tenant or
terminate any Lease as a result of a default by the tenant thereunder
without the Purchaser's prior written consent (which may be delivered via
telecopier) shall be given or denied, in the Purchaser's sole discretion,
within three (3) business days after receipt by the Purchaser of the
Sellers' notice requesting the Purchaser's consent to such proposed
action. If the Purchaser shall fail to reply to the Sellers' request for
consent in writing within such period, the Purchaser's consent shall be
deemed to have been granted. The Sellers shall not be obligated to
terminate any Lease or initiate such summary proceedings. The Sellers
make no representations and assume no responsibility with respect to the
continued occupancy of the Shopping Centers or any part thereof by any
tenant. The removal of a tenant whether by summary proceedings or
otherwise pursuant to this Section 11.2 shall not give rise to any claim
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on the part of the Purchaser. Further, the Purchaser agrees that it shall
not be grounds for the Purchaser's refusal to close this transaction that
any tenant is a holdover tenant or in default under its Lease on the
Closing Date and the Purchaser shall accept title subject to such holding
over or default without credit against, or reduction of, the Purchase
Price.
11.3 Contracts.
The Sellers shall not modify, extend, renew or cancel (except as a result
of a default by the other party thereunder) any Contracts, or enter into
any new Contract (other than those that are terminable on or before the
Closing Date) from and after the date hereof without the Purchaser's prior
consent in each instance, which consent shall be given or denied in the
Purchaser's sole discretion.
11.4 Tax Assessments.
With respect to the tax year in which the Closing occurs, and all prior
tax years, the Sellers are hereby authorized to commence, continue and
control the progress of, and to make all decisions with respect to, any
proceeding or proceedings, whether or not now pending, for the reduction
of the assessed valuation of the Shopping Centers, and, in their sole
discretion, to try or settle the same and continue any such action for the
period following the Closing Date, provided, that no settlement shall
include an agreement respecting the amount of taxes to be paid for the tax
years commencing subsequent to the Closing Date. All net (after costs,
and credits and refunds to tenants) tax refunds and credits attributable
to any tax year prior to the tax year in which the Closing occurs shall
belong to and be the property of the Sellers. All net tax refunds and
credits attributable to any tax year subsequent to the tax year in which
the Closing occurs shall belong to and be the property of the Purchaser.
All net tax refunds and credits attributable to the tax year in which the
Closing occurs shall, after refunding or crediting to tenants any portion
of such amounts required to be refunded or credited to tenants under the
Leases, be divided between the Sellers and the Purchaser in accordance
with the apportionment of taxes pursuant to the provisions of this
Agreement, after deducting therefrom a pro rata share of all expenses,
including, without limitation, counsel fees and disbursements and
consultant's fees, incurred in obtaining such refund, the allocation of
such expenses to be based upon the total refund obtained in such
proceeding and in any other proceeding simultaneously involved in the
trial or settlement. The Purchaser agrees to cooperate with the Sellers
in connection with the prosecution of any such proceedings for the tax
year in which the Closing occurs and to take all reasonable steps, whether
before or after the Closing Date, as may be necessary to carry out the
intention of the foregoing, including, without limitation, the delivery
to the Sellers, upon demand, of any relevant books and records, including
receipted tax bills and canceled checks used in payment of such taxes, the
execution of any and all consents or other documents, and the undertaking
of any act necessary for the collection of such refund by the Sellers.
The provisions of this Section 11.4 shall survive the Closing.
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11.5. Copies of Notices.
The Sellers shall use reasonable efforts to provide copies to the
Purchaser, promptly following the Sellers' receipt, of (a) any
correspondence received from any tenant under any Lease, (b) any notice
from any other person that would make any representation or warranty by
the Sellers hereunder untrue, (c) monthly operating statements for each
of the Shopping Centers, (d) any notices from any holder of the Existing
Mortgages, and (e) any notices from any federal, state or local
governmental entity. The obligations of this Section 11.5 shall survive
the Closing.
11.6. Existing Mortgages.
From and after the date hereof, the Sellers shall not modify any provision
of the Existing Mortgages without the Purchaser's prior written consent,
which consent shall not be unreasonably withheld or delayed with respect
to any modification required to consummate the transaction described
herein. The Sellers shall pay any amounts due and payable with respect
to the Existing Mortgages prior to the Closing Date.
11.7. Hampton Village Centre.
The Sellers shall be permitted, at any time prior to the Closing Date, to
amend the condominium documents for Hampton Village Centre Shopping Center
solely for the purpose of correcting the dimensions of the respective
condominium units, provided, that such amendment shall not result in the
conveyance to the Purchaser of less than all of the Hampton Village Centre
Shopping Center as described herein.
12. Broker.
12.1 Broker for Sale of Shopping Centers.
The Purchaser and the Sellers represent and warrant to each other that
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ (the "Broker") is the sole broker with whom they
have dealt in connection with the Property and the transactions described
herein. The Sellers shall be liable for, and shall indemnify and defend
and hold harmless the Purchaser against, all brokerage commissions or
other compensation due to the Broker arising out of the transaction
contemplated in this Agreement. The Sellers shall also be liable for, and
shall indemnify and defend and hold harmless the Purchaser against any and
all brokerage commissions or other compensation claimed by ▇▇▇▇▇▇
Financial (the "Farmington Broker"); provided, that the Sellers shall have
the right to control any settlement with the Farmington Broker. Each
party hereto agrees to indemnify and defend and hold the other harmless
from and against any and all claims, causes of action, losses, costs,
expenses, damages or liabilities, including reasonable attorneys' fees and
disbursements, which the other may sustain, incur or be exposed to, by
reason of any claim or claims by any broker, finder or other person,
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except (in the case of the Purchaser as indemnitor hereunder) the Broker
and the Farmington Brokers, for fees, commissions or other compensation
arising out of the transactions contemplated in this Agreement if such
claim or claims are based in whole or in part on dealings or agreements
with the indemnifying party. The obligations and representations and
warranties contained in this Section 12.1 shall survive the termination
of this Agreement and the Closing.
12.2. Brokers' Fees for Extensions, Renewals of Leases.
Notwithstanding anything to the contrary set forth in any Leases or any
other documents, instruments or agreements, subject to Section 6(q), if
any fee or other amount becomes due and payable to any broker upon the
extension or renewal of any Leases from and after the Closing Date, such
fee or other amount shall be the sole responsibility of the Purchaser, and
the Purchaser agrees to indemnify and hold the Sellers harmless from and
against any damages, claims or losses arising as a result of any such
extension or renewal of any Lease occurring on or after the Closing Date.
The obligations of this Section 12.2 shall survive the Closing.
13. Casualty; Condemnation.
13.1. Damage or Destruction.
If a "material" part (as hereinafter defined) of any Shopping Center is
damaged or destroyed by fire or other casualty, the Sellers shall notify
the Purchaser of such fact. Notwithstanding anything set forth in this
Agreement to the contrary, if (i) the Purchaser does not elect to
terminate this Agreement as to the damaged Shopping Center as provided in
Section 14.1, (ii) the Purchaser elects to terminate this Agreement as to
the damaged Shopping Center but such election is ineffective because the
Seller which owns the damaged Shopping Center elects to repair or restore
such damage and completes such repair or restoration within the 30-day
period provided in Section 14.4.1, or (iii) there is damage to or
destruction of an "immaterial" part ("immaterial" is herein deemed to be
any damage or destruction which is not "material", as such term is
hereinafter defined) of the Shopping Center, the Purchaser shall close
title as provided in this Agreement and, at the Closing, the Seller which
owns the damaged Shopping Center shall, unless such Seller has repaired
or restored such damage or destruction in a manner consistent with the
structural condition of the Shopping Center as currently constructed prior
to the Closing, (x) pay over to the Purchaser the proceeds of any
insurance collected by such Seller less the amount of all costs incurred
by such Seller in connection with the repair or restoration of such damage
or destruction, (y) assign and transfer to the Purchaser all right, title
and interest of such Seller in and to any uncollected insurance proceeds
which such Seller may be entitled to receive from such damage or
destruction (including, without limitation, rent insurance), and (z) the
Purchase Price for the Shopping Center that is the subject of such
casualty shall be reduced by an amount equal to the sum of (1) the repair
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cost of any uninsured damages to such Shopping Center (but not any REAs)
caused by such casualty, plus (2) the amounts of any deductibles with
respect to insurance policies covering such casualty. A "material" part
of a Shopping Center shall be deemed to have been damaged or destroyed if
(a) the cost of repair or replacement shall be greater than 10% of the
portion of the Purchase Price allocated to such Shopping Center pursuant
to Section 2(d), or (b) tenants under Leases which represent more than 5%
of the basic rent for such Shopping Center may have a right to terminate
such Leases as a result of such casualty, or (c) any tenant of any
building constructed on real property subject to any of the reciprocal
easement agreements identified on Schedule 14 annexed hereto (the "REAs")
could terminate its lease as a result of such casualty, or the owner of
such building has no obligation to repair or restore such damage or
destruction prior to the Closing Date. The Sellers shall notify the
Purchaser of any casualty to the Shopping Centers that the Sellers report
to their casualty insurer. The provisions of this Section 13.1 shall
survive the Closing to the extent necessary to permit the Purchaser to
collect any insurance claim assigned to the Purchaser pursuant to this
Section 13.1.
13.2. Condemnation.
If, prior to the Closing Date, all or any "significant" portion (as
hereinafter defined) of any Shopping Center is taken by eminent domain or
condemnation (or is the subject of a pending taking which has not been
consummated), the Sellers shall notify the Purchaser of such fact. If the
Purchaser does not elect to terminate this Agreement as to the Shopping
Center subject to the taking as provided in Section 14.1, or if an
"insignificant" portion ("insignificant" is herein deemed to be any taking
which is not "significant", as such term is herein defined) of any
Shopping Center is taken by eminent domain or condemnation, at the Closing
the Seller which owns the Shopping Center which is the subject of the
taking shall assign and turnover, and the Purchaser shall be entitled to
receive and keep, all awards or other proceeds for such taking by eminent
domain or condemnation. A "significant" portion of a Shopping Center means
(i) a portion of the Buildings, (ii) a portion of the parking areas if the
taking thereof reduces the remaining available number of parking spaces
below the minimum number legally required, or the number required by any
Lease or any of the REAs, (iii) a driveway on the Land if such driveway
is the predominant means of ingress thereto or egress therefrom, or (iv)
a portion of any Shopping Center the loss of which could result in the
right of termination or an abatement of rent under any of the Leases or
the REAs. If any such condemnation occurs following the date hereof, the
Purchaser shall have the right to participate in the negotiation of any
condemnation award. The provisions of this Section 13.2 shall survive the
Closing to the extent necessary to permit the Purchaser to collect any
awards or other proceeds to which the Purchaser has a right pursuant to
this Section 13.2.
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13.3. New York Law.
With respect to any Shopping Centers located in the State of New York, the
provisions of Section 5-1311 of the New York General Obligations Law shall
not apply to the sale and purchase provided for in this Agreement and the
provisions of this Article 13 shall apply instead.
14. Remedies.
14.1. Sellers' Inability to Perform.
If the Closing fails to occur as to a Shopping Center by reason of the
Sellers' inability to perform their obligations under this Agreement or
by reason of failure of conditions to the Purchaser's obligations under
this Agreement being satisfied, then the Purchaser, as its sole remedy for
such inability of the Sellers, may either (i) waive such Sellers'
obligation or such failure of condition, whereupon title shall close as
provided in this Agreement, or (ii) terminate this Agreement by notice to
the Sellers, specifying the Sellers' obligations or conditions that have
not been satisfied and the Shopping Center(s), if any, to which such
obligations or conditions relate. In the event of such a Purchaser
termination, the Sellers shall be obligated to reimburse the Purchaser for
its reasonable out-of-pocket expenses in connection with its efforts to
acquire the Shopping Centers with respect to which this Agreement is
terminated from September 2, 1995, to the date of the failed Closing,
documented to the reasonable satisfaction of the Sellers, in an amount not
to exceed $100,000 in the aggregate. Except as set forth in this Section
14.1 and Section 14.5, the Purchaser hereby expressly waives, relinquishes
and releases any other right or remedy available to it at law, in equity
or otherwise by reason of the Sellers' inability to perform its
obligations hereunder or the failure of any such condition. The Sellers'
payment obligation under this Section 14.1 shall survive the termination
of this Agreement. The Sellers' payment obligation under this Section
14.1 shall be a joint and several obligation of Yield Plus, ▇▇▇▇ ▇▇▇▇▇▇
Realty Income Partnership II, L.P. and ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Partnership III, L.P.
14.2. Purchaser's Failure to Perform.
In the event of a material default hereunder (other than under Section 18)
by the Purchaser or if the Closing fails to occur by reason of the
Purchaser's failure or refusal to perform its obligations hereunder in any
material respect, then the Sellers may terminate this Agreement by notice
to the Purchaser. If the Sellers elect to terminate this Agreement, then
this Agreement shall be terminated and the Sellers may, as their sole and
exclusive remedy for such material default, or failure or refusal to
perform, retain the Fund as liquidated damages for all loss, damage and
expenses suffered by the Sellers, it being agreed that the Sellers'
damages are impossible to ascertain, and neither party shall have any
further rights, obligations or liabilities hereunder, except for the
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Surviving Obligations. Nothing contained herein shall limit or restrict
the Sellers' ability to pursue any rights or remedies it may have against
the Purchaser with respect to the Surviving Obligations. Except as set
forth in this Section 14.2 and Section 18.2, the Sellers hereby expressly
waive, relinquish and release any other right or remedy available to them
at law, in equity or otherwise by reason of the Purchaser's default
(material or otherwise) hereunder or the Purchaser's failure or refusal
to perform its obligations hereunder.
14.3. Sellers' Failure to Perform.
If the Closing fails to occur (a) by reason of the Sellers' failure or
refusal to perform and/or observe their obligations and covenants
hereunder, or (b) due to the fact that, as of the date of this Agreement,
any of the representations and warranties of the Seller set forth in
Section 6 hereof are untrue in any material respect, and the Purchaser
notifies the Sellers of such circumstances prior to December 11, 1995,
then the Purchaser, as its sole remedy hereunder, subject to Section 14.5,
may (i) terminate this Agreement by notice to the Sellers or (ii) seek
specific performance from the Sellers. If the Purchaser elects to
terminate this Agreement rather than seek specific performance then the
Purchaser shall, as its sole remedy, subject to Section 14.5, for such
failure or refusal to perform, be entitled to liquidated damages from the
Sellers, in an aggregate amount equal to $500,000 (in the event of any
occurrence described in clause (a) above) or $300,000 (in the event of any
occurrence described in clause (b) above), for all loss, damage and
expenses suffered by the Purchaser, it being agreed that the Purchaser's
damages are impossible to ascertain and neither party shall have any
further rights, obligations or liabilities hereunder, except for the
Surviving Obligations. As a condition precedent to the Purchaser
exercising any right it may have to bring an action for specific
performance as the result of the Sellers' failure or refusal to perform
their obligations hereunder, the Purchaser must commence such an action
within ninety (90) days after the originally scheduled or any extended
Closing Date. The Purchaser agrees that its failure to timely commence
such an action for specific performance within such ninety (90) day period
shall be deemed a waiver by it of its right to commence such an action.
The Sellers' payment obligation under this Section 14.3 shall survive the
termination of this Agreement. The Sellers' payment obligation under this
Section 14.3 shall be a joint and several obligation of Yield Plus, ▇▇▇▇
▇▇▇▇▇▇ Realty Income Partnership II, L.P. and ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Partnership III, L.P.
14.4. Election to Extend Closing Date.
14.4.1 Automatic Extensions.
If (a) on the Closing Date any condition in Section 8.1, Section 8.2 or
otherwise is not (i) satisfied or, (ii) in the case of a condition under
Section 8.1, waived by the Purchaser or, (iii) in the case of a condition
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under Section 8.2, waived by the Sellers, or (b) the Purchaser elects to
terminate this Agreement pursuant to Section 5.3 or Sections 14.1,
14.3(b), or 14.8 (each an "Extension Event") the Closing Date shall be
extended as to all Shopping Centers, without further action by the Sellers
or the Purchaser, for one period of thirty (30) days.
14.4.2. Extensions by Sellers.
In addition to the extension of the Closing Date provided for in Section
14.4.1 above, if such Extension Events relate only to the Westland
Crossing Shopping Center and/or the Wallkill Plaza Shopping Center, the
Sellers may further extend the Closing Date as to any or each of such two
Shopping Centers that is the subject of an Extension Event for one or more
periods of up to 60 days in the aggregate, by delivery of written notice
to the Purchaser before 5:00 P.M. New York time on the Closing Date (as
extended pursuant to Section 14.4.1, Section 14.4.4 or this Section
14.4.2) without extending the Closing Date for any other Shopping Center.
Except as expressly set forth in this Section 14.4.2, the Sellers'
election to extend the Closing Date pursuant to this Section 14.4.2 with
respect to one or more of such two specified Shopping Centers shall not
effect (i) the Closing Date with respect to any of the other Shopping
Centers, or (ii) subject to Section 14.1 and Section 14.3, the Purchaser's
or the Sellers' obligation to perform its obligations at the Closing with
respect to all of the other Shopping Centers. The terms Closing Date and
Closing shall mean, with respect to each Shopping Center, the Closing Date
as the same may be extended pursuant to Sections 14.4.1, 14.4.4, 14.8 and
this Section 14.4.2 and the Closing occurring on such date.
14.4.3. Cure Obligations of Sellers.
Upon the occurrence of an Extension Event, the Sellers shall use
reasonable good faith efforts to remedy the circumstances giving rise to
such Extension Event. Reasonable good faith efforts shall mean the
following actions with respect to the following events:
(a) In the event of the existence of Unacceptable Encumbrances,
the actions set forth in Section 5.2 hereof; and
(b) In the event that the Tenant Estoppel Certificates are
returned reflecting any adverse claims or exceptions, the Sellers shall
expend up to an aggregate amount equal to $75,000 on an individual
Shopping Center basis to remedy such circumstances prior to the Closing
Date. So long as the Sellers agree to indemnify the Purchaser with
respect to adverse claims or objections identified in Tenant Estoppel
Certificates (which the Sellers may elect to do or decline to do in their
sole discretion), such matters shall not constitute an inability or
failure to satisfy a closing condition, provided, that if the estimated
cost of remedying such matter exceeds $75,000 in any instance, the
Purchaser may, in its sole discretion, refuse to accept such indemnity and
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elect to terminate this Agreement in accordance with the terms hereof.
14.4.4. Extension by Purchaser.
The Purchaser may extend the Closing Date on one occasion for not more
than 2 business days, upon delivery of written notice to the Sellers on
or prior to the scheduled Closing Date.
14.5. Termination.
Subject to the provisions of Section 14.6 and Section 14.8, if the
Purchaser elects to terminate this Agreement, neither party shall have any
further rights, obligations or liabilities hereunder, except as otherwise
expressly provided in Sections 4.1, 12.1, 14.1, 14.3, 16 and 18 hereof
("Surviving Obligations"). Subject to the provisions of Section 14.2, if
this Agreement is terminated as to all the Shopping Centers with respect
to which the Closing has not previously occurred, the Purchaser shall be
entitled to a return of the Fund, provided, the Purchaser is not otherwise
in material default hereunder.
14.6. Termination with Respect to Multiple Shopping Centers.
Except to the limited extent permitted pursuant to Section 14.4.2 and
Section 14.8, this Agreement may not be terminated with respect to less
than all of the Shopping Centers without the express written consent of
the Sellers and the Purchaser.
14.7. Purchaser's Cure Rights.
With respect to any default by the Purchaser hereunder (other than by
reason of the failure to pay the Purchase Price at the Closing), such
default shall not give rise to the Sellers' ability to exercise their
rights under Section 14.2 hereof, and shall not be deemed a failure to
satisfy a condition precedent to the Sellers' obligations hereunder,
unless and until the Purchaser has received prior written notice of such
default from the Sellers and such default has continued uncured for five
(5) business days after Purchaser's receipt of such notice
14.8. Media Play.
If at the end of the Closing Date for the Westland Crossing Shopping
Center, as the same may be extended pursuant to Section 14.4.1, 14.4.2
and/or Section 14.4.4, the Seller of the Westland Crossing Shopping Center
has not executed a Lease with Media Play on substantially the terms set
forth in Exhibit O annexed hereto, the Purchaser may , in its sole
discretion either (a) waive the absence of such a Lease and proceed to
consummate the Closing, or (b) terminate this Agreement with respect
solely to the Westland Crossing Shopping Center as a consequence of the
Sellers' inability to obtain such a Lease, or (c) agree to extend the
Closing Date with respect to the Westland Crossing Shopping Center for an
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additional sixty (60) days. If, prior to the expiration of such 60 day
period, the Seller of the Westland Crossing Shopping Center presents to
the Purchaser a Lease with a tenant reasonably acceptable to the
Purchaser, with rental and other leasing terms and conditions
substantially equivalent to the terms and conditions set forth on Exhibit
O attached hereto, the Closing shall occur with respect to such Shopping
Center. If no such Lease is executed on or before such date, the
Purchaser may terminate this Agreement with respect solely to the Westland
Crossing Shopping Center. Notwithstanding the terms of Exhibit O attached
hereto, the Seller of the Westland Crossing Shopping Center shall use
reasonable efforts to negotiate (i) a date certain by which Media Play
shall occupy the space in the Westland Crossing Center described in
Exhibit O attached hereto, and (ii) a restriction on assignments by Media
Play or its assigns that would result in the occupancy of Media Play's
proposed leased space by more than two separate tenants; provided, that
the failure of such Seller to negotiate such provisions with Media Play
shall not constitute a default or an inability or failure to satisfy a
condition hereunder.
15. Indemnities.
15.1. Purchaser's Indemnities.
The Purchaser hereby agrees, upon the occurrence of the Closing, to
indemnify and defend the Sellers and the Sellers' Affiliates against, and
to hold the Sellers and the Sellers' Affiliates harmless from all claims,
demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) asserted against or incurred by the Sellers or any of the
Sellers' Affiliates in connection with or arising out of (i) acts or
omissions of the Purchaser or the Purchaser's Representatives, or other
matters or occurrences that take place after the Closing with respect to
the Shopping Centers and relate to the ownership, maintenance or operation
of the Shopping Centers, or (ii) any claims of the holders of the Existing
Mortgages relating to occurrences taking place on or after the Closing
Date. The Purchaser's obligations under this Section 15.1 shall survive
the Closing.
15.2. Sellers' Indemnities.
Each of the Sellers agrees, upon the occurrence of the Closing, to
indemnify and defend the Purchaser against, and to hold the Purchaser
harmless from all claims, demand, causes of action, losses, damages,
liabilities, costs and expenses (including, without limitation, reasonable
attorney's fees and disbursements) asserted against or incurred by the
Purchaser in connection with or arising out of (i) any personal injury or
property damage suffered by any third person at the Shopping Center owned
by such Seller prior to the Closing Date, or (ii) the Sellers' failure to
pay any of the amounts payable by the Sellers pursuant to the last
sentence of Section 11.6 hereof. The Sellers' obligations under this
Section 15.2 shall survive the Closing.
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16. Escrow.
The Escrow Agent shall hold the Downpayment and all interest accrued
thereon, if any (collectively, the "Fund") in escrow and shall dispose of
the Fund only in accordance with the provisions of this Section 16.
Simultaneously with their execution and delivery of this Agreement, the
Purchaser and the Sellers shall furnish the Escrow Agent with their true
Federal Taxpayer Identification Numbers so that the Escrow Agent may file
appropriate income tax information returns with respect to any interest
in the Fund or other income from the Approved Investment. The party
ultimately entitled to any accrued interest in the Fund shall be the party
responsible for the payment of any tax due thereon.
16.1 Demand for Fund.
The Escrow Agent shall deliver the Fund to the Sellers or the Purchaser,
as the case may be, as follows:
(a) to the Sellers, upon completion of the Closing with respect to
the last Shopping Center remaining to be disposed of hereunder, if such
Shopping Center is disposed of by the occurrence of the Closing with
respect to such Shopping Center rather than by the termination of this
Agreement with respect to such Shopping Center; or
(b) to the Sellers, after receipt of the Sellers' demand in which
the Sellers certifies either that (i) the Purchaser has defaulted under
this Agreement, or (ii) this Agreement has been otherwise terminated or
canceled with respect to all of the Shopping Centers (other than those
with respect to which the Closing has previously occurred), and the
Sellers are thereby entitled to receive the Fund; but the Escrow Agent
shall not honor the Sellers' demand until more than ten (10) days after
the Escrow Agent has given a copy of the Sellers' demand to the Purchaser
in accordance with Section 16.3, nor thereafter if the Escrow Agent
receives a Notice of Objection from the Purchaser within such ten (10) day
period; or
(c) to the Purchaser, after receipt of the Purchaser's demand in
which the Purchaser certifies either that (i) any Seller has defaulted
under this Agreement, or (ii) this Agreement has been otherwise terminated
or canceled with respect to all of the Shopping Centers (other than those
with respect to which the Closing has previously occurred), and the
Purchaser is thereby entitled to receive the Fund; but the Escrow Agent
shall not honor the Purchaser's demand until more than ten (10) days after
the Escrow Agent has given a copy of the Purchaser's demand to the Sellers
in accordance with Section 16.3, nor thereafter if the Escrow Agent
receives a Notice of Objection from the Sellers within such ten (10) day
period.
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Upon delivery of the Fund, the Escrow Agent shall be relieved of all
liability hereunder and with respect to the Fund. The Escrow Agent
shall deliver the Fund, at the election of the party entitled to
receive the same, by (i) a good, unendorsed certified check of the
Escrow Agent payable to the order of such party, (ii) an unendorsed
official bank or cashier's check payable to the order of such party,
or (iii) a bank wire transfer of immediately available funds to an
account designated by such party.
16.2. Status of Fund Upon Termination or Extension.
No portion of the Downpayment or any other portion of the Fund shall be
delivered to the Sellers or the Purchaser under this Agreement until, with
respect to each of the Shopping Centers, either (i) the Closing has
occurred, or (ii) this Agreement has terminated. If the Closing occurs
with respect to the last Shopping Centers remaining to be disposed of
under this Agreement, the Fund shall be delivered to the Sellers pursuant
to Section 16.1(a) and the Downpayment shall be applied to the Purchase
Price for such Shopping Centers. If this Agreement is terminated with
respect to the last Shopping Centers remaining to be disposed of under
this Agreement, the Fund shall be disposed of pursuant to Section 16.1(b)
or Section 16.1(c), as the case may be.
16.3. Notice of Objection.
Upon receipt of a written demand from the Sellers or the Purchaser under
Section 16.1(b) or (c), the 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 Fund to
the party making such demand by giving a notice of objection (a "Notice
of Objection") to the 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, the Escrow Agent may elect either (i) to continue to hold the
Fund until the Escrow Agent receives a written agreement of the Purchaser
and the Sellers directing the disbursement of the Fund, in which event the
Escrow Agent shall disburse the Fund in accordance with such agreement;
and/or (ii) to take any and all actions as the Escrow Agent deems
necessary or desirable, in its sole and absolute discretion, to discharge
and terminate its duties under this Agreement, including, without
limitation, depositing the Fund into any court of competent jurisdiction
and bringing any action of interpleader or any other proceeding, provided,
that the Escrow Agent shall not distribute the Fund to the Purchaser or
the Sellers following receipt of a Notice of Objection without further
direction from both the Purchaser and the Sellers, or from a court of
competent jurisdiction; and/or (iii) in the event of any litigation
between the Sellers and the Purchaser, to deposit the Fund with the clerk
of the court in which such litigation is pending.
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16.4. Actions after Notice of Objection.
If the Escrow Agent is uncertain for any reason whatsoever as to its
duties or rights hereunder (and whether or not the Escrow Agent has
received any written demand under Section 16.1(b) or (c), or Notice of
Objection under Section 16.3), notwithstanding anything to the contrary
herein, the Escrow Agent may hold and apply the Fund pursuant to Section
16.3 and may decline to take any other action whatsoever. In the event
the Fund is deposited in a court by the Escrow Agent pursuant to Section
16.3(ii) or (iii), the 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 Fund, the Purchaser and the
Sellers shall pay the attorney's fees and costs incurred by the Escrow
Agent (which said parties shall share equally, but for which said parties
shall be jointly and severally liable) for any litigation in which the
Escrow Agent is named as, or becomes, a party.
16.5. Investment of Fund.
Notwithstanding anything to the contrary in this Agreement, within one (1)
business day after the date of this Agreement, the Escrow Agent shall
place the Downpayment in an Approved Investment. The interest, if any,
which accrues on such Approved Investment shall be deemed part of the
Fund; and the Escrow Agent shall dispose of such interest as and with the
Fund pursuant to this Agreement. The Escrow Agent may not commingle the
Fund with any other funds held by Escrow Agent. The Escrow Agent may
convert the Fund from the Approved Investment into cash or a non-interest-
bearing demand account at an Approved Institution as follows:
(a) at any time within seven (7) days prior to the Closing Date;
or
(b) if the Closing Date is accelerated or extended, at any time
within seven (7) days prior to the accelerated or extended Closing Date;
provided, however, that the Sellers and the Purchaser shall give the
Escrow Agent timely notice of any such acceleration or extension and that
the Escrow Agent may hold the Fund in cash or a non-interest-bearing
deposit account if the Sellers and the Purchaser do not give the Escrow
Agent timely notice of any such adjournment.
As used herein, the term "Approved Investment" means (i) any interest-
bearing demand account or money market fund in State Street Bank and Trust
Company or in any other institution otherwise approved by both the Sellers
and the Purchaser (collectively, an "Approved Institution"), or (ii) any
other investment approved by both the Sellers and the 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 the Escrow Agent, which shall have
no liability whatsoever therefor. Discounts earned shall be deemed
interest for the purpose hereof.
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16.6. Duties of Escrow Agent.
The Escrow Agent shall have no duties or responsibilities except those set
forth herein, which the parties hereto agree are ministerial in nature.
The Sellers and the Purchaser acknowledge that the Escrow Agent is serving
without compensation, solely as an accommodation to the parties hereto,
and except for the Escrow Agent's own willful default, misconduct or gross
negligence, the Escrow Agent shall have no liability of any kind
whatsoever arising out of or in connection with its activity as Escrow
Agent. The Sellers and the Purchaser jointly and severally agree to and
do hereby indemnify and hold harmless the Escrow Agent from all loss,
cost, claim, damage, liability, and expense (including, without
limitation, reasonable attorney's fees and disbursements) which may be
incurred by reason of its acting as the Escrow Agent provided the same is
not the result of the Escrow Agent's willful default, misconduct or gross
negligence. The Escrow Agent may charge against the Fund any amounts owed
to it under the foregoing indemnity or may withhold the delivery of the
Fund as security for any unliquidated claim, or both. Any amendment of
this Agreement which could alter or otherwise affect the Escrow Agent's
obligations hereunder will not be effective against or binding upon the
Escrow Agent without the Escrow Agent's prior consent, which consent may
be withheld in the Escrow Agent's sole and absolute discretion.
The provisions of this Section 16 shall survive the termination of this
Agreement and the Closing.
17. Notices.
All notices, elections, consents, approvals, demands, objections, requests
or other communications which the Sellers, the 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 sent by hand or by a nationally
recognized overnight courier (except where notice by telecopy is expressly
permitted hereunder) (for next business day delivery), addressed as
follows:
If to the Sellers:
▇▇▇▇ ▇▇▇▇▇▇ Realty Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser:
New Plan Realty Trust
1120 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Altheimer & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent:
Lawyers Title Insurance Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Sellers, the Purchaser or Escrow Agent may designate another addressee
or change its address for notices and other communications hereunder by
a notice given to the other parties in the manner provided in this Section
17. Any party's attorney may give a notice in accordance with this
Section 17 on behalf of such party. A notice or other communication sent
in compliance with the provisions of this Section 17 shall be deemed given
and received on (i) the date of receipt of hand delivery, or (ii) the date
it is delivered to the other party if sent by a nationally recognized
overnight courier. Notice to the address provided above for any Seller
shall constitute notice to all Sellers.
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18. Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing, all Property Information
shall be kept strictly confidential and shall not, without the prior
consent of the Sellers, be disclosed by the Purchaser or the Purchaser's
Representatives, in any manner whatsoever, in whole or in part, and will
not be used by the Purchaser or the Purchaser's Representatives, directly
or indirectly, for any purpose other than evaluating the Shopping Centers.
Moreover, the Purchaser agrees that, prior to the Closing, the Property
Information will be transmitted only to the Purchaser's Representatives
who need to know the Property Information for the purpose of evaluating
the Shopping Centers, and who are informed by the Purchaser of the
confidential nature of the Property Information. Prior to the delivery
or disclosure of any Property Information to the Purchaser's
Representatives at any time prior to the Closing, the Purchaser agrees to
notify the Sellers as to their identity. The provisions of this Section
18 shall in no event apply to (i) Property Information which is a matter
of public record, (ii) Property Information that is included by the
Purchaser in any filing made with the Securities Exchange Commission or
the New York Stock Exchange, or (iii) Property Information that is
received by the Purchaser from a source other than the Sellers or Sellers'
Affiliates. The provisions of this Section 18 shall not prevent the
Purchaser or Purchaser's Representatives from complying with Laws,
including, without limitation, governmental regulatory, disclosure, tax
and reporting requirements, and legal process.
18.1. Press Releases.
The Purchaser and Sellers, for the benefit of each other, hereby agree
that between the date hereof and the Closing Date, they will not release
or cause or permit to be released any press notices, publicity (oral or
written) or advertising promotion relating to, or otherwise announce or
disclose or cause or permit to be announced or disclosed, in any manner
whatsoever, the terms, conditions or substance of this Agreement or the
transactions contemplated herein, other than in the form of Exhibit N
annexed hereto and made a part hereof, without first obtaining the written
consent of the other party hereto. It is understood that the foregoing
shall not preclude either party from discussing the substance or any
relevant details of the transactions contemplated in this Agreement with
any of its attorneys, accountants, professional consultants, investor
limited partners or potential lenders, as the case may be, or prevent
either party hereto from complying with Laws, including, without
limitation, governmental regulatory, disclosure, securities, tax and
reporting requirements.
18.2. Return of Property Information.
In the event that the Closing does not occur with respect to any Shopping
Center, the Purchaser and the Purchaser's Representatives shall promptly
deliver to the Sellers all originals and copies of the Property
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Information pertaining to such Shopping Center referred to in clause (i)
of Section 18.3 in the possession of the Purchaser and the Purchaser's
Representatives. Notwithstanding anything contained herein to the
contrary, in no event shall the Purchaser be entitled to receive a return
of the Downpayment or the accrued interest thereon, if any, if and when
otherwise entitled thereto pursuant to this Agreement until such time as
the Purchaser and the Purchaser's Representatives shall have performed the
obligations contained in the preceding sentence. Upon the Purchaser's
delivery to the Sellers of substantially all of the materials described
in the first sentence of this Section 18.2, the Purchaser shall be
entitled to receive a return of a portion of the Downpayment equal to
$900,000, together with accrued interest upon such portion of the
Downpayment. After their receipt of such delivery, the Sellers shall
review such materials and shall notify the Purchasers within fifteen (15)
days following such receipt if any of such materials have not yet been
delivered to the Sellers. The Purchaser shall be entitled to receive a
return of the remaining amount of the Downpayment, together with accrued
interest thereon, if (i) the Sellers do not deliver the notice described
in the immediately preceding sentence within such fifteen day period; or
(ii) the Purchaser delivers to the Sellers the materials specified in such
notice, or (iii) the Purchaser delivers to the Sellers a certificate that
any such materials not delivered by the Purchasers are lost, and
committing the Purchaser to deliver such materials to the Sellers if they
are subsequently discovered.
18.3. Property Information Defined.
As used in this Agreement, the term "Property Information" shall mean (i)
all information and documents in any way relating to the Shopping Centers,
the operation thereof or the sale thereof (including, without limitation,
Leases, Contracts and Licenses) furnished to, or otherwise made available
for review by, the Purchaser or its directors, officers, employees,
affiliates, partners, brokers, agents or other representatives, including,
without limitation, attorneys, accountants, contractors, consultants,
engineers and financial advisors (collectively, the "Purchaser's
Representatives"), by the Sellers or any of the Sellers' Affiliates, or
their agents or representatives, including, without limitation, their
contractors, engineers, attorneys, accountants, consultants, brokers or
advisors, and (ii) all analyses, compilations, data, studies, reports or
other information or documents prepared or obtained by the Purchaser or
the Purchaser's Representatives containing or based, in whole or in part,
on the information or documents described in the preceding clause (i), or
the Investigations, or otherwise reflecting their review or investigation
of the Shopping Centers.
18.4 Remedies.
The Sellers' sole remedy for enforcement or violation of the provisions
of this Section 18 and Section 6.3 shall be to seek equitable relief,
including, without limitation, injunctive relief or specific performance,
against the Purchaser or the Purchaser's Representatives.
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The provisions of this Section 18 shall survive the termination of this
Agreement and the Closing.
19. Access to Records.
Subsequent to the Closing Date, the Sellers, the Sellers' Affiliates and
their employees, agents and representatives shall be entitled to access
during business hours to all documents, books and records given to the
Purchaser by the Sellers at the Closing for tax and audit purposes,
regulatory compliance, and cooperation with governmental investigations
upon reasonable prior notice to the Purchaser, and shall have the right,
at their sole cost and expense, to make copies of such documents, books
and records. Without limiting the foregoing, Purchaser shall have the
right after the Closing to audit the books and records of Sellers in
respect of the Shopping Centers for those last two entire fiscal years of
the Sellers ending prior to the Closing Date and the portion of the
Sellers' fiscal year in which the Closing occurs to and including the
Closing Date.
20. Assignments.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and to their respective heirs, executors, administrators,
successors and permitted assigns. This Agreement may only be assigned by
the Purchaser to an entity or entities controlled by or under common
control with the Purchaser, provided, that the Purchaser shall remain
liable for the obligations and liabilities of the Purchaser hereunder.
Any other assignment or attempted assignment by the Purchaser shall
constitute a default by the Purchaser hereunder and shall be null and void
21. Entire Agreement, Amendments.
All prior statements, understandings, representations and agreements
between the parties, oral or written, are superseded by and merged in this
Agreement, which alone fully and completely expresses the agreement
between them in connection with this transaction and which is entered into
after full investigation, neither party relying upon any statement,
understanding, representation or agreement made by the other not embodied
in this Agreement. This Agreement shall be given a fair and reasonable
construction in accordance with the intentions of the parties hereto, and
without regard to or aid of canons requiring construction against the
Sellers or the party drafting this Agreement. This Agreement shall not
be altered, amended, changed, waived, terminated or otherwise modified
in any respect or particular, and no consent or approval required pursuant
to this Agreement shall be effective, unless the same shall be in writing
and signed by or on behalf of the party to be charged.
This Agreement supercedes in all respects that certain letter agreement
dated as of October 6, 1995, by ▇▇▇▇ ▇▇▇▇▇▇ Realty, Inc., on behalf of the
Sellers, and the Purchaser.
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22. Merger.
Except as otherwise expressly provided herein or in the Conveyance
Documents, (i) the Purchaser's acceptance of the Deed shall be deemed a
discharge of all of the obligations of the Sellers hereunder, and (ii) all
of the Sellers' representations, warranties, covenants and agreements
herein shall merge in the documents and agreements executed at the Closing
and shall not survive the Closing.
23. Limited Recourse.
Except for the Sellers, their general partners or Yield Plus, the
Purchaser agrees that it does not have and will not have any claims or
causes of action against any disclosed or undisclosed officer, director,
employee, trustee, shareholder, partner, principal, parent, subsidiary or
other affiliate of the Sellers, including, without limitation, ▇▇▇▇ ▇▇▇▇▇▇
Realty Inc. and parents and affiliates of ▇▇▇▇ ▇▇▇▇▇▇ Realty, Inc.
(collectively, the "Sellers' Affiliates"), arising out of or in connection
with this Agreement or the transactions contemplated hereby. Subject to
Section 28, the Purchaser agrees to look solely to each Seller and such
Seller's assets for the satisfaction of such Seller's liability or
obligation arising under this Agreement or the transactions contemplated
hereby, or for the performance of any of the covenants, warranties or
other agreements of such Seller contained herein, and further agrees not
to ▇▇▇ or otherwise seek to enforce any personal obligation against any
of the Sellers' Affiliates other than the Sellers, their general partners,
or Yield Plus with respect to any matters arising out of or in connection
with this Agreement or the transactions contemplated hereby.
24. Time of the Essence.
The Sellers and the Purchaser agree that, wherever this Agreement provides
that any party must send or give any notice, make an election or take some
other action within a specific time period in order to exercise a right
or remedy it may have hereunder, time shall be of the essence with respect
to the taking of such action (subject to extension rights set forth in
Section 14.4 and Section 14.8), and such party's failure to take such
action within the applicable time period shall be deemed to be an
irrevocable waiver by such party of such right or remedy.
25. Waivers.
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
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other right or 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.
26. Miscellaneous.
Neither this Agreement nor any memorandum thereof shall be recorded and
any attempted recordation hereof shall be void and shall constitute a
default. This Agreement may be executed in one or more counterparts, each
of which so executed and delivered shall be deemed an original, but all
of which taken together shall constitute but one and the same instrument.
Each of the Exhibits and Schedules referred to herein and attached hereto
is incorporated herein by this reference. The caption headings in this
Agreement are for convenience only and are not intended to be a part of
this Agreement and shall not be construed to modify, explain or alter any
of the terms, covenants or conditions herein contained. If any provision
of this Agreement shall be unenforceable or invalid, the same shall not
affect the remaining provisions of this Agreement and to this end the
provisions of this Agreement are intended to be and shall be severable.
This Agreement shall be interpreted and enforced in accordance with the
laws of the state in which the Shopping Centers are located without
reference to principles of conflicts of laws.
Sellers, Yield Plus and Purchaser each hereby submit itself to the
jurisdiction of the State of New York in any action or proceeding arising
out of or under this Agreement. By execution and delivery of this
Agreement, Sellers, Yield Plus and Purchaser accept, generally and
unconditionally, the nonexclusive jurisdiction of the aforesaid courts and
irrevocably agrees to be bound by any final judgment rendered thereby in
connection with this Agreement from which no appeal has been taken or is
available. Sellers, Yield Plus and Purchaser each hereby irrevocably
waive any objection to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have to the bringing
of any such action or proceeding in any such jurisdiction. Nothing herein
shall limit the right of either Sellers, Yield Plus or Purchaser to bring
any action, suit or proceeding against the other in the courts of such
jurisdiction. Sellers, Yield Plus and Purchaser each acknowledge that
final judgment against it in any action, suit or proceeding referred to
in this Section 26 shall be conclusive and may be enforced in any other
jurisdiction, by suit on the judgment, a certified or exemplified copy of
which shall be conclusive evidence of the fact and of the amount of any
such judgment. Purchaser hereby irrevocably appoints, authorizes,
empowers and designates the president of the Purchaser, as its lawful
agent upon whom service of any legal process may be made in the State of
New York, in a like manner and with like effect as if the same were served
personally upon Purchaser within the jurisdiction of the State of New
York. Each of the Sellers and Yield Plus hereby irrevocably appoints,
authorizes, empowers and designates ▇▇▇▇ ▇▇▇▇▇▇ Realty, Inc., as its
lawful agent upon whom service of any legal process may be made in the
-54-
State of New York, in a like manner and with like effect as if the same
were served personally upon Sellers or Yield Plus within the jurisdiction
of the State of New York.
All the parties hereto and their attorneys have had full opportunity to
review and participate in the drafting of the final form of this
Agreement. Accordingly, this Agreement shall be construed without regard
to any presumption or other rule of construction against the party causing
the Agreement to be drafted. As used in this Agreement, the masculine
shall include the feminine and neuter, the singular shall include the
plural and the plural shall include the singular, as the context may
require.
27. Limitations on Purchaser Principals' Liability.
This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed
and delivered on behalf of Purchaser by the trustees or officers thereof
in their representative capacity under the Declaration of Trust of New
Plan Realty Trust dated as of July 31, 1972 as amended, and not
individually, and bind only the trust estate of Purchaser, and no trustee,
officer, employee, agent or shareholder of Purchaser shall be bound or
held to any personal liability or responsibility in connection with the
agreements, obligations and undertakings of Purchaser thereunder, and any
person or entity dealing with Purchaser in connection therewith shall look
solely to the trust estate for the payment of any claim or for the
performance of any agreement, obligation or undertaking thereunder. Each
of the Sellers acknowledges and agrees that each agreement and other
document executed by Purchaser in accordance with or in respect of this
transaction shall be deemed and treated to include in all respects and for
all purposes the foregoing exculpatory provision.
28. Liability of Yield Plus.
Yield Plus hereby covenants and agrees that it shall remain liable to the
same extent as any of the Yield Plus Sellers for any and all obligations
of the Yield Plus Sellers hereunder and under the Conveyance Documents
that may be satisfied by the payment of money.
29. Notice to or Knowledge of Sellers.
To the extent that any provision of this Agreement or the Seller Documents
relates to the knowledge of any Seller or receipt of knowledge by any
Seller, such provision is intended to relate solely to and shall be deemed
to relate solely to notices received and knowledge obtained by the Sellers
from and after the date upon which an affiliate of ▇▇▇▇ ▇▇▇▇▇▇ Realty,
Inc. obtained either title to the relevant Shopping Center or the general
partnership interest in the Seller with respect to such Shopping Center.
Knowledge of Sellers shall include, without limitation, the actual
knowledge of ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇. ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
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30. Seller's Representatives.
The Sellers hereby designate ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr. as their
representative (the "Representative") to receive notices on their behalf
as contemplated by Section 17 of this Agreement, to bind the Sellers with
respect to any agreements between any such Seller and the Purchaser, to
approve amendments to this Agreement and to render decisions and furnish
information as may be required of the Sellers pursuant to this Agreement
and the Purchaser shall have no obligation to inquire into the authority
of the Representative with respect to any actions taken by the
Representative with respect to this Agreement on behalf of the Sellers.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
SELLERS: ▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME
PARTNERSHIP II, L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Properties II, Inc., its general
partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
MIDWAY CROSSING LIMITED
PARTNERSHIP
By: DW Community Centers
Limited Partnership, a general
partner
By: DW Maplewood, Inc.,
its general partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman
By:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
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▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME
PARTNERSHIP III, L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Properties III, Inc., its general
partner
By:/s/▇▇▇▇▇▇▇ B
Title:Chairman
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
GENESEE CROSSING LIMITED
PARTNERSHIP
By: DW Community Centers
Limited Partnership, a general
partner
By: DW Maplewood, Inc.,
its general partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman
By:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
-57-
FARMINGTON/9 MILE ASSOCIATES,
A MICHIGAN LIMITED
PARTNERSHIP
By: DW Community Centers
Limited Partnership, a
general partner
By: DW Maplewood, Inc.,
its general partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman
By:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
HAMPTON CROSSING ASSOCIATES
By: ▇.▇. ▇▇▇▇▇▇▇, Inc.,
a general partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Chairman
By:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
ROCHESTER HILLS LIMITED
PARTNERSHIP
By: Rochester Hills, Inc.
its General Partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
By:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
PURCHASER: NEW PLAN REALTY TRUST
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:General Counsel &
Senior VP
-58-
ESCROW AGENT: LAWYERS TITLE INSURANCE
CORPORATION
By:▇▇▇▇▇▇ ▇▇▇▇▇
Title: Regional Director
▇▇▇▇ ▇▇▇▇▇▇ Realty Yield Plus, Limited Partnership, executes this
Agreement solely for the limited purposes set forth in Section 6.1 and
Section 28 hereof.
▇▇▇▇ ▇▇▇▇▇▇ REALTY
YIELD PLUS, L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Yield Plus,
Inc., managing general partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
-1-
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this
"First Amendment") dated as of the 1st day of December, 1995,
by and between ▇▇▇▇ ▇▇▇▇▇▇ Realty Income Partnership II, L.P.,
a Delaware limited partnership, Midway Crossing Limited
Partnership, a Michigan limited partnership, ▇▇▇▇ ▇▇▇▇▇▇
Realty Income Partnership III, L.P., a Delaware limited
partnership, Genesee Crossing Limited Partnership, a Michigan
limited partnership, Farmington/9 Mile Associates, a Michigan
Limited Partnership, a Michigan limited partnership, Hampton
Crossing Associates, a Michigan general partnership and
Rochester Hills Limited Partnership, a Delaware limited
partnership, each having offices c/o ▇▇▇▇ ▇▇▇▇▇▇ Realty, Inc.,
Two World Trade Center, 64th Floor, New York, New York 10048
(collectively, the "Sellers" and, individually, a "Seller"),
New Plan Realty Trust, a Massachusetts business trust, having
an office at 1120 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Purchaser"), ▇▇▇▇ ▇▇▇▇▇▇ Realty Yield
Plus, L.P., a Delaware limited partnership ("Yield Plus") and
Lawyers Title Insurance Corporation, with an address at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as escrow agent
(in such capacity, the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain
Purchase and Sale Agreement dated October 19, 1995 (as amended
and in effect as of the date hereof, the "Agreement")
regarding nine shopping centers located in the states of
Michigan, New York and Ohio; and
WHEREAS, the parties hereto wish to amend the Agreement
in certain respects as hereinbelow set forth.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements hereinafter set forth and for other good and
valuable consideration, the receipt of which is hereby
acknowledged by the parties hereto, and intending to be
legally bound hereby, the parties hereby agree as follows (any
capitalized term used below without definition shall have the
meaning attributed thereto in the Agreement and any Section
referenced below shall mean the Section in the Agreement):
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1. Hall Road Crossing, Farmington Hills, Michigan. The
legal description of the land of Hall Road Crossing,
Farmington Hills, Michigan described in Schedule 1 of the
Agreement is hereby deleted in its entirety and the legal
description described on Schedule A attached hereto and made
a part hereof substituted in its entirety therefor.
2. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇. The legal description of the land of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ described in
Schedule 1 of the Agreement is hereby amended by adding
thereto the legal description described on Schedule B attached
hereto and made a part hereof.
3. Due Diligence Period; Delivery of Surveys, Title
Insurance. Notwithstanding anything set forth in Section 4 of
the Agreement to the contrary, the parties hereto hereby agree
to extend the Due Diligence Period until December 6, 1995 upon
the following terms and conditions:
(a) Prior to 12:00 noon New York time on
December 6, 1995, the Purchaser shall deliver to the Sellers
a list (the "Objection List") of any objections that the
Purchaser may have regarding due diligence matters relative to
the Shopping Centers. The Purchaser shall be deemed to have
waived the right to object to any due diligence matter
examined by the Purchaser during the Due Diligence Period and
not identified in the Objection List.
(b) Prior to 3:00 P.M. New York time on December 6,
1995, the Sellers shall deliver to the Purchaser a response to
the Objection List (the "Sellers' Response"), setting forth
those matters recited in the Objection List that the Sellers
shall require the Purchaser to accept without modification or
cure at the Closing.
(c) Prior to 5:00 P.M. New York time on December 6,
1995, the Purchaser shall either (i) deliver a Purchaser's
Termination Notice to the Sellers, in which event the
provisions of the Agreement with respect to delivery of a
Purchaser's Termination Notice shall apply, or (ii) take no
action, in which event the Purchaser shall be deemed to have
waived any objection to any matters identified in the Sellers'
Response.
-3-
(d) The deadline for the Sellers' delivery to the
Purchaser of a Survey for the Hampton Village Centre Shopping
Center is hereby extended to December 4, 1995. The deadline
for the Sellers' delivery to the Purchaser of a Title
Commitment for the Hampton Village Centre Shopping Center is
hereby extended to December 5, 1995.
(e) The notices to be delivered pursuant to
subparagraphs (a) and (b) above may be delivered via
telecopier (at the telecopier numbers set forth in the
Agreement). The notice described in subparagraph (c) above
may be delivered by hand at the Sellers' address set forth in
the Agreement. Such notice described in subparagraph (c)
above shall be effective upon receipt of the addressee,
without regard to copy parties.
4. Genesee Crossing. The parties hereby agree that the
Genesee Crossing Shopping Center shall not be conveyed
pursuant to the terms of the Agreement. Accordingly, the
parties hereto hereby agree to amend the Agreement as follows:
(a) any references to land, improvements, leases or
other similar items set forth in the Agreement or any schedule
thereto that relate to the Genesee Crossing Shopping Center
are hereby deleted in their entirety;
(b) the Purchase Price is hereby reduced by an
amount equal to $8,700,000 (from $126,000,000 to
$117,300,000), and such reduction shall be allocated as
appropriate between the portion of the Purchase Price to be
paid in cash as described in Section 2(c) of the Agreement,
and the portion of the Purchase Price payable by acceptance of
the Existing Mortgages, as described in Section 2(b) of the
Agreement, and all references to a portion of the Purchase
Price attributable to the Genesee Crossing Shopping Center are
deleted from the Agreement; and
(c) the Agreement is deemed void ab initio solely
as it relates to the purchase and sale of the Genesee Crossing
Shopping Center, and all representations, warranties,
conditions and covenants are of no further force or effect as
regards the Genesee Crossing Shopping Center.
-4-
5. Further Reduction of Purchase Price.
(a) Subject to subparagraph (b) below, and in
addition to the reduction of the Purchase Price described in
Paragraph 4(b) above, the Purchase Price, and that portion of
the Purchase Price attributable to the Hampton Village Centre
Shopping Center, is hereby reduced by an amount equal to
$500,000 (the "Hampton Reduction").
(b) In the event that, in connection with the
Sellers' obtaining the consent of the holder of the Existing
Mortgage encumbering the Hampton Village Centre Shopping
Center as contemplated by Section 8.2(iv) of the Agreement,
the Sellers of the Hampton Village Shopping Center prepays
some or all of the principal amount of the obligations secured
by the Existing Mortgage encumbering such Shopping Center, the
Hampton Reduction shall be reduced by an amount equal to the
product of (i) $72,000, multiplied by (ii) the amount of such
prepayment divided by $1,000,000, provided, that the Hampton
Reduction shall in no event be deemed less than zero.
Prepayment of amounts that would in any event be due and
payable prior to the Closing Date in the absence of any
agreement entered into by the Sellers in order to obtain the
foregoing consent shall not constitute a prepayment as
described above.
(c) The Sellers agree that they shall not, in
connection with any prepayment contemplated by subparagraph
(b) above, effect (or enter into any agreement that would
effect) any changes in the Existing Mortgages adverse to the
borrower/maker/mortgagor. The Sellers also agree that any and
all costs, expenses, fees and charges (including, without
limitation, prepayment fees, attorney fees, title insurance
and survey charges, release fees, recording fees, and
administrative charges) arising out of or in connection with
any prepayment contemplated by subparagraph (b) above shall be
the obligation of the Sellers of the Hampton Village Centre
Shopping Center. Other than the adjustment of the Hampton
Reduction described in subparagraph (b) above (and the
transfer of an appropriate portion of the Purchase Price to
cash payment rather than transfer of the Shopping Centers
subject to the Existing Mortgages) the Sellers shall not be
entitled to any further benefit or consideration from the
-5-
Purchaser as a consequence of any such prepayment. The
occurrence or absence of any such prepayment shall not modify,
waive or alter any rights to extend the Closing Date set forth
in the Agreement.
6. Bradlee's Lease.
(a) Notwithstanding the provisions of Section 2(d)
of the Agreement, in the event that on or before the Closing
Date for the Wallkill Plaza Shopping Center the Bradlee's
Lease has been rejected or deemed rejected pursuant to Section
365 of the Bankruptcy Code, then (x) the Purchaser shall
deliver the Bradlee's Note to the Seller of the Wallkill Plaza
Shopping Center, subject to the provisions set forth in
subparagraphs (i), (ii) and (iii), as if such rejection had
not occurred prior to such Closing Date, and (y) the
provisions of the first sentence of Section 2(d)(i) of the
Agreement shall not apply but the remaining provisions of
Section 2(d) of the Agreement shall apply, as modified by this
First Amendment, as if the Bradlee's Lease was first rejected
or deemed rejected immediately after the Closing Date.
Furthermore, in the event that the Bradlee's Lease is rejected
or deemed rejected pursuant to Section 365 of the Bankruptcy
Code after the Closing Date of the Wallkill Plaza Shopping
Center, then the following provisions shall apply:
(i) The Purchaser shall promptly notify The
Stop & Shop Companies, Inc. ("S&S") of such rejection or
deemed rejection and demand that S&S honor the tenant
obligations under the Bradlee's Lease. If S&S does not
immediately commence payment of all of the rental and other
payment obligations under the Bradlee's Lease or if S&S
commences immediate payment of such rental and other payment
obligations and thereafter defaults in or otherwise fails to
make any rental or other payment obligation due under the
Bradlees Lease and such default or failure continues for a
period of sixty (60) days, then the entire amount of the
Bradlee's Note shall be forgiven and the $1,200,000
conditional portion of the Purchase Price shall not be payable
(in which event the Bradlee's Note shall be canceled and
returned to Purchaser). In such event, however, Purchaser
agrees that it shall commence litigation against S&S (the "S&S
Litigation") with respect to the rental and other payment
obligations under the Bradlee's Lease in a timely manner and
-6-
thereafter pursue the S&S Litigation as Purchaser deems
reasonably appropriate (but without any obligation to appeal),
provided, that the Purchaser shall not voluntarily dismiss, or
settle any such litigation without the consent of the Seller
of the Wallkill Plaza Shopping Center, which consent shall not
be unreasonably withheld or delayed. Any monetary judgment
recovered in such litigation, after reimbursement to the
Purchaser of all costs, expenses and fees incurred by the
Purchaser in connection with such litigation, shall upon
receipt be split 66-2/3% to the Seller of the Wallkill Plaza
Shopping Center and 33-1/3% to the Purchaser.
(ii) If S&S makes all rental and other payments
due under the Bradlee's Lease for the period of time from
rejection of the Bradlee's Lease until the fifth anniversary
of the Closing Date for the Wallkill Plaza Shopping Center,
then the Purchaser shall pay to the Seller of the Wallkill
Plaza Shopping Center an amount equal to one hundred percent
(100%) of the face amount of the Bradlee's Note, together with
interest on such face amount, and upon receipt of such payment
the Bradlee's Note shall be canceled and returned to
Purchaser.
(iii) Notwithstanding the foregoing, in the
event that Bradlee's rejects or is ▇▇▇▇▇▇.▇▇ have rejected the
Bradlee's Lease as described above.and any action or
proceeding is commenced or brought under the Bankruptcy Code
with respect to S&S prior to the fifth anniversary of the
Closing Date for the Wallkill Plaza Shopping Center, whether
before or after such rejection by Bradlee's, then the entire
amount of the Bradlee's Note shall be forgiven and the
$1,200,000 conditional portion of the Purchase Price shall not
be payable. In such event the Bradlee's Note shall be
canceled and returned to Purchaser. In addition, in such
event, the S&S Litigation may be discontinued, and any and all
proceeds of claims in the Bankruptcy Court against Bradlee's
or S&S shall be retained by the Purchaser.
(b) For purposes of this Amendment and the
Agreement, the definition of Bradlee's Lease is hereby amended
by replacing the existing definition with the following:
"that certain Lease, dated March 9, 1985 between Wallkill
Plaza Associates and The Stop & Shop Companies, Inc., as same
may have been amended and assigned".
-7-
7. Miscellaneous. Except as hereinabove amended, the
Agreement shall remain in full force and effect and the
Purchaser and the Sellers acknowledge and reaffirm their
respective obligations under the Agreement.
8. Limitations on Purchaser Principals'
Liability. This First Amendment and all documents,
agreements, understandings and arrangements relating to this
transaction have been negotiated, executed and delivered on
behalf of Purchaser by the trustees or officers thereof in
their representative capacity under the Declaration of Trust
of New Plan Realty Trust dated as of July 31, 1972, as
amended, and not individually, and bind only the trust estate
of the Purchaser, and no trustee, officer, employee, agent or
shareholder of Purchaser shall be bound or held to any
personal liability or responsibility in connection with the
agreements, obligations and undertakings of Purchaser
thereunder, and any person or entity dealing with Purchaser in
connection therewith shall look solely to the trust estate for
the payment of a any claim or for the performance of any
agreement obligation or undertaking thereunder. Each of the
Sellers acknowledges and agrees that each agreement and other
document executed by Purchaser in accordance with or in
respect of this transaction shall be deemed and treated to
include in all respects and for all purposes the foregoing
exculpatory provision.
9. Counterparts. This First Amendment may be executed
in counterparts, each of which shall be deemed an original,
and all of which shall constitute one and the same instrument.
-8-
IN WITNESS WHEREOF, this First Amendment has been duly
executed by the parties hereto as of the day and year first above
written.
SELLERS: ▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME
PARTNERSHIP II, L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Properties II, Inc., its general
partner
By:/s/▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
Title:President
MIDWAY CROSSING LIMITED
PARTNERSHIP
By: DW Community Centers Limited
Partnership, a general partner
By: DW Maplewood, Inc., its
general partner
By:/s/▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
Title:President
▇▇▇▇ ▇▇▇▇▇▇ REALTY INCOME
PARTNERSHIP III, L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Income
Properties III, Inc., its
general partner
By:/s/▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
Title:President
-▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIMITED
PARTNERSHIP
By: DW Community Centers Limited
Partnership, a general partner
By: DW Maplewood, Inc., its
general partner
By:/s/▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr
Title:President
FARMINGTON/9 MILE ASSOCIATES,
A MICHIGAN LIMITED
PARTNERSHIP
By: DW Community Centers
Limited Partnership, a general
partner
By: DW Maplewood, Inc.,
its general partner
By:/s/▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
Title:President
HAMPTON CROSSING ASSOCIATES
By: ▇.▇. ▇▇▇▇▇▇▇, Inc., a
general partner
By:/s/▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr
Title:President
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LIMITED
PARTNERSHIP
By: Rochester Hills, Inc. its
General Partner
By: /s/▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
Title: President
PURCHASER: NEW PLAN REALTY TRUST
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Counsel & Senior
Vice President
▇▇▇▇ ▇▇▇▇▇▇ Realty Yield Plus, Limited Partnership, hereby
accepts and agrees to the foregoing First Amendment and hereby
acknowledges and reaffirms its agreements and obligations under and
in respect to Sections 6.1 and 28 of the Agreement.
▇▇▇▇ ▇▇▇▇▇▇ REALTY YIELD PLUS,
L.P.
By: ▇▇▇▇ ▇▇▇▇▇▇ Realty Yield Plus Inc
managing general partner
By:/s/▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
Title:President
Lawyers Title Insurance Corporation executes this First
Amendment solely for the purposes set forth in Section 16 of the
Agreement.
ESCROW AGENT: LAWYERS TITLE INSURANCE
CORPORATION
By: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Regional Director