RIGHT OF FIRST REFUSAL AGREEMENT
RIGHT OF FIRST REFUSAL AGREEMENT (this "Agreement") executed on this
19th day of November, 2003, and effective as of this 9th day of December, 2003,
by and among Welsh-Square, Inc., a Pennsylvania corporation ("WSI"), Indenture
of Trust of Xxxx Xxxxxxxxx dated as of June 9, 1998, a Pennsylvania trust ("1998
Trust") and Irrevocable Indenture of Trust of Xxxxxx Xxxxxxxxx dated July 13,
1999, a Pennsylvania trust ("1999 Trust"; and together with WSI and 1998 Trust,
collectively, the "Owners") and Delaware 1851 Associates, L.P., a Pennsylvania
Limited Partnership (the "Partnership").
WITNESSETH
WHEREAS, the Partnership is the owner of the property described in
Exhibit A annexed hereto.
WHEREAS, the Owners desire that the Partnership grant the First Refusal
Option (as that term is hereinafter defined).
WHEREAS, the Partnership is willing to grant to the Owners the First
Refusal Option.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
1. Subject to the terms of this Agreement, the Partnership agrees
that if any time the Partnership shall receive a bona fide written offer (an
"Offer") for the purchase of all or any portion of the Property which the
Partnership proposes to accept, the Partnership shall, within five (5) days of
the date of receipt of such Offer, give prompt written notice thereof to the
Owners (the "First Refusal Notice"). The First Refusal Notice shall set forth
the material terms and conditions of the Offer, including, the closing date, the
sales price, the down payment, the timing of payment, any financing contingency,
and any due diligence period, together with the permitted encumbrances which the
proposed purchaser is required to accept. The Owners shall have the option (the
"First Refusal Option") to purchase the Property strictly on the same terms and
conditions set forth in the First Refusal Notice. Such First Refusal Option
shall be exercisable by the Owner's (a "First Refusal Exercise Notice")
delivered to the Partnership not later than the tenth (10th) Business Day (the
"First Refusal Exercise Notice Date") following the date that such First Refusal
Notice is received by the Owners. Time is of the essence with respect to the
Owner's giving of the First Refusal Exercise Notice to the Partnership. The
First Refusal Option shall be exercisable by the Owners in accordance with, and
shall be subject to and governed by, the terms, covenants and conditions
contained in this Paragraph 1. The closing of any sale to the Owners shall occur
on the date (the "First Refusal Closing Date") that is the later to occur of (x)
the closing date set forth in the First Refusal Notice and (y) thirty (30) days
after the date of delivery by the Owners of the First Refusal Exercise Notice.
If the Owners shall timely and properly give a First Refusal Exercise Notice to
the Partnership, the parties shall proceed in good faith and with due diligence
to enter into documentation necessary to consummate the sale of the Property
which shall reflect the terms of the Offer set forth in such First Refusal
Notice, together with other commercially reasonable terms. If the parties shall
fail
to enter into such documentation by the First Refusal Closing Date, the Owners'
First Refusal Exercise Notice shall be deemed to be revoked.
2. If the Owners fail to give a First Refusal Exercise Notice to
the Partnership on or before the respective First Refusal Exercise Notice Date
or the Owners shall elect not to accept the Offer set forth in the respective
First Refusal Notice on or before such First Refusal Exercise Notice Date or the
Owners' First Refusal Exercise Notice shall be deemed to be revoked (as
contemplated by the last sentence of Paragraph 1), then the First Refusal Option
shall be deemed revoked, null and void, and of no further force and effect, and
the Partnership may thereafter proceed with the sale of the Property so long as
the purchase price for such sale is at least ninety fie (95%) percent of the
purchase price set forth in the First Refusal Notice; provided however, if the
Partnership shall fail to close such transaction within ten (10) months after
the respective First Refusal Exercise Notice Date, then the Owners' First
Refusal Option shall continue to apply to any subsequent availability for sale
of the Property.
3. If the Owners shall timely and properly give a First Refusal
Exercise Notice to the Partnership, and the parties shall timely enter into
documentation necessary to consummate the sale of the Property, but the closing
shall fail to occur due to a default by the Owners, then the First Refusal
Option shall be deemed permanently revoked, null and void, and of no further
force or effect.
4. This Agreement shall automatically terminate upon the earlier of
(i) the date which is ten (10) years from the date hereof, and (ii) the
nullification of the First Refusal Option pursuant to Section 3. Notwithstanding
such automatic termination, the Owners shall, upon the termination of this
Agreement, execute and deliver a document, in form suitable for recording,
terminating all of its right, title, and interest in and to the First Refusal
Option, and, if the Owners fail to do so within twenty (20) days following the
date of such termination, the Owners shall be deemed to have designated a power
of attorney to the Partnership to execute such termination on the Owners behalf.
5. Notices. Any notice required or permitted to be delivered herein
shall be deemed to be delivered (a) when received by the addressee if delivered
by courier service, (b) if mailed, two days after deposit in the United States
Mail, postage prepaid, certified mail, return receipt requested, (c) if sent by
recognized overnight service (such as US Express Mail, Federal Express, UPS,
Airborne, etc.), then one day after delivery of same to an authorized
representative or agency of the said overnight service or (d) if sent by a
telecopier, when transmission is received by the addressee with electronic or
telephonic confirmation, in each such case addressed or telecopied to the Owners
or the Partnership, as the case may be, at the address or telecopy number set
forth opposite the signature of such party hereto. Notifications are as follows:
TO OWNERS: c/o Tower Investments, Inc.
Xxx Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxxxx and Xxxxx X.
Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
with a copy to: Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telecopier: (000) 000-0000
TO THE PARTNERSHIP: c/o Cedar-Columbus LLC
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx
Telecopier: (000) 000-0000
with a copy to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
6. Subordination. Notwithstanding anything to the contrary
contained in this Agreement, both this Agreement and the Owners' right, title,
and interest in and to the First Refusal Option are and shall hereafter be
subject and subordinate to any mortgage now or hereafter encumbering the
Property or any portion thereof. The Owners rights with the First Refusal Option
shall not apply in connection with any foreclosure of the property or deed in
lieu thereof.
7. Days. Except where business days are expressly referred to,
references in this Agreement to days are to calendar days, not business days.
"Business Day" means any calendar day except a Saturday, Sunday or banking
holiday.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
9. Partnership Agreement. Nothing contained herein shall be deemed
to modify or amend the terms and conditions of that certain Amended and Restated
Agreement of Limited Partnership of Delaware 1851 Associates, LP, of even date
herewith, between Cedar-Columbus LLC, a Delaware limited liability company,
CSC-Columbus LLC, a Delaware limited liability company, and Owners.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
WELSH-SQUARE, INC.
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
INDENTURE OF TRUST OF XXXX XXXXXXXXX
DATED AS OF JUNE 9, 1998
By: /s/ Xxx Xxxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxxx
Title: Co-Trustee
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
IRREVOCABLE INDENTURE OF TRUST OF
XXXXXX XXXXXXXXX DATED JULY 13, 1999
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
DELAWARE 1851 ASSOCIATES, LP
By: CEDAR-COLUMBUS LLC
its general partner
By: CEDAR SHOPPING CENTERS
PARTNERSHIP, L.P.,
its member
By: CEDAR SHOPPING CENTERS, INC.
its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 9th day of December, 2003 before me, the undersigned Notary
Public, personally appeared XXXX XXXXXXXXX, who acknowledged himself to be the
President of WELSH-SQUARE, INC., a Pennsylvania corporation, and that he, as
such President, being authorized to do so, executed the foregoing instrument for
the purposes therein contained by signing the name of the corporation by himself
as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 9th day of December, 2003, before me, the undersigned Notary
Public, personally appeared XXX XXXXXXXXX known to me (or satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and
acknowledged that she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 9th day of December, 2003, before me, the undersigned Notary
Public, personally appeared XXXXX X. XXXXXXXX known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
------------------------
Notary Public
My commission expires:
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF PHILADELPHIA )
AND NOW, this 9th day of December, 2003, before me, the undersigned Notary
Public, personally appeared XXXXXX X. XXXXXX known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
------------------------
Notary Public
My commission expires:
STATE OF NEW YORK )
) ss:
COUNTY OF NASSAU )
AND NOW, this 19th day of November, 2003, before me, the undersigned Notary
Public, personally appeared XXXXXX X. XXXXXX, who acknowledged herself to be the
Vice President of the CEDAR SHOPPING CENTERS, INC., a Pennsylvania corporation,
and that she, as such Vice President, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing the name of
the corporation by herself as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/
------------------------
Notary Public
My commission expires:
