SALE-PURCHASE AGREEMENT
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SALE-PURCHASE AGREEMENT (this "AGREEMENT"), made as of November 27, 2000,
between WELLSFORD CAPITAL PROPERTIES, L.L.C., a Delaware limited liability
company having an address c/o Wellsford Real Properties, Inc., 535 Madison
Avenue, 26th Floor New York, New York 10022 ("SELLER") and WINDSWEPT
DEVELOPMENT, LLC, a Michigan limited liability company having an office at 31000
Northwestern Highway, Suite 220, Farmington Hills, Michigan 48334 ("PURCHASER").
W I T N E S S E T H:
- - - - - - - - - -
Seller and Purchaser, in consideration of the mutual covenants herein
contained, hereby agree as follows:
ARTICLE 1. CERTAIN DEFINITIONS
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For purposes of this Agreement, the following terms shall have the
following meanings:
1.1. "Affiliate" shall mean any entity in which Purchaser or its
principals has an interest.
1.2. "Broker" shall mean Staubach Retail Services.
1.3. "Business Day" shall mean any day other than a Saturday, Sunday
or any day upon which banks in the Commonwealth of Pennsylvania are
required or authorized by law to be closed.
1.4. "Effective Date" shall mean the date upon which Purchaser
receives a fully executed counterpart of this Agreement. Promptly following
the occurrence of the Effective Date, Purchaser shall execute and deliver
to Seller such instrument as Seller may submit to it to evidence the
occurrence of the Effective Date.
1.5. "Escrowee" shall mean, collectively, First Escrowee and Second
Escrowee.
1.6. "Existing Leases" shall mean the leases, licenses and occupancy
agreements set forth in Exhibit B annexed hereto.
1.7. "Existing Service Contracts" shall mean the service contracts,
maintenance agreements, brokerage agreements and other agreements affecting
the Property and set forth in Exhibit C annexed hereto.
1.8. "First Escrowee" shall mean Metropolitan Title Company.
1.9. "Invasive Tests" shall mean any physical inspection or testing of
the Premises other than visual examination, and shall include, without
limitation, sampling of soils or other media.
1.10. "Leases" shall mean the Existing Leases and the New Leases in
effect on the Closing Date.
1.11. "Leasing Costs" shall mean, collectively, (i) leasing or
brokerage commissions, (ii) direct payments, tenant improvement allowances,
work letters or free rent and (iii) free rent, rent allowances or rent
credits, in each case paid or granted to a tenant under an Existing Lease
or a New Lease.
1.12. "New Leases" shall mean any new leases, licenses or occupancy
agreements entered into by Seller in accordance with the terms of this
Agreement.
1.13. "New Service Contracts" shall mean any service contracts,
maintenance agreements, brokerage agreements or other agreements entered
into by Seller in accordance with the terms of this Agreement.
1.14. "Representation Survival Period" shall mean six (6) months.
1.15. "Second Escrowee" shall mean Commonwealth Land Title Insurance
Company.
1.16."Service Contracts" shall mean the Existing Service Contracts and
the New Service Contracts in effect on the Closing Date.
1.17. "Title Insurer" shall mean Commonwealth Land Title Insurance
Company.
ARTICLE 2. SALE-PURCHASE OF PROPERTY
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2.1. Agreement to Sell and Purchase. Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, at the Purchase Price and upon the terms
and conditions set forth in this Agreement, the following (collectively, the
"PROPERTY"): (a) the parcel of land more particularly described in Exhibit A
attached hereto (the "LAND"); (b) the buildings and other structures situated on
the Land, inclusive of all of Seller's right, title and interest in and to the
improvements, fixtures, systems, plant equipment, apparatus and machinery which
form a part of the buildings or such other structures (collectively, the
"BUILDING") (the Land and the Building are herein collectively called the
"PREMISES"); (c) all right, title and interest of Seller, if any, in and to (i)
the land lying in the bed of any street or highway in front of or adjoining the
Land to the center line thereof and (ii) any appurtenances in and to the
Premises; (d) all right, title and interest of Seller in and to any furniture,
furnishings, moveable equipment and other personal property located at, and used
in connection with, the Premises (herein collectively called the "PERSONAL
PROPERTY"); (e) the landlord's interest in and to the Leases and any security
held thereunder; (f) to the extent assignable, Seller's right, title and
interest in and to the Service Contracts; and (g) to the extent assignable,
Seller's right, title and interest in and to any licenses and permits used or
useful in the operation of the Premises (collectively, the "LICENSES AND
PERMITS"). The Premises are located at, and are known as, Bradford Plaza, 710
Downington Pike, West Chester, Pennsylvania.
2.2. Title to Premises. Seller shall convey, and Purchaser shall accept,
title to and possession of the Premises on the Closing Date, free of all Title
Exceptions other than the Permitted Exceptions (each as hereinafter defined).
2.3. Condition of Property. Purchaser is a sophisticated investor and its
valuation of and decision to purchase the Property is based upon its own
independent expert evaluations of such facts and materials deemed relevant by
Purchaser and its agents. Other than the express representations and warranties
of Seller specifically set forth herein, Purchaser has not relied upon any oral
or written information from Seller or its employees, affiliates, agents,
consultants, advisors or representatives, including, without limitation, any
appraisals, projections or evaluations of credit quality prepared by Seller or
any of its employees, affiliates, agents, consultants, advisors or
representatives. Purchaser further acknowledges that no employee, agent,
consultant, advisor or representative of Seller has been
authorized to make, and that Purchaser has not relied upon, any statements or
representations other than those specifically contained in this Agreement.
Without limiting the generality of the foregoing, Purchaser acknowledges and
agrees that, except as expressly set forth herein, Purchaser is purchasing the
Property "as is" and "where is" on the Closing Date, and, except as expressly
set forth herein, Seller is making no representation or warranty, express or
implied, and Purchaser has not relied on any representation or warranty, express
or implied, regarding the Property, including, without limitation, any
representation or warranty with respect to (a) the business or financial
condition of any tenant of the Property, (b) the physical condition of any
Improvement or Personal Property comprising all or a part of any Property, or
its fitness, merchantability or suitability for any use or purpose, (c) the
leases, rents, income or expenses of the Property, (d) the compliance or
non-compliance with any laws, codes, ordinances, rules or regulations of any
governmental authority (including, without limitation, laws pertaining to
hazardous materials) or (e) the current or future use of the Property,
including, but not limited to, any Property's use for commercial, retail,
industrial or other purposes. Seller is not liable or bound in any manner by any
verbal or written statements, representations, real estate brokers' "set-ups",
offering memoranda or information pertaining to the Property furnished by any
real estate broker, advisor, consultant, agent, employee, representative or
other Person.
ARTICLE 3. PURCHASE PRICE
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3.1. Purchase Price. The purchase price (the "PURCHASE PRICE") to be paid
by Purchaser to Seller for the Property is TEN MILLION THREE HUNDRED FIFTY
THOUSAND and 00/100 DOLLARS ($10,350,000.00), net of adjustments made in
accordance with Article 8 below. The Purchase Price shall be paid by Purchaser
as follows:
(a) ONE HUNDRED THOUSAND and 00/100 DOLLARS ($100,000.00) (the
"DEPOSIT"), payable on or before the date which is two (2) Business Days
after the Effective Date either by (i) wire transfer of immediately
available funds to First Escrowee or (ii) Purchaser's check, subject to
collection, drawn to the order of First Escrowee; and
(b) TEN MILLION TWO HUNDRED FIFTY THOUSAND and 00/100 DOLLARS
($10,250,000.00) (the "CASH Balance"), payable at the Closing by wire
transfer of immediately available funds to an account or accounts
designated by Seller.
3.2. Escrow of Deposit.
(a) First Escrowee shall hold the Deposit until the sooner to occur of
(i) the date upon which Purchaser validly terminates this Agreement in
accordance with the provisions of Section 4.1 hereof and (ii) the Due
Diligence Expiration Date. Promptly following its receipt of the Deposit,
First Escrowee shall furnish Seller's counsel with written confirmation by
telecopy of such receipt. If Purchaser validly terminates this Agreement in
accordance with the provisions of Section 4.1 hereof, First Escrowee shall
promptly thereafter refund the Deposit and all interest thereon to
Purchaser. If Purchaser waives its due diligence contingency set forth in
Section 4.1 hereof, Purchaser shall cause First Escrowee, on or before 5:00
P.M. on the Due Diligence Expiration Date (time being of the essence), to
deliver the Deposit and all interest thereon to Second Escrowee by wire
transfer of immediately available funds to the account of Second Escrowee
set forth in Exhibit A-1 annexed hereto. If Purchaser fails to cause First
Escrowee to deliver the Deposit to Second Escrowee in the time and manner
hereinabove set forth, then, notwithstanding any waiver by Purchaser of its
due diligence contingency set forth in Section 4.1 hereof, this Agreement
shall be deemed terminated effective as of 5:00 P.M. on the Due Diligence
Expiration Date, whereupon (i) First Escrowee shall cause the Deposit to be
refunded to Purchaser and (ii) neither
party hereto shall have any further obligation to the other hereunder, with
the exception of those obligations which expressly survive the termination
of this Agreement.
(b) Upon First Escrowee's delivery to Second Escrowee of the Deposit
in accordance with the provisions of Section 3.2(a) hereof, Second Escrowee
shall hold the Deposit until the Closing or sooner termination of this
Agreement in accordance with the provisions hereinafter set forth:
(i) At the Closing, Second Escrowee shall pay the Deposit to
Seller; and
(ii) If for any reason the Closing does not occur, Second
Escrowee shall continue to hold the Deposit until otherwise directed
by joint written instructions from the parties to this Agreement or a
final judgment of a court of competent jurisdiction. Second Escrowee,
however, shall have the right at any time to deposit the Deposit with
the clerk of any federal or state court sitting in the Commonwealth of
Pennsylvania. Second Escrowee shall give written notice of such
deposit to Seller and Purchaser. Upon such deposit, Second Escrowee
shall be relieved and discharged of all further obligations and
responsibilities hereunder.
(c) Interest on the Deposit shall be paid to the party entitled to the
Deposit, as and when such party becomes entitled to the Deposit, and the
party receiving such interest shall pay any income tax thereon. For
purposes thereof, the tax identification numbers of the parties are as
follows: 13-4027757 (Seller); and (Purchaser).
(d) The parties acknowledge that Escrowee is acting solely as a
stakeholder at their request and for their convenience, that Escrowee shall
not be deemed to be the agent of either of the parties, and that Escrowee
shall not be liable to either of the parties for any act or omission on its
part unless taken or suffered in bad faith, in willful disregard of this
Agreement or involving gross negligence. Seller and Purchaser shall jointly
and severally indemnify and hold Escrowee harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees, incurred
in connection with the performance of Escrowee's duties hereunder, except
with respect to actions or omissions taken or suffered by Escrowee in bad
faith, in willful disregard of this Agreement or involving gross negligence
on the part of Escrowee.
(e) Escrowee shall cause the Deposit to be maintained and invested in
an interest-bearing money market account or such other investment
instrument or account designated by Purchaser and reasonably approved by
Seller.
(f) Upon First Escrowee's delivery of the Deposit in accordance with
the provisions of Section 3.2(a) hereof, First Escrowee shall have no
further obligation with regard to the escrow or this Agreement. Upon Second
Escrowee's delivery of the Deposit in accordance with the provisions of
Section 3.2(b) hereof, Second Escrowee shall have no further obligation
with regard to the Escrow and this Agreement.
(g) Escrowee shall not be bound by any modification to this Section
3.2 unless Escrowee shall have agreed to such modification in writing.
Escrowee shall be entitled to rely or act upon any notice, instrument or
document believed by Escrowee to be genuine and to be executed and
delivered by the proper person, and shall have no obligation to verify any
statements contained in any notice, instrument or document or the accuracy
or due authorization of the execution of any notice, instrument or
document.
(h) First Escrowee and Second Escrowee have acknowledged their
agreement to the foregoing provisions of this Section 3.2 by signing in the
places indicated on the signature page of this Agreement.
ARTICLE 4. INSPECTION
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4.1. Due Diligence Period; Termination Right. During the period (the "DUE
DILIGENCE PERIOD") commencing on the Effective Date and ending on the date (the
"DUE DILIGENCE EXPIRATION DATE") which is thirty (30) days after the Effective
Date (unless such date is not a Business Day, in which event the Due Diligence
Expiration Date shall be the next occurring Business Day), Purchaser shall have
the right to conduct such due diligence as it deems reasonably necessary or
appropriate in connection with its acquisition of the Property, including
inspections, studies, examinations and investigations of, or with respect to,
the Property, or any portion thereof, and/or any facts, circumstances and
matters relating to the Property, or any portion thereof. If Purchaser, in its
sole discretion, determines that it is unsatisfied with the results of and
matters disclosed by its due diligence, Purchaser shall have the right to
terminate this Agreement by written notice given to Seller prior to 5:00 p.m.
New York time on the Due Diligence Expiration Date (TIME BEING OF THE ESSENCE).
Upon any termination of this Agreement pursuant to this Section 4.1, (i) the
Deposit shall be refunded to Purchaser and (y) neither party hereto shall have
any further obligation to the other, with the exception of those obligations
which expressly survive the termination of this Agreement. If Purchaser shall
fail to terminate this Agreement in the time and manner set forth in this
Section 4.1, Purchaser shall be deemed to have irrevocably waived its right to
terminate this Agreement pursuant to this Section 4.1
4.2. Inspections. Purchaser and its authorized agents, consultants or
representatives shall have the right, upon reasonable prior notice to Seller
(which notice may be telephonic), to enter upon the Premises from time to time
to conduct such physical and other inspections (including a Phase I
environmental investigation) as Purchaser deems appropriate, provided that
Purchaser shall not perform Invasive Tests or interview tenants of the Premises
without first obtaining Seller's consent, which consent shall not be
unreasonably withheld or delayed. Prior to any entrance upon the Premises for
the performance of Invasive Tests, Purchaser shall deliver (or cause the
appropriate contractor to deliver) to Seller a certificate of insurance
evidencing that Purchaser has procured and maintains in force and effect
commercial general liability insurance covering Purchaser and Seller against
claims for bodily injury or death or property damage occurring in, upon or about
the Premises in an amount of not less than $2,000,000 (combined single limit),
issued by an insurance company with a rating of "A" or better as established by
Best's Rating Guide, which insurance shall include blanket contractual liability
coverage and shall otherwise be in form reasonably acceptable to Seller.
Following the performance of any Invasive Tests, Purchaser shall restore the
Premises to their condition prior to the performance thereof. Purchaser shall
indemnify and hold harmless Seller and its officers, directors, members,
employees, successors and assigns, from and against any and all damages, losses,
costs, expenses, liabilities and claims that arise out of or in any way relate
to the conduct of the Inspections, except to the extent the same arise by reason
of the negligence or wilful misconduct of Seller. The provisions of this Section
4.2 shall survive the termination of this Agreement.
4.3. Confidentiality. Prior to the Closing, Purchaser shall not disclose to
any other party either the contents of any materials delivered to Purchaser by
Seller with respect to the Property or the results of any reports summarizing
any aspect of Purchaser's due diligence investigations without first obtaining
the prior written consent of Seller. Notwithstanding the foregoing, Purchaser
may, without first obtaining such prior written consent, make such disclosures
as it deems appropriate to its officers, employees, lenders, counsel, lenders'
counsel, appraisers, accountants, insurance advisors, environmental consultants
and similar third-party consultants, provided that such parties are apprised of
the confidential
nature of the material disclosed. The provisions of this Section 4.3 shall
survive any termination of this Agreement.
ARTICLE 5. TRANSACTION COSTS
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5.1. Seller's Costs. At the Closing, Seller shall pay (i) all transfer
taxes payable as a result of the conveyance of title to the Property to
Purchaser pursuant to this Agreement, (ii) costs incurred in connection with the
update of the Survey (hereinafter defined) obtained by Seller in accordance with
the provisions of Section 10.2 hereof, (iii) search or abstract costs incurred
in connection with the issuance of the Title Report (hereinafter defined), (iv)
costs incurred in connection with the issuance by Title Insurer to Purchaser of
an owner's policy of title insurance, containing a survey endorsement and with a
limit of liability equal to the Purchase Price and (v) costs incurred in
connection with the recording of the Deed and the discharge of any Title
Exceptions which are not Permitted Exceptions. Seller, in addition to its
apportionment obligations hereunder, if any, also shall be responsible for the
cost of its legal counsel, advisors and the other professionals employed by it
in connection with the sale of the Property.
5.2. Purchaser's Costs. Purchaser, in addition to its apportionment and
other payment obligations hereunder, shall be responsible for all costs and
expenses associated with (i) Purchaser's due diligence, (ii) Purchaser's legal
counsel, advisors, engineers, consultants and the other professionals employed
by it in connection with Purchaser's due diligence and the purchase of the
Property, (iii) costs and expenses of any financing obtained by Purchaser and
(iv) the incremental cost of any mortgagee's policy of title insurance obtained
by Purchaser. Nothing herein shall be deemed to condition Closing upon
Purchaser's ability to obtain financing of all or any portion of the Purchase
Price.
ARTICLE 6. CLOSING DATE; CONDITIONS TO CLOSING
6.1. Closing Date. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place on December 29, 2000, provided that
Seller shall have the one-time right, upon notice to Purchaser on or before
December 15, 2000, to adjourn the Closing to a Business Day on or before January
12, 2001. The date upon which the Closing occurs, as the same may be adjourned
by Seller in accordance with the terms hereof, is herein referred to as the
"CLOSING DATE"). The Closing shall take place through an escrow established with
Title Insurer upon such terms and conditions as Seller, Purchaser and Title
Insurer shall mutually agree. TIME SHALL BE OF THE ESSENCE WITH RESPECT TO THE
OBLIGATIONS OF PURCHASER TO BE PERFORMED ON THE CLOSING DATE.
6.2. Purchaser's Conditions. Purchaser's obligation to purchase the
Property is subject to the satisfaction of the following conditions precedent,
any or all of which may be waived by Purchaser:
(a) Seller shall have delivered to Purchaser Tenant Estoppel
Certificates, dated as of a date not more than forty-five (45) days prior
to the Closing Date, from (A) the tenants under the following leases: (i)
Guinta's Thriftway, (ii) CVS, (iii) Dollar Express and (iv) Wine and
Spirits Shoppe (collectively, the "Specified Estoppel Leases" and (B) the
holders of the tenants' interest under Leases which demise not less than
80% of the rentable square footage demised as of the date hereof under the
Leases, it being understood that the receipt of a Tenant Estoppel
Certificate from a tenant under any of the Specified Estoppel Leases shall
count toward satisfaction of the foregoing percentage requirement. If,
however, Seller is unable to obtain Tenant Estoppel Certificates from
tenants under Leases demising not less than 80% of the rentable square
footage demised under the Leases as of the date hereof, Seller may (but
shall not be obligated to) satisfy the foregoing condition by executing and
delivering to Purchaser at Closing a certificate from Seller (the "SELLER'S
ESTOPPEL CERTIFICATE") setting forth the matters which
would have been set forth in the Tenant Estoppel Certificate(s) for any
Leases (other than the Specified Estoppel Leases) selected by Seller and
for which Seller has been unable to obtain a Tenant Estoppel Certificate,
to the extent necessary to increase to 80% of the rentable square footage
demised under Leases as of the date hereof for which a Tenant Estoppel
Certificate has been obtained. Any Seller's Estoppel Certificate shall
state that the representations made therein shall survive the Closing for a
period of six (6) months or until such earlier date on which the applicable
tenant shall deliver to Purchaser a Tenant Estoppel Certificate. For
purposes of this Agreement, the term "TENANT ESTOPPEL CERTIFICATE" shall
mean a certificate in the form of Exhibit D annexed hereto, provided that
if any Lease prescribes the form or contents of an estoppel certificate to
be delivered by the tenant, "TENANT ESTOPPEL CERTIFICATE" shall mean an
estoppel certificate in such form or containing such contents;
(b) Title Insurer shall be prepared to insure Purchaser's fee title to
the Premises, subject only to the Permitted Exceptions;
(c) Seller's representations contained in Sections 9.2 and 9.3 hereof
shall be true, complete and correct in all material respects, as made as of
the date hereof and as of the Closing Date, provided that Seller shall not
be deemed to be in breach of any representation, as made as of the Closing
Date, to the extent that any such representation is rendered untrue by any
state of facts permitted or contemplated by this Agreement; and
(d) (i) this Agreement shall be in full force and effect, (ii) Seller
shall have fully satisfied, or shall therewith fully satisfy, all of its
Closing obligations hereunder, and (iii) there shall not otherwise then
exist any event which would allow Purchaser to terminate this Agreement
pursuant to the express terms hereof.
6.3. Seller's Conditions. Seller's obligation to sell the Property is
subject to the satisfaction of the following conditions precedent, any or all of
which may be waived by Seller:
(a) this Agreement shall be in full force and effect,
(b) Purchaser shall have fully satisfied, or shall therewith fully
satisfy, all of its Closing obligations hereunder,
(c) there shall not otherwise then exist any event which would allow
Seller to terminate this Agreement pursuant to the express terms hereof;
and
(d) Purchaser's representations contained in Section 9.1 hereof shall
be true, complete and correct in all material respects, as made as of the
date hereof and as of the Closing Date.
6.4. Failure of Condition Not a Breach. The parties hereto acknowledge and
agree that the failure to occur of one or more conditions precedent contained in
this Article 6 shall not be deemed to constitute a breach of this Agreement by
either party unless and to the extent that any such party shall have expressly
agreed or covenanted or is otherwise expressly obligated hereunder to take any
action to satisfy or cause the satisfaction of the condition in question.
ARTICLE 7. CLOSING DOCUMENTS AND DELIVERIES
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7.1. Conveyancing Documents and Deliveries.
At the Closing:
(a) Purchaser shall deliver to Seller the Cash Balance and any other
amounts payable by Purchaser to Seller at the Closing pursuant to this
Agreement;
(b) Seller shall execute, acknowledge and deliver a special warranty
deed or its equivalent sufficient to convey the Premises to Purchaser,
subject only to the Permitted Exceptions (the "DEED");
(c) Seller shall deliver to Purchaser original counterparts of the
Tenant Estoppel Certificates received by Seller (and, if applicable,
Seller's Estoppel Certificate);
(d) Seller shall deliver to Purchaser original counterparts (or, if
the same are unavailable, copies thereof) of the Leases. Delivery of the
foregoing may be effectuated by leaving the same in the custody of
Purchaser or its property manager at the management office at the Premises;
(e) Seller shall deliver to Purchaser original counterparts (or, if
the same are unavailable, copies thereof) of the assignable Service
Contracts. Delivery of the foregoing may be effectuated by leaving the same
in the custody of Purchaser or its property manager at the management
office at the Premises;
(f) Seller shall deliver to Purchaser original counterparts (or, if
the same are unavailable, copies thereof) of the assignable Licenses and
Permits;
(g) Seller shall execute and deliver a general bill of sale in the
form of Exhibit E annexed hereto, conveying to Purchaser all of Seller's
right, title and interest in and to the Personal Property, free and clear
of all liens and encumbrances;
(h) Seller, as assignor, and Purchaser, as assignee, shall each
execute, acknowledge and deliver an instrument in the form of Exhibit F
annexed hereto providing for the assignment by Seller of the landlord's
interest in the Leases and the assumption by Purchaser of the landlord's
obligations under the Leases which arise or accrue from and after the
Closing Date;
(i) Subject to the provisions of Section 15.7(b) hereof, Seller and
Purchaser shall mutually execute and deliver to each other an instrument in
the form of Exhibit G annexed hereto providing for the assignment by Seller
to Purchaser of all of Seller's right, title and interest in and to the
assignable Service Contracts and the assignable Licenses and Permits and
the assumption by Purchaser of (x) all of Seller's obligations under the
assignable Service Contracts and the assignable Licenses and Permits which
first arise or accrue after the Closing Date and (y) the obligations of
Seller with respect to post-termination leasing commissions payable in
accordance with Exhibit B, Section 9 of the Leasing Agency Agreement (as
defined in Exhibit C annexed hereto);
(j) Seller shall furnish Purchaser with evidence of the termination of
the Property Management Agreement (as defined in Exhibit C annexed hereto)
and, subject to the provisions of Section 7.1(i) above, the Leasing Agency
Agreement;
(k) Seller shall deliver to Purchaser an instrument pursuant to which
Seller (i) remakes the representations made by Seller in Section 9.3(a)
through (e) hereof as of the Closing Date and (ii) advises Purchaser of any
facts or circumstances which would render any of such representations, as
made of the Closing Date, untrue;
(l) Seller and Purchaser shall execute and deliver a letter to each of
the tenants under the Leases and each of the other parties to the
assignable Service Contracts, notifying each such tenant or
party of the sale of the Premises and indicating the new address for
notices under the Leases and Service Contracts and the new address for the
payment of rent under the Leases;
(m) Seller shall execute and deliver a FIRPTA affidavit required
pursuant to the Treasury Department Regulations promulgated under Section
1445 of the Internal Revenue Code of 1986, as amended, in respect of the
Property. Seller understands that such certification will be retained by
Purchaser and will be made available to the Internal Revenue Service on
request;
(n) Each of Seller and Purchaser shall execute and deliver a closing
statement setting forth with specificity the adjustments made in accordance
with Article 8 hereof;
(o) Seller shall credit against the Cash Balance the security deposits
held by Seller as landlord under the Leases, together with accrued interest
thereon, if any. Notwithstanding the foregoing, any tenant security
deposits held in a form other than cash shall be transferred to Purchaser
by way of appropriate instruments of transfer or assignment;
(p) Purchaser shall deliver to Seller evidence reasonably satisfactory
to Seller of the due authorization, execution and delivery of the documents
and instruments to be executed by Purchaser at Closing in accordance with
the terms of this Agreement; and
(q) Seller shall furnish Purchaser with a rent roll as to the Leases
in the form of Exhibit H annexed hereto, certified to be true, complete and
correct in all material respects as of the Closing Date, provided that such
certification shall survive only for the Representation Survival Period.
ARTICLE 8. CLOSING ADJUSTMENTS
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The following are to be adjusted and prorated between Seller and Purchaser
as of 11:59 p.m. on the day preceding the Closing Date, based upon a 365 day
year, with Seller deemed to be the owner of the Property on the day preceding
the Closing Date and Purchaser deemed to be the owner of the Property on the
Closing Date.
8.1. Fixed Rents.
(a) Fixed rents (collectively, "FIXED RENTS") paid or payable by
tenants under the Leases in connection with their occupancy of the Premises
shall be adjusted and prorated on an if, as and when collected basis. At
Closing, there shall be an adjustment in Purchaser's favor in an amount
equal to Fixed Rent received from tenants who are current in the payment of
Fixed Rent, to the extent such Fixed Rents apply to periods subsequent to
Closing. Fixed Rents collected by Purchaser or Seller after the Closing
from any tenant who owes Fixed Rents for periods prior to the Closing shall
be applied (i) first, in payment of Fixed Rents owed by such tenant for the
month in which the Closing Date occurs, pro rated as of the Closing Date,
(ii) second, in payment of Fixed Rents owed by such tenant for periods
subsequent to the month in which the Closing Date occurs and (iii) third,
after Fixed Rents for all current periods have been paid in full, in
payment of Fixed Rents for periods prior to the month in which the Closing
Date occurs. Each such amount shall be adjusted and prorated as provided
above, and the party who receives such amount shall promptly pay over to
the other party the portion thereof to which it is so entitled.
(b) Purchaser shall bill tenants who owe Fixed Rents for periods prior
to the Closing on a monthly basis for a period of six (6) consecutive
months following the Closing Date (the "PURCHASER COLLECTION PERIOD") and
shall use commercially reasonable efforts to collect such past due Fixed
Rents;
provided, however, that Purchaser shall have no obligation to commence any
actions or proceedings to collect any such past due Fixed Rents.
Notwithstanding the foregoing, if Purchaser shall be unable during the
Purchaser Collection Period to collect such past due Fixed Rents, Seller
shall have the right, upon prior written notice to Purchaser, to pursue
tenants to collect such delinquencies (including, without limitation, the
prosecution of one or more lawsuits), but Seller shall not be entitled to
evict (by summary proceedings or otherwise) any such tenants.
(c) Any payment by a tenant in an amount less than the full amount of
Fixed Rents and Overage Rents then due and payable by such tenant shall be
applied first to Fixed Rents (in the order of priority as to time periods
as is set forth in Section 8.1(a) above) to the extent of all such Fixed
Rents then due and payable by such tenant, and second to Overage Rents, in
the order of priority as to time periods as is set forth in Section 8.2(d)
below.
8.2. Overage Rents.
(a) With respect to any Lease that provides for the payment of (i)
additional rents which are calculated as a percentage of the tenant's sales
or gross sales (net of certain agreed-upon deductions), (ii) so-called
common area maintenance or "cam" charges, (ii) so-called "escalation rent"
or additional rent based upon increases in real estate taxes or operating
expenses or labor costs or cost of living or porter's wages or otherwise
(such percentage rent, cam charges, escalation rent and additional rent
being collectively called "OVERAGE RENTS"), such Overage Rents shall be
adjusted and prorated on an if, as and when collected basis.
(b) As to any Overage Rents in respect of an accounting period that
shall have expired prior to the Closing but which shall be paid after the
Closing, Purchaser agrees that it will pay the entire amount over to Seller
upon receipt thereof. Purchaser agrees that it shall (i) promptly render
bills for any Overage Rents in respect of an accounting period that shall
have expired prior to the Closing but which shall be paid after the
Closing, (ii) bill tenants such Overage Rents attributable to an accounting
period that shall have expired prior to the Closing on a monthly basis
during the Purchaser Collection Period and (iii) use commercially
reasonable efforts to collect Overage Rents; provided, however, that
Purchaser shall have no obligation to commence any actions or proceedings
to collect any such Overage Rents. Notwithstanding the foregoing, if
Purchaser shall be unable to collect such Overage Rents during the
Purchaser Collection Period, Seller shall have the right, upon prior
written notice to Purchaser, to pursue tenants to collect such
delinquencies (including, without limitation, the prosecution of one or
more lawsuits), but Seller shall not be entitled to evict (by summary
proceedings or otherwise) any such tenants. Seller shall furnish to
Purchaser all information relating to the period prior to the Closing that
is reasonably necessary for the billing of Overage Rents; and Purchaser
will deliver to Seller, concurrently with the delivery to tenants, copies
of all statements relating to Overage Rents for a period prior to the
Closing. Purchaser shall bill tenants for Overage Rents for accounting
periods prior to the Closing in accordance with and on the basis of such
information furnished by Seller.
(c) Overage Rents in respect of the accounting period in which the
Closing Date occurs shall be apportioned as of the Closing Date. If, prior
to the Closing, Seller shall receive any installments of Overage Rents
attributable to Overage Rents for periods from and after the Closing, such
sum shall be apportioned at the Closing. If, after the Closing, Purchaser
shall receive any installments of Overage Rents attributable to Overage
Rents for periods prior to the Closing, such sum shall be paid by Purchaser
to Seller promptly after Purchaser receives payment thereof.
(d) Any payment by a tenant on account of Overage Rents (to the extent
not applied against Fixed Rents due and payable by such tenant in
accordance with Section 8.1(b) above) shall be applied to Overage Rents
then due and payable in the following order of priority: (i) first, in
payment of
Overage Rents for the accounting period in which the Closing Date occurs
and (ii) second, in payment of Overage Rents for the accounting period
preceding the accounting period in which the Closing Date occurs.
(e) To the extent that any portion of Overage Rents is required to be
paid monthly by tenants on account of estimated amounts for any calendar
year (or, if applicable, any lease year or tax year or any other applicable
accounting period), and at the end of such calendar year (or lease year,
tax year or other applicable accounting period, as the case may be), such
estimated amounts are to be recalculated based upon the actual expenses,
taxes and other relevant factors for that calendar (lease or tax) year or
other applicable accounting period, with the appropriate adjustments being
made with such tenants, then such portion of the Overage Rents shall be
prorated between Seller and Purchaser at the Closing based on such
estimated payments actually paid by tenants (i.e., with Seller entitled to
retain all monthly or other periodic installments of such amounts paid by
tenants with respect to periods prior to the calendar month or other
applicable installment period in which the Closing occurs, Seller to pay to
Purchaser at the Closing all monthly or other periodic installments of such
amounts theretofore received by Seller with respect to periods following
the calendar month or other applicable installment period in which the
Closing occurs and Seller and Purchaser to apportion as of the Closing Date
all monthly or other periodic installments of such amounts paid by tenants
with respect to the calendar month or other applicable installment period
in which the Closing occurs). Upon the final calculation and collection
from (or refund to) all tenants of the amounts in reconciliation of actual
Overage Rents for a period for which estimated amounts paid by such tenants
have been prorated, there shall be a re-proration between Seller and
Purchaser, such re-proration to be made on the basis of expenses or sales
incurred or made during the entire applicable accounting period, and
without regard to whether expenses or sales were incurred or made during
periods before or after Closing. If, with respect to any tenant, the
recalculated Overage Rents exceeds the estimated amount paid by such
tenant, upon collection from the tenant, (i) the entire excess shall be
paid by Purchaser to Seller, if the accounting period for which such
recalculation was made expired prior to the Closing and (ii) such excess
shall be apportioned between Seller and Purchaser as of the Closing Date
(on the basis described in the first sentence of Section 8.2(c) above), if
the Closing occurred during the accounting period for which such
recalculation was made, with Purchaser paying to Seller the portion of such
excess which Seller is so entitled to receive. If, with respect to any
tenant, the recalculated Overage Rents are less than the estimated amount
paid by such tenant, (1) the entire shortfall shall be paid by Seller to
Purchaser (or, at Seller's option, directly to the tenant in question), if
the accounting period for which such recalculation was made expired prior
to the Closing and (2) such shortfall shall be apportioned between Seller
and Purchaser as of the Closing Date (on the basis described in the first
sentence of Section 8.2(c) above), if the Closing occurred during the
accounting period for which such recalculation was made, with Seller paying
to Purchaser (or, at Seller's option, directly to the tenant in question)
the portion of such shortfall so allocable to Seller.
(f) Until such time as all amounts required to be paid to Seller by
Purchaser pursuant to Sections 8.1 and this Section 8.2 shall have been
paid in full, Purchaser shall furnish to Seller not less frequently than
quarterly a reasonably detailed accounting of such amounts payable by
Purchaser, which accounting shall be delivered to Seller on or prior to the
15th day following the last day of each calendar quarter from and after the
calendar quarter in which the Closing occurs. Seller shall have the right
from time to time following the Closing, on Business Days and upon
reasonable prior notice to Seller, to review Purchaser's rental records
with respect to the Property to ascertain the accuracy of such accountings.
8.3. Real Estate Taxes. Real estate taxes shall be adjusted and prorated on
the basis of the fiscal year for which assessed. If the Closing shall occur
before the tax rate or assessed valuation is fixed for the Premises, the
apportionment of real estate taxes for such Premises shall be upon the basis of
the tax rate for the preceding year applied to the most recently applicable
assessed valuation of such
Premises, subject to further and final adjustment when the tax rate and/or
assessed valuation for such Premises is fixed for the year in which the Closing
occurs. In the event that the Premises or any part thereof shall be or shall
have been affected by an assessment or assessments, whether or not the same
become payable in annual installments, Seller shall, at the Closing, be
responsible for any installments due prior to the Closing and Purchaser shall be
responsible for any installments due on or after the Closing.
8.4. Utility Charges. Seller shall use reasonable efforts to obtain
readings of meters measuring utility consumption at the Property (other than
utilities which are the responsibility of tenants under Leases) for all periods
through (and including) the date preceding the Closing Date. Seller shall pay,
and be responsible, for all bills rendered on the basis of such readings. If
such readings are not obtained for any metered utility, then, at the Closing,
apportionment shall be made on the basis of the most recent period for which
such readings are available. Upon the taking of subsequent actual readings,
there shall be a recalculation of the applicable utility charges, and Seller or
Purchaser, as the case may be, shall promptly remit to the other party hereto
any amounts to which such party shall be entitled by reason of such
recalculation. Unmetered water charges or sewer rents shall be apportioned on
the basis of the charges therefor for the same period during the previous
calendar year, but applying the current rate thereto. As to any utility charges
or sewer rents payable by tenants, Purchaser shall close title and accept the
delivery of the Deed subject to such unpaid charges and rents and any lien
resulting therefrom, without credit against the Purchase Price or any claim or
right of action against Seller.
8.5. Fuel. Fuel on hand, if any, based on an estimate provided by Seller's
fuel supplier, at Seller's cost valued at the price therefor charged by such
supplier including any applicable taxes.
8.6. Other Adjustments. The following items shall also be adjusted as of
11:59 P.M. on the date preceding the Closing Date: (i) charges and payments
under Service Contracts assigned to Purchaser; (ii) fees and payments, if any,
under Licenses and Permits assigned to Purchaser; (iii) revenues, if any,
arising out of telephone booths, vending machines, or other income-producing
agreements and (iv) maintenance supplies in unopened containers based on
Seller's actual cost therefor, including sales and/or use tax.
Any errors or omissions in computing adjustments at the Closing shall be
promptly corrected, provided that the party seeking to correct such error or
omission shall have notified the other party of such error or omission on or
prior to the date that is one (1) year following the Closing Date. The
provisions of this Article 8 shall survive Closing.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
-----------------------------------------
9.1. Basic Representations of Purchaser.
Purchaser, as of the date hereof, represents and warrants to Seller as
follows:
(a) Purchaser is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of Michigan.
(b) Purchaser has full power and authority to enter into and perform
this Agreement, the documents to be executed and delivered pursuant hereto,
and each and all of the transactions contemplated hereby and thereby in
accordance with the terms hereof and thereof.
(c) The individuals executing this Agreement on behalf of Purchaser
and the individuals executing each of the documents to be executed and
delivered in connection herewith on behalf of Purchaser have full power and
authority to do so. This Agreement and each of the documents and
instruments to be executed by Purchaser in connection herewith are, or will
be when executed and delivered, the legal valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with the terms
hereof and thereof. Purchaser's performance of its obligations under this
Agreement shall not contravene, or cause a default under, any agreement,
judgment, order, writ or decree under which Purchaser or any of its assets
is bound.
(d) Purchaser has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law relating to bankruptcy or
insolvency, nor has any such petition been filed against Purchaser.
Purchaser is not insolvent and the consummation of the transactions
contemplated by this Agreement shall not render Purchaser insolvent. No
general assignment of Purchaser's property has been made for the benefit of
creditors, and no receiver, master, liquidator or trustee has been
appointed for Purchaser or any of its property.
(e) There are no actions or proceedings pending or, to Purchaser's
actual knowledge, threatened, against Purchaser which could have a material
adverse affect on Purchaser's ability to perform its obligations hereunder.
9.2. Basic Representations of Seller.
Seller, as of the date hereof, represents and warrants to Purchaser as
follows:
(a) Seller is a limited liability company, duly organized and validly
existing and in good standing under the laws of the State of Delaware.
(b) Seller has full power and authority to enter into and perform this
Agreement and to enter into the documents to be executed and delivered
pursuant hereto, and each and all of the transactions contemplated hereby
and thereby in accordance with the terms hereof and thereof.
(c) The individuals executing this Agreement on behalf of Seller and
the individuals executing each of the documents to be executed and
delivered in connection herewith on behalf of Seller have full power and
authority to do so. This Agreement and each of the documents to be executed
and delivered by Seller in connection herewith are, or will be when
executed and delivered, the legal valid and binding obligations of Seller,
enforceable against Seller in accordance with the terms hereof and thereof.
Seller's performance of its obligations under this Agreement shall not
contravene, or cause a default under, any agreement, judgment, order, writ
or decree under which Seller or any of its assets is bound.
(d) Seller has not filed any petition seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any law relating to bankruptcy or
insolvency, nor has any such petition been filed against Seller. Seller is
not insolvent and the consummation of the transactions contemplated by this
Agreement shall not render Seller insolvent. No general assignment of
Seller's property has been made for the benefit of creditors, and no
receiver, master, liquidator or trustee has been appointed for Seller or
any of its property.
(e) There are no actions or proceedings pending or, to Seller's actual
knowledge, threatened, against Seller which could have a material adverse
affect on Seller's ability to perform its obligations hereunder.
9.3. Representations of Seller Regarding the Property.
Seller, as of the date hereof, represents and warrants to Purchaser as
follows:
(a) There are no leases, licenses or occupancy agreements affecting
the Premises, other than the Existing Leases. The information contained in
the rent roll annexed hereto as Exhibit H is true, complete and correct in
all material respects. Each of the Existing Leases is in full force and
effect; no written notice of a default on the part of a tenant under any of
the Existing Leases has been sent by Seller, other than a notice setting
forth a default which, as of the date hereof, has been cured; no written
notice of a default on the part of the landlord under the Existing Leases
has been received by Seller, other than a notice setting forth a default
which, as of the date hereof, has been cured; and, except as set forth in
Exhibit I annexed hereto, none of the tenants under the Existing Leases is
in arrears in the payment of Fixed Rents or monthly installments of Overage
Rents for a period in excess of thirty days.
(b) Subject to the provisions of Section 15.6 hereof, Seller has paid
(or will on or before Closing pay) all Leasing Costs which pertain to the
current terms of the Leases, other than Leasing Costs payable in connection
with (A) the renewal or extension of an Existing Lease or a New Lease, the
effective date of which shall not yet have occurred on the date hereof, (B)
the leasing of space pursuant to the exercise of a right of first refusal
or first offer or similar right contained in an Existing Lease or a New
Lease, the effective date of which shall not yet have occurred on the date
hereof and (C) the failure timely to exercise any termination right set
forth in an Existing Lease or a New Lease at any time after the date hereof
(any such transaction, a "Contingent Commission Event".)
(c) There are no service contracts, brokerage agreements, maintenance
agreements or other agreements affecting the Premises, other than (i) the
Existing Leases, (ii) the Existing Service Contracts and (iii) any service
contracts which are terminable upon not more than 30 days notice without
penalty or premium.
(d) There are no actions or proceedings pending or, to Seller's actual
knowledge, threatened, with respect to the Property, which are not covered
by insurance.
(e) There are no pending or, to Seller's knowledge, threatened,
eminent domain or condemnation proceedings with respect to the Property.
(f) The insurance coverages with respect to the Premises described in
Exhibit J annexed hereto are in full force and effect.
The representations of Seller contained in Section 9.3 (a) - (e) hereof
shall survive Closing for the Representation Survival Period.
ARTICLE 10. TITLE
-----------------
10.1. Acceptable Title. Seller shall convey, or cause to be conveyed, and
Purchaser shall accept, title to the Premises, as of the Closing Date, subject
to the Permitted Exceptions. The term "PERMITTED EXCEPTIONS" shall mean,
collectively, (i) the matters set forth in Exhibit K annexed hereto, (ii) Title
Exceptions that Title Insurer shall be willing to omit as exceptions to coverage
in any owner's or mortgagee's policy of title insurance obtained by or on behalf
of Purchaser and (iii) any exceptions and matters that are approved, waived or
deemed to have been approved or waived by Purchaser.
10.2. Inability to Convey Acceptable Title. On or before the date which is
ten (10) days after the Effective Date, Seller, at Seller's expense, shall
furnish Purchaser with a title commitment for the Premises, prepared by Title
Insurer (the "TITLE REPORT"). On or before the date which is twenty-five (25)
days after the Effective Date (TIME BEING OF THE ESSENCE), Purchaser may furnish
Seller with a written notice (the "TITLE OBJECTION NOTICE") of those Title
Exceptions noted in the Title Report which are not Permitted Exceptions and as
to which Purchaser objects. In addition, within five (5) days of Purchaser's
receipt of any continuation of the Title Report or any update of the Survey (as
defined in Exhibit K annexed hereto), Purchaser may furnish Seller with written
notice of Title Exceptions noted therein which are not Permitted Exceptions and
as to which Purchaser objects, provided such Title Exceptions were not noted in
the Title Report (or any prior continuation thereof) or the Survey (or any prior
update thereof) (any such notice shall also constitute a "TITLE OBJECTION
NOTICE"). Purchaser shall be deemed to have waived objection to Title Exceptions
set forth in the Title Report (or any continuation thereof) or any update of the
Survey to which timely objection is not made in a Title Objection Notice. For
purposes of this Agreement, the term "TITLE EXCEPTIONS" shall mean any lien,
encumbrance, security interest, charge, reservation, lease, tenancy, easement,
right-of-way, encroachment, restrictive covenant, condition or limitation
affecting the Property.
10.3. Seller's Rights. Seller shall have the right, in its sole discretion,
upon notice to Purchaser (the "TITLE RESPONSE NOTICE") given within ten (10)
days after Seller's receipt of any Title Objection Notice (TIME BEING OF THE
ESSENCE), to elect to either (i) take such action as Seller deems advisable to
discharge those Title Exceptions which are not Permitted Exceptions and are set
forth in the Title Objection Notice (the "TITLE DEFECTS") or (ii) subject to the
provisions of Section 10.4 hereof, terminate this Agreement, whereupon the
Deposit shall be refunded to Purchaser and thereafter neither party hereto shall
have any further obligation to the other party hereto, with the exception of
those obligations which expressly survive the termination of this Agreement. If
Seller fails timely to deliver the Title Response Notice, then Seller shall be
deemed to have elected to terminate this Agreement pursuant to clause (ii)
above. If Seller, in its Title Response Notice, elects to take action to remove,
remedy or comply with the Title Defects, Seller shall be entitled to one or more
adjournment(s) of the Closing for up to 30 days in the aggregate, to discharge
the Title Defects. If Seller is unable to remove, remedy or comply with such
Title Defects at the expiration of such adjournment(s), then this Agreement
shall be deemed to be terminated as of the last adjourned date of Closing. Upon
such termination, the Deposit shall be refunded to Purchaser and neither party
hereto shall have any further obligation to the other party, with the exception
of those obligations which expressly survive the termination of this Agreement.
Except as set forth in Section 10.5 hereof, nothing in this Agreement shall be
deemed to require Seller to take or bring any action or proceeding or any other
steps to remove any defect in or objection to title or to expend any moneys
therefor, nor shall Purchaser have any right of action against Seller, at law or
in equity, therefor.
10.4. Purchaser's Right to Accept Title. Purchaser may, upon written notice
to Seller at any time on or before the Closing Date (as the same may have been
adjourned by Seller in accordance with the provisions of Section 10.3 hereof),
elect to accept such title as Seller can convey, notwithstanding the existence
of any Title Defects. In such event, (i) this Agreement shall remain in force
and effect, (ii) the parties shall proceed to Closing and (iii) Purchaser shall
not be entitled to any abatement of the Purchase Price, any credit or allowance
of any kind or any claim or right of action against Seller for damages or
otherwise by reason of the Title Defects.
10.5. Seller's Obligation. Notwithstanding anything contained in this
Article 10 the contrary, Seller shall at or prior to Closing discharge (i) any
mortgage affecting the Property, (ii) any Title Defects which are knowingly and
intentionally created by Seller subsequent to the date hereof and (iii) any
Title Defects which may be discharged solely by the payment of a sum of money,
not to exceed $75,000 in the aggregate.
10.6. Title Affidavits, Etc.
(a) Seller shall execute and deliver to Title Insurer a title
affidavit that, when taken together with the Survey or any update thereof,
shall suffice to omit the standard exceptions contained in Title Insurer's
form of insuring agreement and any exception pertaining to the receipt of a
Pennsylvania Bulk Clearance Certificate. Seller shall further deliver to
Title Insurer evidence of the payment of franchise or unincorporated
business taxes, as applicable.
(b) If requested by Title Insurer, Purchaser shall deliver (i) one or
more reasonable and customary title affidavits executed by Purchaser (or an
officer thereof), certifying to factual matters concerning Purchaser or the
Premises which are within the knowledge of Purchaser (including, without
limitation, any reasonable and customary affidavit which may be required in
order to omit from title insurance coverage any exceptions for judgments,
bankruptcies or other returns against persons or entities, other than
Purchaser, whose names are the same as or similar to Purchaser's name) and
(ii) documents evidencing Purchaser's payment of franchise or
unincorporated business taxes, as applicable, or dissolution taxes.
10.7. Violations. Seller shall have no responsibility to cure, or cause to
be cured, any Violations , whether the same have been noted or issued as of the
date hereof or are first noted or issued after the date hereof, and Purchaser,
in all events, agrees to close title to the Premises subject thereto. As used
herein, the term "Violation(s)" shall mean any violation of any law or municipal
ordinance, order or requirement noted or issued against the Property by any
federal, state or municipal department having jurisdiction over the Property.
ARTICLE 11. CASUALTY AND CONDEMNATION
-------------------------------------
11.1. Casualty.
(a) For purposes of this Article 11, the following terms shall have
the meanings indicated:
"MAJOR CASUALTY" means a fire in or other casualty to the
Building which causes damage or injury to the Premises and results in
Restoration Costs in excess of an amount equal to five percent (5%) of
the Purchase Price.
"RESTORATION COSTS" means the cost to repair or restore (as
reasonably determined by an architect or engineer selected by Seller
and approved by Purchaser, which approval shall not be unreasonably
withheld, conditioned or delayed) the damage to the Building caused by
a fire or other casualty, exclusive of the cost of any such repair or
restoration for which Seller, as the landlord under any Lease, is not
responsible.
(b) If, between the date hereof and the Closing, there shall occur a
fire or other casualty affecting the Building which is not a Major
Casualty, then Purchaser shall have no right to terminate this Agreement
and shall purchase the Premises in its damaged condition without reduction
of or offset against the Purchase Price or any other claim against Seller.
Seller shall assign to Purchaser the right to receive any insurance
proceeds payable to Seller as a result of such fire or other casualty;
provided, however, that Seller shall be entitled to retain (to the extent
theretofore paid to Seller), and shall not be obligated to assign the right
to receive (to the extent not theretofore paid to Seller), an amount of
such insurance proceeds equal to Seller's reasonable expenses, if any,
incurred in collecting such proceeds and repairing the damage caused by
fire or other casualty.
(c) If, between the date hereof and the Closing, there shall occur a
fire or other casualty affecting the Building which is a Major Casualty,
then Purchaser shall have the option, to be exercised by notice given to
Seller within fifteen (15) days after the date of such casualty, to
terminate this Agreement. If Purchaser shall so elect to terminate this
Agreement, the Deposit shall be refunded to Purchaser, whereupon neither
party hereto shall have any further obligation to the other hereunder),
except for those obligations which expressly survive the termination of
this Agreement. If Purchaser shall not elect to terminate this Agreement as
provided in this subclause (c), then this Agreement shall remain in full
force and effect with respect and the provisions of Section 11.1(b) above
shall apply to such damage and any insurance proceeds payable in connection
therewith.
(d) In no event shall Seller have any obligation to repair any damage
or destruction to the Building, but Seller shall have the right to do so
and utilize insurance proceeds for such purpose.
(e) Seller and Purchaser expressly intend that the provisions of this
Section 11.1 shall govern in the event of a fire or other casualty.
11.2. Condemnation.
(a) If, between the date hereof and the Closing, any condemnation or
eminent domain proceedings are initiated which would result in a material
taking, then either Seller or Purchaser may elect to terminate this
Agreement by giving written notice of its election to the other party
within fifteen (15) days after receiving notice of such prospective taking.
If Seller or Purchaser shall so elect to terminate this Agreement, the
Deposit shall be refunded to Purchaser, whereupon neither party hereto
shall have any further obligation to the other hereunder, except for those
obligations which expressly survive the termination of this Agreement. If
neither party so elects to terminate this Agreement, then the parties
hereto shall proceed to the Closing without reduction of or offset against
the Purchase Price and Purchaser shall have no other claim against Seller.
In such event, all of Seller's right, title and interest in and to any
condemnation proceeds paid or payable in connection therewith shall be
assigned to Purchaser. In no event shall Seller have any obligation to
repair or restore the Premises or any portion thereof by reason of any
condemnation.
(b) If, between the date hereof and the Closing, any condemnation or
eminent domain proceedings are initiated which would not result in a
material taking, then neither Seller
nor Purchaser may terminate this Agreement and the parties shall proceed to
the Closing without reduction of or offset against the Purchase Price and
Purchaser shall have no other claim against Seller. In such event, all of
Seller's right, title and interest in and to any condemnation proceeds paid
or payable in connection therewith shall be assigned to Purchaser. In no
event shall Seller have any obligation to repair or restore the Premises or
any portion thereof by reason of any condemnation.
(c) For purposes of this Section 11.2, a taking shall be deemed to be
material if it would result in the taking of in excess of five percent (5%)
of the rentable square footage of the Building and/or five percent (5%) of
the parking spaces located on the Premises.
ARTICLE 12. DEFAULT AND REMEDIES
--------------------------------
12.1. Default By Purchaser. If Purchaser (i) defaults in its Closing
obligations (i.e., defaults in the payment of the Purchase Price or otherwise in
the performance of any of its obligations hereunder which are to be performed
on, or as of, the Closing Date), or (ii) otherwise materially defaults hereunder
and such other material default is not cured within ten (10) days after notice
thereof from Seller to Purchaser, then, and in any of such events, Seller, as
its sole remedy therefor, may terminate this Agreement by written notice to
Purchaser, whereupon the Deposit shall be paid to Seller as liquidated damages
on account of such default, and, thereafter, neither party shall have any
further rights or obligations hereunder other than those which expressly survive
the termination of this Agreement. Seller and Purchaser agree that the aforesaid
liquidated damages are a fair and reasonable amount to be retained by Seller as
agreed and liquidated damages in light of Seller's removal of the Premises from
the market and the costs incurred by Seller and shall not constitute a penalty
or a forfeiture.
12.2. Default By Seller. If Seller (i) defaults in its Closing obligations
(i.e., defaults in the performance of any of its obligations hereunder which are
to be performed on, or as of, the Closing Date), or (ii) otherwise materially
defaults hereunder and such material default is not cured within ten (10) days
after notice thereof from Purchaser to Seller, then, and in either such event,
Purchaser may, as its sole remedy therefor, either (x) pursue an action for
specific performance of this Agreement by Seller hereunder, without abatement,
credit against or reduction of the Purchase Price or (y) terminate this
Agreement by written notice to Seller and Escrowee, whereupon the Deposit shall
be refunded to Purchaser; it being understood and agreed that in no event shall
Purchaser be entitled to money damages. If Purchaser shall elect to so terminate
this Agreement, then, upon such election, neither party shall have any further
rights or obligations hereunder other than those which expressly survive the
termination of this Agreement. Except as expressly provided in this Section
12.2, Purchaser waives any other right or remedy, at law or in equity, which
Purchaser may have or be entitled to as a result of any default by Seller.
12.3. Breach of Representation. If Purchaser proceeds to Closing with
knowledge of any inaccuracy in a representation of Seller, Purchaser shall be
deemed to have waived objection to such inaccuracy and shall have no right of
action or claim against Seller for damages or otherwise by reason thereof. If,
after the Closing, Purchaser shall first learn of a material inaccuracy in any
representation of Seller (made as of the Closing Date), which representation
expressly survives Closing, then Purchaser shall have a claim for damages on
account thereof, provided that (i) any claim not brought within the
Representation Survival Period shall be deemed waived, (ii) Purchaser hereby
waives the right to collect or seek to collect consequential or punitive damages
and (iii) Purchaser reasonably can demonstrate that the damages sustained by
Purchaser as a result of such inaccuracy exceed $15,000.
ARTICLE 13. BROKER
------------------
13.1. Broker. Seller and Purchaser each represent and warrant to the other
that each has had no conversations or dealings with any broker or finder in
connection with the transactions contemplated hereby, other than Broker.
Purchaser and Seller (each, an "INDEMNIFYING PARTY") shall indemnify, defend and
hold the other harmless from and against any and all loss, cost or expense
(including, without limitation, reasonable attorneys' fees) arising by reason of
a claim for a commission or other compensation made by a broker or finder (other
than Broker) claiming to have dealt with the Indemnifying Party. Seller shall
pay any commission due to Broker pursuant to a separate written agreement. The
provisions of this Article 13 shall survive Closing or any termination of this
Agreement.
ARTICLE 14. ASSIGNMENT
----------------------
14.1. No Assignment by Purchaser. Neither this Agreement nor any of the
rights of Purchaser hereunder (nor the benefits of such rights) may be assigned,
transferred or encumbered without Seller's prior written consent (which consent
may be withheld in Seller's sole and absolute discretion) and any purported
assignment, transfer or encumbrance without Seller's prior written consent shall
be void. Purchaser expressly covenants and agrees that (a) if Purchaser is a
corporation, a sale or transfer of more than fifty (50%) percent (at any one
time or, in the aggregate from time to time) of the shares of any class of the
issued and outstanding stock of Purchaser, its successors or assigns, or the
issuance of additional shares of any class of its stock to the extent of more
than fifty (50%) percent (at any one time or, in the aggregate from time to
time) of the number of shares of said class of stock issued and outstanding on
the date hereof, (b) if Purchaser is a partnership, joint venture or limited
liability company, a sale or transfer of more than fifty (50%) percent (at any
one time or, in the aggregate from time to time) of the partnership, joint
venture, membership or other unincorporated association interests of Purchaser,
its successors or assigns, or the issuance of additional partnership, joint
venture or member interests of any class to the extent of more than fifty (50%)
percent (at any one time or, in the aggregate from time to time) of the amount
of partnership, joint venture or member interests issued on the date hereof
shall, in any such case, constitute an assignment of this Agreement. Unless, in
each instance, the prior written consent of Seller has been obtained, any such
assignment shall constitute a material default under this Agreement and shall
entitle Seller to exercise all rights and remedies under this Agreement, at law
or equity, in the case of such a Default.
14.2. Permitted Assignment to Affiliate. Notwithstanding the provisions of
Section 14.1 above to the contrary, the named Purchaser in this Agreement shall
have the one-time right to assign its rights and obligations under this
Agreement to an Affiliate of such named Purchaser
effective on or prior to the Closing, provided that on or prior to the effective
date of such assignment, Purchaser delivers to Seller evidence of the ownership
of Purchaser and the proposed assignee so as to permit Seller to verify that
such proposed assignee is an Affiliate of Purchaser and (c) on or prior to the
effective date of such assignment, the Purchaser shall deliver to Seller a
written assumption, in form reasonably satisfactory to Seller and duly executed
and acknowledged by the assignee, in which the assignee agrees to assume all of
Purchaser's covenants, agreements and obligations under this Agreement. As of
the date of the assignment of this Agreement to an Affiliate in accordance with
the foregoing provisions of this Section 14.2, the representations of Purchaser
named herein set forth in Section 9.1 hereof shall be remade as to the
Affiliate, as Purchaser, except that the representations and warranties set
forth in Section 9.1(a) hereof shall be modified accordingly. Purchaser named
herein shall remain fully liable for all of Purchaser's covenants, agreements
and obligations under this Agreement notwithstanding any such permitted
assignment pursuant to this Section 14.2. Upon any assignment of this Agreement
in accordance with the provisions of this Article 14, Purchaser shall promptly
pay to Seller any consideration paid or payable to Purchaser by reason of the
assignment.
ARTICLE 15. COVENANTS
---------------------
15.1. Operation of Premises. Between the date hereof and the Closing
Date, Seller shall continue to maintain the Premises in the ordinary course and
substantially in accordance with the practices and procedures customarily
followed by Seller in the maintenance of the Premises prior to the date hereof;
provided, however, that Seller shall have no obligation to make any repairs or
expenditures that are capital in nature.
15.2. Insurance. Between the date hereof and the Closing Date, Seller shall
either (a) maintain in full force and effect the fire and other casualty
insurance coverages described in Exhibit J annexed hereto or (b) replace such
insurance policies with other policies providing coverage equivalent thereto.
15.3. New Leases. Between the date hereof and the Closing Date, Seller
shall not enter into any new lease or license with respect to the Premises
without Purchaser's prior written consent, which consent shall at all times
prior to the Due Diligence Expiration Date not be unreasonably withheld or
delayed.
15.4. Modification of Leases. Between the date hereof and the Closing Date,
Seller shall not modify or amend any of the Existing Leases or any of the New
Leases without Purchaser's prior written consent in each instance, which consent
shall not be unreasonably withheld; provided, however, Seller shall have the
right, without Purchaser's consent, to enter into any modification or amendment
of an Existing Lease or a New Lease if the same is required pursuant to the
terms of the Existing Lease or the New Lease, as the case may be, or if the same
is entered into to effectuate or memorialize the exercise of any right or option
contained in the Existing Lease or the New Lease, as the case may be. If
required, Purchaser's consent shall be deemed granted if not denied by notice
(stating the grounds for denial with reasonable specificity) given to Seller
within five (5) Business Days after request for such consent by Seller.
15.5. Termination of Leases. Between the date hereof and the Closing Date,
Seller shall not cancel, accept the surrender of, or terminate any of the
Existing Leases or New Leases without Purchaser's prior written consent in each
instance, which consent shall not be unreasonably withheld; provided, however,
Seller shall have the right, without Purchaser's consent, to cancel, accept the
surrender of, or terminate an Existing Lease or a New Lease (i) if such
cancellation, surrender or termination is predicated upon a material default of
the tenant thereunder or (ii) if such cancellation, surrender or termination is
made by the tenant pursuant to the terms of the Existing Lease or the New Lease,
as the case may be. If required, Purchaser's consent shall be deemed granted if
not denied by notice (stating the grounds for denial with reasonable
specificity) given to Seller within five (5) Business Days after request for
such consent by Seller.
15.6. Leasing Costs.
(a) If the commencement date or effective date of any Lease Cost
Transaction (hereinafter defined) shall occur on or after the Closing Date,
Purchaser shall pay and be solely responsible for all Leasing Costs
incurred in connection therewith. If the commencement date or effective
date of any Lease Cost Transaction shall occur subsequent to the date
hereof but prior to the Closing Date, Seller shall pay and be responsible
for Seller's Proportionate Share (hereinafter defined) of Leasing Costs
incurred in connection therewith and Purchaser shall pay and be responsible
for the balance of such Leasing Costs.
(b) For purposes of this Section 15.6:
(i) The term "LEASE COST TRANSACTION" shall mean (A) any New
Lease or any modification or amendment of a New Lease, (B) any
modification or amendment of an Existing Lease, (C) any renewal
option, extension option or expansion option which is exercised
between the date hereof and the Closing Date pursuant to the terms of
an Existing Lease or a New Lease or (D) any space leased pursuant to a
right of first refusal or first offer or similar right which is
exercised between the date hereof and the Closing Date; and
(ii) The term "SELLER'S PROPORTIONATE SHARE " shall mean a
fraction, the numerator of which shall be the number of days from the
effective date or commencement date of a Lease Cost Transaction to
(but not including) the Closing Date and the denominator of which
shall be the number of days from the commencement date or effective
date of such Lease Cost Transaction to the stated expiration date of
the Lease.
15.7. Service Contracts.
(a) Between the date hereof and the Closing Date, Seller shall not
enter into any New Service Contracts or modify, renew or extend the term of
any of the Existing Service Contracts or New Service Contracts without
Purchaser's prior written consent in each instance, which consent shall not
be unreasonably withheld, conditioned or delayed; provided, however, Seller
shall have the right, without Purchaser's consent, to enter into any New
Service Contracts and modify, renew or extend the term of any Existing
Service Contracts or New Service Contracts (i) if the same is cancelable
upon no more than thirty (30) days' notice without payment by Purchaser of
a cancellation fee or (ii) if the same is required pursuant to the terms of
any of the Existing Service Contracts or New Service Contracts or if the
same is entered into to effectuate or memorialize the exercise of any right
or option on the part of the other party (i.e., the contractor) contained
in any of the Existing Service Contracts or New Service Contracts. If
required, Purchaser's consent shall be deemed granted if not denied by
notice (stating the grounds for denial with reasonable specificity) given
to Seller within five (5) Business Days after request for such consent by
Seller. Notwithstanding anything contained in this Section 15.7 to the
contrary, Seller shall have the right, without Purchaser's consent, to
terminate any one or more of the Existing Service Contracts and the New
Service Contracts at any time on or prior to the Closing Date.
(b) At the Closing, Purchaser shall, in the manner prescribed in
Section 7.1(i) hereof and pursuant to an instrument in the form of Exhibit
G annexed hereto, take an assignment of and assume the assignable Service
Contracts. Notwithstanding the foregoing, Purchaser may on or before the
date which is fifteen days after the Effective Date (TIME BEING OF THE
ESSENCE), furnish Seller with notice of those Service Contracts that it
does not wish to assume, in which event Seller shall at Closing furnish
Purchaser with evidence of the termination thereof, provided that the same
shall be terminable by Seller upon not more than thirty days notice and
without premium or penalty. Notwithstanding the foregoing, but subject to
the provisions of Section 15.6 hereof, Purchaser shall at Closing take an
assignment of and assume (i) each tenant brokerage agreement set forth in
Exhibit C annexed hereto and any other tenant brokerage agreement to which
Purchaser shall have consented in accordance with the terms hereof and (ii)
the obligations of Seller with respect to post-termination leasing
commissions payable in accordance with Exhibit B, Section 9 of the Leasing
Agency Agreement.
15.8. Tenant Estoppel Certificates. Subsequent to the Due Diligence
Expiration Date, Seller shall use commercially reasonable efforts to cause each
tenant under an Existing Lease to execute and deliver to Purchaser a Tenant
Estoppel Certificate, provided that Seller shall not be required to pay any sum
of money or commence any action or proceeding to obtain a Tenant Estoppel
Certificate.
15.9. Subordination, Attornment and Non-Disturbance Agreements. Subsequent
to the Due Diligence Expiration Date, Purchaser may request that tenants under
Leases execute, acknowledge and deliver subordination, non-disturbance and
attornment agreements (each, a "SUBORDINATION AGREEMENT") with any lender which
may provide financing to Purchaser to be secured by a first mortgage lien on the
Property, provided that the effectiveness of each subordination agreement shall
be expressly conditioned upon the occurrence of Closing. Nothing contained in
this Section 15.9 shall be construed to condition any of Purchaser's obligations
hereunder upon Purchaser's receipt of (i) a subordination agreement from any
tenant or (ii) financing in connection with its acquisition of the Property.
ARTICLE 16. MISCELLANEOUS
-------------------------
16.1. Notices. (a) All notices, demands, requests and other communications
required hereunder shall be in writing and shall be deemed to have been given:
(i) upon delivery, if personally delivered; (ii) three (3) days after deposit in
the United States Mail when delivered,
postage prepaid, by certified or registered mail; (iii) one (1) Business Day
after deposit with a nationally recognized overnight delivery service marked for
delivery on the next Business Day; or (iv) upon receipt when transmitted by
telecopy, provided that notice is also sent by one of the foregoing three
methods, in each case addressed to the party for whom it is intended at its
address hereinafter set forth:
If to Seller:
Wellsford Capital Properties, LLC
c/o Wellsford Real Properties, Inc.
535 Madison Avenue
26th Floor
New York, NY 10022
Attention: William H. Darrow
Telecopy No: (212) 421-7244
with a copy to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Dennis M. Sughrue, Esq.
Telecopy No. (212) 541-4630
If to Purchaser:
Windswept Development, LLC
31000 Northwestern Highway, Suite 220
Farmington Hills, Michigan 48334
Attention: Adam M. Lutz
Telecopy No. (248) 539-8833
with a copy to:
Jaffe Raitt
One Woodward Avenue, Suite 2400
Detroit, Michigan 46226
Attention: Brian Raznick, Esq.
Telecopy No. (313) 961-8366
If to First Escrowee:
Metropolitan Title Agency
39400 Woodward Avenue
Suite 135
Bloomfield Hills, Michigan 48304
Attention: Scott Schmunk
If to Second Escrowee:
Commonwealth Land Title Insurance Company
655 Third Avenue
11th Floor
New York, New York 10012
Attention: Doug Forsyth
Telecopy No. (212) 856-9308
(b) Any party may designate a change of address by written notice to
the others given in accordance with the provisions of this Section 16.1.
(c) The attorney for any party may send notices on that party's
behalf.
16.2. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania.
16.3. Successors. All of the provisions of this Agreement and of any of the
documents and instruments executed in connection herewith shall apply to and be
binding upon, and inure to the benefit of Seller and Purchaser, their successors
and their permitted assigns.
16.4. No Third Party Beneficiary. This Agreement and each of the provisions
hereof are solely for the benefit of Purchaser and Seller and their permitted
assigns. No provisions of this Agreement or of any of the documents and
instruments executed in connection herewith shall be construed as creating in
any person or entity other than Purchaser and Seller and their permitted assigns
any rights of any nature whatsoever.
16.5. No Personal Liability. Purchaser shall look only to Seller's estate
and interest in the Property for the collection of a judgement (or other
judicial process) requiring the payment of money by Seller in the event that
Purchaser is expressly entitled to a damage claim against Seller pursuant to the
terms of this Agreement, and no other property or assets of Seller or its
partners, members, officers, managers, shareholders or principals, disclosed or
undisclosed, shall be subject to levy, execution, attachment or other
enforcement procedure for the satisfaction of any such damage claim against
Seller under or with respect to this Agreement. The foregoing provisions of this
Section are not intended to, and shall not, limit any express right that
Purchaser might otherwise have to obtain equitable relief (including the remedy
of specific performance where applicable and appropriate) against Seller. The
terms and provisions of this subsection shall survive the Closing or the earlier
termination of this Agreement.
16.6. Entire Agreement. This Agreement, together with the documents and
instruments executed and delivered in connection herewith, set forth the entire
agreement between Purchaser and Seller relating to the transactions contemplated
hereby and all other prior or contemporaneous agreements, understandings,
representations or statements, oral or written, relating directly to the
Property are superseded hereby.
16.7. Severability. If any provision in this Agreement is found by a court
of competent jurisdiction to be in violation of any applicable law, and if such
court should declare such provision of this Agreement to be unlawful, void,
illegal or unenforceable in any respect, the
remainder of this Agreement shall be construed as if such unlawful, void,
illegal or unenforceable provision were not contained therein, and the rights,
obligations and interests of the parties hereto under the remainder of this
Agreement shall continue in full force and effect undisturbed and unmodified in
any way.
16.8. Modification. This Agreement and the terms hereof may not be changed,
waived, modified, supplemented, canceled, discharged or terminated orally, but
only by an instrument or instruments in writing executed and delivered by Seller
and Purchaser.
16.9. Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES, IRREVOCABLY AND
UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS OR CERTIFICATES
EXECUTED IN CONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS
OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.
16.10. Venue. Purchaser and Seller each hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of this Agreement or the transactions
contemplated hereby brought in any federal or state court sitting in the
Commonwealth of Pennsylvania and hereby further irrevocably waives and claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Seller and Purchaser further hereby expressly
submits to the jurisdiction of all federal and state courts sitting in the
Commonwealth of Pennsylvania.
16.11. No Recording. Neither this Agreement nor any memorandum hereof shall
be recorded. Each party hereby agrees to indemnify and hold harmless the others
for all liabilities, losses, damages, liens, suits, claims, costs and expenses
(including reasonable attorneys' fees) incurred by the others by reason of a
breach of the foregoing covenant.
16.12. Captions. The captions and table of contents in this Agreement are
inserted for convenience of reference only and in no way define, describe or
limit the scope or intent of this Agreement or any of the provisions hereof.
16.13. Counterparts; Effectiveness of Agreement. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original but all of which together will constitute one instrument. This
Agreement shall not be effective unless and until the same has been executed and
delivered by all parties hereto whether in one or more counterparts.
16.14. Merger. The delivery of the Deed to Purchaser and the closing of
title to the Property shall be deemed to constitute full performance and
discharge by Seller of every agreement and obligation on the part of Seller to
be performed hereunder, and no agreement, promise, representation or warranty,
express or implied, on the part of Seller shall survive Closing unless expressly
set forth to the contrary herein.
[Rest of Page Left Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Seller:
------
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, its sole member
By: /s/ James J. Burns
----------------------
Name: James J. Burns
Title: Chief Accounting Officer
Purchaser:
---------
WINDSWEPT DEVELOPMENT, LLC
By: /s/ Adam Lutz
-----------------
Name: Adam Lutz
Title: Managing Member
Agreed as to Section 3.2 only:
First Escrowee:
- --------------
METROPOLITAN TITLE AGENCY:
By: /s/ Scott A. Schmunk
------------------------
Name: Scott A. Schmunk
Title: Legal Counsel
Second Escrowee:
- ---------------
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: /s/Douglas H. Forsyth
-------------------------
Name: Douglas H. Forsyth
Title: A. Vice President
Exhibit A
(the Land)
PREMISES "A"
County Parcel No. 1-8-1 and 51-5-59
ALL THAT CERTAIN tract or parcel of land Situate in the Township of East
Bradford and Borough of West Chester, County of Chester, Commonwealth of
Pennsylvania, being described according to a boundary Survey and Plan, entitled
Boundary Survey Plan, prepared for Kode Development, dated June 10, 1988,
prepared by Alpha Engineering Associates, Inc., Feasterville, Pennsylvania,
being more particularly described as follows, to wit:
BEGINNING at a found iron pin, for a corner, on the Southerly Right-of-Way
of Downington-West Chester Pike (L.R. 137) 60 feet wide, and being located on
the dividing line between East Bradford Township and the Borough of West
Chester, thence extending in a Northeasterly direction, through the bed of
Downingtown-West Chester Pike (L.R. 137) 60 feet wide, North 79 degrees 9
minutes 30 seconds East, a distance of 33.95 feet to a point for a corner, being
in the centerline of the aforementioned Downingtown-West Chester Pike (L.R. 137)
60 feet wide; thence extending in a Southeasterly direction along the centerline
of Downingtown-West Chester Pike (L.R. 137) 60 feet wide South 47 degrees 23
minutes 50 seconds East a distance of 481.34 feet to a found spike, for a corner
in the centerline of the aforementioned Downingtown-West Chester Pike (L.R. 137)
60 feet wide; thence extending still in a Southeasterly direction, passing
through the Southerly bed of Downingtown-West Chester Pike (L.R. 137) 60 feet
wide, South 20 degrees 57 minutes 17 seconds East a distance of 303.42 feet
crossing through the bed of Strasburg Road (L.R. 273) 50 feet wide, to a found
spike, for a corner, being on the centerline of the aforementioned Strasburg
Road (L.R. 273); thence extending, in a Northwesterly direction, along the
centerline of Strasburg Road (L.R. 273) 50 feet wide passing over the dividing
line between the Borough of West Chester and the Township of East Bradford,
North 82 degrees 6 minutes 39 seconds West a distance of 446.89 feet to a point
for a corner, being a common corner of the Southeasterly lands of Parcel "A", on
the centerline of the aforementioned Strasburg Road (L.R. 273); thence extending
in a Northwesterly direction passing over the bed of Strasburg Road (L.R. 273);
50 feet along the Easterly line of lands of Parcel "A", North 24 degrees 54
minutes 10 seconds West a distance of 559.80 feet to a found iron pin, for a
corner, being a common corner to Parcel "A"; thence extending, in a
Northeasterly direction, along the Southerly line of lands of Parcel "A", North
79 degrees 9 minutes 30 seconds East a distance of 177.25 feet to a found iron
pin, for a corner, being a common corner to the lands of Parcel "A" and being
the first mentioned point and place of beginning.
(Continued)
PREMISES "B"
County Parcel No.: 51-5-58.1
ALL THAT CERTAIN tract or piece of ground, Situate in the Township of East
Bradford, County of Chester, Commonwealth of Pennsylvania, and described
according to a Topographical Plan and Survey prepared for Arnko Builders, Inc.,
by Akpha Engineering Associates, Inc., dated July 27, 1967 as follows, to wit:
BEGINNING at a spike on the center of Strasburg Road (Route No. 162) (50
feet wid) said spike being at the distance of 195.87 feet measured along the
center line of Strasburg Road North 82 degrees 33 minutes 30 seconds West from
its point of intersection with the extension of the center line of North
Bradford Avenue (50 feet wide); thence extending from said point of beginning
along the center line of Strasburg Road North 82 degrees 31 minutes 30 seconds
West, 864.40 feet to a spike, a corner of lands now or late of United Realty and
Construction Company; thence extending along the last mentioned lands the 2
following courses and distances; (1) North 12 degrees 14 minutes 20 seconds West
crossing an iron pin on the Northeasterly side of Strasburg at the distance of
22.81 feet the total distance of 1082.24 feet to a stone and (2) North 76
degrees 53 minutes East crossing an iron pin on the Southwesterly side of
Downingtown-West Chester Pike (Route No. 322) (60 feet wide) 172.26 feet to a
point on the title line in the bed of Downingtown-West Chester Pike; thence
extending along the title line through the bed of Downingtown-West Chester Pike;
the 3 following courses and distances; (1) South 54 degrees 40 minutes 10
seconds East, 897.24 feet to a point; (2) South 47 degrees 41 minutes 20 seconds
East, 132.00 feet to a point, said point being on the Borough-Township Line
dividing the Township of East Bradford and the Borough of West Chester and (3)
South 24 degrees 56 minutes 20 seconds East along the Borough-Township Line
66.00 feet to an iron pin, a corner of lands now or late of Carl Chyrla; thence
extending along the last mentioned lands of 2 following courses and distances;
(1) South 79 degrees 09 minutes 30 seconds West crossing the Southwesterly side
of Downingtown-West Chester Pike, 177.54 feet to an iron pin and (2) South 24
degrees 54 minutes 10 seconds East, crossing an iron pin on the Northeasterly
side of Strasburg Road, 359.80 feet to the first mentioned spike; the point and
place of beginning (the distance between the last mentioned iron pin and the
last mentioned iron spike being 29.59 feet)
Exhibit B
(Existing Leases)
1. Shopping Center Lease, dated as of April 8, 1991, by and between East
Bradford Associates, L.P., as landlord, and G and J Corp., as tenant, as amended
pursuant to that certain Lease Amendment, dated as of (undated), 1996, by and
between landlord and tenant, and as further amended pursuant to that certain
Additional Space and Extension Agreement, dated October 20, 1997, by and between
Value Property Trust, as successor in interest to landlord, and tenant.
2. Shopping Center Lease, dated as of April 22, 1991, by and between East
Bradford Associates, L.P., as landlord, and Brandywine Floral Design, Inc., as
tenant, as amended pursuant to that certain Amendment and Extension to Lease,
dated as of May 17, 1996, by and between Value Property Trust, as successor in
interest to landlord, and tenant.
3. Shopping Center Lease, dated as of January 25, 1991, by and between East
Bradford Associates, L.P., as landlord, and Concord Pizza Inc., as tenant, as
amended by Lease Amendment, dated July 13, 1995, by and between East Bradford
Associates, L.P., as landlord, and Concord Pizza, Inc., as tenant, and as
further amended by Lease Renewal Agreement, dated as of January 1, 2000, by and
between Wellsford Capital Properties, L.L.C., as successor in interest to
landlord, and Familia, Inc., as successor in interest to tenant.
4. Lease, dated as of June 23, 1989, by and between East Bradford Associates, as
landlord, and East Bradford Plaza CVS, Inc., as tenant.
5. Shopping Center Lease, dated as of February 1, 1996, by and between Value
Property Trust, as landlord, and Spain's Inc., as tenant.
6. Shopping Center Lease, dated as of December 22, 1992, by and between East
Bradford Associates, L.P., as landlord, and Michael Casella and Joseph Kelley,
as tenant.
7. Build and Lease Agreement, dated as of June 21, 1989, by and between East
Bradford Associates, L.P., as landlord, and Fleming Companies, Inc., as tenant,
as amended pursuant to that certain Amendment to Build and Lease Agreement,
dated as of April 23, 1990, by and between landlord and tenant, and as further
amended pursuant to that certain Second Amendment to Lease, dated as of June 9,
1999, by and between Wellsford Capital Properties, L.L.C., as successor in
interest to landlord, and tenant.
8. Shopping Center Lease, dated as of July 24, 1996, by and between Value
Property Trust, as landlord, and Franklin Equipment Inc., as tenant, as amended
pursuant to that certain Lease Agreement, dated as of December 10, 1998, by and
between Wellsford Capital and tenant.
9. Shopping Center Lease, dated as of June 16, 1995, by and between East
Bradford Associates, L.P., as landlord, and Tasra, Inc. d/b/a Mr. Wings, as
tenant, as amended pursuant to that certain Lease Renewal Agreement, dated as of
January 1, 2000, by and between Wellsford Capital Properties, L.L.C., as
successor in interest to landlord, and tenant.
10. Shopping Center Lease, undated, by and between Kode Development Associates,
as landlord, and James DiSante t/a Orth Brothers Cleaners, as tenant.
11. Shopping Center Lease, dated as of October 31, 1996, by and between Value
Property Trusts, as landlord, and Ostrow & Turner Physical Therapy Associates,
P.C., as tenant.
12. Shopping Center Lease, dated as of October 11, 1991, by and between East
Bradford Associates, L.P., as landlord, and Vincent Giardina t/a Postman
Plus-West Chester, as tenant, as amended pursuant to that certain Lease
Agreement, dated as of November 1, 1999, by and between Wellsford Capital
Properties, L.L.C., as landlord, and Postman West Chester, Inc., as tenant.
13. Lease, dated as of June 30, 1992, by and between East Bradford Associates,
L.P., as landlord, and The Rag Shop/Hampden, Inc., as tenant, as amended
pursuant to that certain First Amendment to Lease, dated as of June 30, 1997, by
and between value Property Trust, as successor in interest to landlord, and
tenant.
14. Lease, dated as of July 1, 2000, by and between Wellsford Capital
Properties, L.L.C., as landlord, and West Chester China Buffet Corp., as tenant.
15. Lease Agreement, dated as of April 17, 2000, by and between Wellsford
Capital Properties, L.L.C., as landlord, and Terpichore, Inc. d/b/a Shall We
Dance, as tenant.
16. Indenture of Lease, dated as of March 3, 1993, by and between East Bradford
Associates, L.P., as landlord, and the Commonwealth of Pennsylvania, as tenant,
as assigned pursuant to that certain Assignment of Lease and Novation, by and
among Value Property Trust, Wellsford Capital Properties, LLC and the
Commonwealth of Pennsylvania, whereby Value Property Trust, as landlord,
assigned all of its interest under the lease to Wellsford Capital Properties,
LLC.
17. Lease Agreement, dated as of September 1, 2000, by and between Wellsford
Capital Properties, L.L.C., as landlord, and Alexander's For Men, Inc., as
tenant.
Exhibit D
(Form of Tenant Estoppel Certificate)
TENANT ESTOPPEL CERTIFICATE
Landlord: Wellsford Capital Properties, L.L.C.
Tenant:
Original Lease Date: .
The undersigned Tenant under the above-referenced Lease (the "LEASE") hereby
ratifies and certifies to Windswept Development, LLC or its affiliate
("PURCHASER"), as the prospective purchaser of the real property commonly known
as Bradford Plaza, 710 Downington Pike, West Chester, Pennsylvania (the
"PROPERTY"), of which the premises demised under the Lease is a part (the
"PREMISES"), and to any lender providing financing to Purchaser in connection
with its acquisition of such real property ("LENDER"), as follows:
1. The CURRENT term of the Lease commenced on ____________ and expires on
__________. Tenant has accepted and is in possession of the Premises.
2. The Lease presently calls for monthly installments of fixed or base
rent of $___________.
4. Rent has been paid to and including ____________, 2000, and no advance
rental or other payment has been made in connection with the Lease,
except rental for the current month. Tenant has no defenses or
set-offs to the payment of rent.
5. A security deposit in the amount of $ _________ is being held by
Landlord.
6. There is no existing event of default on the part of the Landlord or
the Tenant in any of the terms and conditions of the Lease.*
7. The Lease is valid and in full force and effect and represents the
entire agreement between the parties, and the Lease has (check one):
( ) not been amended, modified, supplemented, extended, renewed or
assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
- ----------
* Will accept modified to Tenant's knowledge as to Landlord default.
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-------------------------------------------------.
8. As of the date hereof, Landlord has fully performed all of its
obligations under the Lease and satisfied all commitments made to
induce Tenant to enter into the Lease and Tenant is not entitled to
any rental inducements, "free rent", rent allowance, rent credits or
other concession or economic inducements in connection with the Lease
throughout the remainder of the term except as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
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----------------------------------------------------------------------
-------------------------------------------------.
9. All construction, build-out, improvements, or alterations to the
Premises required under the Lease have been fully completed in
accordance with the plans and specifications described in the Lease
and all contributions required to be made by Landlord throughout the
term of the Lease on account thereof have been made except as follows:
----------------------------------------------------------------------
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----------------------------------------------------------------------
-----------------------------------------------------.
10. There are no actions, voluntary or involuntary, pending against the
Tenant under the bankruptcy laws of the United States or any state
thereof.
11. Tenant has no renewal, extension, cancellation or expansion rights
under the Lease, except to the extent expressly set forth in the
Lease.
12. Tenant has no right of first offer or refusal with respect to, or
other option to purchase, all or any portion of the Premises.
13. Tenant has not assigned, transferred or pledged the Lease or any
interest therein or sublet any portion thereof except as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
-----------------------------------------------------.
This certificate has been given to Purchaser and Lender with the understanding
that Purchaser is acquiring the Property in reliance on this Tenant Estoppel
Certificate and Lender will rely hereon in connection with loans which will be
secured by the Property. The undersigned hereby certifies that he or she is duly
authorized to sign and deliver this Tenant Estoppel Certificate.
Tenant:
Date: _________, ______. By:______________________________________
Name:
Title:
Exhibit E
(Form of Bill of Sale)
BILL OF SALE
------------
KNOW ALL MEN BY THESE PRESENTS,
That WELLSFORD CAPITAL PROPERTIES, L.L.C., having an office at 535 Madison
Avenue, 26th Floor, New York, New York 10022 ("GRANTOR"), for and in
consideration of the sum of Ten Dollars ($10.00), lawful money of the United
States, to it in hand paid, at or before delivery of these presents by Windswept
Development, LLC, having an office at 31000 Northwestern Highway, Suite 220,
Farmington Hills, Michigan 48334 ("GRANTEE"), the receipt of which is hereby
acknowledged, by these presents does hereby convey unto Grantee, its successors
and assigns, all right, title and interest of Grantor in and to all personal
property affixed to, located upon or used in connection with the real property
described in Schedule 1 annexed hereto and made a part hereof. The foregoing
conveyance is made without recourse, representation or warranty of any kind,
except that Grantor represents to Grantee that the Personalty is free and clear
of any lien or encumbrance, which representation shall survive the delivery of
this Bill of Sale for a period of six (6) months.
TO HAVE AND TO HOLD the same unto Grantee, its successors and assigns
forever.
This Bill of Sale shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Grantor has caused this instrument to be duly executed
as of this day of , .
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment
trust
By: _______________________________
Name:
Title:
Schedule 1
----------
PREMISES "A"
County Parcel No. 1-8-1 and 51-5-59
ALL THAT CERTAIN tract or parcel of land Situate in the Township of East
Bradford and Borough of West Chester, County of Chester, Commonwealth of
Pennsylvania, being described according to a boundary Survey and Plan, entitled
Boundary Survey Plan, prepared for Kode Development, dated June 10, 1988,
prepared by Alpha Engineering Associates, Inc., Feasterville, Pennsylvania,
being more particularly described as follows, to wit:
BEGINNING at a found iron pin, for a corner, on the Southerly Right-of-Way
of Downington-West Chester Pike (L.R. 137) 60 feet wide, and being located on
the dividing line between East Bradford Township and the Borough of West
Chester, thence extending in a Northeasterly direction, through the bed of
Downingtown-West Chester Pike (L.R. 137) 60 feet wide, North 79 degrees 9
minutes 30 seconds East, a distance of 33.95 feet to a point for a corner, being
in the centerline of the aforementioned Downingtown-West Chester Pike (L.R. 137)
60 feet wide; thence extending in a Southeasterly direction along the centerline
of Downingtown-West Chester Pike (L.R. 137) 60 feet wide South 47 degrees 23
minutes 50 seconds East a distance of 481.34 feet to a found spike, for a corner
in the centerline of the aforementioned Downingtown-West Chester Pike (L.R. 137)
60 feet wide; thence extending still in a Southeasterly direction, passing
through the Southerly bed of Downingtown-West Chester Pike (L.R. 137) 60 feet
wide, South 20 degrees 57 minutes 17 seconds East a distance of 303.42 feet
crossing through the bed of Strasburg Road (L.R. 273) 50 feet wide, to a found
spike, for a corner, being on the centerline of the aforementioned Strasburg
Road (L.R. 273); thence extending, in a Northwesterly direction, along the
centerline of Strasburg Road (L.R. 273) 50 feet wide passing over the dividing
line between the Borough of West Chester and the Township of East Bradford,
North 82 degrees 6 minutes 39 seconds West a distance of 446.89 feet to a point
for a corner, being a common corner of the Southeasterly lands of Parcel "A", on
the centerline of the aforementioned Strasburg Road (L.R. 273); thence extending
in a Northwesterly direction passing over the bed of Strasburg Road (L.R. 273);
50 feet along the Easterly line of lands of Parcel "A", North 24 degrees 54
minutes 10 seconds West a distance of 559.80 feet to a found iron pin, for a
corner, being a common corner to Parcel "A"; thence extending, in a
Northeasterly direction, along the Southerly line of lands of Parcel "A", North
79 degrees 9 minutes 30 seconds East a distance of 177.25 feet to a found iron
pin, for a corner, being a common corner to the lands of Parcel "A" and being
the first mentioned point and place of beginning.
(Continued)
PREMISES "B"
County Parcel No.: 51-5-58.1
ALL THAT CERTAIN tract or piece of ground, Situate in the Township of East
Bradford, County of Chester, Commonwealth of Pennsylvania, and described
according to a Topographical Plan and Survey prepared for Arnko Builders, Inc.,
by Akpha Engineering Associates, Inc., dated July 27, 1967 as follows, to wit:
BEGINNING at a spike on the center of Strasburg Road (Route No. 162) (50
feet wid) said spike being at the distance of 195.87 feet measured along the
center line of Strasburg Road North 82 degrees 33 minutes 30 seconds West from
its point of intersection with the extension of the center line of North
Bradford Avenue (50 feet wide); thence extending from said point of beginning
along the center line of Strasburg Road North 82 degrees 31 minutes 30 seconds
West, 864.40 feet to a spike, a corner of lands now or late of United Realty and
Construction Company; thence extending along the last mentioned lands the 2
following courses and distances; (1) North 12 degrees 14 minutes 20 seconds West
crossing an iron pin on the Northeasterly side of Strasburg at the distance of
22.81 feet the total distance of 1082.24 feet to a stone and (2) North 76
degrees 53 minutes East crossing an iron pin on the Southwesterly side of
Downingtown-West Chester Pike (Route No. 322) (60 feet wide) 172.26 feet to a
point on the title line in the bed of Downingtown-West Chester Pike; thence
extending along the title line through the bed of Downingtown-West Chester Pike;
the 3 following courses and distances; (1) South 54 degrees 40 minutes 10
seconds East, 897.24 feet to a point; (2) South 47 degrees 41 minutes 20 seconds
East, 132.00 feet to a point, said point being on the Borough-Township Line
dividing the Township of East Bradford and the Borough of West Chester and (3)
South 24 degrees 56 minutes 20 seconds East along the Borough-Township Line
66.00 feet to an iron pin, a corner of lands now or late of Carl Chyrla; thence
extending along the last mentioned lands of 2 following courses and distances;
(1) South 79 degrees 09 minutes 30 seconds West crossing the Southwesterly side
of Downingtown-West Chester Pike, 177.54 feet to an iron pin and (2) South 24
degrees 54 minutes 10 seconds East, crossing an iron pin on the Northeasterly
side of Strasburg Road, 359.80 feet to the first mentioned spike; the point and
place of beginning (the distance between the last mentioned iron pin and the
last mentioned iron spike being 29.59 feet)
Exhibit F
(Form of Assignment and Assumption of Leases)
ASSIGNMENT AND ASSUMPTION OF LEASES
-----------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "ASSIGNMENT"), made as of
the ___ day of _______, ____, by and between WELLSFORD CAPITAL PROPERTIES,
L.L.C., having an office at 535 Madison Avenue, 26th Floor, New York, New York
10022 ("ASSIGNOR"), and Windswept Development, LLC, having an office at 31000
Northwestern Highway, Suite 220, Farmington Hills, Michigan 48334 ("ASSIGNEE"),
for and in consideration of the sum of Ten Dollars ($10.00), lawful money of the
United States, to it in hand paid, at or before delivery of these presents by
Assignee with reference to the following:
R E C I T A L S
---------------
Pursuant to a Sale-Purchase Agreement dated as of November __, 2000 (the
"PURCHASE AGREEMENT"), Assignor is conveying to Assignee certain real property
more particularly described therein and commonly known as Bradford Plaza, 710
Downington Turnpike, West Chester, Pennsylvania.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
promises, covenants and undertakings contained in the Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ASSIGNMENT AND ASSUMPTION
-------------------------
Assignor hereby transfers, and otherwise conveys unto Assignee, without
recourse, representation or warranty of any kind (except as may be expressly set
forth in the Purchase Agreement, and subject to the limitations on survival set
forth therein), all of the rights, title and interest of Assignor, as landlord
under the leases (the "Leases") described in Schedule 1 annexed hereto and
incorporated herein by this reference, including without limitation, all rents,
issues and profits arising therefrom and any security held under the Leases for
the performance of the tenants' obligations thereunder, TO HAVE AND TO HOLD all
and singular subject as aforesaid, unto Assignee.
From and after the date hereof, Assignee assumes and agrees to discharge
and perform all duties, obligations and liabilities arising on or after the date
hereof to be performed by Assignor, as landlord, under the Leases, for the
duration of the respective terms thereof. Without limiting the generality of the
foregoing, the obligations and liabilities assumed by Assignee hereunder shall
include, but shall not be limited to, the obligation to properly apply any
advance rental, security deposit or other deposit under any of the Leases, to
the extent such advance rental, security deposit or other deposit has been
delivered, assigned or credited by Assignor to Assignee concurrently herewith.
This Assignment shall be binding upon, enforceable by and shall inure to
the benefit of the successors and assigns of the parties.
This Assignment may be signed in multiple counterparts which, when taken
together and signed by all parties and delivered to any other party hereto,
shall constitute a binding Assignment between the parties.
This Assignment shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
instrument as of the date first set forth above.
ASSIGNOR:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust
By: _______________________________
Name:
Title:
ASSIGNEE:
WINDSWEPT DEVELOPMENT, LLC
By: ___________________________
Name:
Title:
Schedule 1
[List of Leases]
Exhibit G
(Form of Assignment and Assumption of Service Contracts, Licenses and Permits)
ASSIGNMENT AND ASSUMPTION OF
----------------------------
SERVICE CONTRACTS, LICENSES AND PERMITS
---------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, LICENSES AND PERMITS
(this "ASSIGNMENT"), made as of the ___ day of _______, ____, by and between
WELLSFORD CAPITAL PROPERTIES, L.L.C., having an office at 535 Madison Avenue,
26th Floor, New York, New York 10022 ("ASSIGNOR"),and Windswept Development,
LLC, having an office at 31000 Northwestern Highway, Suite 220, Farmington
Hills, Michigan 48334 ("ASSIGNEE"), for and in consideration of the sum of Ten
Dollars ($10.00),lawful money of the United States, to it in hand paid, at or
before delivery of these presents by Assignee with reference to the following:
R E C I T A L S
---------------
Pursuant to a Sale-Purchase Agreement dated as of November ___, 2000
between Assignor and Assignee (the "PURCHASE AGREEMENT"), Assignor is conveying
to Assignee certain real property more particularly described therein and
commonly known as Bradford Plaza, 710 Downington Pike, West Chester,
Pennsylvania (THE "PROPERTY"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed thereto in the Purchase Agreement.
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
foregoing promises, covenants and undertakings contained in this Assignment, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ASSIGNMENT AND ASSUMPTION
-------------------------
1. (aa Assignor hereby assigns to Assignee, without recourse representation
or warranty of any kind, all of its right, title and interest in and to the
Service Contracts identified on Schedule 1 annexed hereto (collectively, the
"ASSIGNED SERVICE CONTRACTS") and the assignable Licenses and Permits.
(ba Assignee hereby accepts the foregoing assignment and agrees to assume,
keep, perform and fulfill all of the terms, conditions and obligations which are
required to be kept, performed and fulfilled by Assignor in connection with or
arising out of the Assigned Service Contracts and the assignable Licenses and
Permits from and after the date hereof.
(ca Assignee further hereby assumes the obligations of Assignor with
respect to post-termination leasing commissions payable in accordance with
Exhibit B, Section 9 of the Leasing Agency Agreement.
2. This Assignment shall be binding upon, enforceable by and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
3. This Assignment may be signed in multiple counterparts which, when taken
together and signed by all parties and delivered to any other party hereto,
shall constitute a binding Assignment between the parties.
4. This Assignment shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
instrument as of the date first set forth above.
ASSIGNOR:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, a Maryland real estate investment trust
By:____________________________
Name:
Title:
ASSIGNEE:
WINDSWEPT DEVELOPMENT, LLC
By: ___________________________
Name:
Title:
Exhibit H
(Rent Roll)
Exhibit I
(Schedule of Accounts Receivable)
Exhibit J
(Insurance Coverages)
Exhibit K
(Permitted Exceptions)
1. The Leases and the rights of tenants thereunder, including, without
limitation, memoranda of the Leases.
2. Zoning and building regulations, ordinances, and requirements adopted by
any governmental or municipal authority having jurisdiction thereof, and
amendments and additions thereto now in force and effect, which relate to
the Premises.
3. Any agreements, financing statements, chattel mortgages, liens or
encumbrances entered into by, or arising from, the acts of any tenant.
4. Subject to adjustment as herein provided, real estate taxes, tax liens,
water and sewer charges, assessments and vault charges, and the liens of
any of the foregoing.
5. State of facts as disclosed on that certain survey of the Premises last
redated November 17, 2000, prepared by International Land Services, Inc.
(the "SURVEY".)
6. That portion of premises in the bed of Strasburg Road and Downingtown West
Chester Pike is subject to private and public rights therein.
7. Rights granted to public utility companies as in Deed Book 93 page 503.
8. Rights granted to public utility companies as in Deed Book 94 page 230.
9. Rights granted to public utility companies as in Deed Book 87 page 267.
10. Rights granted to public utility companies as in Deed Book 113 page 391.
11. Rights granted to public utility companies as in Deed Book 563 page 418.
12. Rights granted to public utility companies as in Deed Book 566 page 305.
13. Rights granted to public utility companies as in Deed Book 629 page 206.
14. Rights granted to public utility companies as in Record Book 2258 page 287.
15. Rights of others in and to stream crossing premises.
16. Part of premises included within Downingtown-West Chester Pike (Route #322)
is subject to easement of legal and required right of way lines of Route
No. 137 as shown by the Pennsylvania Highway Department Plan approved March
30, 1965 and recorded at West Chester, Pennsylvania in State Highway Plan
Book 9 page 1. (Sheets 30, 31 and 32 of 33 sheets) and recorded in Plan
Book 10 page 4 as to sheets 30 and 31 and sheet 30 as shown in Plan Book 13
page 8.
17. Declaration of Easements, Covenants & Restrictions as in Record Book 1473
page 171.
18. Agreement as in Record Book 1473 page 589.
19. Agreement as in Record Book 1624 page 210.
20. Memorandum of Lease as in Record Book 2015 page 357.
WELLSFORD CAPITAL PROPERTIES, L.L.C.
c/o Wellsford Real Properties, Inc.
535 Madison Avenue
New York, New York 10022
December 22, 2000
Windswept Development, LLC
31000 Northwestern Highway, Suite 220
Farmington Hills, Michigan 48334
Attention: Adam Lutz
Re: Sale-Purchase Agreement made as of November 27, 2000 between Wellsford
Capital Properties, L.L.C., as seller, and Windswept Development, LLC
for premises known as Bradford Plaza, West Chester, Pennsylvania
Gentlemen:
Reference is made to the captioned sale-purchase agreement (the
"Agreement"). Capitalized terms used herein shall have the meanings ascribed
thereto in the Agreement.
This letter agreement shall confirm the agreement of the parties that,
notwithstanding the terms of the Agreement, the "Due Diligence Expiration Date"
under the Agreement shall be January 4, 2001. This letter agreement shall
further confirm the agreement of the parties that Exhibit B to the Agreement
shall be supplemented by adding the following to the description of the
Brandywine Floral Design lease set forth therein.
"as amended by Lease Renewal Agreement dated as of January 1, 2000 between
Wellsford Capital Properties, L.L.C. and Brandywine Floral Design, Inc."
The Agreement, as modified by this letter agreement, remains in full force
and effect. This letter agreement may be executed (i) in counterparts and (ii)
by facsimile.
Please execute this letter agreement in the space indicated to acknowledge
your assent to the foregoing.
Yours truly,
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, its Manager
By: _________________________
William H. Darrow
Vice President
Agreed:
WINDSWEPT DEVELOPMENT, LLC
By:___________________________
Adam Lutz
Managing Member
FIRST AMENDMENT
TO SALE-PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO SALE-PURCHASE AGREEMENT (this "AGREEMENT") dated as
of January 4, 2001 between WELLSFORD CAPITAL PROPERTIES, L.L.C., a Delaware
limited liability company having an address c/o Wellsford Real Properties, Inc.,
535 Madison Avenue, 26th Floor, New York, New York 10022 ("SELLER"), and
WINDSWEPT DEVELOPMENT, LLC, a Michigan limited liability company having an
address at 31000 Northwestern Highway, Suite 220, Farmington Hills, Michigan
48334 ("PURCHASER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller and Purchaser entered into a Sale-Purchase Agreement dated
as of November 27, 2001, as modified by letter agreement dated December 22, 2000
(the "PURCHASE AGREEMENT"), with respect to premises known as Bradford Plaza
Shopping Center and more particularly described therein; and
WHEREAS, Seller and Purchaser wish to modify the Purchase Agreement in the
manner hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller and Purchaser hereby agree as follows:
A. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed thereto in the Purchase Agreement.
B. Closing Date. The Purchase Agreement is hereby modified so that the
Closing Date thereunder shall be January 24, 2001. Notwithstanding the
foregoing, Purchaser shall have the one-time right, upon notice to Seller
on or before 5:00 P.M. (New York time) on January 22, 2001 (the
"ADJOURNMENT NOTICE"), to adjourn the Closing to a Business Day on or
before February 5, 2001 (the "OUTSIDE CLOSING DATE"), provided that,
simultaneously with Purchaser's delivery of the Adjournment Notice to
Seller, Purchaser increases the Deposit to $200,000 by posting an additional
$100,000 into escrow with Second Escrowee, such amount to be held and disbursed
by Second Escrowee together with the remainder of the Deposit in accordance with
the terms of the Purchase Agreement. TIME SHALL BE OF THE ESSENCE with respect
to Purchaser's obligation to proceed to Closing by the Outside Closing Date.
C. Waiver of Due Diligence Contingency. Purchaser acknowledges that it
has waived the due diligence contingency conferred upon it by Section 4.1
of the Purchase Agreement and further covenants to cause First Escrowee to
transfer the Deposit to Second Escrowee by wire transfer of immediately
available funds on or before 5:00 P.M. (New York time) on January 5, 2001.
D. Miscellaneous.
(1) The Purchase Agreement, as amended by this Agreement, shall
continue in full force and effect and is hereby ratified in all
respects.
(2) This Agreement shall bind, and inure to the benefit of, the
parties hereto and their respective successors and assigns.
(3) This Agreement shall not be modified orally, but only by an
agreement in writing executed by Seller and Purchaser.
(4) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
giving effect to the conflict of law principles thereof.
(5) This Agreement may be executed in counterparts, each of which
shall constitute an original and all of which, when taken together,
shall constitute but one and the same agreement.
(6) This Agreement may be executed and delivered by facsimile.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Agreement
as of the date and year first above written.
SELLER:
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, its Manager
By:
William H. Darrow
Vice President
PURCHASER:
WINDSWEPT DEVELOPMENT, LLC
By:
Adam Lutz
Managing Member
WELLSFORD CAPITAL PROPERTIES, L.L.C.
c/o Wellsford Real Properties, Inc.
535 Madison Avenue, 26th Floor
New York, New York 10022
January 4, 2000
Windswept Development, LLC
31000 Northwestern Highway, Suite 220
Farmington Hills, Michigan 48334
Attention: Adam Lutz
Re: Sale-Purchase Agreement dated as of November 27, 2000 between
Wellsford Capital Properties, L.L.C. and Windswept Development, LLC,
as amended by letter agreement dated December 22, 2000, as further
amended by First Amendment to Sale-Purchase Agreement dated as of this
date, with respect to premises known as Bradford Plaza Shopping
Center, West Chester, Pennsylvania
Gentlemen:
Reference is made to the captioned sale-purchase agreement (the
"Agreement"). Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Agreement.
This letter will memorialize Seller's agreement to reimburse Purchaser at
Closing in an amount equal to $109,200 for brokerage and other fees payable by
Purchaser in connection with the transactions contemplated by the Agreement.
Yours truly,
WELLSFORD CAPITAL PROPERTIES, L.L.C.
By: Wellsford Capital, its Manager
By: _________________________
William H. Darrow
Vice President