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Kelly Township
Union County, Pennsylvania
OPTION TO PURCHASE AGREEMENT
This Option to Purchase Agreement made as of the 16th day of
March, 1998, by and between MARVIN L. SLOMOWITZ, an individual
(the "Optionor"), and MARK CENTERS LIMITED PARTNERSHIP, a
Delaware limited partnership ("Optionee").
BACKGROUND:
A. Optionor is the optionor and Optionee is the optionee
under a certain Option Agreement dated May 21, 1996 ("Prior
Option Agreement") under which Optionee has the option to acquire
approximately 26.6 acres of vacant land owned by Optionor (the
"Prior Option Property") in the Township of Kelly, County of
Union, Commonwealth of Pennsylvania, for a purchase price of One
Million Three Hundred Twenty-Five Thousand Dollars ($1,325,000).
B. Optionee is the owner of a property located contiguous
to the Prior Option Property. In connection with the proposed
expansion of the shopping center constructed on such contiguous
property, Optionee has determined that it will only require
approximately two acres of the Prior Option Property. Optionee
is desirous of terminating the Prior Option Agreement and
acquiring an option on only a two acre portion of the Prior
Option Property, and Optionor has agreed to grant Optionee an
option to Purchase such two acre portion of the Prior Option
Property which is depicted on the Sketch Plan attached as Exhibit
"A" hereto, to be further defined by a subdivision plan to be
prepared by Optionee and approved by Optionor (the "Premises")
and to terminate the Prior Option Agreement.
C. At the May 28, 1997 Board Meeting of Optionee the Board
of Optionee authorized Optionee to terminate the Prior Option
Agreement and to enter into a new option to acquire the Premises,
for a one-year term, subject to the following conditions: (i)
that Optionee grant to Optionor an easement for ingress and
egress over the Premises if Optionor acquires the Premises and
(ii) the purchase price for the Premises would be Fifty-Five
Thousand Dollars ($55,000) per acre, unless Optionor were to
receive a bona fide offer from a third party to purchase all or
part of the Prior Option Property prior to Optionee's
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exercise of its option to purchase the Premises, in which event,
the Optionee would have a right of first refusal for ninety (90)
days to match the offer on a per acre price with respect to the
Prior Option Property, or otherwise forfeit its option with
respect to the Premises. A copy of the relevant portion of the
Minutes of the May 28, 1997 Board Meeting of Optionee is attached
hereto as Exhibit "B".
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises contained herein, and intending to be legally
bound, Optionor and Optionee agree as follows:
1. Grant of Option; Termination of Prior Option Agreement.
(a) Grant of Option. For and in consideration of the
payments described in Paragraph 3 below, Optionor grants to
Optionee, and Optionee takes from Optionor, the option to
purchase the Premises (the "Purchase Option") at any time during
the term of this Agreement by giving written notice to Optionor
the term of this Agreement by giving written notice to Optionor
(the "Exercise Notice") of its election to exercise the Purchase
Option.
(b) Termination of Prior Option Agreement. The Prior
Option Agreement is hereby terminated and rendered null and void.
Contemporaneous with the execution of this Agreement, Optionor
and Optionee are executing and will record a termination
agreement in the form attached hereto as Exhibit "C".
2. Term.
(a) Term. the term of this Agreement shall commence
as of the date hereof and shall end as of 11.59 p.m. on March 13,
1999 (the "Term").
(b) Termination. Optionee may terminate the term of
this Agreement at any time and for any reason whatsoever by
giving written notice of such election to Optionor, in which
event this Agreement shall become null and void and neither party
shall have any further obligations or liabilities to the other.
3. Option Payments. Optionee has been credited with
payments made to Optionor under the Prior Option Agreement in
the amount of Five Thousand Dollars ($5,000) in consideration of
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Optionor's grant of the Purchase Option to Optionee.
4. Agreement of Sale. Upon the date the Optionee
exercises the Purchase Option (the "Exercise Date"), this
Agreement shall constitute an agreement of sale between Optionor
and Optionee, whereby Optionor agrees to sell and Optionee agrees
to purchase the Premises upon the following terms and conditions:
(a) Closing. Closing for the purchase of the Premises
shall be held within the later of: (i) sixty (60) days after the
Exercise Date, or (ii) after subdivision is final and
nonappealable under Paragraph 5 below at such time, date
("Closing Date") and place as shall be sent forth in a notice
from Optionee to Optionor after the Exercise Date. The Closing
Date shall not be earlier than (15) days after the Exercise Date.
(b) Purchase Price. The purchase price for the
Premises shall be One Hundred Ten Thousand Dollars ($110,000),
provided, however, that the purchase price shall be reduced by
(i) the total amount of the Option Payments made by Optionee
described in subparagraph 3(a) above, (ii) the amount of any lien
on the Premises plus accrued and unpaid interest thereon as of
the Closing Date and (iii) the total of any award or other
proceeds received by Optionor at any time from the date of this
Agreement until Closing with respect to the taking or
condemnation of any portion of the Premises. At Closing, the
purchase price shall be paid by Optionee to Optionor by
Optionee's delivery of a Note to Optionor providing for interest
only payments due monthly, with a maturity date of one year and
otherwise be in a form reasonably acceptable to Optionor and
Optionee.
(c) Adjustments. All transfer taxes, documentary
stamps and recording charges necessary to record the Deed (as
defined in subparagraph (d) below shall be split between Optionor
and Optionee. Optionee shall bear the cost of the title
insurance described in subparagraph 4(d) below, but Optionor
shall bear all costs in the form of abatement of the purchase
price associated with placing such title in the condition
required by such subparagraph. Real estate taxes and water and
sewer rents and charges (if any) shall be apportioned pro rata on
a per diem basis as of the Closing Date.
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(d) Condition of Title. At closing, Optionor shall
convey to Optionee good and marketable fee simple title to the
Premises by delivery of a special warranty deed, in recordable
form (the "Deed"), such title to be free and clear of all liens,
leases, encroachments, easements, restrictions of record or,
title company objections, and other encumbrances, except for
those approved by Optionee, in its sole discretion. Optionee's
title shall be insurable as aforesaid at ordinary rates by any
reputable title company of Optionee's choice (the "Title
Company") pursuant to an ALTA Owner's Policy of Title Insurance -
1970 - Form B - Amended October 17, 1970, with such endorsements
thereto as Optionee shall request.
(e) Title Affidavits, Etc. Optionor agrees that it
shall execute any instruments, agreements, affidavits or other
documentation reasonably required by the title company insuring
Optionee's title in order to effectuate the transaction
contemplated hereby, and Optionor further agrees to execute any
and all affidavits required by such title company as a condition
to its insuring such title as aforesaid.
(f) Failure of Title. If title to any part of the
Premises shall not be in accordance with the requirements of
subparagraph 4(d) above, Optionee shall have the option of taking
such title to the Premises as Optionor can give with an
appropriate abatement of the purchase price for liens of a fixed
or ascertainable amount and/or of terminating this Agreement.
(g) FIRPTA Certification. Optionor agrees to sign and
deliver at closing a certification in form reasonably acceptable
to Optionee in compliance with the Foreign Interest in Real
Property Transfer Act.
(h) Automatic Extension of Term. Optionee's delivery
to Optionor of an Exercise Notice shall automatically extend the
term of this Agreement for a sufficient period of time beyond the
then-applicable expiration date to accommodate the time periods
provided in this Paragraph 4.
(i) Easement. At closing, Optionee shall execute and
deliver an easement for ingress and egress which shall benefit
the remaining portion of the Prior Option Property and burden the
premises in the form to be reasonably agreed to between Optionor
and Optionee.
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5. Subdivision Approval.
(a) Following delivery of the Exercise Notice, the
Optionee shall be responsible for receiving final and
unappealable Subdivision Approval from Kelly Township
("Township") for the subdivision of the Premises from the Prior
Option Property in accordance with a Subdivision Plan (x)
prepared by Optionee at Optionee's expense, (y) which is
satisfactory to the Optionee and (z) subject to the Optionee's
right to apply for certain variances, and complies in all
respects with the Township Zoning Ordinance. Optionor shall
cooperate, at Optionee's expense, with Optionee to complete such
subdivision and sign any documents as may be incidental thereto.
(b) At Optionee's request, following delivery of the
Exercise Notice, Optionor, at Optionee's expense, shall cooperate
with and assist Optionee in obtaining any permits or other
approvals required for expansion of its existing shopping center
onto the Premises (including without limitation, any permits or
other approvals described in Paragraph 9 below). Optionor
consents to Optionee's procurement of such permits or other
approvals with respect to the Premises.
6. Operations Prior to Closing. Between the date of this
Agreement and the earlier of its termination or the Closing Date:
(a) The Premises shall be maintained substantially in
the same quality and condition on the Closing Date as on the date
hereof.
(b) Except as contemplated under paragraph 14 below,
Optionor shall not enter into any contract for, or on behalf of,
or affecting the Premises, which shall not terminate by its terms
on or before closing or which cannot be terminated at closing
without cost, penalty or premium, and shall not enter into any
new lease, or any amendment, modification or termination of any
existing lease.
(c) All payments required to be made to contractors,
subcontractors, mechanics, materialmen and all other persons in
connection with work done or services performed with respect to
the Premises shall be made by Optionor as and when due, but in
any event prior to the Closing Date, and as of the Closing Date
there shall be no basis for the filing of any mechanics' or
materialmens' liens against the Premises or any part thereof on
the basis of any work done or services performed with respect to
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the Premises.
(d) Optionor shall promptly deliver to Optionee a copy
of any tax bill, notice or assessment, or notice of change in a
tax rate or assessment, affecting the Premises or any part
thereof, any notice or claim of violation of any law, any notice
of any taking or condemnation affecting or relating to the
Premises or any part thereof, or any other notice affecting or
relating to the Premises or any part thereof.
7. Representations and Warranties. Optionor, to induce
Optionee to enter into this Agreement, represents and warrants to
Optionee as follows:
(a) Optionor has full power and legal right and
authority to enter into and perform its obligations under this
Agreement, and the execution and delivery of this Agreement
requires no further action or approval in order to make this
Agreement a binding and enforceable obligation of Optionor.
(b) No individuals or entities other than Optionor
have any legal, equitable or other claim or right with respect to
the Premises or any part thereof.
(c) Neither the entering into of this Agreement, the
consummation of the sale, if any, nor the prior conveyance of the
Premises to Optionor, has or will constitute a violation or
breach of any of the terms of any contract or other instrument to
which Optionor is a party or to which he is subject or by which
any of his assets or properties may be affected.
(d) No consent of any third party is required by
Optionor to enter into this Agreement or to consummate the terms
of this Agreement, were Optionee to exercise the Purchase Option.
(e) There is no action, suit or proceeding pending or,
to the knowledge of Optionor, threatened against or affecting
Optionor or the Premises or any portion thereof in any court or
before or by any federal, state or local entity.
(f) There are no violations of any federal, state or
local law, ordinance, order, regulation or requirement affecting
any portion of the Premises and no written notice of any such
violation has been issued by any governmental authority.
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Optionor shall cure, prior to closing, any such violation of
which Optionor or Optionee receives notice prior to the closing
date.
(g) There are no leases, tenancies, licenses or other
rights of occupancy or use for any portion of the Premises, and
no other contracts or agreements with respect to or affecting any
portion of the Premises.
(h) No portion of the Premises is the subject of any
abatement, reduction, deferral or "rollback" with regard to real
estate taxes nor any agreement or arrangement whereby the
Premises or any part thereof may be subject to the imposition of
real property taxes after the closing date on account of periods
of time prior to the closing date.
8. Environmental Matters. Optionor represents and
warrants that, to the best of his knowledge, there is no
contamination present on the Premises or any part thereof. For
purposes of this paragraph, the term "contamination" shall mean
the uncontained presence of hazardous substances at the Premises
or any part thereof, or arising from the Premises or any part
thereof, which may require remediation under any applicable law.
"Hazardous substances" shall mean any and/or all of the
following: "hazardous substances", "pollutant or contaminant" as
defined pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, as amended from time to time,
"hazardous waste" as defined pursuant to the Resource
Conservation and Recovery Act, as amended from time to time,
polychlorinated byphenals or substances containing
polychlorinated byphenals, asbestos or materials containing
asbestos, petroleum or petroleum products, urea formaldehyde foam
insulation, or any other substances which may be the subject of
liability pursuant to Environmental Laws (as defined below).
Optionor represents and warrants that, to the best of its
knowledge, all activities at the Premises have been and are being
conducted in compliance with all laws concerning discharges to
the air, soil, surface water or ground water, and storage,
treatment or disposal of, any contaminant (collectively,
"Environmental Laws"). Optionor represents and warrants that, to
the best of his knowledge, he does not know of any tanks,
underground or otherwise, presently or formerly on the Premises,
or any part thereof, used for the storage of any liquid, solid,
gas or other material above or below ground on the Premises.
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Optionor agrees to indemnify, defend and hold harmless Optionee
of, from and against any and all expense, loss or liability
(including any and all reasonable legal fees and costs) suffered
by Optionee by reason of Optionor's breach of any provisions of
this Paragraph.
9. Investigation. Optionor shall afford Optionee and its
representatives full access to the Premises, to all files,
records and other information relevant to the Premises as
Optionee shall reasonably request, and shall have the right to
perform such tests and studies (including without limitation
topographical studies, soils tests and engineering, environmental
and other tests), prepare such plans and surveys and make such
applications, inquires and searches of governmental records as
Optionee shall deem necessary or appropriate in connection with
its evaluation of the Premises and the feasibility of the
Project; and Optionor shall cooperate fully with such
investigation of the Premises. With respect to material damage
to the Premises caused by Optionee or its representatives during
any such investigation, Optionee shall restore such damaged areas
to substantially their same condition existing prior to such
studies and tests.
10. Recording. Optionor agrees to sign a copy of this
Agreement or a memorandum thereof in the form of Exhibit "F"
attached hereto for purposes of recording this Agreement or such
memorandum with the Recorder's Office of Union County,
Pennsylvania.
11. Condemnation. Optionor has not received any notice of
any condemnation proceeding or other proceedings in the nature of
eminent domain or taking in connection with the Premises, or any
part thereof. In the event Optionor receives any such notice, it
will forthwith send a copy of such notice to Optionee, and
Optionee shall have the sole right (in the name of Optionor or in
its own name) to negotiate for, to agree to or to contest all
offers and awards. If any portion of the Premises is taken or
condemned, which, in Optionee's opinion, materially adversely
affects the construction or operation of the Property, Optionee
shall have the right to terminate this Agreement within twenty
(20) days after first receiving written notice of such event.
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12. Assignment. Optionee may assign its interests under
this Agreement at any time.
13. Notices. All notices and other communications to be
given under this Agreement shall be in writing and shall be hand
delivered or sent by reputable, overnight courier service, or by
registered or certified mail, return receipt requested addressed
or sent as follows:
if intended for Optionor:
Marvin L. Slomowitz
313 Sylbert Drive
Kingston, PA 18704
if intended for Optionee:
c/o Mark Centers Trust
600 Third Avenue
Kingston, PA 18704
Attn: Mr. Joshua Kane
All such notices or other communications shall be deemed to have
been given on the date of delivery thereof if given by hand
delivery, or on the date deposited with the courier service or
the United States Postal Service if given by overnight courier
service or United States mail, respectively. Notices by or to
the parties may be given or their behalf by their respective
attorneys.
14. Right of First Refusal. If during the Term, Optionor,
his heirs, executors, administrators, legal representatives,
successors or assigns shall obtain a bona fide, binding and
written offer (the "Offer") (at a price and upon terms acceptable
to him) for the Prior Option Property, Optionee, its successors
or assigns, shall have the right to purchase the Prior Option
Property for the per acre price contained in the Offer. Optionor
shall notify Optionee in writing ("Notice") forthwith after the
receipt of the Offer, the Notice to be accompanied by a copy of
the Offer. Within thirty (30) days after the receipt of the
Notice, Optionee shall, if it desires to purchase the Prior
Option Property, do so in accordance with the terms of this
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Agreement by delivering the Exercise Notice within such thirty
(30) day period and all of the terms and conditions of this
Agreement shall apply to such purchase except that the Note shall
be in the principal amount of the purchase price described in the
Notice. Optionee's failure to deliver the Exercise Notice within
the said thirty-day period shall automatically terminate this
Option Agreement.
15. Miscellaneous.
(a) Successors. This Agreement shall be binding
upon the inure to the benefit of Optionor and Optionee and their
respective heirs, executors, administrators, successors and
assigns.
(b) Captions. The captions in this Agreement are
inserted for convenience of reference only; they form no part of
this Agreement and shall not affect its interpretation.
(c) Entire Agreement; Governing Law. This Agreement
contains the entire understanding of the parties with respect to
the subject matter hereof, supersedes all prior or other
negotiations, representations, understandings and agreements of,
by or among the parties, express or implied, oral or written,
which are fully merged herein. The express terms of this
Agreement control and supersede any course of performance and/or
customary practice inconsistent with any such terms. Any
agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Agreement unless such
agreement is in writing and signed by the party against whom
enforcement of such change, modification, discharge or
abandonment is sought. This Agreement shall be governed by and
construed under the laws of the Commonwealth of Pennsylvania.
(d) Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and
no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other
provision may be invalid or unenforceable in whole or in part.
(e) Survival. Nothwithstanding any presumption to the
contrary, all covenants, conditions and representations contained
in this Agreement, which by their nature, impliedly or expressly,
involve performance after settlement, or which cannot be
ascertained to have been fully performed until after settlement,
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shall survive settlement.
(f) Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original as against any party whose signature appears thereon,
and all of which shall together constitute one and the same
instrument. This Agreement shall be binding when one or more
counterparts hereof, individually or taken together, shall bear
the signatures of all of the parties reflected on this Agreement
as the signatories.
(g) Interpretation. No provision of this Agreement
is to be interpreted for or against either party because that
party or that party's legal representative or counsel drafted
such provision.
(h) Time. Time is of the essence of this
Agreement. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of
any time period provided in this Agreement shall end on a
Saturday, Sunday or legal holiday, then the final day shall
extend to 5:00 p.m. of the next full business day. For the
purposes of this Section, the term "holiday" shall mean a day
other than a Saturday or Sunday on which banks in the state in
which the Real Property is located are or may elect to be closed.
In witness whereof, Optionor and Optionee have executed this
Agreement as of the day and year first written above.
Optionor:
/s/ Marvin L. Slomowitz
Marvin L. Slomowitz
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Optionee:
MARK CENTERS LIMITED PARTNERSHIP,
a Delaware limited partnership, by
its general partner
By: MARK CENTERS TRUST, a Maryland
Business Trust
By: /s/ David S. Zook
Name: David S. Zook
Title: Executive Vice President