AGREEMENT TO PURCHASE REAL ESTATE
In consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, this Agreement to Purchase Real Estate
("Agreement") is entered into by and between LOYAL PLAZA VENTURE, L.P.
("Seller"), having offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
CEDAR INCOME FUND PARTNERSHIP, L.P. (together with its successors and assigns,
"Purchaser"), a Delaware limited partnership, having offices at c/o Cedar
Bay Realty Advisors, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, this 7th day of January, 2002.
W I T N E S S E T H :
1. PREMISES. At the price and upon the terms, conditions, and
provisions herein contained, Seller agrees to sell and convey to Purchaser, and
Purchaser agrees to purchase from Seller, all of Seller's right, title and
interest in and to the shopping center known as LOYAL PLAZA, LOYALSOCK,
PENNSYLVANIA, legally described in the Exhibit "A" attached hereto and made a
part hereof, and depicted as the "Property" on the Exhibit "B" attached hereto
and made a part hereof, including without limitation, the real estate upon which
such shopping center is located, together with all right, title and interest of
Seller in any way belonging to or pertaining to or running with the real
properties, all easements, rights of way and other rights in property abutting,
adjacent, contiguous to or adjoining the real property and all condemnation
awards in respect of the real property (collectively, the "Real Property"), all
tangible and intangible personal property, contracts, leases, licenses, permits,
certificates of occupancy and other contractual rights, and trade names and
trade marks, plans, specifications, warranties, guaranties, manuals, drawings,
and any other items of Seller used by Seller in the ownership, development, use,
operation, leasing and management of the shopping center and the real property
associated with the shopping center (collectively, the "Personal Property") (the
Real Property and the Personal Property are collectively referred to herein as
the "Property"). A portion of the Real Property is ground leased by Seller
pursuant to that certain ground lease more particularly described in the
Schedule I attached hereto and made a part hereof ("Ground Lease"). Seller's
interest in the Ground Lease will be assigned to Purchaser at Closing.
2. PURCHASE PRICE. The purchase price for the Property shall be
Eighteen Million Three Hundred Thousand and no/100 Dollars ($18,300,000.00)
("Purchase Price"). The Purchase Price shall be paid by bank wire, at closing,
and shall be subject to any prorations, adjustments, and credits, as hereinafter
stated. Purchaser acknowledges that the Property is encumbered by that certain
loan agreement between Loyal Plaza Venture, L.P. and ▇▇▇▇▇▇ Brothers Bank, FSB
("Existing Lender") dated May 31, 2001, in the original principal amount of
$14,000,000.00 ("Existing Loan"). On the Closing Date, subject to approval by
the Existing Lender, Purchaser shall assume the Existing Loan, and shall receive
a credit against the Purchase Price in the amount of the then outstanding
principal balance of the Existing Loan.
3. INSPECTION OF PROPERTY.
(a) Purchaser shall have forty-five (45) days from the Effective Date
(as defined in Section 20 (d)) (the Purchaser's "Inspection
Period") to investigate and inspect the Property and conduct any
and all due diligence as Purchaser may deem necessary, including
without limitation the availability of utilities, suitable zoning,
environmental and physical condition of the Property, and
availability of governmental permits or approvals. Seller agrees
to provide to Purchaser the information and materials listed in
the Schedule II attached hereto and made a part hereof ("Seller's
Due Diligence Deliveries"). All of said items shall become the
property of Purchaser after Closing. If for any reason Purchaser
in its sole discretion is not satisfied with the condition of the
Property, Purchaser shall have the right to terminate this
Agreement by written notice given to Seller at any time prior to
the end of the Inspection Period. Purchaser's failure to give
written notice of termination to Seller before the end of the
Inspection Period shall constitute a waiver of its right to
terminate this Agreement pursuant to this Section 3.
(b) During the Inspection Period, Purchaser, and any of its authorized
representatives and agents, shall have the right to enter onto the
Property, subject to the conditions hereafter provided, for the
limited purpose of conducting surveys and other due diligence
investigations or analyses, at Purchaser's sole expense, as are
reasonably necessary for Purchaser to ascertain the fitness of the
Property. Purchaser shall not conduct any intrusive testing on the
Property, such as borings of any nature, without Seller's prior
written consent, which shall not be unreasonably withheld or
delayed, and Purchaser shall promptly repair any damage to the
Property caused by any such intrusive testing. Any and all work
for Purchaser's due diligence investigations shall be performed
without cost or expense to Seller. Prior to entry on the Property
by Purchaser or by any party to conduct any survey, test, or
inspection for or on behalf of Purchaser, a certificate or other
satisfactory evidence of liability insurance coverage for said
party shall be provided to Seller with coverage and in amounts
reasonably satisfactory to Seller.
Purchaser shall protect, indemnify and hold Seller harmless from all
liability from injury to persons or Property or liens or actions
for cost of work arising out of the inspections, investigations
and entry onto the Property by Purchaser or by any representatives
or agents of Purchaser. Such indemnification shall not include an
indemnity by Purchaser for liabilities arising from any discovery
or exacerbation of any pre-existing conditions, unless Purchaser
is negligent in its activities.
(d) Purchaser acknowledges that it will have access to nonpublic
information of Seller and its affiliates, including, without
limitation, know-how, lists of existing and potential tenants,
leases, agreements and understandings with tenants and suppliers,
the information supplied by or on behalf of Seller pursuant to
this Section 3 and business and financial information, as well as
information obtained from inspections of the Property (all such
information collectively, "Confidential Information"). Therefore,
Purchaser agrees to (i) keep confidential all Confidential
Information of Seller and its affiliates, (ii) not disclose any
portion of the Confidential Information in any manner without the
prior written consent of Seller, and (iii) use, and permit its
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representatives to use, Confidential Information exclusively in
connection with the transactions contemplated by this Agreement or
the operation of the Property after the Closing. Notwithstanding
the foregoing, Purchaser may disclose Confidential Information to
its representatives if: (x) it first informs the representative
that the Confidential Information is confidential and of the
contents of this Section; and (y) the representative agrees to
abide by the terms of this Section. If Purchaser or any of its
representatives believes it is required by applicable law to
disclose any Confidential Information, Purchaser will promptly
inform Seller and shall limit the disclosure to that which is
required by applicable law. In addition, Purchaser shall not make
any press release, public statement, or other announcement
regarding this Agreement or the transactions contemplated hereby
without the prior approval of Seller. For purposes of this
Section, Confidential Information shall not include information
that is generally available to the public, was known to Purchaser
prior to the disclosure, or was independently developed by
Purchaser. In the event this Agreement is terminated or the within
transaction does not close, Purchaser shall, within five (5)
business days, return to Seller all copies of any such
Confidential Information in the possession of Purchaser, including
any and all copies made by Purchaser of items received from
Seller.
4. DEPOSIT. Within two (2) business days after the full execution of
this Agreement, Purchaser shall deposit with Flagler Title Company ("Escrow
Agent"), the sum of Seventy-five Thousand Dollars ($75,000.00) (hereinafter the
"Deposit"), which sum shall be held in an interest bearing account during the
Inspection Period, and thereafter applied or released as provided below. In the
event Purchaser does not terminate this Agreement prior to the expiration of the
Inspection Period, then within two (2) business days after the expiration of the
Inspection Period Purchaser shall deposit with Escrow Agent an additional
Seventy-five Thousand Dollars ($75,000.00) ("Additional Deposit"), which shall
be part of the Deposit for all purposes under this Agreement. Purchaser's
failure to timely make the Deposit or the Additional Deposit shall constitute a
default under this Agreement.
The Deposit and any interest earned thereon shall be refundable in full
to Purchaser if Purchaser, in its sole discretion, elects to terminate this
Purchase Agreement for any reason whatsoever prior to the expiration of the
Inspection Period.
If Purchaser has not terminated this Agreement prior to the
expiration of the Inspection Period, the Deposit and any interest earned thereon
shall be non-refundable to Purchaser, except in the event of a failure by Seller
to close this transaction in accordance with the terms hereof or a failure of
any condition precedent to Purchaser's obligation to close this transaction, as
set forth herein (in particular but without limitation, in the event Existing
Lender shall fail to allow Purchaser to assume the Existing Loan on the terms
set forth in the Existing Loan Documents or on other terms acceptable to
Purchaser).
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In addition to the aforesaid, Purchaser and Seller hereby
agree as follows:
(a) At Closing, the Deposit and any interest earned shall
be applied against the Purchase Price;
(b) If Purchaser defaults for any reason under the terms
and conditions of this Purchase Agreement, then the
Deposit and any interest earned thereon shall be
retained by Seller as liquidated damages hereunder,
and excepting the obligations of Purchaser to
indemnify and hold Seller harmless with respect to
any inspections of the Property under Section 3
above, Seller shall have no further rights against
the Purchaser;
(c) If Seller fails to make and deliver title as required
under Section 5 below, or otherwise fails, neglects
or refuses to perform this Agreement (any of the
foregoing, a "Seller Default"), then Purchaser may,
as its sole and exclusive remedies, either (i) accept
title subject to the defaulted obligation of Seller
or (ii) seek specific performance of this Agreement
(and receive reimbursement from Seller for reasonable
attorneys' fees and costs, if Purchaser is the
prevailing party in such action).
5. TITLE. Seller herein covenants that it has good and marketable fee
title to the Property (except with respect to the Ground Lease, good and
marketable leasehold title), subject only to taxes not yet due and payable,
applicable zoning regulations, those matters set forth on the Exhibit "C"
attached hereto and made a part hereof, and those matters disclosed on the
survey attached hereto as Exhibit "D" and made a part hereof ("Permitted
Exceptions"), and at Closing shall, subject to the provisions of this Section 5,
convey the same, free and clear of any and all encumbrances, liens,
restrictions, and easements, except the Permitted Exceptions and other matters
approved by Purchaser. Seller shall, at Purchaser's expense, obtain and cause to
be delivered to Purchaser a commitment from the Escrow Agent underwritten by a
national title insurance company reasonably acceptable to Purchaser authorized
to issue policies in the state in which the Property are located ("Title
Insurance Commitment"). The Title Insurance Commitment shall be accompanied by
legible hard copies of all exceptions set out in said Commitment. Purchaser
shall have fifteen (15) days after receipt of both the Title Insurance
Commitment and legible hard copies of all exceptions, within which to examine
the same. In the event that an examination by Purchaser of the Title Insurance
Commitment discloses that Seller does not have good and marketable title, free
and clear of all encumbrances, liens, restrictions, and easements, except for
Permitted Exceptions (hereinafter referred to as a title "Defect") then
Purchaser shall notify Seller in writing thereof. Notwithstanding any provision
of this Agreement to the contrary, notices of actual or possible environmental
contamination on or under the Property that are required by governmental
authority to recorded in local or state public land records shall not be deemed
Defects. Buyer shall be deemed to have waived any Defect listed in the Title
Insurance Commitment with respect to which written notice was not given to
Seller within said fifteen (15) day period. Seller shall use commercially
reasonable efforts to cure such Defect(s); provided, however, that Seller shall
not be required to bring any action to quiet title to the Property, nor incur
any expense in excess of One Hundred Thousand and no Dollars ($100,000.00) with
respect to any Property other than for the discharge of mortgages or deeds of
trust (other than the Existing Loan), or other liens for liquidated amounts
(collectively, "Liquidated Liens"). If Seller is unable to correct or cure said
Defect (other than Liquidated Liens, and Defects which may be cured at an
aggregate expense of not more than $100,000.00) within fifteen (15) days after
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receiving such notice from Purchaser ("Seller's Cure Period"), or is not
obligated to cure such Defect, Purchaser shall, at its sole and exclusive
remedy, within ten (10) days after the earlier of: (i) the expiration of
Seller's Cure Period; or (ii) Purchaser's receipt of Seller's notice that it
will not cure such Defect, either (a) give written notice to Seller that
Purchaser shall treat Seller's inability or election not to correct or cure such
Defect as a failure of a condition under this Agreement, in which event the
Deposit and any interest earned thereon shall be released by the Escrow Agent to
Purchaser and this Agreement shall be null and void, or (b) be deemed to have
elected to waive such Defect and proceed with the Closing of this transaction.
The foregoing limitation of remedies shall not apply in the case of Seller's
failure to cure Liquidated Liens, and Defects which may be cured at an aggregate
expense of not more than $100,000.00, nor apply in the case of any Defects
placed of record after the date of the Title Commitment.
At Closing, as a condition of Purchaser's obligation to close,
Purchaser may obtain, at its cost, an endorsement to said Title Commitment,
updating same to the date of Closing and showing no change in the state of title
to the real estate. After Closing, a standard ALTA Title Insurance Policy shall
be issued to Purchaser in the amount of the Purchase Price at Purchaser's
expense. Any endorsements which Purchaser desires to be issued with said Title
Insurance Policy shall also be at Purchaser's sole expense, except endorsements
obtained by Seller to cure title Defects.
6. SURVEY. Purchaser may, at its expense, order a currently updated
ALTA/ASCM survey of the Property. Subject to the provisions of Section 5 of this
Agreement, an objection to survey by Purchaser shall be treated in the same
manner, and within the same time limits, as a Defect in title as provided in
Section 5 of this Agreement.
7. SERVICE CONTRACTS. After Purchaser has waived in writing or
satisfied all conditions to Closing, Seller shall terminate, effective as of the
Closing, any existing service contracts that Purchaser requests be terminated
and that Seller has the right to terminate, and any existing service contracts
that Purchaser does not request be terminated shall be assigned by Seller and
assumed by Purchaser at Closing ("Permitted Existing Contracts").
8. RISK OF LOSS, INSURANCE AND CONDEMNATION. Seller shall have the risk
of loss for any damage or casualty to or affecting any part of the Property
until after Closing. If the Property suffers any material damage or casualty
prior to Closing, Purchaser shall have the option to close, without reduction in
the Purchase Price (except to the extent of any deductible amounts applicable to
such casualty), and receive the proceeds of any applicable insurance, or
terminate this Agreement and be returned the Deposit and any interest earned
thereon without further liability hereunder, except as provided in Section 3.
The term "material damage or casualty" as used in this section shall mean any
damage the costs of restoration of which is reasonably estimated to exceed
$100,000.
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If the Property is condemned or taken by public authority, in whole or
in material part prior to Closing, Purchaser shall have the option to close on
the Property, without reduction in the Purchase Price, and receive any proceeds
of such condemnation or taking, or, or terminate this Agreement and be returned
the Deposit and any interest earned thereon without further liability hereunder,
except as provided in Section 3.
9. DEED OF CONVEYANCE AND ASSIGNMENT OF LEASES. Seller shall convey to
Purchaser or its nominee at closing good and marketable title, in fee simple to
the Property by transferable and recordable limited or special warranty deed (or
with respect to the Ground Lease, an assignment of Seller's interest), subject
only to the Permitted Exceptions, if any. At Closing, Seller shall also assign
to Purchaser, and Purchaser shall assume, all of Seller's right, title and
interest in and to the lease agreements with the tenants of the Property. A
complete list of such tenants having leases for space in the Property, as of the
Effective Date, is set forth in the Exhibit "E" attached hereto and made a part
hereof (the "Tenants").
10. NOTICES. All notices shall be sent by facsimile with a hard copy
sent by a nationally recognized overnight delivery service, postage prepaid, and
shall be addressed:
(a) if to Seller, to Glimcher Property Limited
Partnership, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: General Counsel, Fax No.
▇▇▇-▇▇▇-▇▇▇▇; and
(b) if to Purchaser, to Cedar Income Fund Partnership,
L.P., c/o Cedar Bay Realty Advisors, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, Fax No. ▇▇▇-▇▇▇-▇▇▇▇.
Notices shall be deemed given on the date of confirmation of the
successful transmission of the facsimile. In the event the deadline for the
giving of any notice or the performing of any act hereunder falls on a weekend
or federal holiday, such deadline shall be extended until the next business day.
11. CLOSING. This transaction shall be closed not later than thirty
(30) days after the expiration of the Inspection Period ("Closing Date"), by
delivery of all required funds and documents through an escrow established by
the Escrow Agent, subject to extension only if approval of the assumption of the
Existing Loan by Purchaser, or the documentation of such assumption, has not
been obtained from the Existing Lender on the terms set forth in the existing
Loan Documents (as hereinafter defined) or on other terms acceptable to
Purchaser.
12. ADJUSTMENTS AND PRORATIONS. All items of income and expense
applicable to the Property shall be paid, prorated or adjusted as of the close
of business on the day prior to the Closing Date in the manner hereinafter set
forth:
(a) Real Estate Taxes Assessments. Real estate taxes
and special assessments for the tax year in which the Closing occurs
shall be prorated as of the Closing Date based on the respective number
of days of ownership of Seller and Purchaser during such tax year,
provided that Seller shall not be obligated to credit Purchaser at
Closing for real estate taxes payable directly by any tenant pursuant
to its Lease, unless such taxes are due and unpaid.
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(b) Rent. All base rent ("Rent"), and taxes on rents
(if any) for the Leases and for the Ground Lease for the month of
Closing shall be prorated as of the Closing Date based on the
respective number of days of ownership of Seller and Purchaser for such
month, on an "as-collected" basis (i.e., shall only be prorated if
collected as of the Closing Date); provided, however, that neither
Purchaser nor Seller shall receive credit at Closing for any Rent that
is past due (the "Past Due Rent"). Seller shall provide Purchaser with
a list of all Rent delinquencies at Closing. Any payment for Rent
received by Seller from tenants post-Closing covering periods that are
post-Closing shall be promptly remitted by Seller to Purchaser. Any
monies received from Seller or collected by Purchaser from tenants or
other occupants shall be first allocated to the Rent owed by such
tenants or other occupants for the current period. Any monies received
in excess of the amounts due for the current period shall be allocated
to those charges that have been outstanding for the shortest period of
time. If the monies collected for delinquent Rent are applicable to a
time period for which Seller was the owner of the Property, Purchaser
shall remit such amount to Seller, net of any reasonable out-of-pocket
cost of collection which Purchaser shall incur. If any past due Rent is
not paid to Seller within (60) days after Closing, Purchaser shall,
upon request by Seller and at Seller's expense, use commercially
reasonable efforts to assist Seller in its efforts to collect any such
delinquent Rent, but shall not be required to take any action to
terminate the tenant's lease or right to possession.
(c) Security Deposit and any interest earned thereon.
Purchaser shall receive a credit, at Closing, for all cash security
deposits reflected in the Leases to the extent that such deposits have
not been applied by Seller to cure tenants' defaults. Seller shall
certify to Purchaser at Closing which, if any, cash security deposits
reflected in the Lease have previously been applied to cure tenants'
defaults.
(d) Utilities. Utility meters for those utility
services payable by Seller and not directly metered to tenants or other
third parties, shall be read on or immediately prior to the Closing
Date, if possible, and the amounts due as disclosed by such readings
shall be paid by Seller or credited to Purchaser. Otherwise all utility
charges and ▇▇▇▇▇▇▇▇ shall be prorated using the prior month's ▇▇▇▇ as
of the Closing Date and shall be reprorated upon receipt of actual
bills for the period in question.
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(e) Additional Rent.
(i) With respect to any common area expense reimbursement
(including, without limitation, insurance, taxes and
utilities) or additional rent based upon any other
reimbursements, which shall be payable by tenants under the
Leases (all of the foregoing being collectively called
"Additional Rent"), such Additional Rent shall be adjusted and
prorated at Closing on an "as collected" basis (i.e., shall
only be prorated if collected as of the Closing Date). As to
any Additional Rent in respect of an accounting period that
shall have expired prior to the Closing but which shall be
paid after the Closing, Purchaser shall pay the entire amount
over to Seller within thirty (30) days after receipt thereof
(or Seller shall retain the entire amount if paid directly to
Seller); provided, however, any delinquent Additional Rent
shall be allocated between Seller and Purchaser in the same
manner as Rent pursuant to Section 12(b) above. Additional
Rent in respect of an accounting period in which the Closing
occurs shall be apportioned on a per diem basis as of the
Closing and in accordance with the provisions of Section 12
(e) (iii) below, and, if paid to Purchaser after the Closing,
Purchaser shall pay Seller's portion thereof to Seller within
thirty (30) days after receipt thereof. If paid to Seller
after the Closing, Seller shall pay Purchaser's portion
thereof to Purchaser within thirty (30) days after receipt
thereof. If, prior to the Closing, Seller has received any
installments of Additional Rent attributable to periods from
and after the Closing, such sum shall be apportioned at the
Closing.
(ii) To the extent that estimated payments of Additional Rent
are required to be paid monthly by any tenant, and at the end
of such tenant's lease year, or the calendar year, such
estimated amounts are to be recalculated based upon actual
amounts for that lease year or calendar year, with the
appropriate adjustments being made with such tenants, then
Additional Rent for such tenant shall be prorated at the time
of such reconciliation between Seller and Purchaser, using the
date of Closing as the proration date, and in accordance with
the provisions of Section 12 (e) (iii) below. At the time(s)
of final calculation and collection from (or refund to) each
tenant of the amounts in reconciliation of actual Additional
Rent for such period, there shall be a re-proration between
Seller and Purchaser, taking into account the additional
amount collected from (or refunded to) such tenant. In
furtherance of the foregoing, if, with respect to any tenant,
the recalculated Additional Rent is less than the estimated
amount paid by such tenant, and a refund is paid by Purchaser
to such tenant, then the portion of the refund allocable to
the period prior to the Closing, to the extent previously paid
to or collected by Seller, shall be refunded by Seller to
Purchaser. If, with respect to any tenant, the recalculated
Additional Rent exceeds the estimated amount paid by such
tenant, and the shortfall is collected by Purchaser from such
tenant, the portion of the shortfall allocable to the period
prior to the Closing, to the extent not previously paid to or
collected by Seller, shall be paid by Purchaser to Seller.
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(iii) Seller's and Purchaser's prorata share of Additional
Rent from tenants for the costs of managing and operating the
Property ("Shopping Center Expenses") shall be prorated based
upon each party's respective percentage, based upon the
Closing Date, of the actual costs incurred for Shopping Center
Expenses for the calendar year or other applicable accounting
period in which Closing occurs in accordance with Sections 12
(e)(i) and (ii) above. At such time after December 31st of the
year in which Closing occurs as Purchaser and Seller have
determined all actual Shopping Center Expenses incurred at the
Property for the year of Closing, but in no event later than
April 1st of the year following Closing, Seller and Purchaser
shall prorate the Shopping Center Expenses to determine the
respective percentage of the Additional Rent to which each
party is entitled to receive or obligated to pay, as
applicable under Sections 12(e)(i) and (ii) above ("Final
Reconciliation"). Seller agrees to provide detailed
information to Purchaser within sixty (60) days after Closing,
on all Shopping Center Expenses incurred by Seller for the
year in which Closing occurs, and Purchaser agrees to provide
detailed information to Seller on all Shopping Center Expenses
incurred by Purchaser for the said year at the time of the
Final Reconciliation. Purchaser and Seller agree that Shopping
Center Expenses paid by either that are not usual and
customary shall not be included within Shopping Center
Expenses for purposes of calculating the Final Reconciliation.
Within thirty (30) days after the date of such determination,
either Seller or Purchaser, as applicable, shall pay to the
other party any additional sums determined to be due and owing
hereunder. Anything contained above in this sub-section
12(e)(iii) to the contrary notwithstanding, Seller agrees to
calculate and prepare the annual reconciliation statements
with respect to Additional Rent for the year ending December
31, 2001 for each tenant at the Property and provide the same
to Purchaser on or before March 15, 2002 (or such earlier date
as may be required to be in compliance with the Leases) and
Purchaser agrees to forward said annual reconciliation
statements to the tenants and thereafter pay to Seller any
amounts owed to Seller which are collected by Purchaser from
tenants on account of the said reconciliation statements.
(iv) The principles of this Section 12(e) shall also apply to
any payments which are similar to Additional Rent which are
made to or by Seller (or Purchaser after Closing) pursuant to
any reciprocal easement agreements, or similar agreements.
(f) Percentage Rent. As and when collected, Purchaser shall
pay to Seller the annual percentage rent, if any, payable under each
Lease for the applicable lease or fiscal year in which the Closing
occurs, prorated between Seller and Purchaser based on the respective
number of days of ownership of the Property by Seller and Purchaser
during the year in which the Closing occurs. Purchaser agrees to
provide an accounting to Seller of all percentage rent due and/or paid
under the Leases within thirty (30) days after the date upon which the
payment of annual percentage rent is due under each Lease. Once the
final amount of percentage rent is collected, the parties shall
reprorate and the party owing the other shall promptly remit the amount
owed no later than fifteen (15) days after the reproration is
determined. If any past due Percentage Rent is not paid to Seller
within (60) days after Closing, Purchaser shall, upon request by Seller
and at Seller's expense, use commercially reasonable efforts to assist
Seller in its efforts to collect any such delinquent Percentage Rent,
but shall not be required to take any action to terminate the tenant's
lease or right to possession.
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(g) Loans. Interest on the Existing Loan shall be prorated as
of midnight of the day prior to the Closing Date. Seller shall pay all
penalties accrued on the Existing Loan as of the Closing Date. Buyer
shall give Seller a credit in the amount of any funds then escrowed by
Seller with Lender, including, without limitation, all amounts held in
tax, insurance, repair, tenant rollover, or other escrows, so long as
Lender retains such escrowed funds for Buyer's use and benefit. Seller
represents and warrants that to the best of its knowledge, as of the
date hereof the only escrows (and current amounts) are those listed in
Schedule III attached hereto.
(h) Miscellaneous. In the event any prorations or computations
made under this Section 12 are based on estimates or prove to be
incorrect, then either party shall be entitled to an adjustment to
correct the same, provided that it makes written demand on the party
from whom it is entitled to such adjustment within one hundred twenty
(120) days after the end of the calendar year in which the Closing
occurs, or from the date the information necessary to calculate such
charge becomes known, whichever is later. For purposes of calculating
the prorations provided for in this Agreement, Purchaser shall be
deemed to be the owner of the Property on the Closing Date. Without
intending to limit the generality of the foregoing, promptly following
the end of the calendar year in which the Closing occurs, Seller and
Purchaser shall determine whether any tenant was charged an improper
amount for its share of operating expenses under its Lease during the
period prior to Closing based on the expenses paid by Seller and the
tenant contributions collected and applied against such expenses by
Seller, and, in the event that such amount was improper, Seller and
Purchaser shall cooperate and either collect the underpayment from the
applicable tenants and pay such amounts to Seller, or Seller shall
refund the overpayments to the applicable tenants. The provisions of
this Section 12 shall survive the closing of this Agreement.
13. CLOSING COSTS AND EXPENSES. Purchaser shall be responsible for all
title insurance policy, commitment and endorsement costs (except those obtained
by Seller to cure title Defects), the cost of survey updates, the cost of
recording transfer documents, all costs and fees (other than application fees)
charged by the Existing Lender for the assumption of the Existing Loan, one-half
the costs of all state, county and municipal real estate transfer taxes and
fees, and one-half the escrow fee. Seller shall be responsible for all costs to
obtain and record any corrective documents and any documents for releasing any
liens or encumbrances against the Property that may be required, one-half the
costs of all state, county and municipal real estate transfer taxes and fees,
all application fees charged by the Existing Lender for the assumption of the
Existing Loan, and one-half the escrow fee.
14. REPRESENTATIONS AND WARRANTIES. Seller hereby makes the following
representations and warranties to Purchaser, which shall survive the closing and
passing of title of the Property as provided in Section 17. As of the Effective
Date, and except as provided hereinbelow:
(a) There are no actions, suits, or proceedings pending,
or to the best of Seller's knowledge, threatened
against the Seller with respect to the Property or
affecting any of its rights with relation to the
Property, at law or in equity, or before any federal,
state, municipal, or other governmental agency, other
than claims for personal injury and property damage
the defense of which has not been rejected by
Seller's insurance companies, and except as disclosed
in the Environmental Reports (as defined in the
following subparagraph).
10
(b) Except as set forth in the environmental site
assessment(s)listed in the Schedule IV attached
hereto and made a part hereof (the "Environmental
Reports") a copy of which Seller will provide to
Purchaser upon the full execution of this Agreement,
Seller has no actual knowledge, and has received no
written notice that the Property contains, or is
contaminated with, any Hazardous Material, as defined
herein, which may require remediation or removal
under any applicable federal or state law, or that
the Property has been used as a Hazardous Material
disposal facility. For purposes of this Agreement,
"Hazardous Material" means and includes any hazardous
substance or any pollutant or contaminant defined as
such in (or for purposes of) the Comprehensive
Environmental Response, Compensation, and Liability
Act, any so-called "Superfund" or "Superlien" law,
the Toxic Substances Control Act, or any other
Federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating,
relating to or imposing liability or standards of
conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time
hereafter in effect, or any other hazardous, toxic or
dangerous, waste, substance or material. Seller shall
include in Seller's Due Diligence Materials: copies
of its existing contract(s) with CEC (as defined in
Article 24)(if any); any final reports generated to
date by CEC, the Pennsylvania Department of
Environmental Protection ("PADEP") or any other
person or entity relating to the environmental
condition of the Property (as defined in Article 24),
that are in Seller's possession; and any
correspondence or notices to or from Seller and PADEP
relating to environmental conditions on the Property.
(c) At the time of Closing, there shall be no contracts,
subcontracts, arrangements, licenses, concessions,
easements, or other agreements that Seller has
entered into, either recorded or unrecorded, written
or oral, affecting all or any portion of the
Property, or the use of it, other than the Tenant
Leases (as hereinafter defined), the Ground Lease,
the Permitted Exceptions to title, and the Permitted
Existing Contracts. Seller shall not modify any
existing instrument nor enter into a new contract,
lease or other agreement affecting all or any portion
of the Property, or the use of it, which would extend
beyond the Closing Date without the prior written
consent of Purchaser, which consent will not be
unreasonably withheld or delayed, except that Seller
may enter into a modification of the lease of tenant
Giant Foods on substantially the terms set forth in
the Exhibit "F" attached hereto and made a part
hereof, without Purchaser's consent. Purchaser's
failure to object to any proposed new lease or lease
modification within five (5) business days after
receipt of Seller's request for approval (together
with, in the case such new lease or lease
modification calls for any improvements or other work
to be performed by the landlord, an estimate of the
cost of such work), shall be deemed approval thereof
by Purchaser and such new lease or modification shall
constitute a "Tenant Lease" under this Agreement.
Purchaser agrees to pay any real estate brokerage
fee, and tenant allowance or improvement costs, due
with respect to any new or extended lease approved by
Purchaser, or which is deemed approved due to
Purchaser's failure to timely object.
11
(d) Seller has not received written notice of any (i)
violations of building codes and/or zoning ordinances
or other governmental or regulatory laws, ordinances,
regulations, orders or requirements affecting the
Property; (ii) existing, pending or threatened
condemnation proceedings affecting the Property; or
(iii) existing, pending or threatened zoning,
building or other moratoria proceedings, restrictive
allocations or similar matters that could materially,
adversely affect Purchaser's use of the Property for
its current use.
(e) Attached hereto as Exhibit "G" is a complete and
accurate list of all leases, concessions, licenses
and other occupancy agreements affecting the Property
as of the Effective, and all amendments,
modifications, "side letters" and guaranties thereof
or relating thereto (collectively, the "Tenant
Leases"), other than the Ground Lease. True and
complete copies of the Tenant Leases will be included
in the Seller's Due Diligence Materials. The Tenant
Leases are in full force and effect, and neither
Seller or its agents have entered into any agreements
with any of the tenants except for the Tenant Leases,
or subordination, non-disturbance and attornment
agreements or Landlord lien subordination agreements
that have been delivered to Purchaser, and except as
landlord and tenant Seller has no business
relationship with any of the tenants. Except as
expressly set forth on Exhibit "G-1" attached hereto,
to the best of Seller's knowledge neither Seller as
the landlord nor any tenant under any of the Tenant
Leases is in default under any of the Tenant Leases,
nor to Seller's knowledge is there in existence any
condition or fact which with notice or passage of
time, or both, shall constitute a default by either
the landlord or the tenant thereunder. All Tenants
are currently in occupancy of their respective spaces
and conducting business. Seller has not collected
base or minimum rent more than one month in advance
from any tenant. Except as expressly provided in the
Tenant Leases, no tenant shall be entitled to any
rebates, rent concessions or free rent.
12
(f) Seller is not a party to any agreements currently in
effect which restrict the sale of the Property and
Seller has the right, power and authority to execute
and deliver this Agreement and to consummate the
transactions contemplated by it; neither the
execution and deliver of this Agreement nor the
consummation of the transactions contemplated by it
nor the fulfillment of nor the compliance with the
terms, conditions and provisions of this Agreement
will conflict with or result in a violation or breach
of any other instrument or Agreement of any nature to
which Seller is a party or by which it is bound or
may be affected, or, to Seller's actual knowledge,
with any relevant law, or constitute (with or without
the giving of notice of the passage of time) a
default under such an instrument or agreement; no
consent, approval, authorization or order of any
person is required with respect to the consummation
of the transactions contemplated by this Agreement.
(g) Except as provided in Exhibit "G-2" attached hereto,
there are no Tenant allowances or improvements
applicable to any of the Tenant Leases (in effect as
of the date hereof) which are unpaid or unfulfilled
as of the date hereof. At the Closing, Seller will
pay, or will credit to Purchaser and Purchaser shall
assume the obligation to pay, the amount of any
allowances and the reasonably estimated costs of any
improvements required to be performed by the landlord
under the Tenant Leases which have not been paid or
completed as of the Closing.
(h) Except as provide in Exhibit "G-3" attached hereto,
there are no due and unpaid leasing commissions or
broker's commissions applicable to any of the Tenant
Leases. At the Closing, Seller will pay, or will
credit to Purchaser and Purchaser will assume the
obligation to pay, the amount of any unpaid leasing
commissions or broker's commissions that are or will
become due and payable in respect of any Tenant
Leases, other than with respect to renewal or
extension options which have not been exercised by
the respective tenant as of the Closing Date.
(i) To Seller's knowledge, there are no pending
condemnation actions of which Seller has received
written notice; the Property is separately assessed
for real estate tax purposes and is not combined with
any other property for such purposes.
(j) Attached hereto as Exhibit "H" is a rent roll for the
Property certified by Seller to be true and correct
as of the Effective Date ("Rent Roll Certificate"),
showing for each unit of the Property, the tenant
name, unit number, annual base rent, common area,
real estate tax and insurance reimbursement amounts,
percentage rentals, security deposit held, the
expiration date of each lease and designating any
rights to renew or extend a lease. There are no
tenant security deposits held by the landlord under
the Tenant Leases except as listed in the Rent Roll
Certificate.
13
(k) Attached as Schedule I is a complete and accurate
list of all documents comprising the Ground Lease,
true and complete copies of which shall be included
in Seller's Due Diligence Deliveries. To the best of
Seller's knowledge, neither Seller as the lessee nor
the lessor under the Ground Lease (the "Ground
Lessor") is in default under the Ground Lease, nor,
to Seller's knowledge is there in existence any
condition or fact which with notice or passage of
time, or both, shall constitute a default by either
the lessee or the lessor thereunder.
(l) Attached as Exhibit "I" is a complete and accurate
list of all material loan documents relating to the
Existing Loan (the "Existing Loan Documents"), true
and complete copies of which shall be included in
Seller's Due Diligence Deliveries. The principal
balance on the Existing Loan as of November 30, 2001,
is approximately $13,952,409.00. Seller is not
currently in default in the payment of debt service
under the Existing Loan and Seller has not received
any notice of uncured default from the Existing
Lender.
If any event shall occur after the Effective Date, and before the Closing Date,
which is not caused by Seller ("Changed Circumstance"), that renders untrue any
such representation or warranty, it shall not constitute a breach by Seller of
such representation or warranty, and Seller's reaffirmation of such
representation or warranty at Closing may be qualified by such Changed
Circumstance. If Seller shall obtain knowledge of any Changed Circumstance,
Seller shall provide notice thereof to Purchaser within a reasonable period of
time. In the event Purchaser receives actual notice of any material Changed
Circumstance, whether from Seller or any other source, including its own
investigations, then Purchaser shall have the right to terminate this Agreement,
in which event both parties shall be relieved from any further obligation under
this Agreement, and the Deposit shall be returned to Purchaser. For purposes of
this Agreement, a "material" Changed Circumstance shall be one that (when taken
together with all other Changed Circumstances) would be reasonably expected to
decrease the annual net operating income of the Property, determined in
accordance with generally accepted accounting principals, consistently applied,
by more than two (2%). Seller makes no other representations or warrantees with
respect to the condition of or fitness for use of any of the existing
improvements on the Property. All buildings, fixtures, and other improvements on
the Property shall be conveyed to Purchaser by Seller in an AS-IS condition.
15. CONDITIONS PRECEDENT. Notwithstanding anything to the contrary
contained herein or elsewhere, the following shall be conditions precedent to
Purchaser's obligation to Close (the "Conditions Precedent"):
14
(a) The truth and correctness of all of Seller's material
representations and warranties and the substantial
fulfillment of all of Seller's covenants at all times
during the term of this Agreement and as of Closing.
(b) The physical condition of the Property shall be
substantially the same on the Closing Date as on the
date of Purchaser's execution of this Agreement,
reasonable wear and tear and loss by casualty excepted.
(c) The approval of the assumption by Purchaser of the
Existing Loan on the terms set forth in the Existing
Loan Documents or on other terms acceptable to the
Purchaser.
(d) Seller shall deliver to Purchaser an estoppel
certificate from each tenant leasing or occupying eight
thousand (8,000) square feet or more of space in any
Property ("Major Tenants"), and from seventy -five
percent (75%) of the other tenants ("Small Shop
Tenants") of the Property, which estoppel certificate
shall confirm the monthly base rental amounts set forth
for such tenant in the Rent Roll Certificate, and which
shall not in any material manner contradict any of
Seller's representations and warranties with respect to
such tenant and its Lease as are set forth in sections
(e), (g) and (j) of Article 14 hereof. In the event
Seller is unable to provide an Estoppel Certificate from
any Small Shop Tenant necessary to satisfy Seller's
obligations in this subsection, Seller shall have the
right, and Purchaser agrees to accept, Seller's Estoppel
Certificate with respect to such tenant(s). For purposes
of this Agreement the estoppel certificates shall be in
such form as reasonably required by Purchaser, except
that Purchaser shall not have the right to require in
any such certificate any modifications to a tenant's
lease. When permitted in lieu of a tenant's Estoppel
Certificate, Seller's Estoppel Certificate shall only be
required to certify: the date of such lease and that it
is valid and in existence; that to the best of Seller's
knowledge there are no defaults by Landlord under the
lease, nor defaults by such tenant under the lease (or
enumerating such defaults if any are known); the
commencement and expiration date of the lease; that the
tenant has no first rights of refusal, options to
terminate the lease, or exclusive use rights, except as
set forth in the lease; that tenant has no remaining
renewal options except as noted; the current minimum
rent and the date through which it has been paid; the
amount of any security deposit held by tenant; and that
there are no tenant improvements or allowances due
tenant that have not been completed and/or paid.
Notwithstanding the foregoing, Tenant agrees to accept
such form of estoppel as each Major Tenant customarily
provides, provided that it does not in any material
manner contradict any of Seller's representations and
warranties with respect to such tenant and its Lease as
are set forth in sections (e), (g) and (j) of Article 14
hereof.
15
(e) Seller shall deliver to Purchaser an estoppel
certificate from the Ground Lessor which shall confirm
the representations and warranties of Seller set forth
in section (k) of Article 14 hereof.
(f) The assignment of the Ground Lease to be made by Seller
to Purchaser pursuant to this Agreement shall not
require the consent of the Ground Lessor, nor payment by
Purchaser of any fee to the Ground Lessor, nor would
such assignment trigger any increase in the ground rent.
16. CLOSING DOCUMENTS.
(a) A special or limited warranty deed conveying fee simple
title in the Property to Purchaser;
(b) A ▇▇▇▇ of sale conveying, transferring and selling to
Purchaser, all right title and interest of Seller in and
to all of the Personal Property and those service
contracts, if any, which Purchaser has advised Seller it
wishes to assume, to the extent the same are assignable.
(c) An assignment by Seller of all of Seller's right, title
and interest in and to each Tenant Lease and the Ground
Lease, including security deposits and prepaid rents, if
any.
(d) Certificate of Good Standing from the Secretary of State
in the state of Seller's formation, and a Seller's
resolution authorizing the sale of the Property.
(e) A non-foreign affidavit for Seller complying with the
requirements of Internal revenue Code Section 1445 (f)
(3) and regulations promulgated thereunder.
(f) All keys to the Property in the possession of Seller.
(g) Such other documents and instruments as may be
reasonably required by this Agreement or by the Title
Company in order to consummate the transaction
contemplated by this Agreement and to issue the owner's
Title Insurance Policy to Purchaser, including but
limited to, as to any work on the Property requested by
Seller, a mechanic's lien affidavit, a gap affidavit,
and a contractor's affidavit stating the amount paid and
the amount outstanding under the contract to complete
such work.
(h) Any document required by law to be executed by Seller in
order to record any transfer document.
16
17. MERGER. All warranties, representations, and covenants contained
herein, including those made in any Seller's estoppel certificate, shall survive
for a period of one (1) year following the Closing of this Agreement and sale of
the Property.
18. ASSIGNMENT. The terms of this Agreement shall inure to the benefit
of, and be binding upon, the respective successors and assigns of the parties
hereto.
19. REAL ESTATE BROKERAGE COMMISSION. Seller and Purchaser each
represents to the other party that it has dealt with no broker or agent with
respect to this transaction or with respect to the Property other than FAMECO
Real Estate Corp., to whom any real estate brokerage fee due shall be paid by
the Seller in accordance with a separate brokerage agreement. Seller and
Purchaser each agrees to indemnify and hold harmless the other party from and
against any and all claims for fees or commissions by any other broker or agent
claiming to have represented that party regarding this transaction.
20. MISCELLANEOUS:
(a) Entire Agreement.This Agreement contains all the terms,
promises, covenants, conditions, representations and
warranties made or entered into by and between Seller and
Purchaser, and supersedes all prior discussions and
agreements, whether written or oral, between Seller and
Purchaser with respect to the conveyance of the Property and
all other matters contained herein and constitutes the sole
and entire agreement between Seller and Purchaser with respect
thereto.
(b) Amendment. This Agreement may not be modified or amended
unless such amendment is set forth in writing and executed by
both Seller and Purchaser with the formalities hereof.
(c) Authority. Seller and Purchaser each represent and warrant
to the other that the individuals executing this Agreement on
their behalf are duly authorized and empowered to do so, and
that upon such execution, this Agreement shall be binding upon
and enforceable by and against each of the parties hereto.
(d) Execution by Both Parties.This Agreement shall not become
effective and binding until fully executed by both Purchaser
and Seller. The "Effective Date" of this Agreement shall be
the date Seller has delivered to Purchaser all of Seller's Due
Diligence Deliveries, as listed in Schedule II.
(e) Tax-Deferred Exchange. In the event Purchaser elects to
assign this Agreement to an Intermediary for purposes of
satisfying a 1031 tax-deferred exchange, Seller agrees to
reasonably cooperate with Purchaser with the consummation of
such a 1031 exchange provided however, that Seller shall not
be required to incur any additional costs or additional
liability in connection with any such tax-deferred exchange
for the benefit of ▇▇▇▇▇▇▇▇▇.
▇▇
▇▇. FACSIMILE. Purchaser and Seller agree that this Agreement may be
executed by the exchange of facsimile copies bearing the facsimile signatures of
the parties.
22. MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
counterparts which upon assemblage shall be deemed to be fully executed
originals.
23. SELLER'S KNOWLEDGE. For purposes of this Agreement "Seller's
knowledge" shall mean the actual knowledge of Seller's senior Vice President of
Property Management, Senior Vice President of Construction Services, Executive
Vice President/General Counsel, or Director of Facilities.
24. INDEMNIFICATION:
(a) Excepting for those matters to be assumed by Purchaser in accordance
with the provisions of this Agreement or matters arising out of Purchaser's
inspections of the Property and Purchaser's obligations to indemnify and hold
Seller harmless pursuant to Section 3 above, Seller shall indemnify, defend and
hold Purchaser harmless with respect to liability from injury to persons damages
to personal property or the improvements, or for liens or causes of action for
such matters, arising with respect to Property prior to the date of Closing.
(b) Purchaser shall indemnify, defend and hold Seller harmless with
respect to liability from injury to persons damages to personal property or the
improvements, or for liens or causes of action for such matters, arising with
respect to Property after the date of Closing.
(c) Pursuant to that certain Holdback and Indemnity Agreement dated May
31, 2001 attached hereto as Exhibit "J" ("Holdback Agreement"), ▇▇▇▇▇▇ Brothers
Bank, FSB ("Bank") retained the sum of $450,000 ("Holdback") from the initial
advance of a loan to Seller secured by, among other things, a security agreement
encumbering the Property, and Seller agreed to diligently pursue Remediation of
the Contamination of the Property in accordance with Environmental Law (as such
terms are defined in the Holdback Agreement). Seller agrees to assign to
Purchaser at Closing, and Purchaser agrees to assume, all of Seller's rights and
obligations under the Holdback Agreement arising from and after the Effective
Date, except that Seller shall be entitled to the return of any portion of the
Holdback not required to complete the Remediation work required by the Holdback
Agreement, upon satisfaction of those items identified in Paragraph 3 of the
Holdback Agreement. Purchaser covenants and agrees that it will diligently
pursue and complete the Remediation of the Contamination of the Property in good
faith and in accordance with the Holdback Agreement, and that it shall keep
Seller informed of the progress of such Remediation and all expenditures in
excess of Ten Thousand Dollars ($10,000.00) therefor. Seller has heretofore
contracted with Civil & Environmental Consultants, Inc., Pittsburgh,
Pennsylvania ("CEC") to complete the Remediation. To ensure continuity,
following the Closing Purchaser agrees to retain CEC for the completion of the
Remediation work required by the Holdback Agreement. Seller represents and
warrants to Purchaser that as of the date hereof $ 0.00 of the Holdback has been
disbursed by the Existing Lender for Remediation expenses.
18
(d) The provisions of this Section 24 shall survive Closing and the
transfer of the Property to Purchaser.
[signatures on following pages]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth on the first page of this Agreement.
SELLER:
LOYAL PLAZA VENTURE, L.P., a Delaware limited partnership
By: GLIMCHER LOYAL PLAZA, INC., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman and CEO
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delawaare limited partnership
by Cedar Income Fund, Ltd., a Maryland Real Estate Investment Trust,
its sole general partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: President
--------------------------
20
EXHIBIT "A"
Legal description
21
EXHIBIT "B"
SITE DRAWING
22
EXHIBIT "C"
(Permitted Exceptions")
23
EXHIBIT "D"
(existing survey)
24
EXHIBIT "E"
(list of tenants)
25
EXHIBIT "F"
(Giant Foods lease modification)
26
EXHIBIT "G"
(list of all tenant lease docs)
27
EXHIBIT "G-1"
(list of tenant defaults)
28
EXHIBIT "G-2"
(list of tenant allowances and T/I's)
none
29
EXHIBIT "G-3"
(list of leasing commissions)
NONE
▇▇
▇▇▇▇▇▇▇ "▇"
(▇▇▇▇ Roll Certificate)
31
EXHIBIT "I"
(Existing Loan Documents)
LOAN DOCUMENTS:
1. Promissory Note from Loyal Plaza Venture to ▇▇▇▇▇▇ Brothers Bank, FSB,
dated May 31, 2001
2. Loan Agreement from Loyal Plaza Venture, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB,
dated May 31, 2001
3. Open-end Mortgage and Security Agreement from Loyal Plaza Venture, L.P. and
Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May
31, 2001
4. Assignment of Management Agreement and Subordination of Management Fees
from Loyal Plaza Venture, L.P. and Glimcher Loyal Plaza Tenant, L.P. to
▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
5. Disclosure for Confession of Judgment from Loyal Plaza Venture, L.P. to
▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
6. Holdback and Indemnity Agreement from Glimcher Properties Limited
Partnership, Loyal Plaza Venture, L.P. and Glimcher Loyal Plaza Tenant,
L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
7. Assignment of Leases and Rents from Loyal Plaza Venture, L.P. and Glimcher
Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
8. Environmental Indemnity Agreement from Loyal Plaza Venture, L.P. and
Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May
31, 2001
9. Assignment of Personal Property Leases, Service Agreements, Permits,
Licenses, Franchises and Other Agreements from Loyal Plaza Venture, L.P.
and Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated
May 31, 2001
10. Cash Management Agreement among Loyal Plaza Venture, L.P., as Borrower and
Glimcher Loyal Plaza Tenant, L.P. as Tenant (Colelctively, Mnortgagor), and
▇▇▇▇▇▇ Brothers Bank, FSB as Lender and First Union National Bank as Agent
and Glimcher Properties Limited Partnership and Glimcher Development
Corporation Together as Manager, dated May 31, 2001
11. Clearing Account Agreement among Firstar Bank, National Aassociation, Loyal
Plaza Venture, L.P., Glimcher Loyal Plaza Tenant, L.P. and ▇▇▇▇▇▇ Brothers
Bank, FSB, dated May 31, 2001
32
EXHIBIT "J"
(Holdback and Indemnity Agreement)
33
SCHEDULE I
Ground Lease dated January 15, 1963, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇,
his wife, as Landlord, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Tenant, a Memorandum of which
was recorded on February 27, 1963 in Deed Book 492, Page 1142; as amended by an
Amendatory Agreement, dated March 26, 1964 and recorded April 13, 1964 in Deed
Book 500, Page 920; as assigned by Assignment, Assumption, Indemnity Agreement
by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assignor, and Williamsport Plaza Associates, a
Pennsylvania limited partnership, Assignee, dated July 1, 1989 and recorded July
19, 1989 in deed Book 1433, Page 291; and further assigned by Warranty
Assignment of Tenant's Interest in Ground Lease and Assumption Agreement by and
between Williamsport Plaza associates, L.P., a/k/a Williamsport Plaza
Associates, a Pennsylvania limited partnership, Assignor, and Glimcher Centers
Limited Partnership, a Delaware limited partnership, Assignee, dated January 17,
1994 and recorded February 17, 1994 in Record Book 2216, Page 210, all
recordings being in the Official Records of Lycoming County, Pennsylvania.
34
SCHEDULE II
1. All Leases currently in effect.
2. Latest environmental report.
3. Full size survey of property.
4. Seller's most recent title insurance commitment/policy, including all
exception documents.
5. Metes and Bounds description of property (legal description).
6. Copies of the Existing Loan Documents listed in Exhibit "I".
7. Financial Statement for Property for the past three (3) years.
8. Monthly operating statements for the past three (3) years.
9. Real Estate Tax Bills for past three (3) years, to the extent in Seller's
possession.
10. Utility Bills for last three (3) months, to the extent in Seller's
possession.
11. Detail for most recently completed reconciliation period, on tenant by
tenant basis, for reimbursements for CAM, Taxes and Insurance with
supporting schedule of expenses.
12. List and description of current rent delinquencies.
35
SCHEDULE III
(Loan escrows levels)
All balances are as of October 31, 2001:
1. Recurring Capital: $19,551.32
2. Rollover/Tenant Improvement: $21,666.64
3. Real Estate Tax: $92,824.72
4. Required Repairs: $455,000.00
(includes $450,000 for Holdback Indemnity Agreement)
36
SCHEDULE IV
List of environmental reports
LIST OF REPORTS/WORK PLANS FOR LOYAL PLAZA SITE
EMG, July 14, 1999, Phase I Environmental Assessment of Loyal Plaza, Loyalsock,
Pennsylvania
EMG, April 25, 2001, Phase II Environmental Assessment of Loyal Plaza,
Loyalsock, Pennsylvania
EMG, June 4, 2001, Additional Site Characterization of Loyal Plaza, Loyalsock,
Pennsylvania
▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇ I Environmental Assessment of Loyal Plaza, Loyalsock,
Pennsylvania
Civil & Environmental Consultants, Inc., January 3, 2002, Draft Work Plan for
Supplemental Remedial Investigation, Loyal Plaza, Williamsport, Pennsylvania
LIST OF REPORTS/WORK PLANS FOR ECKERD DRUG SITE
▇▇▇▇▇▇▇▇ Environmental Group, Inc., September 1999, Draft Remedial Investigation
Report, Former Hardee's Restaurant, 1913 East 3rd Street, Loyalsock Township,
Lycoming County, Williamsport, Pennsylvania
▇▇▇▇▇▇▇▇ Environmental Group, Inc., May 7, 2001, Remedial Action Summary, Former
Hardee's Eckerd, 1913 East 3rd Street, Loyalsock Township, Lycoming County,
Williamsport, Pennsylvania
Civil & Environmental Consultants, Inc., January 3, 2002, Draft Work Plan for
Supplemental Remedial Investigation, Eckerd Drug Property, Williamsport,
Pennsylvania
37
FIRST AMENDMENT TO AGREEMENT TO PURCHASE REAL ESTATE
This First Amendment to Agreement to Purchase Real Estate is made this
22nd day of February by and between LOYAL PLAZA VENTURE, L.P. ("Seller"),
having offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and CEDAR INCOME
FUND PARTNERSHIP, L.P. (together with its successors and assigns, "Purchaser"),
a Delaware limited partnership, having offices at c/o Cedar Bay Realty
Advisors, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, this
7th day of January, 2002.
W I T N E S S E T H :
WHEREAS, Purchaser and Seller have entered into an Agreement for the Purchase of
Real Estate dated January 7, 2002 ("Purchase Agrement"), with respect to real
property known as Loyal Plaza, Loyalsock Township, Lycoming County, Pennsylvania
("Property"); and
WHEREAS, Purchaser and Seller desire to amend the Purchase Agreement as more
fully set forth herein;
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, Purchaser and Seller hereby ▇▇▇▇ as follows:
1. The Inspection Period is hereby extended through 5:00 EST on February
27, 2002.
2. Seller agrees to give to Purchaser at Closing an indemnity with respect
to environmental conditions on the Property.
3. Except as expressly set forth herein, the Puchase Agreement shall remain
unchanged and in full force and effect.
(signatures on following page)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth hereinabove.
SELLER:
LOYAL PLAZA VENTURE, L.P., a Delaware limited partnership
By: GLIMCHER LOYAL PLAZA, INC., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman and CEO
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delaware limited partnership
by Cedar Income Fund, Ltd., a Maryland Real Estate Investment Trust,
its sole general partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Title: President
-----------------------
2
EXHIBIT "A"
Legal description
3
EXHIBIT "B"
SITE DRAWING
4
EXHIBIT "C"
(Permitted Exceptions")
5
EXHIBIT "D"
(existing survey)
6
EXHIBIT "E"
(list of tenants)
7
EXHIBIT "F"
(Giant Foods lease modification)
8
EXHIBIT "G"
(list of all tenant lease docs)
9
EXHIBIT "G-1"
(list of tenant defaults)
10
EXHIBIT "G-2"
(list of tenant allowances and T/I's)
none
11
EXHIBIT "G-3"
(list of leasing commissions)
NONE
▇▇
▇▇▇▇▇▇▇ "▇"
(▇▇▇▇ Roll Certificate)
13
EXHIBIT "I"
(Existing Loan Documents)
LOAN DOCUMENTS:
1. Promissory Note from Loyal Plaza Venture to ▇▇▇▇▇▇ Brothers Bank, FSB,
dated May 31, 2001
2. Loan Agreement from Loyal Plaza Venture, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB,
dated May 31, 2001
3. Open-end Mortgage and Security Agreement from Loyal Plaza Venture, L.P. and
Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May
31, 2001
4. Assignment of Management Agreement and Subordination of Management Fees
from Loyal Plaza Venture, L.P. and Glimcher Loyal Plaza Tenant, L.P. to
▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
5. Disclosure for Confession of Judgment from Loyal Plaza Venture, L.P. to
▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
6. Holdback and Indemnity Agreement from Glimcher Properties Limited
Partnership, Loyal Plaza Venture, L.P. and Glimcher Loyal Plaza Tenant,
L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
7. Assignment of Leases and Rents from Loyal Plaza Venture, L.P. and Glimcher
Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
8. Environmental Indemnity Agreement from Loyal Plaza Venture, L.P. and
Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May
31, 2001
9. Assignment of Personal Property Leases, Service Agreements, Permits,
Licenses, Franchises and Other Agreements from Loyal Plaza Venture, L.P.
and Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated
May 31, 2001
10. Cash Management Agreement among Loyal Plaza Venture, L.P., as Borrower and
Glimcher Loyal Plaza Tenant, L.P. as Tenant (Colelctively, Mnortgagor), and
▇▇▇▇▇▇ Brothers Bank, FSB as Lender and First Union National Bank as Agent
and Glimcher Properties Limited Partnership and Glimcher Development
Corporation Together as Manager, dated May 31, 2001
11. Clearing Account Agreement among Firstar Bank, National Aassociation, Loyal
Plaza Venture, L.P., Glimcher Loyal Plaza Tenant, L.P. and ▇▇▇▇▇▇ Brothers
Bank, FSB, dated May 31, 2001
14
EXHIBIT "J"
(Holdback and Indemnity Agreement)
15
SCHEDULE I
Ground Lease dated January 15, 1963, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇,
his wife, as Landlord, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Tenant, a Memorandum of which
was recorded on February 27, 1963 in Deed Book 492, Page 1142; as amended by an
Amendatory Agreement, dated March 26, 1964 and recorded April 13, 1964 in Deed
Book 500, Page 920; as assigned by Assignment, Assumption, Indemnity Agreement
by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assignor, and Williamsport Plaza Associates, a
Pennsylvania limited partnership, Assignee, dated July 1, 1989 and recorded July
19, 1989 in deed Book 1433, Page 291; and further assigned by Warranty
Assignment of Tenant's Interest in Ground Lease and Assumption Agreement by and
between Williamsport Plaza associates, L.P., a/k/a Williamsport Plaza
Associates, a Pennsylvania limited partnership, Assignor, and Glimcher Centers
Limited Partnership, a Delaware limited partnership, Assignee, dated January 17,
1994 and recorded February 17, 1994 in Record Book 2216, Page 210, all
recordings being in the Official Records of Lycoming County, Pennsylvania.
16
SCHEDULE II
1. All Leases currently in effect.
2. Latest environmental report.
3. Full size survey of property.
4. Seller's most recent title insurance commitment/policy, including all
exception documents.
5. Metes and Bounds description of property (legal description).
6. Copies of the Existing Loan Documents listed in Exhibit "I".
7. Financial Statement for Property for the past three (3) years.
8. Monthly operating statements for the past three (3) years.
9. Real Estate Tax Bills for past three (3) years, to the extent in Seller's
possession.
10. Utility Bills for last three (3) months, to the extent in Seller's
possession.
11. Detail for most recently completed reconciliation period, on tenant by
tenant basis, for reimbursements for CAM, Taxes and Insurance with
supporting schedule of expenses.
12. List and description of current rent delinquencies.
17
SCHEDULE III
(Loan escrows levels)
All balances are as of October 31, 2001:
1. Recurring Capital: $19,551.32
2. Rollover/Tenant Improvement: $21,666.64
3. Real Estate Tax: $92,824.72
4. Required Repairs: $455,000.00
(includes $450,000 for Holdback Indemnity Agreement)
18
SCHEDULE IV
List of environmental reports
LIST OF REPORTS/WORK PLANS FOR LOYAL PLAZA SITE
EMG, July 14, 1999, Phase I Environmental Assessment of Loyal Plaza, Loyalsock,
Pennsylvania
EMG, April 25, 2001, Phase II Environmental Assessment of Loyal Plaza,
Loyalsock, Pennsylvania
EMG, June 4, 2001, Additional Site Characterization of Loyal Plaza, Loyalsock,
Pennsylvania
▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇ I Environmental Assessment of Loyal Plaza, Loyalsock,
Pennsylvania
Civil & Environmental Consultants, Inc., January 3, 2002, Draft Work Plan for
Supplemental Remedial Investigation, Loyal Plaza, Williamsport, Pennsylvania
LIST OF REPORTS/WORK PLANS FOR ECKERD DRUG SITE
▇▇▇▇▇▇▇▇ Environmental Group, Inc., September 1999, Draft Remedial Investigation
Report, Former Hardee's Restaurant, 1913 East 3rd Street, Loyalsock Township,
Lycoming County, Williamsport, Pennsylvania
▇▇▇▇▇▇▇▇ Environmental Group, Inc., May 7, 2001, Remedial Action Summary, Former
Hardee's Eckerd, 1913 East 3rd Street, Loyalsock Township, Lycoming County,
Williamsport, Pennsylvania
Civil & Environmental Consultants, Inc., January 3, 2002, Draft Work Plan for
Supplemental Remedial Investigation, Eckerd Drug Property, Williamsport,
Pennsylvania
19
SECOND AMENDMENT TO AGREEMENT TO PURCHASE REAL ESTATE
This Second Amendment to Agreement to Purchase Real Estate is made this
27th day of February, 2002, by and between LOYAL PLAZA VENTURE, L.P.
("Seller"), having offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
CEDAR INCOME FUND PARTNERSHIP, L.P. (together with its successors and assigns,
"Purchaser"), a Delaware limited partnership, having offices at c/o Cedar Bay
Realty Advisors, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, Purchaser and Seller have entered into an Agreement to Purchase Real
Estate dated January 7, 2002, as amended by First Amendment to Agreement to
Purchase Real Estate dated February 22, 2002 ("Purchase Agrement"), with respect
to real property known as Loyal Plaza, Loyalsock Township, Lycoming County,
Pennsylvania ("Property"); and
WHEREAS, Purchaser and Seller desire to amend the Purchase Agreement as more
fully set forth herein;
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, Purchaser and Seller hereby ▇▇▇▇ as follows:
1. The Inspection Period is hereby extended through 5:00 EST on March 1,
2002.
2. Except as expressly set forth herein, the Puchase Agreement shall remain
unchanged and in full force and effect.
(signatures on following page)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth hereinabove.
SELLER:
LOYAL PLAZA VENTURE, L.P., a Delaware limited partnership
By: GLIMCHER LOYAL PLAZA, INC., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delaware limited partnership
by Cedar Income Fund, Ltd., a Maryland Real Estate Investment Trust,
its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
2
EXHIBIT "A"
Legal description
3
EXHIBIT "B"
SITE DRAWING
4
EXHIBIT "C"
(Permitted Exceptions")
5
EXHIBIT "D"
(existing survey)
6
EXHIBIT "E"
(list of tenants)
7
EXHIBIT "F"
(Giant Foods lease modification)
8
EXHIBIT "G"
(list of all tenant lease docs)
9
EXHIBIT "G-1"
(list of tenant defaults)
10
EXHIBIT "G-2"
(list of tenant allowances and T/I's)
none
11
EXHIBIT "G-3"
(list of leasing commissions)
NONE
▇▇
▇▇▇▇▇▇▇ "▇"
(▇▇▇▇ Roll Certificate)
13
EXHIBIT "I"
(Existing Loan Documents)
LOAN DOCUMENTS:
1. Promissory Note from Loyal Plaza Venture to ▇▇▇▇▇▇ Brothers Bank, FSB,
dated May 31, 2001
2. Loan Agreement from Loyal Plaza Venture, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB,
dated May 31, 2001
3. Open-end Mortgage and Security Agreement from Loyal Plaza Venture, L.P. and
Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May
31, 2001
4. Assignment of Management Agreement and Subordination of Management Fees
from Loyal Plaza Venture, L.P. and Glimcher Loyal Plaza Tenant, L.P. to
▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
5. Disclosure for Confession of Judgment from Loyal Plaza Venture, L.P. to
▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
6. Holdback and Indemnity Agreement from Glimcher Properties Limited
Partnership, Loyal Plaza Venture, L.P. and Glimcher Loyal Plaza Tenant,
L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
7. Assignment of Leases and Rents from Loyal Plaza Venture, L.P. and Glimcher
Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May 31, 2001
8. Environmental Indemnity Agreement from Loyal Plaza Venture, L.P. and
Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated May
31, 2001
9. Assignment of Personal Property Leases, Service Agreements, Permits,
Licenses, Franchises and Other Agreements from Loyal Plaza Venture, L.P.
and Glimcher Loyal Plaza Tenant, L.P. to ▇▇▇▇▇▇ Brothers Bank, FSB, dated
May 31, 2001
10. Cash Management Agreement among Loyal Plaza Venture, L.P., as Borrower and
Glimcher Loyal Plaza Tenant, L.P. as Tenant (Colelctively, Mnortgagor), and
▇▇▇▇▇▇ Brothers Bank, FSB as Lender and First Union National Bank as Agent
and Glimcher Properties Limited Partnership and Glimcher Development
Corporation Together as Manager, dated May 31, 2001
11. Clearing Account Agreement among Firstar Bank, National Aassociation, Loyal
Plaza Venture, L.P., Glimcher Loyal Plaza Tenant, L.P. and ▇▇▇▇▇▇ Brothers
Bank, FSB, dated May 31, 2001
14
EXHIBIT "J"
(Holdback and Indemnity Agreement)
15
SCHEDULE I
Ground Lease dated January 15, 1963, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇,
his wife, as Landlord, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Tenant, a Memorandum of which
was recorded on February 27, 1963 in Deed Book 492, Page 1142; as amended by an
Amendatory Agreement, dated March 26, 1964 and recorded April 13, 1964 in Deed
Book 500, Page 920; as assigned by Assignment, Assumption, Indemnity Agreement
by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assignor, and Williamsport Plaza Associates, a
Pennsylvania limited partnership, Assignee, dated July 1, 1989 and recorded July
19, 1989 in deed Book 1433, Page 291; and further assigned by Warranty
Assignment of Tenant's Interest in Ground Lease and Assumption Agreement by and
between Williamsport Plaza associates, L.P., a/k/a Williamsport Plaza
Associates, a Pennsylvania limited partnership, Assignor, and Glimcher Centers
Limited Partnership, a Delaware limited partnership, Assignee, dated January 17,
1994 and recorded February 17, 1994 in Record Book 2216, Page 210, all
recordings being in the Official Records of Lycoming County, Pennsylvania.
16
SCHEDULE II
1. All Leases currently in effect.
2. Latest environmental report.
3. Full size survey of property.
4. Seller's most recent title insurance commitment/policy, including all
exception documents.
5. Metes and Bounds description of property (legal description).
6. Copies of the Existing Loan Documents listed in Exhibit "I".
7. Financial Statement for Property for the past three (3) years.
8. Monthly operating statements for the past three (3) years.
9. Real Estate Tax Bills for past three (3) years, to the extent in Seller's
possession.
10. Utility Bills for last three (3) months, to the extent in Seller's
possession.
11. Detail for most recently completed reconciliation period, on tenant by
tenant basis, for reimbursements for CAM, Taxes and Insurance with
supporting schedule of expenses.
12. List and description of current rent delinquencies.
17
SCHEDULE III
(Loan escrows levels)
All balances are as of October 31, 2001:
1. Recurring Capital: $19,551.32
2. Rollover/Tenant Improvement: $21,666.64
3. Real Estate Tax: $92,824.72
4. Required Repairs: $455,000.00
(includes $450,000 for Holdback Indemnity Agreement)
18
SCHEDULE IV
List of environmental reports
LIST OF REPORTS/WORK PLANS FOR LOYAL PLAZA SITE
EMG, July 14, 1999, Phase I Environmental Assessment of Loyal Plaza, Loyalsock,
Pennsylvania
EMG, April 25, 2001, Phase II Environmental Assessment of Loyal Plaza,
Loyalsock, Pennsylvania
EMG, June 4, 2001, Additional Site Characterization of Loyal Plaza, Loyalsock,
Pennsylvania
▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇ I Environmental Assessment of Loyal Plaza, Loyalsock,
Pennsylvania
Civil & Environmental Consultants, Inc., January 3, 2002, Draft Work Plan for
Supplemental Remedial Investigation, Loyal Plaza, Williamsport, Pennsylvania
LIST OF REPORTS/WORK PLANS FOR ECKERD DRUG SITE
▇▇▇▇▇▇▇▇ Environmental Group, Inc., September 1999, Draft Remedial Investigation
Report, Former Hardee's Restaurant, 1913 East 3rd Street, Loyalsock Township,
Lycoming County, Williamsport, Pennsylvania
▇▇▇▇▇▇▇▇ Environmental Group, Inc., May 7, 2001, Remedial Action Summary, Former
Hardee's Eckerd, 1913 East 3rd Street, Loyalsock Township, Lycoming County,
Williamsport, Pennsylvania
Civil & Environmental Consultants, Inc., January 3, 2002, Draft Work Plan for
Supplemental Remedial Investigation, Eckerd Drug Property, Williamsport,
Pennsylvania
19
THIRD AMENDMENT TO AGREEMENT TO PURCHASE REAL ESTATE
This Third Amendment to Agreement to Purchase Real Estate is made this
first (1st) day of March, 2002, by and between LOYAL PLAZA VENTURE, L.P.
("Seller"), having offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
CEDAR INCOME FUND PARTNERSHIP, L.P. (together with its successors and assigns,
"Purchaser"), a Delaware limited partnership, having offices at c/o Cedar Bay
Realty Advisors, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, Purchaser and Seller have entered into an Agreement to Purchase Real
Estate dated January 7, 2002, as amended by First Amendment to Agreement to
Purchase Real Estate dated February 22, 2002, and Second Amendment to Agreement
to Purchase Real Estate dated February 27, 2002 ("Purchase Agrement"), with
respect to real property known as Loyal Plaza, Loyalsock Township, Lycoming
County, Pennsylvania ("Property"); and
WHEREAS, Purchaser and Seller desire to amend the Purchase Agreement as more
fully set forth herein;
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, Purchaser and Seller hereby ▇▇▇▇ as follows:
1. The Inspection Period is hereby extended through 5:00 EST on March 8,
2002.
2. Except as expressly set forth herein, the Puchase Agreement shall remain
unchanged and in full force and effect.
(signatures on following page)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth hereinabove.
SELLER:
LOYAL PLAZA VENTURE, L.P., a Delaware limited partnership
By: GLIMCHER LOYAL PLAZA, INC., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delaware limited partnership
by Cedar Income Fund, Ltd., a Maryland Real Estate Investment Trust,
its sole general partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
President
2
FOURTH AMENDMENT TO AGREEMENT TO PURCHASE REAL ESTATE
This Fourth Amendment to Agreement to Purchase Real Estate is made this
eight (8th) day of March, 2002, by and between LOYAL PLAZA VENTURE, L.P.
("Seller"), having offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
CEDAR INCOME FUND PARTNERSHIP, L.P. (together with its successors and assigns,
"Purchaser"), a Delaware limited partnership, having offices at c/o Cedar Bay
Realty Advisors, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, Purchaser and Seller have entered into an Agreement to Purchase Real
Estate dated January 7, 2002, as amended by First Amendment to Agreement to
Purchase Real Estate dated February 22, 2002, Second Amendment to Agreement to
Purchase Real Estate dated February 27, 2002 and Third Amendment to Agreement to
Purchase Real Estate dated March 1, 2002 ("Purchase Agrement"), with respect to
real property known as Loyal Plaza, Loyalsock Township, Lycoming County,
Pennsylvania ("Property"); and
WHEREAS, Purchaser and Seller desire to amend the Purchase Agreement as more
fully set forth herein;
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, Purchaser and Seller hereby ▇▇▇▇ as follows:
1. The Inspection Period is hereby extended through 5:00 EST on March 13,
2002.
2. Except as expressly set forth herein, the Puchase Agreement shall remain
unchanged and in full force and effect.
(signatures on following page)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth hereinabove.
SELLER:
LOYAL PLAZA VENTURE, L.P., a Delaware limited partnership
By: GLIMCHER LOYAL PLAZA, INC., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delaware limited partnership
by Cedar Income Fund, Ltd., a Maryland Real Estate Investment Trust,
its sole general partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
President
2
FIFTH AMENDMENT TO AGREEMENT TO PURCHASE REAL ESTATE
This Fifth Amendment to Agreement to Purchase Real Estate is made this
thirteenth (13th) day of March, 2002, by and between LOYAL PLAZA VENTURE, L.P.
("Seller"), having offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
CEDAR INCOME FUND PARTNERSHIP, L.P. (together with its successors and assigns,
"Purchaser"), a Delaware limited partnership, having offices at c/o Cedar Bay
Realty Advisors, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, Purchaser and Seller have entered into an Agreement to Purchase Real
Estate dated January 7, 2002, as amended by First Amendment to Agreement to
Purchase Real Estate dated February 22, 2002, Second Amendment to Agreement to
Purchase Real Estate dated February 27, 2002, Third Amendment to Agreement to
Purchase Real Estate dated March 1, 2002, and Fourth Amendment to Agreement to
Purchase Real Estate dated March 8, 2002 ("Purchase Agrement"), with respect to
real property known as Loyal Plaza, Loyalsock Township, Lycoming County,
Pennsylvania ("Property"); and
WHEREAS, Purchaser and Seller desire to amend the Purchase Agreement as more
fully set forth herein;
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, Purchaser and Seller hereby ▇▇▇▇ as follows:
1. The Inspection Period is hereby extended through 5:00 EST on March 15,
2002.
2. Except as expressly set forth herein, the Puchase Agreement shall remain
unchanged and in full force and effect.
3. This agreement may be executed by the exchange of copies bearing
facsimile signatures.
(signatures on following page)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth hereinabove.
SELLER:
LOYAL PLAZA VENTURE, L.P., a Delaware limited partnership
By: GLIMCHER LOYAL PLAZA, INC., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delaware limited partnership
by Cedar Income Fund, Ltd., a Maryland Real Estate Investment Trust,
its sole general partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
President
2
SIXTH AMENDMENT TO AGREEMENT TO PURCHASE REAL ESTATE
This Sixth Amendment to Agreement to Purchase Real Estate is made this
fifteenth (15th) day of March, 2002, by and between LOYAL PLAZA VENTURE, L.P.
("Seller"), having offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
CEDAR INCOME FUND PARTNERSHIP, L.P. (together with its successors and assigns,
"Purchaser"), a Delaware limited partnership, having offices at c/o Cedar Bay
Realty Advisors, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, Purchaser and Seller have entered into an Agreement to Purchase Real
Estate dated January 7, 2002, as amended by First Amendment to Agreement to
Purchase Real Estate dated February 22, 2002, Second Amendment to Agreement to
Purchase Real Estate dated February 27, 2002, Third Amendment to Agreement to
Purchase Real Estate dated March 1, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to Agreement to
Purchase Real Estate dated March 8, 2002, and Fifth Amendment to Agreement to
Purchase Real Estate dated March 13, 2002 ("Purchase Agreement"), with respect
to real property known as Loyal Plaza, Loyalsock Township, Lycoming County,
Pennsylvania ("Property"); and
WHEREAS, Purchaser and Seller desire to amend the Purchase Agreement as more
fully set forth herein;
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, Purchaser and Seller hereby agree as
follows:
1. The Inspection Period is hereby extended through 5:00 EST on March 22,
2002.
2. Except as expressly set forth herein, the Purchase Agreement shall
remain unchanged and in full force and effect.
3. This agreement may be executed by the exchange of copies bearing
facsimile signatures.
(signatures on following page)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth hereinabove.
SELLER:
LOYAL PLAZA VENTURE, L.P., a Delaware limited partnership
By: GLIMCHER LOYAL PLAZA, INC., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delaware limited partnership
by Cedar Income Fund, Ltd., a Maryland Real Estate Investment Trust,
its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
2
SEVENTH AMENDMENT TO AGREEMENT TO PURCHASE REAL ESTATE
This Seventh Amendment to Agreement to Purchase Real Estate (this
"Agreement") is made this 22nd day of March, 2002, by and between LOYAL
PLAZA VENTURE, L.P. ("Seller"), having offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, GLIMCHER PROPERTIES LIMITED PARTNERSHIP ("GPLP"), having
offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and CEDAR INCOME FUND
PARTNERSHIP, L.P. (together with its successors and assigns, "Purchaser"), a
Delaware limited partnership, having offices at c/o Cedar Bay Realty Advisors,
Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, Purchaser and Seller have entered into an Agreement to Purchase Real
Estate dated January 7, 2002, as amended by First Amendment to Agreement to
Purchase Real Estate dated February 22, 2002, Second Amendment to Agreement to
Purchase Real Estate dated February 27, 2002, Third Amendment to Agreement to
Purchase Real Estate dated March 1, 2002, and Fourth Amendment to Agreement to
Purchase Real Estate dated March 8, 2002 ("Purchase Agreement"), with respect to
real property known as Loyal Plaza, Loyalsock Township, Lycoming County,
Pennsylvania ("Property"); and
WHEREAS, Purchaser and Seller desire to amend the Purchase Agreement as more
fully set forth herein;
THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, Purchaser and Seller hereby agree as
follows:
1. Capitalized terms not defined herein shall have the meanings set forth
in the Purchase Agreement.
2. Purchaser hereby waives all contingencies and conditions to Purchaser's
obligation to close on its purchase of the Property, except the
Conditions Precedent set forth in Section 15 of the Purchase Agreement,
and agrees that for all purposes under the Purchase Agreement the
Inspection Period shall be deemed to have expired on the date of full
execution of this Agreement without termination of the Purchase
Agreement by Purchaser. With respect to certain title issues raised by
Purchaser, Seller agrees to take the measures at or before the Closing
as described in the correspondence dated March 18, 2002 attached hereto
as Exhibit A and made a part hereof.
3. Purchaser shall deposit with the Escrow Agent the Additional Deposit of
Seventy-five Thousand Dollars ($75,000.00), within two (2) business days
after the date of full execution of this Agreement.
4. The Closing shall occur within sixty (60) days after the date of full
execution of this Agreement, subject to extension as necessary until the
Existing Lender approves the assumption by Purchaser of the Existing
Loan on the terms set forth in the Existing Loan Documents or on other
terms acceptable to the Purchaser. Seller and Purchaser agree to
diligently and in good faith do all things reasonably necessary to
obtain the Existing Lender's approval of Purchaser's assumption of the
Existing Loan.
5. All of Section 24(c) of the Purchase Agreement except for the first
sentence of such section is hereby deleted in its entirety. GPLP and
Seller agree to pay all costs for the remediation of the environmental
contamination existing on the Property on the date of Closing (in
particular but without limitation, any petroleum contamination existing
at the Eckerd Drug site and dry cleaning solvent contamination existing
at the Advanced Auto Parts site) (collectively, "Existing
Contamination"), including, without limitation, all costs of
investigation, testing and analysis ("Remediation Costs"), as set forth
in the work plan or plans previously or to be submitted by GPLP in
accordance with the Pennsylvania Land Recycling and Remediation
Standards Act (collectively, the "Act 2 Work Plan") and ultimately
approved by the Pennsylvania Department of Environmental Protection
("PADEP"). Remediation Costs shall also include any costs of assessing
and remediating dry cleaning solvents and other hazardous substances
existing at the Property at or prior to the Closing Date and which may
have migrated or may in the future migrate off-site (which contamination
shall also be included within the term "Existing Contamination"). GPLP
shall promptly provide to Purchaser copies of any proposed Work Plan, as
well as any final Work Plan approved by PADEP and shall promptly provide
to Purchaser copies of all further environmental reports, tests and
surveys obtained with respect to the Property, all of the foregoing to
be certified by the environmental consultant to Purchaser as well as to
GPLP. Seller and GPLP agree to diligently pursue the approval by PADEP
of the Act 2 Work Plan. Any Work Plan which would call for deed or
operational restrictions to be placed against the Property, or call for
work which would interfere with the operations of tenants of the
Property, shall be subject to Purchaser's prior written approval, which
shall not be unreasonably withheld or delayed by Purchaser. GPLP's and
Seller's obligation under this Paragraph 5 shall not include any
liability to Purchaser for punitive or consequential damages of any kind
or nature (e.g., decrease in value of the Premises), but shall include
an obligation to hold harmless, indemnify and defend Purchaser from all
costs, expenses, claims, liabilities and damages directly resulting from
Existing Contamination, including, without limitation, claims brought by
third parties for personal injury or property damage resulting from
Existing Contamination, subject, however, to the provisions of Section 7
herein. GPLP shall have the right and obligation to perform the
remediation, and Purchaser agrees that GPLP, and its agents, employees
and contractors, shall have free access to the Property as is necessary
for the performance of the remediation, provided, however that (i) in
exercising such rights GPLP shall use all reasonable efforts to minimize
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interference with the operations of existing tenants, (ii) GPLP shall
first provide to Purchaser evidence of commercial general liability
insurance maintained by each contractor entering the Property, each such
policy to have a combined single limit for personal injury and property
damage of not less than $1,000,000 and naming Purchaser as an additional
insured thereon, and (iii) GPLP shall give Purchaser at least five (5)
days' prior notice of any entry which would result in a closure of any
portion of any tenant's premises or any portion of the common areas or
an interruption of any utilities serving the Property. GPLP shall hold
harmless Purchaser from and against any mechanic's or other liens
arising from the performance of any such work and shall cause any lien
to be discharged within 30 days of notice of such lien, by the posting
of a bond or by the payment thereof, failing which Purchaser shall have
the right to discharge such lien and all costs of such discharge shall
be paid by GPLP to Purchaser on demand.
6. Seller has previously deposited with the Existing Lender the sum of Four
Hundred Fifty Thousand Dollars ($450,000.00)("Holdback Escrow"),
pursuant to the Holdback Agreement (as defined in Section 24(c) of the
Purchase Agreement). The additional sum of Five Hundred Thousand Dollars
($500,000.00), shall be withheld from Seller's net proceeds at closing
and held in escrow by the Escrow Agent ("Remediation Escrow") in
accordance with a separate escrow agreement to be negotiated in good
faith and executed by Seller, GPLP, Purchaser and Escrow Agent at the
Closing (the "Remediation Escrow Agreement"), as a supplemental fund to
be used for the payment of the Remediation Costs after all funds in the
Holdback Escrow have first been depleted. Upon the approval by PADEP of
the Act 2 Work Plan, Seller's environmental consultant, Civil &
Environmental Consultants, Inc., shall prepare an estimate of the
anticipated costs of completing the remediation in accordance with the
Act 2 Work Plan, which estimate shall be addressed to Purchaser as well
as GPLP. To the extent that 125% of such estimated amount (plus the
estimated cost of satisfying any pending claims relating to the Existing
Contamination which would not be covered by insurance) is less than the
combined amounts then available in the Holdback Escrow and the
Remediation Escrow, the excess (over 125%) shall be released from the
Remediation Escrow to Seller by the Escrow Agent. If the Holdback Escrow
has been depleted, the Escrow Agent shall, from time to time (but not
more often than monthly), following receipt of a requisition from GPLP
and copies of receipts, contracts, waivers and other evidence of
Remediation Cost (copies of which shall concurrently be delivered to
Purchaser), release portions of the Remediation Escrow to GPLP to
reimburse GPLP for Remediation Costs, and if not previously released to
GPLP pursuant to this Paragraph 6, Escrow Agent shall disburse the
entire balance of the Holdback Escrow to GPLP upon Escrow Agent's
receipt of a "Release of Liability Letter" for the Property from the
PADEP. If GPLP has funded the Remediation Escrow with a letter of
credit, the release of funds from the Remediation Escrow shall occur by
GPLP first depositing with the Escrow Agent a new letter of credit equal
to the amount of the Remediation Escrow after the proposed release, and
the prior letter of credit shall be released by the Escrow Agent to
GPLP.
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7. Purchaser hereby acknowledges receipt of the opinion letter addressed to
Purchaser from Seller's independent environmental counsel attached
hereto as Exhibit "B" and made a part hereof, and agrees that from and
after delivery to Purchaser of the Act 2 Release of Liability Letter
referred to in Section 6 of this Agreement, GPLP shall have no further
liability to Purchaser under the provisions of Section 5 hereof.
8. Except as expressly set forth herein, the Purchase Agreement shall
remain unchanged and in full force and effect.
8. This Agreement shall survive the Closing and the transfer of title to
the Property to Purchaser, or its successors, assigns or nominees.
9. This Agreement shall inure to the benefit of and be binding upon Seller
and Purchaser, and their successors, assigns and legal representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth hereinabove.
SELLER:
LOYAL PLAZA VENTURE, L.P., a Delaware limited partnership
By: GLIMCHER LOYAL PLAZA, INC., a Delaware corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman & CEO
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
a Delaware limited partnership
by Glimcher Properties Corporation
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman & CEO
4
PURCHASER:
CEDAR INCOME FUND PARTNERSHIP, L.P.
a Delaware limited partnership
by Cedar Income Fund, Ltd., a Maryland Real Estate Investment Trust,
its sole general partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
President
5