EXHIBIT 10.01
AGREEMENT OF PURCHASE AND SALE
This AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made as of the
____ day of August, 2004, by and between Roger V. Calarese and A. Richard
Calarese, as trustees of the Franklin Village Trust, dated January 19, 1979, as
amended ("Seller" or the "Trust"), having an office at 1000 Franklin Village
Drive, Franklin, Massachusetts 02038, and Cedar-Franklin Village LLC, a Delaware
limited liability company ("Buyer"), having an office c/o Cedar Shopping Centers
Partnership, L.P., 44 South Bayles Avenue, Port Washington, New York 11050.
W I T N E S S E T H
A. Seller is the fee owner of that certain tract or parcel of land more
particularly described on Exhibit A attached hereto and made a part hereof,
situated in Franklin, Massachusetts (the "Land"), together with the improvements
constructed thereon and commonly known as Franklin Village Shopping Center (the
"Improvements"; the Land and the Improvements are hereinafter collectively
referred to as the "Premises). The Premises together with Seller's right, title,
and interest (and the right, title, and interest of all beneficiaries of Seller)
in and to (i) all easements, rights-of-way, privileges, appurtenances,
development rights and other rights (including, without, limitation, mineral,
oil and gas rights) pertaining to the Premises (collectively, the "Appurtenant
Rights"), (ii) (a) all land 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 by reason of change of grade of any street and (d) any
strips and gores 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 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, operation and
management of the Premises, if any, including, without limitation, the right, if
any, to use the name "Franklin Village Shopping Center" and any similar
variations (collectively, the "Intangible Property"), (v) the Leases (as that
term is hereinafter defined) and the Service Contracts (as that term is
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 (the "Plans and Specifications"), (vii) all guaranties
and warranties relating to the Premises (the "Guaranties and Warranties"), and
(viii) the Permits (as that term is hereinafter defined) are hereinafter
collectively referred to as the "Property").
B. Seller desires to sell and Buyer desires to purchase the Property on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE I
Sale and Purchase of Property
1.1 Seller agrees to sell, assign and convey to Buyer, and Buyer agrees
to purchase and assume from Seller, the Property, subject to the terms of this
Agreement.
1.2 The Premises are to be conveyed to Buyer by a deed of Seller, in
the form specified by Section 7.3.1 hereof, conveying a good and clear record
and marketable title to the same, of record and in fact, which shall also be of
such quality as Commonwealth Land Title Insurance Company, or other national
title insurance company selected by Buyer, will insure at regular rates, on the
standard ALTA form, free from all defects, liens and encumbrances, except the
following:
1.2.1 provisions of existing applicable building and zoning
laws in effect on the Closing Date, provided that the Premises, as of the
Closing Date, may be used as of right, without special permit or variance (other
than any special permits or variances which may have already been issued and
continue to be in full force and effect), as a retail shopping center and for
accessory uses related thereto;
1.2.2 such real and personal property taxes relating to the
Premises for the then current tax period, as are not yet due and payable;
1.2.3 the Leases;
1.2.4 liens for municipal betterments assessed after the date
of this Agreement (subject to Buyer's right to terminate this Agreement in
connection therewith pursuant to Section 6.1.2 hereof); and
1.2.5 such matters set forth on Exhibit B annexed hereto (such
exceptions set forth in subparagraphs 1.2.1 through 1.2.5 are collectively
referred to as the "Permitted Exceptions").
ARTICLE II
Purchase Price
2.1 Purchase Price. The purchase price (the "Purchase Price")
payable by Buyer to Seller for the Property shall be the amount of Sixty Nine
Million Eight Hundred Thousand and 00/100 Dollars ($69,800,000.00), as adjusted
pursuant to the terms of this Agreement. In the event the Prepayment
Consideration (as that tem is hereinafter defined) is less than the Estimated
Amount (as that term is hereinafter defined), the Purchase Price shall be
increased by fifty percent (50%) of the amount by which the Estimated Amount
exceeds the Prepayment Consideration.
2.2 Method of Payment. Payment of the Purchase Price shall be
made as follows:
2.2.1 Within two (2) Business Days (as that term is
hereinafter defined) after the execution and delivery of this Agreement, One
Million and 00/100 Dollars ($1,000,000.00) (the "Downpayment") by (a) wire
transfer of immediately available federal funds to the account of Escrow Agent
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(as that term is hereinafter defined) in accordance with the wire instructions
set forth on Exhibit C annexed hereto, or (b) Buyer's good unendorsed certified
check or good unendorsed official bank check payable to the order of Escrow
Agent (it being understood that Buyer shall have the option of electing the
method of payment between those described in clauses (a) and (b) above) to be
held in escrow pursuant to the provisions of Article IX hereof;
2.2.2 At the closing of the transactions contemplated hereby
(the "Closing"), the balance of the Purchase Price, subject to apportionments
and other adjustments required to be made pursuant to this Agreement (the
"Balance"), by wire transfer of immediately available federal funds to an
account or accounts designated by Seller.
2.3 Downpayment. The party or parties hereunder that shall be entitled
to receive the Downpayment shall receive all interest that shall have accrued
thereon; provided, however, that if the Closing shall occur, the amount of any
interest earned on the Downpayment shall be credited in favor of Buyer against
the Balance. The Downpayment, together with all interest thereon, shall be held
by Escrow Agent in accordance with Article IX hereof.
ARTICLE III
Disclaimer
3.1 Disclaimer of Warranties. Buyer is acquiring the Property
"AS IS" with all faults and defects. Except as specifically stated in this
Agreement, Seller hereby specifically disclaims any representation or warranty,
oral or written, including, but not limited to, those concerning (i) the nature
and condition of the Property, (ii) the manner, construction, condition and
state of repair or lack of repair of any Improvements, (iii) the compliance of
the Property or its operation with any laws, rules, ordinances, or regulations
of any government or other body, it being specifically understood that Buyer has
had the full opportunity to determine for itself the condition of the Property,
and (iv) the income and expenses of the Property. The sale of the Property as
provided for herein is made with the understanding that Buyer has inspected the
Property, is aware of the condition thereof, and has apprised itself of all
information with respect to the Property and that, except as otherwise provided
herein, the conveyance is made with the Property in an "AS IS" condition. Buyer
expressly acknowledges that in consideration of the agreements of Seller herein,
except as otherwise specified herein, SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY DECLARATION OF LAW, INCLUDING,
BUT IN NO WAY LIMITED TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION,
HABITABILITY, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OF THE PROPERTY, ANY IMPROVEMENTS, THE PERSONAL PROPERTY OR SOIL CONDITIONS.
Seller is not liable or bound in any manner by expressed or implied warranties,
guarantees, promises, statements, representations or information pertaining to
the Property made or furnished by any real estate broker, agent, employee,
servant or other Person (as that term is hereinafter defined) representing or
purporting to represent Seller unless such representations are expressly and
specifically set forth herein. For purposes of this Agreement, the term "Person"
shall mean any individual, partnership, corporation, limited liability company,
trust or other entity.
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ARTICLE IV
Seller's Representations and Covenants
4.1 Seller represents as follows:
A. The Trust is a nominee trust duly organized and validly
existing under and by virtue of the laws of the Commonwealth of Massachusetts
and is in good standing in such Commonwealth. The Trust has all requisite power
and authority to execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereby. Annexed hereto as Exhibit D is a true,
correct and complete copy of the Declaration of Trust of the Trust, which
Declaration of Trust has not been amended or modified, except as may be set
forth on Exhibit D.
B. The sole beneficiary of the Trust is Franklin Village
Development Limited Partnership (the "Partnership"). The Partnership is a
limited partnership duly organized and validly existing under and by virtue of
the laws of the Commonwealth of Massachusetts and is in good standing in such
Commonwealth. The Partnership has all requisite power and authority to execute,
deliver and perform the joinder annexed to this Agreement, and the documents
contemplated by this Agreement to be delivered by it. Annexed hereto as Exhibit
E is a true, correct and complete copy of the Certificate of Limited Partnership
and the Limited Partnership Agreement of the Partnership, which Certificate of
Limited Partnership and Limited Partnership Agreement have not been amended or
modified, except as may be set forth on Exhibit E.
C. Seller is the owner of the Property.
D. This Agreement (i) has been duly authorized, executed and
delivered by Seller and no other proceedings on the part of Seller are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby, and (ii) is the legal, valid and binding obligation of Seller
enforceable against Seller in accordance with its terms (subject to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally).
E. The execution, delivery, observance and performance by
Seller of this Agreement and the transactions contemplated hereby will not (i)
result in any violation of the organizational documents of Seller, (ii) violate
any contractual provision, law, statute, ordinance, rule, regulation, judgment,
decree or order applicable to Seller, (iii) conflict with, or cause a breach of,
or a default under, or result in a termination, modification, or acceleration
of, any obligation of Seller, or (iv) permit any other party to terminate or
modify any agreement or instrument to which Seller is a party or by which it is
bound.
F. The Premises are encumbered by a first mortgage (the
"Mortgage") securing a loan in the original principal amount of Thirty Million
and 00/100 Dollars ($30,000,000.00) (the "Mortgage Loan"), held and/or serviced
by GMAC Commercial Mortgage Corporation("Mortgagee") to Seller dated November 5,
1997. A true, correct and complete schedule of the documents evidencing the
Mortgage Loan (the "Mortgage Loan Documents") is annexed hereto as Exhibit F.
True, accurate and complete copies of the Mortgage Loan Documents have been
delivered to Buyer. The Mortgage Loan Documents are in full force and effect and
have not been amended. As of the date hereof, no default exists under any of the
Mortgage Loan Documents. The outstanding principal balance of the Mortgage Loan,
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as of May 30, 2004, was Twenty Seven Million Eight Hundred Forty Two Thousand
Nine Hundred Ninety Three Dollars and five cents ($27,842,993.05). There is no
prepayment penalty or other fee payable in connection with a voluntary
prepayment of the Mortgage Loan other than (i) the Interest Shortfall Payment
(as that term is defined in that certain Promissory Note (the "Note"), dated as
of November 5, 1997, in the amount of Thirty Million Dollars and 00/100
($30,000,000.00) made by Seller to The Chase Manhattan Bank in connection with
the Mortgage Loan), payable in the event the Mortgage Loan is prepaid on a date
other than the first day of a calendar month, and (ii) the Prepayment
Consideration (as that term is defined in the Note). In the event the Mortgage
Loan had been prepaid on May 30, 2004, the Prepayment Consideration would not
have exceeded the sum of Two Million Four Hundred Thousand Dollars (the
"Estimated Amount").
G. To Seller's knowledge, the Premises are not subject to any
mortgages, liens or encumbrances other than the Mortgage Loan and the Permitted
Exceptions.
H. No consent, approval, waiver, license, authorization or
declaration of, or filing or registration with, any Person is or will be
required in connection with the execution, delivery and performance of this
Agreement by Seller.
I. There are no contracts or agreements, written or oral, to
which Seller is a party or is bound which affect the Property and will be
binding on Buyer from and after the Closing, except those described either in
this Agreement or set forth in Exhibits to this Agreement.
J. To Seller's knowledge, the Premises are not subject to any
reciprocal easement agreements, easement agreements, or restrictive documents of
any nature other than any set forth in the Permitted Exceptions. Neither Seller,
nor, to Seller's best knowledge, any other party is in default with respect to
any of its obligations or liabilities pertaining to such reciprocal easement
agreements, easement agreements, and/or restrictive documents and the existing
Improvements and the present use and operation of the Premises do not violate
the terms of any such reciprocal easement agreements, easement agreements and/or
restrictive documents.
K. Other than ongoing construction with respect to the
widening of Route 140 over land taken by the Commonwealth of Massachusetts
pursuant to Order of Taking recorded at Norfolk County Registry of Deed on
December 6, 2000 at Book 14576, Page 061 (the "Road Widening"), there are no
takings, condemnations, betterments, assessments, actions, suits, arbitrations,
claims, attachments, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other proceedings, actual or proposed, pending or,
to the best of Seller's knowledge, threatened against the Premises or Seller. To
Seller's knowledge, the Road Widening does not and will not (i) adversely affect
the use or enjoyment of the Premises as a retail shopping center, (ii) cause
Seller to be in violation of (a) any legal requirements, (b) the terms of any
Lease, or (c) the terms of any agreement or contract to which Seller is a party
or is bound affecting the Premises, or (iii) reduce (by more than one (1)
parking space), the number of parking spaces available at the Premises.
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L. No tax certiorari proceedings with respect to the Premises
are presently pending or remain outstanding.
M. Except as set forth on Exhibit G, no lawsuit, governmental
investigation or other legal action or proceeding is pending, or to Seller's
knowledge threatened, with respect to Seller and/or the Property.
N. True, correct and complete copies of the leases, licenses
or other occupancy agreements to which Seller is a party or is bound affecting
the Premises (collectively, the "Leases") and, to Seller's knowledge, subleases
affecting the Premises (collectively, the "Subleases") have been delivered to
Buyer. The information set forth on Exhibit H annexed hereto (the "Schedule of
Leases") is true, complete and correct, and the Leases and the Subleases are in
full force and effect and have not been amended, except as set forth in the
Schedule of Leases. The Schedule of Leases sets forth the amount of all security
deposits (plus accrued interest thereon, if any, required to be paid to the
respective Tenants) made by Tenants under the Leases and held by or on behalf of
the landlord thereunder. The rent roll (the "Rent Roll") annexed hereto as
Exhibit I is true, correct and complete based upon the current operation of the
Premises and the rents set forth on the Rent Roll are the rents currently being
collected. The Rent Roll accurately reflects all estimated payments made (and
scheduled to be made) on account of Overage Rent (as that term is hereinafter
defined), (both paid and payable) under the Leases. All of the landlord's
obligations under the Leases which the landlord is obligated to perform prior to
the Closing have or will have been performed.
O. Except as set forth on the Schedule of Leases:
(a) there are no other Leases or, to Seller's
knowledge, Subleases, and no Person, other
than tenants under the Leases (the
"Tenants") and subtenants under the
Subleases (the "Subtenants"), has any right
of possession of the Premises;
(b) there are no unsatisfied "Take-Over" space
obligations or "Take-Back" space obligations
("Take-Over" space obligations mean rent
obligations of the Tenant in other buildings
assumed by the landlord, and "Take-Back"
space obligations mean obligations imposed
upon the landlord to sublet or otherwise be
responsible for the obligations of a Tenant
under a Lease);
(c) there are no disputes with Tenants as to the
amount of their rental obligations;
(d) the rents set forth on the Rent Roll were
actually collected for the previous month;
(e) there are no rents under any of the Leases
that are in arrears by more than thirty (30)
days;
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(f) no Tenant or Subtenant has any option to
purchase the Premises or to cancel its Lease
or Sublease (other than as set forth in the
applicable Lease or Sublease);
(g) Seller has not received from any Tenant any
written notice claiming any default by the
landlord under its Lease which has not been
complied with, and Seller has not delivered
to Tenant any written notice claiming a
default by Tenant under a Lease which has
not been complied with, and, to the best
knowledge of Seller, there are no
circumstances which, after notice and the
expiration of any applicable grace period,
would constitute a default by either the
landlord or any Tenant under the Leases;
(h) except as set forth in the applicable
Leases, no Tenant has any right of first
offer, right of first refusal, option or
other preferential right to expand its
premises, and no Tenant has any option or
other preferential right to renew or extend
the term of such Tenant's Lease; and
(i) no Tenant has asserted offsets or claims
against, or has any defense to, rental
payable or obligations under such Tenant's
Lease.
P. Seller has no reason to believe that any Tenant is or may
become unable or unwilling to perform any or all of such Tenant's obligations
under its Lease (other than Tenants known as Weathervane, Toy Works, and
Cambridge Eye, which have filed for bankruptcy protection and the Tenant known
as Golf, U.S.A., which is in arrears on its rent by more than six (6) months, as
more particularly set forth on the Rent Roll). No guarantor of any of the Leases
has been released or discharged voluntarily (or, to the best of Seller's
knowledge either involuntarily or by operation of law) from any obligation
related to the Lease. Except in connection with the proposed expansion (the
"Stop & Shop Expansion") of the leased premises occupied by the Tenant known as
The Stop & Shop Supermarket Company ("Stop & Shop"), to be performed pursuant to
the terms and conditions of that certain Third Amendment of Lease, dated as of
April 2, 2004, between Seller and Stop & Shop (the "Stop & Shop Amendment") and
the related work to be done in connection with the relocation of (i) the Tenant
known as Village Mall Liquors, Inc. ("Village Liquors") to be performed pursuant
to the Stop & Shop Amendment and terms and conditions of the Amendment to Lease,
dated as of April 5, 2004, between Seller and Village Liquors (the "Village
Liquors Amendment"), and (ii) the Tenant known as Hairs Boston ("HB") to be
performed pursuant to the Stop & Shop Amendment and the terms and conditions of
that certain lease dated as of May 7, 2004, between Seller and HB (the "New HB
Lease"), all of the improvements to be constructed by the landlord, if any,
contemplated under the Leases or as required therein and in all collateral
agreements and plans and specifications respecting same have been completed as
so required, and any fees, costs, allowances, advances or other expenses to be
paid by the landlord for tenant improvements or tenant finish work have been
paid in full. Neither the Leases nor any of the rentals due or to become due
under the Leases has been or will be, at the Closing, assigned or encumbered by
the landlord thereunder or subject to any liens. As of the date hereof, Seller
has not received the payments from Stop & Shop contemplated by the Stop & Shop
Amendment in connection with the Village Liquor relocation. As of the date
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hereof, Seller has incurred approximately $75,000 in connection with the
performance of work in connection with the work contemplated by the Stop & Shop
Amendment for which Seller has not, as of the date hereof, been reimbursed by
Stop & Shop (the "Unreimbursed Stop & Shop Costs").
Q. The only other Tenants that will be required to relocate as
a result of the Stop & Shop Expansion are Village Liquors and HB. Seller has the
right (i) under the Village Liquors Amendment to relocate Village Liquors to the
New Premises (as that term is defined in the Liquor Store Lease Amendment).
Pursuant to its previous lease with Seller (which has recently expired), HB
occupied space which will, pursuant to the terms of the Stop & Shop Amendment,
be demised to Stop & Shop. The New HB Lease demises alternate space to HB (as
more particularly set forth in the New HB Lease), which alternate space is
unaffected by the Stop & Shop Expansion.
R. There are no management, service, supply, equipment rental
and similar agreements affecting the Premises, and there are no month-to-month
service arrangements on expired or automatic renewable contracts (collectively,
the "Service Contracts") which will bind the Premises, Buyer or Seller after the
Closing other than the Service Contracts set forth on Exhibit J annexed hereto
(the "Schedule of Service Contracts"). True, correct and complete copies of the
Service Contracts set forth on the Schedule of Service Contracts have been
delivered to Buyer. Neither Seller, nor, to Seller's best knowledge, any other
party is in default with respect to any of its obligations or liabilities
pertaining to the Service Contracts set forth on the Schedule of Service
Contracts. Except as set forth on Exhibit J, all of the Service Contracts set
forth on the Schedule of Service Contracts may be terminated without penalty or
payment by Seller on no more than thirty (30) days' notice.
S. Except in connection with the Mortgage Loan, the interests
of Seller in the Property have not been pledged or transferred.
T. There are no outstanding options to purchase, rights of
first offer, rights of first refusal, warrants, calls, commitments, conversion
rights, rights of exchange, plans or other agreements of any character, absolute
or contingent, to acquire all, or any portion of, the Property except for the
right of first refusal granted to Stop & Shop pursuant to the provisions of its
Lease (the "Stop & Shop ROFR"). Seller has given effective notice to Stop &
Shop, in form and substance required pursuant to the provisions of Stop & Shop's
Lease, of the transactions contemplated by this Agreement. Stop & Shop must give
notice on or before August 9, 2004 (the "Outside Date") as to whether or not it
elects to exercise the Stop & Shop ROFR. In the event Stop & Shop fails to give
such notice prior to the Outside Date, the Stop & Shop ROFR shall be deemed to
have been waived by Stop & Shop. (If Stop & Shop exercises the Stop & Shop ROFR
on or before the Outside Date (a "ROFR Exercise"), the date of such exercise is
referred to herein as the "Stop & Shop Exercise Date". If Stop & Shop gives
notice that it waives the right to exercise the Stop & Shop ROFR or is deemed to
have waived the right to exercise the Stop & Shop ROFR (a "ROFR Waiver"), the
date of such waiver or deemed waiver is referred to herein as the "Stop & Shop
Waiver Date").
U. As of the date hereof, Seller has not entered into any
brokerage agreements or lease commission agreements other than those agreements
described on Exhibit K annexed hereto. No leasing commission is now or will
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hereafter become due or owing in connection with any of the Leases, including,
without limitation, in connection with any renewals or extensions of the term
thereof, except as disclosed in Exhibit K annexed hereto.
V. The Personal Property has not been assigned or conveyed to
any other party (other than as security for the Mortgage Loan).
W. Except in connection with possible violations on the
Premises with respect to concentrations in groundwater of petroleum products
resulting from the release and/or discharges of same occurring on adjacent
property owned by Exxon Mobil Corporation (the "Exxon Mobil Investigation"),
Seller has not received written notice of any violation at the Premises of laws
relating to Hazardous Materials (as that term is hereinafter defined). To
Seller's knowledge, except as may be disclosed on the Existing Reports, no
Hazardous Materials are now or have ever been, located, produced, used, stored,
treated, transported, incorporated, discharged, emitted, released, deposited or
disposed of in, upon, under, over or from the Premises in a manner that may give
rise to any actual or potential liability to pay response costs or other
damages, losses or expenses or otherwise violate any Environmental Laws (as that
term is hereinafter defined). Seller does not and has not located, stored, or
used Hazardous Materials at the Premises and, to Seller's knowledge, no
Hazardous Materials are currently located, stored or used at the Premises,
except with respect to such Hazardous Materials which are contained in or
constitute maintenance, cleaning and landscaping supplies or other materials as
may be customarily used by Tenants in the ordinary course of their business
conducted at the Premises, in each case used and stored in accordance with
Environmental Laws. Except in connection with the Exxon Mobile Investigation, no
written notice of any violation or any alleged violation of any Environmental
Laws has been issued or given by any Governmental Authority (as that term is
hereinafter defined) which remains uncured. To Seller's knowledge there does not
currently exist any investigation or report involving the Premises by any
Governmental Authority or agency which in any way relates to Hazardous Materials
except in connection with the Exxon Mobil Investigation. Except in connection
with the Exxon Mobil Investigation, there are not currently pending or, to
Seller's best knowledge, threatened any actions, suits, proceedings or damage
settlements relating in any way to Hazardous Materials in, upon, under, over or
from the Premises. For purposes of this Agreement, the term "Hazardous
Materials" shall mean (a) any toxic substance, hazardous waste, hazardous
substance or related hazardous material; (b) 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; and (c) any substance, 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 federal, state or local statute, law, code, or
ordinance or under the regulations adopted or guidelines promulgated pursuant
thereto, including, but not limited to, the Environmental Laws. For purposes of
this Agreement, the term "Environmental Laws" shall mean 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.; and the Federal Water Pollution Control
Act, as amended, 33 U.S.C. ss.1251, et seq., as any of the foregoing may be
amended from time to time, and any other federal, state and local laws and
regulations, codes, statutes, orders, decrees, guidance documents, judgments or
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injunctions, now or hereafter issued, promulgated, approved or entered
thereunder, relating to pollution, contamination or protection of the
environment, including, without limitation, laws relating to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes into the
environment or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
For purposes of this Agreement, the term "Governmental Authority" shall mean the
United States government, any state, regional, local or any other political
subdivision of any of the foregoing, and any agency, department, commission,
board, court bureau or instrumentality of any of them having jurisdiction over
the Property or Seller.
X. There are no underground storage tanks located on or under
the Land.
Y. Seller has delivered to Buyer a true, correct and complete
copy of the (i) Phase I Environmental Site Assessments of the Premises, dated
August 14, 1997, and prepared by Aqua Terra Environmental Services Corp., (ii)
the Phase I Environmental Site Assessment of the Premises dated June, 1986, and
prepared by Goldberg-Zoino & Associates, and (iii) and copies of all information
in Seller's possession with respect to the Exxon Mobil Investigation (the
"Existing Reports"). The Existing Reports are the only reports within Seller's
possession or control that have been prepared in connection with studies or
investigations of the environmental condition of the Premises.
Z. To Seller's knowledge and except as may be determined in
connection with the Exxon Mobil Investigation, the Property complies in all
material respects with all applicable Legal Requirements (as that term is
hereinafter defined). To Seller's knowledge, all Permits (as that term is
hereinafter defined) required by any Governmental Authority for the operation of
the Property and the actual and contemplated uses thereof, or otherwise required
to be in compliance with any Environmental Laws, have been obtained and are
transferable with the Premises to Buyer without charge. To Seller's knowledge,
all Permits are in full force and effect and Seller has not received written
notice of any pending or threatened modification or cancellation of any of the
same. Exhibit L annexed hereto sets forth the Permits held by Seller with
respect to the Property. For purposes of this Agreement, the term "Legal
Requirements" shall mean any law, statute, ordinance, order, rule, regulation,
decree or other requirement of a Governmental Authority, and all conditions of
any Permit. For purposes of this Agreement, the term "Permits" shall mean all
approvals, consents, registrations, franchises, permits, licenses, variances,
certificates of occupancy and other authorizations with regard to zoning,
landmark, ecological, environmental, air quality, subdivision, planning,
building or land use required by any Governmental Authority for the
construction, lawful occupancy and operation of the Improvements and the actual
use thereof.
AA. Seller has heretofore delivered to Buyer true and complete
copies of all income and expense statements, year-end financial and operating
statements and existing and proposed budgets for the Property (collectively, the
"Operating Statements") for the previous three (3) calendar years and for the
current year to date, all of which, with the exception of the proposed budgets,
have been reviewed by an independent certified public accountant Seller has no
knowledge of any inaccuracies or omissions contained in the Operating
Statements. The Operating Statements are correct and complete in all respects
and present fairly the financial position of the Property. Since the date of the
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Operating Statements, there has been no material change to any Operating
Statement.
BB. There are, and at the Closing there will be, no employees
and no employment contracts, operating agreements, listing agreements,
consulting agreements, union contracts, labor agreements, pension plans, profit
sharing plans or employee benefit plans which relate to Seller or the Property
(collectively "Employment Agreements").
CC. Seller maintains insurance with respect to the Property as
set forth on Exhibit M annexed hereto. Seller has not received any written
notice from any insurance company which has issued a policy with respect to the
Property or from Mortgagee requesting or requiring performance of any structural
or other major repair or alteration to the Property which has not been complied
with.
DD. Neither the Partnership nor the Trust is a "foreign
person" as defined pursuant to Section 1445 of the Internal Revenue Code of
1986, as amended.
EE. To Seller's knowledge the parking facilities at the
Premises contain an adequate number of striped parking spaces to comply with all
Legal Requirements and with all parking commitments contained in any Lease.
FF. The list of the Plans and Specifications set forth on
Exhibit N is true, correct and complete. True, correct and complete copies of
the Plans and Specifications have been delivered to Buyer.
GG. The Premises are served by adequate municipal utility
services, including the municipal sewer system.
All of the representations and warranties of Seller set forth in this
Agreement and any Exhibit attached hereto, or in any letter or certificate
furnished to Buyer pursuant to the terms hereof, each of which is incorporated
herein by reference and made a part hereof, shall be true and correct upon the
execution of this Agreement in all material respects, and, except as set forth
below, shall be deemed to be repeated at and as of the Closing Date and shall be
true and correct as of the Closing Date. The representations, warranties and
agreements set forth in this Article shall survive the Closing for a period of
one (1) year, unless a claim shall be made with respect thereto within such one
(1) year period, in which event the representation, warranty or agreement giving
rise to such claim shall survive the Closing with respect to such claim until
resolution with respect to such claim, provided the resolution of such claim is
being pursued diligently by Buyer. If (i) 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, or (ii) Buyer has actual
knowledge on or before the Closing Date that any of the representations or
warranties given by Seller are untrue or incorrect in any material respect on
the Closing Date (and the same shall not have resulted from an intentional
misrepresentation or breach of warranty by Seller), then notwithstanding
anything to the contrary contained in this Agreement, Buyer shall have the right
prior to the Closing, as its sole remedy, exercisable by delivery of written
notice to Seller, to terminate this Agreement (in which event Buyer shall be
entitled to, and Escrow Agent shall return to Buyer, the Downpayment, and
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following such return no party hereto shall have any further obligations in
connection herewith except under those provisions that expressly survive the
termination of this Agreement). If any of the representations and warranties
given by Seller are untrue or incorrect in any material respect on the Closing
Date (and same shall have resulted from an intentional misrepresentation or
breach of warranty by Seller), Buyer shall also have the right, as aforesaid, to
terminate this Agreement and receive a return of the Downpayment, but, in such
event, the provisions set forth in the last sentence of Section 10.2.1 shall
govern. In the event any of Seller's representations and warranties set forth
herein shall not be true and correct in all material respects, and Buyer shall
have knowledge of the same prior to Closing, and Buyer shall, thereafter, close
title to the Property, then, in such case, the provisions of Section 10.2.2
shall govern.
4.2 Seller hereby covenants and agrees with Buyer as follows:
4.2.1 At all times up to the Closing Date, Seller shall cause
to be maintained insurance upon the Premises in the same coverages and amounts
as the insurance policies on the Premises on the date hereof.
4.2.2 At all times up to the Closing Date, Seller shall
operate and maintain the Premises in substantially the same manner as it is now
operated and maintained, and Seller shall use reasonable efforts to maintain the
physical condition of the Premises in its current condition, reasonable and
ordinary wear and tear and damage by fire and casualty excepted.
4.2.3 Seller shall neither transfer nor remove any Personal
Property or fixtures from the Premises subsequent to the date hereof, unless the
same are no longer needed for the maintenance and operation of the Premises or
except for purposes of replacement thereof, in which case such replacements
shall be promptly installed prior to Closing and shall be comparable in quality
to the items being replaced.
4.2.4 Seller shall not without the prior written consent of
Buyer (i) enter into any Lease or modify, renew, extend, replace, terminate or
otherwise change any of the terms, conditions or covenants of any existing
Lease, or (ii) consent to any Sublease or any modification, renewal,
replacement, termination or other change of any of the terms, conditions or
covenants of any existing Sublease. Buyer agrees not to unreasonably withhold
consent to any such actions by Seller provided that the same reflect market
rents and terms and conditions.
4.2.5 Seller shall terminate prior to the Closing all Service
Contracts that Buyer requests be so terminated (provided that said Service
Contracts are, by their terms, so terminable without fee or penalty to Seller,
unless Buyer shall have agreed to pay any such fee or penalty).
4.2.6 Seller shall not enter into any Service Contracts or
modify, renew, extend, replace or otherwise change any of the terms, conditions
or covenants of any existing Service Contract after the date hereof without the
prior written consent of Buyer, which consent may be granted or withheld in
Buyer's sole discretion.
4.2.7 Seller shall not enter into any Employment Agreements
without the prior written consent of Buyer, which consent may be granted or
withheld in Buyer's sole discretion.
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4.2.8 Seller shall not, except to the extent required by the
Stop & Shop Expansion, amend or modify any Permits with respect to the Premises
and shall keep in full force and effect and/or renew all Permits.
4.2.9 Seller shall timely comply with all Legal Requirements.
4.2.10 Seller shall pay all obligations and trade creditors in
the normal course of business and not defer any expenses or costs which would be
paid or incurred in the normal course of business.
4.2.11 Seller shall not, without the written consent of Buyer,
convey any interest, directly or indirectly, in the Property, or any portion
thereof.
4.2.12 Seller shall not create, assume, incur or suffer to
exist any lien (other than the Permitted Exceptions) against the Premises.
4.2.13 Seller shall use good faith efforts to obtain the
Tenant Estoppel Certificates and the Manager Termination and the Release (as
those terms are defined in Section 7.2.1).
4.2.14 Seller shall not bring (or knowingly permit to be
brought) any Hazardous Materials in, upon, under, over or from the Premises in
violation of Environmental Laws.
4.2.15 Seller shall not remove or dispose of (or knowingly
permit to be removed or disposed of) any Hazardous Materials in, upon, under,
over or from the Premises in violation of Environmental Laws.
4.2.16 Seller shall not hereafter engage any new employees for
Seller or the Premises.
4.2.17 Seller shall make all payments as required by the
Mortgage Loan and shall repay the Mortgage Loan in full on the Closing Date from
the proceeds of the Balance and shall cause the Mortgage to be released and
discharged in connection with the Closing.
4.2.18 Seller shall, at Buyer's sole cost and expense,
cooperate with Buyer with regard to any financing that is arranged for by Buyer
in connection with the transactions contemplated by this Agreement, and Seller
will execute all documents reasonably required pursuant to such financing,
provided same do not impose cost or liability on Seller.
4.2.19 Seller shall not collect any rent under any Lease more
than one (1) month in advance.
4.2.20 Seller shall give notice to Buyer of a ROFR Exercise or
a ROFR Waiver, as applicable, within two (2) days of the occurrence of same.
4.2.21 Seller shall not make any material alterations to the
Premises except in connection with the Stop & Shop Expansion.
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4.3 Buyer represents as follows:
4.3.1 Buyer is a limited liability company, duly organized,
validly existing and in good standing under the laws of Delaware; and
4.3.2 Buyer has the legal right, power and authority to enter
into this Agreement and to perform all of its obligations hereunder and the
execution and delivery of this Agreement and the performance by Buyer of its
obligations hereunder (i) have been duly authorized by all requisite action of
the members of Buyer and (ii) will not conflict with, or result in a breach of,
any of the terms, covenants and provisions of the organizational documents of
Buyer, or, to the best of Buyer's knowledge, of any judgment, writ, injunction
or decree of any court or governmental authority, or any agreement or instrument
to which Buyer is a party or by which it is bound.
ARTICLE V
Brokerage
5.1 The parties agree that T.R.B. & Associates, Inc. (the "Broker") is
the broker in connection with this transaction, and Seller agrees to pay any
commission payable to the Broker in connection with this transaction by separate
agreement.
5.2 Buyer hereby agrees to indemnify, defend and hold Seller
harmless from and against any and all claims, losses, liability, costs and
expenses (including reasonable attorneys' fees) resulting from any claim that
may be made against Seller by any broker (other than the Broker), or any other
person claiming a commission, fee or other compensation by reason of this
transaction, if the same shall arise by, through or on account of any alleged
act of Buyer or Buyer's representatives.
5.3 Seller hereby agrees to jointly and severally indemnify,
defend and hold Buyer harmless from and against any and all claims, losses,
liability, costs and expenses (including reasonable attorneys' fees) resulting
from any claim that may be made against Buyer by any broker (including the
Broker), or any other person, claiming a commission, fee or other compensation
by reason of this transaction, if the same shall arise by, through or on account
of any alleged act of Seller or Seller's representatives.
5.4 The indemnification obligations under this Article V shall
survive the Closing or a termination of this Agreement.
ARTICLE VI
Title and Due Diligence
6.1 Title.
6.1.1 Title Report; Title Objections. Buyer shall order a
title insurance report and commitment (the "Commitment") for the Title Policy
(as that term is hereinafter defined) from a title company selected by Buyer
(the "Title Company") and shall promptly upon receipt thereof, but no later than
thirty (30) days from the date hereof, furnish a copy of the Commitment to
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Seller's attorneys. Upon receipt of any updates or revisions to the Commitment,
Buyer shall furnish copies thereof to Seller's attorneys (the Commitment and any
updates or revisions thereto are hereinafter collectively referred to as the
"Report"). Within thirty (30) days from the receipt of the Commitment (and,
thereafter, within thirty (30) days from the receipt of any update or revision
thereto), Buyer shall deliver to Seller a statement setting forth exceptions to
title which are not Permitted Exceptions reflected in the Commitment or in any
such update or revision thereto (the "Title Objections"). Any exception to title
reflected in the Commitment or in any update or revision thereto which is not
objected to within such thirty (30) day period shall be deemed to be a Permitted
Exception.
6.1.2 Encumbrances to Eliminate. Seller shall be required to
eliminate (a) all mortgages, (b) unpaid water charges and assessments, (c) any
Title Objections which have been voluntarily created, suffered or incurred by
Seller including, without limitation, liens, judgments and encumbrances (such
Title Objections, collectively, "Subsection (c) Encumbrances"), and (d) any
other Title Objections which are in a liquidated amount and which may be
satisfied by the payment of money, other than a lien for municipal betterments
that is assessed after the date of this Agreement (such other Title Objections,
collectively, "Subsection (d) Encumbrances"); provided, however, that Seller
shall not be required to spend in excess of One Hundred Thousand Dollars
($100,000.00) in the aggregate to eliminate (i) any Subsection (c) Encumbrances
arising or accruing prior to the date hereof, and (ii) any Subsection (d)
Encumbrances. Notwithstanding the foregoing, in the event (i) a Subsection (c)
Encumbrance affects the Premises or (ii) a lien for municipal betterments is
assessed against the Premises between the date hereof and the Closing and, in
either event, Seller is unable or unwilling to remove the same, and, provided
the existence of the same does not otherwise constitute (or arise as a result
of) a default hereunder, if the same does not affect the use and enjoyment by
Buyer of the Premises, Seller shall not be required to eliminate the same (but,
in any such event, Buyer shall have the rights set forth in Section 6.1.3 with
respect to such Title Objection). Buyer has notified Seller of the possible
existence of a Conservation Restriction (the "Conservation Restriction"), which,
if same exists, would affect approximately 4.17 acres of an unimproved portion
of the Premises. In the event the Conservation Restriction affects the Premises,
Seller shall not be required to eliminate same (but Buyer shall have the rights
set forth in Section 6.1.3 with respect thereto).
6.1.3 Other Exceptions. Except as set forth in Section 6.1.2
above, Seller shall not be required to bring any action or institute any
proceeding, or to otherwise incur any costs or expenses in order to attempt to
eliminate any Title Objections. If Seller fails to eliminate any and all Title
Objections (other than those encumbrances set forth in Section 6.1.2 above which
Seller shall be obligated to remove), then Buyer may elect to (i) accept the
Property subject to such exceptions, and Buyer shall close hereunder, without
reduction of the Purchase Price, notwithstanding the existence of the same, and
Seller shall have no obligations whatsoever after the Closing Date with respect
to Seller's failure to eliminate such exceptions, or (ii) terminate this
Agreement by notice given to Seller, in which event Buyer shall be entitled to a
return of, and Escrow Agent shall promptly deliver, the Downpayment to Buyer.
Upon such return and delivery, this Agreement shall terminate and neither party
hereto shall have any further obligations hereunder other than pursuant to those
provisions that expressly survive a termination of this Agreement.
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6.1.4 Right to Adjourn. Notwithstanding anything to the
contrary contained herein, if Seller is unable to eliminate any Title Objections
which Seller is obligated to eliminate pursuant to the provisions of this
Agreement by the Closing Date, Seller, in order to attempt to eliminate such
Title Objections, may adjourn the Closing to a date no later than thirty (30)
days following the Scheduled Closing Date. Promptly after Seller has eliminated
all such Title Objections, if any, Seller shall reschedule the Closing Date,
upon at least three (3) Business Days prior notice to Buyer.
6.2 Liens, Judgments and Encumbrances. If, at the Closing, the
Property is subject to any mortgage or mortgages, unpaid taxes, water charges
and assessments, or any other liens, judgments and encumbrances, then the
existence thereof shall not constitute a Title Objection provided that such
mortgage(s), unpaid taxes, water charges and assessments, or any other liens,
judgments and encumbrances are paid by Seller to the Title Company and the Title
Company shall omit the same from the Title Policy.
6.3 Affidavits. If the Report discloses judgments, bankruptcies or
other returns against other persons having names the same as, or similar to,
that of Seller, then Seller shall deliver to the Title Company affidavits
showing that such judgments, bankruptcies or other returns are not against
Seller in order to induce the Title Company to omit exceptions with respect to
such judgments, bankruptcies or other returns.
6.4 Violations. Notwithstanding anything to the contrary contained
herein, Seller shall cure and eliminate (and pay all related fines and penalties
and any accrued interest thereon), at Seller's cost and expense, any violations
assessed against the Property as of the Closing Date.
6.5 Due Diligence Reviews. Except for title matters (which shall be
governed by the provisions of Sections 6.1 through 6.4 hereto), Buyer shall have
until 5:00 p.m. (Eastern time) on the date which is thirty five (35) days from
the Stop & Shop Waiver Date (provided, however, that if Buyer shall not have
received notice from Seller of the occurrence of a ROFR Waiver within the time
period provided by subsection 4.2.20 hereof, Buyer shall have until 5:00 p.m.
(Eastern time) on the date which is thirty (30) days from the date Buyer shall
have received notice from Seller of the ROFR Waiver), TIME BEING OF THE ESSENCE
(the period of time commencing upon the date hereof and continuing through and
including such time on such date being herein called the "Due Diligence Period")
within which to perform and complete all of Buyer's due diligence examinations,
reviews and inspections of all matters pertaining to the Property, including the
review of Leases, Subleases, Service Contracts, Employment Agreements, and all
physical, environmental and compliance matters and conditions respecting the
Premises, including, without limitation, title review (collectively, the
"Investigations"), which Investigations shall at all times be subject to Buyer's
compliance with the provisions of this Section 6.5. During the Due Diligence
Period, Seller shall provide Buyer and the Consultants with access to the
Premises upon reasonable advance notice to Seller (which notice may be delivered
by telephone to Roger Calarese at (508) 528-3700. Seller shall also make
available to Buyer and the Consultants, at the offices of Seller, on at least
one (1) Business Day's prior notice to Seller (which notice may be delivered by
telephone to Roger Calarese at (508) 528-3700, during reasonable times as
mutually agreed upon by Seller and Buyer, access to such Leases, Subleases,
Service Contracts, Employment Agreements, other contracts, books, records and
other documentation with respect to the Property and such books and records of
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Seller as Buyer reasonably requires in order to examine or audit the books and
records of Seller with respect to the Property, and Seller shall lend its
reasonable assistance to Buyer and the Consultants in connection with the
Investigations.
6.6 Termination Right. If, on or before the expiration of the Due
Diligence Period, Buyer shall determine, in its sole and absolute discretion and
for any reason or for no reason, that it no longer intends to acquire the
Property, then Buyer shall promptly notify Seller of such determination in
writing on or before 5:00 p.m. (Eastern time) on the date that the Due Diligence
Period shall expire (such notice being herein called the "Termination Notice"),
whereupon Buyer shall be entitled to a return of, and Escrow Agent shall
promptly deliver to Buyer, the Downpayment, and upon such delivery this
Agreement and the obligations of the parties hereunder shall terminate (and no
party hereto shall have any further obligations in connection herewith except
under those provisions that expressly survive the Closing or a termination of
this Agreement). In the event that Buyer shall fail to have delivered the
Termination Notice to Seller on or before 5:00 p.m. (Eastern time) on the date
that the Due Diligence Period shall expire, Buyer shall be deemed to have agreed
that the foregoing matters are acceptable to Buyer and that it intends to
proceed with the acquisition of the Property without a reduction in, or an
abatement in or credit against, the Purchase Price (and, thereafter, Buyer shall
have no further right to terminate this Agreement pursuant to this Section 6.6).
6.7 Stop & Shop ROFR. In the event Stop & Shop exercises the
Stop & Shop ROFR on or before the Outside Date, Buyer shall be entitled to a
return of, and Escrow Agent shall promptly deliver to Buyer, the Downpayment,
and upon such delivery this Agreement and the obligations of the parties
hereunder shall terminate (and no party hereto shall have any further
obligations in connection herewith except under those provisions that expressly
survive the Closing or a termination of this Agreement).
6.8 Ongoing Site Visits. Buyer and its agents, contractors, consultants
and representatives ("Consultants") shall have reasonable access to the Premises
on at least one (1) Business Day's prior notice to Seller (which notice may be
delivered by telephone to Roger Calarese at (508) 528-3700), during reasonable
times as mutually agreed upon by Seller and Buyer solely for the purpose of (i)
inspecting the physical and structural condition of the Premises and conducting
non-intrusive physical inspections and tests (non-intrusive physical inspections
and tests shall include, for example, taking de minimis samples of building
materials), and (ii) monitoring the ongoing operations of the Premises
(including, without limitation, the performance by Tenants of their respective
obligations under the Leases). If Buyer desires to conduct any intrusive
physical inspections and tests, including a Phase II environmental inspection of
the Premises, then Buyer shall identify in writing the procedures Buyer desires
to perform and request Seller's consent. If Seller objects to the inspections
and tests requested by Buyer, then Seller shall describe the basis for its
objection to Buyer and propose to Buyer a reasonable alternative for resolving
the issue giving rise to Buyer's request for intrusive physical inspections or
tests. If Seller consents to the inspections and tests requested by Buyer, then
Buyer and Consultants shall, in performing intrusive physical inspections or
tests, (a) comply with any and all statutes, laws, ordinances, rules and
regulations applicable to the Premises, (b) restore the Premises to the
condition, in all material respects, in which the same was found before
inspection or testing was undertaken, but in no event later than ten (10)
17
Business Days after such inspection or testing occurs, and (c) carry and provide
to Seller evidence of such insurance as Seller may reasonably request.
6.9 Interviews. Buyer may communicate or conduct interviews with any
Tenant without the requirement of having received the prior consent of Seller;
provided, however, that with respect to any interview to be conducted at the
Premises, Buyer shall notify Seller (which notice may be delivered by telephone
to Roger Calarese at (508) 528-3700 at least one (1) Business Day in advance of
any such interview and provided further that Buyer shall not conduct interviews
with Major Tenants (as that term is hereinafter defined ) without first
providing Seller with telephonic notice of such interview at least one (1)
Business Day in advance and providing Seller with the opportunity to be present
at such interview. With respect to interviews conducted at the Premises, any
such interview shall not unreasonably disrupt or disturb (i) the on-going
operation of the Premises, or (ii) the quiet possession of Tenants.
ARTICLE VII
The Closing
7.1 Closing Date.
7.1.1 The transaction contemplated herein shall be consummated
at the Closing which shall take place at the offices of Seller or at such other
place as shall be mutually agreed upon by Seller and Buyer on the date which is
thirty (30) days after the expiration of the Due Diligence Period (the
"Scheduled Closing Date"; the actual date of the Closing being herein referred
to as the "Closing Date"). The parties acknowledge that Seller desires that the
Closing occur within the last three (3) Business Days of a calendar month.
Accordingly, in the event the Scheduled Closing Date is not within such three
(3) Business Day period, same shall be, upon notice by Seller to Buyer,
adjourned to one of the last three (3) Business Days of the calendar month in
which the Scheduled Closing Date occurs (which notice shall designate the
particular date scheduled for the Closing).
7.2 Conditions to the Closing.
7.2.1 Conditions Precedent to Buyer's Obligations. The Closing
and Buyer's obligations with respect to the transaction contemplated by this
Agreement are subject to the satisfaction of the following conditions, and the
obligations of the parties with respect to such conditions are as follows:
A. Title. Upon payment of all premiums by the party
responsible for such cost pursuant to the terms of Section 8.3 hereof, the Title
Company shall be willing to issue a title insurance policy insuring in Buyer
good and marketable fee title to the Property (subject only to the Permitted
Exceptions), and otherwise be in accordance with the provisions of Article VI
hereof (the "Title Policy").
B. Tenant Estoppel Certificates. Seller shall request and
Buyer shall have received estoppel certificates certified to Seller and Buyer
(and, if requested by Buyer, Buyer's lending institution), and dated not more
than thirty (30) days prior to the Closing Date ("Tenant Estoppel Certificates")
duly executed by (i) each Major Tenant (as that term is hereinafter defined) and
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(ii) such other Tenants so that Tenant Estoppel Certificates shall have been
received from Tenants occupying, in the aggregate, at least 80% of the rentable
square footage of the Improvements (the foregoing condition, the "Estoppel
Condition"). "Major Tenants" mean those Tenants set forth on Exhibit O annexed
hereto. The Tenant Estoppel Certificates shall be in the form of and upon the
terms set forth on Exhibit P annexed hereto. Seller shall deliver the original
executed Tenant Estoppel Certificates to Buyer as and when the same shall be
delivered to Seller, but in no event later than one (1) Business Day prior to
the Closing Date. If any Tenant Estoppel Certificate shall have been modified or
qualified in any fashion that, individually or in connection with other Tenant
Estoppel Certificates, reveals facts, conditions or circumstances which result
or may result in a material adverse change in the financial condition of the
Property, or are inconsistent in any material respect with the representations
of Seller set forth in Section 4.1 above, then Buyer may disapprove the same
(such disapproved Tenant Estoppel Certificates, the "Unacceptable Certificates")
by notice delivered to Seller promptly following Buyer's receipt of such
Unacceptable Certificate, and, for purposes of establishing whether the Estoppel
Condition has been satisfied, any Unacceptable Certificates shall be deemed not
to have been received. In the event Seller the Tenant Estoppel Certificate
delivered by either Stop & Shop or the Tenant known as Marshalls Department
Store ("Marshalls"), is deemed to be an Unacceptable Certificate as a result of
the fact that it fails to include certifications with respect to all of the
matters set forth on Exhibit P, Seller shall deliver to Buyer a supplementary
certification, in the form of Exhibit P, with respect to those matters contained
in Exhibit P (other than the certification with respect to subordination), which
are not included in the Unacceptable Certificate delivered by Marshalls and/or
Stop & Shop (any such certificate, a "Seller's Certificate"). Seller shall not
be obligated, in the Seller's Certificate, to make certifications which are
inconsistent with the representations of Seller set forth in Section 4.1 above.
C. Manager Termination. Buyer shall have received a
termination (the "Manager Termination and Release") of the management agreement
entered into with Calarese Development Corporation ("Existing Property Manager")
duly executed by Existing Property Manager and Seller to be dated as of the
Closing Date. The Manager Termination and Release shall be substantially in the
form set forth in Exhibit Q annexed hereto.
D. Representations, Warranties and Covenants of Seller. Seller
shall have duly performed each and every agreement to be performed by Seller
under this Agreement and Seller's representations, warranties and covenants set
forth in this Agreement shall be true and correct as of the Closing Date.
E. No Material Changes. On the Closing Date, there shall have
been no material adverse changes in the physical condition or operating results
of the Property.
F. Seller's Deliveries. Seller shall have delivered the items
described in Section 7.3 below.
The conditions set forth in this Section 7.2.1 are solely for the
benefit of Buyer and may be waived only by Buyer. Buyer shall at all times have
the right to waive any condition. Such waiver or waivers shall be in writing.
The waiver by Buyer of any condition shall not relieve Seller of any liability
or obligation as respects any representation, warranty or covenant of Seller
(other than to the extent provided in Section 10.2.2 hereof). Neither Seller nor
Buyer shall act or fail to act for the purpose of permitting or causing any
19
condition to fail (except to the extent Buyer, in its own discretion, exercises
its right to disapprove or not to waive any such items or matters). The
occurrence of the Closing shall constitute approval by Buyer of all matters to
which Buyer has a right of approval under this Agreement and a waiver of all
conditions precedent under this Agreement.
7.2.2 Conditions Precedent to Seller's Obligations. The
Closing and Seller's obligations with respect to the transaction contemplated by
this Agreement are subject to the satisfaction of the following conditions and
the obligations of the parties with respect to such conditions are as follows:
A. Buyer's Deliveries. Buyer shall have delivered the items
described in Section 7.4 below.
B. Covenants of Buyer. Buyer shall have duly performed each
and every agreement to be performed by Buyer under this Agreement.
The conditions set forth in this Section 7.2.2 are solely for the
benefit of Seller and may be waived only by Seller. Seller shall at all times
have the right to waive any condition. Such waiver or waivers shall be in
writing. The waiver by Seller of any condition shall not relieve Buyer of any
liability or obligation as respects any covenant of Buyer unless Seller shall so
agree in writing. Neither Seller nor Buyer shall act or fail to act for the
purpose of permitting or causing any condition under this Section 7.2.2 to fail
(except to the extent Seller, in its own discretion, exercise its right not to
waive any such items or matters). The occurrence of the Closing shall constitute
approval by Seller of all matters to which Seller has a right of approval under
this Agreement and a waiver of all conditions precedent under this Agreement.
7.3 At the Closing, Seller shall cause to be delivered each of the
following items to Buyer, duly executed by the Partnership and/or the Trust,
as and to the extent applicable:
7.3.1 A deed substantially in the form of Exhibit R attached
hereto and made a part hereof conveying fee simple title in the Premises to
Buyer or Buyer's designee;
7.3.2 An assignment and assumption of leases for the Premises
(the "Assignment and Assumption of Leases") substantially in the form of Exhibit
S attached hereto and made a part hereof;
7.3.3 With respect to those Service Contracts that Buyer shall
not have elected to terminate, an assignment and assumption of service contracts
for the Premises (the "Assignment and Assumption of Service Contracts")
substantially in the form of Exhibit T attached hereto and made a part hereof;
7.3.4 A bill of sale and general assignment for the Premises
substantially in the form of Exhibit U attached hereto and made a part hereof;
7.3.5 Duly executed and sworn affidavits of the nature
contemplated by Section 6.3 hereof, as reasonably required by the Title Company;
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7.3.6 A certification of non-foreign status substantially in
the form of Exhibit V attached hereto and made a part hereof;
7.3.7 Requisite affidavits and consents, in form reasonably
satisfactory to Buyer and the Title Company, indicating that Seller is
authorized to complete the transaction contemplated by this Agreement,
including, without limitation, an incumbency certificate for each of the
individuals executing a document on behalf of Seller.
7.3.8 The Tenant Estoppel Certificates.
7.3.9 If applicable, the Seller's Certificate.
7.3.10 If applicable, documentation regarding Unreimbursed
Stop & Shop Costs existing on the Closing Date, as described in Section 8.5
hereof.
7.3.11 The Manager Termination and Release.
7.3.12 A management agreement, substantially in the form of
Exhibit W attached hereto and made a part hereof, between Buyer and an entity
owned and controlled by Roger Calarese (the "New Management Agreement").
7.3.13 An Affidavit from Seller in accordance with the
provisions of Section 1445 of the Internal Revenue Code of 1986, as amended.
7.3.14 A Direction of Beneficiary, substantially in the form
of Exhibit X attached hereto and made a part hereof.
7.3.15 A Certificate of Trustees, substantially in the form of
Exhibit Y attached hereto and made a part hereof.
7.3.16 A certificate of Seller, dated as of the Closing Date,
certifying that all of the representations and warranties of Seller set forth in
Section 4.1 hereof are true and correct in all material respects as of the
Closing Date (or, if all of the representations are not so true and correct, and
Buyer has elected, nevertheless, to proceed to Closing, a statement, specifying,
with respect to such representations and warranties, the respects in which the
same are not true and correct).
7.3.17 The Plans and Specifications.
7.3.18 All sums required to be paid by Seller under this
Agreement.
7.4 At the Closing, Buyer shall cause to be delivered each of the
following items, duly executed by Buyer, if applicable:
7.4.1 The Balance, in the manner provided in Sections 2.2.2
and 2.2.3 hereof;
7.4.2 The Prepayment Consideration;
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7.4.3 The Assignment and Assumption of Leases;
7.4.4 The Assignment and Assumption of Service Contracts; and
7.4.5 The New Management Agreement.
7.5 Casualty and Condemnation.
7.5.1 Condemnation
A. If, prior to the Closing Date, all or any "material"
portion of the Premises is taken by eminent domain or condemnation (or is the
subject of a pending or contemplated eminent domain or condemnation proceeding
which has not been consummated), then Seller shall notify Buyer of such fact,
and Buyer shall have the option:
(i) to terminate this Agreement, in which event the Escrow
Agent shall return the Downpayment to Buyer, and, thereupon 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) to accept title to the Property without any abatement of
the Purchase Price.
B. In the event of the taking of a portion of the Premises
that is not "material", or if a "material" portion is so taken, but Buyer elects
to accept title to the Premises, Seller shall assign and turn over to Buyer at
the Closing, and Buyer shall be entitled to receive and keep, all amounts
awarded or to be awarded as the result of the taking. In either of such events,
(a) Seller shall not, prior to Closing, settle any action or claim with respect
to any eminent domain or condemnation proceeding without Buyer's prior written
consent, and (b) Seller agrees to cooperate with Buyer in good faith in
connection with all eminent domain and condemnation proceedings including,
without limitation, executing all documents and instruments necessary to allow
Buyer, following the Closing, to settle all actions and claims and collect all
sums in connection therewith.
7.5.2 Casualty.
A. If, prior to the Closing Date, all or any "material"
portion of the Premises is damaged or destroyed or otherwise affected by a fire
or other casualty, then Seller shall notify Buyer of such fact, and Buyer shall
have the option:
(i) to terminate this Agreement, in which event the Escrow
Agent shall return the Downpayment to Buyer, and, thereupon, no party hereto
shall have any further obligations in connection herewith except under those
provisions that expressly survive the termination of this Agreement; or
(ii) to accept title to the Property in its existing condition
without any abatement of the Purchase Price, in which event Seller shall pay and
assign to Buyer, at the Closing, all of Seller's right, title and interest in
and to the insurance proceeds awarded or to be awarded to Seller as the result
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of such damage or destruction, and Buyer shall receive a credit for any
deductible under Seller's insurance policies. In such event, (y) Seller shall
not, prior to Closing, settle any insurance claim without Buyer's prior written
consent and (z) Seller agrees to cooperate with Buyer in good faith in
connection with the settlement of all insurance claims including, without
limitation, executing all documents and instruments necessary to allow Buyer,
following the Closing, to settle and collect all sums in connection therewith.
7.5.3 A "material" part of the Premises shall be deemed to
have been taken by eminent domain or condemnation, or damaged or destroyed or
otherwise affected by a fire or other casualty, if (a) the value of the Premises
(as reasonably determined by Buyer) shall be reduced by an amount equal to or
greater than Two Hundred Thousand Dollars ($200,000.00) or (b) as a result
thereof, access to the Premises shall be materially and adversely affected (as
reasonably determined by Buyer) or the remaining available number of parking
spaces shall be less than the minimum legally or contractually required or (c)
if Tenants occupying more than Ten Thousand (10,000) square feet of gross
leasable area have the right to terminate their Leases in connection with such
taking by eminent domain or condemnation or casualty.
7.5.4 The provisions of this Section 7.5 shall survive the
Closing.
ARTICLE VIII
Prorations and Adjustments
8.1 The following prorations and adjustments shall be made between the
parties as of 11:59 p.m. on the day preceding the Closing Date (the "Proration
Date") on the basis of the actual number of days elapsed over the applicable
period:
A. (i) All fixed rents and estimated payments on account of
Overage Rent under Leases which are collected on or prior to the Proration Date
in respect of the month (or other applicable collection period) in which the
Closing occurs (the "Current Month"), shall be adjusted on a per diem basis
based upon the number of days in the Current Month prior to the Proration Date
and the number of days in the Current Month on and after the Proration Date.
(ii) If, on the Proration Date, any fixed rents are past due
by any Tenant, and provided Seller has delivered to Buyer, in reasonable detail,
a breakdown of all such past due amounts as of the Proration Date, then Buyer
agrees that the first moneys received from each such Tenant shall be disbursed
as follows:
(1) first, such moneys shall be applied to fixed rents in
respect of the Current Month, it being agreed that one hundred percent (100%) of
the fixed rent that is attributable to the portion of the Current Month prior to
the Proration Date shall go to Seller and the balance shall go to Buyer;
(2) second, to Buyer until all fixed rents owing by all such
Tenants for any period after the Current Month through the month in which
payment is received have been paid in full;
(3) third, to Seller until all fixed rents owing by all such
Tenants for periods prior to the Current Month have been paid in full; and
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(4) fourth, the balance, if any, shall go to Buyer.
Each party agrees to remit reasonably promptly to the other the amount
of such rents to which such party is so entitled and to account to the other
party monthly in respect of same. The fixed rents received by Buyer and/or
Seller after the Proration Date shall be apportioned and remitted, if
applicable, as hereinabove provided.
Notwithstanding anything herein contained to the contrary, Buyer shall
use reasonable efforts to collect both fixed rent and Overage Rent which is past
due on the Proration Date. In the event that any such rent is not collected
within ninety (90) days from the Closing Date, Seller may use reasonable efforts
to collect the same in its own name and Buyer shall cooperate, in all reasonable
respects, with Seller in attempting to collect the same; provided, however,
Seller shall not take any actions which result in the dispossession of any
Tenant or the termination of any Lease. Seller shall be permitted to take any
action it deems appropriate with respect amounts past due from former tenants of
the Premises, and Buyer shall have no interest therein. Additionally, Seller
shall be entitled to receive proceeds, if any, from bankruptcy proceedings
relating to the Tenants known as Weathervane, Toy Works, and Cambridge Eye, in
the amounts set forth on the Rent Roll, and Buyer shall have no interest
therein.
(iii) If the Proration Date shall occur prior to the time when
any rental payments for percentage rent fuel pass-alongs, so-called escalation
rent or charges based upon real estate taxes, insurance, operating expenses,
labor costs, cost of living increases, electrical charges, water and sewer
charges or like items (collectively, "Overage Rent") are payable, then such
Overage Rent for the applicable accounting period in which the Proration Date
occurs shall be apportioned subsequent to the Closing, based upon the portion of
such accounting period which occurs prior to the Proration Date (to the extent
not theretofore collected by Seller, on account of such Overage Rent prior to
the Proration Date), it being agreed that one hundred percent (100%) of the
Overage Rent that is attributable to the portion of such accounting period that
shall occur prior to the Proration Date shall belong to Seller and the balance
shall belong to Buyer. In addition, Buyer shall pay to Seller one hundred
percent (100%) of all Overage Rent that is paid subsequent to the Proration Date
with respect to an accounting period which expired prior to the Proration Date,
within thirty (30) days after receipt thereof by Buyer. Seller has collected
payment from Tenants under Leases in advance on account of insurance carried by
Seller with respect to the Premises for the one (1) year period ending March 28,
2005. Such pre-payments shall be apportioned at the Closing on a per diem basis
based upon the actual number of days in the period with respect to which said
insurance relates prior to the Proration Date and the number of days in such
period on and after the Proration Date.
(iv) Overage Rent and any percentage rent payable by Tenants
based on an estimated amount and subject to adjustment or reconciliation
pursuant to the related Leases subsequent to the Proration Date shall be
apportioned as provided in subsection (iii) above and shall be re-apportioned as
and when the applicable Tenant's actual obligation for such Overage Rent is
reconciled pursuant to the applicable Lease.
B. All real estate taxes, unmetered water and sewer charges, fire
protection and hydrant charges, elevator inspection fees, and vault charges, if
any, and any and all other municipal or governmental assessments of any and
every nature levied or imposed upon the Property (collectively, "Taxes") in
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respect of the current fiscal year of the applicable taxing authority in which
the Closing occurs (the "Current Tax Year") (other than real estate taxes, water
and sewer charges and any other municipal or governmental assessments payable by
any Tenant directly to the taxing authority under any Lease), shall be allocated
on a per diem basis based upon the number of days in the Current Tax Year prior
to the Proration Date and the number of days in the Current Tax Year on and
after the Proration Date. If, as of the Proration Date, Taxes for the Current
Tax Year shall not have been paid with respect to the period prior to the
Proration Date, then the amount equal to the unpaid Taxes for the period prior
to the Proration Date shall be paid by Seller to Buyer at the Closing. If the
Closing shall occur before the tax rate for the Current Tax Year is fixed, then
the apportionment of Taxes shall be upon the basis of the tax rate for the next
preceding fiscal period applied to the latest assessed valuation. Promptly after
the new tax rate is fixed for the fiscal period in which the Closing takes
place, the apportionment of Taxes shall be recomputed. In the event that any
assessments levied or imposed upon the Property are payable in installments, the
installment for the Current Tax Year shall be prorated in the manner set forth
above.
C. All charges and fees due under contracts for the supply to the
Premises of heat, steam, electric power, gas and light and telephone
(collectively, "Charges"), if any, in respect of the billing period of the
related service provider in which the Closing occurs (the "Current Billing
Period") shall be allocated on a per diem basis based upon the number of days in
the Current Billing Period prior to the Proration Date and the number of days in
the Current Billing Period on and after the Proration Date and assuming that all
charges are incurred uniformly during the Current Billing Period. If, as of the
Proration Date, Charges for the Current Billing Period shall not have been paid
with respect to the period prior to the Proration Date, then the amount equal to
the unpaid Charges for the period prior to the Proration Date shall be paid by
Seller to Buyer at the Closing.
D. Any charges or fees for transferable licenses and permits relating
to the Property (but without duplication of items apportioned pursuant to any
other provision of this Article VIII) (collectively, "Permit Charges") in
respect of the Current Billing Period shall be allocated on a per diem basis
based upon the number of days in the Current Billing Period prior to the
Proration Date and the number of days in the Current Billing Period on and after
the Proration Date and assuming that all charges are incurred uniformly during
the Current Billing Period. If, as of the Proration Date, Permit Charges for the
Current Billing Period shall not have been paid with respect to the period prior
to the Proration Date, then the unpaid Permit Charges for the period prior to
the Proration Date shall be paid by Seller to Buyer at the Closing.
E. Any charges payable under Service Contracts being assigned to Buyer
at the Closing (but without duplication of items apportioned pursuant to any
other provision of this Article VIII) (collectively, "Service Contract
Charges"), in respect of the Current Billing Period shall be allocated on a per
diem basis based upon the number of days in the Current Billing Period prior to
the Proration Date and the number of days in the Current Billing Period on and
after the Proration Date and assuming that all charges are incurred uniformly
during the Current Billing Period. If, as of the Proration Date, Service
Contract Charges for the Current Billing Period shall not have been paid with
respect to the period prior to the Proration Date, then an amount equal to the
unpaid Service Contract Charges for the period prior to the Proration Date shall
be paid by Seller to Buyer at the Closing.
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F. If there is a fuel meter or meters on the Premises (other than
meters measuring consumption costs which are the obligation of any Tenants),
then Seller shall endeavor to furnish a reading to a date not more than thirty
(30) days prior to the Proration Date, and the unfixed meter charges, if any,
based thereon for the intervening time shall be apportioned on the basis of such
last reading. If Seller fails or is unable to obtain such reading, then the
amount equal to the value of all fuel, if any, then stored at the Property shall
be calculated on the basis of Seller's last costs therefor, including sales tax,
as evidenced by written statements of the fuel oil supplier(s) for the Premises,
which statements shall be conclusive as to quantity and cost, absent fraud. Any
unpaid fuel charges attributable to the period prior to the Proration Date shall
be paid by Seller to Buyer at the Closing.
G. If there is a water meter or meters on the Property (other than
meters measuring consumption costs which are the obligation of any Tenants),
then Seller shall endeavor to furnish a reading to a date not more than thirty
(30) days prior to the Proration Date, and the unfixed meter charges and the
unfixed sewer rents, if any, based thereon for the intervening time shall be
apportioned on the basis of such last reading. If Seller fails or is unable to
obtain such reading, then the amount of the meter charges and sewer rents shall
be determined on the basis of the last readings and bills received by Seller,
and the same shall be appropriately readjusted after the Closing on the basis of
the next subsequent bills. Any unpaid water or sewer charges attributable to the
period prior to the Proration Date shall be paid by Seller to Buyer at the
Closing.
H. Any other items customarily apportioned in connection with sales of
similar property in the Commonwealth of Massachusetts shall be so apportioned.
8.2 If any of the items described in this Article VIII 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 Proration
Date or the date such error is discovered, as applicable. The parties shall make
the appropriate adjusting payment between them within thirty (30) days after
presentment of the calculation. All books and records of Seller which relate to
the Property, and particularly to any items to be prorated or allocated under
this Agreement in connection with the Closing, shall be made available to both
Seller and Buyer and their respective employees, agents and representatives. Any
such inspection shall be at reasonable intervals, during business hours, upon
reasonable notice, and at the inspecting party's sole cost and expense.
8.3 Closing Costs. Buyer shall pay the title insurance premium for the
Title Policy and the cost of all endorsements to the Title Policy. Seller and
Buyer shall pay their respective legal, consulting and professional fees and
expenses incurred in connection with this Agreement and the transaction
contemplated hereby.
8.4 Tenant Costs. All brokerage commissions and expenses for work to be
done for tenant improvements other than expenses for tenant improvement work to
be done in connection with the Stop & Shop Expansion (and the relocation of
Village Liquors and HB) in connection with any leases entered into on or prior
to the date hereof which commissions and expenses were not paid prior to the
Proration Date shall be paid by Seller to Buyer at the Closing. In the event
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Seller, with Buyer's consent, enters into any lease after the date hereof, all
brokerage commissions and expenses for work to be done for tenant improvements
in connection with any such lease shall be paid by Buyer to Seller at the
Closing (provided that Buyer instructed or authorized Seller to incur such cost
or that such cost was specifically contemplated by the terms of such lease to be
paid by the landlord thereunder).
8.5 Costs relating to Stop & Shop Expansion (and the relocation of
Village Liquors and HB). At the Closing, Seller shall deliver to Buyer an
accounting, and reasonably detailed back-up for Seller's then existing
Unreimbursed Stop & Shop Costs. Buyer agrees that it shall use its commercially
reasonable efforts, without obligation to incur cost or expense or to commence
dispossess proceeding, to recover such Unreimbursed Stop & Shop Costs from Stop
& Shop and shall, upon Buyer's receipt of same, promptly forward same to Seller.
The parties acknowledge that Stop & Shop is obligated, pursuant to the terms of
the Stop & Shop Amendment, to make payments to the owner of the Premises on
account of the costs resulting from the Village Liquor relocation. To the extent
the reasonable and actual costs incurred by Buyer in connection with the
performance of the work contemplated by the Village Liquor Amendment and the HB
Lease, exceeds the amounts for which Stop & Shop is, pursuant to the terms of
the Stop & Shop Amendment, responsible, Buyer shall provide an accounting and
reasonably detailed back-up with respect thereto, and Seller shall promptly
reimburse Buyer for same. If Seller has performed work pursuant to the Village
Liquor Amendment prior to the Closing, Seller shall, on or before the Closing
Date, provide an accounting, and reasonably detailed back-up with respect
thereto. Upon the receipt by Buyer of final funds from Stop & Shop on account of
the Village Liquor relocation pursuant to the Stop & Shop Amendment, Buyer shall
promptly reimburse Seller for the reasonable and actual costs incurred by
Seller, but only to the extent that the funds so provided by Stop & Shop exceed
the reasonable and actual costs incurred by Buyer in connection with performance
of work contemplated by the Village Liquor Amendment and the HB Lease.
8.6 Existing Property Management Agreement. All accrued fees pursuant
to the Existing Property Management Agreement shall be paid by Seller at or
prior to Closing..
8.7 Transfer Tax. All transfer, stamp tax, or other similar taxes
attributable to the sale of the Property shall be paid by Seller and shall be
paid contemporaneously with the Closing.
8.8 Prepayment Consideration and Interest Shortfall Payment. The
payment of Prepayment Consideration shall be paid by Buyer at the Closing. The
payment of the Interest Shortfall Payment and any other fees or sums relating to
the repayment of the Mortgage Loan shall be paid by Seller at the Closing.
8.9 Survival. Notwithstanding anything to the contrary contained
herein, the provisions of this Article VIII shall survive the Closing.
ARTICLE IX
Escrow Terms
9.1 Depository. The Downpayment shall be held in escrow by Commonwealth
Land Title Insurance Company ("Escrow Agent"), in a special interest bearing
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commercial bank account, designated as a "trust account" or an "escrow account",
at JPMorgan Chase Bank (or its successor) in New York, New York.
9.2 Escrow Instructions. If the Closing takes place, then Escrow Agent
shall deliver the Downpayment to, or upon the instructions of, Seller at the
Closing. If this Agreement is terminated in accordance with the terms hereof,
then, subject to Section 9.4 hereof, Escrow Agent shall pay the Downpayment to,
or upon the instructions of, the party entitled thereto in accordance with the
provisions of this Agreement. If the Closing does not occur by reason of the
failure of either party to comply with such party's obligations hereunder, then,
subject to Section 9.4 hereof, Escrow Agent shall pay the Downpayment to, or
upon the instructions of, the party entitled thereto in accordance with the
provisions of this Agreement.
9.3 Scope of Duties. The duties of Escrow Agent shall be only as herein
specifically provided, and are purely ministerial in nature. Escrow Agent shall
incur no liability whatever except for willful misconduct or gross negligence,
as long as Escrow Agent has acted in good faith. Seller and Buyer acknowledge
that Escrow Agent is serving without compensation and solely as an accommodation
to the parties hereto. Escrow Agent shall not be liable or responsible for the
funds being held in escrow or for the collection of the proceeds of the check
for the Downpayment or for the interest earned thereon. In the performance of
its duties hereunder, Escrow Agent shall be entitled to rely upon the
authenticity of any signature and the genuineness and validity of any writing
received by Escrow Agent pursuant to or otherwise relating to this Agreement.
Escrow Agent may assume that any Person purporting to give any notice or
instructions in accordance with the provisions hereof has been duly authorized
to do so. Escrow Agent shall not be bound by any modification, cancellation or
rescission of this Agreement unless (i) such modification, cancellation or
rescission is in writing and signed by Seller and Buyer, and (ii) a copy of such
modification, cancellation or rescission is delivered to Escrow Agent. Escrow
Agent shall not be bound in any way by any other contract or understanding
between the parties hereto, whether or not Escrow Agent has knowledge thereof or
consents thereto, unless such consent is given in writing.
9.4 Dispute. Escrow Agent is acting as a stakeholder only with respect
to the Downpayment and the interest earned thereon. If a party requests
disbursement of the Downpayment for any reason other than the Closing having
occurred, then Escrow Agent shall give written notice to the other party of such
request. Such other party shall have the right to dispute the disbursement of
the Downpayment to the requesting party only by delivering notice thereof to
Escrow Agent on or prior to the tenth (10th) day after the date when Escrow
Agent gives such notice. Notwithstanding anything to the contrary contained
herein, Escrow Agent shall not disburse the Downpayment until the day
immediately following the last day of such ten (10) day period. If there is any
dispute as to whether Escrow Agent is obligated to deliver the Downpayment or as
to whom said Downpayment is to be delivered, then Escrow Agent shall not make
any delivery, but in such event Escrow Agent shall hold the same until Escrow
Agent receives (a) notice from the objecting party withdrawing the objection, or
(b) a notice signed by both parties directing disposition of the Downpayment, or
(c) a non-appealable judgment or order of a court of competent jurisdiction. If
such notice is not received, or proceedings for such determination are not
begun, within thirty (30) calendar days after the date set forth herein for the
Closing (as the same may have been changed by agreement of the parties) and
diligently continued, then Escrow Agent shall have the right to (w) hold and
retain all or any part of the Downpayment until such dispute is settled or
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finally determined by litigation, arbitration or otherwise, or (x) deposit the
Downpayment, together with the interest earned thereon, in an appropriate court
of law, following which Escrow Agent shall thereby and thereafter be relieved
and released from any liability or obligation under this Agreement, or (y)
institute an action in interpleader or other similar action permitted by
stakeholders in the Commonwealth of Massachusetts, or (z) interplead any of the
parties in any action or proceeding which may be brought to determine the rights
of the parties to all or any part of the Downpayment.
9.5 Indemnity. Seller and Buyer hereby agree to, jointly and severally,
indemnify, defend and hold Escrow Agent harmless from and against any
liabilities, damages, losses, costs or expenses incurred by, or claims or
charges made against, Escrow Agent (including reasonable counsel fees and court
costs) by reason of Escrow Agent's acting or failing to act in connection with
any of the matters contemplated by this Agreement or in carrying out the terms
of this Agreement, except as a result of Escrow Agent's bad faith, gross
negligence or willful misconduct. This Section 9.5 shall not limit the right of
Buyer and Seller to assert claims against each other with respect to said
indemnity.
9.6 Release from Liability. Upon the disbursement of the Downpayment,
together with the interest earned thereon, in accordance with this Agreement,
Escrow Agent shall be relieved and released from any liability hereunder.
9.7 Resignation. Escrow Agent may resign at any time upon at least ten
(10) days prior written notice to the parties hereto. If, prior to the effective
date of such resignation, the parties hereto shall all have approved, in
writing, a successor escrow agent, then upon the resignation of Escrow Agent,
Escrow Agent shall deliver the Downpayment, together with the interest earned
thereon, to such successor escrow agent. From and after such resignation and the
delivery of the Downpayment, together with the interest earned thereon, to such
successor escrow agent, Escrow Agent shall be fully relieved of all of its
duties, responsibilities and obligations under this Agreement, all of which
duties, responsibilities and obligations shall be performed by the appointed
successor escrow agent. If for any reason the parties hereto shall not approve a
successor escrow agent within such period, then Escrow Agent may bring any
appropriate action or proceeding for leave to deposit the Downpayment, together
with the interest earned thereon, with a court of competent jurisdiction,
pending the approval of a successor escrow agent, and upon such deposit Escrow
Agent shall be fully relieved of all of its duties, responsibilities and
obligations under this Agreement.
9.8 Execution of Agreement by Escrow Agent. Escrow Agent has executed
this Agreement solely to confirm that Escrow Agent has received a check (subject
to collection) or a wire transfer for the Downpayment and shall hold the
Downpayment in escrow, pursuant to the provisions of this Agreement.
9.9 Loss of Downpayment. Escrow Agent shall not have any liability or
obligation for loss of all or any portion of the Downpayment by reason of the
insolvency or failure of the institution of depository with whom the escrow
account is maintained.
9.10 Taxpayer Identification Numbers. Each Seller and Buyer represents
that its respective taxpayer identification number is as set forth on Exhibit Z
annexed hereto.
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ARTICLE X
Remedies
10.1 Buyer Default.
10.1.1 If Buyer shall default in the payment of the Balance,
then Seller may terminate this Agreement and retain the Downpayment. Buyer
acknowledges that, if Buyer shall default under this Agreement as aforesaid,
then Seller will suffer substantial adverse financial consequences as a result
thereof. Accordingly, Seller's sole and exclusive remedy against Buyer shall be
the right to retain the Downpayment, as and for its sole and full and complete
liquidated damages, it being agreed that Seller's damages are difficult, if not
impossible, to ascertain, and Buyer and Seller shall have no further rights or
obligations under this Agreement, except those expressly provided herein to
survive the termination of this Agreement.
10.1.2 In the event the Closing occurs, the foregoing
provisions of Section 10.1.1 shall not prevent Seller from pursuing a
post-Closing action against Buyer relating to Article V, Article VIII, or
Section 11.16 hereof.
10.2 Seller Default
10.2.1 If Seller shall default hereunder for any reason in the
performance of any of its covenants or obligations under this Agreement , then
Buyer may, as its sole remedy, elect to either (x) terminate this Agreement, and
direct the Escrow Agent to return the Downpayment to Buyer, and, upon such
return, Buyer and Seller shall have no further rights or obligations under the
Agreement, except those expressly provided herein to survive the termination of
this Agreement, or (y) require Seller to convey such title to the Property as
Seller is then able to convey or prosecute an action for specific performance of
this Agreement requiring Seller to convey such title to the Property as Seller
is then able to convey. In the event (i) Buyer elects to terminate this
Agreement, as aforesaid , as a result of a default by Seller hereunder, if such
default shall result from or relate to (A) an intentional failure or refusal by
Seller to close title, or (B) an intentionally breach by Seller of a covenant
hereunder, or (ii) any of the representations or warranties given by Seller in
this Agreement are untrue or incorrect in any material respect on the Closing
Date (and same results from an intentional misrepresentation or breach of
warranty by Seller), Seller shall pay to Buyer all reasonable and actual third
party costs incurred by Buyer in connection with this Agreement and the
transactions contemplated to occur hereunder, up to a maximum amount of One
Hundred Thousand Dollars ($100,000.00).
10.2.2 If (1) Seller shall default in the performance of any
of its covenants or obligations under this Agreement, and Buyer shall have
actual knowledge of such default prior to Closing, and Buyer shall thereafter
close title to the Property, or (2) any of Seller's representations and
warranties set forth herein shall not be true and correct in all material
respects, and Buyer shall have actual knowledge of such default prior to the
Closing, and Buyer shall thereafter close title to the Property, then, in either
such case, Buyer shall thereafter have no right to bring any action or
proceeding for damages against Seller arising by reasons of any such default or
misrepresentation (the right to bring such actions or proceedings being
expressly and voluntarily waived by Buyer following and upon advice of its
counsel).
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10.2.3 If (1) Seller shall default in the performance of any
of its covenants or obligations under this Agreement, and Buyer shall first have
actual knowledge of such default after the Closing, or (2) any of Seller's
representations and warranties set forth herein shall not be true and correct in
all material respects, and Buyer shall first have actual knowledge of such
default after the Closing, Buyer shall have the right to bring an action for
damages against Seller. Notwithstanding the foregoing, Buyer shall not have the
right to bring such action in the event Buyer's actual damages are less than
Fifty Thousand Dollars ($50,000.00) (the "Threshold Amount"), but, in the event
Buyer's damages are equal to or exceed the Threshold Amount, Buyer shall have
the right to bring such action for the full amount of Buyer's damages (including
the portion of such damages constituting the Threshold Amount). The concept of
the Threshold Amount shall not apply with respect to any post-Closing action
relating to Article V, Article VIII, or Section 11.16 hereof.
ARTICLE XI
Miscellaneous
11.1 Survival. Except as expressly provided herein, all
representations, warranties, covenants and agreements of Buyer and Seller
contained in this Agreement shall merge into the documents executed at Closing
and shall not survive the Closing.
11.2 Notices. Any notice required or permitted to be delivered herein
shall be deemed to be delivered (a) when received by the addressee if delivered
by courier service, (b) if mailed, two (2) days after deposit in the United
States Mail, postage prepaid, certified mail, return receipt requested, (c) if
sent by recognized overnight service (such as US Express Mail, Federal Express,
UPS, Airborne, etc.), then one (1) day after delivery of same to an authorized
representative or agency of the said overnight service or (d) if sent by a
telecopier, when transmission is received by the addressee with electronic or
telephonic confirmation, in each such case addressed or telecopied to Seller or
Buyer, as the case may be, at the address or telecopy number set forth opposite
the signature of such party hereto. Notifications are as follows:
TO SELLER: Franklin Village Trust
1000 Franklin Village Drive
Franklin, Massachusetts 02038
Attention: Roger V. Calarese, Trustee
Telecopier: (508) 528-0053
with a copy to: Michael Myerow, Esq.
365 Boston Post Road #114
Sudbury, Massachusetts 01776
Telecopier: (978) 443-0566
TO BUYER: Cedar-Franklin Plaza LLC
44 South Bayles Avenue
Port Washington, New York 11050
Attention: Leo S. Ullman
Telecopier: (516) 767-6497
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with a copy to: Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
Attention: Mark A. Levy, Esq.
Telecopier: (212) 806-6006
TO ESCROW AGENT: Commonwealth Land Title Insurance Company
655 Third Avenue
11th Floor
New York, NY 10017
Attention: Cathy J. Snider
Telecopier: (212) 557-2148
11.3 Gender; Numbers. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the singular
number shall be held to include the plural and vice versa unless the context
requires otherwise. Reference herein to the "Seller" shall refer to both of the
Trust and the Partnership, collectively, and to each and/or either of them
individually. The liability of Seller under this Agreement shall be joint and
several.
11.4 Headings. The captions used in connection with the articles and
sections of this Agreement are for convenience only and shall not be deemed to
construe or limit the meaning of the language of this Agreement.
11.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
11.6 Waiver of Trial by Jury. THE PARTIES HERETO HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR
CONTRACT) BROUGHT BY ANY PARTY AGAINST ANOTHER ON ANY MATTER ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT. ANY SUCH ACTION, PROCEEDING, OR
COUNTERCLAIM SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED
WITHIN THE COMMONWEALTH OF MASSACHUSETTS.
11.7 Holidays. If the final date of any period provided for herein for
the performance of an obligation or for the taking of any action falls on a
Saturday, Sunday or banking holiday, then the time of such period shall be
deemed extended to the next day which is not a Saturday, Sunday or banking
holiday in either or both of the State of New York and the Commonwealth of
Massachusetts. The term "Business Day" means a day other than a Saturday, Sunday
or any such banking holiday.
11.8 Interpretation. The parties acknowledge that each party and its
counsel have reviewed this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
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shall not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto.
11.9 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, then such
provision shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement, provided that both parties may still effectively realize the complete
benefit of the transaction contemplated hereby.
11.10 Amendments. No modification or amendment of this Agreement shall
be effective unless made in writing and executed by both Seller and Buyer. In
the event any approval or consent is required pursuant to any provision of this
Agreement, such approval or consent shall be deemed given only if it is in
writing, executed by the party whose approval or consent is required.
11.11 Confidentiality. Neither Seller nor Buyer shall, without the
prior consent of the other party, take out any advertisement to publicize the
transaction contemplated by this Agreement. Buyer agrees that all information
concerning Seller, its beneficiaries, or the Property supplied by Seller or
discovered in connection with its Investigations (other than information in the
public domain at the time supplied to or discovered by Buyer), shall be used
solely in connection with Buyer's acquisition of the Property and that Buyer
shall not disclose such information to third parties prior to the Closing.
Notwithstanding the foregoing, Buyer may, prior to the Closing, disclose such of
the information regarding the Property (i) as required by law or court order
(provided prior written notice of such disclosure shall be provided to Seller)
and (ii) as Buyer deems necessary or desirable in connection with the
Investigations and the transaction contemplated hereby, provided that those to
whom such information and/or material is disclosed are informed of the
confidential nature thereof and agree(s) to keep the same confidential in
accordance with the terms and conditions hereof. In the event that the Closing
shall not occur, for reasons other than a Seller default hereunder, Buyer shall
return to Seller all information concerning the Property delivered or made
available to Buyer by Seller. The provisions of this Section 11.16 shall survive
the Closing or earlier termination of this Agreement.
11.12 Entire Agreement. This Agreement embodies the entire agreement
between the parties and cannot be varied except by the written agreement of the
parties. Seller make no representations, warranties or agreements with respect
to Property, except as set forth in this Agreement.
11.13 Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by Seller to
Buyer at Closing, Seller agree to perform, execute and/or deliver or cause to be
delivered, executed and/or delivered, but without any obligation to incur any
additional liability or expense, on or after the Closing any and all further
acts, deeds and assurances as may be reasonably necessary to consummate the
transactions contemplated hereby.
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11.14 Assignment. Buyer may assign Buyer's rights or delegate Buyer's
duties under this Agreement, but only to one or more entities managed or
controlled by Cedar Shopping Centers Partnership, L.P. The said assignee shall
assume all obligations of Buyer under this Agreement by a written instrument
approved in form and substance by Seller which approval shall not be
unreasonably withheld or delayed. Except as hereinbefore set forth, this
Agreement may not be assigned by Buyer.
11.15 1031 Exchange. Seller and Buyer agree that either party may
consummate the sale or purchase of the Property in whole or in part as part of
one or more so-called "like-kind exchanges" (individually, an "Exchange")
pursuant to Section 1031 of the Internal Revenue Code (the "Code") and that the
non-exchanging party will reasonably cooperate with the exchanging party in its
efforts to do so, provided that (a) the Closing shall not be delayed or affected
by reason of the Exchange nor shall the consummation of obligations under this
Agreement be so delayed or affected; (b) the exchanging party shall affect the
Exchange through a qualified intermediary and the non-exchanging party shall not
be required to acquire or hold title to any real property for the purposes of
consummating the Exchange, and (c) the exchanging party shall indemnify the
non-exchanging party from, and the exchanging party shall pay, any additional
costs that would not otherwise have been incurred by the non-exchanging party
had the exchanging party not consummated this transaction through the Exchange.
The non-exchanging party shall not by this Agreement or its acquiescence to the
Exchange (a) have its rights under this Agreement affected or diminished in any
manner, or (b) be responsible for compliance with or be deemed to have warranted
to the exchanging party that the Exchange in fact complies with Section 1031 of
the Code, or (c) incur any liability whatsoever in connection with the Exchange.
11.16 Indemnity.
11.16.1 Buyer hereby agrees to indemnify and hold harmless
Seller from and against any and all acts, suits, proceedings, demands,
assessments, judgments, costs (including, without limitation, reasonable
attorneys' fees and court costs), loss, damage or liability (collectively,
"B-Claims") resulting to Seller arising from personal injury, death or property
damage occurring at the Premises after the Closing Date. In the event that any
B-Claim shall be asserted by any party against Seller or the Premises which, if
sustained, would result in a liability of Buyer to Seller under this Section,
Seller shall, as soon as reasonably possible after learning of such claim,
notify Buyer thereof and Buyer shall be entitled to defend (with counsel
selected by Buyer and reasonably acceptable to Seller) such B-Claim and shall
have the right to settle or compromise any such B-Claim (provided Seller is
released from liability in connection therewith).
11.16.2 Seller hereby agrees to indemnify and hold harmless
Buyer from and against any and all acts, suits, proceedings, demands,
assessments, judgments, costs (including, without limitation, reasonable
attorneys' fees and court costs), loss, damage or liability (collectively,
"S-Claims") resulting to Buyer arising from personal injury, death or property
damage occurring at the Premises before the Closing Date. In the event that any
S-Claim shall be asserted by any party against Buyer or the Premises which, if
sustained, would result in a liability of Seller to Buyer under this Section,
Buyer shall, as soon as reasonably possible after learning of such claim, notify
Seller thereof and Seller shall be entitled to defend (with counsel selected by
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Seller and reasonably acceptable to Buyer) such S-Claim and shall have the right
to settle or compromise any such S-Claim (provided Buyer is released from
liability in connection therewith).
11.17 Multiple Counterpart. This Agreement may be signed in any number
of counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures thereto and hereto were on the same instrument.
11.18 Facsimile. Delivery of this Agreement by facsimile by any party
shall represent a valid and binding execution and delivery of this Agreement by
such party.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
FRANKLIN VILLAGE TRUST
By:
-----------------------------------
Name: Roger V. Calarese
Title: Trustee
By:
-----------------------------------
Name: A. Richard Calarese
Title: Trustee
CEDAR-FRANKLIN VILLAGE LLC,
a Delaware limited liability company
By:
----------------------------------
Name:
Title:
ESCROW AGENT (and to acknowledge
agreement with Article IX)
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By:
---------------------------------
Name:
Title:
36
Joinder
Franklin Village Development Limited Partnership (the "Partnership"), a
Massachusetts limited partnership, the sole beneficiary of Franklin Village
Trust, hereby acknowledges and consents to the execution of that certain
Agreement of Purchase and Sale (the "Contract"), of even date herewith, by and
between Roger V. Calarese and A. Richard Calarese, as trustees of the Franklin
Village Trust, dated January 19, 1979, as amended ("Seller"), and Cedar-Franklin
Village LLC, a Delaware limited liability company ("Buyer").
The Partnership hereby joins Seller in the making all of the
representations made by Seller in the Contract and in all of the documents
delivered by Seller at the Closing (as that term is defined in the Contract).
Additionally, the Partnership guaranties the performance of all of the
obligations and covenants made by Seller in the Contract. Finally, the
Partnership covenants to deliver at the Closing those documents contemplated in
the Contract to be so delivered by the Partnership.
The terms of this Joinder shall survive the Closing.
Franklin Village Development Limited Partnership,
a Massachusetts limited partnership
By: Franklin Village Development Corporation,
a Massachusetts corporation, its general
partner
By:
----------------------------------------
Name:
Title:
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