<PAGE>
CONTRIBUTION AND SALE AGREEMENT
BETWEEN
THE PARTIES LISTED ON EXHIBIT A ATTACHED HERETO, AS SELLERS
AND
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., AS BUYER
DATED FEBRUARY 3, 2005
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TABLE OF CONTENTS
Page
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ARTICLE I:
Sale and Purchase.........................................2
ARTICLE II:
Consideration.............................................2
ARTICLE III:
Title Matters.............................................8
ARTICLE IV:
Closing Date.............................................10
ARTICLE V:
Debt Assumption; Buffalo Broad Release...................11
ARTICLE VI:
Representations and Warranties of Sellers................13
ARTICLE VII:
Representations and Warranties of CSCP...................20
ARTICLE VIII:
Conditions to Obligations of CSCP and Sellers............21
ARTICLE IX:
Obligations and Covenants of Sellers and CSCP............23
ARTICLE X:
Apportionments...........................................27
ARTICLE XI:
Closing Documents........................................31
ARTICLE XII:
Due Diligence Investigation; Right to Terminate..........36
ARTICLE XIII:
Tenant Estoppel Certificates.............................39
ARTICLE XIV:
Brokerage................................................40
ARTICLE XV:
Condemnation and Destruction.............................40
ARTICLE XVI:
Closing Costs............................................42
ARTICLE XVII:
Sellers' Defaults........................................43
ARTICLE XVIII: CSCP
Defaults............................................44
ARTICLE XIX:
Notices..................................................44
ARTICLE XX:
Development Properties...................................45
ARTICLE XXI:
Vacancies................................................48
ARTICLE XXII:
Purchase Options.........................................49
ARTICLE XXIII:
Subdivisions.............................................49
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Page
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ARTICLE XXIV:
Tenant Improvements......................................52
ARTICLE XXV:
Indemnification..........................................55
ARTICLE XXVI: Tax
Proceedings..........................................56
ARTICLE XXVII: Entire
Agreement.........................................56
ARTICLE XXVIII:
Amendments...............................................57
ARTICLE XXIX: Successors
and Assigns...................................57
ARTICLE XXX:
Governing Law; Jurisdiction..............................57
ARTICLE XXXI:
Business Days............................................57
ARTICLE XXXII:
Interpretation...........................................58
ARTICLE XXXIII: Third
Parties............................................58
ARTICLE XXXIV: Legal
Costs..............................................58
ARTICLE XXXV:
Counterparts.............................................58
ARTICLE XXXVI:
Effectiveness............................................58
ARTICLE XXXVII: No Implied
Waivers.......................................58
ARTICLE XXXVIII:
Unenforceability.........................................59
ARTICLE XXXIX: Waiver of
Trial by Jury..................................59
ARTICLE XL:
Press Releases; Confidentiality..........................59
ARTICLE XLI:
Ground Leases............................................59
ARTICLE XLII:
Exhibits.................................................60
ARTICLE XLIII: Powell
Ohio Dedication...................................60
ii
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Exhibits
Exhibit A Sellers
Exhibit B-1 Stabilized Premises
Exhibit B-2 Development Premises
Exhibit C Purchase Option
Rights
Exhibit D Trade Names
Exhibit E Allocation of
Consideration and Tax Basis of Stabilized Properties
Exhibit F-1 Stabilized Debt
Exhibit F-2 Development Debt
Exhibit G-1 Allocation of Stabilized Common
Unit Holders
Exhibit G-2 Allocation of Development Common
Unit Holders
Exhibit H-1 Sample Development Consideration
Calculation
Exhibit H-2 Sample Development &
Stabilized Lease Value Calculation
Exhibit I Escrow Agreement
Exhibit J Survey
Requirements
Exhibit K Rent Rolls
Exhibit L-1 Stabilized/Sleepys Holdback
Schedule (Construction in Progress)
Exhibit L-2 Stabilized Credit (Tenants in
Possession)
Exhibit M Outstanding Leasing
Commissions
Exhibit N Violations
Exhibit O Service Contracts
Exhibit P Existing Environmental
Reports
Exhibit Q One August Company
Vacant Space
Exhibit R Debt Documents and
Existing Defaults Thereunder
Exhibit S Development Permits
Not Yet Obtained
Exhibit T-1 List of Development Plans and
Specifications
Exhibit T-2 List of Development Contracts
Exhibit T-3 Development Schedules
Exhibit U-1 New York Deed
Exhibit U-2 Ohio Deed
Exhibit U-3 Connecticut Deed
Exhibit U-4 Pennsylvania Deed
Exhibit V Assignment of
Leases
Exhibit W Assignment of Service
Contracts
Exhibit X Bill of Sale
Exhibit Y FIRPTA
Exhibit Z Sellers'
Certificate
Exhibit AA Letter to Tenants
Exhibit BB-1 New York Non-Compete
Agreement
Exhibit BB-2 Ohio Non-Compete Agreement
Exhibit BB-3 Connecticut Non-Compete
Agreement
Exhibit BB-4 Pennsylvania Non-Compete
Agreement
Exhibit CC Terms of Property Management
Agreement
Exhibit DD Future Properties
Agreement
Exhibit EE Unit Holder Certificate
iii
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Exhibit FF CSCP's Certificate
Exhibit GG Tenant Estoppel Certificate
Form
Exhibit HH-1 Required Stabilized
Tenants
Exhibit HH-2 Required Development
Tenants
Exhibit II-1 Pending Litigations
Exhibit II-2 Pending Condemnation or
Eminent Domain Proceedings
Exhibit JJ Vacant Stabilized Spaces
Exhibit KK Tax Contest Proceedings
Exhibit LL Zoning Classifications for
Pennsylvania Properties
Exhibit MM Standard Lease Form
Exhibit NN-1 Lodi Subdivision
Exhibit NN-2 Gahanna Subdivision
Exhibit NN-3 Mason Subdivision
Exhibit OO Registration Rights
Agreement
Exhibit PP Side Agreement
Exhibit QQ-1 Ground Lease Terms
Exhibit QQ-2 Medina Ground Lease
Property
Exhibit QQ-3 Mason Ground Lease
Property
Exhibit QQ-4 Grove City Ground Lease
Property
Exhibit QQ-5 Geneseo Ground Lease
Property
Exhibit RR Conveyed Buffalo Broad
Property and Released Buffalo Broad Property
iv
<PAGE>
CONTRIBUTION AND SALE AGREEMENT
This CONTRIBUTION AND SALE AGREEMENT (this "Agreement") is made as
of
the 3rd day of February, 2005, by and
between the entities listed on EXHIBIT A
attached hereto and made a part hereof,
each having an office at 4835 Munson
Street N.W., Canton, Ohio 44718
(individually, a "Seller," and collectively, the
"Sellers"), and CEDAR SHOPPING CENTERS
PARTNERSHIP, L.P., a Delaware limited
partnership, having an office at 44 South
Bayles Avenue, Port Washington, New
York 11050 ("CSCP").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS:
A. Each Seller is the fee owner of the respective certain land
and
improvements thereon or to be constructed
thereon described opposite its name on
EXHIBIT B-1 attached hereto and made a part
hereof (collectively, the
"Stabilized Premises") and described
opposite its name on EXHIBIT B-2 attached
hereto and made a part hereof
(collectively, the "Development Premises"; and
together with the Stabilized Premises, the
"Premises"), together in each case
with (i) all easements, rights-of-way,
privileges, appurtenances and other
rights (including, without, limitation,
mineral, oil and gas and development
rights) pertaining to the Premises
(collectively, the "Appurtenant Rights"),
(ii) (a) all land owned by such Seller
lying in the bed of any street, road or
avenue opened or proposed, public or
private, in front of or adjoining the
Premises, (b) any award made or to be made
in lieu thereof, (c) any unpaid award
for damage to the Premises to which such
Seller shall be entitled by reason of
change of grade of any street and (d) any
strips and gores owned by such Seller
adjoining or adjacent to the Premises
(collectively, the "Additional Property
Rights"), (iii) all fixtures, machinery,
equipment, articles of personal
property and improvements in the nature of
personal property owned by such
Seller attached or appurtenant to, or
located on, or used in connection with the
use or operation of the Premises
(collectively, the "Personal Property"), (iv)
all copyrights, trademarks, service marks
and other marks and trade or business
names and domain names relating to the
ownership, use, and operation of the
Premises owned by such Seller, if any,
including, without limitation, the right,
if any, to the names set forth on EXHIBIT D
attached hereto and made a part
hereof, and any similar variations
(collectively, the "Trade Names"), (v) all
right, title and interest of such Seller in
and to the Leases (as hereinafter
defined) and the Service Contracts (as
hereinafter defined), and all security
and other deposits made under the Leases
and Service Contracts, (vi) all plans,
drawings, specifications, and surveys
relating to the Premises owned by such
Seller including, without limitation, the
Development Plans and Specifications
(as hereinafter defined) (the "Plans and
Specifications"), (vii) all guaranties
and warranties relating to the Premises
benefiting such Seller (the "Guaranties
and Warranties"), and (viii) the Permits
(as hereinafter defined) (the
Stabilized Premises together with the
Appurtenant Rights, the Additional
Property Rights, the Personal Property, the
Leases, the Service Contracts, the
Trade Names, the Plans and Specifications,
the Guaranties and Warranties, and
the Permits related thereto being
hereinafter collectively referred to as the
"Stabilized Property"; the Development
Premises together with the Appurtenant
Rights, the Additional Property Rights, the
Personal Property, the Leases, the
Service Contracts, the Trade Names, the
Plans and Specifications, the Guaranties
and Warranties, and the Permits related
thereto being hereinafter collectively
<PAGE>
referred to as the "Development Property";
and the Stabilized Property and the
Development Property being collectively
referred to herein as the "Property").
B. Sellers desire to sell the Property in exchange for the
Consideration (as hereinafter defined), and
to become limited partners in CSCP
on the terms and conditions hereinafter set
forth.
C. CSCP desires to purchase the Property in exchange for the
Consideration, and to admit the Unit
Holders (as hereinafter defined) as limited
partners in CSCP on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements
herein contained, the parties hereto agree
as follows:
ARTICLE I: Sale and Purchase. Each Seller
agrees to sell, assign and convey to
CSCP, and CSCP agrees to purchase from such
Seller, the Property owned by such
Seller, subject to the terms of this
Agreement.
ARTICLE II: Consideration.
(a) The consideration for the Stabilized Property (the
"Stabilized
Consideration") shall be the amount of
Ninety Million One Hundred Twenty-Nine
Thousand One Hundred Fifty-Two and 00/100
Dollars ($90,129,152.00). The parties
hereto acknowledge and agree that (i) the
Stabilized Consideration shall be
allocated among the Stabilized Properties,
as set forth on EXHIBIT E attached
hereto and made a part hereof, (ii) all of
the Stabilized Consideration shall be
allocated to the Stabilized Properties
exclusive of the Personal Property, and
(iii) no portion of the Stabilized
Consideration shall be allocated to the
Personal Property. The Stabilized
Consideration, as adjusted by the prorations
and credits specified herein, shall be
payable on the Stabilized Closing Date
(as hereinafter defined) by, subject to the
terms of Article V hereof:
(i) at CSCP's election, the assumption by CSCP of one or more
of the loans set forth on EXHIBIT F-1 attached hereto and made a
part
hereof (the loans to be assumed by CSCP, as elected by CSCP,
being
hereinafter referred to as the "Stabilized Assumable Debt");
(ii) a portion of the Stabilized Consideration in the amount
of One Million Nine Hundred Six Thousand Eight Hundred Sixty-Two
and
00/100 Dollars ($1,906,862.00), subject to adjustment based on
any
changes made to EXHIBIT L-1 in accordance with the terms of
this
Agreement prior to the Stabilized Closing Date (together with
all
interest thereon, and as the same may be reduced as expressly
provided
in the Stabilized Holdback Escrow Agreement (as hereinafter
defined),
the "Stabilized Holdback") shall be held by the Title Company
pursuant
to an escrow agreement (the "Stabilized Holdback Escrow Agreement")
in
a form mutually acceptable to the Title Company, Sellers and CSCP.
The
Stabilized Holdback shall be allocated among the premises leased to
the
Tenants set forth on EXHIBIT L-1 attached hereto and made a
part
hereof, as the same may be updated in accordance with this
Agreement as
of the Stabilized Closing Date, and the Stabilized Holdback
Escrow
Agreement shall provide that (A) until each such Tenant shall
take
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occupancy of its respective premises for the ordinary conduct
of
business and shall commence the payment of regularly scheduled
rent,
the monthly allocation of the portion of the Stabilized
Holdback
allocated to such Tenant shall be released to CSCP, on a monthly
basis,
in accordance with the schedule attached hereto as EXHIBIT L-1, as
the
same may be updated in accordance with this Agreement as of the
Stabilized Closing Date, (B) costs and expenses incurred by CSCP or
its
designee for completion of the TI Work pursuant to Section 4 of
Article
XXIV shall be released to CSCP from time to time upon request,
(C)
prior to the second (2nd) anniversary of the Stabilized Closing
Date,
upon each such Tenant taking occupancy of its premises for the
ordinary
conduct of business and commencing the payment of regularly
scheduled
rent, the balance of the Stabilized Holdback allocable to such
Tenant
shall be released to the applicable Sellers from the Stabilized
Holdback (or, at
Sellers' written election, which election shall be
made in writing at or prior to the Stabilized Closing Date, the
balance
of the Stabilized Holdback (or any portion thereof designated in
such
election) shall be released to CSCP, and CSCP shall cause the
issuance
of Common Units to the persons and/or entities (collectively,
"Persons") and in the allocations set forth in such election,
which
Common Units will be convertible on a one-for-one basis into
common
stock of Cedar (as hereinafter defined), will be individually
valued at
Stabilized Market Value (as hereinafter defined) and will have
an
aggregate value in an amount equal to the amount so elected and
released to CSCP) and (D) any portion of the Stabilized
Holdback
(together with any interest that shall have accrued thereon)
remaining
in escrow as of the second (2nd) anniversary of the Stabilized
Closing
Date shall, promptly following said second (2nd) anniversary,
be
released to CSCP;
(iii) a portion of the Stabilized Consideration in the amount
of One Million Three Hundred Fifty One Thousand and 00/100
Dollars
($1,351,000.00) (the "Sleepys Holdback") shall be held by CSCP
in
accordance with the terms of this subsection. With respect to
the
Sleepys Holdback, (A) until Sleepys shall take occupancy of its
premises located in New Milford, Connecticut for the ordinary
conduct
of business and shall commence the payment of regularly scheduled
rent,
the monthly allocation of the Sleepys Holdback shall be retained
by
CSCP (and Sellers shall no longer have any rights with respect
thereto), on a monthly basis, in accordance with the schedule
attached
hereto as EXHIBIT L-1, as the same may be updated in accordance
with
this Agreement as of the Stabilized Closing Date, (B) costs and
expenses incurred by CSCP or its designee for completion of the TI
Work
pursuant to Section 4 of Article XXIV shall be released to CSCP
from
time to time upon request, (C) prior to the second (2nd)
anniversary of
the Stabilized Closing Date, upon Sleepys taking occupancy of
its
premises at the Premises located in New Milford, Connecticut for
the
ordinary conduct of business and commencing the payment of
regularly
scheduled rent, the balance of the Sleepys Holdback shall be paid
to
the applicable Seller (or, at the applicable Seller's written
election,
which election shall be made in writing at or prior to the
Stabilized
Closing Date, the Sleepys Holdback (or any portion thereof
designated
in such
election) shall be retained by CSCP (and Sellers shall no
longer have any rights with respect thereto), and CSCP shall cause
the
issuance of Common Units to the Persons and in the allocations
set
forth in such election, which Common Units will be convertible on
a
one-for-one basis into common stock of Cedar, will be
individually
valued at Stabilized Market Value and will have an aggregate value
in
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an amount
equal to the amount so elected and released to CSCP) and (D)
any portion of the Sleepys Holdback remaining as of the second
(2nd)
anniversary of the Stabilized Closing Date shall be retained by
CSCP
(and Sellers shall no longer have any rights with respect thereto);
and
(iv) the balance of the Stabilized Consideration shall be paid
by (A) payment of cash in immediately available federal funds in
an
amount equal to the amount necessary to repay those loans set forth
on
EXHIBIT F-1 which CSCP shall elect not to assume pursuant to the
terms
of this Agreement (the "Stabilized Assumable Debt Cash
Consideration"),
(B) the issuance of common limited partnership units of CSCP
("Common
Units"), to the Persons (and in the allocation) as set forth on
EXHIBIT
G-1 attached hereto and made a part hereof (such Persons, the
"Stabilized Unit Holders"), which Common Units will be convertible
on a
one-for-one basis into common stock of Cedar Shopping Centers,
Inc., a
Maryland corporation ("Cedar"), will be individually valued at
Stabilized Market Value and will have an aggregate value in an
amount
equal to the Applicable Percentage (as hereinafter defined) of (1)
the
Stabilized Consideration, less (2) the Stabilized Assumable Debt,
less
(3) the Stabilized Assumable Debt Cash Consideration, less (4)
the
Stabilized Holdback, less (5) the Sleepys Holdback, and (C) if
the
Applicable Percentage shall be less than one hundred percent
(100%),
the payment of cash in immediately available funds in an amount
equal
to (1) the Stabilized Consideration, less (2) the Stabilized
Assumable
Debt, less (3) the Stabilized Assumable Debt Cash Consideration,
less
(4) the Stabilized Holdback, less (4) the Sleepys Holdback, less
(5)
the amount payable pursuant to clause (B) of this subparagraph
(iv).
(b) The
consideration for each Development Property (the
"Development Consideration"; together with
the Stabilized Consideration, the
"Consideration") shall be an amount
calculated as follows: (i) an eight percent
(8%) capitalization rate applied to the
Development Property Purchase Net
Operating Income (as hereinafter defined)
of said Development Property, less
(ii) free rent, leasing commissions and
tenant build-out costs in connection
with said Development Property. A sample
calculation of Development
Consideration is attached hereto as EXHIBIT
H-1. The parties hereto acknowledge
and agree that all of the Development
Consideration shall be allocated to the
Development Properties exclusive of the
Personal Property, and no portion of the
Development Consideration shall be
allocated to the Personal Property. The
Development Consideration for each
Development Property, as adjusted by the
prorations and credits specified herein,
shall be payable on each Development
Property Closing Date (as hereinafter
defined) by:
(i) with respect to the applicable Development Property, at
CSCP's election, the assumption by CSCP of one or more of the loans
set
forth on EXHIBIT F-2 attached hereto and made a part hereof (the
loans
to be
assumed by CSCP, as elected by CSCP, being hereinafter referred
to as the "Development Assumable Debt"; and together with the
Stabilized Assumable Debt, the "Assumable Debt"); and
(ii) the balance of the Development Consideration for each
Development Property (less the applicable Development Assumable
Debt,
if any) (the "Development Consideration Balance") shall be paid by
(A)
payment of cash in immediately available federal funds in an
amount
equal to the amount necessary to repay those loans set forth on
EXHIBIT
F-2 which CSCP shall elect not to assume pursuant to subparagraph
(i)
4
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of this clause (b) (the "Development Assumable Debt Cash
Consideration"), (B) subject to the terms of paragraph (c) below,
the
issuance of Common Units to the Persons (and in the allocation) as
set
forth on EXHIBIT G-2 attached hereto and made a part hereof
(such
Persons, the "Development Unit Holders") (the Stabilized Unit
Holders
and the Development Unit Holders being hereinafter collectively
referred to as the "Unit Holders"), which Common Units will be
convertible on a one-for-one basis into common stock of Cedar, will
be
individually valued at Development Market Value (as hereinafter
defined) and will have an aggregate value in an amount equal to
the
Applicable Percentage of the excess of the Development
Consideration
Balance over the Development Assumable Debt Cash Consideration, and
(C)
if the Applicable Percentage shall be less than one hundred
percent
(100%), the payment of cash in immediately available funds in an
amount
equal to (1) the Development Consideration, less (2) the
Development
Assumable Debt, less (3) the Development Assumable Debt Cash
Consideration, less (4) the amount payable pursuant to clause (B)
of
this subparagraph (ii).
(c) Notwithstanding anything to the contrary contained in
subparagraph (ii) of paragraph (b) above,
in no event shall the aggregate value
(as determined as of the date of issuance
of Common Units without regard to any
subsequent change in value) of the Common
Units issued pursuant to subparagraph
(ii) of paragraph (b) above, Article XX
below and Article XXI below (the
"Development/Vacancy Aggregate Common Unit
Value") exceed Twelve Million Five
Hundred Thousand and 00/100 Dollars
($12,500,000.00) (the "Maximum Common Unit
Value") without the prior written consent
of CSCP, which may be withheld in
CSCP's sole and absolute discretion, it
being agreed that if the Applicable
Percentage selected by Sellers shall result
in the Development/Vacancy Aggregate
Common Unit Value exceeding the Maximum
Common Unit Value, and CSCP shall not
consent thereto, then, in such case, the
amount of any such excess shall be paid
by CSCP in cash in immediately available
funds.
(d) As used in this Agreement, the following terms have the
following meanings:
(i) "Adjusted Gross Rent" shall mean the Gross Income, less
(A) a management fee equal to two percent (2%) of the Base Rent,
less
(B) a management fee equal to two percent (2%) of the
Recoveries.
(ii) "Applicable Percentage" shall mean (a) with respect to
the Applicable Percentage to be selected pursuant to subsection
(a)(ii),(iii) and (iv) of Article II, a percentage selected by
Sellers
at least five (5) Business Days prior to the Stabilized Closing
Date
but in no event less than fifty percent (50%), (b) with respect to
the
Applicable Percentage to be selected pursuant to subsection (b)(ii)
of
Article II, a percentage selected by Sellers at least five (5)
Business
Days prior to the Development Closing Date but in no event less
than
fifty percent (50%) unless the Development Market Value (without
regard
to clause (A) of the definition thereof) shall be less than $12.75,
in
which event the Applicable Percentage selected by Sellers pursuant
to
subsection (b)(ii) of Article II no later than five (5) Business
Days
prior to the Development Closing Date may be less than fifty
percent
(50%), (c) with respect to the Applicable Percentage to be
selected
pursuant to Section 5 of Article XX, a percentage selected by
Sellers
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<PAGE>
at
least five (5) Business Days prior to the date of payment
pursuant
to Section 5 of Article XX but in no event less than fifty
percent
(50%) unless the Development Earn-out Market Value (without regard
to
clause (A) of the definition thereof) shall be less than $12.75,
in
which event the Applicable Percentage selected by Sellers at least
five
(5) Business Days prior to the date of payment pursuant to Section
5 of
Article XX may be less than fifty percent (50%), and (d) with
respect
to the Applicable Percentage to be selected pursuant to Section 1
of
Article XXI, a percentage selected by Sellers at least five (5)
Business Days prior to the date of payment pursuant to Section 1
of
Article XXI but in no event less than fifty percent (50%) unless
the
Vacancy Market Value (without regard to clause (A) of the
definition
thereof) shall be less than $12.75, in which event the
Applicable
Percentage selected by Sellers at least five (5) Business Days
prior to
the date of payment pursuant to Section 1 of Article XXI may be
less
than fifty percent (50%). If the Seller shall fail to designate
the
Applicable Percentage by the dates designated above, the
Applicable
Percentage shall be deemed to be fifty percent (50%).
(iii) Development Earn-out Market Value" of a Common Unit
shall mean the average of the last sale prices of a share of
common
stock of Cedar on The New York Stock Exchange for the five (5)
consecutive trading days ended on the trading day immediately prior
to
the date of a payment pursuant to Section 5 of Article XX
below;
provided however, that (A) if the Development Earn-out Market
Value
shall be less than or equal to the Market Value Minimum, the
Market
Value Minimum shall be deemed to be the Development Earn-out
Market
Value, and (B) if the Development Earn-out Market Value shall
be
greater than or equal to the Market Value Maximum, the Market
Value
Maximum shall be deemed to be the Development Earn-out Market
Value.
(iv) "Development Lease Value" shall mean (A) an eight percent
(8%) capitalization rate applied to the Adjusted Gross Rent for
the
Vacant Development Space that is the subject of a Qualifying
Development Lease, less (B) free rent, leasing commissions and
tenant
build-out costs in connection with said Qualifying Development
Lease. A
sample calculation of Development Lease Value is attached hereto
as
EXHIBIT H-2.
(v) "Development Market Value" of a Common Unit shall mean the
average of the last sale prices of a share of common stock of Cedar
on
The New York Stock Exchange for the five (5) consecutive trading
days
ended on the trading day immediately prior to the applicable
Development Closing Date; provided however, that (A) if the
Development
Market Value shall be less than or equal to the Market Value
Minimum
(as hereinafter defined), the Market Value Minimum shall be deemed
to
be the Development Market Value, and (B) if the Development
Market
Value shall be greater than or equal to the Market Value Maximum
(as
hereinafter defined), the Market Value Maximum shall be deemed to
be
the Development Market Value.
(vi) "Development Property Purchase Net Operating Income"
shall mean, with respect to any Development Property, the
Effective
Gross Income of said Development Property, less (A) $2.50 per
square
foot per annum (representing "CAM" charges, real estate taxes
and
insurance charges) for all space, less (B) a management fee equal
to
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three and one-half percent (3.5%) of the Base Rent, less (C) a
management fee equal to two percent (2%) of the Recoveries.
(vii) "Effective Gross Income" shall mean the result obtained
when a three percent (3%) vacancy factor is applied to the Gross
Income
for each applicable Tenant (other than Discount Drug Mart and
national
credit tenants) that has taken occupancy and commenced the
ordinary
conduct of business and the regularly scheduled payments of rent in
the
Development Property.
(viii) "Gross Income" shall mean with respect to any Vacant
Stabilized Space, Vacant Development Space or Development Property,
the
sum of (A) the base rents for the first year of each applicable
Lease
term payable by each applicable Tenant that has taken occupancy
and
commenced the
ordinary conduct of business and the regularly scheduled
payments of rent in such Vacant Stabilized Space, Vacant
Development
Space or Development Property, as the case may be ("Base Rent"),
and
(B) an expense recovery of $2.50 per square foot (representing
"CAM"
charges, real estate taxes and insurance charges) for each
applicable
Tenant that has taken occupancy and commenced the ordinary conduct
of
business and the regularly scheduled payments of rent in such
Vacant
Stabilized Space, Vacant Development Space or Development Property,
as
the case may be ("Recoveries").
(ix) "Market Value Minimum" shall mean (A) during the first
Post-Closing Year, $12.75, and (B) during each Post-Closing
Year
thereafter, the greater of (I) $12.75 and (II) the excess of (x)
the
average of the last sale prices of a share of common stock of Cedar
on
The New York Stock Exchange for the five (5) consecutive trading
days
ended on the trading day immediately prior to the last day of
the
immediately preceding Post-Closing Year less (y) ten percent (10%)
of
the value determined pursuant to the immediately preceding clause
(x).
(x) "Market Value Maximum" shall mean (A) during the first
Post-Closing Year, $16.00, and (B) during each Post-Closing
Year
thereafter, the sum of (x) the average of the last sale prices of
a
share of common stock of Cedar on The New York Stock Exchange for
the
five (5) consecutive trading days ended on the trading day
immediately
prior to the last day of the immediately preceding Post-Closing
Year
plus (y) ten percent (10%) of the value determined pursuant to
the
immediately preceding clause (x).
(xi) "Post-Closing Year" shall mean each twelve (12) month
period commencing on the Stabilized Closing Date.
(xii) "Stabilized Lease Value" shall mean (A) an eight percent
(8%) capitalization rate applied to the Adjusted Gross Rent for
the
Vacant Stabilized Space that is the subject of a Qualifying
Stabilized
Lease, less (B) free rent, leasing commissions and tenant
build-out
costs in connection with said Qualifying Stabilized Lease. A
sample
calculation of Stabilized Lease Value is attached hereto as
EXHIBIT
H-2.
(xiii) "Stabilized Market Value" of a Common Unit shall mean
$13.53.
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(xiv) "Vacancy Market Value" of a Common Unit shall mean the
average of the last sale prices of a share of common stock of Cedar
on
The New York Stock Exchange for the five (5) consecutive trading
days
ended on the trading day immediately prior to the date of a
payment
pursuant to Section 1 of Article XXI below; provided however, that
(A)
if the Vacancy Market Value shall be less than or equal to the
Market
Value Minimum, the Market Value Minimum shall be deemed to be
the
Vacancy Market Value, and (B) if the Vacancy Market Value shall
be
greater than or equal to the Market Value Maximum, the Market
Value
Maximum shall be deemed to be the Vacancy Market Value.
2. Within two (2) Business Days (as hereinafter defined) after the
date
this Agreement is executed and delivered by
Sellers and CSCP, CSCP shall deposit
with LandAmerica (the "Title Company") at
Purchaser's option, either by wire
transfer of immediately available federal
funds to an account designated by the
Title Company (the "Escrow Account"), or by
check (subject to collection) to be
deposited into the Escrow Account, the sum
of Five Hundred Thousand Dollars
($500,000) (together with all interest
thereon, the "Required Deposit"), which
Required Deposit shall be held by the Title
Company pursuant to the escrow
agreement (the "Escrow Agreement") attached
hereto as EXHIBIT I and hereby made
a part hereof. McKinley Title Company shall
act as agent for the Title Company.
ARTICLE III: Title Matters.
1. Each Premises shall be sold and assigned and good, marketable
and
insurable title thereto shall be conveyed
subject only to the following
(hereinafter, the "Permitted
Exceptions"):
(a) any state of facts that an accurate survey may show, unless
objected to by CSCP pursuant to the terms
of this Agreement;
(b) all presently existing and future liens of real estate taxes
or
assessments and water rates, water meter
charges, water frontage charges and
sewer taxes, rents and charges, if any,
provided that such items are not yet due
and payable and are apportioned as provided
in this Agreement;
(c) recorded documents securing the Assumable Debt;
(d) rights of Tenants pursuant to the Leases, as tenants only;
and
(e) all exceptions that CSCP shall have agreed in writing to
waive
as an Unpermitted Exception (as hereinafter
defined).
2. As a condition to the Closing, the Title Company shall have
committed to insure (a) CSCP as the fee
owner of each of the Premises in an
amount designated by CSCP (but in no event
exceeding, in the aggregate, the
Consideration) by issuance of an ALTA
owner's title insurance policy for each of
the Premises on the 1970 (last revised
1984) form, subject only to the Permitted
Exceptions (each, an "Owner's Policy"), and
(b) each lender that is the holder
of Assumable Debt (each, an "Existing
Lender"), whether by the issuance of a
separate title insurance policy or by the
issuance of an endorsement to such
Existing Lender's existing mortgagee title
policy insuring the lien created by
the Assumable Debt held by such Existing
Lender, that as of the date of the
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recording of the Assumption Documents (as
hereinafter defined) applicable to
such Assumable Debt which are to be
recorded, the lien created by such Assumable
Debt is a valid first lien on the Premises
securing such Assumable Debt, subject
only to exceptions, liens and encumbrances
acceptable to such Existing Lender
(each, a "Lender's Policy").
3. Promptly following (i) with respect to the Stabilized
Properties,
the date this Agreement is executed and
delivered by CSCP and Sellers and (ii)
with respect to each Development Property,
Completion (as hereinafter defined)
of such Development Property, each Seller
shall order from the Title Company a
commitment for an owner's fee title
insurance policy or policies with respect to
the Premises owned by such Seller (each, a
"Title Commitment") and cause each of
the Title Commitments to be delivered to
CSCP and its attorneys. Promptly
following (1) with respect to the
Stabilized Properties, the date this Agreement
is executed and delivered by CSCP and
Sellers and (2) with respect to each
Development Property, Completion of such
Development Property, CSCP shall order
a survey of each of the Premises (or an
update of existing surveys) meeting the
requirements, and certified in accordance
with, the survey requirements attached
hereto as EXHIBIT J and, with respect to
each Development Property, showing the
improvements thereon as Completed (each, a
"Survey") and cause each of the
Surveys to be delivered to Sellers and
their attorneys. If any exceptions(s) to
title to the Premises should appear in any
Title Commitment or on any Survey
other than the Permitted Exceptions (such
exception(s) being herein called,
collectively, the "Unpermitted
Exceptions"), subject to which CSCP is unwilling
to accept title, and CSCP shall provide
Sellers with written notice (the "Title
Objection Notice") thereof by the date (the
"Objection Date") that shall (I)
with respect to the Stabilized Properties,
the later to occur of (A) ten (10)
Business Days after receipt of all of the
Title Commitments (and legible copies
of all documents referenced therein) and
Surveys by CSCP's attorneys, and (B)
the Designated Date, and (II) with respect
to each Development Property, ten
(10) Business Days after receipt of the
Title Commitment (and legible copies of
all document referenced therein) and the
Survey for such Development Property,
the Seller(s) of the applicable Premises
shall undertake to eliminate the same
subject to the terms and conditions of this
Article. CSCP hereby waives any
right CSCP may have to advance, as
objections to title or as grounds for CSCP's
refusal to close this transaction, any
Unpermitted Exception of which CSCP does
not notify Sellers by the Objection Date
pursuant to the Title Objection Notice
unless (i) such Unpermitted Exception was
first raised by the Title Company
subsequent to the date of the Title
Objection Notice, and (ii) CSCP shall notify
Sellers of the same within ten (10)
Business Days after the Title Company shall
notify CSCP of such Unpermitted Exception.
Sellers shall not under any
circumstance be required or obligated to
cause the cure or removal of any
Unpermitted Exception including, without
limitation, to bring any action or
proceeding, to make any payments or
otherwise to incur any expense in order to
eliminate any Unpermitted Exception;
provided, however, regardless of whether
objected to in a Title Objection Notice,
(x) the Seller of each Premises shall
satisfy (i) any mortgage or deed of trust
encumbering all or any portion of the
Premises owned by such Seller other than
the Assumable Debt and (ii) all other
monetary liens encumbering all or any
portion of the Premises owned by such
Seller and (y) the Seller of each Premises
shall exercise all reasonable efforts
(excluding the institution of any legal
proceedings) to cure any Unpermitted
Exceptions that shall render title
unmarketable or uninsurable or prohibit the
use of all or any portion the Premises
owned by such Seller for the purposes for
which the same is being presently used (or
with respect to the Development
Premises, for the purposes for which the
same are contemplated to be used).
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<PAGE>
4. Provided a Seller shall otherwise have complied with the terms
of
this Article, if such Seller is unable, or
elects not, to eliminate all
Unpermitted Exceptions (other than those
Unpermitted Exceptions which such
Seller shall be obligated to remove
pursuant to the terms of this Agreement) in
accordance with the provisions of this
Article, such Seller shall notify CSCP in
writing that it is unable, or elects not,
to remove the same, in which event
CSCP shall have the right, by delivery of
written notice to Sellers, either to
(i) remove the concerned Premises from the
Premises being conveyed pursuant to
this Agreement and receive a corresponding
reduction in the Consideration
(unless CSCP shall elect that more than
five (5) Stabilized Premises in the
aggregate be removed, regardless of the
reason for removal, pursuant to the
terms of this Agreement, including, without
limitation, pursuant to Article XII
hereof, in which case, CSCP shall have the
right to terminate this Agreement by
written notice delivered to Sellers (in
which event the Title Company shall
return the Required Deposit to CSCP and no
party hereto shall have any further
obligations in connection herewith except
under those provisions that expressly
survive a termination of this Agreement)),
or (ii) accept title to the Premises
subject to such Unpermitted Exception(s)
without an abatement in or credit
against the Consideration.
ARTICLE IV: Closing Date.
1. Subject to the provisions of Article V hereof, the closing of
the
transactions contemplated hereby (the
"Closing") shall take place (i) with
respect to the Stabilized Premises, at
10:00 A.M. on the date which is fifteen
(15) Business Days after the Designated
Date (the "Scheduled Stabilized Closing
Date"), and (ii) with respect to each
Development Property, at 10:00 A.M. on the
date (each, a "Scheduled Development
Closing Date") that shall be (x) with
respect to each Development Property for
which the Stabilization Date (as
hereinafter defined) shall have occurred on
or prior to the second (2nd)
anniversary of the Stabilized Closing Date
(the "Development Period Expiration
Date"), thirty (30) days after the
Stabilization Confirmation Date (as
hereinafter defined), and (y) with respect
to each Development Property for
which the Stabilization Date shall not have
occurred on or prior to the
Development Period Expiration Date, thirty
(30) days after the Development
Property Election Date (as hereinafter
defined), in any case at the offices of
Stroock & Stroock & Lavan LLP, 180
Maiden Lane, New York New York 10038 or
through an escrow in which the parties need
not be physically present but shall
deposit documents by overnight delivery or
courier and funds by wire transfer,
with the Title Company as escrow agent and
pursuant to escrow instructions
consistent with the terms of this Agreement
and otherwise mutually satisfactory
to Sellers and CSCP.
2. As used herein:
(a) the term "Stabilization Date" shall mean, with respect to
any
Development Property, the date following
Completion on which (i) at least eighty
percent (80%) of the rentable square
footage contained in said Development
Premises shall be subject to Leases entered
into in accordance with Article XX
hereof, (ii) the Tenants under said Leases
shall have taken occupancy and
commenced the ordinary conduct of business
and commenced paying regularly
scheduled rent thereunder, (iii) any
Tenants under said Leases that shall have a
conditional or unconditional right or
option to purchase or ground lease all or
any portion of the applicable Development
Property, including, without
limitation, a right of first refusal or
redemption, shall have delivered a
written waiver thereof consistent with the
terms of said Tenant's Lease, and
(iv) with respect to the Development
Property located in Gahanna, Ohio and owned
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<PAGE>
by One Springboro Company, LLC (the
"Gahanna Property"), the Gahanna Conditions
(as hereinafter defined) shall have been
satisfied (or waived by CSCP in its
sole and absolute discretion), and (v) with
respect to the Development Property
located in Mason, Ohio and owned by One
Mason Company, LLC (the "Mason
Property"), the Mason Conditions (as
hereinafter defined) shall have been
satisfied (or waived by CSCP in its sole
and absolute discretion).
(b) the term "Stabilized Closing Date" shall mean the date on
which
the Closing of the Stabilized Property
shall occur;
(c) the term "Development Closing Date" shall mean the date on
which
a Closing of a Development Property shall
occur; and
(d) the term "Closing Date" shall mean each Development Closing
Date
and the Stabilized Closing Date.
ARTICLE V: Debt Assumption; Buffalo Broad
Release.
1. Assumption by CSCP or its designee or nominee of all of the
loans
set forth on EXHIBITS F-1 AND F-2 shall be
a condition precedent to CSCP's
obligations under this Agreement. Sellers
shall use best efforts to satisfy all
conditions and to obtain all consents
necessary to permit at the Closing the
assumption by CSCP of all of the loans set
forth on EXHIBITS F-1 AND F-2 (the
"Debt Assumption") including the entering
into of appropriate assignment and
assumption agreements satisfactory to CSCP
in its sole and absolute discretion
and containing estoppel language confirming
the Debt Documents in effect, the
outstanding balance, the absence of
defaults, the amounts held in escrow and
such other matters as CSCP may reasonably
request (collectively, the "Assumption
Documents"); provided, however, that it is
expressly understood and agreed by
CSCP that no Seller shall have any
obligation to permit at the Closing the
assumption by CSCP of any loan unless such
assumption includes a release by the
concerned holder of such loan (an "Existing
Lender") of the concerned Seller and
any guarantors of such loan of all
obligations and liabilities with respect to
such loan arising from acts and/or
omissions occurring from and after the
assumption of such loan. Sellers shall keep
CSCP informed as to the status of
obtaining consent for the Debt Assumption
including, without limitation,
promptly providing CSCP with copies of all
material correspondence sent or
received in connection therewith. CSCP
shall cooperate with Sellers in
connection with the Debt Assumption and
shall be entitled to communicate
directly with the Existing Lenders in
connection with the Debt Assumption. Any
ancillary conditions imposed by Existing
Lenders on either CSCP or the concerned
Seller for the Debt Assumption shall be
satisfactory to CSCP and the concerned
Seller, respectively, in their sole and
absolute discretion. Sellers shall
promptly deliver to CSCP or Existing
Lenders, as the case may be, copies of all
materials requested by Existing Lenders in
connection with Existing Lenders'
consideration of the Debt Assumptions.
Sellers shall promptly execute and
deliver all documents and instruments
required in connection with the Debt
Assumptions. Either Sellers or CSCP shall
have (a) a one (1) time right to
extend the Scheduled Stabilized Closing
Date for up to thirty (30) additional
days if the conditions precedent to CSCP's
obligation to close set forth in this
Section 1 have not been satisfied prior to
the Scheduled Stabilized Closing Date
(exercisable by delivery of written notice
to the other parties hereto on or
prior to the Scheduled Stabilized Closing
Date), and (b) with respect to each
Development Property, a one (1) time right
to extend the Scheduled Development
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Closing Date for up to thirty (30)
additional days if the conditions precedent
to CSCP's obligation to close set forth in
this Section 1 have not been
satisfied prior to the Scheduled
Development Closing Date (exercisable by
delivery of written notice to the other
parties hereto on or prior to the
Scheduled Development Closing Date). In the
event that the conditions precedent
to CSCP's obligation to close set forth in
this Section 1 have not been
satisfied prior to (x) with respect to the
Stabilized Property, the Scheduled
Stabilized Closing Date (as the same may
have been extended pursuant to this
Section 1), CSCP shall have the right, at
its option, to (i) remove the
concerned Premises from the Premises being
conveyed pursuant to this Agreement
and receive a corresponding reduction in
the Consideration (unless CSCP shall
elect that more than five (5) Stabilized
Premises in the aggregate be removed,
regardless of the reason for removal,
pursuant to the terms of this Agreement,
including, without limitation, pursuant to
Article XII hereof, in which case
CSCP shall have the right to terminate this
Agreement by written notice
delivered to Sellers (in which event the
Title Company shall return the Required
Deposit to CSCP and no party hereto shall
have any further obligations in
connection herewith except under those
provisions that expressly survive a
termination of this Agreement)), or (ii)
pay the portion of the Stabilized
Consideration allocable to the applicable
Premises in cash or (iii) if the
amount of debt being assumed by CSCP in
connection with the Stabilized Premises
shall not exceed Forty Five Million Dollars
($45,000,000), further extend the
Scheduled Stabilized Closing Date for up to
an additional forty-five (45) days,
or (y) with respect to the Development
Property, the Scheduled Development
Closing Date (as the same may have been
extended pursuant to this Section 1),
CSCP shall have the right, at its option,
to (i) remove the concerned Premises
from the Premises being conveyed pursuant
to this Agreement and receive a
corresponding reduction in the
Consideration, or (ii) pay the portion of the
Development Consideration allocable to the
applicable Premises in cash. If CSCP
shall elect to further extend the Scheduled
Stabilized Closing Date for up to an
additional forty-five (45) days pursuant to
the terms of this Section and
following such additional period, the
conditions precedent to CSCP's obligation
to close set forth in this Section 1 have
not been satisfied, CSCP shall have
the right, at its option, to (i) remove the
concerned Premises from the Premises
being conveyed pursuant to this Agreement
and receive a corresponding reduction
in the Consideration (unless CSCP shall
elect that more than five (5) Stabilized
Premises in the aggregate be removed,
regardless of the reason for removal,
pursuant to the terms of this Agreement,
including, without limitation, pursuant
to Article XII hereof, in which case CSCP
shall have the right to terminate this
Agreement by written notice delivered to
Sellers (in which event the Title
Company shall return the Required Deposit
to CSCP and no party hereto shall have
any further obligations in connection
herewith except under those provisions
that expressly survive a termination of
this Agreement)), or (ii) pay the
portion of the Stabilized Consideration
allocable to the applicable Premises in
cash.
2. The parties acknowledge that a portion of the Stabilized
Property
located in Erie, Pennsylvania and owned by
Buffalo Broad Company, LLC consisting
of 1.624 acres and comprised of the
property shown on Exhibit RR and made a part
hereof (other than Lot "A") (the "Conveyed
Buffalo Broad Property") is intended
to be conveyed to CSCP, and the balance of
the Stabilized Property located in
Erie, Pennsylvania and owned by Buffalo
Broad Company, LLC consisting of 0.675
acres and shown as Lot "A" on Exhibit RR
attached hereto and made a part hereof
(the "Released Buffalo Broad Property") is
not intended to be conveyed to CSCP.
It shall be a condition precedent to CSCP's
obligations to close that the
Existing Lender holding a loan secured by a
mortgage covering the Conveyed
Buffalo Broad Property and the Released
Buffalo Broad Property issue a written
release (the "Buffalo Broad Release") in
recordable form satisfactory to the
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<PAGE>
Title Company and otherwise satisfactory to
CSCP releasing the Released Buffalo
Broad Property from the lien of said
mortgage and removing the Released Buffalo
Broad Property (and any references thereto)
from the other loan documents
evidencing, securing and/or relating to
said loan (and Seller shall use best
efforts to obtain the Buffalo Broad
Release). In the event that the conditions
precedent to CSCP's obligation to close set
forth in this Section 2 have not
been satisfied prior to the Scheduled
Stabilized Closing Date (as the same may
have been extended pursuant to this Article
V), CSCP shall have the right, at
its option, to remove the Conveyed Buffalo
Broad Property from the Premises
being conveyed pursuant to this Agreement
and receive a corresponding reduction
in the Consideration (unless CSCP shall
elect that more than five (5) Stabilized
Premises in the aggregate be removed,
regardless of the reason for removal,
pursuant to the terms of this Agreement,
including, without limitation, pursuant
to Article XII hereof, in which case CSCP
shall have the right to terminate this
Agreement by written notice delivered to
Sellers (in which event the Title
Company shall return the Required Deposit
to CSCP and no party hereto shall have
any further obligations in connection
herewith except under those provisions
that expressly survive a termination of
this Agreement)).
ARTICLE VI: Representations and Warranties
of Sellers.
1. Each Seller, severally, represents, warrants and agrees with
respect
to itself and its Property that:
(a) Each Seller is a limited liability company, duly organized
and
validly existing and in full force and
effect under the laws of the State of
Ohio and is authorized to transact business
in the State where the Property
owned by such Seller is located. Each
Seller has the power and authority to sell
and convey the Property and to execute the
documents referred to herein to be
executed by such Seller. Prior to the
Closing, each Seller shall have taken all
actions required for the consummation of
the transactions contemplated by this
Agreement. Except for the consent of the
applicable Existing Lender, no
approvals or consents by third parties or
Governmental Authorities are required
in order for Sellers to consummate the
transactions contemplated hereby. The
execution and delivery of this Agreement
and the performance by each Seller of
its obligations hereunder will not conflict
in any material respect with, or
result in a breach in any material respect
of, any of the terms, conditions and
provisions of any organizational documents
or other agreement binding upon such
Seller.
(b) Neither any Seller nor, to the knowledge of any Seller, any
of
its shareholders, members or partners, as
the case may be, has (i) made a
general assignment for the benefit of its
or their creditors, (ii) admitted in
writing its inability to pay its debts as
they mature, (iii) had an attachment,
execution or other judicial seizure of any
property interest which remains in
effect or (iv) become generally unable to
meet its financial obligations as they
accrue. There is not pending any case,
proceeding or other action seeking
reorganization, arrangement, adjustment,
liquidation, dissolution or
recomposition of any Seller or, to the
knowledge of any Seller, any of its
shareholders, members or partners, as the
case may be, or the debts of such
parties under any law relating to
bankruptcy, insolvency, reorganization or
relief of debtors or seeking appointment of
a receiver, trustee, custodian or
other similar official for it or any of its
shareholders, members or partners or
all or any substantial part of its or their
property.
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(c) Sellers own legal and beneficial title to the Personal
Property
free and clear of all security interests,
liens, mortgages, claims, charges,
pledges, restrictions, equitable interests,
restrictive covenants or
encumbrances of any nature, except liens
granted in connection with the loans
set forth on EXHIBITS F-1 AND F-2 and
matters disclosed in the Title
Commitments.
(d) No Person or entity (other than CSCP, Discount Drug Mart,
Levin
Furniture, McDonalds, Grinders & Such,
and Staples (collectively, the "Purchase
Option Tenants")), pursuant to the specific
rights (the "Purchase Options") and
with respect to the Properties (the
"Purchase Option Properties") described on
EXHIBIT C attached hereto and made a part
hereof has a conditional or
unconditional right or option to purchase
or ground lease all or any portion of
the Property, including, without
limitation, a right of first refusal or
redemption.
(e) There are and there shall be no agreements (written or oral)
in
the nature of space leases, licenses,
permits, franchises, concessions or
occupancy agreements or any amendments,
side letters, guaranties or other
documents related thereto, affecting the
Premises other than the leases set
forth in the rent rolls for the Premises
attached hereto as EXHIBIT K and made a
part hereof (each, a "Rent Roll") and the
leases entered into in accordance with
this Agreement (collectively, the
"Leases"). All information contained in the
Rent Rolls is true, correct and complete in
all material respects. True, correct
and complete copies of all Leases have been
delivered to CSCP and are described
in the Rent Rolls. Each of the Leases is in
full force and effect. Except as
otherwise shown on the Rent Rolls, all
rents for the Premises (as shown on the
Rent Rolls) are being paid and are current.
The security deposits (the "Security
Deposits") under the Leases for the
Premises, and whether such Security Deposits
are in the form of cash or a letter of
credit, are as set forth in the Rent
Rolls. No tenant under the Leases (each, a
"Tenant") has paid any rent, fees, or
other charges more than one month in
advance. Except as set forth in the Rent
Rolls, no Tenant is entitled to any free
rent, abatement of rent or similar
concession. A Seller is the landlord under
each of the Leases, and no Seller has
assigned, mortgaged, pledged, sublet,
hypothecated or otherwise encumbered any
of its rights or interests under any of the
Leases, except in connection with
the loans set forth on EXHIBITS F-1 AND
F-2. No Seller has any knowledge of any
subleases or assignments executed on the
part of any Tenant except for those
disclosed in the Rent Roll. No Tenant has
made any written claim against any
Seller for any Security Deposits or other
deposits (which has not been
satisfied), and no Tenant has any defense
or offset to rent accruing after the
Closing Date of which such Seller has
knowledge. No Seller has received any
written notice of any alleged default or
breach on the part of such Seller under
any Leases, that is or is allegedly
continuing, and no Seller has delivered any
notice of any alleged default or breach on
the part of any Tenant thereunder
that is or is allegedly continuing. To
Sellers' knowledge, neither any Seller
nor any Tenant is in default in any
material respect under any of the Leases.
(f) Except as set forth in EXHIBIT M attached hereto and made a
part
hereof, no brokerage commission or other
compensation is payable (or will, with
the passage of time or occurrence of any
event or both, be payable) with respect
to any Lease, including renewal or
expansion options. Except as set forth in
EXHIBIT M, there are no brokerage
agreements, finder's fee agreements or other
similar agreements with respect to the
Premises whereby any person shall be
entitled to any commission or finder's fee
with respect to any Lease, including
renewal or expansion options.
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(g) Except as set forth in EXHIBIT L-2 attached hereto and made
a
part hereof, all tenant improvements
required under the Leases to be performed
by the landlord thereunder have been
completed and paid for in full, and all
tenant allowances, move-in reimbursements
and other tenant inducement costs and
work required under the Leases have been
paid and performed in full, and such
Seller shall deliver at the Closing lien
waivers from all parties who have
furnished materials or supplies or
performed work or services with respect
thereto.
(h) Except as set forth in EXHIBIT N attached hereto and made a
part
hereof, Sellers have not received any notes
or written notices from any party
including, without limitation, any
Governmental Authority, that the Premises or
the current use, occupancy or condition
thereof violates any applicable laws,
ordinances, orders, rules, regulations,
requirements ("Laws") issued by any
federal, state, county, municipal or other
governmental or quasi-governmental
department, agency or authority having or
asserting jurisdiction over or
affecting any of the Premises (each, a
"Governmental Authority") relating to the
Premises (including, without limitation,
the Americans With Disabilities Act of
1990, as amended), the legal occupancy
thereof or the businesses conducted
thereon or applicable deed restrictions or
other covenants, restrictions or
agreements (including, without limitation,
any of the Permitted Exceptions),
site plan approvals, zoning or subdivision
regulations or urban redevelopment
plans applicable to the Premises, and, to
the best of Sellers' knowledge, (i)
the Premises and the current use,
occupation and condition thereof do not
violate in any material respect any such
Laws, deed restrictions or other
covenants, restrictions or agreements, site
plan approvals, zoning or
subdivision regulations or urban
redevelopment plans, and (ii) the contemplated
use, occupation and condition of the
Development Premises upon completion of the
Development Work (as hereinafter defined)
will not violate in any material
respect any such Laws, deed restrictions or
other covenants, restrictions or
agreements, site plan approvals, zoning or
subdivision regulations or urban
redevelopment plans. The parking facilities
at the Premises contain a sufficient
number of striped parking spaces to comply
with all Laws and with all parking
commitments made by any Seller under the
Leases and any other documents
affecting the Premises.
(i) All certificates of occupancy, licenses, certificates and
permits issued by any Governmental
Authority or any board of fire underwriters
or real estate board or similar
organization or institution necessary for the
operation of the Premises as currently
conducted (collectively, the "Permits")
are in full force and effect, and are
transferable with the Premises to CSCP
without charge. No written notice has been
received by any Seller that the
Permits have been revoked or challenged. To
Seller's knowledge, no default has
occurred in the due observance of any
condition to any Permit, nor is there
lacking any Permit needed in connection
with the ownership (in contradistinction
to the development) or, if the Premises is
a Stabilized Premises, operation of
the Premises.
(j) Except as set forth on EXHIBIT II-1 attached hereto and made
a
part hereof (the "Pending Litigations"),
there is no litigation, action or
proceeding (zoning, environmental or
otherwise) or governmental investigation
pending, or, to the best of Sellers'
knowledge, threatened against, or relating
to, the Premises, or the transactions
contemplated by this Agreement. Except as
set forth on EXHIBIT II-2 attached hereto
and made a part hereof (the "Pending
Road Widening"), there are no pending, or
to Sellers' knowledge, threatened,
condemnation or eminent domain proceedings
relating to or affecting the Premises
15
<PAGE>
or reduction or elimination of any utility
service to the Premises. No
proceedings for the correction of the
assessed valuation of the Premises have
been filed and are pending. Sellers do not
have knowledge of any Federal, State,
County, municipal or other governmental
plans to change the highway or road
system in the vicinity of the Premises or
to restrict or change access from any
such highway or road to the Premises.
(k) There are no union or employment contracts or agreements
(written or oral) affecting the Premises
and there are no employees of any
Seller, at the Premises or otherwise, who,
by reason of any Law, or by reason of
any union or other employment contract,
written or otherwise, or any other
reason whatsoever, would become employees
of CSCP as a result of the purchase of
the Premises by CSCP. CSCP will not be
responsible for any obligations with
respect to any persons employed at the
Premises, whether under the WARN Act or
otherwise, by virtue of CSCP's acquisition
of the Property, and by the execution
of this Agreement, CSCP is neither
expressly nor implicitly assuming any
liability, obligation, cost or expense
whatsoever with respect to any employment
contract, employee benefit plan or
arrangement, employment policy or practice,
collective bargaining agreement, union
contract, employment related claims
whether based on statute, common law, tort
or otherwise or any other liability
relating in any way to employees.
(l) There are no service or maintenance contracts or management
agreements (written or oral) relating to
the Premises other than (i) the
Development Contracts, (ii) service or
maintenance contracts entered into in
accordance with the terms of this
Agreement, and (iii) those agreements set
forth in EXHIBIT O attached hereto and made
a part hereof (such contracts and
agreements being hereinafter collectively
referred to as the "Service
Contracts"), and true, correct and complete
copies of all of the Service
Contracts have been delivered to CSCP. Each
of the Service Contracts is in full
force and effect, and no Seller has given
or received any written notices of
default thereunder, and neither any Seller,
nor to the best of any Seller's
knowledge, any of the other parties thereto
is in default in any material
respect of any of its obligations
thereunder. As of the Closing Date, all
management agreements with respect to the
Premises shall have been terminated
and all sums due thereunder shall have been
paid by such Seller.
(m) The operating statements relating to the Premises for the
calendar years ended December 31, 2003, and
December 31, 2004 and for the period
from January 1, 2005 through the last day
of the month immediately prior to the
date of this Agreement, copies of which
shall be delivered to CSCP pursuant to
the terms of this Agreement, are true,
correct and complete in all material
respects and do not contain untrue
statements of any material facts or omit to
state a material fact necessary to make the
information contained therein not
misleading.
(n)
Attached hereto as EXHIBIT P is a schedule of Sellers' existing
environmental reports (the "Existing
Environmental Reports"), true, correct and
complete copies of which were provided by
Sellers to CSCP.
(o) (i) Except as expressly set forth in the Environmental
Reports
(as hereinafter defined), and except for
visual evidence of possible mold
growing in a currently vacant space in One
August Company, which vacant space is
more particularly described on EXHIBIT Q
attached hereto and made a part hereof,
16
<PAGE>
to each Seller's knowledge, there have
never been any Hazardous Materials used,
handled, manufactured, generated, produced,
stored, treated, processed,
transferred, or disposed of in, at or on
the Premises, except in compliance with
all applicable Laws, and there are no
underground storage tanks at the Premises
and (ii) no Seller has received written
notice from any person or entity of any
violation of any Environmental Laws or the
presence of Hazardous Materials at
the Premises. For purposes of this
Agreement (x) the term "Hazardous Materials"
shall mean (a) any toxic substance or
hazardous waste, hazardous substance or
related hazardous material, mold, fungi, or
any pollutant or contaminant; (b)
radon gas, asbestos in any form which is or
could become friable, urea
formaldehyde foam insulation, transformers
or other equipment which contain
dielectric fluid containing levels of
polychlorinated biphenyls in excess of
presently existing federal, state or local
safety guidelines, whichever are more
stringent; (c) any substance, gas material
or chemical which is defined as or
included in the definition of "hazardous
substances," "toxic substances,"
"hazardous materials," "hazardous wastes"
or words of similar import under any
Law or under the regulations adopted or
guidelines promulgated pursuant thereto,
including, but not limited to, the
Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as
amended, 42 U.S.C. ss.9061 et seq.;
the Hazardous Materials Transportation Act,
as amended, 49 U.S.C. ss.1801, et
seq.; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. ss.6901,
et seq.; the Federal Water Pollution
Control Act, as amended, 33 U.S.C. ss.1251,
et seq.; and (d) any other chemical,
material, gas, or substance, the exposure
to or release of which is prohibited,
limited or regulated by any governmental
or quasi-governmental entity or authority
that has jurisdiction over the
Premises or the operations or activity at
the Premises, (y) the term
"Environmental Laws" means all presently
existing applicable statutes,
regulations, rules, ordinances, codes,
licenses, permits, orders, and similar
items, of or with any and all governmental
agencies, departments, commissions,
boards, bureaus or instrumentalities of the
United States, states and political
subdivisions thereof and all applicable
judicial and administrative and
regulatory decrees, judgments and orders
relating to the protection of human
health or the environment, and (z) the term
"Environmental Reports" means (A) as
of the date hereof, the Existing
Environmental Reports, and (B) as of the
Closing Date, the Updated Environmental
Reports (as hereinafter defined).
(p) Attached hereto and made a part hereof as EXHIBIT R, is a
true,
correct and complete list of all of the
documents in such Seller's possession or
control relating to, securing or evidencing
the loans set forth on EXHIBITS F-1
AND F-2 that have been executed by a Seller
or any guarantor or indemnitor of a
Seller's obligations thereunder, including
any and all amendments and
supplements thereto (collectively, the
"Debt Documents"). Sellers have delivered
to CSCP true, correct and complete copies
of all of the Debt Documents. The Debt
Documents are in full force and effect.
Except as set forth EXHIBIT R, to
Sellers' knowledge, no Seller is in default
in any respect under the Debt
Documents. Except as set forth EXHIBIT R,
no Seller has received any written
notice that it is in default under the Debt
Documents. EXHIBIT F-1 attached
hereto and made a part hereof sets forth,
with respect to each Stabilized
Property, (i) the outstanding principal
balance as of January 25, 2005 (unless
otherwise expressly noted), (ii) the
interest rate, (iii) the maturity date, and
(iv) the amounts of all reserves as of
January 25, 2005 (unless otherwise
expressly noted). EXHIBIT F-2 attached
hereto and made a part hereof sets forth,
with respect to each Development Property,
(A) the outstanding principal balance
as of January 25, 2005 (unless otherwise
expressly noted), (B) the interest
rate, (C) the maturity date, and (D) the
amounts of all reserves as of January
25, 2005 (unless otherwise expressly
noted).
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<PAGE>
(q) No Seller has made any commitments to or agreements with
any
Governmental Authority affecting the
Property which are binding upon CSCP or the
Property and have not been disclosed to
CSCP and, to the best of Seller's
knowledge, the Property is not bound by any
written commitments or agreements,
binding upon CSCP or the Property made by
any prior owner of the Premises,
except for the Permitted Exceptions, to the
extent applicable, with any
Governmental Authority.
(r) With respect to the Development Work:
(i) Except as set forth on EXHIBIT S attached hereto and made
a part hereof, Sellers have obtained all governmental permits,
licenses, consents, certificates and approvals which are necessary
in
connection with the construction of the improvements on the
Development
Premises in accordance with the Development Plans and
Specifications.
Sellers have no reason to believe that the permits, licenses,
consents,
certificates or other approvals listed on EXHIBIT S will not be
issued
as a matter of right in due course without unreasonable delay;
(ii) Sellers are not aware of any fact or circumstance that
would prevent the development, ownership and/or operation of
the
Development Premises as shopping centers in accordance with the
Development Plans and Specifications and the Development Schedules
(as
hereinafter defined);
(iii) Attached hereto and made a part hereof as EXHIBIT T-1,
T-2 AND T-3, respectively, are true, correct and complete lists of
(i)
all of the plans and specifications for the Development Work
(the
"Development Plans and Specifications"), (ii) all of the
material
contracts and agreements for the performance of the Development
Work
(the "Development Contracts") and (iii) the project schedules for
the
Development Work (the "Development Schedules"). Sellers have
provided
to CSCP true,
correct and complete copies of the Development Plans and
Specifications, the Development Contracts, and the Development
Schedules. Each of the Development Contracts is in full force
and
effect, and no Seller has given or received any written notices
of
default thereunder, and neither any Seller, nor to the best of
any
Seller's knowledge, any of the other parties thereto is in default
in
any material respect of any of its obligations thereunder. The
Development Plans and Specifications have been approved by all
parties
whose approval is required (including, without limitation, all
lenders
provided financing with respect thereto). To Sellers' knowledge,
the
Development
Plans and Specifications comply in all material respects
with all Laws; and
(iv) the Development Work is being performed expeditiously,
lien free, in a good and workmanlike manner, in accordance in
all
material respects with all Laws and the Permitted Encumbrances, and
in
accordance with the Development Schedules.
(s) EXHIBIT E attached hereto sets forth the tax basis of each
of
the Stabilized Properties, broken down with
respect to land, building, site
improvements and personal property, as of
December 31, 2004 (excepting costs
incurred for the calendar year 2004).
18
<PAGE>
(t) Neither Sellers, nor any member, partner or shareholder of
any
Seller, nor, to Sellers' knowledge, any
Person with actual authority to direct
the actions of any member, partner or
shareholder of any Seller, nor, to
Sellers' knowledge, any other Persons
holding any legal or beneficial interest
whatsoever in any Seller, (i) are named on
any list of Persons and governments
issued by the Office of Foreign Assets
Control of the United States Department
of the Treasury ("OFAC") pursuant to
Executive Order 13224 - Blocking Property
and Prohibiting Transactions with Persons
Who Commit, Threaten to Commit, or
Support Terrorism ("Executive Order
13224"), as in effect on the date hereof, or
any similar list known to any Seller or
publicly issued by OFAC or any other
department or agency of the United States
of America (collectively, the "OFAC
Lists"), (ii) are included in, owned by,
controlled by, knowingly acting for or
on behalf of, knowingly providing
assistance, support, sponsorship, or services
of any kind to, or otherwise knowingly
associated with any of the Persons
referred to or described in the OFAC Lists,
or (iii) has knowingly conducted
business with or knowingly engaged in any
transaction with any Person named on
any of the OFAC Lists or any Person
included in, owned by, controlled by, acting
for or on behalf of, providing assistance,
support, sponsorship, or services of
any kind to, or, to Sellers' knowledge,
otherwise associated with any of the
Persons referred to or described in the
OFAC Lists.
(u) The estimated costs (as of January 15, 2005) to complete the
TI
Work (as hereinafter defined) and the dates
by which the TI Work must be
completed pursuant to the applicable Lease
(each, a "Scheduled TI Completion
Date") are as set forth on EXHIBIT L-1
attached hereto and made a part hereof.
(v) To Sellers' knowledge, the zoning classification of each of
the
Pennsylvania Properties is as set forth on
EXHIBIT LL, and the current use of
the Premises is a lawful use under such
classification.
(w) No Connecticut Property is an "establishment" as such term
is
defined in the Connecticut Transfer Act,
Connecticut General Statutes Sections
22a-134 to 22-a-134e as amended by Public
Act 01-204.
(x) The amount required to be reimbursed by NovaCare to the
Pickerington Seller (as hereinafter
defined) on account of the tenant
improvement work for the NovaCare space is
estimated as of the date of this
Agreement to be $86,280.
(y) The amount required to be reimbursed by Discount Drug Mart
to
the Dover Seller (as hereinafter defined)
on account of the tenant improvement
work for the Discount Drug Mart drive-thru
as of the date of receipt of the
payment due on January 1, 2005 (which
payment has been received) is $58,987.41,
which is payable in equal monthly
installments of $2,564.67 through and
including December 1, 2006.
2. All of the representations and warranties of each Seller set
forth
in this Agreement and any Exhibit attached
hereto, or in any letter or
certificate furnished to CSCP pursuant to
the terms hereof, each of which is
incorporated herein by reference and made a
part hereof, shall be true, correct
and complete upon the execution of this
Agreement, shall be deemed to be
repeated at and as of each Closing Date,
and, except for representations and
warranties made as of a specific time,
shall be true, correct and complete as of
each Closing Date. With respect to any
representations and warranties made as of
19
<PAGE>
a specific time, including, without
limitation, any information contained in
exhibits attached hereto, Sellers shall
update said exhibits as of the Closing
Date (said exhibits, the "Updated
Exhibits"); provided, however, that EXHIBIT E
with respect to the Stabilized Properties
shall only be updated to reflect the
tax basis of each of the Stabilized
Properties, broken down with respect to
land, building, site improvements and
personal property, as of December 31,
2004, taking into account all costs
incurred and depreciation taken for the
calendar year 2004.
3. The representations, warranties and agreements set forth in
this
Article shall, with respect to each Seller
and the applicable Premises, survive
the applicable Closing for a period of one
(1) year, unless a claim shall be
made within such one (1) year period in
which event the representations,
warranties and agreements shall survive the
applicable Closing until resolution
of all such claims.
4. The qualifications "Seller's knowledge" and "best of
Seller's
knowledge" and similar words shall mean the
actual knowledge (as of the date
hereof and such future dates, when,
according to this Agreement, any
representation and warranty to which such
qualification applies is to be true
and correct) of Harry W. Giltz, II, Harry
W. Giltz, III, Dan Giltz, Grant Giltz
and Dave Thomas (collectively, the
"Knowledge Parties"); provided, however, that
the Knowledge Parties shall be deemed to
have actual knowledge of (i) any
matters set forth in written correspondence
or notices addressed to any Seller
(or any affiliate thereof) or any Knowledge
Party and (ii) any matters contained
in the files of any Seller (or any
affiliate thereof) or any Knowledge Party. If
any of the representations and warranties
contained in this Agreement that are
qualified with "Seller's knowledge" or
words of similar import would have been
untrue or incorrect in any material respect
had they not been so qualified,
then, notwithstanding anything to the
contrary contained in this Agreement, CSCP
shall have the right, exercisable by
delivery of written notice to Sellers, to
remove the concerned Premises from the
Premises being conveyed pursuant to this
Agreement and receive a corresponding
reduction in the Consideration (unless
CSCP shall elect that more than five (5)
Stabilized Premises in the aggregate be
removed, regardless of the reason for
removal, pursuant to the terms of this
Agreement, including, without limitation,
pursuant to Article XII hereof, in
which case CSCP shall have the right to
terminate this Agreement by written
notice delivered to Sellers (in which event
the Title Company shall return the
Required Deposit to CSCP and no party
hereto shall have any further obligations
in connection herewith except under those
provisions that expressly survive a
termination of this Agreement)).
5. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN THE
DOCUMENTS
AND INSTRUMENTS EXECUTED IN CONNECTION
WITH, OR PURSUANT TO, THIS AGREEMENT,
EACH SELLER HAS MADE NO, AND HEREBY
DISCLAIMS ANY, REPRESENTATIONS AND
WARRANTIES RESPECTING THE PROPERTY, AND,
EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN THE DOCUMENTS AND
INSTRUMENTS EXECUTED IN CONNECTION WITH, OR
PURSUANT TO, THIS AGREEMENT, CSCP SHALL
ACCEPT THE PROPERTY IN ITS "AS IS"
CONDITION, AND WITHOUT ANY REPRESENTATION
OR WARRANTY OF ANY KIND.
ARTICLE VII: Representations and Warranties of CSCP.
20
<PAGE>
1. CSCP represents, warrants and agrees that:
(a) (i) CSCP is a limited partnership duly organized, validly
existing and in good standing under the
laws of the State of Delaware; (ii) CSCP
has the power and authority to purchase the
Property and to execute the
documents referred to herein to be executed
by CSCP; (iii) prior to the Closing,
CSCP shall have taken all partnership
actions required for the consummation of
the transactions contemplated by this
Agreement; and (iv) except for the consent
of the Existing Lenders, no approvals or
consents by third parties or
Governmental Authorities are required in
order for CSCP to consummate the
transactions contemplated hereby. The
execution and delivery of this Agreement
and the performance by CSCP of its
obligations hereunder will not conflict with,
or result in a breach of, any of the terms,
conditions and provisions of any
charter, articles of incorporation, bylaws
or operating agreement binding upon
CSCP or any of its constituent
entities.
(b) Neither CSCP nor its general partner, as the case may be,
has
(i) made a general assignment for the
benefit of its creditors, (ii) admitted in
writing its inability to pay its debts as
they mature, (iii) had an attachment,
execution or other judicial seizure of any
property interest which remains in
effect or (iv) become generally unable to
meet its financial obligations as they
accrue. There is not pending any case,
proceeding or other action seeking
reorganization, arrangement, adjustment,
liquidation, dissolution or
recomposition of CSCP or its general
partner, as the case may be, or the debts
of such parties under any law relating to
bankruptcy, insolvency, reorganization
or relief of debtors or seeking appointment
of a receiver, trustee, custodian or
other similar official for it or its
general partner or all or any substantial
part of its or their property.
(c) The Common Units to be issued pursuant to this Agreement,
when
so issued, will be duly and validly
authorized and issued, fully paid and
nonassessable and will be free and clear of
any liens (other than liens created
by Sellers and/or Unit Holders and
restrictions arising under the Securities Act
and state securities laws).
(d) The Limited Partnership Agreement of CSCP dated as of June
25,
1998, as amended by Amendment Nos. 1 and 2
thereto (collectively, the "CSCP
Partnership Agreement") delivered to
Sellers is a true, correct and complete
copy thereof, is in full force and effect,
and has not been further amended or
modified as of the date hereof.
2. All of the representations and warranties of CSCP set forth in
this
Agreement shall be true, correct and
complete upon the execution of this
Agreement, shall be deemed to be repeated
at and as of each Closing Date, and,
except for representations and warranties
made as of a specific time, shall be
true, correct and complete as of each
Closing Date, and all of the
representations, warranties and agreements
set forth in this Article shall
survive each Closing for a period of one
(1) year, unless a claim shall be made
within such one (1) year period in which
event the representations, warranties
and agreements shall survive such Closing
until resolution of all such claims.
ARTICLE VIII: Conditions to Obligations of
CSCP and Sellers.
1. Without limiting any of the rights of CSCP elsewhere provided
for in
21
<PAGE>
this Agreement, it is agreed that the
obligations of CSCP under this Agreement
shall be subject to the satisfaction of the
following conditions precedent:
(a) The truth and accuracy, as of the Closing Date, of all of
the
representations and warranties and
agreements of Sellers contained in this
Agreement (except for those representations
and warranties expressly made as of
a specific date);
(b) The delivery to CSCP of all documents and other items
referred
to in Section 1 of Article XI hereof;
(c) The agreement by the Title Company to issue each Owner's
Policy
and each Lender's Policy;
(d) The absence of any litigation with respect to the
transactions
contemplated by this Agreement;
(e) The approval by Existing Lenders of the Debt Assumption,
the
approval by CSCP of the Assumption
Documents and any ancillary conditions
imposed by the Existing Lenders for the
Debt Assumption, the Debt Documents
being in full force and effect without any
defaults thereunder, and the
assumption by CSCP of the Assumable
Debt;
(f) Receipt of the Required Tenant Estoppels (as hereinafter
defined);
(g) Receipt of the Existing Environmental Reports, as updated
and
certified to CSCP by the preparer thereof
and otherwise reasonably satisfactory
to CSCP;
(h) Receipt of financial statements for the Property in
Sellers'
possession; and
(i) Any other condition precedent to the obligations of CSCP
expressly provided in this Agreement.
2. Without limiting any of the rights of Sellers elsewhere provided
for
in this Agreement, it is agreed that the
obligations of Sellers under this
Agreement shall be subject to the
satisfaction of the following conditions
precedent:
(a) The truth and accuracy, as of the Closing Date, of all of
the
representations and warranties of CSCP
contained in this Agreement (except for
those representations and warranties
expressly made as of a specific date);
(b) The delivery to Sellers of all documents and other items
referred to in Section 2 of Article XI
hereof;
(c) The absence of any litigation with respect to the
transactions
contemplated by this Agreement; and
(d) with respect to any Debt Assumption, a release by the
concerned
Existing Lender of the concerned Seller and
any guarantors of such Assumable
Debt of all obligations and liabilities
with respect to such Assumable Debt
arising from acts and/or omissions
occurring from and after the assumption of
such Assumable Debt.
22
<PAGE>
ARTICLE IX: Obligations and Covenants of
Sellers and CSCP.
1. From the date of this Agreement to each Closing Date, each
Seller
shall, on a several basis, at its sole cost
and expense:
(a) Keep CSCP informed as to the ongoing operations at the
Premises,
the performance of the Development Work and
all material developments with
respect to the Property including, without
limitation, providing CSCP with (i)
prompt notice of all new Leases and Service
Contracts or modifications to
existing Leases and Service Contracts
entered into in accordance with the terms
of this Agreement (together with copies
thereof), (ii) copies of all material
correspondence received or delivered with
respect to the Property (including
default notices under the Leases and
Service Contracts and Development
Contracts), promptly following receipt or
delivery and (iii) notice of any
breach of the representations and
warranties of Sellers contained in this
Agreement promptly following a Seller
becoming aware of any such breach;
(b) Maintain and operate each Property in substantially the
same
condition and manner as the Property is now
maintained and operated (CSCP's
acquisition of such Property shall be
conclusive evidence of Sellers' compliance
with this covenant);
(c) Maintain insurance coverage for the Premises in accordance
with
the current
insurance coverage;
(d) Maintain all Leases (other than those Leases which by their
terms shall terminate before such Closing
Date) in full force and effect, timely
make and observe and perform all
obligations to be paid, observed or performed
by Sellers thereunder and enforce the
obligations of the Tenants thereunder;
(e) Promptly deliver notice to CSCP of, and, if the same may
adversely affect CSCP or the Premises,
defend, all actions, suits, claims and
other proceedings affecting the Premises,
or the use, possession or occupancy
thereof;
(f) Promptly deliver notice to CSCP of any actual or threatened
condemnation of the Premises or any portion
thereof;
(g) Maintain all Permits in full force and effect and promptly
deliver notice to CSCP of any intention of
Sellers to seek any new Permit;
(h) Maintain all Service Contracts in full force and effect,
timely
make all payments and observe and perform
all obligations to be paid, observed
or performed by Sellers thereunder;
(i) Comply in all material respects with all obligations under
the
Debt Documents;
(j) Terminate, at or prior to Closing, all management and
leasing
agreements with respect to the Premises
and, if there are any third party
property managers for the Premises, obtain
a final lien waiver from each such
23
<PAGE>
property manager, and a termination of each
such management agreement, effective
as of the Closing Date;
(k) Terminate, at or prior to Closing, all Service Contracts
which
may be terminated by Sellers in accordance
with their terms that CSCP shall
request in writing be terminated;
(l) Promptly make available to CSCP any and all documents
relating
to the Property, make its personnel
available to CSCP at all reasonable times,
and cooperate in all respects with CSCP in
connection with (i) CSCP's due
diligence investigation of the Property,
its review and verification of
financial information relating thereto and
CSCP's development of projections
with respect thereto, and (ii) the
consummation of the transactions set forth in
this Agreement;
(m) Promptly deliver to CSCP copies of any notices of violation
of
Law relating to the Premises, any
Environmental Law applicable to the Premises
and any notice of violation of any site
plan approvals, zoning or subdivision
regulations, urban redevelopment plans
applicable to the Premises or Permitted
Exceptions;
(n) With respect to the Development Work, comply with the terms
of
Article XX hereof; and
(o) Comply at all times with the applicable requirements of
Executive Order 13224; the International
Emergency Economic Powers Act, 50
U.S.C. Sections 1701-06; the United and
Strengthening America by Providing
Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub.
L. 107-56; the Iraqi Sanctions Act, Pub. L.
101-513, 104 Stat. 2047-55; the
United Nations Participation Act, 22 U.S.C.
Section 287c; the Antiterrorism and
Effective Death Penalty Act, (enacting 8
U.S.C. Section 219, 18 U.S.C. Section
2332d, and 18 U.S.C. Section 2339b); the
International Security and Development
Cooperation Act, 22 U.S.C. Section 2349
aa-9; the Terrorism Sanctions
Regulations, 31 C.F.R. Part 595; the
Terrorism List Governments Sanctions
Regulations, 31 C.F.R. Part 596; and the
Foreign Terrorist Organizations
Sanctions Regulations, 31 C.F.R. Part 597
and any similar laws are regulation
currently in force or hereafter
enacted.
2. From the date of this Agreement to each Closing Date, Sellers
shall
not:
(a) Modify, terminate, amend or allow the assignment of
existing
Leases, except as required by the terms of
the existing Leases without CSCP's
prior written consent, such consent not to
be unreasonably withheld.
(b) (i) Enter into Leases (A) covering four thousand (4,000)
square
feet or less, other than in accordance with
Sellers' ordinary conduct of
business as presently conducted, or (B)
covering more than four thousand (4,000)
square feet, in each instance without
CSCP's prior written consent. Any Leases
entered into pursuant to this paragraph (b)
shall be written on the form of
lease approved by CSCP prior to the date
hereof, a copy of which is attached
hereto as EXHIBIT MM (the "Standard Lease
Form"); provided, however, that if any
nationally or regionally recognized Tenant
shall object to using the Standard
Lease Form and in the ordinary conduct of
business uses its own lease form, such
Lease shall be written on the standard
lease form customarily used by such
Tenant in the ordinary conduct of business,
provided such Tenant's standard
24
<PAGE>
lease form shall be commercially
reasonable. CSCP shall approve or disapprove a
proposed Lease pursuant to this paragraph
(b) promptly following CSCP's receipt
of (x) the fully negotiated Lease between a
Seller and a proposed Tenant, and
(y) financial information concerning the
proposed Tenant.
(ii)
At Sellers' election, each proposed Lease and financial
information delivered to CSCP in connection
with a request for CSCP's consent
thereto may be accompanied by a transmittal
letter (the "Lease Transmittal
Letter") which shall request CSCP's consent
to said Lease and shall also contain
the following statement (the "First Lease
Transmittal Letter Statement") in
bold, capital letters: "IF (1) CEDAR
SHOPPING CENTERS PARTNERSHIP, L.P.
