THIS PURCHASE AND SALE AGREEMENT (this "Agreement") dated as of
February 6, 2002, by and between SILVER CIRCLE MANAGEMENT CORP. ("Seller"), a
Delaware corporation, having an address c/o Brentway Management LLC, 00 Xxxxx
Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, and CEDAR-RL, LLC ("Buyer"), a
Delaware limited liability company, having an address c/o Cedar Bay Realty
Advisors, Inc., 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
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A. WHEREAS, Seller is the owner of general partnership interests (the
"Partnership Interests") in API Red Lion Shopping Center Associates, a New York
limited partnership (the "Partnership"), as more particularly described on
Schedule A annexed hereto and hereby made a part hereof.
B. WHEREAS, the Partnership owns the real property described on Exhibit
A annexed hereto and hereby made a part hereof.
C. WHEREAS, Seller desires to sell to Buyer and Buyer desires to
purchase from Seller a portion of the Partnership Interests as more particularly
described on Schedule A (such portion, the "Conveyed Interests"), upon the terms
and conditions and for the purchase price hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration set forth herein, the
parties hereto agree as follows:
SECTION 1. Certain Definitions.
"Actions" mean any claims, actions, suits, proceedings or
investigations, whether at law, in equity or in admiralty or before any court,
arbitrator, arbitration panel or Governmental Authority.
"Acceptable Form" has the meaning set forth in Section 9.1.
"Actual Knowledge of Seller" has the meaning set forth in
Section 8.1
"Acknowledgment Agreement" has the meaning set forth in
Section 6.1.
"Affiliate" of a party means any Person which, directly or
indirectly, controls, is controlled by or is under common control with, such
party.
"ARC" has the meaning set forth in Section 6.1.
"ARC Agreement" has the meaning set forth in Section 6.1.
"Assignment and Assumption" has the meaning set forth in
Section 6.1(a).
"Best Buy Overpayment" has the meaning set forth in Section
8.1(l).
"Broker" has the meaning set forth in Section 11.
"Closing" has the meaning set forth in Section 5.
"Closing Date" means [____], as such date may be accelerated
or adjourned pursuant to the written agreement of Buyer and Seller.
"Closing Payment" has the meaning set forth in Section 3(a).
"Court Order" means any judgment, decree, injunction, order,
decision, directive, regulation or ruling of any Governmental Authority that is
binding on any Person or its property under Law.
"Designated Individuals" has the meaning set forth in Section
8.1
"Employees" means Xxxxxx Xxxxx and Xxxxxxx Xxxxx who are both
currently employed by Seller to perform maintenance at the Property.
"Existing Partnership Agreement" means that certain Agreement
of Limited Partnership of the Partnership, dated as of October 1, 1987, as
amended by (i) that certain Amendment to Agreement of Limited Partnership of the
Partnership, dated as of November 26, 1997, and (ii) that certain Second
Amendment to Agreement of Limited Partnership, dated as of February 7, 2000.
"Governmental Authority" means any agency, instrumentality,
department, commission, court, tribunal or board of any government, whether
foreign or domestic and whether national, federal, state, municipal or local.
"Guaranty" has the meaning set forth in Section 6.1.
"Hazardous Substances" means, without limitation, (i) all
substances which are designated pursuant to Section 311(b)(2)(A) of the Federal
Water Pollution Control Act ("FWPCA"), 33 U.S.C. ss.1251 et seq.; (ii) any
element, compound, mixture, solution, or substance which is designated pursuant
to Section 102 of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. ss.9601 et seq.; (iii) any hazardous waste
having the characteristics which are identified under or listed pursuant to
Section 3001 of the Resource Conservation and Recovery Act ("RCRA"), ss.6901 et
seq.; (iv) any toxic pollutant listed under Section 307(a) of the FWPCA; (v) any
hazardous air pollutant which is listed under Section 112 of the Clean Air Act,
42 U.S.C. ss.7401 et seq.; (vi) any imminently hazardous chemical substance or
mixture with respect to which action has been taken pursuant to Section 7 of the
Toxic Substance Control Act, 15 U.S.C. ss.2601 et seq.; and (vii) petroleum,
petroleum products, petroleum by-products, petroleum decomposition by-products,
and waste oil; (viii) "hazardous materials" within the meaning of the Hazardous
Materials Transportation Act, 49 U.S.C. ss. 1802 et seq., (ix) any hazardous
substance or material identified or regulated by or under any applicable
provisions of the laws of the State of Pennsylvania; (x) asbestos or any
asbestos containing materials; (xi) any radioactive material or substance; (xii)
all toxic wastes, hazardous wastes and hazardous substances as defined by, used
in, controlled by or subject to all implementing regulations adopted and
publications promulgated pursuant to the foregoing statutes; and (xiii)any other
hazardous or toxic substance or pollutant identified in or regulated under any
other applicable federal, state or local Laws.
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"Improvements" means the buildings, improvements, structures
and fixtures located upon the Land.
"Land" means that certain parcel of real property commonly
known as Red Lion Shopping Center, Philadelphia, Pennsylvania, as more
particularly described on Exhibit A annexed hereto and hereby made a part
hereof.
"Laws" mean laws, statutes, rules, regulations, codes, orders,
ordinances, judgments, injunctions, decrees and policies of any Governmental
Authority.
"Leasing Reserve" has the meaning set forth in Section 7.1.
"Lender" means Salomon Brothers Realty Corp., and its
Affiliates, successors and assigns.
"Liabilities" mean debts, liabilities, obligations,
guarantees, indemnities, duties and responsibilities of any kind and
description, whether absolute or contingent, monetary or non-monetary, direct or
indirect, known or unknown or matured or unmatured, or of any other nature.
"Licenses" means licenses, franchises, permits, certificates,
certificates of occupancy, easements, rights and other authorizations issued by
a Governmental Authority or any other Person.
"Loan Documents" means the documents executed and delivered to
Lender in connection with the Mortgage.
"Major Leases" has the meaning set forth in Section 9.1.
"Master Lease" has the meaning set forth in Section 6.1.
"Mortgage" means that certain Amended and Restated Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as
of February 8, 2000, made by the Partnership to Lender.
"Non-Permitted Encumbrances" has the meaning set forth in
Section 4.
"Note" has the meaning set forth in Section 3(b).
"Operating Agreements" mean any all reciprocal easement
agreements, development agreements, concession agreements, operating agreements,
service agreements, maintenance agreements, supply agreements, and any other
contracts and agreements affecting the Land and the Improvements.
"Owner's Policy" has the meaning set forth in Section 4.
"Permitted Encumbrances" has the meaning set forth in Section
4(b).
"Person" means any natural person, corporation, business
trust, joint venture, association, company, limited liability entity, firm,
partnership, or other entity or government or Governmental Authority.
"Pledge" has the meaning set forth in Section 3.1.
"Property" means: (a) the Land, (b) the Improvements, (c) all
easements, rights of way, privileges, appurtenances, strips, gores and other
rights pertaining to the Land and the Improvements, if any, including, without
limitation, development rights, and all income therefrom, (d) any land in the
bed of any street, road, avenue, open or proposed, public or private, in front
of or adjoining the Land or any portion thereof, to the center line thereof, and
any award to be made in lieu thereof and in and to any unpaid award for damage
to the Land and the Building by reasons of change of grade of any street
occurring after the date of execution and delivery of this Agreement, (e) all
Tenant Leases, (f) all Operating Agreements, (g) any Licenses required or used
in or relating to the ownership, use, maintenance, occupancy or operation of any
part of the Property.
"Purchase Price" has the meaning set forth in Section 3.
"Rent Roll" has the meaning set forth in Section 8.1.
"Restated Partnership Agreement" has the meaning set forth in
Section 6.1.
"Rodin" has the meaning set forth in Section 8.1.
"Silver Circle Pledge" has the meaning set forth in Section
6.1.
"Sports Authority Claim" has the meaning set forth in Section
8.1.
"Survey" means that certain survey, prepared by Xxxxx Xxxxxxx
for the Fourth Survey District, dated as of December 12, 2001.
"Tenant Leases" mean all leases, subleases, lettings, and
licenses affecting the Property.
"Tenants" mean the tenants, subtenants, licensees, and other
parties under Tenant Leases.
"Title Company" has the meaning set forth in Section 4.
"Title Commitment" has the meaning set forth in Section 4(c).
"Xxxxxx" means Xxx X. Xxxxxx, an individual.
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SECTION 2. Purchase and Sale. Based upon and subject to the terms,
agreements, warranties, representations and conditions of this Agreement, Seller
hereby agrees to sell, convey, transfer, assign and deliver to Buyer on the
Closing Date, and Buyer hereby agrees to buy and accept on the Closing Date, the
Conveyed Interests.
SECTION 3. Purchase Price. The total consideration (the "Purchase
Price") to be paid by Buyer for the Conveyed Interests shall be the sum of One
Million One Hundred Eighty Two Thousand Eight Hundred Fifty Seven Dollars
($1,182,857.00) Dollars, payable by Buyer as follows:
(a) Two Hundred Ninety Five Thousand Seven Hundred Fourteen
Dollars and 25/100 ($295,714.25) Dollars (the "Closing Payment"), at the
Closing, by wire transfer of immediately available federal funds, to an account
designated in writing by Seller to Buyer not less than three (3) business days
prior to the Closing Date;
(b) The balance of the Purchase Price, in the amount of Eight
Hundred Eighty Seven Thousand One Hundred Forty Two and 75/100 ($887,142.75)
Dollars, as same may be adjusted pursuant to the terms of this Agreement, by
Buyer executing, acknowledging, and delivering to Seller at the Closing, a
promissory note (the "Note"), in the form annexed hereto as Exhibit B and a
pledge of partnership interests (the "Pledge"), as security for the Note, in the
form annexed hereto as Exhibit C.
SECTION 4. Title Matters.
(a) As a condition to Buyer's obligation to close hereunder,
the Partnership shall have good, marketable, insurable title to the Property,
subject only to the Permitted Encumbrances as reflected by an ALTA owner's title
insurance policy (the "Owner's Policy") issued by Commonwealth Land Title
Insurance Company (the "Title Company"), insuring the title of the Partnership
in the Property, in the standard form issued by the Title Company in the
Commonwealth of Pennsylvania, dated on or about the Closing Date, without
exception or reservations of any kind, including, without limitation, the
standard pre-printed exceptions to the title policy, other than the Permitted
Encumbrances (any such other exceptions or reservations, the "Non-Permitted
Encumbrances").
(b) The term "Permitted Encumbrances" as used in this
Agreement shall mean:
1. any state of facts shown on the Survey;
2. those matters specifically set forth on
Exhibit D annexed hereto and hereby made a part hereof;
3. all laws, ordinances, rules and
regulations of the United States, the State of Pennsylvania or any Governmental
Authority, as the same may now exist or may be hereafter modified, supplemented
or promulgated, provided same to not prohibit the use of the Property as a
shopping-center;
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4. all presently existing and future liens
of real estate taxes or assessments and water rates, water meter charges, water
frontage charges and sewer taxes, rents and charges, if any, provided that such
items are not yet due and payable;
5. all violations of Laws applicable to the
Property whether or not noted in the records of or issued by, any Governmental
Authority, existing on the Closing Date;
6. such matters as the Title Company shall
be willing to omit as exceptions to coverage with respect to the Owner's Policy
issued by the Title Company on the Closing Date;
7. the Tenant Leases; and
8. the Operating Agreements.
(c) If Buyer's commitment for a fee title policy (the "Title
Commitment") discloses judgments, bankruptcies or other returns against other
Persons having names the same as or similar to that of the Partnership or
Seller, on the request of Buyer, Seller shall, and shall cause the Partnership
to, deliver to Buyer and the Title Company affidavits showing that such
judgments, bankruptcies or other returns are not against the Partnership or
Seller, as applicable. Seller shall cause the Partnership to deliver any
customary affidavits required by the Title Company to eliminate exceptions other
than the Permitted Encumbrances appearing in the Title Commitment.
(d) At the Closing, Seller shall, and shall cause the
Partnership to, deliver to each of Buyer and the Title Company an affidavit
and/or indemnity (i) with respect to mechanic's liens certifying that there are
no unpaid bills for services rendered or materials furnished to the Property,
and (ii) sufficient to allow the Title Company to issue to Buyer, a "Fairway
Endorsement" and a "Non-Imputation Endorsement", as applicable, in connection
with the Owner's Policy insuring the title of the Partnership in the Property,
provided that no such affidavit shall require that Seller have assets other than
its interest in the Partnership and further provided that any indemnity shall be
limited in accordance with Section 11(c) hereof.
SECTION 5. Closing. The closing (the "Closing") of the sale and
purchase contemplated herein shall occur on the Closing Date, by mail using
escrow arrangements reasonably satisfactory to Seller and Buyer.
SECTION 6. Closing Deliveries and Closing Costs.
6.1 Seller Deliveries. At the Closing, Seller shall deliver or cause to
be delivered to Buyer the following items:
(a) the Assignment and Assumption of Partnership Interests (the
"Assignment and Assumption"), duly executed and delivered by Seller, in the
forms of Exhibit E annexed hereto and hereby made a part hereof.
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(b) all Consents and Licenses required in connection with the
execution and delivery of this Agreement.
(c) good and marketable title to the Conveyed Interests, free and
clear of all liens (other than liens created pursuant to the Loan Documents) and
an affidavit and/or indemnity sufficient to allow the Title Company to issue to
Buyer, a "Fairway Endorsement" and a "Non-Imputation Endorsement", as
applicable, in connection with the Owner's Policy, subject to the limitations
set forth in Section 4(d) above.
(d) evidence reasonably satisfactory to Buyer and the Title Company
respecting the due organization of Seller and the due authorization and
execution by Seller of this Agreement and the documents required to be delivered
hereunder.
(e) a statement or agreement signed by a duly authorized officer,
employee or agent of Lender (the "Acknowledgment Agreement"), dated no more than
thirty (30) days before the Closing: (i) stating the amount of the unpaid
principal of the loan secured by the Mortgage, the date to which interest has
been paid and the amounts, if any claimed to be unpaid for principal and
interest, and itemizing the same, (ii) stating the nature and itemized balances
(as of the Closing Date) of all escrows and reserves (the "Reserves") held by
Lender in connection with the Loan Documents, (iii) certifying that no defaults
exist under the monthly payment provisions of the Loan Documents, and (iv)
consenting to the transactions contemplated by this Agreement.
(f) a duly executed and delivered Amended and Restated Partnership
Agreement (the "Restated Partnership Agreement"), duly executed and delivered by
Seller, in the form of Exhibit F annexed hereto and hereby made a part hereof,
effective as of the Closing Date.
(g) a guaranty (the "Guaranty"), duly executed and delivered by
Seller, in the form of Exhibit G annexed hereto and hereby made a part hereof,
effective as of the Closing Date. The parties acknowledge that, pursuant to the
terms and conditions of that certain Purchase and Sale Agreement (the "ARC
Agreement"), between Seller and Xxxxxx, collectively, as seller, and
Philadelphia ARC-Cedar, LLC ("ARC"), as purchaser, Seller is also obligated to
deliver the Guaranty. In the event the closing under the ARC Agreement occurs
prior to, or simultaneously with, the Closing (and Seller, pursuant to that
closing, has already delivered, or is delivering, simultaneously herewith, the
Guaranty), Seller shall not be required to deliver the Guaranty in connection
with the Closing.
(h) a Master Lease (the "Master Lease"), duly executed and
delivered by the Partnership, as landlord, and Seller, as tenant, in the form of
Exhibit H annexed hereto and hereby made a part hereof, effective as of the
Closing Date. The parties acknowledge that, pursuant to the terms of the ARC
Agreement, Seller is also obligated to deliver the Master Lease. In the event
the closing under the ARC Agreement occurs prior to, or simultaneously with, the
Closing (and Seller, pursuant to that closing, has already delivered, or is
delivering, simultaneously herewith, the Master Lease), Seller shall not be
required to deliver the Master Lease in connection with the Closing.
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(i) an Agreement regarding Master Lease (the "Side Letter"), duly
executed and delivered by the Partnership and Seller, in the form of Exhibit H-1
annexed hereto and hereby made a part hereof, effective as of the Closing Date.
The parties acknowledge that, pursuant to the terms of the ARC Agreement, Seller
is also obligated to deliver the Side Letter. In the event the closing under the
ARC Agreement occurs prior to, or simultaneously with, the Closing (and Seller,
pursuant to that closing, has already delivered, or is delivering,
simultaneously herewith, the Side Letter), Seller shall not be required to
deliver the Side Letter in connection with the Closing.
(i) Subject to the approval of the Lender, a pledge (the
"Silver Circle Pledge"), duly executed and delivered by Seller, in the form of
Exhibit I annexed hereto and hereby made a part hereof. The parties acknowledge
that, pursuant to the terms and conditions of the ARC Agreement, Seller is also
obligated to deliver the Silver Circle Pledge. In the event the closing under
the ARC Agreement occurs prior to, or simultaneously with, the Closing (and
Seller, pursuant to that closing, has already delivered, or is delivering,
simultaneously herewith, the Silver Circle Pledge), Seller shall not be required
to deliver the Silver Circle Pledge in connection with the Closing.
(j) such other documents required by the terms of this
Agreement or as may otherwise be reasonably necessary to consummate the
transactions contemplated under this Agreement, taking into account the terms
and conditions of this Agreement.
6.2 Buyer Deliveries. At the Closing, Buyer shall deliver or cause to
be delivered to Seller the following items executed and acknowledged by Buyer,
as appropriate:
(a) the Closing Payment, to be made in accordance with Section
3 above.
(b) the Assignment and Assumptions, duly executed and
delivered by Buyer.
(c) the Note, duly executed and delivered by Buyer;
(d) the Pledge, duly executed and delivered by Buyer, together
with such UCC-1 financing statements, duly executed and delivered by Buyer, as
Seller may reasonably require, in order to perfect the security interest created
by the Pledge;
(e) the Restated Partnership Agreement, duly executed and
delivered by Buyer and ARC;
(f) the Indemnity Agreement, in the form annexed hereto as
Exhibit J, duly executed and delivered by Buyer; and
(g) such other documents as may be required under the terms of
this Agreement or as may otherwise be reasonably necessary to consummate the
transactions contemplated under this Agreement, taking into account the terms
and conditions of this Agreement.
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6.3 Closing Costs. At the Closing, Seller shall pay the cost of all
transfer taxes, if any, including transfer taxes of the Commonwealth of
Pennsylvania and of the county in which the Property is located, payable in
connection with the transaction contemplated hereby. Seller shall pay (a) the
title insurance premium for the Owner's Policy, and (b) the costs of the Survey.
Buyer shall pay (a) the cost of any endorsements to the Owner's Policy required
or requested by Buyer, and (b) all fees, costs or expenses in connection with
Buyer's due diligence reviews hereunder. Except as expressly provided in the
indemnities set forth in this Agreement, Seller and Buyer shall pay their
respective legal, consulting, and other professional fees and expenses incurred
in connection with this Agreement and the transaction contemplated hereby and
their respective shares of prorations as hereinafter provided.
SECTION 7. Use of Reserves/Closing Adjustments.
7.1 Reserves
Pursuant to Section 8.1(g) hereof, Seller has made a
representation that the amount of Reserves held by Lender are set forth on
Exhibit K annexed hereto and hereby made a part hereof. Buyer acknowledges and
agrees that, to the extent Seller incurs expenses in connection with subleasing
the space demised by the Master Lease or performing tenant improvements in
connection with any such subleases, Seller shall, subject to Lender's approval,
be permitted to utilize, in connection with any such expenses, the balance
existing, as of the Closing Date, in that certain Reserve identified on Exhibit
K as the "Leasing/TI Reserve" (the "Leasing Reserve"). Buyer agrees that it
shall, upon notice from Seller (and without obligation to incur cost or
expense), attempt to facilitate with Lender the disbursement of such funds from
the Leasing Reserve.
7.2 Special Adjustments.
(a) At the Closing, Buyer shall reimburse Seller, or Seller
shall deliver or allow Buyer a credit against the Purchase Price, as
appropriate, in accordance with the various adjustments described on Exhibit L
annexed hereto and hereby made a part hereof.
(b) Errors or omissions in computing adjustments at Closing
shall be promptly corrected and the proper party reimbursed.
SECTION 8. Representations, Warranties and Covenants.
8.1 Representations, Warranties and Covenants of Seller. Seller hereby
represents and warrants to Buyer that, as of the date hereof:
(a) The Partnership is a limited partnership, duly organized,
validly existing and in good-standing under the laws of the State of New York.
The Partnership has all requisite power and authority to own, lease, and operate
its assets and property and to conduct its business as now being conducted.
(b) Seller is a corporation, duly organized, validly existing
and in good-standing under the laws of the State of Delaware, and has full power
and authority to own and operate its properties and assets and to conduct its
business as now being conducted.
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(c) The Partnership engages in no business other than the
ownership, maintenance and operation of the Property and has no direct or
indirect ownership interests in any other Person and neither owns, leases nor
has any tangible property other than the Property. The Partnership has not
qualified to do business in any jurisdiction other than Pennsylvania and the
character of the properties and assets owned by or leased to the Partnership and
the nature of the business transacted by the Partnership does not require that
the Partnership qualifies to do business in any jurisdiction other than
Pennsylvania.
(d) Seller owns the Partnership Interests (including
subscriptions and other rights to purchase or acquire any partnership interest
of the Partnership). Seller has not sold, conveyed, transferred, given, pledged,
mortgaged or otherwise disposed of, encumbered or granted in any manner all or
any portion of the Conveyed Interests (other than in connection with the Loan
Documents); there are no outstanding warrants, options, rights, agreements,
calls or other commitments to which Seller is a party relating to or providing
for the sale, conveyance, transfer, gift, pledge, mortgage or other disposition,
encumbrance or granting of, or permitting any Person to acquire all or any
portion of the Conveyed Interests (other than as contained in the Loan
Documents); Seller owns the Conveyed Interests free and clear of any liens
(other than as created by the Loan Documents), and, subject to the receipt of
Lender's consent, has the absolute right, power and capacity to sell, assign,
convey, transfer and deliver the Conveyed Interests as contemplated by this
Agreement, free and clear of any liens (other than as created by the Loan
Documents); Seller (subject to Lender's consent) has the full and unrestricted
right, power and authority to admit (or to cause the Partnership to admit) Buyer
as a partner of the Partnership pursuant to all the terms and conditions of the
Existing Partnership Agreement.
(e) Annexed hereto as Exhibit M is a true and complete copy of
(a) the Existing Partnership Agreement, and (b) the existing certificate of
Limited Partnership of the Partnership. To the best Actual Knowledge of Seller,
the same are in full force and effect and have not been modified, supplemented
or amended, and there will be no amendments thereto prior to the Closing Date.
Seller has the full power and authority to enter into this Agreement and,
subject to Lender's consent, to carry out the transactions contemplated hereby
and the execution, delivery and performance of this Agreement by Seller has been
duly authorized by all necessary action. The sale of the Conveyed Interests by
Seller to Buyer, the execution and delivery of this Agreement, the fulfillment
of the terms set forth in this Agreement and the consummation of the
transactions contemplated by this Agreement will not (i) conflict with or
constitute a default under the Existing Partnership Agreement, or a default
under any Operating Agreement by which Seller or the Partnership is bound or to
which the Property is subject, or would be a violation of any Laws or Court
Orders applicable to Seller, the Partnership or the Property or (ii) require the
consent of any other Person under any Operating Agreement by which the
Partnership or any partner is bound or to which the Property is subject. This
Agreement has been duly executed and delivered and constitutes the legal, valid
and binding obligation of Seller, enforceable against Seller in accordance with
its terms, except as enforceability may be limited by applicable law affecting
creditors' rights generally and principles of equity, whether considered in a
proceeding at law or in equity. Neither Seller nor the Partnership, require any
consent, approval, authorization or order of, or declaration, filing or
registration with, any Governmental Authority or Person in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby other than the consent of Lender.
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(f) To the best Actual Knowledge of Seller, the Partnership
has paid all Taxes due or assessed against it or the Property and has duly filed
all Federal, State and local franchise, income and other tax returns required to
be filed by it prior to the date hereof, has filed all franchise, income and
other tax returns required (or which will be required) to be filed by it in
respect of the fiscal year ending December 31, 2000, and all Taxes due (whether
or not reflected on such returns) with respect to the periods covered thereby
have been paid. To the best Actual Knowledge of Seller: (i) neither Seller nor
the Partnership has received from any authority any written notice of
underpayment of any Taxes by the Partnership, (ii) no Actions relating to the
tax liability of the Partnership, or Seller, is pending, (iii) the institution
of any such Action is not contemplated by any authority, and (iv) neither Seller
nor the Partnership has waived restrictions on assessment or collection of taxes
or consented to the extension of any statute of limitations with respect to
taxation of the Partnership.
(g) To the best Actual Knowledge of Seller, except for the
Mortgage: (i) there are no deeds of trust and/or mortgages on the Property, and
(ii) the Partnership has not consented to the placement of any mortgages or
deeds of trust on the Property. To the best Actual Knowledge of Seller, neither
Seller nor the Partnership has received any written notice or other
communication claiming that a default exists under the Loan or any mortgages
presently affecting the Property, or any part thereof. To the best Actual
Knowledge of Seller, Lender presently holds Reserves in the amounts set forth on
Exhibit K annexed hereto. Seller is not in default in any of its obligations
under the Loan Documents and has no outstanding liabilities or obligations
thereunder.
(h) To the best Actual Knowledge of Seller, other than with
respect to the Sports Authority Claim, neither Seller nor the Partnership has
received written notice of any Actions (whether or not purportedly on behalf of
the Partnership) pending or threatened against or affecting the Partnership
which are not otherwise covered by insurance.
(i) Seller is not a party to, and to the best Actual Knowledge
of Seller, is not subject to or bound by, any Court Order or Operating Agreement
that could prevent the performance of all or any of the terms of this Agreement.
(j) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
Seller has taken all necessary actions to authorize and approve the execution
and delivery of this Agreement and the consummation of the transaction
contemplated hereby. Provided Seller shall have received the consent of Lender
to the transactions contemplated by this Agreement, the fulfillment of the terms
set forth in this Agreement and the consummation of the transactions
contemplated by this Agreement will not (i) conflict with or constitute a
default under any agreement by which Seller is bound or to which the Property is
subject, including, without limitation, the Mortgage, or a violation of any Laws
or Court Orders applicable to Seller, the Partnership, or the Property.
(k) The Partnership is the owner of the Property. The Land and
Improvements are free of any liens and encumbrances other than the Permitted
Encumbrances.
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(l) All of the Tenant Leases to which either the Partnership
is a party (by assignment or otherwise) or is bound in existence on the date
hereof have been delivered or made available to Buyer. The copies of the Tenant
Leases that have been delivered or made available by Seller to Buyer are true,
correct and complete. Exhibit N annexed hereto and hereby made a part hereof
sets forth a list of all Tenant Leases to which either the Partnership is a
party or is bound, and is true, complete and correct in all material respects.
Except as set forth on Exhibit N, the Tenant Leases are in full force and
effect. To the best actual knowledge of Seller, there are no parties in
possession of the Property, except the Tenants and any subtenants disclosed in
Exhibit N. Except as set forth in Exhibit N, all tenant improvements required
under the Tenant Leases to be completed by the date hereof by the landlord
thereunder have been completed and all tenant allowances required under the
Tenant Leases to be paid in full as of the date hereof have been paid in full.
Except as set forth on Exhibit N and other than the Sports Authority Claim, to
the best actual knowledge of Seller, there is no material uncured default under
any Tenant Leases and the Partnership has not received from any Tenant any
written notice claiming any default by the landlord under its Tenant Lease which
default remains uncured. Neither the Partnership nor Seller has received notice
of any defense to, offsets, claims or disputes against rental payable or
obligations under any Tenant Lease other than the Best Buy Overpayment. To the
best actual knowledge of Seller, no guarantor of any Tenant Lease has been
released or discharged, voluntarily (involuntarily, or by operation of law) from
any obligation related to such Tenant Lease except in accordance with the terms
of such Tenant Lease. For purposes of this Agreement (i) the term, the "Sports
Authority Claim" shall mean that certain claim made by The Sports Authority,
Inc, relating to alleged errors made the Partnership in the calculation of
additional rent under the Lease, as more particularly described on Exhibit N
annexed hereto, and (ii) the term, the "Best Buy Overpayment" shall mean the
overpayments in rent, in the amount of $0.50 per square foot per year, which
Best Buy Stores, L.P. has been paying to the Partnership during the period
beginning upon the opening for business at the Property of the store operated by
Staples, Inc. and continuing through and including the Closing Date (but not any
overpayments made by Best Buy Stores, L.P. after the Closing Date). Seller shall
indemnify and hold Buyer harmless, and defend Buyer from and against any claim,
loss, damage, liability, cost and expense suffered by Buyer in connection with
(i) the Sports Authority Claim, and (ii) any future claims made with respect to
the Best Buy Overpayment.
(m) Annexed hereto as Exhibit O is a rent roll and security
deposit schedule (the "Rent Roll") for all Tenant Leases in effect as of the
date hereof. The Rent Roll is true, complete and correct in all material
respects.
(n) All of the Operating Agreements to which either the
Partnership is a party (by assignment or otherwise) or is bound in existence on
the date hereof have been delivered or made available to Buyer. The copies of
the Operating Agreements that have been delivered or made available by the
Partnership to Buyer are true, correct and complete. Exhibit P annexed hereto
and hereby made a part hereof sets forth a list of all Operating Agreements to
which either the Partnership is a party or is bound, and is true, complete and
correct in all material respects. Except as set forth on Exhibit P, the
Operating Agreements are in full force and effect. Except as set forth on
Exhibit P, to the best actual knowledge of Seller, no material uncured default
exists under any Operating Agreement.
(o) There are no unpaid brokerage commissions due or, with the
passage of time or the occurrence of an event, to be due, in connection with the
current term of any Tenant Lease entered into by the Partnership, other than
commissions due to Rodin Commercial Management Incorporated ("Rodin"), in the
amounts and with respect to the Tenant Leases described on Exhibit Q annexed
hereto and hereby made a part hereof. As contemplated by Section 9.2 hereof,
Seller shall remain responsible for the payment of all such commissions to
Rodin.
-12-
(p) The Employees are the only employees of the Partnership,
at the Property or otherwise. There are no union or employment contracts or
agreements (written or oral) affecting the Property (including, without
limitation, any such agreement relating to the Employees' employment at the
Property).
(q) To the best Actual Knowledge of Seller, except for the
Mortgage: (i) there are no deeds of trust and/or mortgages on the Property, and
(ii) Seller has not consented to the placement of any mortgages or deeds of
trust on the Property. The copies of the Mortgage that have been delivered or
made available by Seller to Buyer are true, correct and complete, and have not
been modified or amended. Seller has not received any written notice or other
communication claiming that a default exists under the Mortgage and, to the best
Actual Knowledge of Seller, no default exists under the Mortgage.
(r) To the best Actual Knowledge of Seller, the only consent
needed by Seller in connection with the consummation of the transactions
contemplated by this Agreement, is the consent of Lender.
(s) To the best Actual Knowledge of Seller, the Property is in
material compliance with all applicable Laws.
"Actual Knowledge of Seller" shall mean only the actual
knowledge of Xxxxxx and/or Xxxxxx Xxxxxx (the "Designated Individuals"), and
shall not be construed to impose upon the Designated Individuals any duty to
investigate the matter to which such Actual Knowledge, or the absence thereof,
pertains. Seller represents that the Designated Individuals are those
individuals who are most knowledgeable about the Property.
8.2 GENERAL DISCLAIMER. THE SALE OF THE CONVEYED INTERESTS HEREUNDER IS
AND WILL BE MADE ON AN "AS IS" ,"WHERE IS," AND "WITH ALL FAULTS" BASIS, AND
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, WITHOUT REPRESENTATIONS AND
WARRANTIES OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY
REPRESENTATION OR WARRANTY CONCERNING TITLE TO THE CONVEYED INTERESTS OR THE
PROPERTY, THE PHYSICAL CONDITION OF THE PROPERTY, THE ENVIRONMENTAL CONDITION OF
THE PROPERTY (INCLUDING THE PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES ON OR
AFFECTING THE PROPERTY), THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE LAWS AND
REGULATIONS (INCLUDING ZONING AND BUILDING CODES OR THE STATUS OF DEVELOPMENT OR
USE RIGHTS RESPECTING THE PROPERTY), THE FINANCIAL CONDITION OF THE PARTNERSHIP
OR THE PROPERTY, OR ANY OTHER REPRESENTATION OR WARRANTY RESPECTING ANY INCOME,
EXPENSES, CHARGES, LIENS OR ENCUMBRANCES, RIGHTS OR CLAIMS ON, AFFECTING OR
PERTAINING TO THE CONVEYED INTERESTS, THE PARTNERSHIP, OR THE PROPERTY OR ANY
PART THEREOF. EXCEPT AS TO MATTERS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
BUYER WILL ACQUIRE THE CONVEYED INTERESTS SOLELY ON THE BASIS OF ITS OWN
PHYSICAL AND FINANCIAL EXAMINATIONS, REVIEWS AND INSPECTIONS AND THE TITLE
INSURANCE PROTECTION AFFORDED BY THE OWNER'S POLICY (IN THE EVENT BUYER ELECTS
TO PURCHASE SAME).
-13-
8.3 Representations, Warranties and Covenants of Buyer.
(a) Buyer is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
and has full power and authority to own, lease and operate its properties and
assets and to conduct its business as now being conducted.
(b) Buyer has the full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby, and the
execution, delivery and performance of this Agreement by Buyer has been duly
authorized by all necessary action. The purchase of the Conveyed Interests by
Buyer from Seller, the execution and delivery of this Agreement, the fulfillment
of the terms set forth in this Agreement and the consummation of the
transactions contemplated by this Agreement will not conflict with or constitute
a default under the organizational documents of Buyer, or a default under any
contract by which Buyer is bound, or would be a violation of any Laws or Court
Orders applicable to Buyer. This Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms. Buyer does not require any consent,
approval, authorization or order of, or declaration, filing or registration
with, any Governmental Authority or Person in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
SECTION 9. Conditions To Closing and Post-Closing Matters.
9.1 Conditions of Buyer's Obligation to Close. (a) The obligations of
Buyer to consummate the transactions contemplated by this Agreement are, at the
option of Buyer, subject to the condition set forth below, which condition may
be waived by Buyer without releasing or waiving of its rights hereunder:
(i) Buyer shall, at its sole cost and expense, have
obtained a "fairness opinion", issued by Xxxxxx X. Xxxxxxx & Company, in form
and substance satisfactory to Buyer, in the exercise of its sole discretion,
indicating that the transaction contemplated by this Agreement is fair, from a
financial point of view.
(ii) Buyer shall, at its sole cost and expense, have
obtained an appraisal of the Property prepared by St. Xxxxx Realty Associates
evidencing that the fair market value of the Conveyed Interests is at least
equal to the Purchase Price.
(iii) Seller shall cause the Partnership to deliver
to Buyer, a duly executed and delivered Estoppel Certificate, substantially in
the form of Exhibit R annexed hereto and hereby made a part hereof (such form,
"Acceptable Form"), from all Tenants under those Tenant Leases demising more
than Five Thousand (5,000) net rentable square feet of space in the Improvements
(the "Major Leases"). To the extent the Major Leases do not, in the aggregate,
demise at least eighty-five (85%) of the total net, rentable square footage in
the Improvements, Seller shall cause the Partnership to deliver Estoppel
Certificates from a sufficient number of additional Tenants so that Estoppel
Certificates shall have been received with respect to at least eighty-five (85%)
of the total net, rentable square footage in the Improvements. Any reference
made in an Estoppel Certificate received from The Sports Authority, Inc. to the
Sports Authority Claim shall not, in and of itself, prevent such Estoppel
Certificate from being deemed to be in Acceptable Form.
-14-
(b) In the event that any condition contained in this Section
9.1 is not satisfied, Buyer shall have as its sole remedy hereunder the right to
(i) waive such unsatisfied condition whereupon the transactions contemplated by
this Agreement shall be consummated as provided in this Agreement, or (ii)
terminate this Agreement, by notice to Seller. Upon the giving of such
termination notice, this Agreement shall terminate and, except as otherwise set
forth herein, neither party to this Agreement shall have any further rights or
obligations hereunder.
9.2 Seller's Ongoing Obligation. (a) Seller acknowledges that,
as more particularly set forth in the Restated Partnership Agreement, Seller
shall be obligated to contribute to the Partnership all amounts necessary to pay
all Business Privilege Tax and Net Profits Tax to which the Partnership is
subject.
(b) Seller acknowledges that, as more particularly set forth in the
Master Lease, Seller has ongoing obligations under the Master Lease, in its
capacity as tenant thereunder.
(c) Seller acknowledges that, as more particularly set forth in the
Guaranty, Seller has ongoing obligations under the Guaranty, in its capacity as
guarantor thereunder.
(d) Seller acknowledges that, pursuant to the terms of the form of
Acknowledgment Agreement which Lender has agreed to deliver, Lender has required
that Purchaser assume all past (to the extent unsatisfied), present and future
liabilities, terms, provisions, covenants and obligations of Seller (in its
capacity as the general partner of the Partnership) under the Loan Documents.
Accordingly, Seller hereby agrees to defend, indemnify and hold harmless Seller
from and against any and all costs, liabilities, claims, damages and expenses
(to the extent same relate to matters occurring or accruing prior the Closing),
including, without limitation, reasonable attorneys' fees and disbursements,
incurred by Purchaser as a result of Purchaser's assumption of Seller's
liabilities, terms, provisions, covenants and obligations under the Loan
Documents.
9.3 Buyer's Assumed Responsibilities. (a) Without limiting the
generality of any other provision of this Agreement, from and after the Closing
Date, Buyer specifically assumes the obligation to cause the Partnership to pay
when due those brokerage commissions referenced on Exhibit Q.
(b) Buyer agrees that, from and after the Closing, for such
time as Buyer, in its sole discretion, elects, it shall cause the Partnership to
retain the Employees to act in the capacity in which they currently serves.
-15-
SECTION 10. NOTICES. All notices, requests or other communications
which may be or are required to be given, served or sent by either party hereto
to the other shall be deemed to have been properly given, if in writing and,
unless otherwise specified herein, and (a) upon delivery, if delivered in person
or by facsimile transmission with receipt thereof confirmed by printed facsimile
acknowledgment, (b) one (1) Business Day after having been deposited for
overnight delivery with any reputable overnight courier service, or (c) three
(3) Business Days after having been deposited in any post office or mail
depository regularly maintained by the United States Postal Office and sent by
registered or certified mail, postage paid, return receipt requested, and in
each case, addressed as follows:
To Seller:
---------
c/o Brentway Management LLC
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile: 516/767-6497
Telephone: 516/000-0000
With a Copy To:
--------------
Nikolaus & Xxxxxxxxx, LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Facsimile: 717/299-1811
Telephone: 717/000-0000
To Buyer:
--------
c/o Cedar Bay Realty Advisors, Inc.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Ms. Xxxxxx Xxxxxx
Facsimile: 516/767-6497
Telephone: 516/000-0000
With a Copy To:
--------------
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: 212/806-6006
Telephone: 212/000-0000
-16-
SECTION 11. MISCELLANEOUS (a) Buyer and Seller each warrant and
represent to the other that SKR Management Corp. (the "Broker") is the sole
broker involved in the negotiation and consummation of this transaction. Buyer
and Seller each agree to indemnify and hold the other harmless, and defend the
other from and against any claim, loss, damage, liability, cost and expense
(including, without limitation, reasonable attorneys' fees) resulting from the
claims of any other broker that shall involve a breach of the foregoing warranty
and representation. Seller agrees to pay the commission of the Broker pursuant
to a separate agreement.
(b) This Agreement shall be construed and enforced in
accordance with the laws of the State of Pennsylvania, without giving effect to
principles of conflicts of law.
(c) The parties hereto agree that all representations,
warranties, covenants, indemnifications, conditions and agreements contained
herein or in any instrument or other document delivered pursuant to this
Agreement or in connection with the transactions contemplated hereby shall
survive the Closing for a period of twelve (12) months from the Closing or
earlier termination of this Agreement, provided, however Sections 7, 9.2, 9.3,
11(a), and this Section 11(c) hereof shall survive the Closing without regard to
such twelve (12) month limitation. In the event that either party commences an
action against the other, the damages payable shall not exceed Five Hundred
Thousand ($500,000.00) Dollars.
(d) Neither this Agreement nor any memorandum thereof shall be
recorded and any attempted recordation hereof shall be void and shall constitute
a default hereunder.
(e) This Agreement, including the Exhibits and Schedules
hereto, sets forth the entire agreement and understanding between the parties
and merges and supersedes all prior discussions, agreements and understandings
of every kind and nature among them as to the subject matter hereof, and no
party shall be bound by any condition, definition, warranty or representation
other than as expressly provided for in this Agreement or as may be on the date
hereof or subsequent hereto, duly set forth in writing signed by each party
which is to be bound thereby. Unless otherwise expressly defined, terms defined
in the Agreement shall have the same meanings when used in any Exhibit or
Schedule and terms defined in any Exhibit or Schedule shall have the same
meanings when used in this Agreement or in any other Exhibit or Schedule. This
Agreement (including the Exhibits and Schedules hereto) shall not be changed,
modified or amended except by a writing signed by each party to be charged and
this Agreement may not be discharged except by performance in accordance with
its terms or by a writing signed by each party to be charged.
(f) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and permitted
assigns. The Agreement may not be assigned by Seller except with the prior
written consent of Buyer, which can be withheld in Buyer's sole discretion. This
Agreement may not be assigned by Buyer except with the prior written consent of
Seller, which can be withheld in Seller's sole discretion. Nothing herein
contained shall confer or is intended to confer on any third party or entity
which is not a party to this Agreement any rights under this Agreement.
-17-
(g) Whenever the context requires, the use in this Agreement
of a pronoun of any gender shall be deemed to refer also to any other gender,
and the use of the singular shall be deemed to refer also to the plural.
(h) The headings in the sections, paragraphs, and Exhibits and
Schedules of this Agreement are inserted for convenience of reference only and
shall not constitute a part hereof. The words "herein," "hereof," "hereto" and
"hereunder," and other words of similar import refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(i) If any provision of this Agreement is held to be invalid
or unenforceable as against any person or under certain circumstances, the
remainder of this Agreement and the applicability of such provision to other
persons or circumstances shall not be affected thereby. Each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
(j) This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, but all of which,
taken together, shall constitute but one and the same instrument. This Agreement
may be executed by facsimile which shall be deemed an original for all purposes.
In the event this Agreement is executed by the exchange of facsimile copies, the
parties agree to exchange ink-signed counterparts promptly after the execution
and delivery of this Agreement.
(k) No failure or delay of any party in the exercise of any
right given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit (unless the time specified herein for exercise of such
right, or satisfaction of such condition, has expired) shall constitute a waiver
of any other or further right nor shall any single or partial exercise of any
right preclude other or further exercise thereof or any other right. The waiver
of any breach hereunder shall not be deemed to be a waiver of any other or any
subsequent breach hereof.
-18-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
SELLER:
SILVER CIRCLE MANAGEMENT CORP.
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: President
/s/ Xxx X. Xxxxxx
---------------------------------------
XXX X. XXXXXX
BUYER:
PHILADELPHIA ARC-CEDAR, LLC
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
THE TERMS OF THE FOREGOING AGREEMENT ARE HEREBY ACKNOWLEDGED AND CONSENTED TO:
API RED LION SHOPPING CENTER ASSOCIATES
By: Silver Circle Management Corp.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
Vice President
EXHIBIT A
---------
(Land)
EXHIBIT B
---------
(Additional Exceptions to Title)
EXHIBIT C
---------
(Assignment and Assumption of Partnership Interests)
EXHIBIT C
---------
(Assignment and Assumption of Partnership Interests)
ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST
THIS ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST is made as of
the _____ day of _____, 2002, by and between SILVER CIRCLE MANAGEMENT CORP.
("Assignor"), a Delaware corporation having an office c/o Brentway Management,
00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 and CEDAR-RL, LLC
("Assignee"), a Delaware limited liability company having an office c/o Brentway
Management, 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Assignor is the general partner of API Red Lion Shopping
Center Associates (the "Partnership"), a New York limited partnership, pursuant
to the terms of that certain Agreement of Limited Partnership of the
Partnership, dated as of October 1, 1987, as amended by (i) that certain
Amendment to Agreement of Limited Partnership of the Partnership, dated as of
November 26, 1997, and (ii) that certain Second Amendment to Agreement of
Limited Partnership, dated as of February 7, 2000 (collectively, the
"Partnership Agreement").
WHEREAS, Assignor desires to assign and transfer to Assignee, and
Assignee desires to receive from Assignor, a 20% partnership interest in the
Partnership (the "Assigned Interest").
WHEREAS, Simultaneously herewith, the Partnership Agreement is being
amended by that certain Amended and Restated Agreement of Limited Partnership of
API Red Lion Shopping Center Associates (the "Restated Agreement"), which
Restated Agreement, among other things, contemplates the assignment and transfer
of the Assigned Interest.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee agree as follows:
1. All capitalized terms used herein, but not otherwise
defined herein, shall have the meanings set forth with respect thereto in the
Restated Agreement.
2. As of the date hereof Assignor hereby assigns, transfers,
and sets over to Assignee all of Assignor's right, title and interest in and to
the Assigned Interest, including, without limitation (i) all right, title and
interest of Assignor from time to time in and to the Partnership, (ii) all
right, title and interest of Assignor pursuant to the Restated Agreement from
time to time in and to all real and personal property and every other right,
however characterized, now or hereafter held by the Partnership and (iii) all of
Assignor's respective claims, rights, powers, privileges, security interests,
liens and remedies under the Restated Agreement free of all liens, claims and
encumbrances.
3. The parties hereto agree that the consideration paid by
Assignee to Assignor for the Assigned Interest shall be in the amount set forth
in that certain Agreement for Purchase and Sale of Partnership Interests, of
even date herewith, between Assignor, as seller, and Assignee, as purchaser.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns from and after the date hereof.
4. Assignee does hereby assume and agree to perform from and
after the date hereof all of the terms, covenants and conditions on the part of
Assignee to be performed pursuant to the Restated Agreement.
5. The provisions of this Assignment shall be binding upon
Assignor, its successors and assigns, and all persons claiming by, under or
through Assignor or any such successor or assign, and shall inure to the benefit
of and be enforceable by Assignee and its successors and assigns.
6. This Assignment shall be construed in accordance with and
governed by the internal laws of the State of New York, without regard to
principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ASSIGNOR:
SILVER CIRCLE MANAGEMENT CORP.
By: ____________________
Name:
Title:
ASSIGNEE:
CEDAR-RL, LLC
By: Cedar Income Fund Partnership, L.P.
By: Cedar Income Fund, Ltd.
By: ____________________
Name:
Title:
EXHIBIT D
---------
(Guaranty by Silver Circle)
EXHIBIT E
---------
(Pledge by Silver Circle)
EXHIBIT F
---------
(Master Lease)
EXHIBIT G
---------
(Tenant Leases)
EXHIBIT H
---------
(Rent Roll)
EXHIBIT I
---------
(Operating Agreements)
EXHIBIT J
---------
(Unpaid Brokerage Commissions)
EXHIBIT K
---------
(Pending Claims)
EXHIBIT L
---------
(Restated Partnership Agreement)
