Exhibit 10.46
PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered effective
________, 2000 by and between RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP
("Seller"), a Delaware limited partnership, and TARGET CORPORATION ("Buyer"), a
Minnesota corporation.
RECITALS:
A. Seller is the owner of a certain tract of land (the "Shopping Center
Tract") consisting of approximately 11.64 acres located in the County of
Xxxxxxxxxx, Commonwealth of Pennsylvania, legally described on Exhibit A-1 and
shown on the site plan attached hereto as Exhibit B (the "Site Plan").
B. The Shopping Center Tract is currently developed as an approximately
221,505 square foot shopping center with an approximately 207,429 square foot
multi-level "Main Building" and a separate approximately 14,076 square foot
single level out-parcel building. The various units or parcels within the
Shopping Center Tract are collectively sometimes referred to herein as the
"Shopping Center."
C. A proposed Condominium Plat and Plan is attached hereto as Exhibit C
(the "Condominium Plan") and a proposed Declaration of Condominium of Abington
Towne Center Condominium is attached hereto as Exhibit D (the "Declaration").
Seller shall convert the Shopping Center Tract into a commercial condominium
consisting of various units and become the Declarant of a condominium regime to
be created pursuant to the Declaration and Condominium Plan to be recorded in
the Office of the Recorder of Deeds of Xxxxxxxxxx County, Pennsylvania. The
condominium regime will consist of three (3) units, two of which will be owned
by Seller ("Units I and II") and one to be conveyed to Buyer ("Unit III").
D. Buyer desires to secure from Seller the exclusive right to purchase
the condominium Unit III that is identified on Exhibit B and legally described
on Exhibit A-1, which Unit III consists of Parcels T1, T2 and T3 and is
generally referred to herein as the "Property"), for the intended purposes of
constructing the Contemplated Improvements (hereinafter defined) thereon and the
conduct of a retail business thereon. The Property consists of approximately
157,616 square feet on three levels of the Main Building plus parking, loading
dock and driveway areas. The final Unit size and configuration shall be subject
to confirmation by Seller and Buyer.
E. Seller is willing to grant and extend to Buyer such purchase right
on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the covenants set forth herein and
other good and valuable consideration, the receipt and sufficiency of which the
parties hereby acknowledge, Seller agrees to sell to Buyer and Buyer agrees to
purchase from Seller the Property, together with and including all
hereditaments, appurtenances, easements and right of ways thereunto belonging or
in any way appertaining, subject to and upon the following terms and conditions:
SECTION 1 - PURCHASE PRICE. The purchase price of the Property (the
"Purchase Price") shall be Nine Million Five Hundred Thousand and No/100 Dollars
($9,500,000.00). The Purchase Price shall be payable at Closing (as defined in
Section 13) by cashier's check or by wire transfer, at Buyer's option.
SECTION 2 - DEPOSIT. As consideration for the grant of the exclusive
right to purchase the Property, within five (5) days of receipt by Buyer of a
fully executed original counterpart of this Agreement, Buyer shall place in
escrow with:
New York Land Services, Inc.
Attn: Xxxxxxx Xxxx
000 0xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
(the "Title Company" and also sometimes referred to as "Escrow Agent") the sum
of Ten Thousand Dollars ($10,000.00) (the "Deposit") which shall be retained and
disbursed by the Title Company for the benefit of Seller and Buyer in accordance
with the provisions of Section 3 below.
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SECTION 3 - INVESTMENT AND DISBURSEMENT OF THE DEPOSIT. Upon receipt of
funds paid toward the Deposit, the Title Company is hereby directed to invest
the same in an interest-bearing account acceptable to Buyer. Interest earned on
said funds shall be considered to be part of the Deposit and shall be disbursed
accordingly. The Title Company shall disburse the Deposit as follows:
A. If Seller terminates this Agreement because of Buyer's default, the
Deposit shall be disbursed to Seller upon such termination.
B. If this Agreement terminates for any reason other than Buyer's
default, then the Deposit shall be disbursed to Buyer upon such termination.
C. If Buyer proceeds to Closing, the Deposit shall be disbursed to
Seller at Closing in part payment of the Purchase Price.
SECTION 4 - CONTINGENCIES. Buyer contemplates acquiring the Property
for the construction and operation of a general merchandise store initially
containing approximately 152,091 square feet of floor space, together with
parking, loading dock and driveway areas and other appurtenant facilities (the
"Contemplated Improvements"). Seller acknowledges that the Property may be of no
use to Buyer unless certain conditions precedent to such use exist. Seller has
delivered to Buyer, for Buyer's review and approval, all on- and off-site
engineering, geotechnical engineering, development schedules, reports and Phase
I and Phase II (if any) environmental reports and copies of all agreements
relating to obtaining government approvals for the re-development of the
Shopping Center.
Buyer's obligation to close the transaction contemplated herein shall
therefore be conditioned upon Buyer satisfying itself on or before thirty (30)
days prior to the Date of Closing (the "Due Diligence Period") that the
following contingencies are met:
A. Buyer may use the Property for retail/commercial purposes
without being in violation of any zoning classification, land use
classification, environmental requirement, or any other land use
classification or building classification or requirement established by
any entity or authority having legal jurisdiction or authority
thereover. The availability or probability of the issuance of a
variance or special use permit necessary to satisfy this condition
shall not be considered sufficient unless the actual issuance thereof
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is or will be unconditional. Seller shall be responsible to obtain all
governmental approvals (except building and occupancy permits for the
Property, which will be Buyer's responsibility in the ordinary course
of construction) necessary for the re-development of the Shopping
Center Tract and the Buyer's Contemplated Improvements. It is Buyer's
understanding that the Shopping Center Tract is currently properly
zoned for the re-development of the Shopping Center, including the
construction (and subsequent operation) of the Contemplated
Improvements. Buyer and Seller are therefore of the opinion that as of
the date hereof the contingencies set forth in this paragraph have been
satisfied. At closing, Seller shall confirm to Buyer that the
circumstances involving the contingencies set forth in this paragraph
have not changed.
B. All utilities, including electricity, gas, water (fire and
domestic), storm and sanitary sewer, are, or will be at the time Buyer
shall commence construction of its contemplated improvements, available
on-site, of size and capacity sufficient to serve the Contemplated
Improvements and retail use, and at the time of such construction
commencement, Buyer will be immediately entitled to connect into such
utilities upon payment of only the usual and customary connection fees.
Buyer and Seller contemplate that after the Closing the utilities will
be installed and/or constructed within the Shopping Center Tract as
part of the work to be performed pursuant to either Building
Development Agreement (the "BDA") or the Site Development Agreement
(the "SDA") referenced in Section 5 hereof. Buyer hereby acknowledges
that it is satisfied that this contingency has been met, subject to
work being completed under the BDA and SDA. At closing, Seller shall
confirm to Buyer that the circumstances involving the contingencies set
forth in this paragraph have not changed.
C. The Site Plan has received all necessary governmental
approvals. (Buyer has approved the Site Plan that Developer submitted
for governmental approvals.) Any changes to the Site Plan shall require
Buyer's approval, which approval shall not be unreasonably withheld
provided, however, that Buyer's approval of any of the following
modifications to the Site Plan must be acceptable to Buyer in Buyer's
sole and absolute discretion: (i) changes or alterations in any points
of access, (ii) changes or alterations in the locations of any
freestanding signs, (iii) changes or alterations in the permitted
building area envelopes, and (iv) changes or alterations in parking
area layouts and traffic patterns. Buyer and Seller are of the opinion
that as of the date hereof the contingencies set forth in this
paragraph have been satisfied. At closing, Seller shall confirm to
Buyer that the circumstances involving the contingencies set forth in
this paragraph have not changed.
D. On or before Closing, a condominium regime will have been
validly formed in accordance with the Pennsylvania Uniform Condominium
Act and the final Declaration and Condominium Plan (both in form and
substance acceptable to Buyer) have either (i) been recorded or (ii)
received all necessary approvals, are in final recordable form and have
been delivered to the Title Company for recording at Closing, such that
the Property can be conveyed to Buyer as contemplated herein. The
Condominium Plan shall not be acceptable to Buyer if it (or any
municipal ordinance enacted in conjunction with the approval of it)
contains any conditions to, or reservation of approvals necessary for
the issuance of building permits or a certificate of occupancy, other
than compliance with applicable building codes.
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E. The Property and the Shopping Center Tract have ingress and
egress for vehicular traffic to and from adjacent public streets as
provided in the Site Plan. Buyer and Seller are of the opinion that as
of the date hereof the contingencies set forth in this paragraph have
been satisfied. At closing, Seller shall confirm to Buyer that the
circumstances involving the contingencies set forth in this paragraph
have not changed.
F. Buyer is satisfied, at its sole discretion, that all
permits, licenses and other governmental authorizations necessary for
the development of the Property and construction of the Contemplated
Improvements in accordance with the approved Site Plan and its building
permit have been issued or will be issued upon closing of the
transaction contemplated by this Agreement or upon payment of
applicable fees. This condition shall not be considered satisfied
unless the actual issuance of the foregoing permits, licenses,
approvals and authorizations is unconditional. Seller shall, at
Seller's expense be responsible to obtain all of the foregoing
approvals, permits and variances (except building and occupancy permits
for any portion of the development being constructed by Buyer and
others) necessary for the re-development of the Shopping Center Tract
and the Buyer's Contemplated Improvements. Buyer and Seller are of the
opinion that as of the date hereof the contingencies set forth in this
paragraph have been satisfied. At closing, Seller shall confirm to
Buyer that the circumstances involving the contingencies set forth in
this paragraph have not changed. The foregoing is not intended to
modify Seller's obligations to obtain all such approvals, permits and
variances.
G. If Buyer were to apply for a building permit for the
Contemplated Improvements on the Property as of the Date of Closing and
pay all required application fees, and provided that the plans for such
Contemplated Improvements complied with all applicable building codes,
Buyer could obtain such building permit without further act.
H. All of the representations and warranties of Seller
contained in this Agreement are true and correct in all material
respects on the Date of Closing as if the same were made on and as of
such date.
I. Seller's certificate, if any, regarding material changes in
its representations and warranties as contemplated by Section 11 does
not disclose any matter not acceptable to Buyer in Buyer's sole and
absolute discretion.
J. The conditions and/or circumstances found to exist during
Buyer's investigations and studies of the Property pursuant to Sections
4 and 7.1 hereof shall remain unchanged.
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K. All covenants of Seller required in this Agreement to be
performed on or before the Date of Closing have been timely and duly
performed in all material respects.
L. At Closing, the Property shall be free of Hazardous
Substances.
If circumstance change prior to closing such that the foregoing
conditions no longer exist to the satisfaction of Buyer, in its sole and
absolute discretion, Buyer may, at Buyer's sole option, terminate this Agreement
by giving written notice to Seller at any time prior to Closing. Upon such
termination of this Agreement, both parties shall be released from all duties
and obligations created herein. The conditions set forth in this Section 4 are
for Buyer's sole benefit and Buyer may, in its sole and absolute discretion,
waive (conditionally or absolutely) the fulfillment of one or more of the
conditions or any part thereof. Seller agrees that it will not take or
authorize, directly or indirectly, any action that modifies or changes the
circumstances upon which the conditions set forth in this Section 4 were deemed
satisfied or waived by Buyer without Buyer's prior written consent.
SECTION 5 - ADDITIONAL AGREEMENTS. Seller and Buyer have agreed that
the Shopping Center Tract shall be used as a retail shopping complex. In
furtherance of the parties' understandings, on or before the Closing, Seller and
Buyer shall each execute the agreements (the "Additional Agreements") attached
hereto as:
Exhibit D: Declaration of Condominium (Seller, only, executes); and
Exhibit E: Building Development Agreement (BDA).
Exhibit F: Site Development Agreement (SDA).
Seller shall obtain the proper execution of the BDA, SDA and
Declaration by any other necessary party thereto.
The execution and delivery of the Additional Agreements in accordance
with this Section 5 shall be an affirmative obligation of each party. The Title
Company shall deliver one original counterpart of the Declaration, BDA and SDA
to each party thereto at Closing and record the same.
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SECTION 6 - CONDOMINIUM PLATTING. Seller acknowledges that the Shopping
Center Tract must be platted as a condominium and the Declaration recorded in
order for Buyer to record the Deed and re-develop the Property as intended.
Seller, at its sole cost and expense shall cause such platting requirement to be
satisfied in accordance with the Site Plan or as otherwise approved in advance
by Buyer and the Declaration to be recorded by no later than Closing. The
Property shall be assessed as a separate tax parcel. Seller agrees that it shall
not form any assessment district for the payment of on- or off-site improvements
related to the re-development of the Shopping Center. If such a district is
formed, Seller shall indemnify Buyer from such assessments. The foregoing
obligations shall survive the Closing and delivery of the Deed.
Seller, with Buyer's assistance, shall use commercially reasonable
efforts and all due diligence to complete the procedure as quickly as possible.
If, as a result of such platting , the legal description of the Property is
modified, Seller shall cause the Survey and the Commitment to be updated to
reflect such modification. If such platting is not completed prior to the
Closing, Buyer, at its option, may (i) take over the platting process and
complete the same, deducting the cost thereof from the Purchase Price payable at
Closing and extend the Closing as necessary, (ii) terminate this Agreement and
receive from Seller the reimbursement of Buyer's out-of-pocket expenses
associated with the project contemplated herein; or (iii) elect to extend the
Date of Closing until such procedure is completed; provided, however, that if
Buyer elects to extend the Date of Closing pursuant to (i) or (iii) above, this
Agreement shall nevertheless terminate if such procedure has not been completed
within one (1) year of the originally scheduled Date of Closing. Upon such
termination each party shall be released from all duties or obligations
contained herein.
SECTION 7 - BUYER'S INVESTIGATION AND INSPECTIONS.
7.1 Seller hereby grants to Buyer, its employees, agents, consultants
and contractors, the right to enter onto the Property and, to the extent
necessary, onto any other part of the Shopping Center Tract or other adjacent
land owned by the Seller, for the purpose of performing such surveys, soil
tests, hydrology tests, percolation tests, environmental tests, and other
engineering tests or environmental investigations Buyer may reasonably deem
appropriate. As of the date hereof, Buyer believes that it has completed all
such tests and investigations.
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7.2 Seller represents that it has delivered to Buyer all of the
information (for example, any surveys, plans, reports, test results, permits or
tank registrations, and title policies) Seller has within its control regarding
the Property and Shopping Center Tract, including, without limitation, relating
to the environmental condition of the Property and Shopping Center Tract and/or
any subterranean structures or utilities which may be present on the Property
and Shopping Center Tract, and Seller shall continue to promptly deliver all
such materials. Seller understands that Buyer needs this information in order to
properly evaluate the Property and, more importantly, to avoid damaging
underground structures and utilities and to avoid causing, contributing to or
exacerbating the release of a hazardous substance in the course of its
investigations.
7.3 Buyer agrees to pay all of the costs and expenses associated with
its investigation and testing and to repair, and Buyer shall restore any damage
to the Property to Seller's reasonable satisfaction caused by Buyer's
investigations or testing, at Buyer's expense. Buyer also agrees to hold the
Seller harmless from all costs, expenses and liabilities arising out of Buyer's
negligence or willful misconduct or that of its employees, agents, consultants
or contractors in performing its evaluation of the Property, except that Buyer
shall have no responsibility to Seller and is hereby released from liability by
Seller for any damage to persons or property or any release arising out of
existing environmental conditions or subterranean structures or utilities that
were known to the Seller and not disclosed to Buyer as provided in Section 7.2
hereof.
7.4 Soil, rock, water, asbestos, and other samples taken from the
Property shall remain the property of Seller. At Seller's request, Buyer will
assist in making arrangements for the lawful disposal of any contaminated
samples and will pay any related transportation or disposal fees, but only if
Seller signs the manifest and any other documents required in connection with
the disposal of contaminated samples. If Seller is not willing to sign the
required documentation, Buyer's only obligation shall be to return the
contaminated samples to Seller.
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7.5 Any investigation or inspection conducted by Buyer or any agent or
representative of Buyer pursuant to this Agreement in order to verify
independently Seller's satisfaction of any conditions precedent to Buyer's
obligation hereunder or to determine whether Seller's representations and
warranties are true and accurate, shall not affect (or constitute a waiver by
Buyer of) any of Seller's obligations hereunder or Buyer's reliance thereon.
SECTION 8 - SITE PLAN APPROVAL AND PERMITS. Except for Buyer's exterior
building signage approvals for which Buyer shall be responsible, Seller shall be
responsible for obtaining all necessary permits, variances, platting and
subdivision and other forms of governmental approvals necessary for the
re-development of the Shopping Center (including those deemed necessary by Buyer
for development of the Property and construction of the Contemplated
Improvements, but excluding Buyer's store building permit or the permits Buyer
is required to obtain for its water and sewer connections), including the
installation of utilities and other operation or use applications relating to
the Shopping Center and Property and the construction of any necessary off-site
improvements (excluding a certificate of occupancy for Buyer's store building).
Seller agrees to cooperate with Buyer in the planning and engineering for final
site plan approval and for all necessary off-site improvements, and the
prosecution of any such other applications or petitions. The cost for all land
use work (i.e., engineering, surveying, plating, zoning application fees,
attorney's fees) shall be Seller's responsibility.
SECTION 9 - TITLE EVIDENCE.
9.1 Buyer shall obtain a commitment (the "Commitment") for an owner's
policy of title insurance (ALTA Owner's Policy 1970 or the equivalent) in the
amount of the Purchase Price covering the Property and easements appurtenant
thereto and Buyer's estimate of the cost of the Contemplated Improvements. The
Commitment shall bear a date subsequent to the date hereof, shall include
legible copies of all documents, maps or plats set forth therein as affecting
the Property and shall be issued through Commonwealth Land Title Insurance
Company (the "Title Company") (or such other title company that Buyer has
approved in advance). The Commitment shall identify the Property and easements
appurtenant thereto by the legal description(s) set forth on the Survey referred
to in Section 10 hereof and shall include all appropriate real estate tax
information and lien, judgment and bankruptcy searches. The Commitment shall
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contain endorsements (unless prohibited by law) insuring (i) that all of the
parcels comprising the Shopping Center and specifically the Property are
contiguous (if comprised of more than one parcel) and that the Property is
contiguous to the remainder of the Shopping Center and any real estate
containing easements appurtenant thereto, (ii) deleting the co-insurance
provisions of Section 7(b), as well as arbitration and creditor's rights
provisions, (iii) that the Property and Shopping Center abut the public
street(s) immediately adjacent thereto and has direct and valid access thereto,
and (iv) that the Condominium has been validly formed in accordance with the
Pennsylvania Uniform Condominium Act. Seller hereby agrees to provide to the
Title Company any updated abstracts of title covering the Shopping Center Tract
and/or any other form of title evidence it may have obtained, including any
attorney's title opinion or any owner's title insurance policy.
9.2 Within thirty (30) days after receipt of the Commitment and the
Survey in the forms specified herein, Buyer shall deliver to Seller a written
statement containing any objections Buyer may have to title, including any
matters shown on the Survey. If such statement is so delivered, Seller shall use
commercially reasonable efforts and all due diligence to cure or remove all such
objections prior to Closing. The removal or cure of any such objection shall be
evidenced by Seller providing an endorsement to the Commitment and/or a revised
Survey or updated Commitment showing such objections to be cured or removed.
9.3 Buyer may, from time to time (but no more than once every 45 days)
prior to Closing and in conjunction with the Closing, request an update to the
Commitment ("Title Update(s)"). If any Title Update(s) disclose any defects in
or exceptions to title in addition to the defects and exceptions disclosed by
the Commitment which Purchaser shall not have expressly consented to in writing,
Seller shall use commercially reasonable efforts and all due diligence to
eliminate or otherwise correct said additional title defects and/or exceptions
prior to Closing (unless arising out of the acts or omissions of Buyer).
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9.4 If any objection is not cured or removed prior to Closing, Buyer
may elect, before the Closing Date to (i) accept title to the Property as it is,
subject to the right to deduct from the Purchase Price funds necessary to
satisfy outstanding mechanics, mortgage-related or judgment liens, or (ii)
terminate this Agreement. Upon any such termination, each party shall be
released from all duties or obligations contained herein.
9.5 Buyer, at Closing, shall be responsible to pay the premium for the
owner's title insurance policy required hereunder for the Property, including
the additional cost, if any, of an extended coverage endorsement, for any
increase in the policy limit to cover the cost of the Contemplated Improvements
and for any endorsements in addition to those set forth in Section 9.1 hereof
which do not serve to cure a title defect. Seller shall be responsible for the
additional cost of curing a title defect.
SECTION 10 - SURVEY.
10.1 Seller, at its expense, has delivered to Buyer a current survey of
the Property (the "Survey") as soon as possible hereafter prepared by a surveyor
licensed by the Commonwealth of Pennsylvania. Seller directed that the Survey be
prepared in accordance with the current standards for Land Title Surveys of the
American Title Association and the American Congress on Surveying and Mapping.
The Survey shall be certified to Buyer, Seller and the Title Company. Seller may
request Buyer's Survey Requirements from Buyer's Site Development Manager and is
encouraged to do so. The Survey shall set forth the legal description(s) and
street address(es) (if any) of the Property and shall include a vicinity map
showing the location of major streets and/or highways. The Survey shall identify
all (i) improvements (including fences), (ii) easements (visible or recorded),
including recording information concerning the documents creating any such
easements, (iii) building lines, (iv) curb cuts, (v) sewage, water, electricity,
gas and other utility facilities, together with points of connection, (vi) roads
and other means of physical and record ingress and egress to and from the
Property from public roads (including the dimensions of abutting streets), (vii)
riparian areas and areas located within flood plains or conservation areas or
designated as wetlands, and (viii) improvements on adjoining properties which
are within five (5) feet of the property lines of the Property.
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10.2 If the Survey shall show encroachments onto the Property from any
adjacent real estate, encroachments from the Property onto any adjacent real
estate, a gap between the Property and an supposedly adjoining tract or street,
violation of any recorded building lines or setbacks, restrictions or easements
affecting the Property and/or any matters not reflected on the Commitment,
including the possible rights of third parties, such matters shall automatically
be objections to title.
SECTION 11 - SELLER'S WARRANTIES AND REPRESENTATIONS.
A. General Representations and Warranties.
Seller warrants and represents to Buyer that the following statements
are now true and accurate:
1. Seller has good, marketable and insurable record title to
the Shopping Center Tract; Seller has owned and/or been in
possession of the Shopping Center Tract for approximately ten
(10) years.
2. Seller shall secure all private and municipal and
governmental agreements and approvals necessary for the
development and operation of the Shopping Center and the
Target store on the Property (other than approval of Buyer's
signage and building plans), including, without limitation,
all exterior signs, the Declaration and the Condominium Plan.
Developer shall specifically warrant the foregoing at Closing.
3. The Property is not subject to any mechanics' liens, nor
are there any third parties in or entitled to possession
thereof.
4. Seller has not received any notice, nor is it aware of any
pending action to take all or any portion of the Shopping
Center Tract, nor has Seller agreed or committed to dedicate
any part of the Shopping Center Tract.
5. The Shopping Center Tract and the Property have free and
full access to and from all adjoining streets, roads and
highways, and there is no pending or threatened action that
would impair such access.
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6. Neither the Property nor the Shopping Center Tract has been
classified under any designation authorized by law to obtain a
special low ad valorem tax rate or receive either an abatement
or deferment of ad valorem taxes which, in such case, will
result in additional, catch-up ad valorem taxes in the future
in order to recover the amounts previously abated or deferred,
and Seller shall not form any other assessment district.
7. Neither the Shopping Center Tract nor its use is in
violation of any local governmental rule, ordinance,
regulation or building code, nor is there a pending or
threatened investigation regarding a possible violation of any
of the foregoing.
8. Seller has not received any notice nor is it aware of any
litigation or administrative proceeding pending or threatened
(including the expiration of any appeal period with respect
thereto) relating to the Shopping Center Tract or its use
which may adversely affect the validity of any license, permit
or other governmental determination or authorization necessary
to development and operation of the Shopping Center Tract.
9. Seller is not a "foreign person" as contemplated by Section
1445 of the Internal Revenue Code.
10. Seller has the full capacity, right, power and authority
to execute, deliver and perform this Agreement and all
documents to be executed by Seller pursuant hereto, and all
required actions and approvals therefor have been duly taken
and obtained. The individuals signing this Agreement and all
other documents executed or to be executed pursuant hereto on
behalf of Seller are and shall be duly authorized to sign the
same on Seller's behalf and to bind Seller thereto.
11. This Agreement and all documents to be executed pursuant
hereto by Seller are and shall be binding upon and enforceable
against Seller in accordance with their respective terms, and
the transaction contemplated hereby will not result in a
breach of, or constitute a default or permit acceleration and
maturity under, any indenture, mortgage, deed of trust, loan
agreement or other agreement to which Seller or the Property
or Shopping Center Tract are subject or by which Seller or the
Property or Shopping Center Tract are bound.
12. Seller has not (i) made a general assignment for the
benefit of creditors, (ii) filed any involuntary petition in
bankruptcy or suffered the filing of any involuntary petition
by Seller's creditors, (iii) suffered the appointment of a
receiver to take possession of all or substantially all of
Seller's assets, (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Seller's
assets, (v) admitted in writing its inability to pay its debts
as they come due, or (vi) made an offer of settlement,
extension or composition to its creditors generally.
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B. Seller represents and warrants to Buyer that the following
statements are now true and accurate:
1. To the best of Seller's knowledge, no Hazardous Substance
is located on, in, or under the Shopping Center Tract, except
as disclosed on Exhibit G.
2. To the best of Seller's knowledge, neither as of this date
nor at any time prior to the date hereof, has there been a
Release of any Hazardous Substance in, on, or under the
Shopping Center Tract, except as disclosed on Exhibit G.
3. Neither Seller nor Seller's Affiliates have ever used the
Shopping Center Tract for the use, storage, generation,
manufacture, treatment, transportation or disposal of any
Hazardous Substance, nor, to the best of Seller's knowledge,
has the Shopping Center Tract ever been used for the storage,
manufacture, disposal, handling, transportation or use of any
Hazardous Substance, except as disclosed on Exhibit G.
4. Any permits or licenses necessary or required to store, use
or manufacture any Hazardous Substance within or on the
Shopping Center Tract have been obtained, are being complied
with, and are in full force and effect.
5. To the best of Seller's knowledge, Seller's activities on
the Shopping Center Tract and those of its tenants, subtenants
and licensees, if any, comply with all applicable
Environmental Laws.
6. There is no, nor, to the best of Seller's knowledge, has
there ever been any, investigation, administrative proceeding,
litigation, regulatory hearing or other action proposed,
threatened or pending, relating to the Shopping Center Tract
and alleging non-compliance with or liability under any
Environmental Law; nor is the Shopping Center Tract listed on
CERCLIS or any comparable state list of hazardous waste sites
identified for investigation or remediation except as may
otherwise be specified in Exhibit G;
7. Seller has disclosed to Buyer all assessments, studies,
sampling results, evaluations and other reports commissioned
by or for Seller or within Seller's possession or control
relating to the environmental condition of the Shopping Center
Tract.
8. There are not now and were not at any time during which
Seller's Affiliates had any interest in the Shopping Center
Tract, nor to the best of Seller's knowledge, have there ever
been, any above-ground or underground storage tanks located
in, on or under the Shopping Center Tract, except as disclosed
on Exhibit G.
9. With respect to any storage tanks removed from the Shopping
Center Tract before Seller or Seller's Affiliates had any
interest in the Shopping Center Tract, to the best of Seller's
knowledge, any contaminated soil was removed from the Shopping
Center Tract except as may otherwise be specified in Exhibit
G.
10. With respect to any storage tanks removed from the
Shopping Center Tract at a time during which Seller or
Seller's Affiliates had any interest in the Shopping Center
Tract, any contaminated soil was removed from the Shopping
Center Tract except as may otherwise be specified in Exhibit
G.
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11. If disclosed on Exhibit G, any storage tanks located above
or under the Shopping Center Tract have been properly
registered with all appropriate regulatory and governmental
bodies and are otherwise in compliance with applicable
federal, state and local statutes, regulations, ordinances and
other regulatory requirements, and Seller has delivered to
Buyer copies of any such tank registrations, quantity (or
volume) reconciliation records, tightness test results and
cathodic protection test results within Seller's possession or
control.
For purposes of this Agreement:
The term "Hazardous Materials" shall mean and refer to the
following: petroleum products and fractions thereof, asbestos, asbestos
containing materials, urea formaldehyde, polychlorinated biphenyls,
radioactive materials and all other dangerous, toxic or hazardous
pollutants, contaminants, chemicals, materials, substances and wastes
listed or identified in, or regulated by, any Environmental Law.
The term "Environmental Law(s)" shall mean and refer to the
following: all federal, state, county, municipal, local and other
statutes, laws, ordinances and regulations which relate to or deal with
human health or the environment, all as may be amended from time to
time.
The term "Release" shall mean and refer to any spilling,
leaking, pumping, pouring, emptying, discharging, injecting, escaping,
leaching, dumping or disposing into the environment, including the
abandonment or discarding of barrels, drums, containers, tanks, or
other receptacles containing or previously containing any Hazardous
Material.
The term "Seller's Affiliates" shall mean and refer to any (i)
spouse, ancestor, descendant or sibling of Seller; (ii) any corporation
in which Seller is or was an officer, director, or shareholder; (iii)
any partnership in which Seller is or was a partner; (iv) any trust
which is or was for the benefit of Seller or any spouse, ancestor,
descendant or sibling of Seller; (v) if Seller is a partnership, any
partner of Seller; and (vi) if Seller is a corporation, any officer,
director or controlling shareholder of Seller.
C. Representations and Warranties deemed Remade as of Closing;
Certificate. Except to the extent otherwise set forth on a Certificate delivered
to Buyer as provided below in this Section 11C., the foregoing representations
and warranties shall automatically be deemed to have been remade by Seller as of
the Date of Closing. Seller shall execute and deliver to Buyer at Closing a
written certification to Buyer disclosing, where applicable, the extent to which
15
Seller cannot remake said representations and warranties as of the Date of
Closing (the "Certificate"). The Certificate shall be executed by an authorized
and incumbent corporate officer of Seller if Seller is a corporation (or a
general partner if Seller is a partnership, or Seller, if Seller is an
individual), and Seller shall deliver the Certificate to Buyer at Closing. Upon
delivery to Buyer, the Certificate shall be deemed to constitute a part of this
Agreement. Any disclosure on the Certificate shall not affect Buyer's rights
under Section 5 or Section 11E.
D. Seller covenants and agrees as follows:
1. So long as this Agreement remains in force, Seller shall
not lease, convey or otherwise transfer or encumber all or any
portion of the Property.
2. Seller shall not take or authorize, directly or indirectly,
any action (a) that modifies or alters the accuracy of any of
the statements at Section 11A.1. through 12. or Section 11B.1.
through 11B.11, or (b) which would prevent Seller from
representing and warranting as to the truth and accuracy of
said statements as of the Date of Closing.
3. Seller shall, at Seller's sole cost and expense, remove,
remediate, transport, dispose and/or control all Hazardous
Materials on or under the Property, or migrating to or from
the Property (including any soil contaminated by one or more
Hazardous Materials) of which Seller is made aware on or
before the date that Buyer completes its construction of the
Contemplated Improvements on the Property (the "Completion
Date"), all in accordance with a remediation management plan
approved by Buyer and all applicable regulatory authorities
(the "Remediation Management Plan"). Buyer's approval of the
Remediation Management Plan shall not be unreasonably
withheld, provided that the same is approved by Buyer's
consultant and does not interfere with Buyer's contemplated
construction or operation activities for the Property.
Approval of a remediation management plan by Buyer and/or its
consultant shall not constitute assumption of responsibility
by Buyer for the accuracy, sufficiency or propriety thereof,
nor shall such approval constitute a representation or
warranty by Buyer that the same complies with requirements of
any governmental agency having jurisdiction thereover. Buyer
shall have the right, but not the obligation, at its sole
discretion, to at any time cause all or a part of such
removal, remediation, transportation, disposal and/or control
work to be undertaken at its direction, whether or not Seller
has commenced such work. Seller shall reimburse Buyer for the
costs incurred in connection with such work within thirty (30)
days of receipt of an invoice therefor from Buyer.
Notwithstanding anything contained in this Agreement to the
contrary, in no event shall the term "Hazardous Materials" as
used in this subsection 11D.3. be deemed to include Hazardous
Materials brought onto the Property by or at the direction of
Buyer.
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4. Seller shall deliver the Property to Buyer on the Date of
Closing free and clear of any and all waste and debris of any
and all kinds.
E. The foregoing covenants, representations and warranties set forth in
this Section 11 are express covenants, representations and warranties upon which
Buyer shall be entitled to rely regardless of any investigation or inquiry made
by, or any knowledge of, Buyer. Seller shall indemnify and hold Buyer forever
harmless from and against any and all claims, actions, judgments, liabilities,
liens, damages, penalties, fines, costs and expenses, including, but not limited
to, attorneys' fees, asserted against, imposed on, suffered or incurred by Buyer
(or the Property) directly or indirectly arising out of or in connection with
any breach of the foregoing covenants, representations and warranties (including
as remade as of the Closing), and whether known to or discovered by Buyer
before, on or after the Closing. Consummation of this Agreement by Buyer with
knowledge of any such breach shall not constitute a waiver or release by Buyer
of any claims arising out of or in connection with such breach. Notwithstanding
anything contained in this Agreement to the contrary, the foregoing covenants,
representations and warranties (as made and as remade pursuant to Section 11C.)
and the foregoing indemnity obligation shall survive for a period of two (2)
years after the Closing or the termination of this Agreement, as the case may
be.
SECTION 12 - BUYER'S WARRANTIES AND REPRESENTATIONS. Buyer warrants and
represents to Seller that the following statements are now, and will on the Date
of Closing be, true and accurate:
A. Buyer is not a "foreign person" as contemplated by Section
1445 of the Internal Revenue Code.
B. Buyer has the full capacity, right, power and authority to
execute, deliver and perform this Agreement and all documents to be
executed by Buyer pursuant hereto, and all required actions and
approvals therefor have been duly taken and obtained. The individuals
signing this Agreement and all other documents executed or to be
executed pursuant hereto on behalf of Buyer are and shall be duly
authorized to sign the same on Buyer's behalf and to bind Buyer
thereto.
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C. This Agreement and all documents to be executed pursuant
hereto by Buyer are and shall be binding upon and enforceable against
Buyer in accordance with their respective terms.
D. Buyer has not (i) made a general assignment for the benefit
of creditors, (ii) filed any involuntary petition in bankruptcy or
suffered the filing of any involuntary petition by Buyer's creditors,
(iii) suffered the appointment of a receiver to take possession of all
or substantially all of Buyer's assets, (iv) suffered the attachment or
other judicial seizure of all, or substantially all, of Buyer's assets,
(v) admitted in writing its inability to pay its debts as they come
due, or (vi) made an offer of settlement, extension or composition to
its creditors generally.
SECTION 13 - CLOSING. Subject to any extension specifically provided
herein or agreed to in writing by the parties, the closing of this transaction
shall take place in the office of the Title Company on latter to occur of (i)
thirty (30) days after all of the conditions set forth in Sections 4 and 9 have
been satisfied or waived by Buyer or (ii) November 28, 2000. Such date shall be
the "Date of Closing" hereunder. Seller shall consistently keep Buyer informed
as to the scheduling of the Closing. As used in this Agreement, the term
"Closing" shall mean the time at which the Title Company is in possession of all
funds, instruments and documents necessary for it to perform its obligations
under Section 13-E. If the Closing has not occurred on or before December 1,
2001, this Agreement may be terminated by either party upon five (5) days' prior
written notice to the other. In the event such Closing has not occurred because
of Buyer's default hereunder, Seller shall be eligible to receive liquidated
damages as set forth in Section 14 hereof.
Possession of the Property shall be given by Seller to Buyer at the
time of Closing. The following procedure shall govern the Closing:
A. At least five (5) days before the Date of Closing, Seller
shall deliver to Buyer and the Title Company a copy of the proposed
special warranty deed (the "Deed") which shall be in recordable form,
and shall convey good and marketable record title to the Property to
Buyer, subject only to current real estate taxes and other matters
approved by Buyer as set forth in Section 9; the Deed shall be in form
and content satisfactory to Buyer. The form of Deed is attached hereto
as Exhibit I.
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B. On or before the Date of Closing, Seller shall deliver to
the Title Company the following:
1. the Deed, properly executed and acknowledged;
2. current tax receipts for the Shopping Center Tract
and, a calculation of the share allocable to the Property
based on the net square feet contained in the Property and the
Shopping Center Tract;
3. two (2) sets, properly executed and acknowledged,
of any other documents required by this Agreement, including
the Additional Agreements and any documents required therein;
4. corporate authority documentation, an owner's
affidavit, and any other documentation reasonably requested by
the Title Company in order to confirm the authority of Seller
to consummate this transaction or to permit the Title Company
to issue to Buyer upon completion of the Closing its owner's
title insurance policy covering the Property and appurtenant
easements, including the easements granted to Buyer pursuant
to the Declaration, with the standard printed exceptions
deleted (including exceptions for mechanics' liens, parties in
possession and matters of survey) and the special endorsements
added, as per the Commitment, in an amount equal to the
Purchase Price, subject only to real estate taxes and those
matters shown on the Commitment which were approved by Buyer
(the "Title Policy");
5. an affidavit, complying with the requirements of
Section 1445 of the Internal Revenue Code, affirming that
Seller is not a "foreign person" as defined therein;
6. such funds as may be required of Seller to pay
closing costs or charges properly allocable to Seller, or an
authorization to the Title Company to deduct such amounts from
the Purchase Price proceeds;
7. a re-certification of the representations and
warranties made by Seller under Sections 11A and 11B hereof;
and
8. such other returns and documents as are required
for conveyance of the Property to Buyer and recording of the
Deed, the Declaration, memorandum of the Site Development
Agreement, and the memorandum of BDA.
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C. On or before the Date of Closing, Buyer shall deliver the
following to the Title Company:
1. the balance of the Purchase Price and such
additional funds as may be required of Buyer to pay closing
costs or charges properly allocable to Buyer, less any amounts
for which Buyer is to receive a credit;
2. two (2) sets, properly executed and acknowledged,
of the closing statement prepared by the Title Company
pursuant to Section 13D below, and of any other documents
required by this Agreement; and
3. any other documentation reasonably requested by
the Title Company to confirm the authority of Buyer to
consummate this transaction or to permit the Title Company to
issue the Title Policy to Buyer upon completion of the
Closing.
D. After the Title Company has received and is unconditionally
prepared to disburse and deliver, in accordance with this Agreement,
all of the items to be deposited with it, and when confirmation from
the Title Company has been received that it is in a position to issue
the Title Policy required hereunder, the Title Company shall:
1. record the Condominium Plan (if not already of
record), the Declaration, the Deed, the Memorandum of SDA, and
the Memorandum of BDA in that order and without intervening
documents, instructing the Recorder's Office to return the
recorded Deed and Memoranda to Buyer and the recorded
Declaration to Seller;
2. record any other instruments executed by the
parties or either of them that are contemplated by this
Agreement to be placed of record;
3. issue to Buyer a marked-up commitment obligating
the Title Company to issue the Title Policy to Buyer;
4. charge Buyer for one-half of any deed transfer,
revenue or similar tax with respect to the sale of the
Property to Buyer, and for the premium for the Title Policy
including any additional cost of the extended coverage
endorsement for the Title Policy, for the cost of recording
the Deed, for one-half of the cost of recording the
Declaration and the Memoranda, and for one-half of the closing
fee, if any;
5. charge Seller for one-half of any deed transfer,
revenue or similar tax with respect to the sale of the
Property to Buyer, for the cost of recording any documents
clearing title to the Property, and for one-half of the
closing fee, and for one-half of the cost of recording the
Declaration and the Memoranda;
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7. real estate taxes for the Property shall be
prorated in the following manner: (a) If taxes are based on a
prior year's assessment of value (i.e. the date for fixing
assessment of value is October 1, 1996 and the real estate
taxes based on that valuation are paid in 1996 and 1997),
Seller shall pay all of the taxes payable in the year of
Closing, and the taxes payable in the next year (which are
based on the assessment of value in the year of Closing) shall
be prorated using the date of Closing; or (b) if taxes are
based on the current year's assessment of value, the taxes
shall be prorated as of the Date of Closing. Notwithstanding
anything contained herein to the contrary, Seller shall be
responsible to pay any and all so-called "Roll Back" taxes
attributable to any special low real estate tax rate or
abatement/deferral, and such sum shall be paid (or escrowed,
if the actual amount is not certain and/or then payable). Any
special assessment or fee, including interest or penalty due
thereon, which is a lien or charge against the Property on the
Date of Closing, whether due in total or in part, shall be
charged to Seller and shall be paid in full by the Title
Company concurrently with the recording of the Deed, unless
Buyer agrees to take subject thereto in which case a credit
for such amount shall be made against the Purchase Price. If
applicable real estate taxes are not available, then a
proration shall be made based on the best estimate; it being
understood adjustments shall be made when the current amount
becomes known;
8. prepare closing statements for Seller and Buyer
indicating deposits, credits and charges (including the
allocation of real property taxes) and deliver the same,
together with a disbursement of funds, to the appropriate
party;
9. deliver the Title Policy to Buyer as soon as
reasonably practicable; and
10. deliver to Buyer a duplicate original or true
copy of every other document required to be deposited with the
Title Company by Seller pursuant to this Agreement.
Any supplemental closing instructions given by either party shall also
be followed by the Title Company provided they do not conflict with any
instructions set forth herein, or are consented to in writing by the
other party.
SECTION 14 - DEFAULT BY BUYER. IF THIS TRANSACTION FAILS TO CLOSE AS A
RESULT OF A MATERIAL DEFAULT BY BUYER WITH RESPECT TO ANY OF THE TERMS OF THIS
AGREEMENT, AND SUCH MATERIAL DEFAULT CONTINUES FOR A PERIOD OF TEN (10) DAYS
AFTER SELLER NOTIFIES BUYER IN WRITING OF SUCH EVENT, SELLER'S SOLE AND
EXCLUSIVE REMEDY FOR SUCH MATERIAL DEFAULT SHALL BE THE RIGHT TO CANCEL AND
TERMINATE THIS AGREEMENT AND RECEIVE AND RETAIN THE DEPOSIT PLUS RECEIVE AND
RETAIN FROM BUYER THE SUM OF SIX MILLION FIVE HUNDRED THOUSAND DOLLARS
($6,500,000.00) AS LIQUIDATED DAMAGES, IT BEING UNDERSTOOD AND AGREED THAT
21
SELLER IS HEREBY RELEASING AND/OR WAIVING ANY RIGHT IT MIGHT HAVE EITHER TO
SPECIFICALLY ENFORCE THIS AGREEMENT OR TO XXX FOR ANY OTHER OR ADDITIONAL
DAMAGES. SELLER HAS AGREED TO THIS LIQUIDATED DAMAGE PROVISION BECAUSE OF THE
DIFFICULTY OF ASCERTAINING SELLER'S ACTUAL DAMAGES GIVEN THE UNCERTAINTIES OF
THE REAL ESTATE MARKET, FLUCTUATING PROPERTY VALUES AND DIFFERENCES OF OPINION
WITH RESPECT TO SUCH MATTERS. UNLESS SELLER WAIVES THE BUYER'S DEFAULT IN
WRITING WITHIN FIVE (5) DAYS AFTER THE EXPIRATION OF THE 10-DAY PERIOD SPECIFIED
IN THE PRECEDING SENTENCE, OR SUCH DEFAULT IS CURED WITHIN SUCH 10-DAY PERIOD,
THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE EFFECTIVE FIFTEEN (15) DAYS AFTER
THE NOTICE OF DEFAULT IS GIVEN WITHOUT THE NECESSITY OF FURTHER NOTICE BEING
GIVEN. UPON SUCH TERMINATION, EACH PARTY SHALL BE RELEASED FROM ALL DUTIES OR
OBLIGATIONS CONTAINED HEREIN, EXCEPT FOR THOSE SUCH OBLIGATIONS THAT
SPECIFICALLY SURVIVE TERMINATION INCLUDING, WITHOUT LIMITATION, BUYER'S
OBLIGATIONS TO PAY LIQUIDATED DAMAGES HEREUNDER.
SECTION 15 - DEFAULT BY SELLER. If Seller refuses to perform any of its
obligations as set forth herein, Buyer shall be entitled to the return of the
Deposit and may, at its option, elect one or more of the following remedies:
A. To terminate this Agreement, in which event neither party
shall have any further rights or obligations hereunder, except that
Seller shall reimburse Buyer for all of Buyer's reasonable
out-of-pocket costs incurred by Buyer in connection with this
transaction and the Contemplated Improvements, or
B. To (i) enforce specific performance of Seller's obligations
under this Agreement, including specifically the conveyance of the
Property in the condition required hereby, and/or (ii) in the event
Seller's failure to comply with any of its obligations to promptly file
applications and petitions for approvals, to prosecute said
applications and petitions with all due diligence in an effort to
obtain all necessary and/or appropriate approvals on or before the Date
of Closing, or to seek with all due diligence to obtain on an
irrevocable basis on or before the Date of Closing the third-party,
private approvals necessary and/or appropriate hereunder, Buyer may, at
its sole option, attempt to obtain any one or more of said approvals.
22
SECTION 16 - EXPENSE OF ENFORCEMENT. If either party brings an action
at law or in equity to enforce or interpret this Agreement, the prevailing party
in such action shall be entitled to recover reasonable attorney's fees and court
costs for all stages of litigation, including, but not limited to, appellate
proceedings, in addition to any other remedy granted.
SECTION 17 - BROKERS. Notwithstanding anything contained herein to the
contrary, this Section 17 is for the sole and exclusive benefit of Buyer and
Seller, and specifically not for the benefit of any third party including,
without limitation, any broker mentioned herein or any other broker or
consultant. Seller warrants to Buyer that Seller has not taken any action in
connection with this transaction which would result in any real estate broker's
fee, finder's fee, or other fee being due or payable to any party, other than
Ripco and Metro Commercial; Seller agrees to be solely responsible for any fee
due to Ripco and Metro Commercial. Buyer warrants to Seller that Buyer has not
taken any action in connection with this transaction which would result in any
real estate broker's fee, finder's fee, or other fee being due or payable to any
party, other than to Ripco and Metro Commercial. Seller and Buyer respectively
agree to indemnify, defend and hold harmless the other from and against any and
all claims, fees, commissions and suits of any real estate broker or agent with
respect to services claimed to have been rendered for or on behalf of such party
in connection with the execution of this Agreement or the transaction
contemplated herein.
SECTION 18 - NOTICE. All notices, demands and requests required or
permitted to be given under this Agreement (collectively the "Notices") must be
in writing and must be delivered personally, or by telephone facsimile (provided
that such Notice is confirmed by delivering an original copy of such Notice on
the same day to a nationally recognized overnight courier for delivery to the
23
addressee(s) on the next business day), by nationally recognized overnight
courier, or sent by United States certified mail, return receipt requested,
postage prepaid and addressed to the parties at their respective addresses set
forth below. Notices shall be effective upon receipt if delivered personally or
by telephone facsimile, or on the next business day if sent by overnight
courier, or three (3) business days after deposit in the mail if mailed. The
initial addresses of the parties shall be:
To Seller: Acadia Realty Trust
Attn: Xxx Xxxxx
Senior Vice President
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
copy to: Acadia Realty Trust
Attn: Xxxxxx Xxxxxxx, Esq.
Senior Vice President and General Counsel
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
To Buyer: Target Corporation
Target Stores - Real Estate
Attn: Property Administration
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
copy to: Target Corporation
Law Department
Attn: Xxxxxx X. Xxxxx
00 X. Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Upon at least ten (10) days' prior written notice, each Party shall have the
right to change its address to any other address within the United States of
America.
24
SECTION 19 - CONDEMNATION. If any portion of the Property or Shopping
Center Tract is condemned or access thereto is taken prior to the Closing, if
Buyer reasonably concludes that the taking renders the Property or any portion
thereof unsuitable for the economic development contemplated and Buyer so
notifies Seller in writing within thirty (30) days after learning of such
condemnation action, then this Agreement shall terminate. Upon termination, both
parties shall be released from all duties and obligations contained herein. If
the Agreement is not terminated pursuant to the preceding sentence and in the
further event the Seller's Purchase Contract is not terminated as a result of
such condemnation, the Purchase Price of the Property shall not be affected, it
being agreed that if the award is paid prior to the closing of this transaction,
such amount shall be held in escrow and delivered to Buyer at the Closing, and
if the award has not been paid before the Closing, then at the Closing Seller
shall assign to Buyer all of its right, title and interest with respect to such
award and shall further execute any other instrument requested by Buyer to
assure that such award is paid to Buyer. If Buyer does not terminate this
Agreement, it shall have the right to contest the condemnation of the Property
and/or the award resulting therefrom. Seller shall not agree to or accept any
compromise or condemnation award without obtaining Buyer's prior written
approval.
SECTION 20 - RISK OF LOSS. The risk of loss by fire, earthquake, flood
or other casualty shall be assumed solely by Seller until Closing. In the event
of loss or damage to the Property, Buyer shall have the right, at its option, by
notice to Seller, given within forty-five (45) days after receipt of notice of
such loss or damage, to either (i) terminate this Agreement, or (ii) and in the
event the Seller's Purchase Contract is not terminated by Seller (in accordance
with its terms and with Buyer's approval) as a result of such casualty loss,
proceed to Closing, in which event the Purchase Price shall be abated by the
amount of the insurance proceeds payable with respect to the loss or damage, or
(iii) require restoration of the Property, in which event Closing shall be
postponed for a reasonable period, not exceeding ninety (90) days, during which
period Seller shall restore the Property substantially to the condition existing
prior to the loss or damage. To the extent the proceeds of any insurance policy
has not been collected but the Purchase Price has been abated in accordance with
this Section 20, Buyer shall assign to Seller all of its right, title and
interest in and to such proceeds.
25
SECTION 21 - ENTIRE AGREEMENT. All previous negotiations and
understandings between Seller and Buyer or their respective agents and employees
with respect to the transaction set forth herein (but not regarding the
Declaration and SDA) are merged in this Agreement which alone fully and
completely expresses the parties' rights, duties and obligations with respect to
its subject matter and which maybe amended only by subsequent written agreement
between Seller and Buyer.
SECTION 22 - NO MERGER. The warranties, representations and/or
indemnities expressly made herein shall survive the Closing and shall not be
merged therein.
SECTION 23 - GOVERNING LAW. This Agreement shall be deemed to be a
contract made under the laws of the Commonwealth of Pennsylvania and for all
purposes shall be governed and construed in accordance with the laws of said
Commonwealth.
SECTION 24 - SEVERABILITY. If any provision of this Agreement is found
by a court of competent jurisdiction to be illegal, invalid, or unenforceable,
the remainder of this Agreement will not be affected, and in lieu of each
provision that is found to be illegal, invalid, or unenforceable, a provision
will be added as a part of this Agreement that is as similar to the illegal,
invalid, or unenforceable provision as may be possible and be legal, valid and
enforceable.
SECTION 25 - CONSTRUCTION. The rule of strict construction shall not
apply to this Agreement. This Agreement has been prepared by Buyer and its
professional advisors and reviewed and modified by Seller and its professional
advisors. Seller, Buyer, and their separate advisors believe that this Agreement
is the product of all of their efforts, that it expresses their agreement, and
that it should not be interpreted in favor of or against either Seller or Buyer
merely because of their efforts in preparing it.
26
SECTION 26 - CAPTIONS, GENDER, NUMBER, AND LANGUAGE OF INCLUSION. The
captions are inserted in this Agreement only for convenience of reference and do
not define, limit, or describe the scope or intent of any provisions of this
Agreement. Unless the context clearly requires otherwise, the singular includes
the plural, and vice versa, and the masculine, feminine, and neuter adjectives
include one another. As used in this Agreement, the word "including" shall mean
"including, but not limited to".
SECTION 27 - EXHIBITS. The following exhibits shall be deemed
incorporated into this Agreement in their entirety:
Exhibit A-1 Legal Description of Shopping Center Tract
Exhibit A-2 Legal Description of Unit III (Property)
Exhibit B Site Plan for Shopping Center Tract and Property
Exhibit C Condominium Plan
Exhibit D Declaration of Condominium
Exhibit E Building Development Agreement
Exhibit F Site Development Agreement
Exhibit G Environmental Disclosures, if any
Exhibit H Current Exclusive Provisions for Shopping Center
Exhibit I Form of Deed
SECTION 28 - BINDING EFFECT. This Agreement, shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs and personal representatives.
SECTION 29 - TIME. Time is of the essence of this Agreement and each
and every provision hereof.
27
SECTION 30 - WAIVER OF TRIAL BY JURY. SELLER AND BUYER HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE
PARTIES HERETO AGAINST THE OTHER AS TO ANY MATTER WHATSOEVER ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF THE SELLER OR
BUYER, OR ANY OTHER CLAIM OR STATUTORY REMEDY.
SECTION 31 - EXCHANGE UNDER SECTION 1031. Each party acknowledges that
the other may elect to acquire/sell (as the case may be) all or a portion of the
Property in connection with the completion of a tax-deferred exchange under
Section 1031 of the Internal Revenue Code of 1986. Accordingly, each party
hereby agrees to take such steps as the exchanging party may reasonably require
in order to complete the tax-deferred exchange including, without limitation,
accepting payment of all or a portion of the Purchase Price from a third party;
provided, however, that the party requested to cooperate in the exchange shall
not necessarily incur any cost by virtue of the requesting party's tax-deferred
exchange.
SECTION 32 - SELLER'S OBLIGATIONS REGARDING THE RELOCATION OF CURRENT
TENANTS; USE EXCLUSIVES.
32.1 Portions of the Main Building of the Shopping Center are currently
leased to Super Fresh, T.J. Maxx, Old Country Buffet and Circuit City. In order
to accomplish the "xx-xxxxxxx" of the Main Building pursuant to the
re-development of the Shopping Center contemplated herein, Seller must terminate
the Super Fresh and Circuit City leases, relocate T.J. Maxx and two other small
tenants. Seller hereby covenants to effectuate such terminations and relocations
prior to Closing.
32.2 Several existing tenants of the Shopping Center benefit from
certain so-called "exclusive" provisions regarding the sale of certain
merchandise. Seller warrants and represents that the only exclusives affecting
the Shopping Center, the Property and/or Buyer's contemplated business
operations thereon are listed in Exhibit H attached hereto. Buyer shall be
obligated to honor such exclusives provided and only to the extent (i) the
exclusive applies to the Property; (ii) the exclusive does not extend beyond the
original benefiting tenant's lease term (plus original extension options), (iii)
Buyer's ability to operate its prototypical Target store is not affected
thereby. Seller and Buyer acknowledge and agree that none of the exclusives
listed in Exhibit H affects Buyer's ability to operate its prototypical Target
store. Seller shall indemnify and hold Buyer harmless from and against any and
all actions, claims and demands brought against Target in connection with the
listed exclusions.
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32.3 Seller's obligations hereunder shall survive for a period of two
(2) years after the Closing.
SECTION 33 - ESCROW AGENT'S INSTRUCTIONS AND OBLIGATIONS.
The Deposit shall be held by the Escrow Agent, in trust, on
the terms and conditions hereinafter set forth:
A. Upon receipt, Escrow Agent shall hold the Deposit in an
interest-bearing account and any interest accruing thereon shall be for the
benefit of Buyer. The Federal Identification numbers of the parties shall be
furnished to Escrow Agent upon request. The parties shall consent to the deposit
of the Deposit at a national or regional financial institution selected by
Escrow Agent and acknowledge that Escrow Agent shall not be liable for any loss
of the Deposit on account of the deposit of the Deposit therewith.
B. The Escrow Agent shall not be responsible for any interest
except for such as is actually received, nor shall the Escrow Agent be
responsible for the loss of any interest arising from the closing of any account
or the sale of any certificate of deposit or other instrument prior to maturity.
C. The Escrow Agent will deliver the Deposit to Seller or
Buyer, as the case may be, in accordance with the terms and conditions of
Section 3 of this Purchase Agreement. Upon receipt of a written notice from
Seller stating that Seller is entitled under this Agreement to the Deposit and
demanding payment of the same, the Escrow Agent will deliver the Deposit to
Seller, provided, however, that the Escrow Agent shall not honor such demand
until not less than ten (10) days after the date on which the Escrow Agent shall
have mailed (by registered or certified mail, return receipt requested) a copy
of such notice and demand to Buyer, nor thereafter if during such ten (10) day
period the Escrow Agent shall have received written notice of objection from
Buyer in accordance with the provisions of this Section. Likewise, upon receipt
of a written notice from Buyer, stating that Buyer is entitled under this
Agreement to the return of the Deposit and demanding payment of the same, the
Escrow Agent will deliver the Down Payment to Buyer, provided, however, that,
the Escrow Agent shall not honor such demand until not less than ten (10) days
after the date on which the Escrow Agent shall have mailed (by registered or
certified mail, return receipt requested) a copy of such notice and demand to
Seller, nor thereafter if during such ten (10) day period the Escrow Agent shall
have received written notice of objection from Seller in accordance with the
provisions of this Section.
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D. Any notice to the Escrow Agent shall be sufficient only if
received by the Escrow Agent within the applicable time period set forth herein.
All mailings and notices from the Escrow Agent to Seller or Buyer, or from
Seller or Buyer to the Escrow Agent, provided for in this Section shall be
addressed to the party to receive such notice at the address set forth in this
Agreement, but those provisions of Section 18 relating to the manner of giving
notices and the effective dates thereof shall have no application to the
provisions of this Section.
E. Upon receipt of a written demand for the Deposit made by
Seller or Buyer pursuant to this Section, the Escrow Agent shall promptly mail a
copy thereof (by registered or certified mail, return receipt requested) to the
other party. The other party shall have the right to object to the delivery of
the Deposit or accrued interest thereon by delivery to the Escrow Agent of
written notice of objection within ten (10) days after the date of the Escrow
Agent's mailing of such copy to the other party, but not thereafter. Upon
receipt of such notice of objection, the Escrow Agent shall promptly mail a copy
thereof (by registered or certified mail, return receipt requested) to the party
who made the written demand.
F. In the event that (1) the Escrow Agent shall have received
a notice of objection as provided for above within the time therein prescribed,
or (2) any disagreement or dispute shall arise between or among any of the
parties hereto and/or any other persons resulting in adverse claims and demands
being made for the Deposit or any accrued interest thereon, whether or not
litigation has been instituted, then, in any such event, at the Escrow Agent's
option, (i) the Escrow Agent may refuse to comply with any claims or demands on
it and continue to hold the Deposit until the Escrow Agent receives written
notice signed by Seller, Buyer and any other person who may have asserted a
claim to or made a demand for the Deposit directing the disbursement of the
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Deposit in accordance with said direction, and the Escrow Agent shall not be or
become liable in any way or to any person for its refusal to comply with such
claims or demand; (ii) in the event the Escrow Agent shall receive a written
notice advising that a litigation over entitlement to the Deposit has been
commenced, the Escrow Agent may deposit the Deposit with the clerk of the court
in which said litigation is pending or (iii) the Escrow Agent may (but shall not
be required to) take such affirmative steps as it may, at its option, elect in
order to substitute another impartial party to hold the Deposit or to deposit
the same in a court of competent jurisdiction and to commence an action for
interpleader, the costs thereof to be borne by whichever of Seller and Buyer is
the losing party, and thereupon the Escrow Agent shall be released of any and
all liability thereunder. Seller and Buyer jointly and severally agree to
reimburse the Escrow Agent for any and all expenses incurred in the discharge of
its duties under this Section including, but not limited to, attorneys' fees
(either paid to retained attorneys or amounts representing the fair value of
legal services rendered to itself).
G. It is expressly understood that the Escrow Agent acts
hereunder as an accommodation to Seller and Buyer and as a depository only and
is not responsible or liable in any manner whatever for the sufficiency,
correctness, genuineness or validity of any instrument deposited with it, or for
the form of execution of such instruments or for the identity, authority or
right of any person executing or depositing the same or for the terms and
conditions of any instrument pursuant to which the Escrow Agent or the parties
may act.
H. The Escrow Agent shall not have any duties or
responsibilities except those set forth in this Section and shall not incur any
liability in acting upon any signature, notice, request, waiver, consent,
receipt or other paper or documents believed by the Escrow Agent to be genuine,
and the Escrow Agent may assume that any person purporting to give it any notice
on behalf of any party in accordance with the provisions hereof has been duly
authorized to do so.
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I. In the event of the death of any person who may be a party
in interest hereunder, the Escrow Agent shall deem and treat the legal
representatives of such person's estate as the successor in interest of said
deceased person for all purposes of this Section.
J. The Escrow Agent may act or refrain from acting in respect
of any matter referred to herein in full reliance upon and by and with the
advise of counsel which may be selected by it (including any member of its firm
if Escrow Agent is a law firm) and shall be fully protected in so acting or
refraining from acting upon the advise of such counsel.
K. Seller and Buyer hereby jointly and severally indemnify and
agree to indemnify and hold the Escrow Agent harmless from any and all loss,
damage, claims, liabilities, judgments and other cost and expense of every kind
and nature which may be incurred by the Escrow Agent by reason of its acceptance
of, and its performance under, this instrument (including, without limitation,
attorneys' fees either paid to retained attorneys or amounts representing the
fair value of legal services rendered to itself).
L. The Escrow Agent shall not be responsible for any act or
failure to act on its part except in the case of its own willful default or
gross negligence. The Escrow Agent shall be automatically released from all
responsibility and liability under this Agreement upon the Escrow Agent's
delivery or deposit of the Deposit pursuant to paragraph F. of this Section, in
accordance with the provisions of this Section.
M. Seller and Buyer agree that if either shall deliver to the
Escrow Agent a written demand for the Deposit, the party making such demand
shall, promptly after delivering such demand to the Escrow Agent, deliver a copy
of such demand to the other party, together with a statement of the facts and
circumstances underlying the demand; provided, however, that nothing in this
part shall have any effect whatsoever upon the Escrow Agent's rights, duties and
obligations under the preceding parts of this Section.
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SELLER'S SIGNATURE PAGE
FOR
PURCHASE AGREEMENT
BETWEEN
TARGET CORPORATION
AND
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP
IN WITNESS WHEREOF, the parties have caused these presents to be
executed intending to be legally bound by the provisions herein contained.
"SELLER"
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP
By: Acadia Property Holdings, LLC, its general partner
By: Acadia Realty Limited Partnership, its sole member
By: Acadia Realty Trust, its general partner
By: ________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Date of Execution: __________________, 2000
"BUYER"
TARGET CORPORATION
SEE BUYER'S SIGNATURE PAGE
33
BUYER'S SIGNATURE PAGE
FOR
PURCHASE AGREEMENT
BETWEEN
TARGET CORPORATION
AND
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP
IN WITNESS WHEREOF, the parties have caused these presents to be
executed intending to be legally bound by the provisions herein contained.
"SELLER"
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP
By: Acadia Property Holdings, LLC, its general partner
By: Acadia Realty Limited Partnership, its sole member
By: Acadia Realty Trust, its general partner
SEE SELLER'S SIGNATURE PAGE
"BUYER"
TARGET CORPORATION
By: __________________________
Name:______________________________
Title: ____________________________
Date of Execution: __________________, 2000
34
ESCROW AGENT'S SIGNATURE PAGE
FOR
PURCHASE AGREEMENT
BETWEEN
TARGET CORPORATION
AND
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP
IN WITNESS WHEREOF, the Escrow Agent hereby executes this Agreement for
the sole purpose of agreeing to, and intending to be legally bound by, the
terms, covenants and conditions of Section 33 hereof.
"ESCROW AGENT"
NEW YORK LAND SERVICES, INC.
By: __________________________
Name:______________________________
Title: ____________________________
Date of Execution: __________________, 2000
35
EXHIBIT A-1
LEGAL DESCRIPTION OF SHOPPING CENTER TRACT
EXHIBIT A-2
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B
SITE PLAN
EXHIBIT C
CONDOMINIUM PLAN
EXHIBIT D
DECLARATION OF CONDOMINIUM
EXHIBIT E
BUILDING DEVELOPMENT AGREEMENT
EXHIBIT F
SITE DEVELOPMENT AGREEMENT
EXHIBIT G
ENVIRONMENTAL DISCLOSURES, IF ANY
EXHIBIT H
EXCLUSIVES
EXHIBIT I
FORM OF DEED
