1
Exhibit 2.3
AGREEMENT
by and between
Crofton Plaza, Inc., Owner
and
Ramco-Gershenson Properties, L.P., Recipient
Crofton Plaza Shopping Center
Crofton, Maryland
Table of Contents
Paragraph Caption Page
- --------- ------- ----
1. Contribution; Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Contribution Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Existing Mortgages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Condition of Title and Related Matters . . . . . . . . . . . . . . . . . . . . 11
6. Possession; Agreements and Leases . . . . . . . . . . . . . . . . . . . . . . 14
7. Adjustments to Contribution Price . . . . . . . . . . . . . . . . . . . . . . 19
8. Conditions to Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9. Representations and Warranties of Owner . . . . . . . . . . . . . . . . . . . 29
10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11. Fire or Other Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
12. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
13. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
14. Entire Agreement; Successors and Assigns. . . . . . . . . . . . . . . . . . . 55
15. Captions or Headings; Cross-References . . . . . . . . . . . . . . . . . . . . 56
2
16. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
17. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
18. Maintenance of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
19. Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . 57
20. Indemnification and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 57
21. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
22. Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
3
Exhibits
--------
"A" Legal Description of Premises
"B" Permitted Encumbrances
"C" Intentionally Omitted
"D" Tenant Allowances and Tenant Improvements
"E" Rent Roll and Schedule of Leases
"F" Leasing Brokerage Commissions Payable After Closing
"G" Service Agreements Noting Those Not Subject to 30 Day Termination
"H" Intentionally Omitted
"I" Pending or Threatened Litigation
"J" Insurance Policies
"K" List of Environmental Reports
"L" List of Engineering Reports
"M" Form of Tenant Estoppel Certificate
Schedules
- ---------
1 Personal Property
2 Intentionally Omitted
6 Repairs or Improvements to be Completed by Owner
8 Intentionally Omitted
8(a) Intentionally Omitted
(h)(2) Violation Notices
(h)(3) Insurance Notices for Repairs
(k)(1) Real Estate Tax Appeals
(l)(4) Security Deposit Claims
(l)(5) Notices from Tenants; Release of Guarantor
(m)(1) Rights of First Refusal and Options to Purchase
(n)(4) Non-qualified Income
4
AGREEMENT
This Agreement is made as of the day of April, 1995, by
and between CROFTON PLAZA, INC., a Maryland corporation (hereinafter called
"Owner") and RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership
(hereinafter called "Recipient").
INTRODUCTION
A. Owner is the owner of a fee estate in the property or
properties known as Crofton Plaza Shopping Center located in Crofton, Maryland
and more particularly described on Exhibit "A" (the "Premises").
B. It is intended that pursuant to this Agreement
Recipient will acquire from Owner the fee simple estate in such Premises.
NOW, THEREFORE, the parties hereto, in consideration of the
mutual covenants herein contained and intending to be legally bound, hereby
agree as follows:
I. Contribution; Premises.
(a) Owner agrees to contribute to Recipient and
Recipient agrees to accept from Owner, upon the terms and conditions
hereinafter set forth, the Premises.
(b) The Premises consist of:
(i) all those certain lots or pieces of
ground, described by metes and bounds on Exhibit "A" and the
5
buildings and improvements located thereon (the "Premises"); the Premises also
include (A) all easements, rights-of-way or use, privileges, licenses,
appurtenances, interests and other rights of Owner appurtenant to or benefitting
the Premises, including, without limitation, the lessee's interest under any
ground leases; (B) all right, title and interest of Owner in and to any land
lying in the bed of any streets, roads, or avenues, opened or unopened, existing
or proposed, vacated or hereafter to be vacated, public or private in front of,
behind or adjoining the Premises and also as they extend beyond the Premises for
ingress and egress to or from the Premises or any part thereof and for the
installation, replacement, maintenance and use of utility facilities; (C) all
right, title and interest of Owner in and to any award made or to be made in
lieu thereof and in and to any unpaid award for damage to the Premises by reason
of change of grade of any street, road, highway, avenue or alley, or otherwise
and Owner agrees to assign to Recipient at Closing all of such Owner's rights in
any such award; (D) all of Owner's rights to connect with and to utilize, for
service to the Premises or any part thereof, any private or public utility
facilities as may now or hereafter be within or without the boundaries of the
Premises; (E) Owner's interest in the Leases (hereafter defined); (F) all
licenses, permits, certificates of occupancy and governmental approvals with
respect to the Premises to the extent assignable (Owner agrees that if any such
permits or approvals are not assignable and are necessary to the use and
operation of the
-2-
6
Premises, Owner shall apply for and obtain, at Owner's expense, such permit or
approval in the name of Recipient); (G) all trade names used in connection with
the Premises, to the extent assignable; (H) all plans and specifications for
improvements to the Premises in the possession of Owner or any Affiliate (as
defined in subparagraph 9(a) below) of Owner; (I) all of Owner's rights, title
and interest in and to all contracts (including, without limitation, any
electrical supply contracts and the right to resell electricity as may be
provided therein), warranties and guarantees, if any, with regard to the
foregoing and the Personal Property (as hereinafter defined); (J) any and all
manuals, files, logs, records, correspondence, purchaser prospect list, tenant
lists, tenant prospect lists and other mailing lists, current sales brochures
and material, current leasing brochures and materials, current advertising
materials and other items in the possession of Owner or any Affiliate of Owner,
including, without limitation, soil, environmental inspections, studies and
reports, current market studies, and similar inspections with respect to the
sale, management, leasing, promotion, ownership, maintenance, use, occupancy
and operation of the Premises; and (K) all of Owner's rights to insurance
proceeds by reason of a loss insured under any Owner's insurance policy; as
well as all and singular the mineral rights, waters, water courses, rights,
liberties, privileges, hereditaments and appurtenances whatsoever belonging to
the Premises and owned by Owner or in any way
-3-
7
appertaining and the reversions and remainders, rents, issues and profits
thereof; and
(ii) the fixtures, furnishings, equipment
and other items of personal property owned by Owner and located on and used in
connection with the operation of the Premises, including, without limitation,
the property described in Schedule 1 hereto (the "Personal Property").
II. Contribution Price.
(a) The consideration (sometimes referred to
herein as the "Contribution Price") to be given by Recipient to Owner shall be
limited partnership interests in Recipient (the "Operating Partnership
Interests"), which shall be exchangeable for common shares of beneficial
interest ("Shares") of Ramco-Gershenson Properties Trust, a Maryland business
trust (the "REIT"), subject to the restrictions and on the basis to be
established in the limited partnership agreement of Recipient. The Operating
Partnership Interests will be divided into units ("OP Units") in the manner
determined by the general partner of Recipient.
(b) Simultaneously with the contribution of the
Premises contemplated hereby, Recipient will be engaging in a number of other
transactions pursuant to the terms and conditions of a certain Master
Combination Agreement, of even date herewith, by and among Recipient, the REIT
and others (the "Master Agreement"). The number of Operating Partnership
Interests to be
-4-
8
issued to Owner shall be determined in accordance with the provisions of the
Master Agreement.
(c) Owner acknowledges and confirms that (i)
neither the Operating Partnership Interests nor the Shares have been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
state securities laws; and (ii) neither the Operating Partnership Interests nor
the Shares may be sold or otherwise transferred by Owner except in accordance
with law. Owner by execution of this Agreement hereby acknowledges,
represents and warrants that the Operating Partnership Interests being acquired
hereunder are being acquired for Owner's account (or for the account of the
partners of Owner) and not for the account of any other person or persons, for
investment and not with a view to the disposition thereof in violation of the
Securities Act.
III. Existing Mortgages. There are no mortgages
encumbering the Premises other than certain mortgages held by the REIT which
are noted on Exhibit "B" and shall be satisfied at Closing (the "Existing
Mortgages").
IV. Closing.
(a) Closing shall occur at the time and on the
date ("Closing Date") specified by Recipient, but in no event later than
December 31, 1995.
(b) Closing is the event during which, among
other things, Recipient shall deliver the Contribution Price to Owner, Owner
shall sign and deliver the limited partnership
-5-
9
agreement of Recipient as a limited partner, Owner shall deliver to Recipient
the deed (a covenant deed, special warranty deed or such comparable form of
deed as may be the customary means of conveyance with a warranty for the
grantor's acts in the jurisdiction in which the Premises is located), bills of
sale and other documents to be delivered hereunder and the parties will sign
and deliver such other documents or instruments as may be required pursuant to
this Agreement.
(c) Intentionally omitted.
(d) At Closing, Owner shall deliver to Recipient
the deed, subject only to the Permitted Encumbrances (as such term is defined
in Paragraph 5(a) below).
(e) At Closing, Owner shall execute and deliver
to Recipient a Bill of Sale transferring title to the Personal Property to
Recipient, free and clear of all liens, claims and encumbrances, except the
Permitted Encumbrances and including a general warranty of title by Owner, but
excluding all other warranties, of any nature or kind, except to the extent
specifically set forth in this Agreement.
(f) At Closing, Owner shall execute and deliver
to Recipient two counterparts of an assignment of (i) all of its rights and
interest under all contracts relating to the Premises to which Owner is a party
with respect to the construction, maintenance, security, operation, management,
supplies, equipment, rental collection, advertising or other services
(collectively, and together with any substitute contract entered
-6-
10
into pursuant to Paragraph 6(b) below, the "Service Agreements"), to the extent
assignable (Owner agrees that if any such Service Agreement is not assignable
and is necessary to the use and operation of the Premises, Owner shall cause a
new Service Agreement to be entered into with Recipient on substantially
similar terms), together with the original or duplicate original of each such
Service Agreement, (ii) intangible property of Owner (other than accounts
receivable or other items of income which, under the terms of this Agreement,
are to remain the property of Owner after Closing), (iii) warranties and
guarantees still in effect and (iv) other assets to be transferred and assigned
hereunder. The assignment shall contain an assumption by Recipient of the
obligations arising under the Service Agreements after Closing. The assignment
shall contain a reciprocal indemnity with Owner indemnifying Recipient for
liabilities arising prior to Closing and Recipient indemnifying Owner for
liabilities arising after Closing (except for liabilities arising after Closing
for which Owner has agreed to indemnify Recipient hereunder). At the Closing,
Recipient shall execute the counterparts of such assignment and each party
shall retain a copy.
(g) At Closing, Owner shall execute, acknowledge
and deliver to Recipient two counterparts of an assignment by Owner of Owner's
interest in all existing Leases and guarantees thereof then in effect, which
shall contain an assumption by Recipient of the obligations arising under the
Leases after the
-7-
11
Closing. The assignment shall contain a reciprocal indemnity with Owner
indemnifying Recipient for liabilities arising prior to Closing and Recipient
indemnifying Owner for liabilities arising after Closing (except for
liabilities arising after Closing for which Owner has agreed to indemnify
Recipient hereunder). At Closing, Recipient shall execute the counterparts of
such assignment and each party shall retain one copy.
(h) At Closing, Owner shall deliver the
originals, if available, of all Leases and amendments thereto and guarantees
thereof and all ground leases directly to Recipient.
(i) At Closing, Owner shall execute and deliver a
notice (suitable for reproduction) to tenants advising of the transfer of the
Premises to Recipient and advising the tenants to pay all future rentals to
Recipient.
(j) At Closing, Owner shall deliver to Recipient
all tenant deposits, including security deposits and other deposits, together
with interest thereon if required by law, contract or otherwise with respect to
the Premises (or credit said deposits to Recipient as part of the Paragraph 7
adjustments).
(k) At Closing, Owner shall cause to be furnished
and delivered to Recipient, the marked-up title commitment constituting the
irrevocable contractual obligation of the Title Insurance Company (as such term
is defined in subparagraph 5(a) below) to issue its title policy in accordance
with Paragraph 5(a)(i) below (the "Title Policy").
-8-
12
(l) At Closing, Owner shall deliver directly to
Recipient copies of building plans and specifications for the Premises, if
available.
(m) At Closing, Owner shall deliver possession of
the Premises to Recipient, subject only to the rights of tenants under their
respective Leases and the Permitted Encumbrances.
(n) At Closing, Owner shall deliver directly to
Recipient the following, to the extent in the possession of Owner or any
Affiliate of Owner: copies of all certificates of occupancy, licenses,
permits, authorizations and approvals required by law and issued by all
governmental authorities having jurisdiction over the Premises, together with
copies of all certificates issued by any local board of fire underwriters (or
other body exercising similar functions). Owner shall also deliver at Closing
the original or copies of each bill, together with proof of payment thereof (if
any of the same have been paid), for current real estate and personal property
taxes.
(o) At Closing, Owner shall deliver to Recipient
a Non-Foreign Transferor Certificate, certifying that Owner is not a "foreign
person" within the meaning of Section 1445 of the Internal Revenue Code of
1986, as amended (the "Code").
(p) At Closing, Owner shall execute and deliver
to Recipient a disclosure of any material variations, as of the Closing Date,
from the representations and warranties set forth in this Agreement.
-9-
13
(q) At the Closing and on the Closing Date, Owner
shall execute and deliver to Recipient an assignment, in recordable form,
whereby any ground lease or leasehold estate created by such ground lease is
assigned by Owner to Recipient, subject only to the Permitted Encumbrances.
Owner will also obtain and deliver to Recipient an estoppel letter in form and
substance reasonably satisfactory to Recipient and any consents necessary to
effectuate such assignment.
(r) At or after Closing, Owner shall execute and
deliver to Recipient or other entity designated by Recipient, such other
documents or instruments as in the reasonable opinion of counsel for Recipient
may be necessary to effectuate the transactions described in this Agreement and
to transfer title to the Premises of Owner as contemplated by this Agreement,
provided that such documents or instruments do not increase the liability of
Owner.
(s) At the Closing, Owner and Recipient shall
prepare and execute a closing statement to evidence the disbursements and
receipts made and received in connection with the Closing.
(t) Intentionally omitted.
(u) At the Closing and on the Closing Date,
Recipient shall do or perform the following:
(1) Execute and deliver to Owner signed
counterparts of the limited partnership agreement of Recipient evidencing the
Contribution Price; and
-10-
14
(2) Deliver to Owner executed
counterparts of the assignments contemplated in subparagraphs 4(f) and 4(g)
above.
(v) This transaction shall be closed by means of
a so called New York Style Closing, with the concurrent delivery of the
documents of title, transfer of Premises and delivery of the Title Policy.
Owner shall provide, if required by the Title Insurance Company, an undertaking
(the "Gap Undertaking") to the Title Insurance Company necessary to effectuate
the New York Style Closing, in form and content reasonably acceptable to those
providing the Gap Undertaking and limited to matters arising from acts of
Owner.
V. Condition of Title and Related Matters.
(a) Title.
(i) At Closing, title to the Premises
shall be such as will be insured, solely in Recipient's name as good and
marketable by Commonwealth Land Title Insurance Company (the "Title Insurance
Company") at regular rates pursuant to the standard stipulations and conditions
of the 1970 Form B ALTA Policy of Owner's Title Insurance as revised in 1984
and as the same may be modified by such endorsements, affirmative coverage and
other matters which have been requested by Recipient prior to the date hereof
(and such other endorsements and affirmative coverages as may hereafter be
reasonably required by Recipient), free and clear of all liens and
encumbrances, except for the Permitted Encumbrances. The term "Permitted
Encumbrances" as to
-11-
15
each Premises shall mean those title matters set forth as to such Premises on
Exhibit "B" attached. At Closing, title to the Personal Property associated
with each Premises shall only be subject to the Permitted Encumbrances as to
such Premises except for the Personal Property described on Schedule 1 which is
denoted as being leased or financed. Owner shall deliver to the Title
Insurance Company such commercially reasonable instruments as the Title
Insurance Company requires to issue endorsements and other coverages, in such
form as Recipient reasonably requires. The premiums and other costs of title
insurance shall be borne by Recipient and paid at Closing.
(ii) Intentionally omitted.
(iii) If title to the Premises is not,
at Closing, insurable as set forth in Paragraph 5(a), Recipient may elect, as
its sole right and remedy, to terminate this Agreement as to the Premises and
the contribution thereof by Owner, whereupon this Agreement and the other five
(5) agreements of even date herewith by and between Recipient and certain
Affiliates of Owner, each of which is a wholly owned subsidiary of the REIT
(the "Related RPS Agreements") shall become null and void, neither Recipient
nor Owner shall have any further rights or obligations under this Agreement and
Recipient and such Affiliates of Owner shall have no further rights or
obligations under the Related RPS Agreements. Notwithstanding the foregoing,
Owner shall be obligated to cure encumbrances which are not Permitted
Encumbrances if such encumbrances evidence an
-12-
16
obligation which is a fixed and ascertainable amount. Owner shall have the
right to cure any title defects until the date prior to the Closing Date.
(b) Survey. At Closing, Owner will deliver to
Recipient an as-built survey (the "Survey") of the Premises, prepared by a
registered land surveyor or engineer, licensed in the jurisdiction in which the
Premises is located. The Survey shall be certified to Recipient, Owner, the
Trust, the REIT, Title Insurance Company, and any lender of Recipient holding
or to hold a mortgage on the Premises in form acceptable to Recipient and shall
be dated no earlier than a date acceptable to Recipient.
(c) UCC Searches. Owner shall deliver to
Recipient prior to Closing current searches of all Uniform Commercial Code
financing statements filed with the Secretary of State and/or county clerk
against Owner or the Premises, together with bankruptcy, tax lien and judgment
searches and searches for pending litigation in all appropriate jurisdictions.
It is a condition of Closing that such searches reveal that other than the
Permitted Encumbrances there are no bankruptcies, actions, claims or liens
against Owner or affecting or encumbering or which might affect or encumber the
Premises or any interest in the Premises which will continue after Closing.
(d) REA Estoppels. Owner shall deliver the
estoppel letters received by Owner from those parties under reciprocal easement
agreements, if any, for which Recipient has
-13-
17
requested that Owner request estoppel letters. Owner agrees to use reasonable
and diligent efforts to obtain such estoppel letters.
VI. Possession; Agreements and Leases; Operations Prior
to Closing.
(a) At Closing, Owner will transfer to Recipient
possession of the Premises and the Personal Property subject to the leases for
the Premises described in Exhibit "E" (other than those leases which expire or
are terminated or modified as contemplated by the provisions of this
subparagraph set forth below) and any new leases entered into after the date
hereof (collectively, the "Leases") and will assign to Recipient (or to
Recipient's designee) the landlord's interest in each Lease and any guarantees
with regard to each Lease; and the Leases will not be subject to the rights of
brokers to be paid leasing brokerage commissions, finders or referral fees or
similar commissions payable after Closing except as set forth on Exhibit "F" of
this Agreement. Owner covenants that Owner shall not enter into new Leases or
modify or terminate any Lease (except by reason of a default by the tenant
thereunder) except as hereafter provided. Owner and Recipient agree that, as
to proposed new Leases to be entered into, Owner will submit its completed
standard lease request form prior to negotiating the Lease, and Recipient shall
have three (3) business days after receipt of such form in which to object to
or propose modifications to such proposed Lease. Recipient's failure to
respond to the notice shall be deemed an
-14-
18
acceptance of the terms of such Lease. Owner agrees to obtain Recipient's
approval of any subsequent modifications to such economic terms, provided that
Owner shall have the right to make customary modifications to its standard
lease form so long as such modifications do not affect the following terms
(collectively the "Economic Terms"): (i) the term, (ii) square footage, (iii)
tenant improvement or tenant allowance amounts, (iv) rent, (v) percentage rent
or (vi) the obligation to pay a proportionate share of taxes or common area
maintenance (except to the extent that Owner customarily caps such charges or
allows certain other modifications to the scope of inclusions in common area
maintenance clauses). Owner shall have the right to modify the terms of an
existing Lease provided that Owner first gives to Recipient prior written
notice of any proposed modifications to the Economic Terms of the existing
Lease. Recipient shall have three (3) business days after receipt of such
notice to object or propose modifications to the proposed terms. Recipient's
failure to object to such proposed modification within such three (3) business
day period shall be deemed an acceptance of the terms of such modification to
the existing Lease. The termination of any of the Leases prior to Closing as
permitted herein shall not excuse Recipient from its obligation to complete
Closing and to pay the full Contribution Price, except as set forth in
Paragraph 8 below.
(b) Except as set forth on Exhibit "G", there are
no existing Service Agreements except those which are terminable
-15-
19
without cause or penalty upon not more than thirty (30) days' notice. Except
as set forth in Paragraph 8 below, the termination of any of the Service
Agreements prior to Closing by reason of the expiration of its term or by
reason of a default thereunder shall not excuse Recipient from its obligation
to complete Closing and to pay the full Contribution Price, provided that if
the service in question is necessary or appropriate to the proper operation of
the Premises, Owner will obtain a substitute contract on commercially
reasonable terms prior to Closing.
(c) Owner agrees to use reasonable and diligent
efforts to cause each tenant under a Lease to deliver to Recipient at or prior
to Closing a written statement ("Tenant Estoppel Certificate") substantially in
the form of Exhibit "M" attached to this Agreement. Tenants occupying an
entire separate building or in excess of 7,500 rentable square feet are
referred to as "Major Tenants." If Owner obtains Tenant Estoppel Certificates
from the Major Tenants of the Premises and, subject to the terms of
subparagraph 8(a) below, is unable to obtain all of the other Tenant Estoppel
Certificates, after using reasonable and diligent efforts to obtain them, then
Owner shall deliver at Closing a certificate representing to Recipient (to
Owner's knowledge as to actual or potential tenant defaults) the facts that are
to be covered by the Tenant Estoppel Certificates which have not been obtained.
Notwithstanding the foregoing sentence, Owner's certification shall terminate
with respect to any tenant
-16-
20
at such time that Owner delivers an estoppel certificate from such tenant which
such certificate shall expressly state that Recipient is relying on such
certificate in releasing Owner from Owner's certification and provided further
that the estoppel provided by the tenant is consistent with the certification
provided by Owner. Owner's representations shall be deemed for all purposes
hereunder to have been made under Paragraph 9 hereof.
(d) Operations Prior to Closing. Between the
date of the execution of this Agreement and Closing:
(i) Owner shall, at its expense, make
all repairs and replacements, structural and non-structural, which are required
with respect to any portion of the Premises to maintain it in its present
condition. Owner shall also complete, at its expense to the extent that the
expenses may not be passed through to tenants, any repairs or capital
improvements which Owner commences prior to Closing, including the repairs or
improvements set forth on Schedule 6 attached hereto. Owner shall cure, prior
to the Closing Date or, at Recipient's sole option, as soon after the Closing
Date as is reasonably practical, any violation of Applicable Laws (as defined
in Paragraph 9(h) below) which existed prior to the Closing Date unless the
cost to cure the same shall exceed $250,000 as determined by a contractor
acceptable to Recipient. If the cost to cure exceeds such amount, Owner shall
have the right to terminate this Agreement. Upon any such termination by
Owner,
-17-
21
this Agreement and the Related RPS Agreements shall become null and void,
neither Recipient nor Owner shall have any further rights or obligations under
this Agreement and Recipient and the Affiliates of Owner shall have no further
rights or obligations under the Related RPS Agreements.
(ii) Owner shall operate and manage the
Property in the same manner as it has been operated and managed prior to the
date of this Agreement and in accordance with Applicable Laws. Owner shall
submit to Recipient monthly reports of rental collections, occupancy and
vacancies.
(iii) Owner shall perform any and all acts,
and shall make any and all payments, necessary to cause the representations and
warranties of Owner in this Agreement to be true and correct as of the date
made or as of the Closing Date if then required to be true and correct.
(iv) Owner shall comply with all of the
obligations of Owner under the Leases, the Service Agreements and all other
agreements and contractual arrangements by which Owner and/or the Premises are
bound or affected. Owner shall maintain Owner's insurance policy in full force
and effect and shall pay all required premiums and other charges.
(v) Recipient, its attorneys, accountants,
architects, engineers and other representatives shall be afforded access to the
Premises and to all books, records and files relating thereto from time to time
prior to Closing for the purposes of inspections, preparation of plans, taking
of
-18-
22
measurements, making of surveys, making of appraisals, and generally for the
ascertainment of the condition of the Premises; and there shall be furnished to
Recipient all plans and specifications, engineering reports, feasibility
studies, operating statements, governmental permits and approvals, contracts,
leases, surveys, title information and other documentation concerning the
Premises in the possession of Owner and/or Owner's management agent.
(vi) Promptly after receipt thereof by
Owner, Owner shall deliver to Recipient the following:
(A) a copy of any notice of default
given or received under any of the Leases or the Service Agreements or any
notices of termination given for any Lease;
(B) a copy of any tax bill, notice or
statement of value, or notice of change in a tax rate affecting or relating to
the Premises;
(C) a copy of any notice of an actual
or alleged violation of Applicable Laws; and
(D) a copy of any notice of any
condemnation proceedings with respect to the Premises.
7. Adjustments to Contribution Price.
(a) (i) Taxes, Rents, etc. Real estate
taxes (on the basis of the due dates of the tax bills for the period for which
such taxes are assessed) on the Premises, personal property taxes on the
Personal Property, minimum water and sewer rentals, rents, including without
limitation expense pass
-19-
23
throughs, percentage rents, income from and expenses for electricity and other
sums paid by tenants, licensees and concessionaires and collected by Owner
prior to Closing under the Leases, payments due under the Service Agreements
which are to be assigned to Recipient, prepaid license fees and other charges
for licenses and permits for the Premises which will remain in effect for
Recipient's benefit after Closing, rental under any ground lease, municipal
rubbish removal charges, lease rejection awards made in any bankruptcy
proceedings of a tenant, and prepaid insurance premiums for insurance which
will remain in effect for Recipient's benefit after Closing, if any, shall be
apportioned pro rata between Owner and Recipient on a per diem basis as of
midnight on the day before the Closing Date, so that Owner shall bear all
expenses with respect to the Premises and benefit from all items of income with
respect to the Premises through the day before the Closing Date. To the extent
that the amounts of the items to be adjusted are not reasonably ascertainable
as of the Closing Date, they shall be adjusted as promptly after the Closing
Date as the amounts thereof are ascertained.
(ii) All rents and other sums collected
by Recipient after the Closing Date, up to the respective amounts currently due
Recipient from time to time, will be retained by Recipient and applied on
account of the rents and other sums due to Recipient. At Closing, Owner shall
identify all tenants which are in arrears in the payment of rent or other sums
due under the Leases on the Closing Date. If any tenant shall pay to Recipient
-20-
24
after the Closing Date a sum in excess of all rents and other sums which have
accrued to Recipient, and which excess sum is on account of arrearages which
became due prior to Closing, Recipient will remit to Owner such excess net of a
proportionate share of the cost of collection based on the relative amounts
recovered by each of Owner and Recipient, to be applied on account of the
arrearages due to Owner. Owner shall not bring any suit or other proceeding,
on behalf of Owner, against any tenant currently in occupancy under the Leases
after the Closing Date on account of rental delinquencies. Recipient assumes
no obligation to collect or enforce the payment of any such moneys which may be
owing to Owner. If Recipient employs an agent to collect rent under the Leases
after Closing, such agent shall have the right to deduct and retain from
Owner's share of any rent or other payments received by Recipient after the
Closing Date a pro rata share of the compensation payable to such agent by
Recipient, based on the relative amounts recovered by each party.
(iii) Any refunds received by Recipient under
any of the Service Agreements on account of payments which are applicable to
periods prior to the Closing Date shall be apportioned by Recipient when
received and the portion thereof attributable to periods prior to the Closing
Date shall be paid by Recipient to Owner.
(iv) All amounts collected from tenants
pursuant to provisions in the Leases (or in any reciprocal
-21-
25
easement agreements) on account of real estate taxes shall be transferred to
Recipient on the Closing Date. Owner shall be responsible for the collection
of all such amounts up to the Closing Date and Recipient shall be responsible
for the collection of all such amounts from and after the Closing Date. At
Closing, the difference between the aggregate amount collectable by Owner under
the Leases and reciprocal easement agreements on account of real estate taxes
for the tax period in which the prorated taxes are due, and the amount of real
estate taxes for the Premises for the tax period in which the Closing Date
occurs, shall be credited through a cash adjustment to Owner or Recipient, as
applicable.
(v) Common area maintenance expenses which by
the terms of the Leases (or any reciprocal easement agreements) are recoverable
in whole or in part from tenants of the Premises (or parties to reciprocal
easement agreements) shall be calculated on the basis of the actual expenses
incurred by the parties as of the Closing Date. Owner shall be responsible for
the collection of all such amounts up to the Closing Date and Recipient shall be
responsible for the collection of all such amounts from and after the Closing
Date. Owner and Recipient recognize that the common area maintenance expense
contributions made by tenants or parties to reciprocal easement agreements
during the month in which Closing occurs will be applied by Owner for the common
area maintenance expenses incurred for the Premises during the month which
precedes the month in which
-22-
26
Closing occurs (the "Pre-Closing Month"). Notwithstanding such application,
items of common area maintenance expense and income shall be prorated as of the
Closing Date, except that the parties shall defer the cash adjustment to be
made to Recipient which arises from Owner's application of the common area
maintenance expense contributions made during the month in which Closing occurs
to the expenses incurred during the Pre-Closing Month until the year-end common
area maintenance reconciliation is made under the Leases. If Owner shall have
failed to have paid common area maintenance expenses incurred for any period
prior to the Pre-Closing Month, or if Owner shall have collected payments for
such expenses for periods beyond Closing, then there shall be a credit to
Recipient in the form of a cash adjustment for the amount of such expense or
excess.
(vi) If the apportionment of any
percentage rents, "escalation" payments relating to operating expenses,
merchant's association dues or fees for promotion, income and expenses for
electricity or other payments received by Recipient after the Closing Date from
a tenant under any of the Leases on account of periods prior to the Closing
Date or on account of sums which are attributable to expenses incurred by the
landlord for periods of time prior to the Closing Date, cannot be precisely
determined at the Closing Date, Owner and Recipient shall reasonably estimate
the apportionment of such sums pro rata between Recipient and Owner on a per
diem basis as of the Closing Date. A post-closing adjustment shall be made, if
necessary,
-23-
27
between Recipient and Owner for such apportioned items when the amounts thereof
can be ascertained.
(vii) The apportionment of "percentage rent",
and the amounts due by Recipient to Owner, respectively, under each of the
Leases for "percentage rent", shall be made or paid with respect to the lease
year (as defined in such Lease) in which the Closing Date falls and the
post-Closing adjustment shall be made at the time that the accounting for the
tenant's percentage rent obligation for the lease year is determined under the
Lease. The amount to be apportioned shall be the total of the amounts collected
by both Recipient and Owner as percentage rent for such percentage rent lease
year. Owner's portion thereof shall be an amount which bears the same ratio to
the total percentage rent for the applicable percentage rent lease year as the
number of days up to but excluding the Closing Date in such percentage rent
lease year shall bear to the full number of days in such percentage rent lease
year; and Recipient shall be entitled to retain the remaining portion.
(viii) If the Premises is not separately
assessed for real estate tax purposes as of the Closing Date, the real estate
tax assessment attributable to the Premises shall be deemed to be that portion
of the total assessment of the buildings on the larger parcel with which the
Premises is assessed, which bears the same ratio to such total assessment of
buildings as the ground floor area of buildings on the Premises bears to the
total ground floor area of buildings on the larger
-24-
28
parcel; and that portion of the total assessment of the land constituting the
larger parcel with which the Real Property is assessed, which bears the same
ratio to such total assessment of land as the land area in the Premises bears
to the total land area in the larger parcel.
(ix) If bills for real estate taxes on
the Premises have not been issued as of the Closing Date, and if the amount of
real estate taxes for the then current tax fiscal year is not then known, the
apportionment of real estate taxes shall be made at Closing on the basis of the
prior year's real estate taxes and a post-Closing adjustment shall be made when
the actual amounts are ascertained.
(x) If, at Closing, the Premises or any
part thereof is affected by an assessment which is payable in installments of
which the first installment is then a charge or lien, or has been paid, then
all unpaid installments of such assessments shall be prorated between the
parties as of the date of Closing as follows: Owner shall be responsible for
those installments thereof for years prior to the year in which Closing occurs
and Recipient shall be responsible for those installments thereof for years
following the year in which Closing occurs; the installment due for the year in
which Closing occurs shall be prorated between the parties on a per diem basis.
(xi) Any credit due to Recipient pursuant to
this Paragraph 7(a) shall be paid in cash to Recipient at Closing and not
applied as a credit against the Contribution Price, and
-25-
29
any credit due to Owner pursuant to this Paragraph 7(a) shall be paid by
Recipient in cash to Owner at Closing as an addition to the Contribution Price.
(b) Security Deposits. The total sum of all
tenant security deposits listed on Exhibit "E", as updated at Closing, together
with all interest earned thereon as of the Closing Date which Owner is
obligated to pay to tenants, shall be given to Recipient or its designee at
Closing and not as a credit against the Contribution Price.
(c) Utility Meter Readings. At Closing, Owner
shall pay all charges for the water, electric, gas and other utility meters
servicing the Premises (other than meters measuring exclusively utility
consumption which is to be paid in full by tenants under Leases) apportioned on
the basis of the prior month's readings. When the charges for the month during
which Closing occurs are ascertained, the parties shall make any necessary
post-Closing adjustments. The apportionment of items of expense and income for
tenant contributions on account of utilities shall be handled in the same
manner as items of expense and income for tenant contributions for common area
maintenance are handled as described in subparagraph 7(a)(v) above.
(d) Transfer and Sales Taxes. Recipient shall
pay at Closing all realty transfer documentary fees, stamps and taxes imposed
on the Deed, the conveyance of the Premises or the transaction contemplated by
this Agreement. Ordinary charges for recording instruments shall be paid at
Closing by Recipient.
-26-
30
Owner and Recipient acknowledge and agree that the Personal Property to be
transferred hereunder is not being sold in the normal course of Owner's trade
or business, and agree to execute the appropriate exemption certificates for
the purpose of obtaining sales tax exemptions with respect to the transfer of
the Personal Property. Recipient shall be obligated to pay any sales tax which
may be payable in connection with the sale of the Personal Property if such
sale is not exempt from taxation.
(e) Tenant Improvement Costs. Owner shall pay at
or prior to Closing all tenant improvement costs, tenant allowances and other
bona fide third party costs and expenses actually incurred for Leases entered
into on or before December 31, 1994. Owner agrees to indemnify, defend and
hold Recipient harmless from and against any liability associated with such
costs. If Closing occurs, Recipient shall pay the unamortized portion
(amortized over the period rent is due under the Lease) of all tenant
improvement costs, tenant allowances, and other bona fide third-party costs and
expenses actually incurred in connection with procuring the tenant for those
Leases entered into after December 31, 1994. In the event that, at the time of
Closing, Owner has outstanding obligations which are the responsibility of
Owner but which are not payable at that time because the work relating thereto
has not been completed, Owner shall, at Closing, deposit with the Title Company
an amount equal to the reasonable estimate of the amount of such outstanding
obligations. Such amount shall be held in escrow by the Title
-27-
31
Company pursuant to escrow instructions mutually acceptable to Owner and
Recipient, and shall be released to Owner upon proof reasonably satisfactory to
Recipient that such obligations have been paid or that such funds shall be
applied to the payment of such outstanding obligations.
VIII. Conditions to Closing.
(a) The obligation of Recipient to consummate
Closing hereunder is conditioned upon the following:
(i) All representations and warranties
of Owner shall be true in all material respects as of the date hereof and as of
Closing, except to the extent that changes may occur in the Rent Roll which do
not have a material adverse affect on the income from the Premises.
(ii) Owner shall have performed all of
its covenants and obligations to be performed at or prior to Closing.
(iii) The Title Policy described in
Paragraph 5(a)(i) shall have been issued and shall be in full force and effect.
(iv) Intentionally omitted.
(v) Tenant Estoppel Certificates
acceptable to Recipient shall have been obtained from the Major Tenants and
from other tenants which, in the aggregate, occupy seventy percent (70%) or
more of the leased and occupied square footage of the portion of the Premises
which is not occupied by Major Tenants.
-28-
32
(vi) Estoppel Certificates acceptable
to Recipient shall have been obtained from lessors under any ground lease to be
assigned.
(vii) Owner shall have delivered the
opinions of Counsel to Recipient in the form and substance acceptable to
Recipient.
(viii) Closing shall occur simultaneously
under each of the Related RPS Agreements.
(b) Recipient may waive any condition to Closing
in whole or in part.
(c) Recipient may, but shall not be obligated to,
terminate this Agreement and all of the obligations hereunder if any of the
conditions set forth in Paragraph 8(a) above are not satisfied. In the event
that Recipient terminates this Agreement pursuant to the provisions hereof, (i)
each of the Related RPS Agreements shall also terminate and (ii) Owner shall be
entitled, without charge, to copies of any studies, surveys and reports
relating to the Premises prepared by or for Recipient in connection with this
Agreement.
(d) This Agreement and the rights and obligations
of the parties hereunder are expressly subject to the terms and conditions of
the Master Agreement.
IX. Representations and Warranties of Owner. Owner
represents and warrants as follows:
(a) Organization; Authority. Owner is a
corporation duly formed and subsisting under the laws of its
-29-
33
jurisdiction of formation and has the requisite power and authority to enter
into and perform its obligations under this Agreement. Owner is a wholly-owned
subsidiary of the REIT. For the purposes of this Agreement, an "Affiliate" of
Owner is defined as any party that is owned one hundred percent (100%) directly
or indirectly by the REIT or a party over which the REIT has the power to cause
the direction of the management and policies, whether by voting rights,
contract or otherwise.
(b) Due Authorization; Binding Agreement.
Except as and to the extent otherwise provided in the Master Agreement, (i) the
execution, delivery and performance of this Agreement by Owner has been duly
and validly authorized by all necessary action of Owner and (ii) this Agreement
has been duly executed and delivered by Owner, or an authorized representative
of Owner and constitutes a legal, valid and binding obligation of Owner,
enforceable against Owner in accordance with the terms hereof.
(c) Consents and Approvals. Except as and to the
extent otherwise provided in the Master Agreement, no consent, waiver, approval
or authorization of, or filing, registration or qualification with, or notice
to, any governmental unit or any other person is required to be made, obtained
or given by Owner prior to or as a condition to the execution, delivery and
performance of this Agreement, except as have been made, obtained or given.
-30-
34
(d) No Violation. Except as and to the extent
otherwise provided in the Master Agreement, none of the execution, delivery or
performance of this Agreement by Owner does or will, with or without the giving
of notice, lapse of time or both, (i) violate, conflict with or constitute a
default under any term or condition of (A) the organizational documents of
Owner or any material provision of any Significant Agreement (as defined below)
or other agreement to which Owner is a party or by which it or its assets or
properties are bound, or (B) any terms or provisions of any judgment, decree,
order, statute, injunction, rule or regulation of a governmental unit
applicable to Owner or (ii) result in the creation of any lien or other
encumbrance upon the assets or properties of Owner.
(e) Absence of Undisclosed Liabilities and
Contractual Obligations. Except for immaterial liabilities arising in the
ordinary course of business since the date of Owner's most recent financial
statements (true and correct copies of which have been delivered to Recipient)
and for those matters specifically and adequately accrued or reserved in such
financial statements, to Owner's knowledge, Owner has no liabilities of any
nature, whether matured or unmatured, fixed or contingent, regardless of
whether the disclosure thereof would otherwise be required under the method of
accounting used in the preparation of Owner's financial statements, which would
have, individually or in the aggregate, a material adverse effect upon Owner or
the Premises. For purposes hereof, "Significant Agreement" means and
-31-
35
includes any of the following to which Owner is a party or by which Owner or
any of its assets or properties may be bound, in each such case as amended and
currently in effect, inclusive of any waivers relating thereto:
(1) all agreements, instruments and
documents evidencing, securing, or pertaining to the contractual obligations of
Owner that involve annual payments or receipts in excess of $20,000;
(2) all leases where Owner is the lessee
(including capital leases) which are not terminable without penalty on not more
than ninety (90) days' notice and that involve annual payments and receipts in
excess of $20,000;
(3) all ground leases where Owner is a
ground lessee;
(4) all reciprocal easement agreements
affecting the Premises; and
(5) all agreements representing
obligations for borrowed money in excess of $20,000. There are no Significant
Agreements of Owner other than the Leases, agreements which are Permitted
Encumbrances and the Service Agreements.
(f) Litigation. There are no claims, actions,
suits, proceedings or investigations pending, or, to Owner's knowledge,
threatened before any court, governmental unit or any arbitrator against Owner
or its assets or properties or with respect to the transactions contemplated by
this Agreement except
-32-
36
(A) the matters, if any, set forth on Exhibit "I", none of which, individually
or in the aggregate, would have a material adverse effect on Owner or the
Premises or would prohibit or restrain the consummation of the transactions
contemplated by this Agreement.
(g) Attachment, Execution, Etc. No attachments,
execution proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other proceedings are pending or, to the
knowledge of Owner, threatened against Owner or any of its assets, nor are any
of such proceedings contemplated by Owner.
(h) As to governmental notices, compliance,
violations etc.:
1. Operation of Premises; Compliance
with Laws. Owner's sole business is the operation and ownership of the
Premises. To Owner's knowledge, Owner has complied with all laws applicable to
the conduct of the business of Owner and Owner's use and operation of its
Premises and has obtained all licenses, certificates, approvals and permits
required for the conduct thereof, except where the failure to do so would not
have a material adverse effect on Owner, Recipient or the Premises. To Owner's
knowledge, such licenses, certificates, approvals and permits are in full force
and effect, Owner has not taken any action that would (or failed to take any
action the omission of which would) result in the revocation of such licenses,
certificates, approvals or permits and Owner has not received any notice of
violation from any federal, state or municipal entity
-33-
37
or notice of an intention by any such government entity to modify or revoke any
certificate, approval, license or permit issued by it to such Owner that in
each case has not been cured or otherwise resolved to the satisfaction of such
government entity, except where such failure or such action would not have a
material adverse effect on Owner or the Premises.
2. Except as set forth on Schedule
(h)(2), Owner has not received any written notice with respect to the Premises
from any public authority concerning any eminent domain or condemnation
proceeding, or any uncorrected violation of any ordinance, public regulation,
statute, permit, site plan approval, zoning or subdivision regulation or urban
redevelopment plan applicable to the Premises; and, except for the Permitted
Encumbrances, neither Owner nor, to the knowledge of Owner, any previous owner
of the Premises, has sold, transferred, conveyed, or entered into any agreement
regarding transfer of any development rights relating to the Premises which is
not of record in the Registry of Deed's Office (or such other office in which
the land records are maintained in the county in which the Premises is
located).
3. Except as set forth on Schedule
(h)(3), to Owner's knowledge Owner has complied with all work orders,
requirements and demands of each and every insurance company insuring all or
any part of the Premises.
4. To the knowledge of Owner, the
continued maintenance, operation and use of any buildings, structures or
-34-
38
other improvements on the Premises for their respective present purposes will
not violate any federal, state, county or municipal laws, ordinances, orders,
codes, regulations or requirements affecting all or any portion of the
Premises, including, without limitation, housing, building, safety, health,
environmental, fire or zoning ordinances, codes and regulations of the
respective jurisdictions within which the Premises are located (together,
"Applicable Laws"), or the certificate(s) of occupancy issued for the Premises.
5. To Owner's knowledge, there are no
material unperformed obligations relative to the Premises outstanding pursuant
to any written agreements with any governmental or quasi-governmental body or
authority.
(i) As to environmental matters: Recipient has
received the environmental report(s) described on Exhibit "K" (collectively the
"Environmental Report"). Except as disclosed in the Environmental Report, (i)
neither Owner nor any partner of Owner has done anything to cause or knowingly
permit and, to the knowledge of Owner, no other person or entity has done
anything to cause or permit Hazardous Materials (as defined below) to be now,
or in the past, located on (except for reasonable amounts used in the ordinary
course for the construction, operation or maintenance of the Premises by Owner
in accordance with all applicable laws or used by tenants of the Premises in
the ordinary course of operation of their business, which use by tenants is,
and has been, to the knowledge of Owner, in
-35-
39
accordance with all applicable laws), in or under the Premises or released into
the environment, or discharged, placed or disposed of at, on or under the
Premises; (ii) neither Owner nor any partner of Owner has done anything to
cause or knowingly permit and, to the knowledge of Owner, no other person or
entity has done anything to cause or permit any underground storage tanks to be
located at the Premises now or in the past; (iii) neither Owner nor any partner
of Owner has done anything to cause or knowingly permit and, to the knowledge
of Owner, no other person or entity has done anything to cause or permit the
Premises to be used to store, treat or dispose of Hazardous Materials; and (iv)
neither Owner nor any partner of Owner has done anything to cause or knowingly
permit and, to the knowledge of Owner, no other person or entity has done
anything to cause or permit the Premises and its prior uses to fail to comply
with, at all times, any applicable Environmental Laws (as hereafter defined) or
any other governmental law, regulation or requirement relating to environmental
and occupational health and safety matters and Hazardous Materials. To the
knowledge of Owner, there currently exist no facts or circumstances that would
give rise to a material Environmental Claim (as defined below).
The term "Hazardous Materials" shall mean any
substance, material, waste, gas or particulate matter which is regulated by any
local governmental authority, the state in which the Premises is located, or
the United States Government, including, but not limited to, any material or
substance which is
-36-
40
(i) defined as a "hazardous waste", "hazardous material", "hazardous
substance", "extremely hazardous waste", or "restricted hazardous waste" or
words of similar import under any provision of any Environmental Law; (ii)
petroleum or petroleum products; (iii) polychlorinated biphenyl; (iv)
radioactive material; (v) radon gas; (vi) designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq.
(33 U.S.C. Section 1317); (vii) defined as a "hazardous waste" pursuant to
Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq. (42 U.S.C. Section 6903); or (viii) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C.
Section 9601). The term "Environmental Laws" shall mean all statutes
specifically described in the foregoing sentence and all federal, state and
local environmental health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability
or standards concerning or in connection with Hazardous Materials. The term
"Environmental Claim" shall mean any 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 any Environmental
Law or any permit issued under any such Environmental Law including, without
limitation, (a) by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other
-37-
41
actions or damages pursuant to any applicable Environmental Law, and (b) by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
(j) As to engineering matters:
1. Recipient has received the
engineering report(s) described on Exhibit "L" (the "Engineering Report").
Except as disclosed in the Engineering Report, to the knowledge of Owner there
are no material defects in or damage to the structure (including the roof and
walls) of the Premises. To the knowledge of Owner, the systems of the
Premises, including any elevators, heating, ventilation, air conditioning,
plumbing, electrical, drainage, fire alarm, communications, sprinkler, security
and exhaust systems are in operational and working order and such systems do
not contain any material hidden defect which was not susceptible of being
identified or detected in the course of the due diligence review conducted in
connection with the preparation of the Engineering Report.
2. Owner has no knowledge that the
flood hazard area designation for the Premises as shown on the Survey is
incorrect.
3. All water, sewer, gas, electric,
telephone, and other public utilities and all storm water drainage necessary
for the operation of the Premises (1) either enter the Premises through open
public streets adjoining the
-38-
42
Premises, or, if they pass through adjoining private land, do so in accordance
with valid public or private easements or rights of way which will inure to the
benefit of Recipient, (2) are installed, connected and operating, with all
installation and connection charges paid in full, including, without
limitation, connection and the permanent right to discharge sanitary waste into
the collector system of the appropriate sewer authority, (3) to Owner's
knowledge, are being utilized in compliance with all applicable governmental
and environmental protection authorities' laws, rules, regulations and
requirements, and (4) to Owner's knowledge, have been adequate and, to the
knowledge of Owner, will continue to be adequate to service the Premises as
improved and presently used. To the knowledge of Owner, no moratorium,
proceeding or other fact or condition exists which (A) threatens to impair
continued furnishing of such services to the Premises at regular rates and
fees, or (B) could result in the discontinuance of such services presently
available or necessary. Water and sanitary sewer are public.
(k) As to real estate taxes and assessments:
1. The copies of the real property tax
bills for the Premises for the current tax year which have been furnished by
Owner to Recipient are true and correct and complete copies of all of such tax
bills. All real estate taxes due and payable as of the Closing have been paid
in full and, except as set forth on Schedule (k)(1), there are no pending or,
to the knowledge of Owner, threatened proceedings for the correction or
-39-
43
reduction of the assessed valuation of the Premises for the current or prior
tax years.
2. The Premises alone constitute one or
more entire tax parcel(s) for real estate tax purposes, and are not taxed as
part of a larger tax parcel.
3. Owner has received no notice that,
and to the knowledge of Owner, there are no public improvements in the nature
of off-site improvement, or otherwise, which have been ordered to be made
and/or which have not heretofore been assessed and there are no special or
general assessments (other than regular, annual real estate taxes) pending
against or presently being considered in formal municipal or quasi-municipal
proceedings which will affect the Premises.
(l) As to leases:
1. Except for the Leases (and any
seasonal sales leases which will be terminated prior to Closing), Owner has not
entered into any other contracts for the sale or leasing of the Premises or any
portion thereof.
2. As of the Closing, no persons or
entities, other than Owner and the tenants under the Leases and their permitted
subtenants and licensees, shall have any right to the possession, use or
occupancy of the Premises or any portion thereof for any reason whatsoever.
3. Exhibit "E" (the "Rent Roll") is
true and correct in all material respects as of the date noted thereon and
discloses all Leases and the basic, and additional rents
-40-
44
(which include all pass-throughs of taxes, expenses or other items, and
percentage rents, payable by the Tenant to the Lessor, but not including
utility charges) due for the dates shown thereon (collectively, "Rents"). The
Leases include all tenancies, licenses and, to the knowledge of Owner, all
subleases and other rights of occupancy or use for all or any portion of the
Premises pursuant to which Owner is landlord or licensor, all as amended,
renewed and extended to the date of the Rent Roll, whether oral or written.
4. Each security deposit given by the
tenant (the "Security Deposit") has been and is held by Owner or its agent in
compliance with the respective Lease and, to Owner's knowledge, applicable law.
There are no unfulfilled obligations as to Security Deposits to tenants under
Leases the terms of which have expired or been terminated and there is no suit,
action or other claim made, or, to the knowledge of Owner, pending or
threatened with respect to any such Security Deposit, except as set forth on
Schedule (l)(4).
5. The following is true with respect
to each Lease:
(a) the Lease is valid and
subsisting and in full force and effect in accordance with its terms. No Lease
has been modified, in writing or otherwise, except as set forth on Exhibit "E"
and Exhibit "E" contains an accurate and complete list of all of the material
documents which comprise the
-41-
45
Lease or materially affect the rights of the parties to the Lease;
(b) subject to the provisions of
Paragraph 7(e), all obligations of the lessor thereunder which accrue prior to
or on the date of Closing shall have been performed and paid for in full by
Owner on or prior to Closing;
(c) except as set forth in on
Exhibit "E" or in Schedule (l)(5) and except for delinquencies in payment of
rent of less than thirty (30) days, to Owner's knowledge there has been no
material default or event which, with the giving of notice or the lapse of
time, or both, would constitute a default, on the part of the lessor thereunder
and, except as set forth in Schedule (l)(5) the tenant has not asserted and, to
the knowledge of Owner, has no defense to or offset or claim against its rent
or the performance of its other obligations under the Lease;
(d) except as set forth on Exhibit
"E", no tenant has prepaid any rent for more than one (1) month if the lease
term has commenced and two (2) months if the lease term has not yet commenced
and no tenant has been charged for nor paid more than its proportionate share
of real estate taxes, insurance or common area maintenance as prescribed by
such tenant's Lease;
(e) except as set forth on Schedule
(l)(5), Owner has received no written notice from any tenant or any guarantor
of a Lease to a Major Tenant (as defined in Paragraph 6(c) of this Agreement)
that such tenant or guarantor is or may become unable or unwilling to pay its
rent or other
-42-
46
sums due under its Lease, continue to operate for the balance of the term of
the Lease, operate in accordance with the exclusives prescribed under the Lease
or otherwise perform any of its other material obligations under the Lease;
(f) Owner has not, and to the
knowledge of Owner, except as set forth on Schedule (l)(5), no other person
has, released or discharged any guarantor, voluntarily or involuntarily or by
operation of law, from any obligation with respect to the Lease that such
guarantor has guaranteed;
(g) at the time of Closing, no
rents will have been assigned, pledged or encumbered;
(h) all of the Leases are
assignable by Owner without the consent of any other party and after such
assignment all rights and benefits thereunder shall automatically inure to the
benefit of Recipient; and
(i) Owner does not own, directly or
indirectly, (i) five percent (5%) or more of the total combined earnings of all
classes of stock entitled to vote, or five percent (5%) or more of the total
number of shares of all classes of stock, of any tenant of the Premises or (ii)
an interest of five percent (5%) or more in the assets or net profits of any
tenant of the Premises.
-43-
47
(m) As to title:
1. Owner has not done or suffered or
permitted to be done or committed any act or matter which would render legal
and equitable title to the Premises to not be good and marketable, such as will
be insured as such by the Title Insurance Company on Owner's Policy form
specified in Paragraph 5(a) above, subject only to the Permitted Encumbrances
and the Leases, and the Existing Mortgages which will be satisfied at Closing.
2. To Owner's knowledge, there has been
no violation by Owner or the Premises of any provision, condition or agreement
contained in any restrictive covenant, cross-easement agreement or similar
instrument or agreement affecting the Premises or any portion thereof, which
would have a material adverse effect on Owner or the Premises.
3. The Personal Property located on the
Premises, other than that owned by tenants, the management company, utility
companies or contractors is owned or leased by Owner, includes all the types
and approximate quantities of personal property heretofore owned or leased by
Owner and used in the ownership, operation and maintenance of the improvements
located on the Premises and, if owned or leased by Owner, as of Closing, is
owned or leased by Owner free and clear of any liens or security interests of
any kind, except for Permitted Encumbrances, the Existing Mortgages which shall
be satisfied at Closing or as otherwise disclosed on Schedule 1.
-44-
48
4. To the knowledge of Owner, any
curb-cut and street-opening permits or licenses required for vehicular access
to and from the Premises to any adjoining street or to any parking spaces
utilized in connection with the Premises have been obtained and paid for by
Owner, are in full force and effect and shall inure to the benefit of
Recipient. To the knowledge of Owner, no fact or condition exists which would
result in the termination or material impairment of access to the Premises from
adjoining public or private streets or ways.
5. To the knowledge of Owner, each
Premises is an independent unit which does not now rely on any facilities
(other than facilities covered by Permitted Encumbrances [including, without
limitation, any reciprocal easement agreements] or facilities of municipalities
or public utility and water companies and other than parking areas which the
Premises makes legal use of under any reciprocal easement agreements) located
on any property not included in such Premises to fulfill any municipal or
governmental requirement or for the furnishing to the Premises of any essential
building systems or utilities.
6. Except as set forth on Schedule
(m)(1) and Exhibit "B" hereto, and except as may be contained in Leases of over
4,000 square feet, there are no purchase contracts, options, or any other
agreements of any kind, written or oral, recorded or unrecorded, whereby any
person or entity other than Owner or Recipient will have acquired or will have
any basis to
-45-
49
assert any right, title or interest in, or right to possession, use, enjoyment
or proceeds of all or a portion of the Premises.
(n) As to financial matters:
1. Owner has paid or will pay prior to
Closing all bills and invoices for labor, goods, materials and services of any
kind and taxes due and assessments payable relating to the Premises and utility
charges for periods prior to Closing.
2. Except as otherwise provided in
Paragraph 7(e) above, Owner shall pay in full at or prior to the Closing, all
expenses theretofore payable connected with the negotiation, execution and
delivery of each Lease executed prior to January 1, 1995, including, without
limitation, recording fees required to be paid by the lessor under any Lease.
3. All alterations, improvements or
other work required to have been completed by Owner under any reciprocal
easement agreements, Leases executed prior to January 1, 1995, and other
agreements to which it is a party, including, without limitation, all
alterations, improvements and other work or allowances therefor required to
prepare space for the initial occupancy of each tenant under a lease, has
heretofore been completed and/or paid for in full. All unpaid tenant
allowances and/or unfinished tenant improvements to be paid for and/or done by
the lessor under the Leases are described in Exhibit "D".
-46-
50
4. Except as set forth on Schedule
(n)(4), there is no income derived from the Premises other than rental income
and interest income. The rental income derived from the Premises constitutes
"rent from real property" as defined in Section 856(d)(1) of the Code. The
interest income derived from the operation of the Premises constitutes
"interest" as defined in Section 856(c)(2)(B) of the Code.
5. Intentionally omitted.
(o) As to insurance:
1. Exhibit "J" sets forth an accurate
and complete list of the insurance policies relating to the Premises or any
part thereof and naming Owner as an insured; all such policies are in full
force and effect and all premiums thereunder as of the Closing have been paid
to the extent due; and no notice of cancellation has been received with respect
thereto and, to the knowledge of Owner, none is threatened. Owner represents
that Owner does not currently self-insure with respect to any portion of the
insurance.
2. Owner has not received any notice
from any insurance company of any defect or inaccuracies in any of the
Premises, or any parts thereof, which would adversely affect the insurability
of any of the Premises, or would increase the cost of insurance beyond that
which would ordinarily and customarily be charged for similar properties in the
vicinity of such Premises. All of the Premises are fully insured in accordance
with prudent and customary practice.
-47-
51
(p) As to Service Agreements: A current,
complete and correct copy of each Service Agreement which is not terminable
without cause on thirty (30) days' notice or for which an affiliate of Owner is
the other party thereto has been delivered to Recipient and there are no
material construction, management, leasing, service, equipment, supply,
maintenance or concession agreements (oral or written, formal or informal) with
respect to or affecting all or any portion of the Premises except as delivered
to Recipient. Each Service Agreement is valid and binding and as of Closing
all amounts due thereunder will have been paid. Neither Owner, nor any of its
agents is in default under any Service Agreement or has received any notice
from any party to any Service Agreement claiming the existence of any default
or breach thereunder which would have a material adverse effect on Owner or the
Premises and no event or omission has occurred which, with the giving of notice
or the lapse of time of both would constitute such a default. Except as
disclosed on Exhibit "G", all Service Agreements are terminable without cause
on thirty (30) days' notice or less without payment of any penalty or
termination payment.
(q) Other:
1. Owner has no employees.
2. No representation or warranty of
Owner contained in this Agreement, in any Exhibit hereto, or in any other
instrument to be executed by Owner and delivered to Recipient at the Closing
pursuant to this Agreement contains any
-48-
52
untrue statement of a material fact. Except for the express representations
and warranties set forth in this Agreement, THE PREMISES IS BEING SOLD IN AN
"AS IS" AND "WITH ALL FAULTS" CONDITION AS OF THE TIME OF CLOSING and no other
statements or representations, express or implied, have been made or are made
or are deemed to be made by Owner or by any Affiliate of Owner.
3. Owner is not a "foreign person"
within the meaning of Section 1445 of the Code.
4. As used in this Agreement, the term
"to Owner's knowledge" shall mean the actual, unimputed knowledge of Joel M.
Pashcow, John J. Johnston, Jr., Esquire and Steven Liechtung.
10. Notices.
(a) All notices, demands, requests or other
communications required or permitted under the terms of this Agreement shall be
in writing and, unless and until otherwise specified in a written notice by any
party, shall be sent to the parties at the following respective addresses:
-49-
53
if intended for Recipient:
27600 Northwestern Highway
Suite 200
Southfield, Michigan 48034
Attn: Mr. Dennis Gershenson
Fax Number (810) 350-9925
With a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226-3583
Attn: Richard J. Burstein, Esquire
Fax Number (313) 962-0176
if intended for Owner:
c/o RPS Realty Trust
733 Third Avenue
New York, NY 10017
Attn: Mr. Herbert Liechtung
Fax Number (212) 972-0423
and
c/o RPS Realty Trust
801 Brickell Avenue
Suite 900
Miami, FL 33131
Attn: Mr. Herbert Liechtung
Fax Number (305) 789-6672
With copies to:
Wolf, Block, Schorr & Solis-Cohen
Twelfth Floor
Packard Building
S.E. Corner 15th & Chestnut Streets
Philadelphia, Pennsylvania 19102-2678
Attn: Elizabeth H. Mai, Esquire
Fax Number (215) 977-2346
and
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022-3598
Attn: Steven L. Lichtenfeld, Esquire
Fax Number (212) 836-7150
-50-
54
Notices may be given on behalf of any party by its legal counsel.
(b) Each such notice, demand, request or other
communication shall be deemed to have been properly served for all purposes if
(i) hand delivered against a written receipt of delivery, (ii) mailed by
registered or certified mail of the United States Postal Service, return
receipt requested, postage prepaid, (iii) delivered to a nationally recognized
overnight courier service for next business day delivery, to its addressee at
the address set forth above in this Paragraph or (iv) delivered via telecopier
or facsimile transmission to the facsimile number listed in this Paragraph,
provided, however, that if such communication is given via telecopier or
facsimile transmission, an original counterpart of such communication shall
concurrently be sent in either the manner specified in clause (i), (ii) or
(iii) of this subparagraph (b).
(c) Each such notice, demand, request or other
communication shall be deemed to have been received by its addressee upon the
earlier of (i) actual receipt or refusal by the addressee or (ii) two (2)
business days after deposit thereof at any main or branch United States post
office, if sent in accordance with clause (ii) of subparagraph 10(b), and one
(1) business day after delivery to the courier if sent pursuant to clause (iii)
of subparagraph 10(b).
-51-
55
11. Fire or Other Casualty.
(a) Owner shall maintain in full force and effect
until the date of Closing the fire and extended coverage insurance policies now
in effect on the Premises.
(b) In the event that any building on the
Premises shall have been materially damaged by fire or other casualty (in a
manner which adversely affects the operation of the Premises as a whole or
which could have an adverse economic consequence to Owner, the Premises or
Recipient) and not restored as of Closing, Recipient shall have the right to
terminate this Agreement by written notice to Owner unless the conditions
described below are satisfied, in which event Recipient agrees that it shall
postpone Closing as to the Premises to enable Owner to repair and restore the
damage to the building to at least the condition existing prior to the
casualty. Recipient agrees that it shall postpone the Closing in the event of
a casualty if the following conditions are satisfied as of the Closing Date:
(i) that Owner agrees to promptly commence restoration of the Premises, (ii)
that the Premises will be restored to at least the condition existing prior to
the casualty and that restoration can be completed within one year from the
date of the casualty at a cost not to exceed the insurance proceeds made
available for restoration, as determined by a contractor selected by Recipient,
(iii) that no tenant under any of the Leases having a material impact on the
Rent Roll has a right to terminate its Lease prior to the end of the one-year
period as a result of such casualty,
-52-
56
(iv) Rents or rental insurance continue to be paid under the Leases to enable
Owner to satisfy all of its obligations with respect to the Premises until the
restoration is complete and (v) Owner and Recipient agree to a mutually
satisfactory amendment to this Agreement to address the amount of, and any
adjustments to, the Contribution Price and such other matters as may be
necessary for the parties to address. In the event of Recipient's termination
of this Agreement, neither Recipient nor such Owner shall have any further
rights or obligations under this Agreement and this Agreement shall be null and
void and the Related RPS Agreements shall also terminate and shall be null and
void. If this Agreement is not so terminated and Closing is not postponed, or
if such casualty is unknown to Recipient, then the proceeds of the insurance
policies attributable to the Premises or the Personal Property paid by the
insurer(s) (including the proceeds of any self-insurance) and received by Owner
prior to Closing and not used by Owner for the repair of the Premises or the
Personal Property (and Recipient hereby authorizes Owner to cause Owner to use
the proceeds for such purpose) shall be part of the assets of Owner transferred
to Recipient at Closing and, in such event, there shall be no reduction in the
Contribution Price by reason of any such unpaid claim.
(c) Owner shall certify to Recipient at Closing
that no damage by fire or other casualty has occurred, or, if such has
occurred, shall describe in writing the nature and extent of such damage and
whether such damage has been restored.
-53-
57
12. Condemnation.
(a) If any material part or parts of the Premises
shall be taken by the exercise of the power of eminent domain after the date
hereof and prior to Closing, this Agreement may be terminated by Recipient by
written notice to Owner. For the purposes hereof, a "material part or parts"
of the Premises shall mean such a part of the Premises as shall (i) give the
right to any tenant to terminate its Lease, or (ii) will materially and
adversely affect any required parking for the Premises or any source of ingress
to and egress from the Premises for a period which will exceed one month, as
determined by Recipient, or (iii) otherwise materially and adversely affects
the mechanical, plumbing or other systems of the Premises or (iv) otherwise
causes the Premises to be out of compliance with laws applicable to the
Premises. In the event of Recipient's termination, neither Recipient nor Owner
shall have any further rights or obligations under this Agreement, this
Agreement shall be null and void and the Related RPS Agreements shall also
terminate and shall be null and void. If this Agreement is not so terminated,
then this Agreement shall continue in full force and effect and there shall be
no abatement of the Contribution Price. As of Closing, Owner shall transfer to
Recipient all of Owner's rights and claims to any awards arising therefrom as
well as the amount of any money theretofore received by such Owner on account
thereof, net of any expenses incurred by such Owner, including, without limit
thereto, reasonable counsel fees, in collecting the
-54-
58
award. With respect to any such taking after the date of this Agreement, Owner
shall furnish to Recipient a copy of the declaration of taking promptly after
receipt thereof.
(b) Owner shall certify to Recipient at Closing
that no such taking has occurred, or, if such has occurred, shall describe in
writing the nature and extent of such taking.
13. Brokers. Recipient and Owner each represent and
warrant to the other that it has dealt with no broker or other intermediary in
connection with this transaction or the Premises. Notwithstanding the
foregoing, the parties acknowledge that the REIT has engaged at its expense
Dean Witter Reynolds Inc. as a financial advisor in connection with the
transactions contemplated by the Master Agreement. In the event that any
broker or other intermediary claims to have dealt with Owner or with Recipient
in connection with this transaction or the Premises, to have introduced the
Premises to Recipient for contribution, or to have been the inducing cause of
the contribution, Owner and Recipient shall indemnify, defend and save the
other harmless from and against any claim for commission or compensation by
such broker or other intermediary, as well as all costs and liabilities
incurred by the others by reason thereof, if its representation or warranty
above is false.
14. Entire Agreement; Successors and Assigns.
The entire agreement between Owner and Recipient with
respect to the Premises and the contribution thereof is expressly set forth in
this Agreement, the Master Agreement and
-55-
59
the related documents referenced therein, and the parties are not bound by any
agreement, understandings, provisions, conditions, representations or
warranties other than as are expressly set forth in this Agreement, the Master
Agreement and the related documents referenced therein. This Agreement shall
bind and inure to the benefit of the parties hereto and their respective heirs,
executors, personal representatives, successors and assigns.
15. Captions or Headings; Cross-References. The captions
or headings of the Paragraphs of this Agreement are for convenience only, and
shall not control or affect the meaning or construction of any of the terms or
provisions of this Agreement. References in this Agreement to Paragraphs and
subparagraphs are references to Paragraphs and subparagraphs of this Agreement,
unless expressly stated to the contrary. References in this Agreement to
Exhibits and Schedules are, unless expressly stated to the contrary, references
to Exhibits and Schedules to this Agreement, each of which is part of this
Agreement.
16. Amendments.
No change, alteration, amendment, modification or
waiver of any of the terms or provisions of this Agreement shall be valid,
unless in writing and signed by the parties to this Agreement.
17. Applicable Law. This Agreement shall be governed and
construed according to the laws of Maryland, and venue shall lie in, the
appropriate jurisdiction in the State of Maryland.
-56-
60
18. Maintenance of Records. Owner shall transfer to
Recipient and Recipient shall maintain all tenant files, tenant correspondence,
operating and capital budgets, blueprints, plans and specifications, drawings
and studies of the Premises at the Premises or at an office of Recipient, for a
period of seven (7) years after Closing. Owner, upon reasonable prior notice
to Recipient, shall for a period of seven (7) years after the Closing have
access to such records at any reasonable time and from time to time during
normal business hours and shall be entitled to copy such records at its
expense.
19. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive
Closing; provided, however, that no claim for a breach of any representation or
warranty contained in this Agreement may be maintained by Recipient unless
Recipient shall have delivered a written notice ("Notice of Breach") specifying
the details (to the extent known at such time) of such claimed breach to Owner
between the Closing Date and a date designated by Recipient, which date may be
earlier than, but in no event later than, April 30, 1997 (the "Survival
Period").
20. Indemnification and Remedies.
(a) After Closing, as Recipient's sole remedy as
a result of or arising out of any inaccuracy in or breach of any
representation, warranty or covenant of Owner in this Agreement, any assignment
or other agreement transferring assets or property (or interests therein), or
in any other agreement with respect to
-57-
61
the conveyance, assignment, contribution or other transfer of the Premises (or
interests therein), assets, agreements, rights or other interests conveyed,
assigned, contributed or otherwise transferred to Recipient (the "Indemnified
Matters"), Owner agrees to indemnify and hold harmless Recipient, the REIT,
each subsidiary of Recipient or the REIT, and any of their officers, directors,
trustees, employees, agents or other affiliates (each, an "Indemnified Party"
and collectively, the "Indemnified Parties") from and against all demands,
claims, actions or causes of action, assessments, losses, fines, penalties,
damages, liabilities, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses of counsel chosen by the Indemnified
Parties and costs of litigation and reasonable fees and expenses of accountants
chosen by the Indemnified Parties) and charges sustained or incurred by any of
the Indemnified Parties; provided that, no claim for indemnity may be
maintained hereunder unless an Indemnified Party shall have delivered a written
notice identifying such claims to the Indemnitors (as defined below) within the
Survival Period.
(b) Recourse for the indemnity obligation of
Owner set forth in subparagraph (a) above shall be limited as set forth in
Sections 7.2 and 7.3 of the Master Agreement.
(c) If a claim for indemnification is or may be
asserted under this Paragraph 20, the person or entity against whom or which
such claim is or may be asserted shall have the right, at its own expense, to
participate in the defense of any
-58-
62
claim, action or proceeding ("Claim") asserted which resulted in the claim for
indemnification, and if such right is exercised, the parties shall cooperate in
the defense of such action or proceeding. If a claim is asserted which is
subject to possible indemnification under this Paragraph 20, the person against
whom such claim is asserted shall give prompt notice thereof to Owner;
provided, however, that the failure to so provide prompt notice shall not
relieve Owner from the indemnification obligations hereunder, unless and to the
extent such failure prejudices Owner's defense with regard to such claim.
(d) Indemnification of the Indemnified Parties
pursuant to this Paragraph 20 shall be the exclusive remedy of the Indemnified
Parties for any breach of any representation, obligation, warranty or covenant
of Owner under this Agreement or reconfirmation thereof at Closing and the
liability of such parties shall be limited as provided in this Paragraph 20.
(e) Owner is relieved of liability hereunder if
and to the extent the Indemnified Parties recover for any loss or damage under
any applicable title insurance policy. Each Indemnified Party shall use best
efforts to collect for any such loss or damage under any title insurance policy
covering such loss or damage.
(f) Notwithstanding anything to the contrary
contained in this Paragraph 20, Owner shall not be liable with respect to any
settlement which is made of any claim or any
-59-
63
amounts payable under any such settlement without the prior written consent of
Owner.
(g) Notwithstanding anything to the contrary in
this Agreement, no officer, director, trustee, agent or employee of Owner or
the REIT shall have any personal liability with respect to this Agreement or
the transactions contemplated herein.
(h) Prior to Closing, in the event that either
party hereto breaches any representation, warranty or covenant set forth in
this Agreement (the "Defaulting Party"), the other party hereto shall have the
right to pursue all remedies at law or in equity against the Defaulting Party
and/or the Premises; provided, however, that in the event that Recipient is the
Defaulting Party as a result of the breach of a warranty set forth herein,
Owner shall have no rights or remedies against any individual partner in
Recipient who is not a member of the Ramco Group and provided further that in
the event that Owner is the Defaulting Party as a result of the breach of a
warranty set forth herein, Recipient's remedies shall be limited to pursuing a
damage claim against Owner.
21. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all together
shall constitute one and the same Agreement.
22. Structure. Notwithstanding the provisions of this
Agreement, Owner shall have the right, at its election, to restructure the
transactions contemplated herein as a conveyance
-60-
64
by means of a merger, stock transfer or other such structure, and this
Agreement shall be amended and restated to reflect any such restructuring. In
the event of any such restructuring, the consideration for such merger, stock
transfer or other conveyance shall be the same OP Units as Owner would have
received under this Agreement.
IN WITNESS WHEREOF, the parties hereto, intending legally to
be bound, have executed this Agreement as of the day and year first above
written.
RECIPIENT:
RAMCO-GERSHENSON PROPERTIES, L.P., a
Delaware limited partnership
By: Ramco REIT, Inc., a Delaware
corporation, general partner
By: /s/ BRUCE GERSHENSON
------------------------------
Attest:
--------------------------
[Corporate Seal]
CONTRIBUTOR (OWNER):
CROFTON PLAZA, INC., a Maryland
corporation
By: /s/ STANLEY RAPPOPORT
--------------------------------------
Attest:
----------------------------------
[Corporate Seal]
-61-
65
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
CROFTON PLAZA
BEGINNING FOR THE SAME at a point on and distant South 79 degrees 42
minutes 18 seconds East 950.00 feet from the end of the nineteenth or North 79
degree 42 minute 10 second West 2268.32 foot line of the first parcel of land
which by Deed dated June 20, 1963 and recorded among the Land Records of Anne
Arundel County, Maryland in Liber LNP No. 1666 at folio 417 was granted and
conveyed by Excelsior Investment Co. to Crawford Homes Builders, Inc. of
Washington (now Crofton Corporation) and running thence with and binding on
part of said nineteenth line and all of the twentieth, twenty-first,
twenty-second, twenty-third, twenty-forth, twenty-fifth, and part of the
twenty-sixth lines of the above mentioned conveyance, the following eight (8)
courses and distances, viz:
1) North 79 degrees 42 minutes 18 seconds West 950.00 feet to the East
side of Maryland Route 3, 200 feet wide; thence with and binding on the East
side of road as aforesaid,
2) North 10 degrees 24 minutes 20 seconds East 878.35 feet,
3) South 79 degrees 35 minutes 40 seconds East 25.00 feet,
4) North 10 degrees 24 minutes 20 seconds East 524.00 feet,
5) North 85 degrees 45 minutes 10 seconds East 108.50 feet,
6) North 37 degrees 10 minutes 00 seconds East 90.86 feet to the South
side of Davidsonville Road (Maryland Route 424), fifty (50) feet wide; thence
with and binding on the South side of road as aforesaid;
7) 574.16 feet along the arc of a curve to the left having a radius of
5754.58 feet and a chord bearing South 55 degrees 45 minutes 39 seconds East
573.92 feet,
8) South 58 degrees 37 minutes 09 seconds East 62.35 feet; thence
leaving the South side of Davidsonville Road (Route 424) from the following
three (3) new courses and distances, as now established,
9) South 10 degrees 24 minutes 20 seconds West 233.11 feet,
10) South 79 degrees 35 minutes 40 seconds East 195.92 feet, and
11) South 10 degrees 24 minutes 20 seconds West 1021.75 feet to the
place of beginning. Containing 28.324 acres of land more or less, as described
and surveyed by D.C. Messick, Jr. and Associates, Inc., Registered Land
Surveyors, which survey is
66
recorded among the Land Records of Anne Arundel County in Liber MSH No. 2524,
folio 343.
SAVING AND EXCEPTING all those lots of ground known as Parcels B, C, D
and E, as shown on the Plat entitled, "1st Revision, SHOPCO CROFTON
ASSOCIATES", which Plat is recorded among the Land Records of Anne Arundel
County in Plat Book 56, folio 11.
67
EXHIBIT "B"
PERMITTED ENCUMBRANCES
CROFTON PLAZA
Commonwealth Land Title Insurance Company
Commitment No. 1941371, dated August 11, 1994
Permitted Encumbrances shall include all items set forth in Schedule
B-II of the above-referenced title insurance commitment that were not raised as
objections in a certain memorandum from Honigman, Miller, Schwartz and Cohn
entitled "Review of RPS Title Work and Surveys" dated February 6, 1995.
Permitted Encumbrances shall include resolution of such issues.
68
SCHEDULE B
PART 1
Policy No.
File No. 1941371
THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE BY REASON OF THE FOLLOWING:
4. Rights of The Chesapeake and Potomac Telephone Company of Maryland by
virtue of a Deed and Agreement dated December 3, 1963 and recorded among the
Land Records of Anne Arundel County in Liber 1715, folio 427.
5. Rights of Baltimore Gas and Electric Company by virtue of a Grant or
Agreement dated March 30, 1964 and recorded among the Land Records of Anne
Arundel County in Liber 1753, folio 177.
6. Indenture dated June 29, 1965 by and between Crofton Corporation and
The Grand Union Company and recorded among the Land Records of Anne Arundel
County in Liber 2111, folio 194 as modified by Two Modification Agreements dated
December 27, 1973 and recorded as aforesaid in Liber 2715, folio 123 and dated
April 24, 1974 and recorded as aforesaid in Liber 2715, folio 131.
8. Construction, Operation and Easement Agreement dated October 18, 1974
by and between Shopco Crofton Associates and Crofton Office Building Joint
Venture and recorded among the Land Records of Anne Arundel County in Liber
2715, folio 137.
9. Easement Agreement dated October 30, 1974 by and between Shopco Crofton
Associates and Union Trust Company of Maryland and recorded among the Land
Records of Anne Arundel County in Liber 2775, folio 783.
10. Terms, conditions, easements, restrictions and other criteria as shown
on the Plat entitled, "lst Revision, Shopco Crofton Associates", which Plat is
recorded among the Land Records of Anne Arundel County in Plat Book 56, folio
11.
11. A fifteen foot (15') widening reservation for the State Roads
Commission of Maryland along the south side of Davidsonville Road, (Maryland
Route 424).
12. Fifteen foot (15') right of way contained in a Deed recorded among the
Land Records of Anne Arundel County in Liber 2649, folio 94.
13. Deed of Easement and Agreement dated December 18, 1973 to Anne Arundel
County, Maryland and recorded among the Land Records of Anne Arundel County in
Liber 2819, folio 851.
69
CONTINUATION
FILE NO. 1941371 COMMITMENT NO. 1941371
14. Easement Agreement dated June 4, 1981 by and between Crofton Associates
and Shopco U.T. Associates and recorded among the Land Records of Anne Arundel
County in Liber 3413, folio 107.
15. Underground Sewer Easement and Right of Way dated May 15, 1990 by and
between Crofton Associates and Harvey Blender and recorded among the Land
Records of Anne Arundel County in Liber 5097, folio 528.
16. Deed of Easement and Agreement dated June 11, 1993 by and between
Crofton Plaza, Inc., et al. and recorded among the Land Records of Anne Arundel
County in Liber 6115, folio 766.
* 17. Notwithstanding the recitation of acreage contained in Schedule A
hereof, nothing herein contained shall be construed as a guarantee of the
computation of such acreage or square footage.
18. Rights of tenants under unrecorded Leases, as shown on rent roll.
AS TO THE OWNER'S POLICY:
19. Any claim, which arises out of the transaction vesting in the insured
the estate or interest insured by this policy, by reason of the operation of
federal bankruptcy, state insolvency or similar creditors' rights laws that is
based on:
(i) the transaction creating the estate or interest insured by this
policy being deemed a fraudulent conveyance or fraudulent
transfer; or
(ii) the transaction creating the estate or interest insured by this
policy being deemed a preferential transfer except where the
preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to purchaser for
value or a judgment or lien creditor.
AS TO THE LOAN POLICY:
20. Any claim which arises out of the transaction creating the interest of
the mortgagee insured by this policy, by reason of the operation of federal
bankruptcy, state insolvency or similar creditors' rights laws that is based on:
70
CONTINUATION
FILE NO. 1941371 COMMITMENT NO. 1941371
(i) the transaction creating the interest of the insured mortgagee
being deemed a fraudulent conveyance or fraudulent transfer; or
(ii) the subordination of the interest of the insured mortgagee as a
result of the application of the doctrine of equitable
subordination; or
(iii) the transaction creating the interest of the insured mortgagee
being deemed a preferential transfer except where the
preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to purchaser for
value or a judgment or lien creditor.
NOTE: Unless Schedule B Part II is attached there are no subordinate matters
that affect the title to the estate or interest referred to in Schedule A.
American Land Title Association Loan Policy
71
EXHIBIT "C"
DESCRIPTION OF EXISTING MORTGAGE
CROFTON PLAZA
Commonwealth Land Title Insurance Company
Commitment No. 1941371, dated August 11, 1994
The property is currently subject to the following Mortgages listed as
items on Schedule B - Section 1 of the above- referenced title commitment:
5 and 8
72
EXHIBIT "D"
TENANT ALLOWANCES AND TENANT IMPROVEMENTS
CROFTON PLAZA
All tenant allowances and tenant improvements required to be made
by landlord under leases entered into prior to 1/1/95 will be paid or completed
as the case may be, by owner prior to closing. As of the date of execution
of this Agreement, there are no outstanding tenant allowances or tenant
improvement obligations required under leases entered into after 1/1/95.
73
EXHIBIT "E"
RENT ROLL AND SCHEDULE OF LEASES
CROFTON PLAZA
See attached.
74
MONTHLY RENT ROLL - DETAIL REPORT
CROFTON PLAZA INC.
CROFTON PLAZA SHOPS, INC.
02/1995 TIME: 12:18 PAGE: 1
GE - STARTING: 02/01/1995 ENDING: 02/28/1995
RANGE - STARTING: 002-002- -0000 ENDING: 002-002-zzzz-9999
RANGE - STARTING: 150 ENDING: 150
UID-TID TENANTS-NAME RENEW. OPT TYPE ST CODE DESCRIPTION RENT OTHER TOTAL CHARGES
=================================================================================================================================
1-0001 ADMIRAL CLEANERS A Total Amount 2,824.11 419.87 3,243.98
150 BASE RENT 2,824.11
255 CAM 291.56
265 REAL ESTATE TAX 128.31
2-0001 SHOE-TOWN INC. #147 01/01/01 A Total Amount 2,514.58 726.88 3,241.46
150 BASE RENT 2,514.58
255 CAM 379.18
265 REAL ESTATE TAX 347.70
3-0001 LEGENDS - NITE CLUB A Total Amount 5,006.25 744.31 5,750.56
150 BASE RENT 5,006.25
255 CAM 513.56
265 REAL ESTATE TAX 230.75
4-0001 ALL FOR THE PETS A Total Amount 5,816.21 705.94 6,522.15
150 BASE RENT 5,816.21
255 CAM 420.00
265 REAL ESTATE TAX 285.94
5-0001 H & M CINEMA - LOEWS A Total Amount 7,000.00 2,218.96 9,218.96
150 BASE RENT 7,000.00
255 CAM 1,412.33
265 REAL ESTATE TAX 806.63
6-0001 DRUG EMPORIUM INC. 10/01/00 A Total Amount 7,860.83 433.33 8,294.16
150 BASE RENT 7,860.83
255 CAM 433.33
7-0001 THE HAIR CUTTERY #447 A Total Amount 1,750.00 352.95 2,102.95
150 BASE RENT 1,750.00
255 CAM 266.53
265 REAL ESTATE TAX 86.42
9-0001 CROFTON GOLDSMITH A Total Amount 1,179.75 182.74 1,362.49
150 BASE RENT 1,179.75
255 CAM 120.00
265 REAL ESTATE TAX 62.74
10-0001 ANNE ARUNDEL PUBLIC LIBRA 01/01/12 A Total Amount 4,669.67 1,816.22 6,485.89
150 BASE RENT 4,669.67
255 CAM 1,009.07
265 REAL ESTATE TAX 807.15
UID-TID TENANTS-NAMES SQUARE FEET RENT/SQ TOTAL/SQ.FT SECURITY EXPIRATION
=========================================================================================================
1-0001 ADMIRAL CLEANERS 2,227 1.26 1.45 1,500.00 02/28/98
2-0001 SHOE-TOWN INC. #147 6,035 0.41 0.53 12/31/00
3-0001 LEGENDS-NITE CLUB 4,005 1.25 1.43 4,338.75 07/31/95
4-0001 ALL FOR THE PETS 4,963 1.17 1.31 4,594.50 03/31/98
5-0001 H & M CINEMA - LOEWS 14,000 0.50 0.65 12/31/00
6-0001 DRUG EMPORIUM INC. 30,429 0.25 0.27 09/30/00
7-0001 THE HAIR CUTTERY #447 1,500 1.16 1.40 833.00 12/31/96
9-0001 CROFTON GOLDSMITH 1,089 1.08 1.25 907.50 01/31/97
10-0001 ANNE ARUNDEL PUBLIC LIBRA 14,009 0.33 0.46 12/31/95
75
MONTHLY RENT ROLL - DETAIL REPORT
CROFTON INC.
CROFTON PLAZA SHOPS, INC.
/02/1995 TIME: 12:18 PAGE: 2
STARTING: 02/01/1995 ENDING: 02/28/1995
RANGE - STARTING : 002-002- -0000 ENDING: 002-002-zzzz-9999
RANGE - STARTING: 150 ENDING: 150
UID-TID TENANTS-NAME RENEW. OPT TYPE ST CODE DESCRIPTION RENT OTHER TOTAL CHARGES
=================================================================================================================================
11-0001 K-MART #3160 07/01/00 A Total Amount 23,166.67 2,000.00 25,166.67
150 BASE RENT 23,166.67
255 CAM 2,000.00
12-0001 BASIC'S #70 - METRO SUPER 09/01/05 A Total Amount 27,585.25 3,425.00 31,010.25
150 BASE RENT 27,585.25
255 CAM 3,425.00
13-0001 CHINA GARDEN A Total Amount 3,039.00 750.12 3,789.12
150 BASE RENT 3,039.00
255 CAM 525.70
265 REAL ESTATE TAX 224.42
15-0001 QUALITY CARPET A Total Amount 4,574.50 672.29 5,246.79
150 BASE RENT 4,574.50
255 CAM 430.30
265 REAL ESTATE TAX 241.99
17-0001 PAT'S HALLMARK SHOP 11/01/96 A Total Amount 3,750.00 581.46 4,331.46
150 BASE RENT 3,750.00
255 CAM 318.96
265 REAL ESTATE TAX 262.50
19-0001 DOLLAR TREE STORES, INC # 07/01/99 A Total Amount 3,253.25 425.00 3,678.25
150 BASE RENT 3,253.25
255 CAM 250.00
265 REAL ESTATE TAX 175.00
20-0001 TAN & NAILS CENTER 02/01/00 A Total Amount 2,264.17 279.00 2,543.17
150 BASE RENT 2,264.17
255 CAM 157.00
265 REAL ESTATE TAX 122.00
UID-TID TENANTS-NAME SQUARE FEET RENT/SQ TOTAL/SQ.FT SECURITY EXPIRATION
=========================================================================================================
11-0001 K-MART #3130 95,810 0.24 0.26 06/30/00
12-0001 BASIC'S #70 - METRO SUPER 33,600 0.82 0.92 08/31/05
13-0001 CHINA GARDEN 3,895 0.78 0.97 1,000.00 06/30/96
15-0001 QUALITY CARPET 4,200 1.08 1.24 1,000.00 12/31/95
17-0001 PAT'S HALLMARK SHOP 4,500 0.83 0.96 3,750.00 10/31/96
19-0001 DOLLAR TREE STORES, INC # 3,003 1.08 1.22 06/30/99
20-0001 TAN & NAILS CENTER 2,090 1.08 1.21 4,528.34 01/31/00
76
MONTHLY RENT ROLL - DETAIL REPORT
SUMMARY PAGE FOR - CROFTON PLAZA INC.
CROFTON PLAZA SHOPS, INC.
TIME: 12:18 PAGE: 3
STARTING: 02/01/1995 ENDING: 02/28/1995
RANGE - STARTING: 002-002- -0000 ENDING: 002-002-zzzz-9999 ENTITY ID: 002
RANGE - STARTING: 150 ENDING: 150
ANNUAL MONTHLY
CCN DESCRIPTION AMOUNT $/SQUARE FOOT $/SQUARE FOOT
-------------------------------------------------------------------------------------
150 BASE RENT 106,254.24 5.71 .47
255 CAM 11,952.52 .64 .05
265 REAL ESTATE TAX 3,781.55 .20 .01
Total for CROFTON PLAZA INC. 121,988.31 6.55 .54
Total Square Foot Rented 223,265.00
Total Security Held 22,452.09
Total Number of Shares 0.00
Total For Rent Range: 150-150 106,254.24 5.71 .47
Total Rentable Square Foot 229,648.00
77
N.L.
S.R. J.J.
DELINQUENT REPORT AS OF 3/15/95 E.R.F S.L.
--------------------------------------------------
CROFTON PLAZA, INC.
-------------------
AMOUNT AMOUNT PRIOR UNPAID
TENANT BILLED REC'D ARREARS BALANCE COMMENTS
--------------- --------- ------ --------- ---------- ------------
1 - LEGENDS $5,750.56 $0.00 $5,750.56 $11,501.12
2 - SHOE-TOWN $3,241.46 $0.00 $ 0.00 $ 3,241.46
--------- ----- --------- ----------
TOTALS $8,992.02 $0.00 $5,750.56 $14,742.58
========= ===== ========= ==========
78
Crofton Plaza Lease Documents
Admiral Cleaners (Morningside Rug Co.)
1. Letter Agreement, dated 12/6/89
2. Letter Agreement, dated 8/26/88
3. Lease, dated 10/16/75
Percentage Rent: 8% less minimum rent paid
Options: None
All For the Pets (Katandy, Inc.)
1. Letter Agreement, dated 5/24/93
2. Lease Cancellation Agreement (12/17/92)
3. Lease, dated 4/10/90
Percentage Rent: 5% less minimum rent paid
Options: None
Anne Arundel Public Library
1. Lease, dated 10/12/73
Percentage Rent: None
Options: 1 fifteen-year option
Basics Food-A-Rama
1. Construction and Easement Agreement, dated 5/11/93
2. Letter Agreement re: Easement, dated 5/4/93
3. Fifth lease Modification Agreement, dated 11/20/92, followed
by 1st, 2nd, 3rd and 4th Lease Modifications
4. Lease, dated 12/29/65
Percentage Rent: 1% less the product obtained
by multiplying (minimum rent
paid minus $49,505) times .01
Options: 4 five-year options
China Garden
1. Letter Agreement regarding rent and percentage rent
2. Letter Agreement regarding rent relief, dated 3/8/90
3. Second Amendment, dated 11/?/93
4. Guaranty, dated 11/?/93
5. First Amendment, dated 1/23/92
6. Lease, dated 5/13/76
Percentage Rent: 6% less minimum rent paid
Options: None remaining
Hair Cuttery
1. First Amendment, dated 6/?/91
2. Second Amendment, dated 1/12/93
3. Lease, dated 1/1/87
Percentage Rent: 5% less minimum rent paid
Option to Renew: None remaining
Crofton Goldsmith
1. Second Amendment, dated 2/1/94
2. Lease, dated 12/14/87
Percentage Rent: None
Option to Renew: None
Dollar Tree
1. Lease, dated 2/1/94
Percentage Rent: None
79
Options: 1 five-year renewal
Drug Emporium
1. License Agreement between Dart Drugs (predecessor to Drug
Emporium) and Trak Auto, dated 3/4/83
2. First Amendment, dated 4/1/93
3. Second Amendment
4. Third Amendment
5. Fourth Amendment
6. Lease, dated 8/31/73
Percentage Rent: 1.5% less minimum rent paid
(percentage rent may be
offset by tax contributions
on a non-cumulative basis)
Options: 10 five-year options
7. Assignment of lease
Pat's Hallmark (His-Hers Enterprises, Inc.)
1. Lease, date 12/1/93
Percentage Rent: 5% of Gross Sales over
$900,000 Options: 1 Four-Year and one
Three-Year Option
(exercisable after 11/1/96)
K Mart
1. Lease, dated 8/10/73 with S.S. Kresge
Percentage Rent: None
Options: 10 options of five years each
2. First Amendment
Legends Nite Club
1. Lease, dated 8/1/88
Percentage Rent: 8% of Gross Sales between
$750,938 and $1,000,000 plus
6% of Gross Sales in excess
of $1,000,000
Options: 1 option of seven years
2. Guaranty, dated 7/29/88
H & M Cinema - Loews
1. Lease, dated 2/5/75
Percentage Rent: 12.5% less minimum rent paid
Options: None
2. Assignment of Lessor's Interest in Leases and Guaranties,
dated 2/5/75
Tan & Nails Center (Quy Nguyen & Hieu Nguyen)
1. Lease, dated 9/9/94
Percentage Rent: None
Options: 1 five-year option
2. Brokerage Agreement, dated 9/9/94
Quality Carpet
1. Assignment of Lessor's Interest in leases, dated 10/1/74
2. First Amendment to Lease, dated 11/15/76
3. Letter Agreement, dated 4/3/85
4. Lease, dated 10/1/74
Percentage Rent: 5% less minimum rent paid
Options: None
5. Lease Guaranty, dated 10/1/74
80
6. Letter Agreement, dated 1/28/91
7. Letter Agreement, dated 1/5/95
8. Letter Agreement, dated 12/22/93
Shoetown (The Felsway Corporation)
1. Lease, dated 4/1/74
Percentage Rent: 3% less minimum rent paid
Options: None remaining
2. Guaranty
3. Assignment of Lessor's Interest, dated 5/20/74
81
EXHIBIT "F"
LEASING BROKERAGE COMMISSIONS PAYABLE AFTER CLOSING
CROFTON PLAZA
As of the date of the execution of this Agreement, there are no
outstanding leasing brokerage commissions payable after closing.
82
EXHIBIT "G"
SERVICE AGREEMENTS NOT SUBJECT
TO 30 DAY TERMINATION
CROFTON PLAZA
1. ADT Security Systems, dated August 16, 1993 for maintenance of
certain mechanical equipment.
2. Grant's Lawn Service, dated October 31, 1994 for snow removal.
3. Grant's Lawn Service, dated March 30, 1994 for lawn service
and trash removal.
4. Grant's Lawn Service, dated March 8, 1995 for lawn service and
trash removal.
83
EXHIBIT "H"
Intentionally omitted.
84
EXHIBIT "I"
PENDING OR THREATENED LITIGATION
CROFTON PLAZA
That certain action filed against Crofton Plaza by a former tenant,
claiming damages for lost business due to a temporary shut-down of his
premises. A settlement agreement has been executed, and a release is expected
shortly. The amount in controversy does not exceed $5,000.
85
EXHIBIT "J"
INSURANCE POLICIES
CROFTON PLAZA
See Attached.
86
YORK INTERNATIONAL AGENCY, INC. SCHEDULE OF INSURANCE
6 Executive Plaza INSURED: CROFTON PLAZA
Yonkers, New York 10701 SHOPPING CENTER, INC.
(914) 376-2200 * (212) 980-1144
DATE PREPARED: 05/31/94
- ------------------------------------------------------------------------------------------------------------------------------------
COMPANY | POLICY NO. | COVERAGE | AMOUNT OR | TERM | EXPIRES | PREMIUM
| | | LIMIT | | |
- -----------|--------------|-------------------------------------|----------------|----------|------------|-------------------------
| | | | | |
ROYAL INS. | PSV024255 | COMMERCIAL PACKAGE POLICY | | 1 YR | 3/1/95 | $41,724. ANNUAL
COMPANY | | | | | |
| | Building Limit | 8,375,000 | | |
| | Business Interruption | 1,100,000 | | |
| | Sign Coverage | INCLUDED | | |
| | | | | |
| | All Risk Special Form | | | |
| | No Coinsurance | | | |
| | Replacement Cost | | | |
| | Building Ordinance | 250,000 | | |
| | Property Deductible | 5,000 | | |
| | Flood Coverage | 1,000,000 | | |
| | Earthquake Limit | BUILDING LIMIT | | |
| | Flood & Earthquake Deductible | 25,000 | | |
| | Back-up Sewer & Drains | 100,000 | | |
| | | | | |
| | COMMERCIAL LIABILITY | | | |
| | General Aggregate | 2,000,000 | | |
| | Each Occurrence | 1,000,000 | | |
| | Personal & Advertising Injury | 1,000,000 | | |
| | Fire Damage Liability | 50,000 | | |
| | Medical Expense | 5,000 | | |
| | Hired & Non-Owned Automobile Liab. | 1,000,000 | | |
| | | | | |
- -----------|--------------|-------------------------------------|----------------|----------|------------|-------------------------
CHUBB INS | 79079-361 | COMMERCIAL UMBRELLA POLICY | 10,000,000 | 1 YR | 03/01/95 | 4,200.
| | | | | |
HARTFORD | ASGHT8252637 | BOILER & MACHINERY | | 1 YR | 04/20/95 | 1,406
STEAM | 01 | Property Damage Limit | UNLIMITED | | |
| | Rental Income | 12 months | | |
87
EXHIBIT "K"
LIST OF ENVIRONMENTAL REPORTS
CROFTON PLAZA
Phase I Environmental Assessment prepared by McLaren/Hart, Project
Number 07.0803063.001, dated February 6, 1995, written by Charles S. Phillips.
88
EXHIBIT "L"
LIST OF ENGINEERING REPORTS
CROFTON PLAZA
Soil and Materials Engineers, Inc. Engineering Report, dated October
25, 1994, SME Project Number PM-22060.
89
EXHIBIT "M"
FORM OF TENANT ESTOPPEL CERTIFICATE
CROFTON PLAZA
See attached.
90
EXHIBIT M
Ramco-Gershenson Properties, L.P.
27600 Northwestern Highway
Suite 201
Southfield, MI 48034
Gentlemen:
[Applicable Ownership Entity] ("Landlord") and the undersigned
tenant ("Tenant") have entered into a lease for a portion of the shopping center
commonly known as ____________ (the "Shopping Center"). The documents described
in Exhibit A constitute a true, correct and complete list of the lease and any
amendments, supplements or modifications thereto (collectively, the "Lease").
The Tenant hereby certifies that it is the lessee under the Lease. Tenant
understands that Landlord intends to transfer the Shopping Center to
Ramco-Gershenson Properties, L.P. ("Transferee"). At the request of Landlord,
and with the knowledge that Transferee shall rely on the accuracy of the
information contained herein, the undersigned certifies that as of the date
hereof:
1. Exhibit A contains a true, correct and complete
description of the Lease and the Lease has not been cancelled and is in full
force and effect.
2. The current monthly minimum rent is $____________.
The Tenant has paid the minimum rent, and Tenant has paid its proportionate
share of taxes, common area maintenance charges and other charges due, including
without limitation electricity charges under the terms of the Lease, through and
including the date of this letter. Tenant has no offsets or claims against the
payment of rent or other charges due under the Lease. Landlord has not assumed
or agreed to perform any obligation of Tenant or any affiliate thereof under any
other lease or other agreement to which Tenant or its affiliates is a party.
3. Tenant is not affiliated with Landlord.
4. All improvements to the Premises required by the Lease
to be performed by Landlord as of the date hereof have been completed in
accordance with the provisions of the Lease and Landlord has paid any sums
required to be paid to Tenant therefor. [MODIFY WHERE TI WORK IS IN PROGRESS.]
5. To the best knowledge of Tenant as of the date of this
certificate, Landlord is not in default in the performance of any covenant,
agreement or condition contained in the Lease,
91
and the undersigned knows of no event which, with notice and the passage of time
or both, could result in such a default.
6. The Lease term commenced on ______________ and expires
on ___________ and there are no options to extend or to renew the term except as
specifically set forth in the Lease.
7. No rent has been paid more than one month in advance.
8. The amount of the security deposit presently held by
Landlord is $___________________.
9. Tenant has no right of first refusal to purchase,
option to purchase, or other right to purchase the Premises or any part thereof.
[ADD EXCEPTIONS WHERE APPROPRIATE TO REFLECT TENANT'S WAIVER OF THE RIGHTS.]
10. The undersigned has accepted and is in possession of
the Premises.
11. The interest of the Tenant under the Lease has not
been assigned, and no portion of the Premises has been sublet, except as may be
indicated on Exhibit A.
12. The person or persons executing this document on
behalf of the Tenant have the power and authority to execute this document.
Very truly yours,
[TENANT]
By: __________________
Name:
Title:
Dated: _______________, 1995
2
92
SCHEDULE 1
PERSONAL PROPERTY
CROFTON PLAZA
None
93
SCHEDULE (H) (2)
VIOLATION NOTICES
CROFTON PLAZA
As of the date of execution of this Agreement, there are no
outstanding violation notices.
94
SCHEDULE (H) (3)
INSURANCE NOTICES FOR REPAIRS
CROFTON PLAZA
See letter from Royal Insurance, dated August 23, 1994.
95
Royal Insurance
250 W. Pratt Street
Baltimore, Md. 21201
(410) 685-5844
September 6, 1994
Ms. Nancy Comerford,
RPS Realty Trust
733 Third Avenue
New York, New York 10017-3204
Re: Insurance Service Visit to: Crofton Shopping Plaza
Route 3 and Route 424
Crofton, Maryland 21114
PSV 024255
Date of Visit: 8-23-94
Dear Ms. Comerford:
This letter is written as confirmation of my recent visit to the above
noted location. As per your direction, I met with Mr. Roger School, to review
the status of recommendations made at my past visit and to witness and on site
fire hydrant flow test.
The fire hydrant flow test conducted at this visit were generally
better than those witnessed at the previous visit with the exception of the
hydrant noted in Recommendation No. 94-16.
Status of the pending recommendations is as follows:
Recommendation No. 94-1 outlines the appropriate test frequencies for
sprinkler and fire alarm systems. I have obtained no updated information since
my initial visit in March, 1994.
The alarm cover for the sprinkler riser in "All For Pets" has been
re-installed as was noted in former Recommendation No. 94-2. It is still
uncertain, however, if the sprinkler system alarm has been tested as Per
Recommendation No. 94-1.
The ceiling tiles in Trak Auto storage room area have been replaced but
no modifications have occurred to the sprinkler system as per Recommendation No.
94-3.
No change was noted with regard to Recommendation Nos. 94-4, 94-5, and
94-6.
96
Page 2
RPS Realty Trust
Crofton Shopping Plaza
Crofton, Md. 21114
We have obtained the sprinkler design and demand information from Metro
Food Store's sprinkler system as per former Recommendation No. 94-7.
The Chinese Restaurant manager would not permit access to the kitchen
area during this visit. Recommendation Nos. 94-8 and 94-9 should be verified by
your maintenance staff and the information should be forwarded to our office.
Due to the time of our visit in the morning, the Legend's Restaurant
was not accessible. Your maintenance staff should once again, determine if the
information within this recommendation is being completed and the information
should be forwarded to our office.
Former Recommendation No. 94-11 is considered completed as the cap has
been replaced.
No change was noted with regard to Recommendation No. 94-12, Quality
Carpet Shop storage rack.
Recommendation No. 94-13 and 94-14 are considered completed.
New Recommendation Nos. 94-15 and 94-16 indicate the conditions that
were noted during this visit.
Thank you for the time and interest of your staff during my visit. If
you have any questions regarding the attached recommendations, feel free to call
my office. Please indicate, via written response, your proposed action on the
remaining recommendations within the next 45 day period.
Sincerely,
James A. Litke,
Property Specialist
JAL/rd.
Enclosure
97
RPS Realty Trust
Crofton Shopping Plaza
Route 3 and Route 424
Crofton, Maryland 21114
DISTRIBUTION:
LHC: York International
35 E. Grassy Sprain Road
Yonkers, New York 10701
LHC: Mr. Michaels Johnson, Under.
Royal Insurance
555 Taxter Road
Elmsford, New York 10523
LHC: File
LHC: Diary Copy
98
RPS Realty Trust
Crofton Shopping Plaza
Route #3 and Route 424
Crofton, Maryland 21114
RECOMMENDATIONS
Date of Visit: 8-23-94
94-1 SPRINKLER AND ALARM TESTING
All sprinkler related equipment, alarms and devices should be tested on
a regular basis as per NFPA Standard No. 25 as follows:
A. All sprinkler water flow alarms, 2" main drain test, and control valve
tamper tests should be conducted quarterly as per NFPA Standard No. 25, Chapters
9-2.7, 9-2.6 and 9-3.4.
Tests should be conducted by a qualified contractor within individual
test results listed for each device. A copy of the test results should be
forwarded to our office for review.
NOTE: According to the tags affixed to the various sprinkler risers at this
location, testing frequency varies from semi-annual to none.
B. The dry pipe valve that controls sprinkler protection for the K-Mart
Garden Center area and the outside canopy, should be trip tested on an annual
basis by a qualified contractor with full flow trip tests conducted every 3
years. Tests should be performed in accordance with NFPA Standard No. 25,
Chapter 9-4.4 and Appendix 9-4.4.
Dry pipe valve trip tests with unsatisfactory results (ie. water takes
more than 60 seconds to reach the inspectors test after opening) should be
investigated and/or repaired, reset and retested until satisfactory.
C. All outside sprinkler control valves, that control the incoming 8"
water main, should be inspected and verified to be in the open position.
NOTE: A "T" handle wrench will be needed to access the "curb box" valves
located on either side of the incoming water "pit and meter" located near Route
3.
99
Page 2
RPS Realty Trust
Crofton Shopping Plaza
Route #3 and Route 424
Crofton, Maryland 21114
RECOMMENDATIONS CONTINUED
94-3 TRAK AUTO (REVISED 8-23-94)
The automatic sprinkler protection in this room should be modified so
that protection is provided above the mineral tile drop ceiling and beneath the
wooden frame mezzanine area.
NOTE: It appears as though an excessive number of sprinkler heads were
installed in the room area whereas half of the sprinkler heads should have been
installed above the mineral tile drop ceiling to protect the combustible
concealed space. Sprinklers beneath the ceiling tile area in the back room are
spaced approximately 3' a part.
94-4 DRUG EMPORIUM
A 6" longitudinal and transverse flue space should be maintained in the
storage rack area in the back room. The approximately 11' high storage rack
system is provided with solid shelving that would obstruct the over head
sprinkler protection from adequately protecting all levels of storage. The 6"
flue spaces should be maintained between the longitudinal shelf areas as well as
approximately on 8' intervals, at the rack sections.
94-5 OUTSIDE PROPANE TANKS
Consideration should be given to providing complete chain link fence
around the propane storage tanks adjacent to the Legend's Restaurant area and
the Chinese Restaurant area. The chain link fences should be locking type and
should be close enough to the cylinders to prevent them from falling.
NOTE: The propane cylinders adjacent to the Legend's Restaurant are in an area
that appears to be regularly trafficked as evidenced by the large amount of
graffiti on the exterior of the building in this area. It is a concern that the
large vertical propane tanks may be tampered with, leading to a potential fire
situation.
100
Page 3
RPS Realty Trust
Crofton Shopping Plaza
Route #3 and Route #424
Crofton, Maryland 21114
RECOMMENDATIONS CONTINUED
94-6 K-MART TIRE CHANGING AREA
Tape should be removed from the four (4) sprinkler heads along the most
western sprinkler line located within this area. It appears as though when the
ceiling was sprinklered, the heads were taped but the tape was never removed.
In addition, smoking should be strictly prohibited within this area of
high potential combustibility. A "No Smoking" policy should be enforced by the
tenant on premises to prevent a potential situation.
94-8 CHINESE RESTAURANT
All over head duct work and hoods for the kitchen cooking equipment
line should be inspected and cleaned as necessary on a semi-annual basis as per
NFPA Standard No. 96. A tag or sticker, indicating the last date of service,
should be affixed to the over head duct work in clear view.
NOTE: It could not be verified as to the last time the over head duct work was
cleaned in the restaurant and it is currently in need of cleaning. On August
23, 1994 management would not allow access to the kitchen area.
94-9 CHINESE RESTAURANT WOOD ROOF AREA
It is should be verified that automatic sprinkler protection, designed
and installed in accordance with NFPA Standard No. 13, exists within the wood
frame peaked area above the Chinese Restaurant and any other wood frame areas in
the building section.
NOTE: Access to the areas was not possible during this visit. Without
automatic sprinkler protection provided in these concealed combustible areas,
overall sprinkler protection value for this building is poor.
101
Page 4
RPS Realty Trust
Crofton Shopping Plaza
Route #3 and Route 424
Crofton, Maryland 21114
RECOMMENDATIONS CONTINUED
94-10 LEGENDS RESTAURANT
The over head fixed extinguishing system that protects the cooking line
should be serviced on a semi-annual basis as per NFPA Standard No. 17. The
system was last serviced in June, 1993 and is approximately 3 months overdue. A
tag indicating the latest date of servicing should be affixed to the system.
The over head duct work and hood system should also be inspected and
cleaned as necessary on a semi-annual basis as per NFPA Standard No. 96. A tag
or sticker, indicating the last date of servicing, should be affixed to the over
head hood in clear view.
94-12 QUALITY CARPET SHOP
In-rack sprinkler protection should be installed at the approximate mid
point of the 12' high rack storage of rolled carpet. The structure is
approximately 20' x 15' wide and should be provided with a minimum of 6
sprinklers at the approximate 6' high level. Sprinkler piping should be
designed and installed in accordance with NFPA Standard No. 13. System should
be designed so that the minimum operating pressure is 15 psi for all sprinklers.
Sprinklers should be 165 degrees F. rated and UL approved.
NOTE: The large rack structure would prevent the over head ceiling sprinklers
from adequately protecting storage on the lower level. In-rack sprinkler
protection is one option of adequate protection although lowering the storage
height to 6' high or less, without the need for in-rack sprinklers, is an
alternate solution.
94-15 ALL FOR PETS
The concrete outside the front door entrance should be repaired to
prevent the trip and fall hazard that exists due to the current conditon of the
walking surface.
102
Page 5
RPS Realty Trust
Crofton Shopping Plaza
Route #3 and Route 424
Crofton, Maryland 21114
RECOMMENDATIONS CONTINUED
94-16 FIRE HYDRANT REPAIR
The hydrant located behind K-Mart (and nearer to Metro) should be
investigated and repaired as necessary by a qualified contractor. During
testing, the hydrant could not be fully opened and yielded test flow results
considerably below those recorded for nearby hydrants.
103
SCHEDULE (K) (1)
REAL ESTATE TAX APPEALS
CROFTON PLAZA
None Pending.
104
SCHEDULE (L) (4)
SECURITY DEPOSIT CLAIMS
CROFTON PLAZA
Except as disclosed on Exhibit I, above, as of the date of the
execution of this Agreement, there are no claims against security deposits.
105
SCHEDULE (L) (5)
MATERIAL TENANT DEFAULTS; TENANTS OVER 30 DAYS DELINQUENT IN RENT;
TENANTS ASSERTING DEFENSES, OFFSETS OR CLAIMS AGAINST RENT OR OTHER
LEASE OBLIGATION; REASON TO BELIEVE TENANT OR ANY GUARANTOR IS OR MAY
BECOME UNABLE OR UNWILLING TO PERFORM; GUARANTORS RELEASED OR
DISCHARGED
CROFTON PLAZA
None as of the date of the execution of this Agreement.
106
SCHEDULE (M) (1)
RIGHTS OF FIRST REFUSAL AND OPTIONS TO PURCHASE OR LEASE;
TERMINATION RIGHTS
CROFTON PLAZA
None.
107
SCHEDULE (N) (4)
Intentionally omitted.
108
SCHEDULE (6)
CROFTON PLAZA SHOPPING CENTER
None.