AGREEMENT OF SALE
SPRINGFIELD ASSOCIATES
AND
PREIT RUBIN, INC.
TABLE OF CONTENTS
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Page
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1. Sale and Purchase of Property............................................................................1
2. Access to Seller's Records, etc..........................................................................3
3. Purchase Price...........................................................................................4
4. Quality of Title.........................................................................................5
5. Representations, Covenants and Warranties of Seller and Buyer............................................8
6. Assessments; Violations.................................................................................16
7. Risk of Loss............................................................................................16
8. Condemnation............................................................................................18
9. Buyer's Inspections and Tests; Board Approval; Strawbridges.............................................19
10. Escrow..................................................................................................21
11. Conditions to Obligations; "As Is" Sale.................................................................21
12. Closing.................................................................................................23
13. Provisions with Respect to Closing......................................................................23
14. Brokerage...............................................................................................32
15. Operations Prior to Closing.............................................................................33
16. Default.................................................................................................34
17. Time of Essence.........................................................................................35
18. Waiver of Conditions....................................................................................35
19. Further Assurance.......................................................................................36
20. Integration-Merger......................................................................................36
21. No Recording............................................................................................36
22. Notice..................................................................................................36
23. Miscellaneous...........................................................................................38
24. Cooperation with Tax-Free Exchange......................................................................39
25. Severability of Provisions..............................................................................39
26. Non-Disclosure..........................................................................................40
27. Rules of Interpretation.................................................................................40
28. Limited Liability.......................................................................................40
29. Access to Documents.....................................................................................41
30. Return of Documents.....................................................................................41
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EXHIBITS
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Exhibit A-1: Legal Description of Shopping Center Land
Exhibit A-2: Legal Description of Vacant Land
Exhibit A-3: Legal Description of Office Land
Exhibit B-1: Description of Personal Property (Shopping Center)
Exhibit B-2: Description of Personal Property (Office)
Exhibit B-3: Description of Excluded Property
Exhibit B-4: Letter Form of Credit
Exhibit B-5 List of Specific Permitted Exceptions
Exhibit C: Schedule of Pending Claims and Litigation
Exhibit D-1: Schedule of Leases/Rent Roll (Shopping Center)
Exhibit D-2: Schedule of Leases/Rent Roll (Office)
Exhibit D-3: Schedule of Reimbursable Lease Expenses Approved by Buyer
Exhibit E-1: Service Contracts and Other Contracts
Exhibit E-2: Defaults Under Contracts
Exhibit F: Schedule of Environmental Disclosures
Exhibit G: Post-Closing Escrow Agreement
Exhibit H: Insurance
Exhibit H-1 REA Insurance
Exhibit I: Escrow Agreement
Exhibit J: Form of Deed
Exhibit K: Form of Assignment and Assumption of Leases
Exhibit L-1: Form of Assignment and Assumption
Exhibit L-2: Form of REA/Springpenn Assignment
Exhibit M-1: Tenant Estoppel Certificate
Exhibit M-2: Form of REA Estoppel
Exhibit M-3: Form of Springpenn Estoppel
Exhibit N: Form of Bill of Sale
Exhibit O: Form of Title Affidavit
Exhibit P: Form of Representation Letter
Exhibit Q: Schedule of Gift Certificates
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AGREEMENT OF SALE
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THIS AGREEMENT OF SALE ("Agreement") is made as of the 16th day of
September, 2005 (the "Execution Date"), by and among Springfield Associates, a
Pennsylvania limited partnership ("Seller"), and PREIT RUBIN, INC., a
Pennsylvania corporation ("Buyer").
WITNESSETH:
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INTENDING TO BE legally bound hereby, Seller and Buyer agree as
follows:
1. Sale and Purchase of Property
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Subject to the other provisions of this Agreement, Seller
agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller:
(i) that certain improved parcel of land located in Springfield Township,
Delaware County, Pennsylvania, having a street address at 1250 Baltimore Pike,
Springfield Township, Pennsylvania, as more fully described by a legal
description attached hereto and made a part hereof as EXHIBIT "A-1" ("The
Shopping Center Land"); and (ii) that certain unimproved parcel of land
containing approximately 5.36 acres, also located in Springfield Township,
Delaware County, Pennsylvania, as more fully described by a legal description
attached hereto and made a part hereof as EXHIBIT "A-2", which parcel was
formerly known as the "Kelch Tract" (the "Vacant Land"); and (iii) that certain
improved parcel of land located in Springfield Township, Delaware County,
Pennsylvania, having a street address at 10 East Sproul Road, Springfield
Township, Pennsylvania, as more fully described by a legal description attached
hereto and made a part hereof as EXHIBIT "A-3" ("Office Land") (The Shopping
Center Land, the Vacant Land and the Office Land are sometimes collectively
referred to herein as the "Land"); in each case together with the following:
(a) all buildings, appurtenant fixtures and other improvements
(the "Improvements") presently erected on the Land and owned by Seller,
including (i) the enclosed regional mall containing approximately 221,000
leaseable square feet and known as the "Springfield Mall" located on The
Shopping Center Land (including The Shopping Center Land, the "Shopping
Center"), and (ii) the office building containing approximately 2976 leaseable
square feet located on the Office Land;
(b) all rights, privileges, grants and easements appurtenant
to the Land and owned by Seller, including all of Seller's right, title and
interest in and to all land lying in the bed of any public street, road or
alley, all mineral and water rights and all easements (including that certain
Construction, Operating and Reciprocal Easement Agreement dated August 23, 1973,
recorded in the office of the Recorder of Deeds in and for Delaware County,
Pennsylvania (the "Recorder's Office") in Deed Book 2469, page 564 (the "REA"),
and that certain Two-Party Agreement dated August 22, 1973, by and between
Seller and Springpenn Properties Corp., a Pennsylvania corporation (together
with its successors and assigns, "Springpenn"), which is unrecorded but for
which a Memorandum of Agreement dated August 22, 1973 was recorded in the
Recorder's Office in Deed Book 2484, page 969, as amended by that certain
Agreement dated November 15, 1973, by and between Seller and Springpenn,
recorded in the Recorder's Office in Deed Book 2521, page 764 (as amended, the
"Springpenn Agreement")), licenses, covenants and rights-of-way and other
appurtenances used in connection with the beneficial use and enjoyment of the
Land (the Land, the Improvements and all such rights, privileges, easements and
grants are sometimes collectively referred to herein as the "Real Property");
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(c) all personal property, equipment and inventory owned by
Seller and located on or at the Real Property, or used exclusively in connection
with the Real Property (the "Personal Property"), including the Personal
Property described in EXHIBITS "B-1" (associated with The Shopping Center Land)
and "B-2" (associated with the Office Land), attached hereto and made a part
hereof;
(d) all leases (including leases with temporary tenants),
license agreements and other rights of occupancy as set forth on EXHIBITS "D-1"
(with respect to the leases pertaining to The Shopping Center Land) and "D-2"
(with respect to the leases pertaining to the Office Land), attached hereto
(including all amendments and modifications thereto), and those entered into
after the Execution Date in accordance with the terms of this Agreement
(including leases with temporary tenants) (as amended, collectively, the
"Leases") with respect to the use and occupancy of the Real Property, together
with any guaranties provided thereunder, and rents, additional rents,
reimbursements, profits, income, and the amount deposited (the "Security
Deposits") under any Lease in the nature of security for the performance of the
obligations of the tenant, including temporary tenants (individually a "Tenant",
and collectively, the "Tenants") under the Leases (provided, however, that the
term "Leases" hereunder shall not be construed to include subleases, license
agreements and other rights of occupancy, if any, created separately by Tenants
under their respective Leases, and in which Seller has no interest);
(e) to the extent assignable, all of Seller's right, title and
interest (if any) in and to trademarks and tradenames (if any) now used in
connection with the Real Property, including the name "Springfield Mall", and
any other name by which the Real Property is commonly known, and all goodwill,
if any, related to such names (collectively, the "Tradenames"); provided, that
Seller makes no representation or warranty as to title, validity or exclusivity
of any of the Tradenames;
(f) to the extent assignable, all of Seller's right, title and
interest in all permits, licenses, guaranties, approvals, certificates and
warranties heretofore obtained by Seller and now existing relating to the Real
Property or the Personal Property (collectively, the "Permits and Licenses");
and all of Seller's right, title and interest in and to the Contracts (as
hereinafter defined) and in the telephone numbers in use at the Real Property
(together with the Permits and Licenses and the Contracts, the "Intangible
Property");
(g) to the extent assignable, all of Seller's right, title and
interest in all promotional material, marketing materials, brochures,
photographs (collectively, the "Promotional Materials") in Seller's possession
or control, and in all books, records, tenant data, leasing material and forms,
"Past" (which when used in this Agreement shall mean in the calendar year in
which this Agreement is dated and the preceding five (5) calendar years) and
current rent rolls, files, statements, market studies, surveys, blue prints,
drawings, plans and specifications (including HVAC, mechanical and plumbing
plans and specifications), reports (including soils, engineering and
environmental reports), tests, correspondence with tenants, vendors, suppliers,
utility companies taxing authorities and other third parties, promotional funds,
and other materials of any kind owned by Seller which are used by Seller in the
use and operation of the Real Property or Personal Property (collectively, and
together with the Promotional Materials, the "Books and Records"), subject in
all cases to any copyrights and other proprietary rights therein of third
parties and without representation or warranty concerning the contents thereof
except as expressly set forth herein; and
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(h) to the extent assignable, all other rights, privileges and
appurtenances owned by Seller, if any, and in any way related to the rights and
interests described in this Paragraph 1 and intended to be conveyed hereunder.
Notwithstanding the foregoing, tax returns of Seller and/or
partners of Seller are not subject to this Agreement. The Real Property, the
Personal Property, the Leases, the Tradenames, the Intangible Property, the
Books and Records and the other property interests being conveyed hereunder are
hereinafter collectively referred to as the "Property". Notwithstanding the
foregoing, the Property does not include the items listed in EXHIBIT "B-3",
attached hereto and made a part hereof (the "Excluded Property").
2. Access to Seller's Records, etc.
--------------------------------
(a) Seller has afforded Buyer and Buyer's designees, and shall
hereafter afford to Buyer and Buyer's designees, reasonable access at the Real
Property and the right to copy, during normal business hours and upon reasonable
notice (which may be by telephone), at Buyer's expense, all Leases and the
Contracts, together with the following items, to the extent such items are Past
or current and are located at the Real Property or are otherwise reasonably
within Seller's control and available for Seller to provide to Buyer: Seller's
books and records related to the operation and ownership of the Property, audits
and appraisals, environmental and engineering studies and records, current rent
rolls, existing REA's, title policies, surveys, site plans, lease plans, real
estate tax records, operating expense statements and delinquency reports,
together with all other books and records of Seller. Seller represents,
warrants, and covenants that Seller has not provided to Buyer, and shall not
hereafter provide to Buyer, any such documents that Seller knows contain false
information; provided, that such knowledge limitation shall not apply to the
Leases and the Contracts. Seller shall not be required to make available any
Excluded Items. Buyer has had the right, and shall continue to have the right,
upon notice to Seller (which may be by telephone) to consult with Seller's
management personnel, subject to Seller's prior consent, not to be unreasonably
withheld, conditioned or delayed. Buyer shall identify in any such notice the
personnel Buyer desires to consult. The rights of Buyer contained in this
subparagraph 2(a) shall continue for so long as this Agreement remains in full
force and effect. Buyer represents that it has not, and that Buyer shall not
(unless required by law) contact any governmental authority with respect to the
Property without reasonable prior notice to Seller (affording Seller the
opportunity to accompany Buyer) and without Seller's prior approval; provided,
that nothing shall prevent Buyer or its agents from requesting customary
zoning/permitting letters regarding the Real Property from local municipal
officials and from consulting with the Pennsylvania Department of Environmental
Resources regarding its underground storage tank database; provided, however,
that the foregoing representation and obligations shall not apply to searches of
or inquiries concerning the contents of public records or verifications of
applicable zoning, building and other codes or records of compliance with such
codes. Buyer may interview Tenants only upon the following conditions: (i) Buyer
provides Seller with telephonic notice at least 24 hours in advance of contact
provided that Buyer and Seller shall agree on a mutually convenient time to
interview the Tenants, (ii) Seller shall be permitted to accompany Buyer's
representative to any meeting at the Real Property with a Tenant, and (iii)
Buyer's inquiry is limited to questioning the Tenant as to its current
satisfaction with the Property and with Seller and shall not include any
communication concerning any current or future plans of Buyer.
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(b) Seller shall cooperate reasonably with Buyer in
facilitating its due diligence inquiry; provided, that Seller shall not be
obligated to incur any out-of-pocket expense or liability in connection with
such inquiry.
3. Purchase Price
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(a) The total purchase price (the "Purchase Price") for the
Property is ONE HUNDRED THREE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($103,500,000.00). The Purchase Price shall be payable as follows:
(i) Within two (2) business days following the
Execution Date, the sum of TWO MILLION FIVE HUNDRED THOUSAND DOLLARS
($2,500,000) (the "Earnest Money") shall be paid to the Escrow Agent
(as hereinafter defined) by wire transfer of immediately available
funds, to be held pursuant to Paragraph 10 (the Earnest Money, together
with all interest earned thereon, is collectively referred to as the
"Deposit");
(ii) Notwithstanding the provisions of subparagraph
3(a)(i), in lieu of posting the Earnest Money, Buyer may instead
deliver to Escrow Agent an irrevocable letter of credit (which shall be
deemed part of the "Deposit") from Wells Fargo Bank or such other
financial institution reasonably satisfactory to Seller (which
satisfaction shall be conditioned, inter alia, on the ability of Seller
to draw on the letter of credit in Philadelphia or Delaware County,
Pennsylvania or such letter of credit shall expressly permit drawings
by overnight delivery), in the amount of One Million Two Hundred Fifty
Thousand Dollars ($1,250,000), with an expiration date no earlier than
December 31, 2005. Such letter of credit shall be in the form of
EXHIBIT "B-4" attached hereto and made a part hereof; and
(iii) The balance of the Purchase Price, subject to
adjustment as provided in this Agreement, shall be paid at Closing (as
hereinafter defined) by wire transfer of immediately available funds.
(b) The Purchase Price shall be increased by an amount equal
to the prepayment penalty paid by Seller pursuant to the formula therefor
contained in the Note (the "Note") dated September 17, 1997, from Seller to
Northwestern Mutual Life Insurance Company ("Lender"), less $260,000. If, with
the consent of Lender and Seller, Buyer assumes the loan evidenced by the Note,
the Purchase Price shall be reduced by (A) the principal amount of such loan
outstanding at the time of Closing plus (B) $260,000. Any assumption of the
existing loan shall require the release of all borrowing entities and any
existing guaranties and return of any escrowed monies to Seller. Nothing in this
subparagraph 3(b) shall be deemed to require Buyer to assume such loan.
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4. Quality of Title
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(a) Title to the Real Property (including Buyer's rights to
use any easements appurtenant to the Real Property for the purposes granted) at
the Closing shall be conveyed in fee simple and shall be (i) good and marketable
and free and clear of all liens, encumbrances, leases, restrictions, easements
and other exceptions or objections to title, except for the Permitted Exceptions
(as hereinafter defined), and (ii) insurable as aforesaid in the full amount of
the Purchase Price by a reputable title insurance company selected by Buyer (the
"Title Company") at regular standard rates pursuant to a 1992 ALTA Owner's
Policy Form (10-17-92). As a further condition to Buyer's obligations under this
Agreement, the Title Company must be willing to provide such endorsements as are
legally available to owners in Pennsylvania and reasonably requested by Buyer,
including a contiguity endorsement if the Real Property is comprised of more
than one parcel, subject to the payment by Buyer of any applicable premium or
surcharge and Buyer's providing, at its sole expense, an ALTA survey of the Real
Property to the Title Company. If Buyer obtains a survey of the Real Property
from a surveyor licensed to practice in Pennsylvania, Seller shall, at Buyer's
request, use in the Deed (as hereinafter defined) the metes and bounds
description of the Land contained on such survey, as well as the metes and
bounds description used in the deed(s) pursuant to which Seller acquired title
to the Real Property; provided, that such survey is certified to Seller and
Buyer. Title to the Personal Property shall be conveyed at Closing and shall be
good and marketable and free and clear of all liens, encumbrances, leases,
restrictions, easements and other objections to title, except the Permitted
Exceptions.
(b) The parties acknowledge that Buyer has ordered but has not
yet received a survey of the Office Land (the "Office Survey"). Not later than
September 23, 2005, Buyer shall submit a copy of an Office Survey to Seller,
together with a written notice from Buyer (collectively, the "Survey Notice")
specifying any alleged defects in or objections to any matters shown on the
Office Survey obtained by Buyer. Buyer shall be deemed to have waived its right
to object to any easement, encroachment or other defects in or objections to the
Office Survey and not objected to in the Survey Notice (with each such item not
objected to additionally being deemed a Permitted Exception).
(c) After Buyer delivers the Survey Notice, Seller shall have
until five (5) days after receipt of the Survey Notice in which to notify Buyer
in writing (the "Seller's Response") as to which of the objections, if any,
raised in the Survey Notice Seller will undertake to cure, and which it declines
to cure. If Seller does not give the Seller's Response within such five (5)-day
period, then Seller shall be deemed to have refused to cure all objections
raised in the Survey Notice. Notwithstanding anything to the contrary contained
in this Agreement, Seller shall have no obligation to cure any objection raised
in the Survey Notice except for conditions voluntarily created by Seller after
the Execution Date. If Seller declines to cure or agree to cure or is deemed to
decline to cure on or before the Closing Date (as hereinafter defined) any
survey objection that Seller is not obligated under this Agreement to cure,
Buyer shall have until the period ending five (5) days after delivery of the
Seller's Response, or if the Seller's Response is not given, then five (5) days
after the expiration of the five (5)-day period within which Seller was
permitted to give the Seller's Response, in which to elect, as Buyer's sole
right and remedy, to elect not to purchase the Office Land and the Improvements
thereon and other items of the Property pertaining solely to the Office Land,
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and to terminate this Agreement only insofar as it concerns the Office Land and
the Improvements and such other items of Property pertaining solely to the
Office Land, by written notice to Seller. Seller shall be obligated to remove
and discharge on or before the Closing Date all objections to the Office Survey
which Seller agreed to cure as above provided. If Buyer does not so elect not to
purchase the Office Land and the Improvements thereon and other items of the
Property pertaining solely to the Office Land, those matters to which Buyer
objected in the Survey Notice and which Seller declined or is deemed to have
declined to cure and is not otherwise obligated to cure under this Agreement
shall also be deemed Permitted Exceptions. If Purchaser elects not to purchase
the Office Land and the Improvements thereon and other items of the Property
pertaining solely to the Office Land, the Purchase Price shall be reduced to be
$102,000,000.00, the terms and provisions hereof concerning the Office Land and
the Improvements thereon and other items of the Property pertaining solely to
the Office Land shall be disregarded, and this Agreement shall otherwise remain
in full force and effect.
(d) Notwithstanding anything to the contrary contained in this
Agreement, Seller shall be obligated to satisfy and remove at or before the
Closing Date all monetary liens of a fixed or otherwise ascertainable amount,
such as mortgages, judgments, taxes (subject to adjustment as hereinafter
provided), municipal claims, mechanics' liens and the like ("Monetary Liens")
and non-monetary title exceptions voluntarily created by Seller after the
Execution Date, and the same shall not be Permitted Exceptions (even in the
absence of any notice from or objection thereto by Buyer). If, on the Closing
Date, there are any Monetary Liens or other exceptions to title which Seller is
obligated under this Agreement to pay and discharge, Seller or Buyer shall have
the right to use any portion of the balance of the Purchase Price to pay and
satisfy the same and to pay all governmental recording fees in connection
therewith. If Seller is unable to convey title to the Real Property to Buyer at
Closing in accordance with this Paragraph 4, Buyer shall have the option of
taking such title as Seller is able to convey without abatement of the Purchase
Price, or of terminating this Agreement; provided, that Seller shall, on or
before the Closing Date, be obligated to remove and discharge and Buyer shall
have the option of closing with an abatement of the Purchase Price in the amount
of all Monetary Liens and all governmental recording fees in connection
therewith. Seller's obligations hereunder with respect to Monetary Liens shall
be subject to the terms of Paragraph 6 hereof, with respect to the subject
matter thereof.
(e) If Buyer terminates this Agreement as provided in
subparagraphs 4(c) or 4(d), the Deposit shall be returned to Buyer by the Escrow
Agent, and neither Seller nor Buyer shall have any further rights, claims or
obligations against one another arising out of this Agreement, except for the
indemnity and restoration obligations of Buyer to Seller as set forth in
Paragraph 9 and the confidentiality obligations of the parties set forth in
Paragraph 26 (collectively, the "Continuing Obligations"). Notwithstanding the
foregoing, if Seller willfully creates a title objection after the Execution
Date, willfully fails to cure any objection it agreed to cure pursuant to
subparagraph 4 (c) or if Seller fails to remove and discharge Monetary Liens,
such that title is not in the condition required by this Agreement, Buyer, in
addition to the foregoing rights and remedies, shall have the rights and
remedies specified in subparagraph 16(a) for willful defaults of Seller, which
rights shall survive termination of this Agreement.
(f) For the purposes of this Agreement, the following shall be
deemed "Permitted Exceptions":
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(i) Real estate taxes (subject to adjustment as
hereinafter provided) for the fiscal tax year in which the Closing
shall occur and subsequent fiscal tax years not yet due and payable;
(ii) Zoning and building laws and ordinances of
Springfield Township that are not violated by existing structures and
that are not violated by and do not prevent, interfere with or
adversely affect the continued use and operation of the Property for
the same purposes as used and operated at present;
(iii) Except to the extent objected to in the Survey
Notice, the state of facts that would be shown on an accurate survey of
the Real Property on the last day of the Inspection Period (as
hereinafter defined), such as easements not of record;
(iv) The rights of Tenants, as tenants only, under the
Leases;
(v) Any exception caused by Buyer (provided, that
nothing herein is intended to authorize Buyer to create any lien with
respect to the Property or any other title exception, and Buyer
covenants not to do so unless and until it acquires the Property);
(vi) The REA;
(vii) Any matter deemed to be a Permitted Exception
under subparagraphs 4(b) or 4(c);
(viii) Rights of the public in and to public roads and
waterways;
(ix) The specific exceptions to title set forth on
EXHIBIT "B-5" attached hereto and made a part hereof.
(g) The parties acknowledge that the laws of the Commonwealth
of Pennsylvania may require that certain governmental agencies or authorities be
notified in advance of the Closing Date of the proposed transfer of the Real
Property by Seller to Buyer, and in certain cases that Seller obtain and deliver
to Buyer a clearance certificate (the "Clearance Certificate") evidencing the
payment by Seller of certain taxes, assessments and contributions to the
Commonwealth of Pennsylvania. The parties further acknowledge that, as a result
of procedures for the administration of applications for such Clearance
Certificate, and anticipated delays therein, it may not be reasonably possible
for Seller to obtain and deliver such Clearance Certificate as of the date of
Closing, or for some period of time thereafter. Seller shall be responsible for
providing all notices to governmental agencies required under such laws and for
providing, at Closing, evidence reasonably acceptable to Buyer that such notices
have been delivered. Seller shall act in good faith and with reasonable
diligence to apply for, obtain and deliver to Buyer (with copies to the Title
Company) the Clearance Certificate at or as soon after the date of Closing as is
reasonably possible. If the Clearance Certificate is not available at the
Closing, the failure to deliver the Clearance Certificate, and any exception
therefor raised by the Title Company, shall not constitute a default by Seller
or a deficiency in title; provided, that Seller delivers to Buyer and to the
Title Company at Closing Seller's written indemnity (in favor of Buyer and the
Title Company) against loss or damage as a result of Seller's failure to comply
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with any of the laws described in this subparagraph 4(g), in form reasonably
acceptable to Seller, Buyer and the Title Company, such indemnity not to expire
unless and until Seller delivers the Clearance Certificate to Buyer (with copies
to the Title Company). Seller hereby agrees to indemnify, defend with counsel
reasonably acceptable to Buyer and hold Buyer harmless from and against any and
all losses, damages, costs, expenses, claims, suits, and liabilities (including
reasonable legal fees) incurred by or asserted against Buyer by reason of
Seller's failure to pay any taxes or comply with any bulk sales statute,
including 72 P.S. ss. 1403; 72 P.S. ss. 7240; 43 P.S. ss. 788; 72 P.S. ss.
7321.1 and 69 P.S. ss. 529. The obligations set forth in this subparagraph 4(g)
shall survive Closing and shall not be subject to the terms or limitations
contained in subparagraph 5(e) of this Agreement.
(h) On the Closing Date, Seller shall deliver to the Title
Company payoff statements or other instructions from the holders of mortgages
and other Monetary Liens setting forth the liquidated amounts required that will
be sufficient to obtain the discharge of all Monetary Liens.
(i) If, at the Closing Date, it appears that the Real Property
may be or is subject to mechanics' or materialmen's liens or the lien of
decedent's debts, Seller shall, at Seller's sole cost and expense, provide to
the Title Company such information, documents and assurances reasonably required
by the Title Company to remove any exceptions therefor from Buyer's title
policy.
5. Representations, Covenants and Warranties of Seller and Buyer
-------------------------------------------------------------
(a) Seller represents, covenants and warrants as of the
Execution Date (and, except as otherwise expressly provided below, as a
condition to Buyer's obligation to complete Closing, Seller shall reaffirm and
restate the following at and as of the date of Closing) as follows:
(i) To Seller's actual knowledge, Seller has
indefeasible fee simple title to the Real Property. This representation
shall merge into the Deed at Closing and shall not survive Closing.
(ii) To Seller's actual knowledge, there is no action,
suit, arbitration, litigation or other proceeding (collectively
"Proceedings") pending, or to Seller's actual knowledge, threatened,
against or affecting all or any portion of the Property, or the
transactions contemplated by this Agreement in any court or before or
by any federal, state, county or municipal department, commission,
board, bureau or agency or other governmental instrumentality, or in
any other forum, including proceedings for or involving collections,
evictions, condemnation, eminent domain, violations relating to use or
occupancy by handicapped or disabled persons, personal injuries or
property damage, except for litigation fully covered, without
reservation, as to liability and defense costs under Seller's liability
insurance policies, collection actions against Tenants, and certain
other actions, all as identified on EXHIBIT "C", attached hereto and
made a part hereof. To Seller's actual knowledge, no Proceedings are
pending or threatened in writing against Seller, that if adversely
determined, would impair its ability to perform its obligations under
this Agreement.
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(iii) Seller has the full right, power and authority
to enter into and perform this Agreement and to sell and convey the
Property to Buyer as herein provided. The person(s) executing this
Agreement on behalf of Seller has full and complete authority to do so
and to bind Seller thereby, and such execution has been duly authorized
by all requisite action (if any is required) of Seller. Other than the
requirement that Seller obtain a commercial certificate of occupancy
from Springfield Township in connection with the sale transaction
described herein, no joinder or consent of any person or entity will be
necessary to convey, on the terms set forth herein, the Property to
Buyer at Closing as provided under this Agreement.
(iv) This Agreement, when executed by Seller, shall
constitute a valid, legal and binding obligation of Seller.
(v) Annexed hereto as Part I of EXHIBITS "D-1" and
"D-2" and made a part hereof is a schedule identifying each Lease
affecting the Property as of the Execution Date. The information
contained in each such schedule is accurate in all material respects.
The Leases previously provided to Buyer for copying pursuant to
subparagraph 2(a) are true and complete and the copies that will be
provided to Buyer of any new Leases, including any amendments thereto,
hereafter entered into by Seller in accordance with the terms of this
Agreement will be true and complete.
(vi) There are now no leases, lettings, tenancies,
licenses or other rights of occupancy affecting any part of the
Property except the Leases, and there are no written (or, to Seller's
actual knowledge, binding oral) agreements modifying or supplementing
any Lease, except as set forth in EXHIBITS "D-1" and "D-2". Except as
set forth on Part II of EXHIBITS "D-1" and "D-2", (A) neither Seller
nor, to Seller's actual knowledge, anyone on behalf of Seller, has
received written notice from any Tenant asserting any claim, offset or
defense which would affect the collection of rent from such Tenant, and
to Seller's actual knowledge, there exist no circumstances which, with
notice and/or the expiration of any cure period, would give rise to any
such claim, offset or defense; (B) to Seller's knowledge, all
improvements, alterations and other work required to be performed by
the landlord under each of the Leases has been performed by Seller as
of the Execution Date, or the cost thereof to be reimbursed to any such
Tenants as an incident of such tenancy has been reimbursed as of the
Execution Date; (C) all repairs of which written notice has been given
to Seller by the applicable Tenant(s) and for which Seller, as
landlord, is responsible under the applicable Lease(s) have been
performed as of the Execution Date; (D) no written notice of default or
breach on the part of the landlord under any of the Leases has been
received by Seller or (to Seller's knowledge) its agents from the
Tenant thereunder; and (E) to Seller's knowledge, there are no
currently pending challenges by any Tenant to the accuracy or validity
of any charges to such Tenant for common area maintenance, taxes or
other items of rent or additional rent under such Tenant's Lease.
(vii) To Seller's knowledge, each Lease is in full
force and effect. Except as otherwise noted in EXHIBITS "D-1" and
"D-2", no Lease has been modified or amended; to Seller's knowledge,
the landlord under each Lease has paid, performed and observed all of
(and is not in default in the payment, performance or observance of any
of) the terms, covenants or conditions on the landlord's part to be
paid, performed and observed thereunder, except as set forth on
EXHIBITS "D-1" and "D-2"; except as otherwise noted in Part III of
EXHIBITS "D-1" and "D-2" the Tenant under each Lease has paid, and to
Seller's knowledge performed and observed all of (and is not in default
in the payment, performance or observance of any of) the terms,
covenants and conditions on the Tenant's part to be paid, and to
Seller's knowledge, performed and observed thereunder. Seller will
deliver to Buyer updated EXHIBITS "D-1" and "D-2" within three (3)
business days prior to the date of Closing.
9
(viii) No Tenant has prepaid rent for more than the
current month, or, to Seller's knowledge, except as set forth in Part
IV of EXHIBITS "D-1" and "D-2", is entitled to receive any unexpended
rent concession, rent-free occupancy, allowances, rebates or refunds in
connection with its tenancy, or is entitled to any work (not yet
performed) or consideration (not yet given) in connection with its
tenancy. Except as may be pledged pursuant to any existing mortgage
covering the Real Property, which pledge shall be terminated on or
before the Closing Date, none of the Leases and none of the rents or
other amounts payable thereunder have been assigned, pledged or
encumbered by or in favor of Seller. No security deposits have been
paid by any Tenants of the Property which have not heretofore been
returned, except as set forth on EXHIBITS "D-1" and "D-2". Excepting
(i) as set forth in EXHIBITS "D-1" and "D-2", (ii) all commissions
which may become due on account of any renewal or extension of any
Lease, or the expansion of any leased premises under any Lease,
following the Execution Date, and (iii) as set forth in subparagraph
13(j) of this Agreement for which Seller is not responsible, all
brokerage, leasing and other commissions and fees payable in connection
with any Lease now existing have been fully paid. There are no
outstanding agreements or understandings requiring the payment of
commissions to any broker or agent on account of any renewal or
extension of any Lease or the expansion of any leased premises, except
as set forth in EXHIBITS "D-1" and "D-2", true and complete copies of
which have been delivered to Buyer.
(ix) There are no contracts for the supply of goods or
services of any kind to or for the Real Property or any part thereof of
which Seller has knowledge, other than the contracts specifically
identified on EXHIBIT "E-1", attached hereto and made a part hereof
(the "Service Contracts"). To Seller's actual knowledge, there are no
other contracts or agreements specifically related to the Real Property
and that will otherwise become binding on Buyer after Closing, other
than the Leases, the Service Contracts, the Permitted Exceptions and
the contracts specifically identified on Exhibit "E-1" hereto and made
a part hereof (the "Other Contracts"). The Contracts (as hereinafter
defined) previously provided to Buyer for copying pursuant to
subparagraph 2(a) are true and complete and the copies that will be
provided to Buyer of any new Contracts and any amendments thereto
hereafter entered into by Seller in accordance with the terms of this
Agreement will be true and complete. The Service Contracts and the
Other Contracts, together with any of the same that are entered into by
Seller after the Execution Date in accordance with the terms of this
Agreement, are sometimes collectively called the "Contracts". Seller
has not given or received written notice that any of the parties to the
Contracts are in material default thereunder, nor has Seller received
written notice that Seller is in material default under any of the
Contracts, except as set forth on EXHIBIT "E-2".
10
(x) To Seller's knowledge, the consummation of the
transaction contemplated by this Agreement shall not result in any
breach of the provisions of or constitute a default under any
agreement, mortgage, contract or other instrument to which Seller is a
party or by which Seller may be bound.
(xi) Except as set forth on EXHIBIT "F", attached
hereto and made a part thereof, Seller has not received written notice
of, and Seller has no actual knowledge of, (A) any pending or
unresolved Environmental Claim (as hereinafter defined) that has been
asserted against or with respect to the Real Property; (B) any
above-ground storage tanks or Underground Storage Tanks (as hereinafter
defined) that are now located in or under the Real Property, whether or
not the same have been registered; (C) any Hazardous Materials (as
hereinafter defined) having been discharged, located, stored,
generated, produced, processed, treated, or disposed of and being
present now or at Closing in, on or under the Real Property in any
quantities or concentrations that would require remediation under the
Pennsylvania Land Recycling and Environmental Remediation Standards Act
(Act 2) as it applies to the current use of the Real Property.
The term "Hazardous Materials" shall mean any substance,
material, waste, gas or particulate matter which is regulated by any
governmental authority, including the Commonwealth of Pennsylvania or the United
States Government, and including any material or substance which is: (i) defined
as a "hazardous waste", "solid waste", "hazardous material", "hazardous
substance", "extremely hazardous waste", "restricted hazardous waste",
"pollutant", "contaminant" or words of similar import under any provision of any
applicable Environmental Law; (ii) petroleum or petroleum products; (iii)
asbestos; (iv) polychlorinated biphenyl; (v) radioactive material; (vi) radon
gas; (vii) designated as a "hazardous substance" pursuant to Section 311 of the
Clean Water Act, 33 U.S.C. ss. 1251 et seq. (33 U.S.C. ss. 1317); (viii) defined
as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901 et seq. (42 U.S.C. ss. 6903); or (ix) defined
as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 41 U.S.C. ss. 9601 et
seq. (42 U.S.C. ss. 9601). The term "Environmental Laws" shall mean all statutes
specifically described in the foregoing sentence and all other federal, state
and local environmental, health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees applicable to the Real Property regulating,
relating to or imposing liability or standards concerning or in connection with
Hazardous Materials with regard to the Real Property. The term "Environmental
Claim" shall mean any written administrative, regulatory or judicial action,
suit, demand, demand letter, claim, lien, notice of non-compliance or violation,
investigation or proceeding relating in any way to the Real Property and any
applicable Environmental Law or any permit issued under any such applicable
Environmental Law including (a) by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or other
monetary or injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment as a
result of the presence of Hazardous Material on the Real Property. "Tank Laws"
11
shall mean the Pennsylvania Storage Tank and Spill Prevention Act, 35 Pa. Cons.
Stat. ss. 6021.101, et seq., the Pennsylvania Underground Storage Act, 58 Pa.
Cons. Stat. ss. 451, et seq. and the federal Underground Storage Tank Law
(Subtitle I) of the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901
et seq., together with all substitutions thereof, and any successor legislation
and regulations. "Underground Storage Tank" shall mean each and every
"underground storage tank", whether or not subject to the Tank Laws, as well as
the "monitoring system", the "leak detection system", the "discharge detection
system" and the "tank system" associated with the "underground storage tank", as
those terms are defined by the Tank Laws.
(xii) Seller has not received written notice from any
governmental or municipal authority informing Seller that any condition
at the Real Property constitutes an uncorrected violation(s) of any
applicable municipal code or of any other federal, state or municipal
law, ordinance or regulation affecting the Property and Seller has no
actual knowledge of any such condition. Seller has not received any
written notice that any of the Permits and Licenses are subject to, or
in jeopardy of, revocation or non-renewal.
(xiii) Seller is a limited partnership duly formed and
validly subsisting under the laws of the Commonwealth of Pennsylvania.
(xiv) No person or entity has any option, right of
first refusal or similar right to purchase all or any portion of the
Property.
(xv) Seller has not made a general assignment for the
benefit of creditors, filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by Seller's creditors,
suffered the appointment of a receiver to take possession of all, or
substantially all, of Seller's assets, suffered the attachment or other
judicial seizure of all, or substantially all, of Seller's assets,
admitted in writing its inability to pay its debts as they come due or
made an offer of settlement, extension or composition to its creditors
generally.
(xvi) Seller has fewer than fifty (50) employees.
There are no union agreements, collective bargaining agreements or
employment contracts affecting workers at the Real Property or other
employees of Seller. Seller is not, and is not acting on behalf of, an
"employee benefit plan" within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, a "plan"
within the meaning of Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code") or an entity deemed to hold "plan assets"
within the meaning of 29 C.F.R. ss. 2510.3-101 of any such employee
benefit plan or plans.
(xvii) There are no proceedings now pending for a
reduction in the assessed valuation of the Real Property, and Seller
shall not initiate any such proceedings.
(xviii) The zoning classification for the Real
Property (other than the Vacant Land) is "SC" (Shopping Center); and
the zoning classification of the Vacant Land is "R" (Residential).
12
(xix) The property insurance policies presently in
effect with respect to the Real Property are as set forth in EXHIBIT
"H", attached hereto and made a part hereof. In no event shall Seller
increase, or permit the increase of, the presently-existing deductible
amount under any property casualty insurance policy pertaining to the
Real Property, during the pendancy of this Agreement prior to the
completion of Closing, without first obtaining Buyer's written
approval.
(xx) The Personal Property is owned by Seller free and
clear of all liens and encumbrances, subject to the Permitted
Exceptions and to any lien or security interest created pursuant to
existing financing documents that will be released and satisfied at
Closing.
(xxi) The copy of the Note delivered to Buyer by
Seller is true and complete, and the provisions regarding prepayment
therein shall not be modified.
(xxii) Seller is not a foreign person within the
meaning of Section 1445(f) of the Code, and Seller agrees to execute
any and all documents necessary or required by the Code or Buyer in
connection with such declaration.
(xxiii) Seller has received no written notice of any
proposed curtailment of any utility service to the Real Property.
(xxiv) (a) To Seller's actual knowledge, the REA is in
full force and effect and has not been modified, amended or
supplemented in any way and the copy thereof delivered to Buyer is true
and complete; (b) there are no other written agreements between the
parties to the REA regarding the Property other than as set forth in
the REA and the Springpenn Agreement; (c) the REA has not been
terminated by Seller and Seller has not received notice of termination
by any of the parties thereto; (d) no party to the REA is in material
default under any of the material requirements, provisions, terms,
conditions, or covenants of the REA (including the requirements with
respect to the identity of Tenants) by any party; (e) the Third
Operating Period (as defined in the REA) has expired; (f) Seller's
management company that manages the Shopping Center common areas
currently manages the Common Areas (as defined in the REA) on the
tracts of the department store parties to the REA; (g) [Strawbridges]
is currently obligated to pay Seller mall maintenance and HVAC charges
in the amount of $188,485.86 per year on a monthly basis; (h)
[Strawbridges] has approved the budget for 2005 described in Section
8.7(e) of the REA; (i) all reconciliations of mall maintenance and HVAC
charges for calendar year 2004 and previous calendar years with
payments made by [Strawbridges] therefor have been made and accepted by
[Strawbridges]; (j) neither department store party to the REA has made
any covenant to operate its store beyond the period required under
Section 13.1 of the REA nor has either provided notice to the other
parties that it is exercising its right to cease operation of its store
pursuant to Section 13.1 of the REA; (k) there exists no Merchant's
Association but, as of September 7, 2005, Seller holds $165,607.03 of
funds known as the "Merchandising Fund" and $55,690.24 known as the
"Marketing Fund" on behalf of tenants; (l) Seller collects no
merchandising, promotional, advertising or media funds other than the
Merchandising Fund and the Marketing Fund; and (m) Seller maintains the
insurance described in EXHIBIT H-1, attached hereto and made a part
hereof, in accordance with the requirements of the REA. At Closing,
Seller shall execute and deliver to Buyer a written statement by Seller
as to the amount of the funds described in the preceding sentence it
then holds.
13
(xxv) (a) The Springpenn Agreement is in full force
and effect and has not been modified, amended or supplemented in any
way and the copy thereof delivered to Buyer is true and complete; (b)
there are no other written agreements or understandings between the
parties to the Springpenn Agreement regarding the Property other than
as set forth in the Springpenn Agreement and the REA; (c) the
Springpenn Agreement has not been terminated with respect to any of the
parties thereto; (d) no party to the Springpenn Agreement is in
material default under any of the material requirements, provisions,
terms, conditions or covenants of the Springpenn Agreement, and no
event has occurred or situation exists which would, with the passage of
time or the giving of notice, or both, constitute a material default
under the Springpenn Agreement (including the requirements with respect
to the identity of tenants) by any party; (e) Springpenn is obligated
to pay Seller a Mall Charge (as defined in the Springpenn Agreement) in
the amount of $1876.71 monthly, in advance, for management of the Mall
(as defined in the Springpenn Agreement); (f) Springpenn has not
requested that Seller provide any additional police or security
services for the Mall; (g) Springpenn is obligated to pay Seller a
Common Area Charge (as defined in the Springpenn Agreement) in the
amount of $8861.20 monthly, in advance, for management of the Common
Area (as defined in the Springpenn Agreement) on Springpenn's tract;
and (h) Springpenn has not requested that Seller provide any additional
police or security services for the exterior Common Area of the
Shopping Center Site (as defined in the Springpenn Agreement).
Seller shall indemnify, defend with counsel reasonably acceptable to
Buyer and hold harmless Buyer from and against all claims, liabilities, losses,
damages, penalties and costs, including reasonable counsel, engineering and
other professional or expert fees, which Buyer may incur, to the extent arising
from any breach of any of the representations or warranties by Seller in this
Agreement; provided in each case, however, that Buyer's written claim stating
the nature of such breach with reasonable particularity shall have been received
by Seller prior to the expiration of the applicable survival period for the
representation or warranty alleged to have been breached.
(b) Buyer represents, covenants and warrants as of the
Execution Date (and, as a condition to Seller's obligation to complete Closing,
Buyer shall reaffirm and restate the following at and as of the date of Closing)
as follows:
(i) Buyer is a corporation duly formed and validly
subsisting under the laws of the Commonwealth of Pennsylvania. Buyer
has the full right, power and authority to enter into and perform this
Agreement and to purchase and accept the conveyance of the Property to
Buyer as herein provided. The person(s) executing this Agreement on
behalf of Buyer has full and complete authority to do so and to bind
Buyer thereby, and such execution has been duly authorized by all
requisite action of Buyer.
14
(ii) This Agreement, when executed by Buyer, shall
constitute a valid, legal and binding obligation of Buyer.
(iii) Buyer has adequate funds to fulfill all of its
obligations under this Agreement, including payment of the Purchase
Price.
(iv) The consummation of the transaction contemplated
by this Agreement shall not result in any breach of the provisions of
or constitute a default under any agreement, mortgage, contract or
other instrument to which Buyer is a party or by which Buyer may be
bound.
(c) All representations, covenants and warranties of the
parties in this Paragraph 5 and the representations and warranties of the
parties elsewhere in this Agreement shall survive the Closing under this
Agreement, unless otherwise expressly provided in this Agreement, for a period
of one (1) year.
(d) In the event either party shall believe it has a claim for
the breach of any of the representations, covenants and warranties contained in
this Agreement after the completion of the Closing, such claim shall be asserted
in writing to the other party within the period of survival of such
representation, covenant or warranty (if any) or the same shall be deemed to
have been waived.
(e) If Buyer's damages resulting from any breaches of any
covenants, obligations, indemnities, liabilities, representations or warranties
of Seller contained in this Agreement and/or contained in the documents to be
delivered by Seller at Closing pursuant to this Agreement (excepting the
representations, warranties and covenants of Seller set forth in Paragraphs 4(g)
(and the indemnity required to be provided by Seller thereunder), 13(n), 13(m)
and 14 hereof and Seller's warranty contained in the Deed, collectively the
"Excluded Covenants and Warranties") are equal to or less than $250,000 in the
aggregate, Buyer shall assume and bear the same without contribution or
indemnity from Seller on account of such initial $250,000 damages ("Buyer's
Deductible Sum"). Further notwithstanding anything contained in this Agreement
to the contrary, if the Closing shall have occurred, the aggregate liability of
Seller arising on account of any breach(es) on the part of Seller of any of the
covenants, obligations, indemnities, liabilities, representations or warranties
of Seller contained in this Agreement and/or contained in the documents to be
delivered by Seller at Closing pursuant to this Agreement (excepting the
Excluded Covenants and Warranties) shall not exceed $1,000,000 (over and above
Buyer's Deductible Sum). To secure to Buyer payment of Seller's liability which
may arise after Closing pursuant to or in connection with the covenants,
representations and warranties of Seller in this Agreement, at Closing, Seller
shall deposit the sum of $1,000,000 with Escrow Agent (in such capacity,
"Post-Closing Escrowee"), which shall be held and disbursed pursuant to the
terms and conditions set forth in the Escrow Agreement attached hereto and made
a part hereof as EXHIBIT "G" (the "Post-Closing Escrow Agreement"), which
Post-Closing Escrow Agreement shall be executed and delivered by and among
Buyer, Seller and Post-Closing Escrowee at the Closing. Notwithstanding anything
contained in this Agreement to the contrary, Buyer hereby waives any right or
remedy available to it under this Agreement to make a claim against Seller for
(i) damages that Buyer may incur, or to rescind this Agreement and the
transactions contemplated hereby, as the result of any of Seller's
representations or warranties being untrue, inaccurate or incorrect if Buyer
15
actually knew (as opposed to implied, constructive or imputed knowledge) that
such representation or warranty was untrue, inaccurate or incorrect at the time
of the Closing and Buyer nevertheless closes, (ii) any punitive or consequential
damages; and (iii) damages that represent costs for internal "overhead" items;
or otherwise are not actual out of pocket expenses incurred by Buyer. The
provisions of this subparagraph 5(e) shall survive Closing.
(f) Notwithstanding anything in this Agreement to the
contrary, wherever in this Agreement Seller makes any representation or warranty
to its knowledge, such representation or warranty shall be based upon the actual
knowledge of Seller. As used in the Agreement, the actual knowledge of Seller
shall be deemed to be limited solely to the actual knowledge (as opposed to
implied, constructive or imputed knowledge) of Larry Shontz. Seller represents
and warrants that Larry Shontz has responsibility for overseeing the day-to-day
operations of the Property. Nothing in this subparagraph 5(f) shall create any
personal liability on the part of the above named representative of Seller.
6. Assessments; Violations
-----------------------
Seller represents and warrants that it has not received any
written notice of any currently due and unpaid assessments made against the
Property. Seller shall pay for all installments of municipal and other
governmental assessments that become due before Closing; and, if Closing occurs,
Buyer shall pay for such municipal and other governmental assessments that
become due after Closing. If any notice of any violation of any municipal code
or of any other federal, state or municipal law, ordinance or regulation
affecting the Property (including any notice of corrective work issued in
connection with Seller's application for a commercial certificate of occupancy
pursuant to subparagraph 13(a)(xvii) is issued after the Execution Date (and
before the Closing Date), Seller shall, at Seller's sole expense, cause the same
to be cured and dismissed of record before Closing, or if such cure and
dismissal is not reasonably possible, Buyer shall receive a credit against the
Purchase Price for the amount its licensed design professional reasonably
estimates that such cure and dismissal will cost. The provisions and obligations
under this Paragraph 6 shall survive Closing. Notwithstanding the foregoing, if
the aggregate cost of the work required of Seller in order to comply with the
requirements contained in this Paragraph 6 shall exceed $150,000 then Seller
shall give notice of the same to Buyer as soon as Seller shall learn of the
requirement for any such work and Seller shall have the election, which shall be
made in such notice, either to perform such work or to refuse to do so. If
Seller shall refuse to perform such work then Buyer shall elect to do either of
the following within ten (10) days after receipt of Seller's notice: (i) accept
the Real Property without any of such work being done and receive a credit
against the Purchase Price in the amount of $150,000 (which amount shall be
credited against the $1,000,000 limit of liability, and $1,000,000 deposit,
required of Seller under subparagraph 5(e) hereof) or (ii) terminate this
Agreement, in which event the Deposit shall be returned to Buyer and neither
Seller nor Buyer shall have any further rights, claims or obligations against
one another arising out of this Agreement, except that the parties shall be
liable for their respective Continuing Obligations.
7. Risk of Loss
------------
(a) Seller shall keep in full force and effect through the
Closing Date all the insurance policies (or substantially similar policies)
16
described in EXHIBIT "H", in amounts at least equal to the amounts now
maintained. In the event of any loss or damage to the Improvements due to fire
or other casualty (i) Seller shall give Buyer written notice thereof within ten
(10) days after Seller obtains knowledge of such event (excluding any di minimus
loss to be remediated by Seller's routine repair and maintenance activities),
and if such loss or damage constitutes a Material Loss (as hereinafter defined)
Seller shall provide to Buyer such information as Seller shall obtain regarding
the costs and estimated duration of any required repairs or restoration promptly
after Seller obtains such information, and (ii) if such loss or damage
constitutes a Material Loss, Buyer shall have the right to terminate this
Agreement by written notice to Seller or to Seller's counsel or agent within
fifteen (15) days after Buyer receives written notice from Seller or Seller's
counsel or agent concerning such loss or damage, and in that event Buyer shall
receive the immediate return of the Deposit, this Agreement shall be deemed
terminated and the parties shall have no further rights or obligations under
this Agreement, except for the Continuing Obligations. "Material Loss" shall
mean any loss or damage to the Shopping Center (x) as to which Buyer's architect
or engineer, acting reasonably, determines is anticipated to cost in excess of
$250,000 to fully restore or replace (including the costs of property
protection, licenses, permits, architectural fees and other "soft costs", in
addition to actual costs of materials and labor), or (y) by reason of which any
Tenants cumulatively occupying more than ten percent (10%) of the Shopping
Center terminate their Leases or have the unexpired and unwaived but unexercised
(as of the Closing Date or, if earlier, the last date on which Buyer may
exercise Buyer's termination right as it may be extended with Seller's written
approval) right to terminate their Leases by reason of such loss or damage. In
the event Buyer does not elect to terminate this Agreement as provided in this
Paragraph 7, or in the event of any loss or damage which does not constitute a
Material Loss, Seller shall either (at Seller's sole option) (A) repair and
restore such loss or damage prior to Closing to the same condition that existed
at the end of the Inspection Period, or (B) convey the Property to Buyer at the
Closing in its damaged condition (or in its condition existing at the Closing
Date if repairs or restoration shall have been commenced but remain unfinished),
and assign or turn over to Buyer all proceeds of insurance or recoveries from
third parties actually received by Seller as of the Closing Date (including all
proceeds received from rent-loss insurance for the period on and after the
Closing Date) together with all of Seller's right, title and interest in and to
(1)any unpaid claim Seller has under the insurance policies covering the
Property (including any unpaid claim arising under any policies of rent-loss
insurance applicable to the period on and after the Closing Date), and (2) any
unpaid claim Seller has against any other third party as a result of the loss or
damage, all less such reasonable and documented amounts as Seller shall have
paid or incurred for the repair, preservation or restoration of such loss or
damage. Seller shall promptly provide to Buyer a copy of any termination notice
from any Tenant received by Seller following any casualty or damage to the
Property.
(b) In the event of the occurrence of casualty damage to the
Real Property, Seller shall use commercially reasonable efforts to cause such
temporary repairs to be made to the Real Property as shall reasonably be
required to abate further deterioration and damage to the Real Property prior to
the Closing; provided, however, that Seller shall have the right to be
reimbursed from the proceeds of any insurance with respect to the Real Property
for the reasonable and documented cost of all such repairs. Such repairs shall
be performed in a good and workmanlike manner and in compliance with all
regulations, codes and orders of all governmental authorities.
17
(c) In the case of any casualty damage and provided that this
Agreement shall be in full force and effect Seller shall not settle or
compromise any insurance claims without Buyer's prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed.
8. Condemnation
------------
(a) If, prior to Closing, any part of the Property is
condemned by governmental or other lawful authority asserting the right of
eminent domain, or Seller receives notice of any proposed or actual
condemnation, taking by eminent domain, or similar proceeding with respect to
all or any part of the Property, Seller shall promptly notify Buyer in writing;
and, if such taking shall constitute a Material Taking (as hereinafter defined),
Buyer shall have the option, by written notice to Seller within fifteen (15)
days after Buyer receives written notice from Seller concerning such
condemnation, of (i) terminating this Agreement, whereupon the Deposit shall be
returned to Buyer, this Agreement shall be deemed terminated, and the parties
shall have no further rights or obligations under this Agreement, except for the
Continuing Obligations, or (ii) proceeding with the Closing; provided, however,
that if such Material Taking pertains only to the Office Land and/or the
Improvements thereon, then Purchaser's termination right hereunder shall be
limited so that Purchaser may elect not to purchase, and may terminate this
Agreement only with respect to, the Office Land and the Improvements thereon and
other items of the Property pertaining solely to the Office Land; and if, in
that case, Purchaser elects not to purchase the Office Land and the Improvements
thereon and other items of the Property pertaining solely to the Office Land,
the Purchase Price shall be reduced to be $102,000,000.00, the terms and
provisions hereof concerning the Office Land and the Improvements thereon and
other items of the Property pertaining solely to the Office Land shall be
disregarded, and this Agreement shall otherwise remain in full force and effect.
(b) If Buyer does not elect (or does not have the right to
elect) to terminate this Agreement pursuant to subparagraph 8(a), then Seller
shall not consent to a negotiated or compromise settlement of any condemnation,
eminent domain or other similar proceeding without the prior written consent of
Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
If Buyer does not elect to terminate this Agreement as aforesaid, this Agreement
shall remain in full force and effect as to any residue of the Property not
taken or proposed to be taken by condemnation or eminent domain or other similar
proceedings and Seller shall credit the entire amount of any condemnation or
eminent domain awards or proceeds to Buyer at Closing, or, in the event such
proceeds have not been paid to Seller as of the date of Closing, Seller shall
irrevocably assign to Buyer, at Closing, Seller's right to receive such
proceeds. Buyer shall, after Closing, have the sole right to settle any claim in
connection therewith.
(c) A "Material Taking" shall mean any condemnation, taking by
eminent domain or any similar proceeding which affects the Real Property by one
or more of the following: (i) reducing the total leaseable area of any existing
building(s) on The Shopping Center Land; (ii) materially reducing or eliminating
access to the Real Property (other than the Vacant Land) from any public roads
abutting the Real Property; (iii) diminishing materially the number of parking
spaces available on the Real Property (other than the Vacant Land), or reducing
the number of such spaces below that required by applicable zoning and/or other
governmental requirements and such reduction would constitute a violation of
such requirements; or (iv) otherwise materially and adversely affecting the
utility of the Shopping Center for shopping center purposes.
18
9. Buyer's Inspections and Tests; Board Approval; Strawbridges
-----------------------------------------------------------
(a) After reasonable notice to Seller's on-site manager (or
such other employee of Seller of whom Seller gives Buyer notice), which may be
delivered by telephone, and at times during business hours reasonably convenient
to Seller and which minimize disruption to Seller's operations, Buyer and its
agents, employees, inspectors and contractors may go upon the Real Property for
the purpose of interviewing tenants, subject to the restrictions contained in
subparagraph 2(a), and making such surveys, plans, tests, studies, inspections
and any other reviews and examinations as Buyer may reasonably desire, including
a Phase I environmental report and an engineer's inspection report confirming
the condition of the Improvements (including the roofs, walls, and mechanical,
electrical, plumbing, sanitary sewer, potable water, stormwater and life safety
systems), in all cases using reasonable care to avoid damage to persons and
property and material interference with Tenants. Such right shall continue for
so long as this Agreement remains in full force and effect. Buyer shall promptly
restore any damage caused by such entry to the condition that existed
immediately before such damage; provided, that Seller and Buyer waive against
each other any loss or damage to the extent covered by casualty insurance
maintained by the other. Seller or its representative may be present to observe
any testing or other inspections performed on the Real Property. Buyer shall
maintain commercial general liability insurance in an amount not less than
$5,000,000 (single limit) with respect to liability arising out of any entry or
inspections of the Real Property pursuant to the provisions hereof, and provide
Seller with evidence of such insurance coverage before any inspection. Subject
to the proviso contained in the third sentence of this subparagraph 9(a), Buyer
shall indemnify, defend with counsel reasonably acceptable to Seller and hold
harmless Seller from and against any costs, damages, liabilities, losses,
expenses, liens or claims (including reasonable attorney's fees) arising out of
such inspections; provided, however, that Buyer shall in no event be obligated
to indemnify, defend or hold harmless any party from its negligence or willful
misconduct. The foregoing indemnity shall survive Closing or the termination of
this Agreement.
(b) Buyer acknowledges and confirms to Seller that the Boards
of Directors of Buyer, Pennsylvania Real Estate Investment Trust, Simon Property
Group, Inc. and Kravco Simon have approved the transaction contemplated by this
Agreement, either by specific approval or pursuant to the terms of an existing
grant of general authorization previously approved by one or more of such Boards
of Directors.
(c) Buyer and Seller acknowledge that the owner of the
Strawbridges department store which is located adjacent to the Land and which is
a party to the REA ("Springfield Strawbridges") has announced that the
Springfield Strawbridges may close, be sold or be replaced by another department
store, and that neither the announcement nor any actions taken by the
announcement before or after Closing shall affect this Agreement nor create any
right of Buyer or liability in Seller before or after Closing. Buyer also
acknowledges that Seller has previously indicated its interest in the
Springfield Strawbridges to the owner of the Springfield Strawbridges.
19
(d) Seller, for itself and its affiliates, agrees (which
agreement shall survive Closing and shall be specifically enforceable against
Seller and its affiliates, including by injunctive relief, notwithstanding
anything to the contrary contained herein) that,
(i) Provided that the Closing occurs hereunder,
neither Seller nor any of its affiliates will, directly or indirectly,
purchase, lease, sublease or otherwise acquire, or bid for or offer to
purchase, lease, sublease or otherwise acquire, any direct or indirect
rights or interest in the Springfield Strawbridges or the Macy's store
building located adjacent to the Land at any time from and after the
date of Closing and the date that is the fifth (5th) anniversary of the
date of Closing. Promptly after Closing hereunder, Seller will notify
the owner of the Springfield Strawbridges of its withdrawal of its
interest.
(ii) If at any time prior to the date of Closing
Seller or any affiliate of Seller shall directly or indirectly, offer
(or respond to any solicitation to offer other than a rejection
thereof) to purchase, lease, sublease or otherwise acquire any direct
or indirect rights or interest in the Springfield Strawbridges or the
Macy's store building located adjacent to the Land, then Seller shall
promptly inform Buyer of such offer and of the material terms and
conditions thereof, and thereafter Seller shall continue to inform
Buyer of the status of such bid or offer, and of any changes therein,
and of all counteroffers, so that Buyer shall be reasonably informed of
the progress of such bid or offer, the negotiation thereof, and of any
withdrawal thereof by Seller.
(iii) If Seller or any affiliate of Seller shall
directly or indirectly, purchase, lease, sublease or otherwise acquire,
or enter into any agreement to purchase, lease, sublease or otherwise
acquire, any direct or indirect rights or interest in the Springfield
Strawbridges or the Macy's store building located adjacent to the Land
at any time on or prior to the date of Closing, then Seller shall
promptly inform Buyer thereof and shall disclose to Buyer copies of all
purchase offers, purchase agreements, leases and other documents
pertaining to such transaction; and provided that Closing hereunder
occurs, and at Buyer's sole option, Buyer shall have the right to
acquire from Seller or such affiliate, at Closing or anytime within
thirty (30) days following the date of Closing, all right, title and
interest of Seller or such affiliate in the store building and all
other property acquired, leased, subleased or otherwise acquired by
Seller or its affiliate, or (if such acquisition has not been closed)
all of Seller's or such affiliate's right to the acquisition thereof
(and Seller agrees to use commercially reasonable efforts to cause the
seller thereof to permit the assignment thereof to Buyer or its
affiliate). To effectuate such right, Buyer must close on such
acquisition and fund the consideration to Seller within thirty (30)
days of the Closing. The purchase price and entire consideration for
such transfer, assignment and conveyance to Buyer shall be the
repayment by Buyer to Seller or such affiliate of the actual
out-of-pocket expenses of Seller or such affiliate (including without
limitation attorneys' fees and costs, loan amounts and costs, and all
other closing costs actually incurred by Seller or such affiliate)
incurred for the purchase, lease, sublease or otherwise acquisition, or
any agreement to purchase, lease, sublease or otherwise acquire, such
store building and other property, without any mark-up or surcharge. If
Seller acquired title to the store building and property subject to
Buyer's option to purchase under this subparagraph (iii), such title
shall be in the condition received by Seller or such affiliate from the
20
third-party transferor from whom Seller obtained the same, and in any
case without any lien, mortgage or other encumbrance or defect created
or suffered by Seller (provided that the consideration paid by Buyer to
Seller is sufficient to satisfy any purchase money obligations incurred
by Seller in connection with its purchase of such property).
(e) Buyer, for itself and its affiliates, agrees (which
agreement shall survive Closing and shall be specifically enforceable against
Buyer and its affiliates, including by injunctive relief, notwithstanding
anything to the contrary contained herein) that neither Buyer nor any of its
affiliates will, prior to Closing, directly or indirectly, purchase, lease,
sublease or otherwise acquire, or bid for or offer to purchase, lease, sublease
or otherwise acquire, any direct or indirect rights or interest in the
Springfield Strawbridges or the Macy's store building located adjacent to the
Land; provided, however, that nothing contained in the foregoing shall prohibit
Buyer from entering any bid, making any offer, entering into any contract or
agreement, or concluding any closing, for the purchase, lease, sublease or other
acquisition of any direct or indirect rights or interest in the Springfield
Strawbridges if at any time Seller notifies the owner of the Springfield
Strawbridges of its withdrawal of interest in accordance with subparagraph
9(d)(i) above.
10. Escrow
------
The Deposit shall be held in escrow (and to the extent it was
posted in immediately available funds, in an interest-bearing money market
account selected by Buyer, with assets greater than $1,000,000,000) by Lawyers
Title Insurance Corporation, as escrow agent (the "Escrow Agent"), pursuant to
the terms and conditions of the Escrow Agreement attached hereto and made a part
hereof as EXHIBIT "I" (the "Escrow Agreement"). At Closing, Escrow Agent shall
pay over to Seller the amount of the Deposit, to the extent the same was posted
in immediately available funds, which amount shall be credited against the
Purchase Price and shall return the letter of credit to Buyer. If Closing does
not occur, Escrow Agent shall return the Deposit to Buyer unless Seller is
entitled to retain the Deposit by reason of Buyer's default beyond the
expiration of applicable notice and grace periods hereunder, in which event the
Deposit shall be delivered to Seller in accordance with subparagraph 16(a) and
the Escrow Agreement. Because the term "Deposit" as used in this Agreement
includes any accrued interest, such interest shall inure to the benefit of and
be paid to the party entitled to the Deposit.
11. Conditions to Obligations; "As Is" Sale
---------------------------------------
(a) Buyer's and Seller's respective obligations under this
Agreement are contingent upon (i) all of the representations and warranties of
the other party contained herein being true and correct in all material
respects, and the same shall remain true and correct in all material respects as
though made as of the Closing Date, subject to the expiration, termination or
execution of Leases and Contracts and other agreements pursuant to Paragraph 15,
and any changes permitted under Paragraph 15, and (ii) the performance by the
other party of all of its covenants and obligations contained in this Agreement
in all material respects, and (iii) in the case of Buyer's obligation to pay the
Purchase Price and to complete Closing, title to the Property shall be in the
condition required under Paragraph 4.
21
(b) Kravco Company, whose affiliate is a partner of Buyer, is
currently a contractor supplying services to Seller in connection with the
Property pursuant to a leasing agreement entered into between Seller and a
predecessor to PREIT, which agreement was assigned to Kravco effective March 1,
1995. Such leasing agreement shall be terminated on or before Closing and will
not be assigned to Buyer. Kravco Company has also been a third party consultant
to Seller in connection with the redevelopment of the Property and has extensive
knowledge as to the Property and has shared with Seller in certain confidential
records and operations for approximately ten (10) years.
(C) AS A MATERIAL INDUCEMENT TO SELLER TO EXECUTE THIS
AGREEMENT, AND IN CONSIDERATION OF THE KNOWLEDGE OF CERTAIN AFFILIATES OF BUYER
DUE TO THEIR PAST AND PRESENT RELATIONSHIP WITH SELLER, BUYER (WHICH FOR
PURPOSES OF THIS SUBPARAGRAPH 11(C) SHALL INCLUDE BUYER AND ANY PERSON OR ENTITY
CLAIMING BY, THROUGH OR UNDER BUYER (COLLECTIVELY "BUYER PARTIES")),
ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR
ANY DOCUMENT EXECUTED AND DELIVERED BY SELLER AT CLOSING (A "CLOSING DOCUMENT"),
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT, OR FUTURE OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE,
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY
CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH
ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR SUBSTANCES, IF ANY, INCORPORATED INTO
THE PROPERTY, OR (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF
THE PROPERTY, OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT OR ANY CLOSING DOCUMENTS, BUYER FURTHER
ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE FULL AND COMPLETE OPPORTUNITY
TO MAKE ITS OWN INDEPENDENT INVESTIGATION OF THE PROPERTY, BUYER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND OF ALL FINANCIAL AND OTHER
MATTERS PERTAINING THERETO, INCLUDING WITHOUT LIMITATION INVESTIGATION INTO THE
CURRENT STATUS OF THE CONTRACTS, LEASES, UTILITIES AND THE AVAILABILITY AND COST
THEREOF, THE COMPLIANCE OF THE PROPERTY WITH ALL APPLICABLE LAWS, INCLUDING
WITHOUT LIMITATION ENVIRONMENTAL LAWS, AND NOT ON ANY INFORMATION PROVIDED OR TO
BE PROVIDED BY OR ON BEHALF OF SELLER, AND BUYER AGREES THAT BUYER IS ACQUIRING
THE PROPERTY BASED SOLELY UPON SUCH INDEPENDENT INVESTIGATION IN "AS-IS"
CONDITION ON THE CLOSING DATE.
22
(D) BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR
ANY OF THE CLOSING DOCUMENTS, SELLER AND SELLER'S AGENT HAVE NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKE NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER
IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION
THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON. THE PROVISIONS OF THIS SUBPARAGRAPH 11(D) SHALL SURVIVE THE CLOSING.
(e) The provisions of subparagraphs 11(c) and (d) shall
survive Closing, and shall be restated in writing at Closing.
12. Closing
-------
Closing of the transaction contemplated by this Agreement
("Closing") will be held at the offices of Buyer's counsel, Ballard Spahr
Andrews & Ingersoll, LLP, 1735 Market Street, Philadelphia, Pennsylvania, at
10:00 A.M. local time on October 17, 2005, or at such other definite place and
time and/or date as Seller and Buyer may agree upon in writing (subject to
postponement as provided in subparagraph 13(a)(xi), below). The date of the
occurrence of Closing is called the "Closing Date". Unless otherwise agreed
between Buyer and Seller, the transaction contemplated hereby shall also be
closed by means of the concurrent delivery of the documents of title and the
conveyancing documents, and the payment of the Purchase Price subject to the
adjustments expressly provided for under the terms of this Agreement.
13. Provisions with Respect to Closing
----------------------------------
(a) At Closing, Seller shall deliver possession of the
Property to Buyer in the same condition as exists on the Execution Date, subject
to reasonable wear and tear, and Seller shall deliver, or cause to be delivered,
to Buyer the following:
(i) A Special Warranty Deed or Deeds (collectively,
"the Deed"), in the form attached hereto as EXHIBIT "J", duly executed
and acknowledged by Seller.
(ii) Rent rolls in the form attached hereto as
EXHIBITS "D-1" and "D-2" (which shall be delivered by Seller to Buyer
for review within three (3) business days prior to the Closing Date,
and shall be certified by Seller to Buyer on and as of the Closing
Date), subject to updating to reflect then-current conditions, together
with a list setting forth the names of any Tenant then in arrears in
the payment of rent under such Tenant's Lease and the amount of such
arrearage, such rent roll and list to certified by Seller to be true
and correct as of the Closing Date.
23
(iii) Originals of the Leases and guarantees thereof
(or copies thereof certified by Seller to be true and complete if
Seller is unable to locate originals thereof), together with all
correspondence with Tenants, and other materials in the Tenant lease
files that are in Seller's possession or within its reasonable control.
All Security Deposits (including all letters of credit and other
non-cash security devices), and all interest earned thereon required to
be paid to the applicable Tenant(s), shall be delivered by Seller to
Buyer at Closing by actual delivery of documents or sums, transfer of
accounts (with delivery of all transfer documents required by the
depository institution) or, in the case of cash, credit to the Purchase
Price. Seller also shall deliver to Buyer the keys to all locks on the
Real Property and original counterparts of the Contracts, Licenses and
Permits and Books and Records, or certified copies of same if Seller,
using its good faith reasonable efforts, is unable in any instance to
deliver originals.
(iv) A letter to the Tenants (in form reasonably
acceptable to Buyer) signed by Seller and Buyer and stating that the
Property, the Leases and the Security Deposits have been conveyed to
Buyer and that the rent and other charges payable under the Leases
thereafter should be paid to Buyer or Buyer's designee.
(v) A letter to the vendors under the Contracts (in
form reasonably acceptable to Buyer) executed by Seller and Buyer
stating that future invoices are to be sent to Buyer.
(vi) An Assignment and Assumption of Leases (the
"Lease Assignment") duly executed by Seller, in the form of EXHIBIT
"K", attached hereto and made a part hereof.
(vii) An Assignment and Assumption (the "Contract
Assignment") duly executed by Seller, in the form of EXHIBIT "L-1",
attached hereto and made a part hereof, sufficient to transfer and
convey the landlord's interest in, to and under the Contracts to Buyer,
and in certain other property to be conveyed pursuant to this
Agreement.
(viii) An affidavit duly executed by Seller and
confirming that Seller is a "U.S. person" and not a "foreign person"
within the meaning of Section 1445 of the Code, in such form as is
required under the Code.
(ix) A duly executed and acknowledged Assignment and
Assumption of the REA (the "REA Assignment"), including the
Merchandising Fund and Marketing Fund, in the form of EXHIBIT "L-2",
attached hereto and made a part hereof, sufficient to transfer and
convey Seller's interest in, to and under the REA and such funds.
(x) Such information, if any, as may be required by
the closing agent for Real Estate 1099-B Report Filing pursuant to
Section 6045 of the Code.
24
(xi) Seller shall promptly request a tenant estoppel
certificate (each, a "Tenant Estoppel" and collectively, the "Tenant
Estoppels") in substantially the form of EXHIBIT "M-1", attached hereto
and made a part hereof (or in the form the Tenant is required to
provide pursuant to the terms of its Lease, so long as the Tenant
actually provides such form), from each Tenant under the Leases, with
the blanks filled in consistent with the terms of the Leases. In
addition, Seller shall promptly request estoppel certificates (each, an
"REA Estoppel" and collectively, the "REA Estoppels", which may be in
combined form for both the REA and the Springpenn Agreement, or may be
by separate estoppel forms for each thereof) in substantially the forms
of EXHIBITS "M-2" and EXHIBIT "M-3", attached hereto and made a part
hereof (or in the form the party to the REA is required to provide
pursuant to the terms of the REA or Springpenn Agreement), from each
party under the REA and under the Springpenn Agreement, with the blanks
filled in consistent with the terms of the REA and the Springpenn
Agreement. The Tenant Estoppels and the REA Estoppels are sometimes
collectively referred to as the "Estoppels". Notwithstanding anything
to the contrary contained in this Agreement, Buyer's obligation to
complete Closing is contingent upon (A) receipt by Buyer, at or before
Closing, of Estoppels meeting the requirements of this subparagraph
13(a)(xi) executed by each of the Required Estoppel Parties (as
hereinafter defined), (B) all Estoppels obtained from the Required
Estoppel Parties being dated no earlier than forty-five (45) days prior
to the Closing Date, and (C) no Estoppel containing any material
adverse deviation from any of the statements contained in EXHIBIT "M-1"
or EXHIBIT "M-2" or EXHIBIT "M-3", as applicable, the representations
and warranties contained in this Agreement and/or the Leases or the REA
or the Springpenn Agreement, as applicable, failing any of which Buyer
shall have the right to terminate this Agreement by written notice to
Seller, in which event the Deposit shall be returned to Buyer by the
Escrow Agent, and neither Seller nor Buyer shall have any further
rights, claims or obligations against one another arising out of this
Agreement, excepting the Continuing Obligations. "Required Estoppel
Parties" means (i) Tenants occupying an aggregate of at least seventy
percent (70%) of the rentable space in the Improvements located on The
Shopping Center Land; and (ii) each of the parties to the REA and the
Springpenn Agreement other than Seller. Seller's obligation under this
Paragraph 13(a)(xi) to request Estoppels shall be limited to the making
of two (2) requests of a Tenant Estoppel from each Tenant and the
making of two (2) requests of an REA Estoppel from each REA party and
each party under the Springpenn Agreement. If a party requested to
execute an Estoppel fails to execute and deliver the Estoppel within a
reasonable period after one (1) such request by Seller, Seller shall
promptly inform Buyer and Buyer shall have the right to contact the
corporate office of the Tenant or REA party or party under the
Springpenn Agreement that has not delivered such estoppel. Seller shall
deliver to Buyer original signed Estoppels promptly after its receipt
thereof.
If Seller has been unable to obtain all of the Estoppels necessary to
comply with the requirements of subparagraph 13(a)(xi) as of the date
on which Closing is otherwise required to occur under this Agreement,
Buyer shall have the right, by written notice to Seller, at Buyer's
sole option, to (i) proceed to Closing and waive the condition set
forth in subparagraph 13(a)(xi) (to the extent unsatisfied), or (ii)
postpone Closing until the date that is the tenth (10th) business day
following Seller's delivery to Buyer of all of the Estoppels necessary
to comply with the requirements of subparagraph 13(a)(xi), but not
later than November 16, 2005; provided, that by extending the date of
Closing, Buyer shall have waived irrevocably all conditions to Closing
other than the conditions set forth in subparagraphs 11(a) and 13(a)
25
and Paragraph 7 of this Agreement; provided further, if Buyer so
extends the date of Closing, the definition of "Material Loss"
contained in Paragraph 7 shall be changed as follows: "Material Loss"
shall mean any loss or damage to the Shopping Center as to which
Buyer's architect or engineer, acting reasonably, determines has left
more than one-third of the rentable space in the Shopping Center
untenantable. Notwithstanding anything to the contrary, if Buyer so
extends the date of Closing, Buyer may at any time waive the condition
set forth in subparagraph 13(a)(xi) (to the extent unsatisfied) and
require that Closing be held on a business day at least five (5) days
after Buyer's written notice thereof. In the event Seller fails, after
having used good faith commercially reasonable efforts, to comply with
the requirements of subparagraph 13(a)(xi) by the extended Closing
Date, Buyer may, at Buyer's option and as its sole remedy, (i) proceed
to Closing and waive the condition set forth in subparagraph 13(a)(xi)
(to the extent unsatisfied), or (ii) terminate this Agreement by
written notice delivered to Seller, whereupon the Deposit shall be
returned to Buyer, and the parties shall have no further rights or
obligations under this Agreement, except for the Continuing
Obligations.
(xii) A bill of sale duly executed by Seller in the
form of EXHIBIT "N", attached hereto and made a part hereof.
(xiii) A title affidavit duly executed and
acknowledged by Seller, in favor of the Title Company, in the form
attached hereto as "EXHIBIT "O", together with delivery by Seller of
certified copies of the organizational documents of Seller and its
constituent entities (other than limited partners), and certified
copies of partner consents and resolutions (if required in any instance
by the organizational documents of Seller or any of its constituent
entities) and good standing or subsistence certificates, reasonably
requested by the Title Company evidencing the power and authority of
Seller to convey title to the Property as required under this
Agreement, and to enable the Title Company to insure such title as
contemplated in Paragraph 4.
(xiv) The Post-Closing Escrow Agreement in the form
attached hereto as EXHIBIT "G", and pursuant thereto Seller shall make
the escrow deposit provided for in subparagraph 5(e) of this Agreement.
(xv) A certificate duly executed by Seller stating
that the representations and warranties of Seller made in this
Agreement are true and correct in all material respects as of the
Closing Date, or, subject to the other provisions of this Agreement, if
there have been any changes, a description thereof.
(xvi) A settlement statement duly executed by Seller
setting forth the Purchase Price and all credits and adjustments.
(xvii) In the event Buyer shall be entitled to receive
any proceeds of insurance, or the proceeds of any award arising out of
any condemnation or eminent domain proceeding, or any unpaid claim(s)
for such award or proceeds, under Paragraphs 7 or 8, Seller shall
execute and deliver to Buyer such proper instruments as shall be
reasonably required for the transfer to Buyer of all right, title and
interest, if any, of Seller in and to any such award, proceeds or claim
to the full extent of Buyer's entitlement thereto.
26
(xviii) Any certificate of occupancy or other document
required by Springfield Township for transfer of the Property, subject
to the provisions of Paragraph 6 regarding the cost of corrective work.
(xix) Any other document which Seller is required to
deliver pursuant to the terms of this Agreement.
(b) At Closing, to the extent the Deposit was posted in
immediately available funds, Escrow Agent shall deliver the Deposit, to be
applied to the Purchase Price, and, no matter how the Deposit was posted, Buyer
shall deliver to Seller the balance of the Purchase Price in immediately
available funds accordance with Paragraph 3 (b), and Buyer shall:
(i) Duly execute and deliver to the Title Company such
title affidavit and such other reasonable and customary affidavits to
enable the Title Company to insure such title as contemplated in
Paragraph 4 of this Agreement.
(ii) Duly execute and deliver to Seller the Lease
Assignment, the Contract Assignment and the REA Assignment.
(iii) Duly execute and deliver a settlement statement
setting forth the Purchase Price and all credits and adjustments.
(iv) Duly execute and deliver a restatement of the
provisions of subparagraphs 11(c) and (d), as provided in subparagraph
11(e).
(v) Duly execute and deliver any other document which
Buyer is required to deliver pursuant to the terms of the Agreement.
(c) Except as otherwise provided in this Agreement, Seller
shall be entitled to all income produced from the operation of the Property
which is allocable to the period prior to the Closing Date and shall be
responsible for all expenses allocable to that period; and Buyer shall be
entitled to all income and shall be responsible for all expenses allocable to
the period beginning on the Closing Date and thereafter. At the Closing, all
items of income and expense with respect to the Property indicated below shall
be pro rated in accordance with the foregoing principles and with the rules for
the specific items set forth below.
(d) Rent and other payments, including any additional rent,
which are actually paid pursuant to the Leases, shall be pro rated. Rents
receivable but not collected by the Closing Date under Leases and attributable
to the month of Closing shall be assigned to Buyer, and if and when collected,
shall be appropriately prorated, and Buyer shall remit to Seller the amount to
which it is entitled (net of the reasonable costs of collection). Rents
receivable but not collected from Tenants under the Leases for months prior to
the month of Closing shall neither be assigned to Buyer nor prorated. In the
event that, on the Closing Date, any Tenant is in arrears in the payment of rent
for months prior to the month of Closing, any rents (net of the reasonable costs
of collection) collected after the Closing Date from such Tenant shall be
27
applied as follows: (i) to the rental due for the month of Closing; (ii) to any
arrearage occurring after the date of Closing; (iii) to the rent due when the
rental payment is received; and (iv) to Seller on account of any arrearage
applicable to the period prior to the month of Closing. Buyer shall not be
required to take any action or institute any proceeding to collect any
delinquent rent. With respect to any such unpaid amounts, Seller shall retain
the right, at its expense, to sue the applicable Tenant for collection of any
such unpaid amounts and, to the extent the applicable Lease permits, collection
costs and interest; provided, however, Seller (x) shall be required to notify
Buyer in writing of its intention to commence or pursue such legal proceedings;
and (y) shall not be permitted to commence or pursue any legal proceedings
against any Tenant seeking eviction of such Tenant or the termination of the
applicable Lease.
(e) At Closing, Seller shall certify to Buyer in writing the
aggregate amount of all estimated tax, insurance and other operating expense
reimbursements received by Seller from Tenants with respect to the lease years
for each Tenant in which Closing occurs, the aggregate amount of expenses
subject to reimbursement from Tenants paid or incurred by Seller with respect to
such lease years and not paid or assumed by Buyer, and, with respect to each
Tenant, the base expense amount (determined in accordance with each Lease) on
which such Tenant's share of increased costs is calculated. Buyer shall certify
to Seller in writing within a reasonable period of time after Closing the
aggregate amount of expenses subject to reimbursement paid or incurred by Buyer
during such lease years following Closing, shall bill Tenants for amounts due in
excess of the aggregate estimated payments theretofore received by Seller and
Buyer in accordance with the Leases, and shall certify to Seller, in writing,
within a reasonable period of time, the aggregate amount of payments received by
Buyer from Tenants with respect to such lease years. The aggregate amounts so
collected by Seller and Buyer shall be apportioned between them based upon the
respective portions of the respective lease years during which each held title
to the Property and any amount owed by one party to the other shall be promptly
paid. Each party agrees to provide to the other full access to all books and
records required in order to confirm any information required to be provided
pursuant to this subparagraph 13(e).
(f) Real estate taxes and all other ad valorem taxes, if any,
with respect to the Real Property for the calendar year in which the Closing
occurs, shall be prorated on a per diem basis based on the fiscal year of the
taxing authority and using the actual number of days in such fiscal year. If the
amount of such taxes is not known on the Closing Date, proration of such taxes
will be made based upon the most recently ascertainable tax bill. Buyer
acknowledges that Seller shall be entitled to a proration of taxes
notwithstanding the fact that payment of portions of such taxes may be included
as additional rent within some or all of the Leases. If the taxes apportioned at
Closing differ from the taxes as finally determined for the period of time in
which Closing occurred, at the time of final determination of the actual taxes,
the parties will adjust the Closing prorations to reflect the actual charges.
There shall be no proration of Seller's insurance premiums or assignment of
Seller's insurance policies and Seller shall be entitled to cancel all of its
existing policies as of the Closing Date.
(g) Notwithstanding anything to the contrary contained in this
Agreement, overage or percentage rent, if any, payable under the Leases that is
in addition to base minimum rents shall be prorated with respect to the lease
years in which the Closing occurs. That portion of any percentage rent collected
by Buyer pertaining to (i) an entire lease year or accounting period of a Tenant
which ends on a date prior to the Closing Date, and (ii) that portion of a lease
28
year or accounting period of such Tenant covering a period prior to the Closing
Date where such lease year or accounting period begins prior to the Closing Date
and ends thereafter shall in both cases be paid to Seller within sixty (60) days
after receipt by Buyer. Buyer shall not be required to take any action or
institute any proceeding to collect any delinquent percentage rent. Seller shall
be entitled to enforce its rights to receive overage or percentage rent in the
same manner as set forth in the last sentence of subparagraph 13(d).
(h) Amounts due under any Contracts assumed by Buyer, if any,
and utilities (including electricity, gas, steam, telephone and, water and sewer
charges), not otherwise separately metered and billed directly to Tenants under
Leases by utility providers shall be apportioned. If the Closing Date shall
occur before the current water rates and charges and sewer taxes and rents are
finally fixed, the apportionments thereof made on the Closing Date shall be upon
the basis of the water or sewer rates for the preceding year and in each case,
the same shall be re-apportioned upon issuance of the actual bills for the
periods in question. Seller shall furnish readings of the water, electric and
other utility meters at the Real Property, to the extent reasonably possible,
the day before the Closing Date. Seller shall further attempt to obtain from the
provider of same all other service statements and bills of account adjusted as
of the Closing Date. Seller shall be entitled to refunds of all deposits, if
any, paid by Seller prior to Closing and held by entities providing such
service, or, at Seller's option, Seller shall transfer all of Seller's right,
title and interest in and to such deposits to Buyer at Closing and shall receive
a full credit for the amount of such deposits. The parties shall cooperate with
respect to changing the utility services (except those separately metered and
billed directly to Tenants under Leases) to Buyer's name as of Closing.
(i) All real estate transfer taxes shall be borne by the
parties equally. Buyer shall pay for all recording fees for the recording of the
Deed. Buyer shall pay the cost of any survey it obtains and the cost of the all
title searches and policies. Each party shall bear the expense of its own
counsel. The parties shall cooperate with each other in an effort to minimize
costs incurred in connection with Closing.
(j) Reimbursable Lease Expenses (as hereinafter defined)
arising from any Lease executed and delivered on or before May 6, 2005 shall be
the responsibility of Seller. Buyer shall reimburse Seller at Closing for any
Reimbursable Lease Expenses to the extent that the same have been paid by Seller
prior to Closing, and relate to any Lease executed and delivered after May 6,
2005 in accordance with the terms of this Agreement (a "New Lease"). In
addition, at Closing Buyer shall assume Seller's obligations to pay when due any
Reimbursable Lease Expenses unpaid as of the Closing that relate to any New
Lease. Each party shall make available to the other all records, bills, vouchers
and other data reasonably requested by the other and in such party's possession
or reasonable control verifying Reimbursable Lease Expenses and the payment
thereof. Notwithstanding the other provisions of this subparagraph 13(j), Seller
shall be responsible for a portion of the Reimbursable Lease Expenses under any
New Lease calculated by multiplying the aggregate Reimbursable Lease Expenses
for the applicable Tenant by a fraction, the numerator of which is the total
base rents actually received by Seller under the New Lease giving rise to the
Reimbursable Lease Expenses, and the denominator of which is the aggregate base
rent due under such New Lease for the full initial term of such New Lease.
29
"Reimbursable Lease Expenses" shall mean, collectively, any
and all costs, expenses and fees reasonably paid or incurred by Seller before
Closing arising out of or in connection with any Lease. Reimbursable Lease
Expenses shall include (i) brokerage commissions and fees at market rates to
effect any such leasing transaction; (ii) expenses incurred (whether directly by
Seller or by payment to the Tenant) for repairs, improvements, equipment,
painting, decorating, partitioning and other items to satisfy the Tenant's
requirements with regard to such leasing transaction and rental abatements or
rebates, tenant allowances and other material tenant concessions, if any; and
(iii) reasonable legal fees for services in connection with the preparation of
documents and other services rendered in connection with the effectuation of the
leasing transaction. Buyer approves the Leases executed after May 6, 2005 that
are expressly listed on EXHIBITS "D-1" and "D-2" hereto (including the Leases in
process as set forth therein), and the Reimbursable Lease Expenses expressly
itemized (based on current and currently pending Leases) on EXHIBIT "D-3"
attached hereto and made a part hereof.
(k) At Closing, Seller shall give Buyer a credit against the
Purchase Price in an amount equal to (i) all Reimbursable Lease Expenses that
have not been paid to Tenants, to the extent that such Reimbursable Lease
Expenses are the responsibility of Seller pursuant to subparagraph 13(j), and
(ii) the aggregate amount of the Merchandising Fund and Marketing Fund collected
before Closing and not expended, and Buyer shall assume the ongoing obligation
with respect to such funds pursuant to the REA Assignment; provided, however,
that if Closing occurs, no adjustment will be made at Closing for lease
commissions that are to be paid to Pennsylvania Real Estate Investment Trust or
any affiliate thereof after June 30, 2005 with respect to Leases executed before
May 6, 2005 and Seller shall have no obligation to pay such commissions.
(l) Seller intends to purchase new Christmas decorations for
the Real Property. Before Closing, Seller will seek approval by Buyer before
contracting for such items; provided, that Seller may purchase decorations of
reasonable quality without approval of Buyer; provided further, that such
decorations cost no more than $57,000.00. If such decorations are purchased in
accordance with the terms of this subparagraph 13(l) and either delivered in new
condition to Buyer at Closing, or not yet delivered by the supplier at the time
of Closing, the cost thereof shall be reimbursed to Seller at Closing, if
previously paid by Seller, or assumed by Buyer, if not yet paid by Seller.
Seller shall promptly provide Buyer with the relevant invoices and other
materials reasonably requested by Buyer with respect to such decorations.
(m) Reference is made to EXHIBIT "Q" attached hereto, which
schedule sets forth the current status of outstanding gift certificates issued
to Seller's customers covering the Property from the period August 17, 2002 to
July 31, 2005 (collectively, the "Gift Certificates"). At Closing, Seller shall
retain the bank accounts (currently held in Citizens Bank, as shown on Exhibit
"Q") holding the proceeds from the Gift Certificate transactions through the
Closing Date (the "Gift Certificate Accounts"). Seller hereby covenants to honor
future redemptions of Gift Certificates issued prior to Closing and outstanding
as of Closing. Subsequent to Closing, Buyer shall have the right to operate its
separate Gift Certificate arrangement with respect to all Gift Certificate
transactions covering the Property occurring after the Closing Date. At Closing,
Seller shall be required to retain in the Gift Certificate Accounts (or to
deposit therein to the extent of any deficiency) an amount necessary to pay all
unredeemed Gift Certificates issued within the thirty-month period preceding
Closing, and to satisfy all claims (asserted or unasserted) of the Commonwealth
30
of Pennsylvania to any unredeemed Gift Certificates issued within such
thirty-month period. Thereafter, within thirty (30) days following the end of
each calendar quarter (beginning at the end of the fourth calendar quarter of
2005), Seller shall be entitled to withdraw from the Gift Certificate Accounts
all amounts in excess of the amount necessary to pay all Gift Certificates
issued by Seller in the thirty-month period preceding the last day of the
calendar year quarter just ended, and to satisfy all claims (asserted or
unasserted) of the Commonwealth of Pennsylvania to any unredeemed Gift
Certificates issued within such thirty-month period. Seller shall be entitled to
withdraw any remaining amounts outstanding in the Gift Certificate Accounts as
of June 30, 2008. The outstanding amount of the Gift Certificates and Seller's
obligation to maintain a certain level of proceeds are subject to the rights of
the Commonwealth of Pennsylvania to claim any unredeemed proceeds. Prior to
Closing, Seller and Buyer shall (acting reasonably and in good faith) establish
with the holder of the Gift Certificate Accounts reasonable written controls
upon disbursements from the Gift Certificate Accounts, and rights in favor of
Buyer for the review and audit of the Gift Certificate Accounts, to assure the
maintenance and disbursement of the proceeds thereof in accordance with the
terms of this subparagraph 13(m). Seller agrees to indemnify and hold harmless
Buyer, and its affiliates (including without limitation any permitted assignee
or nominee of the rights of Buyer under this Agreement) from and against any
claims, judgments, fines, interest, penalty and other amounts that may be
imposed upon Buyer, or such affiliates of Buyer or Buyer's permitted assignee or
nominee on account of any Gift Certificates issues by Seller, or any
misapplication or misappropriation of the proceeds of the Gift Certificate
Accounts, or the failure of Seller to comply with any laws or governmental
requirements pertaining to the Gift Certificates issued by Seller or the Gift
Certificate Accounts, and any expenses (including without limitation reasonable
attorney's fees and costs) incurred by Buyer on account of any such claims,
judgments, fines, interest, penalty and other amounts that may be so imposed.
The foregoing indemnity obligation shall not be subject to the terms or
limitations contained in subparagraph 5(e) of this Agreement.
(n) If at any time following the Closing Date, the amount of
an item listed in this Paragraph 13 shall prove to be incorrect (whether as a
result in an error in calculation or a lack of complete and accurate information
as of the Closing), the party in whose favor the error was made shall promptly
pay to the other party the sum necessary to correct such error upon receipt of
proof of such error, provided that such proof is delivered to the party from
whom payment is requested on or before December 31, 2006; provided, that any
adjustment with respect to realty transfer taxes shall be made, if necessary, at
any time within the applicable statute of limitations period. The foregoing
obligation shall not be subject to the terms or limitations contained in
subparagraph 5(e) of this Agreement.
(o) Except as hereinafter set forth, all salary, wages and
benefits (including without limitation accrued and unused vacation time, sick
time and the like) of employees earned or accrued prior to the Closing Date (or
earlier date of termination of employment) shall be the responsibility of
Seller; and the employment of all employees at the Property shall be terminated
by Seller not later than the Closing Date. If Buyer elects (in its sole
discretion, and without obligation to do so) to rehire any employee terminated
by Seller, all salary, wages and employee benefits (including health and life
insurance programs) accruing on and after such date of rehire, with respect to
Buyer's employment relationship, shall be responsibility of Buyer and shall be
determined between Buyer and such employee(s). Seller shall comply with all
obligations imposed upon Seller by the Consolidated Omnibus Budget
Reconciliation Act ("COBRA") or by any other applicable federal or state laws
regarding continuation coverage rights, to the extent Seller is required to do
so under applicable laws.
31
(p) At Closing, all sums payable by Seller under the REA and
the Springpenn Agreement, and all sums actually received by Seller thereunder,
shall be apportioned between Seller and Buyer in accordance with subparagraph
(31(c), above. Any sums receivable by Seller but not collected from other
parties to the REA and the Springpenn Agreement for fiscal periods prior to the
applicable fiscal period in which Closing occurs shall neither be assigned to
Buyer nor prorated. If, on the Closing Date, any party (other than Seller) to
the REA or Springpenn Agreement is in arrears in the payment to Seller of any
sum thereunder for the fiscal period in which Closing occurs, any sums (net of
the reasonable costs of collection) collected after the Closing Date from such
party, under the REA or Springpenn Agreement (as applicable) for amounts
corresponding to those for which payment is in arrears shall be applied as
follows: (i) to the corresponding sums due for fiscal period in which Closing
occurs; (ii) to any arrearage under the REA or Springpenn Agreement occurring
after the date of Closing; (iii) to the corresponding sums due when payment
actually is received; and (iv) to Seller on account of any arrearage applicable
to fiscal periods prior to that in which the Closing occurs. Buyer shall not be
required to take any action or to institute any proceeding to collect any
delinquent amount owed to Seller under the REA or Springpenn Agreement. If, on
the Closing Date, any party (other than Seller) to the REA or Springpenn
Agreement is in arrears in the payment to Seller of any sum due and payable to
Seller prior to Closing, Seller shall retain the right, at its expense, to sue
the applicable party for collection of any such unpaid amounts and, to the
extent the REA or Springpenn Agreement (as applicable) permits, collection costs
and interest; provided, however, Seller (x) shall be required to notify Buyer in
writing of its intention to commence or pursue such legal proceedings; and (y)
shall not be permitted to commence or pursue any legal proceedings against any
party seeking the termination of REA or Springpenn Agreement or any of the
easements or other rights thereunder.
The provisions of this Paragraph 13 shall survive Closing.
14. Brokerage
---------
Each party represents and warrants that it has not dealt with any
broker, finder or real estate consultant in connection with this transaction,
other than affiliates of Buyer, for whose remuneration, if any, Buyer shall be
responsible. Seller shall indemnify, defend with counsel reasonably acceptable
to Buyer and hold harmless Buyer from and against any claim for brokerage
commissions made against Buyer in connection with this transaction by any person
or entity claiming a commission in connection with this transaction through its
relationship with Seller. Buyer shall indemnify, defend with counsel reasonably
acceptable to Seller and hold harmless Seller from and against any claim for
brokerage commissions made against Seller in connection with this transaction by
any person or entity claiming a commission in connection with this transaction
through its relationship with Buyer. This Paragraph 14 shall survive Closing.
The foregoing indemnity obligation shall not be subject to the terms or
limitations contained in subparagraph 5(e) of this Agreement.
32
15. Operations Prior to Closing
---------------------------
Except as otherwise expressly provided in this Agreement, until the
Closing or earlier termination of this Agreement:
(a) Seller will operate the Property (including its actions
with respect to the Leases) in a manner consistent with its Past practices, and
maintain it in its condition existing at the time of this Agreement, ordinary
wear and tear and casualty damage excepted, subject to Paragraph 7.
(b) Seller will not sell, assign, or convey any right, title,
or interest whatsoever in or to the Property or create or permit to exist any
lien, encumbrance, or charge thereon without promptly discharging the same;
(c) Except as otherwise approved by Buyer in writing, Seller
will not modify, extend, cancel, amend, renew or enter into any Lease, Contract
or other obligation pertaining to the Property or the operation thereof (except
as any Tenant shall be entitled under the present terms of its Lease), or take
any action to dispossess any Tenant. Seller shall not, without first obtaining
the prior written approval by Buyer: (i) accept the surrender of any Contract or
Lease or grant any rent concession or other material concession, any promise of
work, or any rebate, allowance or free rent for any period from and after the
Closing Date not provided for in any Contract or Lease as of the Execution Date;
(ii) remove any Personal Property located in or on the Property, except as may
be required for repair and replacement; (iii) enter into or establish any
material obligation on behalf of or which would be binding upon Buyer; or (iv)
make any material changes to the Property. All replacements shall be free and
clear of liens and encumbrances and shall be of quality at least equal to the
replaced items and shall be deemed included in this sale, without cost or
expense to Buyer; provided that nothing contained herein shall require Seller to
make any replacements except in the case of Seller's removal of now-existing
Personal Property. Seller shall keep Buyer reasonably informed of any
transactions pertaining to new Leases and the terms thereof, and shall send
Buyer execution copies of all such Leases and Contracts to accompany Seller's
request for Buyer's consent thereto. With respect to the foregoing provisions of
this subparagraph (c): (i) Buyer's approval shall not be unreasonably withheld;
(ii) Buyer shall respond to Seller's request for approval thereof within four
(4) business days following Buyer's receipt of Seller's written request, failing
which Buyer shall be deemed to have given such approval; and (iii) Seller shall
be authorized, without requiring Buyer's approval but upon written notice to
Buyer, to enter into Contracts (or to renew existing Contracts) upon
arms-length, commercially competitive terms provided that such Contract or
renewal shall be terminable unilaterally by the owner of the Property, with or
without cause and without penalty or liability, upon not more than thirty (30)
days' notice.
(d) Seller promptly shall provide copies to Buyer upon
Seller's receipt hereafter of any: (i) written notice from any party alleging
that Seller is in default of its obligations under any of the Leases, the
Contracts, or any permit or agreement affecting the Property or any portion
thereof; (ii) any tax bill, written notice of assessment or notice of change in
a tax rate or assessment affecting the Property; (iii) any written notice
instituting or asserting any material claim, action, investigation or proceeding
affecting the Property; (iv) any written notice from a Tenant under any of the
Leases terminating, expanding or extending, or seeking to terminate, expand or
extend its Lease, or asserting any material default on the part of the landlord
thereunder; (v) any written notice from any governmental authority asserting any
violation of law with respect to the Property; (vi) any written notice of an
Environmental Claim affecting the Property; and (vii) any new Lease or Contract
entered into by Seller.
33
(e) If any new Leases provide for security deposits in the
form of letters of credit, such letters of credit shall provide that they may be
assigned to Buyer.
(f) Seller may apply security deposits only if a Lease is
terminated by expiration of its terms or with Buyer's prior approval as set
forth in subparagraph 15(c) hereof, and to the extent any security deposits are
so applied, Seller shall pay over to Buyer any excess between (i) the amounts so
applied, and (ii) rents and other charges which had accrued and would have been
due and payable up to the Closing Date.
(g) Notwithstanding anything to the contrary contained in this
Agreement, Seller shall not collect any rent for more than the then current
month (and any arrearage which may exist), except with Buyer's prior written
approval (but which shall be given or denied within four (4) business days after
receipt of Seller's written request therefor, failing which Buyer shall be
deemed to have given such approval).
16. Default
-------
(a) If, on or before the Closing Date, Seller has failed to
perform in any material respect any of its covenants contained in this Agreement
within the time for performance as specified herein (including Seller's
obligation to close) then, provided Buyer has notified Seller in writing of same
and Seller has failed to cure such condition or circumstance or non-performance
within ten (10) days of receipt of such notice (but not extending beyond the
scheduled date for Closing), Buyer's sole remedies on account of any such breach
shall be to:
(i) terminate this Agreement by delivering written
notice of Buyer's election to terminate to Seller, in which event the
Deposit shall be returned to Buyer and neither Seller nor Buyer shall
have any further liability to the other except for the Continuing
Obligations; provided, however, in the event of a willful or
intentional breach by Seller, Seller shall promptly reimburse Buyer for
the reasonable expenses incurred by Buyer in connection with its due
diligence activities, not to exceed $100,000 (the "Reimbursable
Costs").
(ii) file an action for specific performance of this
Agreement to compel Seller to comply with its obligations, if such
breach, default or failure is willful and intentional.
Buyer hereby waives any right it may have to any lis pendens
with respect to the Property, or other lien or encumbrance thereon prior to
Closing, excepting the lien of any judgment or other judicial order or
determination resulting from the enforcement of any of Buyer's remedies
hereunder. Neither Seller nor Buyer shall be liable to the other for
consequential or punitive damages, or for reimbursement of costs representing an
allocation of internal overhead expenses (including without limitation allocable
costs of in-house counsel and accounting personnel). Buyer shall have all
equitable remedies otherwise available to Buyer, on account of any breach,
default or failure of Seller to perform or observe any of its obligations under
this Agreement, provided such breach, default or failure is willful and
intentional.
34
(b) In the event that Buyer shall have failed to perform in
any material respect any of its covenants contained in this Agreement within the
time for performance as specified herein (including Buyer's obligation to
close), and provided Seller has notified Buyer in writing of the same and Buyer
has failed to cure such condition or circumstance or non-performance within ten
(10) days of receipt of such notice (but not extending beyond the scheduled
Closing date, as it may be extended) (but such grace period shall not apply with
respect to any breach consisting solely of the failure on the part of Buyer to
pay any money (including without limitation the Purchase Price) required to be
paid by Buyer to Seller under this Agreement), Seller's sole remedy on account
thereof shall be to terminate this Agreement by delivering written notice of its
election to so terminate to Buyer, in which event the letter of credit portion
of the Deposit shall be drawn by Escrow Agent in accordance with the Escrow
Agreement, and the entire Deposit shall be paid (in liquidated funds or its
equivalent) to Seller as liquidated damages, it being understood that Seller's
actual damages in the event of such default are difficult to ascertain and that
such proceeds represent the parties' best current estimate of such damage and
thereupon neither party shall have any further obligation to the other under
this Agreement except for the Continuing Obligations.
(c) The provisions of this Paragraph 16 shall survive Closing
or the termination of this Agreement.
17. Time of Essence
---------------
The time for the Closing and all other times referred to for
the performance of any of the obligations of either party under this Agreement
are agreed to be of the essence to this Agreement; and time wherever mentioned
herein is not to be extended except by consent in writing signed by the parties.
If the date established for Closing, or any date specified for the giving of
receipt of any notice, or for the exercise of any right or option, or for the
payment of any sum shall occur on a Saturday, Sunday or legal holiday observed
by banking institutions in Philadelphia, Pennsylvania, the date so specified
shall be extended to the next succeeding day which is not a Saturday, Sunday or
such legal holiday.
18. Waiver of Conditions
--------------------
Buyer shall have the right, in the sole and absolute exercise
of its discretion, to waive any of the terms or conditions of this Agreement
that are strictly for the benefit of Buyer and to purchase the Property in
accordance with the terms and conditions of this Agreement which have not been
so waived. Any such waiver shall be made by notice in writing to Seller
delivered at or prior to the Closing. Seller shall have the right, in the sole
and absolute exercise of its discretion, to waive any of the terms or conditions
of this Agreement which are strictly for the benefit of Seller and to sell and
convey the Property in accordance with the terms and conditions of this
Agreement which have not been so waived. Any such waiver shall be made by notice
in writing to Buyer delivered at or prior to the Closing.
35
19. Further Assurance
-----------------
Upon request at Closing or at any time within one (1) year
after Closing, Seller and Buyer will execute and deliver such further
instruments and take such other action as the requesting party may reasonably
request; provided, that such instruments and action are unambiguously intended
by the express provisions of this Agreement. The provisions of this Paragraph 19
shall survive Closing for a period of one (1) year.
20. Integration-Merger
------------------
This Agreement and the Escrow Agreement contain the final and
entire agreement between the parties hereto and they shall not be bound by any
terms, conditions, statements or representations, oral or written, not contained
herein or therein. All understandings and agreements heretofore made between the
parties are merged in this Agreement and the Escrow Agreement, including the
letter of intent dated May 6, 2005, it being understood that this Agreement and
the Escrow Agreement alone fully and completely express the agreement of the
parties. This Agreement may not be changed, modified or, except as provided in
Paragraph 16, terminated, except by a written instrument signed by the parties.
21. No Recording
------------
This Agreement shall not be lodged for recording in any place
or office of public record and any action in violation of this provision shall
be deemed to be a default hereunder and shall permit the other party to
terminate this Agreement immediately by written notice; provided, however, the
filing or recording of this Agreement as part of any proceedings instituted in
any court of competent jurisdiction to enforce the provisions of this Agreement
shall not be deemed to be a breach of this Paragraph 21.
22. Notice
------
Except as provided in subparagraph 2(a) and Paragraph 9, all
notices, demands or requests required or permitted to be made pursuant to, under
or by virtue of this Agreement must be in writing and mailed, postage prepaid
and by certified or registered mail, return receipt requested, or delivered by
Federal Express or other reputable independent overnight delivery service
providing written evidence of delivery, or by hand delivery with written
evidence of delivery, addressed as follows:
To Seller: Springfield Associates
c/o Kaiserman Company, Inc.
Suite 300
201 South 18th Street
Philadelphia, PA 19103-5957
Attention: Kenneth S. Kaiserman
With a copy sent as
above to: Bruce A. Eisenberg, Esquire
Blank Rome LLP
One Logan Square
Philadelphia, PA 19103
36
To Buyer: Pennsylvania Real Estate Investment Trust
c/o PREIT Services LLC
The Bellevue, Third Floor
200 South Broad Street
Philadelphia, Pennsylvania 19102
Attention: Jeffrey A. Linn, Executive
Vice President
Telephone #: (215) 875-0748
Telecopy #: (215) 546-0240
and to: Simon Property Group
115 West Washington Street
Indianapolis, IN 46204
Attn: Brian Warnock
With a copy sent as
above to: Pennsylvania Real Estate Investment Trust
c/o PREIT Services LLC
The Bellevue, Third Floor
200 South Broad Street
Philadelphia, Pennsylvania 19102
Attention: Bruce Goldman, Executive
Vice President
Telephone #: (215) 875-0780
Telecopy #: (215) 546-8543
With a copy sent as
above to: Alan S. Ritterband, Esquire
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street
51st Floor
Philadelphia, PA 19103
Telephone #: (215) 864-8703
Telecopy #: (215) 864-9893
Such notices, demands or requests shall be deemed to have been
given and delivered on the earlier of the date of actual receipt thereof or (i)
if delivered by Federal Express or other reputable overnight delivery service,
on the business day next succeeding the date on which the same was delivered by
the sender to such courier, or (ii) if by United States certified or registered
mail, as of three (3) business days after the date of mailing. Either party may
change the address to which such notices, demands or requests shall be mailed
hereunder by written notice of such new address mailed to the other party hereto
in accordance with the provisions of this Paragraph 22. Notice given by legal
counsel on behalf of any party shall be deemed to be given by such party.
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23. Miscellaneous
-------------
(a) No waiver by either party of any failure or refusal by the
other party to comply with its obligations hereunder shall be deemed a waiver of
any other of subsequent failure or refusal by the other party so to comply.
(b) This Agreement shall inure to the benefit of and shall
bind the parties and their respective heirs, executors, administrators,
successors and permitted assigns.
(c) Any headings preceding the text of the Paragraphs of this
Agreement are inserted solely for convenience of reference and shall not
constitute a part of this Agreement nor shall they affect its meaning,
construction or effect. All exhibits and schedules annexed hereto and referenced
in this Agreement are incorporated herein.
(d) This Agreement may be executed in counterparts, each of
which shall be deemed an original.
(e) Any Closing costs not specifically described and allocated
herein shall be apportioned between Buyer and Seller according to the custom
prevailing in the Philadelphia area for similar types of real estate
transactions.
(f) This Agreement shall be interpreted and enforced in
accordance with the laws of the Commonwealth of Pennsylvania, without reference
to choice of law principles.
(g) Formal tender of an executed deed or of purchase money is
hereby waived.
(h) This Agreement may not be assigned by Buyer without
Seller's prior consent, except that Buyer's rights and obligations hereunder may
be assigned, without Seller's consent but with notice to Seller prior to or at
the time of Closing, to the following: (i) to any partnership, limited liability
company, corporation or other business entity or business trust controlled
(directly or indirectly) by Pennsylvania Real Estate Investment Trust, Simon
Kravco and/or Simon Property Group, Inc. (which assignment may be in whole to
any such entity singly, or to two or more such entities as tenants in common or
as joint venturers, or in any other joint relationship); or (ii) pursuant to
subparagraph 24. Any such assignment shall not relieve Buyer of any of its
obligations hereunder.
(i) In any litigation between the parties regarding this
Agreement (including any litigation regarding the proper disposition of the
Deposit), and in addition to any liquidated, stipulated or other damages
permitted hereunder, the losing party shall pay to the prevailing party all
reasonable expenses and court costs, including reasonable legal fees incurred by
the prevailing party. A party shall be considered the prevailing party if: (a)
it initiated the litigation and substantially obtains the relief it sought,
either through a judgment or the losing party's voluntary action before
arbitration (after it is scheduled), trial or judgment; (b) the other party
withdraws its action without substantially obtaining the relief it sought; or
(c) it did not initiate the litigation and judgment is entered for either party,
but without substantially granting the relief sought. A party's right to the
foregoing shall not merge with but shall survive the entry of judgment, and
shall extend to appeals and collection. The obligations of the parties under
this subparagraph shall survive Closing or the termination of this Agreement.
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(j) Nothing contained in this Agreement shall be deemed to
create any joint venture or partnership or similar association between Buyer and
Seller, and the relationship between Buyer and Seller is only that of purchaser
and seller.
(k) For a period of three (3) years following Closing, Seller
shall, at Buyer's expense, provide to Buyer's designated independent auditor
access to the books and records of the Property regarding the period for which
Buyer or any party with an ownership interest in Buyer is obligated to have
audited financial statements as required by the Securities and Exchange
Commission and/or Buyer's auditors, to the extent that such books, records and
related information are now or hereafter in Seller's possession or control and
relate to the period during which Seller had title to the Property. Seller shall
provide such auditor with a representation letter regarding the books and
records of the Property, which representation letter shall be in substantially
the form attached hereto and made a part hereof as EXHIBIT "P".
24. Cooperation with Tax-Free Exchange
----------------------------------
Each party hereby agrees to take reasonable actions at Closing
as are reasonably necessary to help the other to effectuate a like-kind exchange
of the Property pursuant to Section 1031 of the Code; provided, however, that in
no event shall the non-requesting party be required to take title to any other
real property, or to incur any additional out-of-pocket expenses or liability in
order to effectuate the like-kind exchange. In addition, the Closing shall not
be delayed because of this Paragraph 24. The exchanging party shall effect its
exchange through an assignment of this Agreement, or its rights under this
Agreement to a qualified intermediary. Seller or Buyer, as the case may be,
agrees to indemnify, defend with counsel reasonably acceptable to the
indemnified party and hold harmless the other party from and against any and all
costs, expenses, claims and other liabilities of any kind arising with regard to
the effectuation of a tax free exchange as described herein, which obligation
shall survive Closing. Notwithstanding anything to the contrary provided herein,
the non-requesting party makes no representations or warranties as to the tax
treatment of the transaction contemplated hereby or the ability of the
transaction contemplated to qualify for like-kind exchange treatment pursuant to
Section 1031 of the Code. In the event both parties desire to effectuate a
like-kind exchange as described herein, each party shall pay any and all costs
associated with their respective transactions.
25. Severability of Provisions
--------------------------
In case any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then unless such provision or provisions shall be of the essence
of this Agreement such invalidity, illegality or unenforceability shall not
affect any other provision hereof, and this Agreement shall be construed as if
the invalid, illegal or unenforceable provision had never been contained herein.
39
26. Non-Disclosure.
--------------
Neither party shall make public disclosure with respect to
this transaction before the Closing except:
(a) as may be required by law, including disclosure required
under securities laws, or by the Securities and Exchange Commission, or by the
rules of any stock exchange, or in connection with any filing or registration
made by any party with an ownership interest in Buyer as the issuer of publicly
traded securities;
(b) to such current and prospective lenders, attorneys,
accountants, partners, members, directors, officers, employees and
representatives of either party or of such party's advisors who need to know
such information for the purpose of evaluating and consummating the transaction,
including the financing of the transaction; and
(c) by Seller to its agents and Tenants in connection with the
implementation of this Agreement, including obtaining Estoppels contemplated
herein.
27. Rules of Interpretation.
-----------------------
The following shall govern the interpretation of this
Agreement:
(a) Words importing the singular include the plural and words
importing the plural include the singular and words importing gender include the
masculine, feminine and neuter genders.
(b) A reference to any agreement means the agreement as
amended, modified or supplemented from time to time.
(c) A reference to any law includes any amendment or
modification thereto, all rules and regulations promulgated under such law, and
all administrative and judicial authority exercisable thereunder.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole, including all exhibits and schedules hereto, and not to any particular
provisions of this Agreement, and article, paragraph, subparagraph, schedule,
and exhibit references are to this Agreement unless otherwise specified.
(e) The word "includes" or "including" shall mean "including,
without limitation.
(f) This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Agreement to be drafted.
28. Limited Liability.
-----------------
Seller is a limited partnership. The liability of Seller shall
be limited to the assets of Seller, and to the amount to be escrowed pursuant to
subparagraph 5(e) of this Agreement, and to the interest of Seller in the Gift
Certificate Accounts for the reimbursement to Buyer (or other permitted claimant
40
pursuant to subparagraph 13(m) hereof) with respect only to the amounts (if any)
imposed upon Buyer (or such other permitted claimant) on account of the Gift
Certificates. In no event shall any partner of Seller nor any shareholder of any
partner of Seller nor any officer, director or employee of any partner of Seller
be personally liable for any liabilities or obligations under this Agreement
and/or any closing documents in furtherance of this Agreement. Nothing in this
Paragraph 28 is intended to, nor shall, create or expand any liability or
obligation of Seller under this Agreement. Notwithstanding the foregoing, in the
event Buyer (or any affiliate of Buyer, or any permitted assignee or nominee of
Buyer's rights under this Agreement) is required to pay any taxes or other sum
to the Commonwealth of Pennsylvania or to any agency thereof by reason of
Seller's failure to pay any taxes or comply with any bulk sales statute,
including 72 P.S. ss. 1403; 72 P.S. ss. 7240; 43 P.S. ss. 788; 72 P.S. ss.
7321.1 and 69 P.S. ss. 529, Buyer shall have all such remedies as shall
otherwise be available to Buyer (or such other claimant) at law or in equity,
for the collection of such taxes or other sum required to be paid by Buyer (or
such other claimant) to the Commonwealth of Pennsylvania or to any agency
thereof, and/or for any wrongful diversion of the proceeds of the Gift
Certificate Accounts in violation of law.
29. Access to Documents.
-------------------
Seller shall have the right, upon reasonable notice to Buyer
and during regular business hours, to reexamine and copy any documents provided
by Seller to Buyer pursuant to Seller's obligations under this Agreement to
accommodate any audit which Seller may undertake or to which Seller must by law
respond. This right shall expire six (6) years after Closing.
30. Return of Documents.
-------------------
If Buyer terminates this Agreement, Buyer shall promptly
return to Seller all documents and items received by Buyer from Seller in
connection with the transactions contemplated by this Agreement. The provisions
this subparagraph 29 shall survive such termination.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto, intending to be legally bound hereby, as of the day and year
first above written.
SELLER:
SPRINGFIELD ASSOCIATES,
a Pennsylvania limited partnership
By: KSK-Springfield Associates, Inc.,
its general partner
By: /s/ Kenneth S. Kaiserman
------------------------------
its President
By: Hope Byer Associates, Inc.,
its general partner
By: /s/ Hope Byer
--------------
its
BUYER:
PREIT RUBIN, INC.,
a Pennsylvania corporation
By: /s/ Jeffrey A. Linn
--------------------
its Executive Vice President