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AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
GATEWAY CONNECTICUT PROPERTIES, INC., A CALIFORNIA CORPORATION
AS SELLER
AND
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
A DELAWARE LIMITED PARTNERSHIP
AS PURCHASER
Date: November 15, 2004
Property: Brickyard Shopping Center, Berlin, Connecticut
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "AGREEMENT") is made and
entered into as of the 12th day of November, 2004, by and between GATEWAY
CONNECTICUT PROPERTIES, INC., a California corporation (hereinafter referred to
as "SELLER"), and CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a Delaware limited
partnership (hereinafter referred to as "PURCHASER").
In consideration of the mutual promises, covenants and agreements
hereinafter set forth and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
ARTICLE I.
SALE OF PROPERTY
1.1 SALE OF PROPERTY. Seller hereby agrees to sell, assign and convey
to Purchaser and Purchaser agrees to purchase from Seller, all of Seller's
right, title and interest in and to, the following:
1.1.1. LAND AND IMPROVEMENTS. Those certain parcels of real
property commonly known as The Brickyard Shopping Center and located on State
Route 15 (US Route 5) in Berlin, Connecticut more particularly described on
Exhibit A attached hereto and incorporated herein by reference thereto (the
"LAND"), together with all buildings and other improvements located thereon (the
"IMPROVEMENTS");
1.1.2. LEASES. All leases, subleases, licenses and other
occupancy agreements, together with any and all amendments, modifications or
supplements thereto, affecting the Property (as defined below) are hereafter
referred to collectively as the "EXISTING LEASES" being more particularly
described on Exhibit E attached hereto (the "LEASE SCHEDULE"), and all prepaid
rent attributable to the period following the Closing, and subject to Section
4.2.4 below, the security deposits under such Leases, and all Approved New
Leases (as defined below) (collectively, the "LEASEHOLD PROPERTY");
1.1.3. REAL PROPERTY. All rights, privileges and easements
appurtenant to and otherwise pertaining to Seller's interest in the Land and the
Improvements, if any, including, without limitation, all of Seller's right,
title and interest, if any, in and to all mineral and water rights, strips,
gores, any land in the bed of any street, road, avenue, open or proposed, public
or private, in front of or adjoining the Land, to the center line thereof,
condemnation awards and proceeds, and all easements, licenses, covenants and
other rights-of-way or other appurtenances used in connection with the
beneficial use and enjoyment of the Land and the Improvements (the Land, the
Improvements and all such easements and appurtenances are sometimes collectively
referred to herein as the "REAL PROPERTY");
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1.1.4. PERSONAL PROPERTY. All personal property (including
equipment), if any, owned by Seller and located on, attached to, pertaining to,
or used in connection with the Real Property as of the date hereof, all
inventory located on the Real Property on the date of Closing (hereinafter
defined), and all fixtures (if any) owned by Seller and located on the Real
Property as of the date hereof (the "PERSONAL PROPERTY"); and
1.1.5. INTANGIBLE PROPERTY. Any and all non-exclusive
trademarks and trade names (including, without limitation, the name "The
Brickyard Shopping Center") used or useful in connection with the Real Property,
but only to the extent that the same are not trademarks or trade names of Seller
or any of Seller's affiliated companies (collectively, the "TRADE NAMES"),
together with the Seller's interest, if any, in and to any service, equipment,
supply and maintenance contracts (the "CONTRACTS"; provided Purchaser elects to
assume such Contracts), guarantees, licenses, approvals, certificates, permits
and warranties relating to the property and the Personal Property (collectively,
the "LICENSES"), to the extent assignable (collectively, Trade Names, Contracts,
and Licenses are hereinafter referred to as the "INTANGIBLE PROPERTY"). (The
Real Property, the Leasehold Property, the Personal Property, the Trade Names
and the Intangible Property are sometimes collectively hereinafter referred to
as the "PROPERTY"). It is hereby acknowledged by the parties that Seller shall
not convey to Purchaser claims relating to any real property tax refunds or
rebates for periods accruing prior to the Closing, existing insurance claims and
any existing claims against previous tenants of the Property, which claims shall
be reserved by Seller subject to the terms and conditions set forth in this
Agreement.
ARTICLE II.
PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price for the Property shall be TWENTY
EIGHT MILLION ONE HUNDRED SEVENTY ONE THOUSAND AND NO/100 DOLLARS ($28,171,000)
(the "PURCHASE PRICE"). The Purchase Price, as adjusted by all prorations as
provided for herein, shall be paid to Seller by Purchaser at Closing, as herein
defined, by wire transfer of immediately available federal funds.
ARTICLE III.
DEPOSITS AND ESCROW AGENT
3.1 DEPOSIT. Within two (2) business days following the Effective Date,
as defined in Section 16.4 of this Agreement and as a condition precedent to the
formation of this Agreement, Purchaser shall deposit ONE HUNDRED FIFTY THOUSAND
AND NO/100 DOLLARS ($150,000) (the "INITIAL DEPOSIT") with Chicago Title
Insurance Company, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx Xxxxxx (the "ESCROW AGENT") in immediately available federal
funds via wire transfer pursuant to wire instructions attached hereto as
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Schedule 1, the receipt of which is hereby acknowledged by Escrow Agent's
execution hereof. If Purchaser does not exercise the right to terminate this
Agreement in accordance with Section 5.5 hereof, Purchaser shall, within two (2)
business days following the last date of the Feasibility Period (as defined in
Section 5.1 below) deposit with Escrow Agent an additional ONE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($150,000) (the "SECOND DEPOSIT") in immediately
available federal funds via wire transfer to the account set forth in Schedule
1. If Purchaser shall fail to deposit the Initial Deposit or the Second Deposit
within the time periods provided for above, Seller may at any time prior to the
deposit of the Initial Deposit or the Second Deposit, terminate this Agreement,
in which case this Agreement shall be null and void ab initio and in such event
Escrow Agent shall immediately deliver to Seller all copies of this Agreement in
its possession and thereafter, neither party shall have any further rights or
obligations to the other hereunder, except for the Surviving Termination
Obligations (as defined in Section 16.12 below).
3.2. APPLICATION UPON DEFAULT. If the Closing occurs, the Initial
Deposit and the Second Deposit (collectively, the "DEPOSIT") shall be paid to
Seller and credited against the Purchase Price at Closing. If the Closing does
not occur in accordance with the terms hereof, the Deposit shall be held and
delivered as hereinafter provided.
3.3. INTEREST BEARING. The Deposit shall (i) be held in an
interest-bearing escrow account by Escrow Agent in an institution as directed by
Purchaser and reasonably acceptable to Seller and (ii) include any interest
earned thereon. To allow the interest bearing account to be opened, Purchaser's
and Seller's tax identification numbers are set forth below their signatures.
3.4 ESCROW AGENT. Escrow Agent is executing this Agreement to
acknowledge Escrow Agent's responsibilities hereunder, which may be modified
only by a written amendment signed by all of the parties. Any amendment to this
Agreement that is not signed by Escrow Agent shall be effective as to the
parties thereto, but shall not be binding on Escrow Agent. Escrow Agent shall
accept the Deposit with the understanding of the parties that Escrow Agent is
not a party to this Agreement except to the extent of its specific
responsibilities hereunder, and does not assume or have any liability of the
performance or non-performance of Purchaser or Seller hereunder to either of
them. Additional provisions with respect to the Escrow Agent are set forth in
Section 16.17.
ARTICLE IV.
CLOSING, PRORATIONS AND CLOSING COSTS
4.1 CLOSING. The closing of the purchase and sale of the Property shall
occur on or before 10:00 a.m. Eastern Standard time on December 31, 2004
(subject to extension by Seller to obtain a tenant estoppel certificate from
either Home Depot or Sam's Club in accordance with the provisions of Section
10.2.2 hereof) and shall be held through escrow at the offices of the Escrow
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Agent, or at such other place agreed to by Seller and Purchaser. "CLOSING" shall
be deemed to have occurred when the Title Company has been instructed by both
parties to release escrow and to record the Deed (as defined in Section 11.2.1
below). The date of Closing is referred to in this Agreement as the "CLOSING
DATE." Time shall be of the essence with respect to the Closing Date. After the
expiration of the Feasibility Period, Purchaser shall have the right to require
Seller to close on any earlier date (which is a business day) on at least three
(3) business days prior notice to Seller of such earlier date.
4.2. PRORATIONS. All matters involving prorations or adjustments to be
made in connection with Closing and not specifically provided for in some other
provision of this Agreement shall be adjusted in accordance with this Section
4.2. Except as otherwise set forth herein, all items to be prorated pursuant to
this Section 4.2 shall be prorated as of midnight of the day immediately
preceding the Closing Date, with Purchaser to be treated as the owner of the
Property, for purposes of prorations of income and expenses, on and after the
Closing Date. The provisions of this Section 4.2 and its subsections shall
survive the Closing.
4.2.1. TAXES. Real estate and personal property taxes and
special assessments, if any, shall be prorated as of the Closing Date. Seller
shall pay all real estate and personal property taxes and special assessments
payable during the calendar year of the Closing and attributable to the Property
to, but not including, the Closing Date. If any assessments on the Property are
payable in installments, then the installment for the current period shall be
prorated, with Seller paying its share of any installments due before the
Closing Date and Purchaser assuming the obligation to pay its share of any
installments due after the Closing Date. If the real estate and/or personal
property tax rate and assessments have not been set for the taxes and
assessments payable during the year in which the Closing occurs, then the
proration of such taxes shall be based upon the rate and assessments for the
preceding tax year and such proration shall be adjusted in cash between Seller
and Purchaser upon presentation of written evidence that the actual taxes paid
for the year in which the Closing occurs, differ from the amounts used in the
Closing in accordance with the provisions of Section 4.2.5 hereof. All taxes
imposed due to a change of use of the Property after the Closing Date shall be
paid by the Purchaser.
4.2.2. INSURANCE. There shall be no proration of Seller's
insurance premiums and, except as otherwise expressly provided in this
Agreement, no assignment of Seller's insurance policies. Purchaser shall be
obligated (at its own election) to obtain any insurance coverage deemed
necessary or appropriate by Purchaser.
4.2.3. UTILITIES. Purchaser and Seller hereby acknowledge and
agree that the amounts of all telephone, electric, sewer, water and other
utility bills, trash removal bills, janitorial and maintenance service bills and
all other operating expenses relating to the Property and allocable to the
period prior to the Closing Date shall be determined and paid by Seller before
Closing, if possible, or shall be paid thereafter by Seller or adjusted between
Purchaser and Seller immediately after the same have been determined, to the
extent not paid directly by tenants under the Leases. Seller shall attempt to
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have all utility meters read as of the Closing Date. Purchaser shall cause all
utility services to be placed in Purchaser's name as of the Closing Date. If
permitted by the applicable utilities, all utility deposits in Seller's name
shall be assigned to Purchaser as of the Closing Date, provided same remain with
the applicable utility on deposit for the benefit of Purchaser, and Seller shall
receive a credit therefor at Closing.
4.2.4. RENTS. Rents (including, without limitation, all fixed
and base rent, estimated pass-through payments, payments for common area
maintenance reconciliations and all other items of additional rents and charges
payable by tenants under the Leases, (collectively, "RENTS")) collected by
Seller prior to Closing shall be prorated as of the Closing Date. During the
period after Closing, Purchaser shall, within five (5) business days following
receipt, deliver to Seller any and all Rents accrued but uncollected as of the
Closing Date to the extent subsequently collected by Purchaser, which such sum
shall be net of the costs of any reasonable attorneys' fees, and out of pocket
costs and expenses of collection thereof; provided, however, Purchaser shall
apply Rents received after Closing first to payment of current Rent then due,
and thereafter to delinquent Rents in inverse order of maturity; provided,
however, "true up" payments received from tenants attributable to a year-end
reconciliation of actual and budgeted pass-through payments shall be allocated
among Seller and Purchaser pro rata in accordance with their respective period
of ownership as set forth in Section 4.2.5 below. Seller shall have the right,
after Closing, to proceed against tenants for Rents allocable to the period of
Seller's ownership of the Property, provided that Seller shall have no right to
commence eviction or similar proceedings against such tenant. Purchaser agrees
that it shall use commercially reasonable efforts to collect all pass-through
rents payable by tenants and any delinquent Rents (provided, however, that
Purchaser shall have no obligation to institute legal proceedings, including an
action for unlawful detainer, against a tenant owing delinquent Rents). The
amount of any unapplied security deposits under the Leases held by Seller in
cash at the time of Closing shall be credited against the Purchase Price;
accordingly, Seller shall retain the actual cash deposits. Any Rent received by
Seller after the Closing Date shall be held in trust by Seller and delivered to
Purchaser to be applied and allocated as set forth above.
4.2.5. CALCULATIONS. For purposes of calculating prorations,
Purchaser shall be deemed to be in title to the Property, and, therefore
entitled to the income therefrom and responsible for the expenses thereof for
the entire day upon which the Closing occurs. All such prorations shall be made
on the basis of the actual number of days of the month which shall have elapsed
as of the day of the Closing and based upon the actual number of days in the
month and a three hundred sixty five (365) or three hundred sixty six (366) day
year, as applicable. The amount of such prorations shall be initially performed
at Closing but shall be subject to adjustment in cash after the Closing as and
when complete and accurate information becomes available, if such information is
not available at the Closing. Seller and Purchaser agree to cooperate and use
commercially reasonable efforts to make such adjustments no later than sixty
(60) days after the Closing or as soon thereafter as may be practicable, with
respect to common area maintenance and other additional rent charges (including
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pass-throughs for real estate and personal property taxes and special
assessments) payable by tenants under Leases. Except as set forth in this
Section 4.2, all items of income and expense which accrue for the period prior
to the Closing will be for the account of Seller and all items of income and
expense which accrue for the period on and after the Closing will be for the
account of Purchaser. Seller shall be required to prepare and deliver to tenants
(with a copy to Purchaser) in accordance with the requirements of the Leases all
2004 reconciliation xxxxxxxx of CAM, taxes and insurance through the end of
November, 2004. Purchaser will remit all amounts received from tenants for prior
2004 underpayments (through the end of November, 2004) shortly after receipt
(except for any amounts apportionable to any period from the Closing Date until
December 31, 2004, which amounts shall inure to the benefit of Purchaser); if
any tenants are due refunds for prior overpayments during 2004 (through the end
of November, 2004) of estimated 2004 CAM, taxes and insurance, Seller shall
promptly remit such amounts to such tenant (with a copy of such remittance
letter to Purchaser) (except for amounts apportionable to any period from the
Closing Date until December 31, 2004, which amounts shall be Purchaser's
responsibility to remit to the respective tenant). If after the Closing, the
parties discover any errors in adjustments and apportionments (or if the real
estate taxes for the fiscal year in which the Closing occurs, upon being finally
determined, shall differ from the real estate taxes used in computing
apportionments), same shall be adjusted or corrected as soon after their
discovery as possible, provided that no such corrections to adjustments and
apportionments shall be made later than eighteen (18) months after the Closing
Date unless prior to such date the party seeking such correction shall have
delivered a written notice to the other specifying the nature and basis for such
claim.
4.2.6. LEASING COMMISSIONS AND LEASING COSTS. Seller shall be
responsible for all leasing and brokerage commissions and other leasing costs
(including without limitation, landlord work and work allowances or credits
given to tenants under the Leases) (collectively, "Leasing Costs") currently
payable or to become due and payable in the future with respect to Leases
executed prior to the date of this Agreement ("Leasing Effective Date"),
provided, however, that that all Leasing Costs (whether in the Leases or
brokerage agreements delivered to Purchaser) which are attributable to options
in the Leases, to the extent such options are first exercised after the Leasing
Effective Date, shall be paid by Purchaser. Provided that Closing occurs,
Purchaser shall be responsible for all Leasing Costs to the extent set forth in
Leases or other Documents (as hereinafter defined) or otherwise disclosed in
writing to Purchaser (including, without limitation, tenant improvement costs
and leasing commissions) arising in connection with new leases, extensions,
expansions and modifications executed after the Leasing Effective Date in
accordance with the terms and conditions of Section 9.5 herein. Notwithstanding
the foregoing, in no event shall Purchaser be obligated to pay for Leasing Costs
in connection with the initial terms of the existing leases. If any Leasing
Costs with respect to the initial terms of the existing Leases are unpaid as of
the Closing Date (by way of example, the $50,000 "Inducement Payment" referred
to in Section 22.05 of the Lease with Baby Concepts, Inc.), Purchaser shall be
given a credit against the Purchase Price in the amount of such Leasing Costs.
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4.2.7. OTHER PRORATIONS. The following items shall also be
apportioned between the Seller and Purchaser at the Closing: (i) charges and
deposits under transferable Contracts assumed by Purchaser at Closing and (ii)
any fees for licenses which are transferred to Purchaser at the Closing.
4.3. CLOSING COSTS. Seller shall pay (a) the fees of any counsel
representing Seller in connection with this transaction; (b) subject to the
provisions of Article XIV hereof, any brokerage commission due Xxxxxxx &
Wakefield, Inc.; (c) one-half (1/2) of the escrow fee charged by the Title
Company; (d) any transfer tax, documentary stamp tax or similar tax which
becomes payable by reason of the transfer of the Property to Purchaser and (e)
all recording fees on any document recorded pursuant to Section 6.1 of this
Agreement to discharge liens and encumbrances which Seller is required to
discharge or otherwise cure under Section 6.1 of this Agreement. Purchaser shall
pay (a) the fees of any counsel representing Purchaser in connection with this
transaction; (b) the cost to update the Survey (as defined below); (c) any
endorsements required by Purchaser to Owner's Policy (as defined below); (d) the
basic title premium for the ALTA Standard Coverage Owner's Policy of Title
Insurance to be issued to Purchaser by the Title Company at Closing and the cost
which represents the difference between an ALTA Standard Coverage Owner's Policy
of Title Insurance and an ALTA Extended Coverage Owner's Policy of Title
Insurance (if required by Purchaser); (e) all recording fees on the Deed
recorded pursuant to this Agreement; and (f) one-half (1/2) of the escrow fee
charged by the Title Company. Any other costs or expenses incident to this
transaction and the closing thereof not expressly provided for above shall be
allocated between and paid by the parties in accordance with custom and practice
in Berlin, Connecticut.
ARTICLE V.
PURCHASER'S RIGHT OF INSPECTION; FEASIBILITY PERIOD
5.1. RIGHT TO EVALUATE. (a) Commencing on the Effective Date and
continuing until 5:30 PM Eastern Standard time on November 29, 2004 (the
"FEASIBILITY PERIOD"), Purchaser and its agents shall have the right during
business hours (with reasonable advance notice to Seller and subject to the
rights of the tenants in possession), at Purchaser's sole cost and expense and
at Purchaser's and its agents' sole risk, to perform inspections and tests of
the Property and to perform such other analyses, inquiries and investigations as
Purchaser shall deem necessary or appropriate; provided, however, that in no
event shall (i) such inspections or tests unreasonably disrupt or disturb the
on-going operation of the Property or the rights of the tenants at the Property,
or (ii) Purchaser or its agents or representatives conduct any physical testing,
drilling, boring, sampling or removal of, on or through the surface of the
Property (or any part or portion thereof) including, without limitation, any
ground borings or invasive testing of the Improvements (collectively, "PHYSICAL
TESTING"), without Seller's prior written consent, which consent may be given or
withheld in Seller's sole and absolute discretion. In the event Purchaser
desires to conduct any such Physical Testing of the Property, then Purchaser
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shall submit to Seller, for Seller's approval, a written detailed description of
the scope and extent of the proposed Physical Testing, which approval may be
given or withheld in Seller's sole and absolute discretion. If Seller does not
approve the Physical Testing or approves only a portion thereof, Purchaser may,
at its option, by sending written notice to Seller, elect to, either (i)
terminate this Agreement or (ii) conduct during the Feasibility Period that
portion of the Physical Testing approved by Seller, if any, or if Seller
disapproves the entire proposed Physical Testing, affirmatively agree to forego
any Physical Testing of the Property. In the event Purchaser terminates this
Agreement as aforesaid, the Deposit shall be immediately refunded to Purchaser
and this Agreement shall terminate and be of no further force and effect other
than the Surviving Termination Obligations. In no event shall Seller be
obligated as a condition of this transaction to perform or pay for any
environmental remediation of the Property recommended by any such Physical
Testing. After making such tests and inspections, Purchaser agrees to promptly
restore the Property to its condition prior to such tests and inspections (which
obligation shall survive the Closing or any termination of this Agreement).
Prior to Purchaser entering the Property to conduct the inspections and tests
described above, Purchaser shall obtain and maintain, at Purchaser's sole cost
and expense, and shall deliver to Seller evidence of, the following insurance
coverage, and shall cause each of its agents and contractors to obtain and
maintain, and, upon request of Seller, shall deliver to Seller evidence of, the
following insurance coverage: general liability insurance, from an insurer
reasonably acceptable to Seller, in the amount of Two Million and No/100 Dollars
($2,000,000.00) combined single limit for personal injury and property damage
per occurrence, such policy to name Seller as an additional insured party, which
insurance shall provide coverage against any claim for personal liability or
property damage caused by Purchaser or its agents, employees or contractors in
connection with such inspections and tests. Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its agents
do not unreasonably interfere with Purchaser's inspection.
(b) Subject to the terms of Section 5.2 below, Purchaser shall
also have the continuing right, at any time after the expiration of the
Feasibility Period, to perform an inspection of and have access to the Property
prior to Closing, upon reasonable prior notice to Seller during business hours,
at Purchaser's sole cost and expense. Pursuant to the terms in Section 5.1,
Seller shall have the right to accompany Purchaser.
5.2. INSPECTION OBLIGATIONS AND INDEMNITY. Purchaser and its
contractors shall: (a) not unreasonably disturb the tenants of the Improvements
or interfere with their use of the Real Property pursuant to their respective
Leases; (b) not interfere with the operation and maintenance of the Real
Property; (c) not damage any part of the Property or any personal property owned
or held by any tenant; (d) not injure or otherwise cause bodily harm to Seller,
its agents, contractors and employees or any tenant; (e) promptly pay when due
the costs of all tests, investigations and examinations done with regard to the
Property; (f) not permit any liens to attach to the Property by reason of the
exercise of its rights hereunder; (g) restore the Improvements and the surface
of the Real Property to the condition in which the same was found before any
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such inspection or tests were undertaken; and (h) subject to the terms of
Section 15.1 hereof, not reveal or disclose any information obtained during the
Feasibility Period concerning the Property to anyone outside Purchaser's
organization other than to its Authorized Representatives (as defined in Section
15.1) who shall agree to keep such information confidential. Purchaser shall, at
its sole cost and expense, comply with all applicable laws, statutes, rules,
codes, ordinances, orders, regulations and requirements of all federal, state,
county and municipal governments, departments, boards, authorities, agencies
officials and officers ("LEGAL REQUIREMENTS") in conducting its inspection of
the Property and Physical Testing. Purchaser shall, and does hereby agree to
indemnify, defend and hold the Seller, its partners, agents and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs and
expenses (including but not limited to attorneys' fees) arising out of
Purchaser's or Purchaser's agents' actions taken in, on or about the Property in
the exercise of the inspection right granted pursuant to Section 5.1, including,
without limitation, (i) claims made by any tenant against Seller for Purchaser's
entry into such tenant's premises or any interference with any tenant's use or
damage to its premises or property in connection with Purchaser's review of the
Property, and (ii) Purchaser's obligations pursuant to this Section 5.2.
Notwithstanding the foregoing, Purchaser shall not be liable for any costs and
damages resulting from Purchaser's discovery of pre-existing conditions, absent
Purchaser's negligence. This Section 5.2 shall survive the Closing and/or any
termination of this Agreement.
5.3. SELLER DELIVERIES. Seller shall use its reasonable, good faith
efforts to deliver to Purchaser all of the items specified on Exhibit B attached
hereto (the "DOCUMENTS"), within three (3) business days after the Effective
Date to the extent such items are in Seller's possession or control; provided,
however, except as otherwise expressly set forth in Section 7.1 hereof, Seller
makes no representations or warranties of any kind regarding the accuracy,
thoroughness or completeness of or conclusions drawn in the information
contained in such documents, if any, relating to the Property. Purchaser hereby
waives, except as otherwise provided in Article VII, any and all claims against
Seller arising out of the accuracy, completeness, conclusions or statements
expressed in materials so furnished and any and all claims arising out of any
duty of Seller to acquire, seek or obtain such materials. Notwithstanding
anything contained in the preceding sentence, Seller shall not deliver or make
available to Purchaser Seller's internal memoranda, attorney-client privileged
materials, internal appraisals and economic evaluations of the Property, and
reports regarding the Property prepared by Seller or its affiliates solely for
internal use or for the information of the investors in Seller. Subject to the
terms of Section 15.1 hereof, Purchaser acknowledges that any and all of the
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser solely
to assist Purchaser in determining the feasibility of purchasing the Property.
Purchaser shall return all of the Documents, on or before three (3) business
days after the first to occur of (a) such time as Purchaser notifies Seller in
writing that it shall not acquire the Property, or (b) such time as this
Agreement is terminated for any reason. This Section 5.3 shall survive any
termination of this Agreement without limitation.
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5.4. INDEPENDENT EXAMINATION. Purchaser hereby acknowledges that it has
been, or will have been given, prior to the termination of the Feasibility
Period, a full, complete and adequate opportunity to make such legal, factual
and other determinations, analyses, inquiries and investigations as Purchaser
deems necessary or appropriate in connection with the acquisition of the
Property. Purchaser is relying upon its own independent examination of the
Property and all matters relating thereto and not upon any statements of Seller
(excluding the limited matters expressly represented by Seller in Section 7.1
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Property. Seller shall not, except as otherwise
expressly provided in Section 7.1, be deemed to have represented or warranted
the completeness or accuracy of any studies, investigations and reports
heretofore or hereafter furnished to Purchaser. The provisions of this Section
5.4 shall survive Closing and/or termination of this Agreement.
5.5. TERMINATION RIGHT. In the event that Purchaser determines, in
Purchaser's sole discretion, that it does not desire, for any or no reason, to
acquire the Property, Purchaser shall provide written notice to Seller before
the end of the Feasibility Period, and, subject to the Surviving Termination
Obligations, this Agreement shall terminate, the Deposit shall be delivered to
Purchaser and thereupon neither party shall have any further rights or
obligations to the other hereunder. If Purchaser shall fail to timely notify
Seller in writing of its election to terminate this Agreement on or before the
expiration of the Feasibility Period, time being of the essence, the termination
right described in this Section 5.5 shall be immediately null and void and of no
further force or effect. Purchaser's failure to provide such notice on or before
the end of the Feasibility Period shall constitute Purchaser's waiver of the
herein-described termination right. Notwithstanding any provision of this
Agreement, this is an "all or none" transaction and Purchaser has no right to
terminate this Agreement as to any part of the Property.
5.6. COPIES OF REPORTS. As additional consideration for the transaction
contemplated herein, Purchaser agrees that it will provide, without recourse,
representation or warranty to Seller, within five (5) days following a written
request therefor, copies of any and all final reports, tests or studies relating
to the physical condition of the Property and prepared on behalf of Purchaser,
including but not limited to those involving environmental matters.
Notwithstanding any provision of this Agreement, no termination of this
Agreement shall terminate Purchaser's obligations pursuant to the foregoing
sentence.
5.7 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENTS.
Concurrently with Seller's delivery of Tenant Estoppels pursuant to Section
10.2.2 below, Seller shall also request that each Tenant deliver to Seller a
subordination, non-disturbance and attornment agreement in the form provided to
Seller by Purchaser concurrently with this Agreement (the "SNDA"). Seller shall
make reasonable good faith efforts to secure an executed and notarized SNDA from
each Tenant in a timely manner but the failure to procure the same or the
failure to procure the same in the form required by Tenant or its lender shall
not be a breach of any obligation or covenant by Seller under this Agreement and
shall not be a condition precedent to Purchaser's obligation to close this
transaction.
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ARTICLE VI.
TITLE AND SURVEY MATTERS
6.1. TITLE. Purchaser acknowledges receipt of a title insurance
commitment (the "COMMITMENT") for an Owner's Policy of Title Insurance from
Chicago Title Insurance Company (the "TITLE COMPANY"), covering the Real
Property dated May 5, 2004, together with a copy of all exceptions set forth
therein. Purchaser shall order an update from the Title Company of the
Commitment. Purchaser shall notify Seller within five (5) days prior to the
expiration of the Feasibility Period in writing of any title exceptions
identified in the updated Commitment which Purchaser reasonably disapproves. Any
exception, exclusion from coverage or other matter shown in the Commitment as of
the end of the Feasibility Period or otherwise not disapproved in writing within
said time period shall be deemed approved by Purchaser and shall constitute a
"PERMITTED EXCEPTION" hereunder. Purchaser and Seller hereby agree that (i) all
non-delinquent property taxes and assessments payable during 2004 and subsequent
years, (ii) the rights of the tenants under the Leases and Approved New Leases
(hereinafter defined), (iii) all matters created by or on behalf of Purchaser,
including, without limitation, any documents or instruments to be recorded as
part of any financing for the acquisition of the Property by Purchaser, and (iv)
the exceptions to title identified on Exhibit D attached hereto, shall
constitute "PERMITTED EXCEPTIONS". Prior to the Closing, without Seller's prior
written consent, Purchaser shall not make any application to any governmental
agency for any permit, approval, license or other entitlement for the Property
or the use or development thereof. Notwithstanding the foregoing, in the event
any title encumbrance results from a matter willfully caused by Seller from and
after the Effective Date, Seller must take affirmative action to cure such title
defect and the failure of Seller to do so shall constitute a breach of this
Agreement. Further, Seller must satisfy on or before the Closing (whether by
payment, bonding around or otherwise) (a) all mortgages and deeds of trust, (b)
liens that have been voluntarily placed against the Property by Seller (and not
tenants of the Property or other third parties) after the date of this Agreement
and that are not otherwise permitted pursuant to the provisions hereof, and (c)
mechanic's liens placed against the Property due to work performed by Seller or
contracted for with Seller (and not tenants of the Property or other third
parties). In addition, Seller shall be obligated to remove all easements,
covenants or other similar voluntary title encumbrances placed on the Property
after the expiration of the Feasibility Period and prior to the Closing Date
without Purchaser's express written consent. Notwithstanding anything to the
contrary set forth herein, Seller shall not be required to cure (1) mechanic's
liens relating to work performed by tenants or other third parties, (2) judgment
liens, and (3) other encumbrances placed of record after the expiration of the
Feasibility Period and not required to be cured by Seller pursuant to the
immediately preceding sentence, but in the event any of the aforementioned
encumbrances exist as of the Closing Date which Seller shall elect not to cure,
Purchaser shall have the right to terminate this Agreement and receive a refund
of the Deposit.
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6.2. SURVEY. Purchaser acknowledges receipt of a survey for the
Property dated May 7, 2004 (the "SURVEY"). Purchaser shall obtain an update of
such survey. If the updated Survey discloses any matters which are unacceptable
to Purchaser, in Purchaser's sole discretion, Purchaser shall notify Seller in
writing five (5) days prior to the expiration of the Feasibility Period. Any
survey matter shown on the Survey as of the end of the Feasibility Period
otherwise not disapproved in writing within said time period shall be deemed
approved by Purchaser and shall constitute a "Permitted Exception" hereunder.
Seller may, at its sole election, on or before the Closing Date, have the
matters to which Purchaser has objected removed; provided, however, in no event
will Seller be obligated to incur costs to do so.
6.3 TITLE AFFIDAVIT. Seller shall have no obligation to provide any
indemnity or agreement to the Title Company or Purchaser to support the issuance
of the Title Policy or any such endorsements other than an affidavit as to the
existing tenants of the Property and any ongoing construction work at the
Property and an owner's affidavit in the form required by the Title Company and
a gap indemnity.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
7.1. SELLER'S REPRESENTATIONS. Seller represents and warrants that the
following matters are true and correct as of the Effective Date and shall
(subject to the provisions of Section 7.3 herein) be true as of the Closing Date
with respect to the Property:
7.1.1. AUTHORITY. Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the State of California
and, to the extent necessary, is qualified to conduct business in the State in
which the Property is located. This Agreement has been duly authorized, executed
and delivered by Seller, is the legal, valid and binding obligation of Seller,
and to the current, actual, conscious knowledge of Seller does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller is subject. All documents to be executed by Seller which are to be
delivered at Closing, will, at the time of Closing, (i) be duly authorized,
executed and delivered by Seller, (ii) be legal, valid and binding obligations
of Seller, and (iii) to the current, actual, conscious knowledge of Seller, not
violate any provision of any agreement or judicial order to which Seller is a
party or to which Seller is subject. To the current, actual, conscious knowledge
of Seller no consent, approval, authorization or order of, or declaration,
filing or registration with, any Governmental Authority or Person is required in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
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7.1.2. FOREIGN PERSON. Seller is not a foreign person within
the meaning of Section 1445(f) of the Internal Revenue Code, and Seller agrees
to execute any and all documents necessary or required by the Internal Revenue
Service or Purchaser in connection with such declaration(s).
7.1.3. LITIGATION. Except for the personal injury lawsuits (if
any) listed on Schedule 7.1.3. attached hereto, there are no pending, or the
best of Seller's knowledge, threatened, actions, claims, suits, proceedings,
litigation, arbitrations, administrative hearings, attachments or executions
(including, without limitation, condemnation and tax certiorari proceedings)
against Seller and relating to or affecting the Property or any part thereof.
7.1.4. NOTICE OF VIOLATIONS. To Seller's actual knowledge,
Seller has not received notice of any condition existing with respect to the
Property or the use and operation of the Property that violates any restrictive
covenant, or any Legal Requirement (as defined below), including the violation
of any zoning ordinance or use restriction.
7.1.5 BANKRUPTCY OR DEBT OF SELLER. Seller has not made a
general assignment for the benefit of creditors, filed any voluntary petition in
bankruptcy, admitted in writing its inability to pay its debts as they come due
or made an offer of settlement, extension or composition to its creditors
generally. Seller has received no written notice of (a) the filing of an
involuntary petition by Seller's creditors, (b) the appointment of a receiver to
take possession of all, or substantially all, of Seller's assets, or (c) the
attachment or other judicial seizure of all, or substantially all, of Seller's
assets.
7.1.6 CONTRACTS. To Seller's actual knowledge, the copies of
the Contracts delivered by Seller to Purchaser or made available to Purchaser
are complete copies of the Contracts. To Seller's actual knowledge, the
Contracts are in full force and effect and no default exists under any Contract.
7.1.7 LEASES. To Seller's actual knowledge, the copies of the
Leases delivered or otherwise made available by Seller to Purchaser are complete
copies of the Leases in Seller's possession.
7.1.8 OFAC. Neither Seller nor any of its affiliates, nor any
of their respective partners, members, shareholders or other equity owners, and
none of their respective employees, officers, directors, representatives or
agents, is a person or entity with whom U.S. persons or entities are restricted
from doing business under regulations of the Office of Foreign Asset Control
("OFAC") of the Department of the Treasury (including those named on OFAC's
Specially Designated and Blocked Persons List) or under any statute, executive
order (including the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action.
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7.1.9. NO OTHER CONTRACTS. There are no outstanding, options,
rights, agreements, 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 Property.
7.1.10. NO EMPLOYEES. There are no employees employed by
Seller or any property manager or otherwise at or in connection with the
Property for or to which Purchaser shall have any responsibilities or
liabilities following the Closing. There are no employment, union, collective
bargaining, contracts or similar agreements by or with Seller in effect in
connection with the Property or the operation and/or maintenance thereof.
7.1.11 SELLER'S ENVIRONMENTAL REPORTS. Seller's existing
environmental reports that have been delivered to Purchaser as listed on
Schedule 7.1.11 (the "ENVIRONMENTAL REPORTS") constitute a true and complete
copy of all reports in Seller's files concerning the presence of Hazardous
Substances at or near the Property. The term "Hazardous Substances" shall mean
any substance, chemical or waste that is listed as hazardous, toxic or dangerous
under any applicable federal, state, county or local statute, law, rule,
regulation, ordinance or order ("HAZARDOUS SUBSTANCES") in a manner or in amount
that is in violation of the applicable law such that it would require
remediation, clean-up or other response action under applicable laws, statutes,
rules, codes, ordinances, orders, regulations and requirements of all federal,
state, county and municipal governments, departments, boards, authorities,
agencies officials and officers ("LEGAL REQUIREMENTS"), or been the subject of
any clean-up, remediation or response action under any Legal Requirements.
Except as set forth in the Environmental Reports, Seller has received no written
notice from any governmental authority of the release of any Hazardous
Substances onto, beneath, from or immediately adjacent to the Property.
7.2. SELLER'S KNOWLEDGE. For purposes of this Agreement and any
document delivered at Closing, whenever the phrases "to the best of Seller's
knowledge", "to the current, actual, conscious knowledge of Seller" or the
"knowledge" of Seller or words of similar import are used, they shall be deemed
to refer to the current, actual, conscious knowledge only, and not any implied,
imputed or constructive knowledge, without any independent investigation having
been made or any implied duty to investigate, of Xxxxxx Wales, Disposition
Officer for TA Associates Realty, and Xxxxxxx Xxxxxxxxx, Asset Manager, for TA
Associates Realty, and Seller represents that the foregoing are the individuals
with the responsibility for overseeing the sale of the Property.
7.3. CHANGE IN REPRESENTATION/WAIVER. Notwithstanding anything to the
contrary contained herein, Purchaser acknowledges that Purchaser shall not be
entitled to rely on any representation made by Seller in this Article VII to the
extent, prior to or at Closing, Purchaser shall have or obtain actual knowledge
of any information that was contradictory to such representation or warranty;
provided, however, if Purchaser determines prior to Closing that there is a
breach of any of the representations and warranties made by Seller above, then
Purchaser may, at its option, by sending to Seller written notice of its
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election either (i) terminate this Agreement or (ii) waive such breach and
proceed to Closing with no adjustment in the Purchase Price and Seller shall
have no further liability as to such matter thereafter, except for liens
resulting from Seller's acts. In the event Purchaser terminates this Agreement
for the reasons set forth above, the Deposit shall be immediately refunded to
Purchaser and neither Purchaser nor Seller shall thereafter have any other
rights or remedies hereunder other than under Section 16.12 hereof. In
furtherance thereof, Seller shall have no liability with respect to any of the
foregoing representations and warranties or any representations and warranties
made in any other document executed and delivered by Seller to Purchaser, to the
extent that, prior to the Closing, Purchaser discovers or learns of information
(from whatever source, including, without limitation the property manager, the
tenant estoppel certificates or any Seller's Estoppel delivered pursuant to
Section 10.2.2 below, as a result of Purchaser's due diligence tests,
investigations and inspections of the Property, or disclosure by Seller or
Seller's agents and employees) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect, and Purchaser nevertheless consummates the transaction contemplated
by this Agreement.
7.4. SURVIVAL. The express representations and warranties made in this
Agreement shall not merge into any instrument or conveyance delivered at the
Closing; provided, however, that any action, suit or proceeding with respect to
the truth, accuracy or completeness of such representations and warranties shall
be commenced, if at all, on or before the date which is nine (9) months after
the date of the Closing (except for the representations and warranties in
Section 7.1.1, which shall survive indefinitely) and, if not commenced on or
before such date, thereafter such representations and warranties shall be void
and of no force or effect.
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.1. Purchaser represents and warrants to Seller that the following
matters are true and correct as of the Effective Date and as of the Closing.
8.1.1 AUTHORITY. Purchaser is a corporation, duly organized,
validly existing and in good standing under the laws of the state of Delaware.
This Agreement has been duly authorized, executed and delivered by Purchaser, is
the legal, valid and binding obligation of Purchaser, and does not violate any
provision of any agreement or judicial order to which Purchaser is a party or to
which Purchaser is subject. All documents to be executed by Purchaser which are
to be delivered at Closing, at the time of Closing will be duly authorized,
executed and delivered by Purchaser, at the time of Closing will be legal, valid
and binding obligations of Purchaser, and at the time of Closing will not
violate any provision of any agreement or judicial order to which Purchaser is a
party or to which Purchaser is subject.
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8.1.2. ERISA COMPLIANCE. Purchaser has informed Seller and
Purchaser hereby represents and warrants to Seller that Purchaser is not a
"plan" nor a plan "fiduciary" nor an entity holding "plan assets" (as those
terms are defined under the Employee Retirement Income Security Act of 1974, as
amended, and its applicable regulations as issued by the Department of Labor and
the Internal Revenue Service, "ERISA") nor an entity whose assets are deemed to
be plan assets under ERISA and that Purchaser is acquiring the Property for
Purchaser's own personal account and that the Property shall not constitute plan
assets subject to ERISA upon conveyance of the Property by Seller and the
closing of this Agreement between Purchaser and Seller. Seller shall not have
any obligation to close the transaction contemplated by this Agreement if the
transaction for any reason constitutes a prohibited transaction under ERISA or
if Purchaser's representation is found to be false or misleading in any respect,
provided, that, if Seller elects not to close the transaction contemplated
herein for such reason, the this Agreement shall terminate, the Deposit shall be
returned to Purchaser and the parties shall not have any further obligations or
liabilities hereunder except for the Surviving Termination Obligations. The
foregoing representation and warranty shall survive the Closing.
8.1.3. NO FINANCING CONTINGENCY. It is expressly acknowledged
by Purchaser that this transaction is not subject to any financing contingency,
and no financing for this transaction shall be provided by Seller.
8.1.4. OFAC. Neither Purchaser nor any of its affiliates, nor
any of their respective partners, members, officers, directors, representatives
or agents is a person or entity with whom U.S. persons or entities are
restricted from doing business under regulations of the OFAC (including those
named on OFAC's Specially Designated and Blocked Persons List) or under any
statute, executive order (including the September 24, 2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action.
8.2. PURCHASER'S ACKNOWLEDGMENT. Purchaser acknowledges and agrees
that, except as expressly provided in this Agreement, Seller has not made, does
not make and specifically disclaims any representations, warranties, promises,
covenants, agreements or guaranties of any kind or character whatsoever, whether
express or implied, oral or written, past, present or future, of, as to,
concerning or with respect to (a) the nature, quality or condition of the
Property, including, without limitation, the water, soil and geology, (b) the
income to be derived from the Property, (c) the suitability of the Property for
any and all activities and uses which Purchaser may conduct thereon, (d) the
compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body,
including, without limitation, the Americans with Disabilities Act and any rules
and regulations promulgated thereunder or in connection therewith, (e) the
habitability, merchantability or fitness for a particular purpose of the
Property, or (f) any other matter with respect to the Property, and specifically
that Seller has not made, does not make and specifically disclaims any
representations regarding solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
- 16 -
existence, in or on the Property, of any hazardous substance or hazardous waste,
as defined by the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, and other applicable state laws, and
regulations promulgated thereunder. Purchaser further acknowledges and agrees
that, except as expressly provided in this Agreement, having been given the
opportunity to inspect the Property, Purchaser is relying solely on its own
investigation of the Property and not on any information provided or to be
provided by Seller. Purchaser further acknowledges and agrees that any
information provided or to be provided with respect to the Property was obtained
from a variety of sources and that Seller has not made any independent
investigation or verification of such information. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR
IN ANY CLOSING DOCUMENT, AND AS A MATERIAL INDUCEMENT TO THE EXECUTION AND
DELIVERY OF THIS AGREEMENT BY SELLER, THE SALE OF THE PROPERTY AS PROVIDED FOR
HEREIN IS MADE ON AN "AS IS, WHERE IS" CONDITION AND BASIS "WITH ALL FAULTS."
Purchaser acknowledges, represents and warrants that Purchaser is not in a
significantly disparate bargaining position with respect to Seller in connection
with the transaction contemplated by this Agreement; that Purchaser freely and
fairly agreed to this acknowledgment as part of the negotiations for the
transaction contemplated by this Agreement; that Purchaser is represented by
legal counsel in connection with this transaction and Purchaser has conferred
with such legal counsel concerning this waiver and the Purchaser has assets in
excess of $5,000,000. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, SELLER
SHALL IN NO EVENT HAVE ANY LIABILITY FOR BREACH OF ANY REPRESENTATION, WARRANTY
OR COVENANT HEREIN OR IN ANY CLOSING DOCUMENT IN EXCESS OF $250,000, IN THE
AGGREGATE.
8.3. PURCHASER'S RELEASE. Except for Seller's fraud, Purchaser on
behalf of itself and its successors and assigns waives its right to recover
from, and forever releases and discharges, Seller, Seller's shareholders,
officers, partners, trustees, agents and attorneys of each of them, and their
respective heirs, successors, personal representatives and assigns from any and
all demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, fines, liens, judgments, costs or expenses known or unknown,
foreseen or unforeseen, that may arise on account of or in any way be connected
with (i) the physical condition of the Property, (ii) the condition of title to
the Property, (iii) the presence on, under or about the Property of any
hazardous or regulated substance, or (iv) the Property's compliance with any
applicable federal, state or local law, rule or regulation, except such as
arises out of breach of any of the representations and warranties of Seller set
forth in Article VII. The release set forth in this Section 8.3 includes claims
(other than resulting from Seller's fraud) of which Purchaser is presently
unaware or which Purchaser does not presently suspect to exist which, if known
by Purchaser, would materially affect Purchaser's release to Seller. The terms
and provisions of this Section 8.3 shall survive Closing and/or termination of
this Agreement.
8.4 SURVIVAL. The express representations and warranties made in this
Agreement by Purchaser shall not merge into any instrument of conveyance
delivered at the Closing; provided, however, that any action, suit or proceeding
with respect to the truth, accuracy or completeness of all such representations
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and warranties (except for the representation and warranty set forth in Section
8.1.3) shall be commenced, if at all, on or before the date which is nine (9)
months after the date of the Closing (except for the representations and
warranties in Section 8.1.1 which shall survive indefinitely) and, if not
commenced on or before such date, thereafter shall be void and of no force or
effect. The representation and warranty set forth in Section 8.1.3 hereof shall
survive Closing and/or termination of this Agreement.
ARTICLE IX.
SELLER'S INTERIM OPERATING COVENANTS.
9.1. OPERATIONS. Seller agrees to continue to operate, manage and
maintain the Improvements through the Closing Date in the ordinary course of
Seller's business and substantially in accordance with Seller's present
practice, subject to ordinary wear and tear and further subject to Article XII
of this Agreement.
9.2. MAINTAIN INSURANCE. Seller agrees to maintain until the Closing
Date fire and extended coverage insurance on the Property which is at least
equivalent in all material respects to the insurance policies covering the Real
Property as of the Effective Date.
9.3. PERSONAL PROPERTY. Seller agrees not to transfer or remove any
Personal Property from the Improvements after the Effective Date except for
repair or replacement thereof. Any items of Personal Property replaced after the
Effective Date shall be promptly installed prior to Closing and shall be of
substantially similar quality to the item of Personal Property being replaced.
9.4. NO SALES. Except for the execution of tenant Leases pursuant to
Section 9.5, Seller agrees that it shall not convey any interest in the Property
to any third party.
9.5. TENANT LEASES. Seller shall not, from and after the fifth (5th)
business day prior to the expiration of the Feasibility Period, (i) grant any
consent or waive any material rights under the Leases, (ii) apply any security
deposits or terminate any Lease, or (iii) enter into a new lease, modify an
existing Lease or renew, extend or expand an existing Lease in each case without
the prior written approval of Purchaser, (an "APPROVED NEW LEASE"), which in
each case may be withheld in Purchaser's sole and absolute discretion, but which
shall be deemed granted if Purchaser fails to respond to a written request for
approval within five (5) business days after receipt of the request therefor
together with a summary of lease terms and credit information of the proposed
tenant. In the event that Seller shall enter into, modify, renew, grant
concessions, apply any security deposits or terminate a Lease prior to the fifth
(5th) business day before the expiration of the Feasibility Period, Seller shall
promptly notify Purchaser in writing thereof, but in any event on or before the
fifth (5th) business day prior to the expiration of the Feasibility Period and
(if Seller shall enter into a new Lease or a modification of renewal of any
existing Lease, Seller shall deliver to Purchaser either a copy of the
respective instrument or a summary of the terms thereof).
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ARTICLE X.
CLOSING CONDITIONS.
10.1. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller
under this Agreement to sell the Property and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Closing Date except to the extent that any of such
conditions may be waived by Seller in writing at Closing.
10.1.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
PURCHASER. All representations and warranties of Purchaser in this Agreement
shall be true and correct in all material respects as of the Closing Date, with
the same force and effect as if such representations and warranties were made
anew as of the Closing Date. Any changes to such representations disclosed by
Purchaser pursuant to Section 11.1.3 shall be acceptable to Seller, and
Purchaser shall have performed and complied with all covenants and agreements
required by this Agreement to be performed or complied with by Purchaser prior
to the Closing Date.
10.2. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser under this Agreement to purchase the Property and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.
10.2.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
All representations and warranties of Seller in this Agreement shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if such representations and warranties were made anew as of the
Closing Date (subject, however, to the provisions of Section 7.3 hereof). Any
changes to such representations disclosed by Seller pursuant to Section 11.2.4
shall be acceptable to Purchaser, and Seller shall have performed and complied
in all material respects with all covenants and agreements required by this
Agreement to be performed or complied with by Seller prior to the Closing Date.
10.2.2. TENANT ESTOPPELS. Purchaser shall have received Tenant
estoppel certificates substantially in the form attached hereto as Exhibit C,
(or, if different, the form and content required by the applicable Lease), for
(i) Sam's Club, (ii) Home Depot and (iii) eighty percent (80%) of the remaining
occupied space in the Property and shall deliver the same to Purchaser by no
later than two (2) business days prior to the end of the Feasibility Period.
Notwithstanding the foregoing, at Seller's sole option, Seller may (i) have the
right to extend Seller's deadline to obtain the Tenant estoppel certificates, in
which event the Feasibility Period and the Closing Date would be extended for up
to an additional thirty (30) days in order to satisfy the foregoing requirement
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in which event Seller shall deliver notice of such extension to Purchaser on or
before the expiration of the Feasibility Period, and/or (ii) except for the
estoppel from Sam's Club or from Home Depot, provide its own estoppel ("SELLER'S
ESTOPPEL") in the form attached as Exhibit J to Purchaser in satisfaction of the
foregoing requirements. In the event that, after the Closing, Seller delivers to
Purchaser a tenant estoppel certificate from a tenant for whom Seller executed a
Seller's Estoppel at the Closing and such tenant estoppel certificate contains
no information which is contradictory to or inconsistent with the information
contained in the Seller's Estoppel, then Seller thereafter shall be released
from all liability relating to Seller's Estoppel with respect to such tenant's
Lease. In no event shall Seller be obligated to deliver updates to any of the
tenant estoppel certificates. Seller will deliver Purchaser copies of the signed
tenant estoppels promptly following Seller's receipt and, if Purchaser fails to
deliver a written objection notice to Seller within two (2) business days
following the date of delivery, such signed tenant estoppels will be deemed
approved by Purchaser.
10.2.3. TITLE POLICY. Upon recordation of the Deed and payment
of the title insurance premiums, the Title Company shall be prepared to issue to
Purchaser the Owner's Policy, insuring good and marketable (or indefeasible, as
applicable) title, in accordance with Section 6.1.
10.2.4. POSSESSION OF THE PROPERTY. Delivery by Seller of
exclusive possession of the Property, subject to the Permitted Exceptions and
the rights of tenants under the Leases as tenants only.
ARTICLE XI.
CLOSING
11.1. PURCHASER'S CLOSING OBLIGATIONS. Purchaser, at its sole cost and
expense, shall deliver or cause to be delivered to Seller at Closing the
following:
11.1.1. The Purchase Price, after all adjustments are made at
the Closing as herein provided, by wire transfer or other immediately available
federal funds.
11.1.2. A blanket conveyance and xxxx of sale, substantially
in the form attached hereto as Exhibit G (the "GENERAL ASSIGNMENT"), duly
executed by Purchaser, conveying and assigning to Purchaser the Personal
Property, the Leases, the Contracts (the Purchaser has elected to assume), the
records and plans, and the Intangible Property.
11.1.3. Written notice executed by Purchaser and addressed to
the tenants, (i) acknowledging the sale of the Property to Purchaser, (ii)
acknowledging that Purchaser has received and is responsible for any security
deposits identified in the rent roll, and (iii) indicating that rent should
thereafter be paid to Purchaser and giving instructions therefor.
- 20 -
11.1.4 A certificate indicating that the representations and
warranties set forth in Article VIII are true and correct on the Closing Date,
or, if there have been changes, describing such changes.
11.1.5. Such other documents as may be reasonably necessary or
appropriate to effect the consummation of the transactions which are the subject
of this Agreement.
11.2. SELLER'S CLOSING OBLIGATIONS. Seller, at its sole cost and
expense, shall deliver or cause to be delivered to Purchaser the following:
11.2.1. A Special Warranty Deed (the "DEED"), covering the
Property substantially in the form attached hereto as Exhibit F.
11.2.2. The General Assignment, duly executed by Seller,
conveying and assigning to Purchaser the Personal Property, the Leases, the
Contracts, the records and plans and the Intangible Property.
11.2.3. Written notice to tenants executed by Seller (i)
acknowledging the sale of the Property to Purchaser, (ii) acknowledging that
Purchaser has received and is responsible for any security deposits identified
in the rent roll, and (iii) indicating that rent should thereafter be paid to
Purchaser, substantially in the form attached hereto as Exhibit H.
11.2.4. A certificate indicating that the representations and
warranties set forth in Article VII are true and correct on the Closing Date,
or, if there have been changes, describing such changes (in which case the
provisions of Section 7.3 hereof shall be applicable).
11.2.5. A certificate substantially in the form attached
hereto as Exhibit I ("NON-FOREIGN ENTITY CERTIFICATE") certifying that Seller is
not a "foreign person" as defined in Section 1445 of the Internal Revenue Code
of 1986, as amended.
11.2.6. The following items, to the extent in Seller's
possession (which need not be delivered at the Closing, but may, instead, be
delivered to Purchaser's office in New York): (i) all keys for all entrance door
and spaces which may be locked (whether occupied or not) in the Improvements;
(ii) all original books, records, tenant files, operating reports, plans and
specifications and other materials and records reasonably necessary to the
continuity of operation of the Property; and (iii) the originals (or copies
where originals are not available and copies of the Leases will be certified) of
the Leases, the Contracts and the licenses and permits.
11.2.7. Termination of all Contracts which Purchaser shall not
elect to assume.
- 21 -
11.2.8. Termination of all management agreements affecting the
Property and all Contracts which Purchaser shall not elect in writing to assume.
11.2.9. A form 1099 or document enabling Purchaser to provide
information concerning the gross proceeds of the sale to the Internal Revenue
Service.
11.3 ESCROW AGENT'S CLOSING OBLIGATIONS. Escrow Agent shall prepare a
closing statement with respect to the transactions contemplated by this
Agreement and consistent with this Agreement for approval by Seller and
Purchaser at least two (2) business days prior to Closing. Each party shall
cooperate with Escrow Agent in the preparation of the closing statement.
ARTICLE XII.
RISK OF LOSS.
12.1. CONDEMNATION AND CASUALTY. If, prior to the Closing Date, all or
any portion of the Property is taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such fact
promptly after Seller obtains knowledge thereof. If such condemnation or
casualty is "MATERIAL" (as hereinafter defined), Purchaser shall have the option
to terminate this Agreement upon notice to Seller given not later than fifteen
(15) days after receipt of Seller's notice, or the Closing Date, whichever is
earlier. If this Agreement is terminated, the Deposit shall be returned to
Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations to the other hereunder except with respect to the
Surviving Termination Obligations. If this Agreement is not terminated, Seller
shall not be obligated to repair any damage or destruction but (x) Seller shall
assign, without recourse, and turn over to Purchaser all of the insurance
proceeds or condemnation proceeds, as applicable, payable with respect to such
casualty or condemnation, including any rent abatement insurance for such
casualty payable for any period after the Closing Date, net of any costs of
repairs (made by or on behalf of Seller prior to the Closing) and net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) and (y) the parties shall proceed to Closing
pursuant to the terms hereof without abatement of the Purchase Price except for
a credit in the amount of the applicable insurance deductible.
12.2. CONDEMNATION NOT MATERIAL. If the condemnation is not Material,
then the Closing shall occur without abatement of the Purchase Price and, after
deducting Seller's reasonable costs and expenses incurred in collecting any
award, Seller shall assign, without recourse, all remaining awards or any rights
to collect awards to Purchaser on the Closing Date.
- 22 -
12.3. CASUALTY NOT MATERIAL. If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price except for a credit
in the amount of the applicable deductible and Seller shall not be obligated to
repair such damage or destruction and Seller shall assign, without recourse, and
turn over to Purchaser all of the insurance proceeds net of any costs of repairs
(made by or on behalf of Seller prior to the Closing) and net of reasonable
collection costs (or, if such have not been awarded, all of its right, title and
interest therein) payable with respect to such fire or such casualty including
any rent abatement insurance for such casualty and credit the Purchase Price
with the amount of any applicable insurance deductible.
12.4. MATERIALITY. For purposes of this Article XII (i) with respect to
a taking by eminent domain, the term "MATERIAL" shall mean any taking
whatsoever, regardless of the amount of the award or the amount of the Property
taken, excluding, however, any taking solely of subsurface rights or takings for
utility easements or right of way easements, if the surface of the Property,
after such taking, may be used in substantially the same manner as though such
rights had not been taken, and (ii) with respect to a casualty, the term
"MATERIAL" shall mean any casualty such that the cost of repair, as reasonably
estimated by Seller's engineer, is in excess of $500,000 or which would give any
one of Home Depot, Sam's Club or Syms the right to terminate its lease.
- 23 -
ARTICLE XIII.
DEFAULT
13.1. DEFAULT BY SELLER. In the event the Closing and the transactions
contemplated hereby do not occur as provided herein by reason of the default of
Seller, Purchaser may elect, as the sole and exclusive remedy of Purchaser, to
(i) terminate this Agreement and receive the Deposit from the Escrow Agent, and
in such event Seller shall not have any liability whatsoever to Purchaser
hereunder other than with respect to the Surviving Termination Obligations or
(ii) enforce specific performance of Seller's obligation to convey the Property,
without adjustment to, or credit against, the Purchase Price. If the remedy of
specific performance is not available due to Seller's willful sale of the
Property during the term of this Agreement to a good xxxxx xxxx fide purchaser
for value, then in addition to Purchaser's right to receive a return of its
Deposit, Seller shall pay to Purchaser an amount equal to the difference between
the Purchase Price under this Agreement and the purchase price received by
Seller from the good xxxxx xxxx fide purchaser for value. Purchaser shall be
deemed to have elected to terminate this Agreement (as provided in subsection
(i) above) if Purchaser fails to deliver to Seller written notice of its intent
to file a cause of action for specific performance against Seller on or before
thirty (30) days after written notice of termination from Seller or thirty (30)
days after the originally scheduled Closing Date (or any Closing Date extended
by Seller in accordance with the provisions of this Agreement), whichever shall
occur first, or having given Seller notice, fails to file a lawsuit asserting
such cause of action within sixty (60) days after the originally scheduled
Closing Date (or any Closing Date extended by Seller in accordance with this
Agreement). Notwithstanding the foregoing, nothing contained herein shall limit
Purchaser's remedies at law or in equity, as to the Surviving Termination
Obligations.
13.2. DEFAULT BY PURCHASER. IN THE EVENT THE CLOSING AND THE
TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF
ANY DEFAULT OF PURCHASER, PURCHASER AND SELLER AGREE IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO FIX THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE,
PURCHASER AND SELLER HEREBY AGREE A REASONABLE ESTIMATE OF THE TOTAL NET
DETRIMENT SELLER WOULD SUFFER IN THE EVENT PURCHASER DEFAULTS AND FAILS TO
COMPLETE THE PURCHASE OF THE PROPERTY IS AND SHALL BE, AS SELLER'S SOLE AND
EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY), A SUM EQUAL TO THE DEPOSIT. UPON
SUCH DEFAULT BY PURCHASER, SELLER SHALL HAVE THE RIGHT TO RECEIVE THE DEPOSIT
FROM THE ESCROW AGENT AS ITS SOLE AND EXCLUSIVE REMEDY AND THEREUPON THIS
AGREEMENT SHALL BE TERMINATED AND NEITHER SELLER NOR PURCHASER SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT WITH RESPECT TO THE SURVIVING
TERMINATION OBLIGATIONS. THE AMOUNT OF THE DEPOSIT SHALL BE THE FULL, AGREED AND
LIQUIDATED DAMAGES FOR PURCHASER'S DEFAULT AND FAILURE TO COMPLETE THE PURCHASE
- 24 -
OF THE PROPERTY, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING HEREBY
EXPRESSLY WAIVED BY SELLER. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED
HEREIN SHALL LIMIT SELLER'S REMEDIES AT LAW OR IN EQUITY AS TO THE SURVIVING
TERMINATION OBLIGATIONS.
/s/ E.W.B. /s/ B.J.W.
----------------------- -----------------------
SELLER'S INITIALS PURCHASER'S INITIALS
ARTICLE XIV.
BROKERS
Purchaser and Seller each represents and warrants to the other that it
has not dealt with any person or entity entitled to a brokerage commission,
finder's fee or other compensation with respect to the transaction contemplated
hereby other than Xxxxxxx & Xxxxxxxxx (the "BROKER"). Seller will be responsible
for commissions due the Broker pursuant to the terms of a separate agreement
between Seller and the Broker, but not otherwise. Broker shall be paid only upon
the Closing of the purchase and sale contemplated hereby pursuant to such
separate agreement. Purchaser hereby agrees to indemnify, defend, and hold
Seller harmless from and against any losses, damages, costs and expenses
(including, but not limited to, attorneys' fees and costs) incurred by Seller by
reason of any breach or inaccuracy of the Purchaser's (or its nominee's)
representations and warranties contained in this Article XIV. Seller hereby
agrees to indemnify, defend, and hold Purchaser harmless from and against any
losses, damages, costs and expenses (including, but not limited to, attorneys'
fees and costs) incurred by Purchaser by reason of any breach or inaccuracy of
Seller's representations and warranties contained in this Article XIV. Seller
and Purchaser agree that it is their specific intent that no broker shall be a
party to or a third party beneficiary of this Agreement or the Deposit, that no
broker shall have any rights or cause of action hereunder, and further that the
consent of a broker shall not be necessary to any agreement, amendment, or
document with respect to the transaction contemplated by this Agreement. The
provisions of this Article XIV shall survive the Closing and/or termination of
this Agreement.
ARTICLE XV.
CONFIDENTIALITY
15.1. CONFIDENTIALITY. Purchaser expressly acknowledges and agrees that
the transactions contemplated by this Agreement, the Documents that are not
otherwise known by or readily available to the public and the terms, conditions
and negotiations concerning the same shall be held in the strictest confidence
by Purchaser and shall not be disclosed by Purchaser except to its legal
counsel, lenders, investors, surveyor, title company, broker, accountants,
consultants, officers, partners, directors and shareholders (the "AUTHORIZED
REPRESENTATIVES"), and except and only to the extent that such disclosure may be
- 25 -
necessary for its performance hereunder. Purchaser agrees that it shall instruct
(and will be responsible for the compliance of) each of its Authorized
Representatives to maintain the confidentiality of such information and at the
request of Seller, to promptly inform Seller of the identity of each such
Authorized Representative. Purchaser further acknowledges and agrees that,
unless and until the Closing occurs, all information and materials obtained by
Purchaser in connection with the Property that are not otherwise known by or
readily available to the public will not be disclosed by Purchaser to any third
persons (other than to its Authorized Representatives) without the prior written
consent of Seller. If the transaction contemplated by this Agreement does not
occur for any reason whatsoever, Purchaser shall promptly return to Seller, and
shall instruct its Authorized Representatives to return to Seller, all copies
and originals of all documents and information provided to Purchaser. Nothing
contained in this Section 15.1 shall preclude or limit either party from
disclosing or accessing any information otherwise deemed confidential under this
Section 15.1 in connection with the party's enforcement of its rights following
a disagreement hereunder or in response to lawful process or subpoena or other
valid or enforceable order of a court of competent jurisdiction or any filings
with Authorities required by reason of the transactions provided for herein. The
provisions of this Section 15.1 shall survive any termination of this Agreement.
15.2. POST CLOSING PUBLICATION. Notwithstanding the foregoing, prior to
the Closing, no party shall issue a press release or otherwise publicize or
disclose the terms of this Agreement (except as otherwise provided in Section
15.1 above) without the prior written consent of the other party (subject to
rights of disclosure due to such party's enforcement rights or in response to a
lawsuit or subpoena as provided in Section 15.1 above), provided, however, that
Seller shall not unreasonably withhold its consent to a press release issued by
Purchaser after the expiration of the Feasibility Period (absent a termination
of this Agreement by Purchaser) which announces that Purchaser has entered into
a binding contract to purchase the Property and intends to close the acquisition
and does not state a purchase price for the Property. The provisions of this
Section 15.2 shall survive Closing and/or any termination of this Agreement.
ARTICLE XVI.
MISCELLANEOUS
16.1. NOTICES. Any and all notices, requests, demands or other
communications hereunder shall be deemed to have been duly given if in writing
and if transmitted by hand delivery with receipt therefor, by facsimile delivery
(with confirmation by hard copy), by overnight courier, or by registered or
certified mail, return receipt requested, first class postage prepaid addressed
as follows (or to such new address as the addressee of such a communication may
have notified the sender thereof) (the date of such notice shall be the date of
actual delivery to the recipient thereof):
- 26 -
To Purchaser: Cedar Shopping Centers Partnership, L.P.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Mr. Xxxxxxx Xxxxxxx, Vice President of Acquisitions
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Email: XXxxxxxx@XxxxxXxxxxxxxXxxxxxx.xxx
With a copy to: Xxxxxx X. Xxxxx, P.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Tel 000-000-0000
Fax No.; 000-000-0000
Email: XXXXXXX@xxx.xxx
To Seller: c/o TA Associates Realty
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Wales
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Email: xxxxxx@xxxxxxxx.xxx
With a copy to: Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Email: xxxxxxxx@xxxxxx.xxx
To Escrow Agent: Chicago Title Insurance Company
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
Email: xxxxxxx@xxx.xxx
16.2. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal, substantive laws of the State of Connecticut,
without regard to the conflict of laws principles thereof.
- 27 -
16.3. HEADINGS. The captions and headings herein are for convenience
and reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
16.4. EFFECTIVE DATE. This Agreement shall be effective the date that
it has been fully executed by Seller and Purchaser and a copy thereof delivered
to Purchaser or its counsel, which date shall be deemed the Effective Date
hereof. Either party may request that the other party promptly execute a
memorandum specifying the Effective Date.
16.5. BUSINESS DAYS. If any date herein set forth for the performance
of any obligations of Seller or Purchaser or for the delivery of any instrument
or notice as herein provided should be on a Saturday, Sunday or legal holiday,
the compliance with such obligations or delivery shall be deemed acceptable on
the next business day following such Saturday, Sunday or legal holiday. As used
herein, the term "legal holiday" means any state or Federal holiday for which
financial institutions or post offices are generally closed in the state where
the Property is located.
16.6. COUNTERPART COPIES. This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.
16.7. BINDING EFFECT. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns.
16.8. ASSIGNMENT. Purchaser shall not have the right to assign the
Agreement without Seller's prior written consent, which consent may be given or
withheld in Seller's sole and absolute discretion; provided, however, Purchaser
may assign this Agreement to another entity without Seller's consent as long as
(a) such assignee is managed or controlled by, or affiliated with Purchaser or
any affiliated entity of Purchaser is the general partner or managing member and
such assignee assumes in writing Purchaser's obligations hereunder, a copy of
which will be delivered to Seller at least five (5) business days in advance of
the Closing Date; and (b) Purchaser provides Seller with the name and
organizational documents for such assignee and all members thereof at least five
(5) business days in advance of the Closing Date. Purchaser shall in no event be
released from any of its obligations or liabilities hereunder as a result of any
assignment. The respective obligations of Seller and Purchaser under this
Section 16.8 shall survive the Closing and shall not be merged therein. Whenever
reference is made in this Agreement to Seller or Purchaser, such reference shall
include the successors and assigns of such party under this Agreement.
16.9. INTERPRETATION. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that it may have been prepared by counsel for one of the parties, it being
recognized that both Seller and Purchaser have contributed substantially and
materially to the preparation of this Agreement.
- 28 -
16.10. ENTIRE AGREEMENT. This Agreement and the Exhibits attached
hereto contain the final and entire agreement between the parties hereto with
respect to the sale and purchase of the Property and are intended to be an
integration of all prior negotiations and understandings. Purchaser, Seller and
their agents shall not be bound by any terms, conditions, statements, warranties
or representations, oral or written, not contained herein. No change or
modifications to this Agreement shall be valid unless the same is in writing and
signed by the parties hereto. Each party reserves the right to waive any of the
terms or conditions of this Agreement which are for their respective benefit and
to consummate the transaction contemplated by this Agreement in accordance with
the terms and conditions of this Agreement which have not been so waived. Any
such waiver must be in writing signed by the party for whose benefit the
provision is being waived.
16.11. SEVERABILITY. If any one or more of the provisions hereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
16.12. SURVIVAL. Except as otherwise specifically provided for in
Sections 4.2.5, 5.1, 5.2, 5.3, 5.4, 5.6, 7.3, 7.4, 8.2, 8.3, 8.4, 15.1, 15.2,
16.16 and 16.20 (benefiting only the Purchaser) and Article XIV (collectively,
the "SURVIVING TERMINATION OBLIGATIONS"), the provisions of this Agreement and
the representations and warranties herein shall not survive the termination of
this Agreement or after the conveyance of title and payment of the Purchaser
Price but be merged therein.
16.13. EXHIBITS. Exhibits A through J attached hereto are incorporated
herein by reference.
16.14. TIME. Time is of the essence in the performance of each of the
parties' respective obligations contained herein.
16.15. LIMITATION OF LIABILITY. The obligations of the parties
hereunder are binding only on such party and its respective assets and shall not
be personally binding upon, nor shall any resort be had to, the private
properties of any of the partners, members, officers, directors, shareholders or
beneficiaries of such party, or of any partners, officers, directors,
shareholders or beneficiaries of any partners or members of such party, or of
any of such party's employees or agents. All documents to be executed by the
parties hereto shall be deemed to contain (even if not expressly stated) the
foregoing exculpation.
16.16. PREVAILING PARTY. Should either party employ an attorney to
enforce any of the provisions hereof (whether before or after Closing, and
including any claims or actions involving amounts held in escrow), the
non-prevailing party in any final judgment agrees to pay the other party's
reasonable expenses, including reasonable attorneys' fees and expenses in or out
of litigation and, if in litigation, trial, appellate, bankruptcy or other
- 29 -
proceedings, expended or incurred in connection therewith, as determined by a
court of competent jurisdiction. The provisions of this Section 16.16 shall
survive Closing and/or any termination of this Agreement.
16.17. ESCROW AGREEMENT.
16.17.1. INSTRUCTIONS. Purchaser and Seller each shall
promptly deposit a copy of this Agreement executed by such party (or either of
them shall deposit a copy executed by both Purchaser and Seller) with Escrow
Agent, and, upon receipt of the Initial Deposit from Purchaser, Escrow Agent
shall immediately execute this Agreement where provided below. This Agreement,
together with such further instructions, if any, as the parties shall provide to
Escrow Agent by written agreement, shall constitute the escrow instructions. If
any requirements relating to the duties or obligations of Escrow Agent hereunder
are not acceptable to Escrow Agent, or if Escrow Agent requires additional
instructions, the parties hereto agree to make such deletions, substitutions and
additions hereto as counsel for Purchaser and Seller shall mutually approve,
which additional instructions shall not substantially alter the terms of this
Agreement unless otherwise expressly agreed to by Seller and Purchaser.
16.17.2. REAL ESTATE REPORTING PERSON. Escrow Agent is hereby
designated the "real estate reporting person" for purposes of Section 6045 of
Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any
instructions or settlement statement prepared by Escrow Agent shall so provide.
Upon the consummation of the transaction contemplated by this Agreement, Escrow
Agent shall file Form 1099 information return and send the statement to Seller
as required under the aforementioned statute and regulation. Seller and
Purchaser shall promptly furnish their federal tax identification numbers to
Escrow Agent and shall otherwise reasonably cooperate with Escrow Agent in
connection with Escrow Agent's duties as real estate reporting person.
16.17.3. LIABILITY OF ESCROW AGENT. The parties acknowledge
that the Escrow Agent shall be conclusively entitled to rely, except as
hereinafter set forth, upon a certificate from Purchaser or Seller as to how the
Deposit (which, for purposes of this Section shall be deemed to also include any
other escrowed funds held by the Escrow Agent pursuant to this Agreement) should
be disbursed. Any notice sent by Seller or Purchaser (the "NOTIFYING PARTY") to
the Escrow Agent shall be sent simultaneously to the other noticed parties
pursuant to Section 16.1 herein (the "NOTICE PARTIES"). If the Notice Parties do
not object to the Notifying Party's notice to the Escrow Agent within ten (10)
days after the Notice Parties' receipt of the Notifying Party's certificate to
the Escrow Agent, the Escrow Agent shall be able to rely on the same. If the
Notice Parties send, within such ten (10) days, written notice to the Escrow
Agent disputing the Notifying Party's certificate, a dispute shall exist and the
Escrow Agent shall hold the Deposit as hereinafter provided. The parties hereto
hereby acknowledge that Escrow Agent shall have no liability to any party on
account of Escrow Agent's failure to disburse the Deposit if a dispute shall
have arisen with respect to the propriety of such disbursement and, in the event
of any dispute as to who is entitled to receive the Deposit, disburse them in
accordance with the final order of a court of competent jurisdiction, or to
- 30 -
deposit or interplead such funds into a court of competent jurisdiction pending
a final decision of such controversy. The parties hereto further agree that
Escrow Agent shall not be liable for any breach or failure of (or by) any
depository and shall not be otherwise liable except in the event of Escrow
Agent's gross negligence or willful misconduct. The Escrow Agent shall be
reimbursed on an equal basis by Purchaser and Seller for any reasonable expenses
incurred by the Escrow Agent arising from a dispute with respect to the Deposit.
The obligations of Seller with respect to the Escrow Agent are intended to be
binding only on Seller and Seller's assets and shall not be personally binding
upon, nor shall any resort be had to, the private properties of any of the
partners, officers, directors, shareholders or beneficiaries of Seller, or of
any partners, officers, directors, shareholders or beneficiaries of any partners
of Seller, or of any of Seller's employees or agents.
16.18. NO RECORDING. Neither this Agreement nor any memorandum or short
form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
16.19. WAIVER OF TRIAL BY JURY. The respective parties hereto shall and
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.
16.20. POST-CLOSING 8-K AND AUDIT REQUIREMENTS. Seller acknowledges
that as a REIT, Purchaser will be required, after the Closing, to comply with
certain requirements of the Securities and Exchange Commission; accordingly,
Seller agrees to be bound by and to comply with the provisions set forth in
Schedule 16.20 attached hereto and made a part hereof, in order to facilitate
such compliance by Purchaser. The foregoing covenant of Seller shall survive the
Closing for a period of one (1) year.
[SEE FOLLOWING PAGE FOR SIGNATURES]
- 31 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the date or dates set forth below.
SELLER:
-------
GATEWAY CONNECTICUT PROPERTIES, INC.,
a California corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------
Name: Xxxx X. Xxxxxxx
------------------------
Title: Vice President, Asst.
Secretary & Treasurer
------------------------
- 32 -
PURCHASER:
----------
CEDAR SHOPPING CENTERS
PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping Centers, Inc.
Its sole general partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
-----------------------
Title: Vice President
-----------------------
- 33 -
ESCROW AGENT JOINDER
--------------------
The Escrow Agent hereby executes this Agreement for the sole purpose of
acknowledging receipt of the Deposit and its responsibilities hereunder and to
evidence its consent to serve as Escrow Agent in accordance with the terms of
this Agreement.
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxx
----------------------
Name: Xxxxx Xxxxxx
----------------------
Title: Escrow Officer
----------------------
Date: November 16, 2004
- 34 -
BROKER JOINDER
--------------
Broker joins in the execution of this Agreement for the purpose of
agreeing to be bound by Sections 14.1 and 15.1 hereof.
XXXXXXX & XXXXXXXXX
By:_______________________
Name:____________________
Title:_____________________
XXXXXXX & WAKEFIELD
By:_______________________
Name:____________________
Title:_____________________
- 35 -
LIST OF EXHIBITS
EXHIBITS
Exhibit A - Legal Description
Exhibit B - Due Diligence Documents to be Delivered by Seller
Exhibit C - Form of Tenant Estoppel Certificate
Exhibit D - Permitted Exceptions
Exhibit E - Lease Schedule
Exhibit F - Form of Deed
Exhibit G - Form of General Assignment
Exhibit H - Form of Notice Letter to Tenants
Exhibit I - Form of Non-Foreign Entity Certificate
Exhibit J - Form of Seller Estoppel Certificate
SCHEDULES
Schedule 1 - Escrow Agent Wire Instructions
Schedule 7.1.3. - Pending Litigation
Schedule 7.1.11 - Seller's Environmental Reports
Schedule 16.20 - Post-Closing Audit Requirements
EXHIBIT A
LEGAL DESCRIPTION
-----------------
NOTE: SELLER DOES NOT REPRESENT THAT THE ABOVE ACREAGE AND/OR SQUARE FOOTAGE
CALCULATIONS ARE CORRECT.
EXHIBIT A - PAGE 1 of 2
EXHIBIT B
DUE DILIGENCE DOCUMENTS
TO BE DELIVERED BY SELLER - ALL TO THE EXTENT IN SELLER'S
---------------------------------------------------------
POSSESSION OR UNDER ITS CONTROL
-------------------------------
Tenant Information
------------------
1. Rent Roll in the form currently maintained by Seller.
2. All Leases currently in effect.
3. All tenant financials, if any, in Seller's possession.
4. Most recent available accounts receivable.
5. Copies of all xxxxxxxx to tenants together with ledger showing amounts
received during the year 2004(i)
Operating Information
---------------------
1. Copies of all Contracts and management agreements currently in effect.
2. Copies of real estate tax bills (including special assessments) for prior
two (2) years.
3. Copies of utility bills for the past twelve months.
Other
-----
1. Seller's most current title policy, report or commitment, together with
copies of all title exception documents.
2. Seller's most recent survey.
3. Copies of 2002 and 2003 operating statements.
4. Copy of Seller's existing environmental report.
-------------------
(i) Not sure what this means - can you please explain?
EXHIBIT C - PAGE 1 of 2
EXHIBIT C
TENANT ESTOPPEL CERTIFICATE
---------------------------
_____________________________________ (the "Tenant") hereby certifies
to GATEWAY CONNECTICUT PROPERTIES, INC., a California corporation (the "Owner")
and CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., CEDAR BRICKYARD, LLC, FLEET
NATIONAL BANK, AS AGENT, AND THEIR SUCCESSORS AND ASSIGNS (each, a "Relying
Party" and collectively, the "Relying Parties") as follows:
1. Pursuant to that certain Lease dated ____________, ______ (the
"Lease"), Tenant leases _______________ square feet of space (the "Premises").
The Lease, as amended, modified and supplemented, is in full force and effect,
and represents the entire agreement between Tenant and Owner for the Property.
There are no amendments, modifications or supplements to the Lease, whether oral
or written, except as follows (include the date of each amendment, modification
or supplement): ________________________________
_____________________________________. A true and correct copy of the Lease, as
amended, modified and supplemented, is attached hereto as Exhibit A. There are
no side letters or other arrangements relating to the Premises, except as set
forth in said Exhibit A.
2. The term of the Lease began on ____________________, ______ and will
end on ____________________, 20____. Tenant has accepted the Premises, is in
occupancy, and is paying rent under the Lease. Tenant has not sent written
notice to Owner of its intent to vacate or otherwise discontinue operations at
the Property.
3. The Lease does/does not provide for an option to extend the term of
the Lease for ________________ years. Except as expressly provided in the Lease,
Tenant does not have any right or option to renew or extend the term of the
Lease, to lease other space at the Property, nor any preferential right to
purchase all or any part of the Premises or the Property.
4. The Lease is presently in full force and effect and is a valid and
binding obligation of Tenant neither Owner nor Tenant is in default thereunder.
There exist no facts that would constitute a basis for any such default upon the
lapse of time or the giving of notice or both.
5. Tenant is currently paying [Base Monthly] Rent under the Lease in
the amount of $__________________ and estimated monthly pass throughs in the
amount of __________________. Monthly Rent and monthly pass throughs have been
paid through ______ ___, 2004. There has been no prepayment of rent other than
as provided in the Lease. As of the date of this certificate, to the knowledge
of Tenant, there exist no offsets, counterclaims, or defenses of Tenant under
the Lease against Owner, and there exist no events that would constitute a basis
for any such offset, counterclaim, or defense against Owner upon the lapse of
time or the giving of notice or both, except the following (if left blank, there
shall be deemed to be none):____________________________________________________
EXHIBIT C - PAGE 2 of 2
6. There are no concessions, bonuses, free rental periods, rebates,
advance rental payments, or other matters affecting the rental payable by Tenant
under the Lease except as described in the attached Lease
7. A cash security deposit in the amount of $__________________ has
been paid to Owner under the Lease, and Tenant has not given Owner any other
security or similar deposit.
8. All improvements or repairs required under the terms of the Lease to
be made by Owner through the date hereof have been satisfactorily completed. All
allowances and other payments due to Tenant by Owner under the terms of the
Lease have been paid in full, except the following (if left blank, there shall
be deemed to be none):__________________________________________________________
9. Tenant has not assigned the Lease or sublet all or any portion of
the Premises.
10. There are no actions, whether voluntary or otherwise, pending or
threatened against Tenant, or any guarantor of the Tenant's obligations under
the Lease, pursuant to the bankruptcy or insolvency laws of the United States or
any similar state laws.
11. Tenant acknowledges that Owner may assign its interest in the Lease
to Relying Party and agrees, upon receipt of notice of such assignment from
Owner and Relying Party, to attorn to Relying Party and to perform all of
Tenant's obligations as the tenant under the Lease, including, without
limitation, the payment of rent, directly to such Relying Party, or its agent,
as the landlord under the Lease, from and after the date of such notice.
12. This certificate shall inure to the benefit of the Relying Parties
and their respective successors and assigns (including, without limitation, a
purchaser at or after foreclosure), and shall be binding upon Tenant and
Tenant's successors and permitted assigns.
Dated this _______ day of ______________, 2004.
[NAME OF TENANT]
By:
--------------------------------
Name:
Title:
EXHIBIT C - PAGE 3 of 2
EXHIBIT D
PERMITTED EXCEPTIONS
--------------------
1. Real estate taxes and all general and special assessments payable
during [year of Closing] (to the extent not due and payable) and
subsequent calendar years.
2. Rights of parties in possession as tenants only pursuant to unrecorded
Leases in effect on the Closing Date.
3. Local, state and federal laws, ordinances or governmental regulations,
including, but not limited to, building and zoning laws, ordinances and
regulations, now or hereafter in effect relating to the Property.
4. All matters that are shown by the Survey.
EXHIBIT D - PAGE 1 OF 1
EXHIBIT E
LEASE SCHEDULE
--------------
EXHIBIT E - PAGE 1 OF 1
EXHIBIT F
SPECIAL WARRANTY DEED
KNOW ALL PERSONS BY THESE PRESENTS THAT:
GATEWAY CONNECTICUT PROPERTIES, INC., a California corporation with an address
in care of c/o TA Associates Realty, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("Grantor"), for good and valuable consideration received to
its full satisfaction of ____________________________ [NAME OF CEDAR'S ACTUAL
ENTITY ACQUIRING TITLE TO BE INSERTED HERE], a Delaware limited partnership with
an address of 00 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
("Grantee"), does hereby give, grant, bargain, sell and convey unto Grantee, its
successors and assigns forever, all that certain piece or parcel of land situate
in the Town of Berlin, County of Hartford, and State of Connecticut, as more
particularly set forth and described in Schedule A attached hereto and made a
part hereof, together with all buildings and improvements thereon, all
easements, covenants and rights appurtenant thereto, all ways, streets, alleys,
driveways, passages, waters, water-courses, rights, liberties, privileges,
hereditaments and appurtenances, whatsoever unto the hereby granted premises
belonging, or in any wise appertaining, and the reversions and remainders,
rents, issues, and profits thereof; and all the estate, right, title, interest,
property, claim and demand whatsoever of it, the Grantor, in law, equity, or
otherwise howsoever, of, in and to the same and every part thereof
(collectively, the "Premises").
TO HAVE AND TO HOLD the Premises to Grantee and unto Grantee's
successors and assigns forever, to its and their own proper use and behoof.
AND ALSO, Grantor does, for itself, its successors and assigns,
covenant with Grantee, its successors and assigns, that the Premises are free
from all encumbrances made or suffered by Grantor, except as is set forth in
Schedule B hereto [Note: this schedule not to show anything other than
encumbrances of record as of the expiration of the Feasibility Period].
AND FURTHERMORE, Grantor does by these presents bind itself, its
successors and assigns forever, to warrant and defend the Premises to Grantee,
its successors and assigns against the claims and demands made or suffered by
Grantor, except as aforesaid, but against none other.
IN WITNESS WHEREOF, Grantor has executed this instrument the ___ day
of ___________, 2004.
EXHIBIT F - PAGE 2 OF 2
Witnessed by: GATEWAY CONNECTICUT PROPERTIES, INC.,
a California corporation
_________________________________ By:
Name: ---------------------------------
Name:
Title:
_________________________________
Name:
STATE OF _____________ )
) ss.:
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of _________,
2004, by __________________, the _______________________ of Gateway Connecticut
Properties, Inc., a California corporation, on behalf of the said corporation.
___________________________________
Notary Public
My Commission Expires:
The Latest Address of Grantee:
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
EXHIBIT F - PAGE 2 OF 2
EXHIBIT G
GENERAL ASSIGNMENT
------------------
THIS GENERAL ASSIGNMENT (the "Xxxx of Sale") is made as of the ______
day of _____________, 2004 by GATEWAY CONNECTICUT PROPERTIES, INC., a California
corporation ("Seller") and ____________________ a _________________________
("Purchaser").
KNOW ALL MEN BY THESE PRESENTS:
Concurrently with the execution and delivery hereof, pursuant to a
certain Agreement of Purchase and Sale dated November 15, 2004 (the "Agreement")
between Seller and Purchaser, Seller is conveying to Purchaser all of Seller's
right, title and interest in and to the real property described on Exhibit A
attached hereto and made a part hereof (the "Land") and in and to the building,
parking areas and other structures and improvements located on the Land
(collectively, the "Improvements") located in the Town of Berlin, State of
Connecticut. The Land and the Improvements are hereinafter sometimes
collectively referred to as the "Property."
It is the desire of Seller to hereby sell, assign, transfer, convey,
set-over and deliver to Purchaser all of Seller's right, title and interest in
and to the Assigned Property (as hereinafter defined).
1. Xxxx of Sale and Assignment.
Seller does hereby sell, assign, transfer, set-over and
deliver unto Purchaser, its successors and assigns, with special warranty of
title and subject to the limitations contained in Section 8.2 of the Agreement,
all right, title and interest of Seller in and to:
a. All personal property (including equipment), if any, owned
by Seller and located on, attached to, pertaining to, or used in connection with
the Property as of the date of the Agreement, all inventory located on the
Property on the date hereof, and all fixtures (if any) owned by Seller and
located on and attached to the Property as of the date of the Agreement (the
"Personal Property"); and
b. Any and all non-exclusive trademarks and trade names
(including, without limitation, the name The Brickyard Shopping Center), used in
connection with the Property, but only to the extent that the same are not
trademarks or trade names of Seller or any of Seller's affiliated companies
(collectively, the "Trade Names");
c. Seller's interest, if any, in and to the service,
equipment, supply and maintenance contracts set forth on Exhibit "B" attached
hereto and made a part hereof (the "Contracts"), guarantees, licenses,
approvals, certificates, permits and warranties relating to the Property or the
Personal Property, to the extent assignable (collectively, the "Intangible
Property"); and
EXHIBIT G - PAGE 3 OF 3
d. All leases, subleases, licenses and other occupancy
agreements, together with any and all amendments, modifications or supplements
thereto, all of which are listed on Exhibit "C" attached hereto and made a part
hereof (the "Leases") demising space in or otherwise similarly affecting or
relating to the Property and all prepaid rent attributable to the period on or
after the date hereof, and unapplied security deposits thereunder, all of which
are listed on Exhibit "C-1" attached hereto and made a part hereof
(collectively, the "Leasehold Property"); subject, however to the rights of
Seller set forth in the Agreement to rents under the leases assigned hereby
attributable to the period prior to the date hereof.
TO HAVE AND TO HOLD the Personal Property, the Trade Names,
the Intangible Property, the Leases and the Leasehold Property (collectively,
the "Assigned Property") unto Purchaser, its successors and assigns, forever.
2. Assumption/Reciprocal Indemnity.
Purchaser accepts the foregoing assignment and assumes and
agrees to be bound by and to perform and observe all of the obligations,
covenants, terms and conditions to be performed or observed under the Assigned
Property arising on or after the date hereof.
3. Limitation of Liability.
The obligations of Seller are intended to be binding only on
Seller and Seller's assets and shall not be personally binding upon, nor shall
any resort be had to, the private properties of any of the partners, officers,
directors, shareholders or beneficiaries of Seller, or of any partners,
officers, directors, shareholders or beneficiaries of any partners of Seller, or
of any of Seller's employees or agents. The obligations of Purchaser are
intended to be binding only on Purchaser and Purchaser's assets and shall not be
personally binding upon, nor shall any resort be had to, the private properties
of any of the partners, members, officers, directors, shareholders or
beneficiaries of Purchaser, or of any partners, members, officers, directors,
shareholders or beneficiaries of any partners or members of Purchaser, or of any
of Purchaser's employees or agents.
4. Exclusions from Personal Property.
It is hereby acknowledged by the parties that the Assigned
Property shall not include claims relating to any real property tax refunds or
rebates for periods accruing prior to the date hereof, existing insurance claims
and any existing claims against previous tenants of the Property, which claims
are hereby reserved by Seller, subject to the provisions of the Agreement.
EXHIBIT G - PAGE 3 OF 3
5. Successors and Assigns.
The rights and obligations of the parties hereto shall be
binding upon and inure to the benefit of Purchaser and Seller and their
respective successors and assigns.
6. Governing Law.
This Xxxx of Sale, its construction, validity and effect, and
its interpretation, performance and enforcement, and the remedies therefor,
shall be governed and construed by and according to the laws of the State of
Connecticut.
7. Counterpart Copies.
This Xxxx of Sale may be executed in two or more counterpart
copies, all of which counterparts shall have the same force and effect as if all
parties hereto had executed a single copy of this Xxxx of Sale.
IN WITNESS WHEREOF, the parties have caused this Xxxx of Sale to be
executed as of the date first written above.
SELLER:
-------
GATEWAY CONNECTICUT PROPERTIES, INC.,
a California corporation
By:
-------------------------------
Name:
Title:
PURCHASER:
----------
Cedar _______, LLC,
a Delaware limited liability company
By:
-------------------------------
Name:
Title:
EXHIBIT G - PAGE 3 OF 3
EXHIBIT H
NOTICE LETTER TO TENANTS
------------------------
________________, 2004
CERTIFIED MAIL,
RETURN RECEIPT REQUESTED
Dear Tenant:
We are pleased to advise you that the building in which your premises
are located at ___________________________________________________, has been
sold by GATEWAY CONNECTICUT PROPERTIES, INC., a California corporation, to Cedar
________, LLC, a Delaware limited liability company (the "Purchaser") effective
as of the date set forth above. Your lease agreement has been assigned to and
accepted by Purchaser and Purchaser has agreed to assume all responsibility for
security deposits currently held under your lease.
All future correspondence relating to your tenancy, as well as
rent checks and other charges, should be made payable and mailed to:
CEDAR ________, LLC
C/O CEDAR SHOPPING CENTERS, INC.
00 XXXXX XXXXXX XXXXXX
XXXX XXXXXXXXXX, XX 00000
ATTENTION: XXXXXX X. XXXXXX.
All insurance policies maintained by you pursuant to your
lease which require that the landlord be named as an additional insured should
be amended to reflect the new landlord and evidence thereof should be sent to
the new landlord within 15 days following the date hereof.
Very truly yours,
SELLER:
-------
GATEWAY CONNECTICUT PROPERTIES, INC.,
a California corporation
By:
-----------------------------
Name:
Title:
EXHIBIT H - PAGE 1 OF 1
EXHIBIT I
NON-FOREIGN ENTITY CERTIFICATE
------------------------------
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by GATEWAY CONNECTICUT
PROPERTIES, INC., a California corporation ("Transferor"), the undersigned
hereby certifies on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those
terms are defined in the Internal Revenue Code and Income
Tax Regulations);
2. Transferor's U.S. employer identification number is
__________; and
3. Transferor's office address is:
c/o TA Realty Associates
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Transferor understands that this certification may be disclosed to the
Internal Revenue Service and that any false statement made within this
certification could be punished by fine, imprisonment, or both.
Under penalties of perjury the undersigned declares that he has
examined this certification and that to the best of his knowledge and belief it
is true, correct and complete, and the undersigned further declares that he has
the authority to sign this document on behalf of the Transferor.
Dated: _________________, 2004
TRANSFEROR:
GATEWAY CONNECTICUT PROPERTIES, INC.,
a California corporation
By:
-----------------------------
Name:
Title:
EXHIBIT I - PAGE 1 OF 1
EXHIBIT J
SELLER'S ESTOPPEL CERTIFICATE
-----------------------------
GATEWAY CONNECTICUT PROPERTIES, INC. (the "Seller") hereby certifies to
____________________________________, its successors or assigns ("Purchaser") as
follows, to its current, actual, conscious knowledge:
1. Pursuant to that certain Lease dated ____________, _____ (the
"Lease") with _______________________________________ (the "Tenant"), Tenant
leases approximately _____________ square feet of space (the "Premises"). The
Lease, as amended, modified and supplemented, is in full force and effect, and
represents the entire agreement between Tenant and Landlord for the Property.
There are no amendments, modifications or supplements to the Lease, whether oral
or written, except as follows (include the date of each amendment, modification
or supplement):_________________________________________________________________
___________________________________________________________. A true and correct
copy of the Lease, as amended, modified and supplemented, is attached hereto as
Exhibit A.
2. Seller has neither sent nor received any notice of default under the
Lease which remains uncured except as follows: _________________________________
__________________________________________________________________________. The
Lease is presently in full force and effect. To Seller's knowledge, there exist
no facts that would constitute a basis for any default under the Lease upon the
lapse of time or the giving of notice or both.
3. The term of the Lease began on ____________________, ______ and will
end on ____________________, 20____. To Seller's knowledge, Tenant has accepted
the Premises and is in occupancy. Tenant is paying rent under the Lease. Tenant
has not sent written notice to Seller of its intent to vacate or otherwise
discontinue operations at the Property.
4. The Lease does/does not provide for an option to extend the term of
the Lease for ________________ years. Except as expressly provided in the Lease,
Tenant does not have any right or option to renew or extend the term of the
Lease, to lease other space at the Property, nor any preferential right to
purchase all or any part of the Premises or the Property.
5. There are no concessions, bonuses, free rental periods, rebates,
advance rental payments, or other matters affecting the rental payable by Tenant
under the Lease except as described in the attached Lease
SCHEDULE J - PAGE 1 OF 2
6. Tenant is currently paying [Base Monthly] Rent under the Lease in
the amount of $__________________ and estimated monthly pass throughs in the
amount of __________________. Monthly Rent and monthly pass throughs have been
paid through ______ ___, 2004. There has been no prepayment of rent other than
as provided in the Lease. As of the date of this certificate, to the knowledge
of Tenant, there exist no offsets, counterclaims, or defenses of Tenant under
the Lease against Seller, and there exist no events that would constitute a
basis for any such offset, counterclaim, or defense against Seller upon the
lapse of time or the giving of notice or both, except the following (if left
blank, there shall be deemed to be none):
7. A cash security deposit in the amount of $__________________ has
been paid to Seller under the Lease, and Tenant has not given Seller any other
security or similar deposit. Seller has not applied any of the security deposit.
8. All improvements or repairs required under the terms of the Lease to
be made by Seller through the date hereof have been satisfactorily completed.
All allowances and other payments due to Tenant by Seller (whether cash payments
or credits against the rent) under the terms of the Lease have been paid in
full.
The obligations of Seller are subject to Sections 7.2, 7.3, 8.2 and 16.15 of the
Agreement of Purchase and Sale dated as of November 15, 2004 made by and between
Seller and Purchaser. Any action, suit or proceeding with respect to the truth,
accuracy or completeness of the foregoing representations and warranties shall
be commenced, if at all, on or before the date which is nine (9) months after
the date hereof and, if not commenced on or before such date, thereafter such
representations and warranties shall be void and of no force or effect.
By its acceptance hereof, Purchaser hereby agrees that if, after the
date hereof, Seller delivers to Purchaser the original tenant estoppel
certificate from Tenant and such tenant estoppel certificate contains no
information which is contradictory to the information contained herein, then
Seller thereafter shall be released from all liability relating hereto and
Purchaser shall return this Certificate to Seller.
Dated: _________________, 2004
SCHEDULE J - PAGE 2 OF 2
SCHEDULE 1
ESCROW AGENT WIRE INSTRUCTIONS
WIRING INSTRUCTIONS
ACCOUNT STYLED: CHICAGO TITLE INSURANCE COMPANY
BANK: XX XXXXXX XXXXX BANK
0000 XXXX XXXXXX
XXXXXX, XXXXX
ACCOUNT NO: 08805033857
ABA NO: 000-000-000
PHONE ADVISE: XXXXX XXXXXX OR XXXXX XXXXXXX
(000) 000-0000 UPON RECEIPT
REF: GF#210400627 EPS; BRICKYARD, CT
-------------------------------
SCHEDULE 1 - PAGE 1 OF 1
SCHEDULE 7.1.3
PENDING LITIGATION
1. Marcin Rubajeczyk vs. Seller (slip and fall case) - date of loss 2/12/03
2. Xxxx Xxxxx vs. Seller (slip and fall case) - date of loss 9/15/03
3. Xxxxx Xxxxx vs. Seller (slip and fall case) - date of loss 4/20/02.
SCHEDULE 7.1.3 - PAGE 1 OF 1
SCHEDULE 7.1.11
SELLER'S ENVIRONMENTAL REPORTS
1. Environmental Site Assessment dated June 30, 1988 by TRC Environmental
Consultants addressed to Xx. Xxxxxxx Xxxxxxxxxxx of Xxxxxxx & Xxxxxxxx
2. Analysis of 2 water samples dated June 21, 1988 by Baron Consulting Co. to
Xx. Xxxx Xxxxxxx of TRC Envirnomental Consultants
3. Analysis of 2 water and 4 soil samples dated June 21, 1988 by Baron
Consulting Co. to Xx. Xxxx Xxxxxxx of TRC Environmental Consultants
4. Analysis of 3 soil samples dated June 23, 1988 by Baron Consulting Co. to Xx.
Xxxx Xxxxxxx of TRC Environmental Consultants
5. EP Toxicity Analysis dated June 30, 1988 by Baron Consulting Co. to Xx. Xxxx
Xxxxxxx of TRC Environmental Consultants
6. Phase I Environmental Due Diligence Assessments, The Brickyard Plaza, Berlin,
Connecticut dated September, 1992, prepared by ENSR Consulting and Engineering
SCHEDULE 7.1.11- PAGE 1 OF 1
SCHEDULE 16.20
POST-CLOSING 8-K AND AUDIT REQUIREMENTS
For the period of time commencing on the execution of the attached
Agreement of Sale and continuing through the first anniversary of the Closing
Date, Seller shall, from time to time, upon reasonable advance notice from
Purchaser, provide Purchaser and its representatives, agents and employees with
access to all financial and other information pertaining to the period of
Seller's ownership and operation of the Property, which information is relevant
and reasonable necessary, in the opinion of Cedar Income Fund, Ltd's ("Cedar")
outside, third party accountants (the "Accountants"), to enable Cedar and its
Accountants to prepare financial statements in compliance with any and or all of
(a) Rule 3-14 of Regulation S-X of the Securities and Exchange Commission (the
"Commission"); (b) any other rule issued by the Commission and applicable to
Cedar; and (c) any registration statement, report or disclosure statement filed
with the Commission by, or on behalf of, Cedar; provided however, that in any
such event(s), Purchaser shall reimburse Seller for those third party,
out-of-pocket costs and expenses that Seller incurs in order to comply with the
foregoing requirement. Seller acknowledges and agrees that the following is a
representative description of the information and documentation that Cedar and
the Accountants may require in order to comply with (a), (b), and (c) above.
Seller shall provide the following information, and documentation on a
per-building basis, if available (capitalized terms not defined herein shall
have the meanings as ascribed to such terms in the attached Agreement of Sale):
1. Rent rolls for the calendar month in which the closing occurs
and the eleven (11) calendar months immediately preceding the
calendar month in which the closing occurs;
2. Seller's written analysis of both (a) scheduled increases in
base rent required under the Leases in effect on the Closing
Date; and (b) rent concessions imposed by those Leases;
3. Seller's internally-prepared operating statements (for the
three year period prior to the Closing Date);
4. Access to Lease files;
5. Most currently available real estate tax bills;
6. Access to Seller's cash receipt journal(s) and bank statements
for the Property (for the three year period prior to the
Closing Date);
7. Seller's general ledger with respect to the Property,
excluding Seller's proprietary accounts (for the three year
period prior to the Closing Date);
SCHEDULE 16.20 - PAGE 1 OF 2
8. Seller's schedule of expense reimbursements required under the
Leases in effect on the Closing Date;
9. Schedule of those items of repairs and maintenance performed
by, or at the direction of the Seller, during Seller's final
fiscal year in which Seller owns and operates the Property
(the "Final Fiscal Year");
10. Schedule of those capital improvements and fixed assets
additions made by, or at the direction of, Seller during the
Final Fiscal Year;
11. Access to Seller's invoices with respect to expenditures made
during the Final Fiscal Year; and
12. Access (during normal and customary business hours) to
responsible personnel to answer accounting questions.
Nothing herein shall require Seller to conduct its own audits or
generate any requested materials that are not in its possession.
The provisions of the foregoing information shall be for informational
purposes only, shall not be deemed to be representations or warranties under
this Agreement, and shall not expose Seller to any liability on account thereof.
Upon Purchaser's request, for a period of one (1) year after Closing,
Seller shall make Seller's books, records, existing supporting invoices and
other existing substantiating documentation available to Purchaser for
inspection, copying, and audit by Purchaser's designated accountants, at the
expense of Purchaser. This obligation shall survive the Closing for a period of
one (1) year and shall not be merged with any instrument of conveyance delivered
at Closing.
SCHEDULE 16.20 - PAGE 2 OF 2
