<PAGE>
AGREEMENT OF PURCHASE AND SALE (this "Agreement") dated as of
December
24, 2003, by and between TOWNFAIR CENTER
ASSOCIATES and TOWNFAIR CENTER
ASSOCIATES, PHASE III, each a Pennsylvania
general partnership having an address
at c/o Michael Joseph Development
Corporation 2500 Brooktree Drive, Suite 300,
Wexford, PA 15090 (jointly and severally,
"Seller") and comprised of P. J. DICK
INCORPORATED ("PJD"), a Pennsylvania
corporation, and MICHAEL JOSEPH LIMITED
PARTNERSHIP #2 ("MJLP"), a Pennsylvania
limited partnership, each a General
Partner of each Seller (and collectively,
the "General Partners"), and CEDAR
SHOPPING CENTERS PARTNERSHIP, L.P., a
Delaware limited partnership, having an
address at 44 South Bayles Avenue, Port
Washington, New York 11050 ("Buyer").
W I T N E S S E T H:
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A. Seller owns certain parcels and improvements thereon comprising
a
portion of the real property and
improvements located along Business Route 422
(Ben Franklin Road), White Township,
Pennsylvania, known as Townfair Center
(such parcels owned by Seller being more
precisely described herein as the
"Property").
B. Seller desires to sell to Buyer, and Buyer desires to purchase
from
Seller, the Property, upon the terms and
conditions and for the purchase price
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
contained
herein and for other good and valuable
consideration set forth herein, the
parties hereto agree as follows:
SECTION 1. Certain
Definitions.
"Actions" mean any claims, actions, suits, proceedings or
investigations, including, without
limitation, condemnation and tax certiorari
proceedings, whether at law or in equity or
before any court, arbitrator,
arbitration panel or Governmental
Authority.
"Affiliate" of a party means any Person which, directly or
indirectly, controls, is controlled by or
is under common control with, such
party.
"Broker" means Holliday Fenoglio Fowler, L.P., having an
office at 429 Fourth Avenue, Suite 200,
Pittsburgh, Pennsylvania 15219-1503.
"Court Order" means any judgment, decree, injunction, order,
decision, directive, regulation or ruling
of any Governmental Authority that is
binding on any Person or its property under
Law.
"Due Diligence Period" means the period commencing on the
later to occur of (a) the date a complete
copy of this Agreement executed by
Buyer and Seller with all exhibits attached
has been delivered to Buyer or its
counsel, and (b) the date Seller has
delivered to Buyer the documents described
in Section 5(a), or written confirmation
that Seller does not have such
documents (such date, the "Effective Date")
and expiring on the last day of the
forty fifth (45th) calendar day following
the Effective Date, provided, however,
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that if a Phase I environmental report of
the Property obtained by Buyer within
the Due Diligence Period (the "Phase I")
indicates that a Phase II is
recommended, and Buyer has initiated a
Phase II investigation within the initial
Due Diligence Period, but the results of
such investigation have not been
received by Buyer, then the Due Diligence
Period shall be extended until five
(5) days after the date Buyer has received
the results of such Phase II
investigation, provided that such extension
of the Due Diligence Period shall
not exceed thirty (30) days in any
event.
"Escrow Agent" means Lawyers Title Insurance Corporation, or
any substitute escrow agent appointed
hereunder
"Governmental Authority" means any agency, instrumentality,
department, commission, court, tribunal or
board of any government, whether
foreign or domestic and whether national,
federal, state, municipal or local.
"Hazardous Substances" means, without limitation, (i) all
substances which are designated pursuant to
Section 311(b)(2)(A) of the Federal
Water Pollution Control Act ("FWPCA"), 33
U.S.C. ss.1251 et seq.; (ii) any
element, compound, mixture, solution, or
substance which is designated pursuant
to Section 102 of the Comprehensive
Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. ss.9601
et seq.; (iii) any hazardous waste
having the characteristics which are
identified under or listed pursuant to
Section 3001 of the Resource Conservation
and Recovery Act ("RCRA"), ss.6901 et
seq.; (iv) any toxic pollutant listed under
Section 307(a) of the FWPCA; (v) any
hazardous air pollutant which is listed
under Section 112 of the Clean Air Act,
42 U.S.C. ss.7401 et seq.; (vi) any
imminently hazardous chemical substance or
mixture with respect to which action has
been taken pursuant to Section 7 of the
Toxic Substance Control Act, 15 U.S.C.
ss.2601 et seq.; and (vii) petroleum,
petroleum products, petroleum by-products,
petroleum decomposition by-products,
and waste oil; (viii) "hazardous materials"
within the meaning of the Hazardous
Materials Transportation Act, 49 U.S.C. ss.
1802 et seq., (ix) any hazardous
substance or material identified or
regulated by or under any applicable
provisions of the laws of the Commonwealth
of Pennsylvania; (x) asbestos or any
asbestos containing materials; or (xi) any
other hazardous or toxic substance or
pollutant identified in or regulated under
any other applicable federal, state
or local Laws.
"Knowledge" means the conscious awareness of factual matters,
reasonably believed to be true, by any
officer or partner of Seller's partners.
"Law" or "Laws" mean laws, statutes, rules, regulations,
codes, orders, ordinances, judgments,
injunctions, decrees and policies.
"Leases" mean all leases affecting the Property on the date
hereof, which Seller represents and
warrants are all listed on Exhibit F
attached hereto and made a part hereof
[this exhibit to contain a detailed
listing of every document comprising the
leases, including amendments, side
letters, guaranties, etc], together with
amendments or modifications made after
the date hereof and which have been
approved by Buyer in writing.
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"Lender" means Norwest Bank Minnesota, as Trustee for
Nationslink 1998-2, as
successor-in-interest to Patrician Financial Limited
Partnership, and its Affiliates, successors
and assigns.
"Liabilities" mean debts, liabilities, obligations,
guarantees, indemnities, duties and
responsibilities of any kind and
description, whether absolute or
contingent, monetary or non-monetary, direct or
indirect, known or unknown or matured or
unmatured, or of any other nature.
"Licenses" means licenses, franchises, permits, certificates,
certificates of occupancy, easements,
rights and other authorizations issued by
a Governmental Authority or any other
Person.
"Loan" means that certain loan in the original principal sum
of Ten Million Seven Hundred Thousand
00/100 Dollars ($10,700,000.00), made by
Lender to the Seller, evidenced by the Note
and secured by the Mortgage and
other Loan Documents.
"Loan Documents" means the Note, the Mortgage and other loan
documents executed by Seller to Lender in
connection with the Loan, all of which
are listed on Exhibit B-1 attached hereto
and made a part hereof and true and
correct copies of which have been delivered
by Seller to Buyer prior to the date
hereof.
"Major Tenant" means any Tenant occupying more than 10,000
leasable square feet under any of the
Leases.
"Mortgage" means that certain Open-ended Mortgage and Security
Agreement dated as of February 13, 1998,
made by the Seller to Lender (together
with the Note secured thereby).
"Note"
means that certain Promissory Note dated as of February
13, 1998, made by the Seller to the Lender,
having a face amount of $10,700,000.
"Person" means any natural person, corporation, business
trust, joint venture, association, company,
limited liability entity, firm,
partnership, or other entity or government
or Governmental Authority.
"Property" means: (a) those certain tracts or parcels of real
property owned by Seller comprising a
unified commercial development project,
commonly known as Townfair Center, located
in White Township, Indiana County,
Pennsylvania, more particularly identified
and described on Exhibit A annexed
hereto and hereby made a part hereof (the
"Land"), (b) the buildings and other
improvements located upon the Land
(collectively, the "Improvements"), (c) all
easements, rights of way, privileges,
appurtenances, development rights, air
rights, strips, gores and other rights
pertaining to the Land and the
Improvements, if any, including, without
limitation, development rights, and all
income therefrom, including rights to any
Taking awards or proceeds, (d) any
land in the bed of any street, road,
avenue, open or proposed, public or
private, in front of or adjoining the Land
or any portion thereof, to the center
line thereof, and any award to be made in
lieu thereof and in and to any unpaid
award for damage to the Land and the
Building by reasons of change of grade of
any street occurring after the date of
execution and delivery of this Agreement,
(e) all Tenant Leases, (f) all Service
Contracts, and (g) any Licenses required
or used in or relating to the ownership,
use, maintenance, occupancy or
operation of any part of the Property.
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"Service Contracts" means any all service agreements,
maintenance agreements, supply agreements,
and any other similar contracts and
agreements affecting Property.
"Taking" means any proceedings or negotiations instituted
which do or may result in a taking by
condemnation or eminent domain of the
Property or any portion thereof.
"Tenants" mean the tenants and other parties under the Leases.
SECTION 2. Sale and Purchase of the Property. Based upon and
subject to
the terms, agreements, warranties,
representations and conditions of this
Agreement, Seller hereby agrees to sell,
convey, transfer, assign and deliver to
Buyer on the Closing Date (as hereinafter
defined), and Buyer hereby agrees to
buy and accept on the Closing Date, the
Property.
SECTION 3. Purchase
Price and Manner of Payment.
(a) The purchase price for the Property is the amount of
SIXTEEN MILLION SIX HUNDRED THOUSAND and
00/100 DOLLARS ($16,600,000.00) (the
"Purchase Price"), and shall be payable as
follows:
(i) upon the execution of this Agreement, the sum of
$100,000.00 (the "Initial Deposit") shall
be paid by Buyer by wire transfer to
Escrow Agent;
(ii) upon the expiration of the Due Diligence Period,
the sum of $100,000.00 (the "Additional
Deposit"; the Initial Deposit and the
Additional Deposit, together with interest
accruing thereon, shall be referred
to herein as the "Deposit") shall be paid
by Buyer by wire transfer to Escrow
Agent; and
(iii) upon closing of title, Buyer shall assume the
outstanding principal balance of the Loan
and shall acquire the Property, a
portion of which will be under and subject
to the Loan Documents (as modified by
the Assumption Documents (as hereinafter
defined)), pursuant and subject to the
terms and conditions of Section 12.1(a)(v)
hereof; upon such assumption and the
execution of the Assumption Documents and
the acceptance thereof by Lender,
Buyer shall be credited with having paid a
part of the Purchase Price equal to
the outstanding principal balance of the
Loan on the date of Closing; and
(iv) the balance of the Purchase Price (subject to
adjustment in accordance with the terms and
conditions of this Agreement), shall
be paid by wire transfer of immediately
available funds to Seller or its
designee.
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(b) The Deposit shall be held by Escrow Agent in escrow in an
interest bearing account. Any interest
accrued on the Deposit shall be paid to
whichever party is entitled to the Deposit
in accordance with the provisions of
this Agreement. If the Closing shall occur,
interest shall be credited against
the Purchase Price. The Deposit shall be
held and disbursed by Escrow Agent in
accordance with the escrow provisions
annexed hereto as Exhibit B.
(c) Seller represents that its federal tax identification
number is 25-1759438 (for Townfair Center
Associates) and 23-2944295 (for
Townfair Center Associates, Phase III).
Seller acknowledges and agrees that
Seller's tax identification number shall be
used on the account into which the
Deposit is placed.
(d) Seller will allocate the Purchase Price between them as
shown on Schedule 3(d) attached to this
Agreement.
SECTION 4. Title Matters.
(a) Seller shall convey to Buyer at the Closing good,
marketable, insurable fee simple title to
the Property, free of all deeds of
trust, mortgages, liens, easements,
covenants, restrictions, leases, licenses
and other encumbrances ("Encumbrances"),
subject only to the Permitted
Encumbrances (as hereinafter defined),
which title shall be insurable by a
reputable title insurance company, selected
by Buyer, licensed in the
Commonwealth of Pennsylvania (the "Title
Company"), by issuance of an ALTA
owner's title insurance policy (the
"Owner's Policy"), insuring the title of the
Property at its ordinary rates and without
special premiums, and in the standard
form issued by the Title Company in the
Commonwealth of Pennsylvania, without
exception or reservations of any kind,
including, without limitation, the
standard pre-printed exceptions to the
title policy, other than the Permitted
Encumbrances (any such other exceptions or
reservations, the "Non-Permitted
Encumbrances").
(b) The term "Permitted Encumbrances" as used in this
Agreement shall mean:
1. any state of facts which a current accurate land
title survey of the Property would show,
provided that such facts would not
render title other than good and marketable
and would not impair the continued
use of the Property for a shopping
center;
2. those matters specifically set forth on Exhibit C
annexed hereto and hereby made a part
hereof, subject, however, to the
provisions of subsection (e) of this
section;
3. those matters shown on the Title Commitment
(referred to in Section 4(c)) and not
listed or referred to in Buyer's Statement
(referred to in Section 4(e)) or, if any
such matters are listed or shown on
Buyer's Statement, those which Buyer has
subsequently waived under Section 4(e);
4. all Laws, provided such Laws are not violated by
the existing improvements and do not
prohibit the use of the Property as a
shopping center;
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5. 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;
6. the Leases; and
7. the Loan Documents.
(c) If Buyer's commitment for an Owner's Policy (the "Title
Commitment") discloses judgments,
bankruptcies or other returns against other
Persons having names the same as or similar
to that of the Seller, Seller shall,
on the request of Buyer, deliver to Buyer
and the Title Company affidavits
showing that such judgments, bankruptcies
or other returns are not against the
Seller. Seller shall deliver any customary
affidavits required by the Title
Company to eliminate exceptions other than
the Permitted Encumbrances appearing
in the Title Commitment.
(d) At the Closing, Seller shall deliver to each of Buyer and
the Title Company an affidavit and/or
indemnity with respect to mechanic's liens
certifying that there are no unpaid bills
for services rendered or materials
furnished to the Property.
(e) Buyer shall furnish to Seller or its counsel within thirty
(30) days after the Effective Date, a copy
of the Title Commitment, together
with a statement specifying any objections
to title, and may furnish Seller with
a current survey of the Premises, together
with objection to any conditions
disclosed by such survey ("Buyer's
Statement"), provided Buyer shall have no
right to object to any Permitted Exceptions
other than the matters set forth on
Exhibit C hereto. Seller or its counsel
shall, within ten (10) days of receipt
by Seller's counsel of Buyer's Statement,
give notice to Buyer ("Seller's
Notice") as to which, if any, of the
defects set forth in Buyer's Statement,
that Seller will not commit to cure at or
before the Closing. If Seller does
not, within ten (10) days after receipt of
Buyer's Statement, advise Buyer in
writing that it will remove all of the
defects listed in Buyer's Statement, then
Buyer's sole right shall be to either (a)
waive such defects and close title
without abatement or reduction of the
Purchase Price, or (b) terminate this
Agreement, in either case upon notice to
Seller and Escrow Agent given within
five (5) days after the expiration of such
ten (10) day period. If Buyer elects
to terminate this Agreement, the Deposit
shall be returned to Buyer, and upon
such return, except as expressly provided
herein, this Agreement and all rights
and obligations of the respective parties
hereunder shall be null and void. If
Buyer does not notify Seller of its
election to terminate this Agreement within
such five (5) day period, Buyer shall
conclusively be deemed to have waived its
right of termination on account of such
defects, provided, however, that
notwithstanding anything to the contrary
set forth in this Agreement, Seller
shall be obligated to cure at or before the
Closing all any Encumbrance which
can be removed at time of closing by
payment of a liquidated amount or by
posting a bond, as well as any Encumbrance
arising after the date of Buyer's
delivery of Buyer's Statement and prior to
the Closing Date, except for any of
the foregoing arising from the acts or
omissions of Buyer, its agents,
contractors or employees. Seller shall not
be obligated to cure non-liquidated
Encumbrances (e.g., easements, covenants
and restrictions) of record as of the
date of Buyer's title commitment and which
Seller advises Buyer in Seller's
Notice that Seller does not wish to
cure.
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(f) Seller shall have the right to pay off any monetary
Encumbrances against the Property on the
Closing Date out of the cash then
payable provided, in the case of
Encumbrances held by institutional lenders,
Seller shall deliver a pay off letter at
the closing from the lender holding
such encumbrance of record, and in the case
of Encumbrances held by
non-institutional lenders, recordable
instruments of release or discharge of
such Encumbrances in form and substance
satisfactory to the Title Company are
then delivered to Buyer.
SECTION 5. Due Diligence.
(a) Promptly after the full execution of this Agreement,
Seller shall deliver copies of the
following documents to Buyer, to the extent
in Seller's possession or control: (i) all
Leases currently in effect, (ii) all
existing environmental reports for the
Property, (iii) the latest, full size
survey of the Property, (iv) construction
drawings for the Property, if any, (v)
title reports, together with copies of all
title exception documents, (vi) metes
and bounds description of the Land, (vii)
annual operating expense reports and
tax bills for the past three years, (viii)
utility bills for the past twelve
(12) months, (ix) information, on a tenant
by tenant basis, setting forth the
reimbursements paid by each tenant for
common area maintenance charges, taxes
and insurance, together with a supporting
schedule of expenses for the Property,
(x) a list and description of all rent
delinquencies as of the date hereof, (xi)
all existing service contracts currently
affecting the Property, (xii) any plans
or proposals submitted or reviewed by the
local authorities regarding potential
expansion or development of the Property,
(xiii) the Loan Documents, together
with any correspondence sent to or received
from Lender in respect of the
Property during the preceding three (3)
years.
(b) Buyer shall have the right, at any time after the
Effective Date, to inspect the Property,
and to investigate existing zoning, the
physical, structural and environmental
condition of the Property, the compliance
of the Property with Laws, the rental
income and recoveries listed in the rent
roll, the operating expenses, taxes and
other costs of operating the Property,
and any other factors Buyer deems relevant
in determining whether to purchase
the Property. For purposes of conducting
such inspections and studies, Buyer
shall have access to the Property at all
reasonable times, subject to Section
5(d) below.
(c) Buyer may terminate this Agreement, for any reason or for
no reason at all, in Buyer's sole
discretion, on notice to Seller and Escrow
Agent given at any time during the Due
Diligence Period, which notice may be
given by email to dvith@mjdc.com and to
dondulac@watkinsdulac.com, with a copy
concurrently sent by facsimile to Mssrs.
Vith and Dulac at their facsimile
numbers set forth herein. In the event of
such termination, Escrow Agent shall
return the Deposit to Buyer, whereupon,
except as expressly provided herein,
this Agreement and all rights and
obligations of the respective parties
hereunder shall be null and void. If Buyer
does not elect to terminate this
Agreement pursuant to this Section 5(c)
within the Due Diligence Period, Buyer
shall conclusively be deemed to have waived
its right of termination under this
Section 5(c), the Deposit shall be
non-refundable, except as otherwise expressly
provided hereunder, and Buyer shall post
the Additional Deposit with Escrow
Agent no later than two (2) business days
after the expiration of the Due
Diligence Period. When wired to and
deposited with the Escrow Agent, the
Additional Deposit will be non-refundable,
except as otherwise expressly
provided hereunder.
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(d) Upon not less than two business days prior written notice
to Seller, Seller shall permit Buyer and
its agents and consultants access to
the Property from time to time for the
purpose of undertaking surveys and
engineering, environmental, soils, wetlands
and other similar tests, borings,
drillings and studies, provided Buyer
promptly repairs any damage to the
Property caused by such entry and restores
the Lands to the condition that
existed prior to such entry. Seller shall
cooperate with Buyer and enforce
provisions of Leases if necessary in order
to facilitate entry by Buyer into
tenant spaces as reasonably required by
Buyer. Buyer shall hold and save Seller
harmless from and against any and all loss,
cost, damage, injury or expense
arising out of or in any way related to the
acts or omissions of Buyer, its
agents, employees and consultants, relating
to any such entry, and such
obligation shall survive the termination of
this Agreement, except that Buyer
shall not be liable for costs or damages
resulting from Buyer's discovery or
exacerbation of pre-existing conditions,
absent Buyer's negligence. Prior to any
such entry, Buyer shall furnish to Seller
evidence that Buyer (or its respective
contractors entering onto the Property to
perform borings, drillings or other
intrusive testings) has procured
comprehensive liability insurance from an
insurer authorized to do business in the
Commonwealth of Pennsylvania which is
reasonably acceptable to Seller protecting
Seller from claims for bodily injury
or death in single limit amount of not less
than $1,000,000, naming Seller as an
additional insured. Such insurance shall
provide that at least thirty (30) days'
notice of termination, cancellation,
modification or lapse of coverage shall be
given to Seller. The indemnification
provision contained in this Section 5(d)
shall survive the termination of this
Agreement and/or the closing of title.
(e) Buyer will provide Seller with copies of any environmental
reports of the Property prepared for Buyer.
Buyer will keep confidential and not
disclose to third parties all environmental
reports of the Property prepared for
or delivered to Buyer, except for
disclosures (i) to Buyer's consultants,
agents, representatives, employees and
third parties needing to know such
information, provided all such parties
agree to maintain the confidentiality of
such reports, and (ii) required by law.
SECTION 6. Closing Date. The closing of this transaction (the
"Closing") shall be conducted on the later
of (i) the date occurring ten (10)
days after the expiration of the Due
Diligence Period or (ii) January 31, 2004
(the "Closing Date"). The Closing shall be
conducted by mail in escrow with the
Title Company pursuant to an escrow
procedure reasonably acceptable to Seller
and Buyer, or at such place as the parties
may otherwise agree. Upon the
Closing, exclusive possession of the
Property, subject to the rights of tenants
under the Leases as tenants only, shall be
delivered to Buyer, and Buyer shall
thence have the right to enjoy the rents,
issues and profits therefrom.
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SECTION 7. Closing Deliveries and Closing Costs.
7.1 Seller Deliveries. At the Closing, Seller shall deliver or
cause to
be delivered to Buyer the following items
executed and acknowledged by Seller,
as appropriate:
(a) A special or limited warranty deed conveying fee simple
title to the Property to Buyer in
accordance with this Agreement.
(b) A general instrument of transfer, conveying, transferring
and selling to Buyer, all right title and
interest of Seller in and to all of
the personal property, if any, owned by
Seller, all rights of Seller in and to
any Service Contract which Buyer has
advised Seller it wishes to assume, to the
extent the same are assignable, and any
intangible property forming part of the
Property.
(c) An assignment by Seller and assumption by Buyer of all of
Seller's right, title and interest in and
to the Leases, including security
deposits, in the form attached hereto as
Exhibit D.
(d) A non-foreign affidavit for Seller complying with the
requirements of Internal revenue Code
Section 1445 (f) (3) and regulations
promulgated thereunder.
(e) Form 1099.
(f) A certificate stating that all representations and
warranties of Seller set forth in Section
10 hereof remain true and correct as
of the Closing Date (or certifying as to
any changes thereto, subject, however,
to the provisions of Section 10.4
herein).
(g) An updated rent roll for the Property, together with a
schedule of then-existing delinquencies,
certified by Seller to be true and
correct (Seller shall deliver this updated
rent roll to Buyer at least two (2)
business days prior to the closing).
(h) Lender's Consent and Lender's Estoppel (each as
hereinafter defined).
(i) Any document required by law to be executed by Seller in
order to allow Buyer to record any transfer
document, including any transfer or
documentary stamp return.
(j) Original estoppels certificate from the following tenants:
Lowe's, Supervalu Shop n' Save, Michaels,
CVS Pharmacy, Pier 1 Imports and
tenants occupying 80%, by rentable square
footage, of the remaining retail space
at the Property, all in a form
substantially similar to the form attached hereto
as Exhibit E (or in such other form as may
be prescribed under the respective
lease with such tenant), dated no earlier
than thirty (30) days prior to the
closing, and confirming, in the case of
tenants, (a) the factual matters with
respect to such tenants as set forth in the
Rent Roll (as hereinafter defined)
and in Sections 10.1 (g), (h) and (i)
hereof and (b) that Seller as landlord is
not in default under such tenant's lease,
nor are there any work allowances,
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concessions or improvements to be performed
or provided by Seller as landlord
that have not been performed or provided by
Seller in full. Seller shall
promptly request such estoppel certificate
from all tenants of the Property and
pursue same in good faith. If Seller is
unable to obtain the estoppel
certificates required under this subsection
by the Closing Date, then the
Closing Date shall be adjourned for a
period not to exceed fifteen (15) days, to
enable Seller to continue to pursue same.
If such estoppel certificates have not
been obtained after the expiration of such
adjournment of the Closing Date, then
Buyer shall have the right to terminate
this Agreement, by delivering written
notice of termination to Seller, in which
event the Deposit, and all interest
accrued thereon, shall be returned to Buyer
and except as expressly provided
herein, this Agreement and all rights and
obligations of the respective parties
hereunder shall be null and void.
(k) The original fully executed Leases, or, if not available,
a copy of each missing Lease certified by
Seller as being a true and completed
photocopy.
(l) Copies of all Lease files in Seller's possession or
control.
(m) Notices to each tenant under the Leases advising that
Seller's interest in the Property has been
conveyed to Buyer and instructing
that all rent and additional rent payable
under the Leases is to be remitted to
Buyer, that any security deposit is
thereafter being held by Buyer, and that all
insurance required to be maintained by such
tenant is to be amended to name
Buyer as a named insured to the extent such
tenant is required to so name the
landlord under its Lease, such notices to
be in form as reasonably required by
Buyer;
(n) A statement showing all closing prorations.
(o) All keys to the Property in the possession of Seller.
(p) Evidence reasonably satisfactory to Buyer and the Title
Company respecting the due organization of
Seller and the General Partners and
the due authorization and execution by
Seller of this Agreement and the
documents required to be delivered
hereunder.
(q) Such other documents and instruments as may be reasonably
required by this Agreement or by the Title
Company in order to consummate the
transaction contemplated by this Agreement
and to issue the Owner's Policy to
Buyer, including, without limitation, any
affidavits or indemnities reasonably
required in order to enable the Title
Company to insure title in Buyer free of
any mechanic's liens.
7.2 Buyer Deliveries. At the Closing, Buyer shall deliver or cause
to
be delivered to Seller the following items
executed and acknowledged by Buyer,
as appropriate:
(a) Payment of the balance of Purchase Price, as adjusted, to
be made in accordance with Section
3 above.
(b) A counterpart of the document referred to in Section
7.1(c) above.
(c) The Assumption Documents.
(d) Such other documents as may be required under the terms of
this Agreement or as may otherwise be
reasonably necessary to consummate the
transactions contemplated under this
Agreement, taking into account the terms
and conditions of this Agreement.
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7.3 Closing Costs. At the Closing, Seller and Buyer shall each
pay
one-half of the transfer taxes, including
transfer taxes of the Commonwealth of
Pennsylvania and of the county and local
municipality in which the Property is
located, payable in connection with the
transaction contemplated hereby. Buyer
shall pay (a) the title insurance premium
for the Owner's Policy, if any, (b)
the costs of any survey (or an update
thereto), and (c) all fees, costs or
expenses in connection with Buyer's due
diligence reviews hereunder. Seller
shall pay the costs of recording discharges
of Encumbrances required to be
removed by Seller under this Agreement.
Seller shall pay any assumption fees in
respect of Buyer's assumption of the Loan,
as more fully described in Section
12.1 herein. Except as expressly provided
in the indemnities set forth in this
Agreement, Seller and Buyer shall pay their
respective legal, consulting, and
other professional fees and expenses
incurred in connection with this Agreement
and the transaction contemplated hereby and
their respective shares of
prorations as hereinafter provided.
SECTION 8. Closing Adjustments. (a) The following shall be
prorated,
between Seller and Buyer as of 12:00 AM EST
on the Closing Date (so that Buyer
will be debited all taxes and other
expenses, and be credited with all rents,
accruing as of the Closing Date) on the
basis of the actual number of days
elapsed over the applicable period) and
shall take into account the percentage
of such revenues or expenses attributable
to the Property:
(i) All real estate taxes, water charges, sewer
rents, vault charges and assessments on the
Property on the basis of the fiscal
year for which assessed. 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
Buyer assuming the obligation to pay its
share of any installments due after the
Closing Date.
(ii) Subject to Section 8(b) of this Agreement, all
fixed and base and minimum rent and
regularly scheduled items of additional rent
under the Leases (including any
reimbursements for taxes and common areas
operating costs), and other tenant charges
if, as and when received. The parties
acknowledge that certain Tenants may not
pay all items of additional rent,
including without limitation common area
maintenance ("CAM") charges, insurance
premiums and real estate taxes, applicable
to periods prior to the Closing Date
until after the Closing Date and that
Seller may not have completed an
accounting of such additional rent charges
until after the Closing Date. The
parties agree that all such items of
additional rent will be adjusted between
the parties under Section 8(f) and Seller's
share (i.e., amounts reasonably
apportionable to periods prior to the
Closing Date) shall be paid to Seller
without regard to Section 8(b).
(iii) Expenses and payments under Service Contracts
which Buyer shall elect to assume.
(iv) fuel, if any, at Seller's cost therefor.
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(v) Utilities not payable directly by tenants,
including, without limitation, telephone,
steam, electricity and gas, on the
basis of the most recently issued bills
therefor, subject to adjustment after
the Closing when the next bills are
available, or if current meter readings are
available, on the basis of such
readings.
(vi) Interest payable with respect to the Loan for
the interest accrual period within which
the Closing Date occurs shall be
apportioned between Seller and Buyer at and
as of the Closing Date (with Buyer's
share to include the Closing Date), on a
per diem basis using the method for
computing interest (e.g., based on a 360
day year) set forth in the Loan
Documents. Seller shall also be debited at
Closing with all interest, penalties
or other charges under the Loan Documents
accrued and unpaid as of the Closing
Date to the extent such items are assumed
by Buyer and not paid by Seller on or
before the Closing. Seller shall assign to
Buyer, and Buyer will reimburse to
Seller, at the Closing all of Seller's
right title and interest in all escrow
and reserve accounts on deposit with
Lender.
(b) Rents under the Leases which are delinquent as of the
Closing Date shall not be prorated on the
Closing Date. Buyer shall include such
delinquencies in its normal billing and
shall diligently pursue the collection
thereof in good faith after the Closing
Date (but Buyer shall not be required to
litigate or declare a default in any Tenant
Lease). Subject to the terms of the
immediately succeeding sentence, to the
extent rents are collected by or on
behalf of Buyer on or after the Closing
Date, such payments shall be applied
first toward to the rents that shall then
be due and payable with respect to
rents for months after the Closing, second
to the rents for the month in which
the Closing occurs, and third to any
delinquent rents owed with respect to
months prior to the Closing, with Seller's
share thereof being promptly
delivered to Seller by Buyer. If percentage
rents are collected by or on behalf
of Buyer on or after the Closing Date, such
percentage rents shall be allocated
to the period to which they relate
irrespective of the provisions of the
immediately preceding sentence and
appropriate portions thereof shall be applied
to Buyer and Seller in proportion to the
duration of such party's ownership of
the Property during such period, with
Seller's share thereof being promptly
delivered to Seller by Buyer. Without
Seller's prior written consent, Buyer may
not waive any of Seller's claims against
any tenant for such tenant's breach of
its monetary obligations to Seller under
any Lease. Seller hereby reserves the
right to pursue any remedy against any
tenant owing delinquent rents for periods
not exceeding two months prior to the
Closing Date and not any other amounts to
Seller (except as provided in Section
8(a)(ii) above), which right shall include
the right to continue or commence legal
actions or proceedings against any
tenant; provided, however, that Seller will
not institute any action seeking
eviction or ejectment of any tenant and
prior to commencing any legal actions or
proceedings for collection of rents against
any tenant while such tenant remains
a tenant at the Property, Seller will give
notice ("Seller's Suit Notice") to
Buyer of Seller's intent to commence a
legal action or proceeding against such
tenant. Not later than five business days
after its receipt of Seller's Suit
Notice, Buyer may direct Seller not to
institute a legal action or proceeding
against such tenant provided Buyer
concurrently pays to Seller the amount of the
delinquent rents for periods not exceeding
two months prior to the Closing Date
or other amounts owed to Seller by such
tenant. Upon payment by Buyer to Seller
of such delinquent rents or other amount
owed to Seller, Buyer will be
subrogated to Seller's rights against such
tenant for such rents and other
amounts paid by Buyer. Buyer shall
reasonably cooperate with Seller in any
collection efforts hereunder (but shall not
be required to litigate or declare a
default under any Lease). With respect to
delinquent rents and any other amounts
or other rights of any kind respecting
tenants who are no longer tenants of the
Property at any time following the Closing
Date, Seller shall retain all rights
relating to its share thereof.
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<PAGE>
(c) The amount of any security deposits held by Seller under
the Leases shall be credited to Buyer, and
thereafter, Buyer shall be
responsible for same.
(d) The amount of the outstanding principal balance of the
Loan on the Closing Date shall be credited
to Buyer.
(e) If any of the items described in this Section 8 hereof
cannot be apportioned at the Closing
because of the unavailability of
information as to the amounts which are to
be apportioned or otherwise, or are
incorrectly apportioned at Closing or
subsequent thereto, such items shall be
apportioned or reapportioned, as the case
may be, as soon as practicable after
the Closing Date or the date such error is
discovered, as applicable. The
foregoing adjustment will not apply to any
interim assessment relating to the
completion of new construction and the
issuance of an original occupancy permit
for improvements.
(f) If the Closing shall occur before a real estate or
personal property tax rate or assessment is
fixed for the tax year in which the
Closing occurs, the apportionment of taxes
at the Closing shall be upon the
basis of the tax rate or assessment for the
preceding fiscal year applied to the
latest assessed valuation. Promptly after
the new tax rate or assessment is
fixed, the apportionment of taxes or
assessments shall be recomputed and any
discrepancy resulting from such
recomputation and any errors or omissions in
computing apport
