PURCHASE AND SALE AGREEMENT
BETWEEN
DENNIS J. SCHMIDT, ROBERT V. GOTHIER, SR., ROBERT V. GOTHIER, JR.,
HOOVER AVENUE GF, LP, MECHANICSBURG GF, LP, ROBBIE KEMPSVILLE CORP.,
COLISEUM FF MM, INC., ROBBIE LITTLE CREEK CORP., BRYCE SMITHFIELD CORP.,
BRYCE SUFFOLK CORP., and BRYCE GENERAL BOOTH CORP., as sellers
AND
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., as buyer
dated May 10, 2005
RVG PORTFOLIO
TABLE OF CONTENTS
ARTICLE I: Sale and Purchase....................................2
ARTICLE II: Consideration........................................2
ARTICLE III: Title Matters........................................3
ARTICLE IV: Closing Date.........................................5
ARTICLE V: Debt Assumption......................................5
ARTICLE VI: Representations and Warranties of Sellers............6
ARTICLE VII: Representations and Warranties of CSCP..............16
ARTICLE VIII: Conditions to Obligations of CSCP and Sellers.......17
ARTICLE IX: Obligations and Covenants of Sellers................18
ARTICLE X: Apportionments......................................21
ARTICLE XI: Closing Documents...................................25
ARTICLE XII: Due Diligence Investigation; Right to Terminate.....28
ARTICLE XIII: Estoppel Certificates...............................31
ARTICLE XIV: Brokerage...........................................32
ARTICLE XV: Condemnation and Destruction........................32
ARTICLE XVI: Closing Costs.......................................34
ARTICLE XVII: Sellers' Defaults...................................35
ARTICLE XVIII: CSCP Defaults.......................................35
ARTICLE XIX: Notices.............................................36
ARTICLE XX: Development Work....................................37
ARTICLE XXI: Indemnification.....................................38
ARTICLE XXII: Restrictive Covenant on Adjacent Properties.........39
ARTICLE XXIII: Tax Proceedings.....................................39
ARTICLE XXIV: Entire Agreement....................................39
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ARTICLE XXV: Amendments..........................................39
ARTICLE XXVI: Successors and Assigns..............................39
ARTICLE XXVII: Governing Law; Jurisdiction.........................40
ARTICLE XXVIII: Business Days.......................................40
ARTICLE XXIX: Interpretation......................................40
ARTICLE XXX: Third Parties.......................................41
ARTICLE XXXI: Legal Costs.........................................41
ARTICLE XXXII: Counterparts........................................41
ARTICLE XXXIII: Effectiveness.......................................41
ARTICLE XXXIV: No Implied Waivers..................................41
ARTICLE XXXV: Unenforceability....................................42
ARTICLE XXXVI: Waiver of Trial by Jury.............................42
ARTICLE XXXVII: Press Releases; Confidentiality.....................42
ARTICLE XXXVIII: Exhibits............................................42
ARTICLE XXXIX: State Specific Clauses..............................43
ARTICLE XL: Securitization......................................43
ARTICLE XLI: Cooperation.........................................43
ARTICLE XLII: Put Right...........................................43
ARTICLE XLIII: Vacant Space........................................44
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Exhibits
Exhibit A Sellers
Exhibit B-1 Premises Names, Addresses and Owners
Exhibit B-2 RVG Entities and RVG Entity Owners
Exhibit C Trade Names
Exhibit D Allocation of Consideration
Exhibit E Assumable Debt
Exhibit F TIF Documents
Exhibit G Escrow Agreement
Exhibit H Lease Value Calculation
Exhibit I Rent Rolls
Exhibit J Exceptions to Representations
Exhibit K Service Contracts
Exhibit L Intentionally Omitted
Exhibit M Intentionally Omitted
Exhibit N Debt Documents
Exhibit O RVG Organizational Documents
Exhibit P-1 Development Plans and Specifications
Exhibit P-2 Development Contracts
Exhibit P-3 Development Schedule
Exhibit Q Pennsylvania Deed
Exhibit R Assignment of Interests
Exhibit S Assignment of Leases
Exhibit T Assignment of Service Contracts
Exhibit U Bill of Sale
Exhibit V FIRPTA
Exhibit W Sellers' Certificate
Exhibit X-1 Letter to Tenants of Pennsylvania Properties
Exhibit X-2 Letter to Tenants of Virginia Properties
Exhibit Y Non-Compete Agreement
Exhibit Z CSCP's Certificate
Exhibit AA-1 Tenant Estoppel Certificate Form - Local Tenants
Exhibit AA-2 Tenant Estoppel Certificate Form - National Tenants
Exhibit BB Required Tenants
Exhibit CC Adjacent Properties
Exhibit DD Dubois Out-Parcels Restrictive Covenants
Exhibit EE Tax Contest Proceedings
Exhibit FF Zoning Classifications for Pennsylvania Properties
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PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
10th day of May, 2005, by and between DENNIS J. SCHMIDT, ROBERT V. GOTHIER, SR.,
ROBERT V. GOTHIER, JR., HOOVER AVENUE GF, LP, MECHANICSBURG GF, LP, ROBBIE
KEMPSVILLE CORP., COLISEUM FF MM, INC., ROBBIE LITTLE CREEK CORP., BRYCE
SMITHFIELD CORP., BRYCE SUFFOLK CORP., and BRYCE GENERAL BOOTH CORP., each
having an office at 1000 North Front Street, Suite 500, Wormleysburg,
Pennsylvania 17043 (individually, a "Seller," and collectively, the "Sellers"),
and CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a Delaware limited partnership,
having an office at 44 South Bayles Avenue, Port Washington, New York 11050
("CSCP").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS:
A. Dennis J. Schmidt, Robert V. Gothier, Sr., Robert V. Gothier, Jr.,
Robbie Kempsville Corp., Coliseum FF MM, Inc., Robbie Little Creek Corp., Bryce
Smithfield Corp., Bryce Suffolk Corp., and Bryce General Booth Corp.
(collectively, the "RVG Entity Owners") are the owners of 100% of the membership
interests (the "Interests"), in each of the entities listed on EXHIBIT B-1
attached hereto and made a part hereof (the "RVG Entities").
B. An RVG Entity or a Seller is the fee owner of each of the
respective certain land and improvements thereon or to be constructed thereon
described opposite its name on EXHIBIT B-2 attached hereto and made a part
hereof (collectively, the "Premises"), together in each case with (i) all
easements, rights-of-way, privileges, appurtenances and other rights (including,
without, limitation, mineral, oil and gas and development rights) pertaining to
the Premises (collectively, the "Appurtenant Rights"), (ii) (a) all land lying
in the bed of any street, road or avenue opened or proposed, public or private,
in front of or adjoining the Premises, (b) any award made or to be made in lieu
thereof, (c) any unpaid award for damage to the Premises by reason of change of
grade of any street and (d) any strips and gores adjoining or adjacent to the
Premises (collectively, the "Additional Property Rights"), (iii) all fixtures,
machinery, equipment, articles of personal property and improvements in the
nature of personal property attached or appurtenant to, or located on, or used
in connection with the use or operation of the Premises (collectively, the
"Personal Property"), (iv) all copyrights, trademarks, service marks and other
marks and trade or business names and domain names relating to the ownership,
use, and operation of the Premises, if any, including, without limitation, the
right, if any, to use the names set forth on EXHIBIT C attached hereto and made
a part hereof, and any similar variations (collectively, the "Trade Names"), (v)
all right, title and interest of such Seller or the RVG Entities, as applicable,
in and to the Leases (as hereinafter defined) and the Service Contracts (as
hereinafter defined), and all security and other deposits made under the Leases
and Service Contracts, (vi) all plans, drawings, specifications, and surveys
relating to the Premises (the "Plans and Specifications"), (vii) all guaranties
and warranties relating to the Premises (the "Guaranties and Warranties"), and
(viii) the Permits (as hereinafter defined) (the Premises together with the
Appurtenant Rights, the Additional Property Rights, the Personal Property, the
Leases, the Service Contracts, the Trade Names, the Plans and Specifications,
the Guaranties and Warranties, and the Permits related thereto being hereinafter
collectively referred to as the "Property"). The Property owned by Sellers is
sometimes referred to herein collectively as the "Purchased Property".
C. Sellers desire to sell the Interests and the Purchased Property in
exchange for the Consideration (as hereinafter defined) on the terms and
conditions hereinafter set forth.
D. CSCP desires to purchase the Interests and the Purchased Property in
exchange for the Consideration on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I: Sale and Purchase. Sellers agree to sell, assign and convey to
CSCP, and CSCP agrees to purchase from Sellers, the Interests and the Purchased
Property, subject to the terms of this Agreement.
ARTICLE II: Consideration.
(a) The consideration for the Interests and the Purchased Property (the
"Consideration") shall be the amount of Ninety Four Million Eight Hundred One
Thousand Six Hundred Eighty Three Dollars ($94,801,683). The parties hereto
acknowledge and agree that, as set forth on EXHIBIT D attached hereto and made a
part hereof, the Consideration shall be allocated (i) among the Interests in the
RVG Entities and the Purchased Properties, and (ii) with respect to the
Consideration allocated to the Purchased Properties, all of such Consideration
shall be allocated to the Purchased Properties exclusive of the Personal
Property. The Consideration, as adjusted by the prorations, adjustments and
credits specified herein (including, without limitation, pursuant to Article
XLIII below), shall be payable on the Closing Date (as hereinafter defined) by:
(i) the assumption by CSCP or the maintenance by the RVG
Entities of the loans set forth on Exhibit E attached hereto and made a
part hereof (the "Assumable Debt"); and
(ii) the balance of the Consideration shall be paid by payment
of cash in immediately available federal funds in an amount equal to
(1) the Consideration, less (2) the Assumable Debt (the "Cash
Consideration").
(b) Within three (3) Business Days (as hereinafter defined) after the
date this Agreement is executed and delivered by Sellers and CSCP, CSCP shall
deposit with LandAmerica or a subsidiary of LandAmerica (the "Title Company"),
at CSCP's option, either by wire transfer of immediately available federal funds
to an account designated by the Title Company (the "Escrow Account"), or by
check (subject to collection) to be deposited into the Escrow Account, the sum
of One Million Dollars ($1,000,000) (together with all interest thereon, the
"Initial Deposit"). On or prior to the Designated Date (as hereinafter defined),
provided that CSCP shall not have terminated this Agreement as provided herein,
(i) CSCP shall deposit with the Title Company at CSCP's option, either by wire
transfer of immediately available federal funds to the Escrow Account or by
check (subject to collection) to be deposited into the Escrow Account, the sum
of One Million Dollars ($1,000,000) (together with all interest thereon, the
"Additional Deposit"; the Initial Deposit and the Additional Deposit,
collectively, the "Required Deposit") and (ii) the Required Deposit shall not be
refundable to CSCP except pursuant to the express provisions of this Agreement.
The Required Deposit shall be held by the Title Company pursuant to the escrow
agreement (the "Escrow Agreement") attached hereto as EXHIBIT G and hereby made
a part hereof.
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(c) If CSCP shall fail to deposit the Initial Deposit as aforesaid
within such three (3) Business Day period, this Agreement shall automatically
terminate and be null and void ab initio, and no party hereto shall have any
further obligations or liabilities hereunder except under those provisions that
expressly survive a termination of this Agreement.
ARTICLE III: Title Matters.
1. In the case of each Premises to be sold, such Premises shall be sold
and assigned, and good, marketable and insurable title thereto shall be
conveyed, and in the case of each Premises owned by an RVG Entity, such RVG
Entity shall hold good, marketable and insurable title to such Premises, subject
in each case only to the following (hereinafter, the "Permitted Exceptions"):
(a) any state of facts that an accurate survey may show, unless
objected to by CSCP pursuant to the terms of this Agreement;
(b) all presently existing and future liens of real estate taxes or
assessments and water rates, water meter charges, water frontage charges and
sewer taxes, rents and charges, if any, provided that such items are not yet due
and payable and are apportioned as provided in this Agreement;
(c) recorded documents securing the Assumable Debt;
(d) rights of Tenants as tenants only under their leases; and
(e) all exceptions that CSCP shall have agreed in writing to waive
as an Unpermitted Exception (as hereinafter defined).
2. As a condition to the Closing, the Title Company shall have
irrevocably committed to insure (a) CSCP or the RVG Entity that owns the
applicable Premises as of the date hereof as the fee owner of each of the
Premises in an amount designated by CSCP (but in no event exceeding, in the
aggregate, the Consideration) by issuance of an ALTA owner's title insurance
policy for each of the Premises on the 1970 (last revised 1984) form, subject
only to the Permitted Exceptions (each, an "Owner's Policy"), and (b) if
required by a lender that is the holder of Assumable Debt (each, an "Existing
Lender"; collectively, "Existing Lenders"), such Existing Lender, whether by the
issuance of a separate title insurance policy or by the issuance of an
endorsement to such Existing Lender's existing mortgagee title policy insuring
the lien created by the Assumable Debt held by such Existing Lender, that as of
the date of the recording of the Assumption Documents (as hereinafter defined)
applicable to such Assumable Debt which are to be recorded, the lien created by
such Assumable Debt is a valid first lien on the Premises securing such
Assumable Debt, subject only to exceptions, liens and encumbrances acceptable to
such Existing Lender (each, a "Lender's Policy").
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3. Promptly following the date this Agreement is executed and delivered
by CSCP and Sellers, CSCP shall order (x) from the Title Company a commitment
for an owner's fee title insurance policy or policies with respect to each of
the Premises (each, a "Title Commitment") and (y) a survey of each of the
Premises (or an update of existing surveys). If any exceptions(s) to title to
the Premises should appear in any Title Commitment or on any Survey other than
the Permitted Exceptions (such exception(s) being herein called, collectively,
the "Unpermitted Exceptions"), subject to which CSCP is unwilling to accept
title, and CSCP shall provide Sellers with written notice (the "Title Objection
Notice") thereof by the date (the "Objection Date") that is the later to occur
of (A) ten (10) Business Days after receipt of all of the Title Commitments (and
legible copies of all documents referenced therein) and Surveys by CSCP's
attorneys, and (B) the Designated Date, Sellers shall undertake to eliminate the
same subject to the terms and conditions of this Article. CSCP hereby waives any
right CSCP may have to advance, as objections to title or as grounds for CSCP's
refusal to close this transaction, any Unpermitted Exception of which CSCP does
not notify Sellers by the Objection Date pursuant to the Title Objection Notice
unless (i) such Unpermitted Exception was first raised by the Title Company
subsequent to the date of the Title Objection Notice, and (ii) CSCP shall notify
Sellers of the same within ten (10) Business Days after the Title Company shall
notify CSCP of such Unpermitted Exception. Sellers shall not under any
circumstance be required or obligated to cause the cure or removal of any
Unpermitted Exception including, without limitation, to bring any action or
proceeding, to make any payments or otherwise to incur any expense in order to
eliminate any Unpermitted Exception; provided, however, regardless of whether
objected to in a Title Objection Notice, (x) Sellers shall satisfy (i) any
mortgage or deed of trust encumbering all or any portion of the Premises other
than the Assumable Debt and (ii) all other monetary liens encumbering all or any
portion of the Premises and (y) Sellers shall exercise diligent efforts
(excluding the institution of any legal proceedings) to cure any Unpermitted
Exceptions that shall render title unmarketable or uninsurable or prohibit the
use of all or any portion the Premises for the purposes for which the same is
being presently used (or with respect to the Development Premises, for the
purposes for which the same are contemplated to be used).
4. Provided Sellers shall otherwise have complied with the terms of
this Article, if Sellers are unable, or elect not, to eliminate all Unpermitted
Exceptions (other than those Unpermitted Exceptions which Sellers shall be
obligated to remove pursuant to the terms of this Agreement) in accordance with
the provisions of this Article, Sellers shall notify CSCP in writing that they
are unable, or elect not, to remove the same, in which event CSCP shall have the
right, by delivery of written notice to Sellers, to either (i) provided such
Unpermitted Exceptions are material to CSCP (as determined by CSCP in good
faith), with respect to the Premises located in Mechanicsburg, Pennsylvania
only, remove such Premises from the Premises being conveyed pursuant to this
Agreement and receive a corresponding reduction in the Consideration, (ii)
terminate this Agreement by written notice delivered to Sellers (in which event
the Title Company shall return the Required Deposit to CSCP and no party hereto
shall have any further obligations in connection herewith except under those
provisions that expressly survive a termination of this Agreement), or (iii)
accept title to the Premises subject to such Unpermitted Exception(s) without an
abatement in or credit against the Consideration.
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5. If a Title Commitment discloses judgments, bankruptcies or other
returns against other persons having names the same as, or similar to, that of
any Seller, the applicable Seller shall deliver to the Title Company affidavits
showing that such judgments, bankruptcies or other returns are not against such
Seller in order to induce the Title Company to omit exceptions with respect to
such judgments, bankruptcies or other returns or to insure over same. In
addition, Sellers shall deliver to the Title Company any affidavits,
declarations and indemnifications required to cause the Title Company to issue a
non-imputation endorsement to each Owner's Policy and/or respecting the
existence of mechanic's or materialmen's liens and other third party rights
relating to matters of title, as reasonably required by the Title Company. The
affidavits, declarations and indemnifications referred to in this Section 5 are
collectively referred to herein as the "Title Affidavits".
ARTICLE IV: Closing Date.
1. Subject to the provisions of Article V and Article XIII hereof, the
closing of the transactions contemplated hereby (the "Closing") shall take place
at 10:00 A.M. on June 29, 2005, or such earlier date designated by CSCP on not
less than ten (10) days written notice (the "Scheduled Closing Date") at the
offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, New York
10038 or through an escrow in which the parties need not be physically present
but shall deposit documents by overnight delivery or courier and funds by wire
transfer, with the Title Company as escrow agent and pursuant to escrow
instructions consistent with the terms of this Agreement and otherwise mutually
satisfactory to Sellers and CSCP. As used herein, the term "Closing Date" shall
mean the date on which the Closing shall occur.
ARTICLE V: Debt Assumption.
1. Sellers shall use best efforts to satisfy all conditions and to
obtain all consents necessary to permit at the Closing the assumption by CSCP of
the Assumable Debt (including, without limitation, the TIF Loan) and the
transfer of the Interests to CSCP (the "Debt Assumption") including the entering
into of appropriate assignment and assumption agreements satisfactory to CSCP
and containing estoppel language confirming the Debt Documents in effect, the
outstanding balance, the absence of defaults, the amounts held in escrow and
such other matters as CSCP may reasonably request (collectively, the "Assumption
Documents"). Sellers shall keep CSCP informed as to the status of obtaining
consent for the Debt Assumption including, without limitation, promptly
providing CSCP with copies of all material correspondence sent or received in
connection therewith. CSCP shall cooperate with Sellers in connection with the
Debt Assumption and shall be entitled to communicate directly with Existing
Lenders in connection with the Debt Assumption. Any ancillary conditions imposed
by Existing Lenders for the Debt Assumption shall be satisfactory to CSCP in its
sole and absolute discretion. Sellers shall promptly deliver to CSCP or Existing
Lenders, as the case may be, copies of all materials requested by Existing
Lenders in connection with Existing Lenders' consideration of the Debt
Assumptions. Sellers shall promptly execute and deliver all documents and
instruments required in connection with the Debt Assumptions. Either Sellers or
CSCP shall have a one (1) time right to extend the Scheduled Closing Date for up
to forty-five (45) additional days if the conditions precedent to CSCP's
obligation to close set forth in this Article V have not been satisfied prior to
the Scheduled Closing Date (exercisable by delivery of written notice to the
other parties hereto on or prior to the Scheduled Closing Date). In the event
that the conditions precedent to CSCP's obligation to close set forth in this
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Section 1 have not been satisfied prior to the Scheduled Closing Date (as the
same may have been extended pursuant to this Section 1), CSCP shall have the
right, at its option, to (i) with respect to the Premises located in
Mechanicsburg, Pennsylvania only, remove such Premises from the Premises being
conveyed pursuant to this Agreement and receive a corresponding reduction in the
Consideration, (ii) terminate this Agreement by written notice delivered to
Sellers (in which event the Title Company shall return the Required Deposit to
CSCP and no party hereto shall have any further obligations in connection
herewith except under those provisions that expressly survive a termination of
this Agreement), or (iii) pay the portion of the Consideration allocable to the
applicable Premises or Interests in cash (provided that CSCP shall pay any
prepayment fees in connection therewith). If CSCP or Sellers shall elect to
further extend the Scheduled Closing Date for up to an additional forty-five
(45) days pursuant to the terms of this Section and, following such additional
period, the conditions precedent to CSCP's obligation to close set forth in this
Section 1 have not been satisfied, CSCP shall have the right, at its option, to
(i) with respect to the Premises located in Mechanicsburg, Pennsylvania only,
remove such Premises from the Premises being conveyed pursuant to this Agreement
and receive a corresponding reduction in the Consideration, (ii) terminate this
Agreement by written notice delivered to Sellers (in which event the Title
Company shall return the Required Deposit to CSCP and no party hereto shall have
any further obligations in connection herewith except under those provisions
that expressly survive a termination of this Agreement), or (iii) pay the
portion of the Consideration allocable to the applicable Premises or Interests
in cash (provided that CSCP shall pay any prepayment fees in connection
therewith). With respect to guaranties of the Assumable Debt or any portion
thereof provided by any Seller, if Sellers shall be unable to obtain a release
from the Existing Lender(s) of the applicable Seller from liabilities under such
guaranties arising from acts and/or omissions of CSCP or its designee occurring
from and after the assumption of such Assumable Debt by CSCP or its designee,
CSCP shall indemnify, defend and hold the applicable Seller harmless from any
liabilities under such guaranties arising from acts and/or omissions of CSCP or
its designee occurring from and after the assumption of such Assumable Debt.
ARTICLE VI: Representations and Warranties of Sellers.
1. Each Seller represents, warrants and agrees that with respect to
itself and the RVG Entity owned directly or indirectly, in whole or in part, by
such Seller, and the Property owned directly or indirectly, by such Seller:
(a) EXHIBIT A sets forth a true, correct and complete schedule of
each Seller's type of entity and state of formation. Each Seller is duly
organized, validly existing and in good standing under the laws of the state of
its formation and authorized to transact business in the State where the
Property owned by such Seller is located. Each Seller has the power and
authority to sell and convey the Property and to execute the documents referred
to herein to be executed by such Seller. Prior to the Closing, each Seller shall
have taken all actions required for the consummation of the transactions
contemplated by this Agreement. Except for the consent of the applicable
Existing Lender, no approvals or consents by third parties or Governmental
Authorities are required in order for Sellers to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
performance by each Seller of its obligations hereunder will not conflict with,
or result in a breach of, any of the terms, conditions and provisions of any
organizational documents or other agreement binding upon such Seller or any of
its constituent entities.
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(b) Neither any Seller, nor any RVG Entity, nor any of the
shareholders, members or partners of any Seller or any RVG Entity, as the case
may be, has (i) made a general assignment for the benefit of its creditors, (ii)
admitted in writing its inability to pay its debts as they mature, (iii) had an
attachment, execution or other judicial seizure of any property interest which
remains in effect or (iv) become generally unable to meet its financial
obligations as they accrue. There is not pending any case, proceeding or other
action seeking reorganization, arrangement, adjustment, liquidation, dissolution
or recomposition of any Seller or RVG Entity or any of the shareholders, members
or partners of any Seller or any RVG Entity, as the case may be, or the debts of
such parties under any law relating to bankruptcy, insolvency, reorganization or
relief of debtors or seeking appointment of a receiver, trustee, custodian or
other similar official for it or any of its shareholders, members or partners or
all or any substantial part of its or their property.
(c) Sellers or an RVG Entity own legal and beneficial title to the
Personal Property free and clear of all security interests, liens, mortgages,
claims, charges, pledges, restrictions, equitable interests, restrictive
covenants or encumbrances of any nature, except liens granted in connection with
the Assumable Debt.
(d) Except as set forth on EXHIBIT J, no Person or entity (other
than CSCP) has a conditional or unconditional right or option to purchase or
ground lease all or any portion of the Property, including, without limitation,
a right of first refusal or redemption.
(e) There are and there shall be no agreements (written or oral) in
the nature of ground leases, space leases, licenses, permits, franchises,
concessions or occupancy agreements or any amendments, side letters, guaranties
or other documents related thereto, affecting the Premises other than the leases
set forth in the rent rolls for the Premises attached hereto as EXHIBIT I and
made a part hereof (each, a "Rent Roll") and the leases entered into in
accordance with this Agreement (collectively, the "Leases"). All information
contained in the Rent Rolls is true, correct and complete. True, correct and
complete copies of all Leases have been delivered to CSCP and are described in
the Rent Rolls. Each of the Leases is in full force and effect. Except as
otherwise shown on the Rent Rolls, all rents for the Premises (as shown on the
Rent Rolls) are being paid and are current. The security deposits (the "Security
Deposits") under the Leases for the Premises, and whether such Security Deposits
are in the form of cash or a letter of credit, are as set forth in the Rent
Rolls. No tenant under the Leases (each, a "Tenant") has paid any rent, fees, or
other charges more than one month in advance. Except as set forth in the Rent
Rolls, no Tenant is entitled to any free rent, abatement of rent or similar
concession. A Seller or an RVG Entity is the landlord under each of the Leases,
and no Seller or RVG Entity has assigned, mortgaged, pledged, sublet,
hypothecated or otherwise encumbered any of its rights or interests under any of
the Leases, except in connection with the Assumable Debt. No Seller or RVG
Entity has any knowledge of any subleases or assignments executed on the part of
any Tenant except for those disclosed in the Rent Roll. No Tenant has made any
claim against any Seller or RVG Entity for any Security Deposits or other
deposits (which has not been satisfied), and no Tenant has any defense or offset
to rent accruing after the Closing Date. No Seller or RVG Entity has received
any notice of any alleged default or breach on the part of such Seller or RVG
Entity under any Leases, that is or is allegedly continuing, and no Seller or
RVG Entity has delivered any notice of any alleged default or breach on the part
of any Tenant thereunder that is or is allegedly continuing. To Sellers'
knowledge, no Seller, RVG Entity or Tenant is in default under any of the
Leases.
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(f) Except as set forth in EXHIBIT J attached hereto and made a part
hereof, no brokerage commission or other compensation is payable (or will, with
the passage of time or occurrence of any event or both, be payable) with respect
to any Lease, including renewal or expansion options. There are no brokerage
agreements, finder's fee agreements or other similar agreements with respect to
the Premises whereby any person shall be entitled to any commission or finder's
fee with respect to any Lease, including renewal or expansion options.
(g) Except as set forth in EXHIBIT J attached hereto and made a part
hereof, all tenant improvements required under the Leases to be performed by the
landlord thereunder have been completed and paid for in full, and all tenant
allowances, move-in reimbursements and other tenant inducement costs and work
required under the Leases have been paid and performed in full, and Sellers
shall deliver at the Closing lien waivers from all parties who have furnished
materials or supplies or performed work or services with respect thereto.
(h) Except as set forth in EXHIBIT J attached hereto and made a part
hereof, no Seller or RVG Entity has received any notes or notices from any party
including, without limitation, any Governmental Authority, that any Seller or
RVG Entity is in breach of, or that the Premises or the current use, occupancy
or condition thereof violates, any applicable laws, ordinances, orders, rules,
regulations, requirements ("Laws") issued by any federal, state, county,
municipal or other governmental or quasi-governmental department, agency or
authority having or asserting jurisdiction over or affecting any of the Premises
(each, a "Governmental Authority") relating to the Premises (including, without
limitation, the Americans With Disabilities Act of 1990, as amended), the legal
occupancy thereof or the businesses conducted thereon, or applicable deed
restrictions or other covenants, restrictions or agreements (including, without
limitation, that certain Declaration of Reciprocal Easements and Covenants,
dated September 13, 2002, by and among Hoover Avenue GF, LP, Green Dot, Inc.,
and Giant Food Stores, LLC (the "Hoover REA"), and any of the other Permitted
Exceptions), site plan approvals, zoning or subdivision regulations or urban
redevelopment plans applicable to the Premises, and, to the best of Sellers'
knowledge, no Seller or RVG Entity is in breach of, and the Premises and the
current use, occupation and condition thereof do not violate, any such Laws,
deed restrictions or other covenants, restrictions or agreements, site plan
approvals, zoning or subdivision regulations or urban redevelopment plans. The
parking facilities at the Premises contain a sufficient number of striped
parking spaces to comply with all Laws and with all parking commitments made by
any Seller or RVG Entity under the Leases and any other documents affecting the
Premises. The Hoover REA is in full force and effect and, to Sellers' knowledge,
no party is in default thereunder. Sellers have provided a true, complete and
correct copy of the Hoover REA to CSCP. The P & S Agreement (as defined in the
Hoover REA) is in full force and effect and, to Sellers' knowledge, no party is
in default thereunder. Sellers have provided a true, complete and correct copy
of the P & S Agreement to CSCP. The Residual Purchase Period (as defined in the
Hoover REA) ends on September 13, 2007. Green Dot (as defined in the Hoover REA)
remains the owner of all of Parcel 4 (as defined in the Hoover REA). Parcel 4
remains subject to the terms of the Hoover REA.
8
(i) To Sellers' knowledge, all certificates of occupancy, licenses,
certificates and permits issued by any Governmental Authority or any board of
fire underwriters or real estate board or similar organization or institution
necessary for the operation of the Premises as currently conducted
(collectively, the "Permits") are in full force and effect, and, to Sellers'
knowledge, are transferable with the Premises to CSCP without charge. No written
notice has been received by any Seller or RVG Entity that the Permits have been
revoked or challenged. To Sellers' knowledge, no default has occurred in the due
observance of any condition to any Permit, nor is there lacking any Permit
needed in connection with the ownership or operation of the Premises.
(j) Except as set forth on EXHIBIT J, there is no litigation, action
or proceeding (zoning, environmental or otherwise) or governmental investigation
pending, or, to the best of Sellers' knowledge, threatened against, or relating
to, any Seller, RVG Entity or the Premises, or the transactions contemplated by
this Agreement. There is no unrepaired casualty affecting the Premises. There
are no pending, or to Sellers' knowledge, threatened, condemnation or eminent
domain proceedings relating to or affecting the Premises or reduction or
elimination of any utility service to the Premises. No proceedings for the
correction of the assessed valuation of the Premises have been filed and are
pending. Sellers do not have knowledge of any Federal, State, County, municipal
or other governmental plans to change the highway or road system in the vicinity
of the Premises or to restrict or change access from any such highway or road to
the Premises.
(k) There are no union or employment contracts or agreements
(written or oral) affecting the Premises and there are no employees of any
Seller, at the Premises or otherwise, who, by reason of any Law, or by reason of
any union or other employment contract, written or otherwise, or any other
reason whatsoever, would become employees of CSCP (or any designee or nominee of
CSCP) as a result of the purchase of the Premises and/or the Interests by CSCP
(or any designee or nominee of CSCP) or for whom CSCP (or any designee or
nominee of CSCP) would be responsible. CSCP (and each designee or nominee of
CSCP) will not be responsible for any obligations with respect to any persons
employed at the Premises, whether under the WARN Act or otherwise, by virtue of
CSCP's (or any designee's or nominee's) acquisition of the Property and/or the
Interests, and by the execution of this Agreement, CSCP (and each designee or
nominee of CSCP) is neither expressly nor implicitly assuming any liability,
obligation, cost or expense whatsoever with respect to any employment contract,
employee benefit plan or arrangement, employment policy or practice, collective
bargaining agreement, union contract, employment related claims whether based on
statute, common law, tort or otherwise or any other liability relating in any
way to employees.
(l) There are no service or maintenance contracts or management
agreements (written or oral) relating to the Premises other than (i) service or
maintenance contracts entered into in accordance with the terms of this
Agreement and (ii) those agreements set forth in EXHIBIT K attached hereto and
made a part hereof (such contracts and agreements being hereinafter collectively
referred to as the "Service Contracts"), and true, correct and complete copies
of all of the Service Contracts have been delivered to CSCP. Each of the Service
Contracts is in full force and effect, and no Seller or RVG Entity has given or
received any written notices of default thereunder, and neither any Seller, any
RVG Entity, nor to the best of any Sellers' knowledge, any of the other parties
thereto is in default of any of its obligations thereunder. As of the Closing
Date, all management and leasing agreements with respect to the Premises shall
have been terminated and all sums due thereunder shall have been paid by such
Seller.
9
(m) The operating statements relating to the Premises for the
calendar years ended December 31, 2003, and December 31, 2004 and for the period
from January 1, 2005 through the last day of the month immediately prior to the
date of this Agreement, copies of which have been delivered to CSCP, are true,
correct and complete and do not contain untrue statements of any material facts
or omit to state a material fact necessary to make the information contained
therein not misleading. The operating statements were prepared in accordance
with generally accepted accounting principles, consistently applied.
(n) True, correct and complete copies of all of Sellers' and RVG
Entities' existing environmental reports relating to the Premises (the "Existing
Environmental Reports") were provided by Sellers to CSCP.
(o) True, correct and complete copies of all of Sellers' or RVG
Entities' existing appraisals of the Premises (the "Existing Appraisals") were
provided by Sellers to CSCP.
(p) Except as expressly set forth in the Environmental Reports (as
hereinafter defined) or as described on EXHIBIT J, (i) to each Seller's
knowledge, there have never been any Hazardous Materials used, handled,
manufactured, generated, produced, stored, treated, processed, transferred, or
disposed of in, at or on the Premises, except in compliance with all applicable
Laws, and there are no underground storage tanks at the Premises and (ii) no
Seller or RVG Entity has received written notice from any person or entity of
any violation of any Environmental Laws or the presence of Hazardous Materials
at the Premises. For purposes of this Agreement (x) the term "Hazardous
Materials" shall mean (a) any toxic substance or hazardous waste, hazardous
substance or related hazardous material, mold, fungi, or any pollutant or
contaminant; (b) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contain
dielectric fluid containing levels of polychlorinated biphenyls in excess of
presently existing federal, state or local safety guidelines, whichever are more
stringent; (c) any substance, gas material or chemical which is defined as or
included in the definition of "hazardous substances," "toxic substances,"
"hazardous materials," "hazardous wastes" or words of similar import under any
Law or under the regulations adopted or guidelines promulgated pursuant thereto,
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss.9061 et seq.;
the Hazardous Materials Transportation Act, as amended, 49 U.S.C. ss.1801, et
seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. ss.6901,
et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. ss.1251,
et seq.; and (d) any other chemical, material, gas, or substance, the exposure
to or release of which is prohibited, limited or regulated by any governmental
or quasi-governmental entity or authority that has jurisdiction over the
Premises or the operations or activity at the Premises, (y) the term
"Environmental Laws" means all presently existing applicable statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, approvals,
plans, authorizations, concessions, franchises, agreements and similar items, of
or with any and all governmental agencies, departments, commissions, boards,
bureaus or instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial and administrative and
regulatory decrees, judgments and orders relating to the protection of human
health or the environment, and (z) the term "Environmental Reports" means (A) as
of the date hereof, the Existing Environmental Reports, and (B) as of the
Closing Date, the Updated Environmental Reports (as hereinafter defined).
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(q) Attached hereto and made a part hereof as EXHIBIT N, is a true,
correct and complete list of all of the documents relating to, securing or
evidencing the Assumable Debt that have been executed by a Seller or an RVG
Entity or any guarantor or indemnitor of a Seller's or RVG Entity's obligations
thereunder, including any and all amendments and supplements thereto
(collectively, the "Debt Documents"). Sellers have delivered to CSCP true,
correct and complete copies of all of the Debt Documents. The Debt Documents are
in full force and effect. To Sellers' knowledge, no Seller or RVG Entity or
lender is in default in any respect under the Debt Documents. No Seller or RVG
Entity has received any written notice that any Seller or RVG Entity is in
default under the Debt Documents. EXHIBIT E attached hereto and made a part
hereof sets forth, with respect to the Assumable Debt, (i) the outstanding
principal balance as of May 1, 2005 (unless otherwise expressly noted), (ii) the
interest rate, (iii) the maturity date, and (iv) the amounts of all reserves as
of May 1, 2005 (unless otherwise expressly noted).
(r) The Hoover Avenue Tax Increment Financing District (the "TIF
District") was created pursuant to that certain Ordinance No. 1655 adopted by
the City of DuBois on September 17, 2002 and encompasses only the Premises
located in Dubois, Pennsylvania and the Adjacent Properties (as hereinafter
defined). The redevelopment of the TIF District was financed solely by that
certain $1,200,000 loan (the "TIF Loan"), which TIF Loan is evidenced by that
certain Term Note dated December 16, 2003 (the "TIF Note") given by
Redevelopment Authority of the City of DuBois, as borrower, to Mid Penn Bank, as
lender ("Mid Penn"), which TIF Note has a maturity date of December 15, 2018 and
is secured by that certain Open-End Leasehold [sic] Mortgage, Security
Agreement, Assignment of Leases and Rents, and Fixture Filing dated as of
December __, 2003 [sic], given by Hoover Avenue GF, LP, as mortgagor, in favor
of Mid Penn, as mortgagee (the "TIF Mortgage"), which TIF Mortgage encumbers
only the Premises located in Dubois, Pennsylvania, the Adjacent Properties and
certain adjacent property owned by Green Dot, Inc. and referred to as "Green Dot
Parcels" in the Hoover REA (collectively, the "TIF Property"). Real property
taxes levied against the TIF Property are paid to the City of Dubois for the
repayment of the TIF Loan and are the sole source of revenues for repayment of
the TIF Loan and for the TIF District. Other than the TIF Loan, there are no
obligations payable to or associated with the TIF District. The real estate
taxes payable by Giant under its lease at the Premises located in Dubois,
Pennsylvania, together with a portion of the real estate taxes payable by the
in-line tenants at the Premises located in Dubois, Pennsylvania, are sufficient
to repay in full all interest and principal due and owing under the TIF Loan as
and when due. Attached hereto and made a part hereof as EXHIBIT F, is a true,
correct and complete list of all of the documents relating to, securing or
evidencing the TIF Loan or related to the TIF District including any and all
amendments and supplements thereto (collectively, the "TIF Documents"). Sellers
have delivered to CSCP true, correct and complete copies of all of the TIF
Documents. The TIF Documents are in full force and effect. To Sellers'
knowledge, no party is in default in any respect under the TIF Documents. No
Seller or RVG Entity has received or delivered any written notice that any party
is in default under the TIF Documents.
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(s) No Seller or RVG Entity has made any commitments to or
agreements with any Governmental Authority affecting the Property which are
binding upon CSCP or the Property and have not been disclosed to CSCP and, to
the best of Sellers' knowledge, the Property is not bound by any written
commitments or agreements, binding upon CSCP or the Property made by any prior
owner of the Premises, except for the Permitted Exceptions, to the extent
applicable, with any Governmental Authority.
(t) EXHIBIT D attached hereto sets forth the tax basis of each of
the Properties, broken down with respect to land, building, site improvements
and personal property, as of December 31, 2004.
(u) No Seller, RVG Entity or any member, partner or shareholder of
any Seller or RVG Entity, nor, to Sellers' knowledge, any Person with actual
authority to direct the actions of any member, partner or shareholder of any
Seller or RVG Entity, nor, to Sellers' knowledge, any other Persons holding any
legal or beneficial interest whatsoever in any Seller or RVG Entity, (i) are
named on any list of Persons and governments issued by the Office of Foreign
Assets Control of the United States Department of the Treasury ("OFAC") pursuant
to Executive Order 13224 - Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism ("Executive Order
13224"), as in effect on the date hereof, or any similar list known to any
Seller or publicly issued by OFAC or any other department or agency of the
United States of America (collectively, the "OFAC Lists"), (ii) are included in,
owned by, controlled by, knowingly acting for or on behalf of, knowingly
providing assistance, support, sponsorship, or services of any kind to, or
otherwise knowingly associated with any of the Persons referred to or described
in the OFAC Lists, or (iii) has knowingly conducted business with or knowingly
engaged in any transaction with any Person named on any of the OFAC Lists or any
Person included in, owned by, controlled by, acting for or on behalf of,
providing assistance, support, sponsorship, or services of any kind to, or, to
Sellers' knowledge, otherwise associated with any of the Persons referred to or
described in the OFAC Lists.
(v) With respect to the RVG Entities:
(i) EXHIBIT B-1 sets forth a true, correct and complete schedule
of each RVG Entity's name, type of entity and state of formation, and
the Interests owed by the RVG Entity Owners in such RVG Entity. Each of
the RVG Entities is duly organized, validly existing and in good
standing under the laws of the state of its formation and is authorized
to transact business in the state where the Property owned by such RVG
Entity is located. Each of the RVG Entities has the power and authority
to own, lease and operate the Property owned by it and to conduct its
business as now being conducted. EXHIBIT O sets forth a complete list
of each of the organizational documents with respect to each of the RVG
Entities (collectively, the "RVG Organizational Documents", and Sellers
have provided to CSCP a true, correct and complete copy of each such
RVG Organizational Document. The RVG Organizational Documents are in
full force and effect and have not been modified, supplemented or
amended;
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(ii) Each Interest has been validly issued in accordance with
the organizational documents of the RVG Entity to which it relates and
applicable law. The RVG Entity Owners own the Interests free and clear
of any encumbrance or other adverse claim, and there are no other
holders of all or any portion of or interests in such Interests. The
RVG Entity Owners have not pledged the Interests to any other person.
There are no outstanding interests, equity interests, subscriptions,
purchase rights, subscription rights, conversion rights, exchange
rights, options, warrants, preemptive rights, rights of first refusal,
rights of first offer, or other rights or other arrangements or
commitments outstanding with respect to such Interests or obligating
the Seller of such Interests or any other person or entity to issue,
sell or otherwise cause to be outstanding any Interests, any security
convertible into or exercisable or exchangeable for Interests, or any
other equity participation in any RVG Entity. The Interests are not
subject to any voting trusts, proxies, or other agreements or
understandings. The RVG Entity Owners have the full and unrestricted
right, power and authority to transfer and assign the Interests to CSCP
free and clear of any liens;
(iii) No RVG Entity has any employees.
(iv) Except for (x) amounts due and payable under the Service
Contracts and the Leases, (y) real estate taxes and other amounts as
set forth in the applicable Owner's Policies and (z) Assumable Debt, no
RVG Entity has any liabilities.
(v) No RVG Entity owns directly or indirectly any assets other
than the Property set forth opposite its name on EXHIBIT B-2 and assets
incidental thereto;
(vi) None of the RVG Entities has received written notice that
it is in breach of, or in default under, any contract or other
agreement to which it is a party which breach or default has not
subsequently been cured or waived;
(vii) None of the RVG Entities has received any written notice
from any Governmental Authority that it is in violation of any
applicable law, rule, regulation, order, judgment or decree applicable
to it. Each of the RVG Entities has all governmental licenses, permits
and other applicable approvals necessary to carry on its business as
now being conducted by it;
(viii) None of the RVG Entities has been dissolved or
liquidated, there is not pending before any Governmental Authority any
legal action or proceeding seeking reorganization, liquidation or
dissolution of any of the RVG Entities and none of the RVG Entities is
the subject of any pending circumstance that, with the giving of notice
or the passage of time or both, could result in such RVG Entities being
dissolved or liquidated;
(ix) For each of the past five (5) years (or, for each RVG
Entity in existence for less than five (5) years, for so long as such
RVG Entity has been in existence), each RVG Entity has been, is now and
through applicable Closing will be, covered by valid policies of
insurance of such types (including commercial general liability
insurance and, if required by law, workers' compensation insurance) and
in such amounts as are consistent with customary practices and
standards of other companies engaged in business operations similar to
those of such RVG Entity;
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(x) No RVG Entity has any contract or other legally binding
agreement with any of its affiliates that shall be in effect following
the Closing;
(xi) There is no legal action or proceeding pending against any
RVG Entity before any Governmental Authority or arbitration panel, and,
to Sellers' knowledge, no such action or proceeding has been threatened
in writing;
(xii) No RVG Entity has engaged in any business or activity that
is not permitted by the terms of the organizational documents governing
such RVG Entity, nor has any RVG Entity engaged in any business or
activity other than the ownership and operation of the Premises owned
by such RVG Entity;
(xiii) (A) Each RVG Entity has filed all federal and state
income tax returns and any other tax returns required to be filed by it
(including, without limitation, franchise, sales, real property and
transfer taxes) within the time allotted therefor (taking into account
any available extensions), such returns, when filed, were accurate and
each RVG Entity has paid all taxes owed by it in connection with any
such tax returns;
(B) With respect to the RVG Entities, no Seller or RVG
Entity has taken, nor will take, any action inconsistent with the
treatment of such RVG Entity as a "partnership" for federal and state
income tax purposes;
(C) Each RVG Entity has collected or, where applicable,
withheld, all taxes required to be withheld by it under applicable law,
including, without limitation, taxes arising as a result of payments
(or amounts allocable) to foreign persons, and has either paid such
taxes to the Governmental Authorities to which they are owed, or set
them aside in accounts for such purpose, or accrued, reserved against
and entered them upon the books and records of the applicable RVG
Entity;
(D) No deficiency for any amount of tax has been asserted
or assessed by a taxing authority relating to the business, operations
and assets of the RVG Entities and Sellers have no knowledge that any
such assessment or assertion of tax liability shall be made;
(E) No audit or investigation by any taxing authority
with respect to the business, operations and assets of the RVG Entities
is currently pending or, to Sellers' knowledge, threatened, and Sellers
do not reasonably expect any taxing authority to claim or assess any
additional taxes for any period;
(F) No Seller or RVG Entity has consented to extend the
time in which any tax may be assessed or collected by any taxing
authority with respect to the business, operations and assets of any
RVG Entities;
(G) No RVG Entity has been a member of an "Affiliated
Group" (as defined in Section 1504 of the Code) or any similar group
defined under local, state or foreign tax law or has liability for
taxes of any other person under Treasury Regulations Section 1.1502-6
or any similar provision of local, state or foreign tax law; and
14
(H) No RVG Entity is a party to or bound by any tax
allocation or tax sharing agreement or has contractual obligations to
indemnify any other person with respect to taxes.
(w) With respect to the Development Work (as hereinafter defined):
(i) Sellers have obtained all governmental permits, licenses,
consents, certificates and approvals which are necessary in connection
with the construction of the improvements on the Development Premises
(as hereinafter defined) in accordance with the Development Plans and
Specifications (as hereinafter defined);
(ii) Sellers are not aware of any fact or circumstance that
would prevent the development, ownership and/or operation of the
Development Premises in accordance with the Development Plans and
Specifications and the Development Schedule (as hereinafter defined);
(iii) Attached hereto and made a part hereof as EXHIBIT P-1, P-2
AND P-3, respectively, are true, correct and complete lists of (i) all
of the plans and specifications for the Development Work (the
"Development Plans and Specifications"), (ii) all of the material
contracts and agreements for the performance of the Development Work
(the "Development Contracts") and (iii) the project schedule for the
Development Work (the "Development Schedule"). Sellers have provided to
CSCP true, correct and complete copies of the Development Plans and
Specifications, the Development Contracts, and the Development
Schedule. Each of the Development Contracts is in full force and
effect, and no Seller has given or received any written notices of
default thereunder, and neither any Seller, nor to the best of any
Seller's knowledge, any of the other parties thereto is in default of
any of its obligations thereunder. The Development Plans and
Specifications have been approved by all parties whose approval is
required (including, without limitation, all lenders providing
financing with respect thereto). At the Closing, all guarantees,
warranties and indemnities given in connection with the Development
Work by any contractors, subcontractors, consultants or materialmen who
shall have furnished materials or supplies or performed work or
services in connection with the Development Work including the benefit
of all guaranties and warranties contained in the Development
Contracts, shall be in full force and effect, and run to the benefit
of, and be enforceable by, Coliseum FF, LLC. To Sellers' knowledge, the
Development Plans and Specifications comply with all Laws; and
(iv) the Development Work is being performed expeditiously, lien
free, in a good and workmanlike manner, in accordance with all Laws and
the Permitted Encumbrances, and in accordance with the Development
Schedule, and at the Closing all obligations and liabilities of Sellers
and the RVG Entities in connection with the Development Work shall have
been discharged in full.
2. All of the representations and warranties of each Seller set forth
in this Agreement and any Exhibit attached hereto, or in any letter or
certificate furnished to CSCP pursuant to the terms hereof, each of which is
incorporated herein by reference and made a part hereof, shall be true, correct
and complete upon the execution of this Agreement, shall be deemed to be
repeated at and as of the Closing Date, and shall be true, correct and complete
as of the Closing Date.
15
3. Other than the representations, warranties and agreements set forth
in Section 1 (a), (b) and (v) of this Article, the representations, warranties
and agreements set forth in this Article shall survive the applicable Closing
for a period of one (1) year, unless a claim shall be made within such one (1)
year period in which event the representations, warranties and agreements shall
survive the applicable Closing until resolution of all such claims. The
representations, warranties and agreements set forth in Section 1 (a), (b) and
(v) of this Article shall survive the applicable Closing until the expiration of
the applicable statute of limitations with respect to all causes of action which
may be brought in connection with a breach of such representations, warranties
and/or agreements.
4. The qualifications "Sellers' knowledge" and "best of Sellers'
knowledge" and similar words shall mean the knowledge (as of the date hereof and
such future dates, when, according to this Agreement, any representation and
warranty to which such qualification applies is to be true and correct) of
Dennis J. Schmidt, Robert V. Gothier, Sr., and Robert V. Gothier, Jr.
(collectively, the "Knowledge Parties"); provided, however, that the Knowledge
Parties shall be deemed to have knowledge of (i) any matters set forth in
written correspondence or notices addressed to any Seller (or any affiliate
thereof, including any RVG Entity) or any Knowledge Party and (ii) any matters
contained in the files of any Seller (or any affiliate thereof, including any
RVG Entity) or any Knowledge Party. If any of the representations and warranties
contained in this Agreement that are qualified with "Sellers' knowledge", "best
of Sellers' knowledge", or words of similar import would have been untrue or
incorrect had they not been so qualified, then, notwithstanding anything to the
contrary contained in this Agreement, CSCP shall have the right, exercisable by
delivery of written notice to Sellers, to either (i) with respect to the
Premises located in Mechanicsburg, Pennsylvania only, remove such Premises from
the Premises being conveyed pursuant to this Agreement and receive a
corresponding reduction in the Consideration, or (ii) terminate this Agreement
by written notice delivered to Sellers (in which event the Title Company shall
return the Required Deposit to CSCP and no party hereto shall have any further
obligations in connection herewith except under those provisions that expressly
survive a termination of this Agreement).
5. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN THE DOCUMENTS
AND INSTRUMENTS EXECUTED IN CONNECTION WITH, OR PURSUANT TO, THIS AGREEMENT,
EACH SELLER HAS MADE NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS AND
WARRANTIES RESPECTING THE PROPERTY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN THE DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION WITH, OR
PURSUANT TO, THIS AGREEMENT, CSCP SHALL ACCEPT THE PROPERTY IN ITS "AS IS"
CONDITION, AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND.
ARTICLE VII: Representations and Warranties of CSCP.
1. CSCP represents, warrants and agrees that:
16
(a) (i) CSCP is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware; (ii) CSCP
has the power and authority to purchase the Property and the Interests and to
execute the documents referred to herein to be executed by CSCP; (iii) prior to
the Closing, CSCP shall have taken all partnership actions required for the
consummation of the transactions contemplated by this Agreement; and (iv) except
for the consent of the Existing Lenders, no approvals or consents by third
parties or Governmental Authorities are required in order for CSCP to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the performance by CSCP of its obligations hereunder will not
conflict with, or result in a breach of, any of the terms, conditions and
provisions of any charter, articles of incorporation, bylaws or operating
agreement binding upon CSCP or any of its constituent entities.
(b) Neither CSCP nor its general partner, as the case may be, has
(i) made a general assignment for the benefit of its creditors, (ii) admitted in
writing its inability to pay its debts as they mature, (iii) had an attachment,
execution or other judicial seizure of any property interest which remains in
effect or (iv) become generally unable to meet its financial obligations as they
accrue. There is not pending any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
recomposition of CSCP or its general partner, as the case may be, or the debts
of such parties under any law relating to bankruptcy, insolvency, reorganization
or relief of debtors or seeking appointment of a receiver, trustee, custodian or
other similar official for it or its general partner or all or any substantial
part of its or their property.
2. All of the representations and warranties of CSCP set forth in this
Agreement shall be true, correct and complete upon the execution of this
Agreement, shall be deemed to be repeated at and as of the Closing Date, and
shall be true, correct and complete as of the Closing Date, and all of the
representations, warranties and agreements set forth in this Article shall
survive the applicable Closing until the expiration of the applicable statute of
limitations with respect to all causes of action that may be brought in
connection with a breach of such representations, warranties and/or agreements.
ARTICLE VIII: Conditions to Obligations of CSCP and Sellers.
1. Without limiting any of the rights of CSCP elsewhere provided for in
this Agreement, it is agreed that the obligations of CSCP under this Agreement
shall be subject to the satisfaction of the following conditions precedent:
(a) The truth and accuracy, as of the Closing Date, of all of the
representations and warranties and agreements of Sellers contained in this
Agreement;
(b) The delivery to CSCP of all documents and other items referred
to in Section 1 of Article XI hereof;
(c) The agreement by the Title Company to issue each Owner's Policy
and each Lender's Policy;
(d) The absence of any litigation with respect to the transactions
contemplated by this Agreement;
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(e) The approval by Existing Lenders of the Debt Assumption, the
approval by CSCP of the Assumption Documents and any ancillary conditions
imposed by the Existing Lenders for the Debt Assumption, the Debt Documents
being in full force and effect without any defaults thereunder, and the
assumption by CSCP or its designees of the Assumable Debt;
(f) Receipt of the Required Tenant Estoppels (as hereinafter
defined);
(g) Receipt of the Existing Environmental Reports, as updated and
certified to CSCP by the preparer thereof and otherwise reasonably satisfactory
to CSCP;
(h) Receipt of financial statements for the Property, audited (if
required by CSCP and at CSCP's cost) by a firm of independent certified public
accountants acceptable to CSCP sufficient to satisfy public company reporting
requirements pursuant to the Securities Act of 1933 and the Securities Exchange
Act of 1934 applicable to CSCP or Cedar Shopping Centers, Inc.;
(i) The Development Work has been completed lien free in a good and
workmanlike manner in accordance with all Laws and Permitted Encumbrances, and
all obligations and liabilities of Sellers and the RVG Entities in connection
therewith have been discharged in full; and
(j) Any other condition precedent to the obligations of CSCP
expressly provided in this Agreement.
2. Without limiting any of the rights of Sellers elsewhere provided for
in this Agreement, it is agreed that the obligations of Sellers under this
Agreement shall be subject to the satisfaction of the following conditions
precedent:
(a) The truth and accuracy, as of the Closing Date, of all of the
representations and warranties of CSCP contained in this Agreement;
(b) The delivery to Sellers of all documents and other items
referred to in Section 2 of Article XI hereof; and
(c) The absence of any litigation with respect to the transactions
contemplated by this Agreement.
ARTICLE IX: Obligations and Covenants of Sellers.
1. From the date of this Agreement to the Closing Date, Sellers shall,
at their sole cost and expense:
(a) Keep CSCP informed as to the ongoing operations at the Premises,
the performance of the Development Work and all material developments with
respect to the Property including, without limitation, providing CSCP with (i)
prompt notice of all new Leases and Service Contracts or modifications to
existing Leases and Service Contracts entered into in accordance with the terms
of this Agreement (together with copies thereof), (ii) copies of all material
correspondence received or delivered with respect to the Property (including
default notices under the Leases, Service Contracts and Development Contracts),
promptly following receipt or delivery and (iii) notice of any breach of the
representations and warranties of Sellers contained in this Agreement promptly
following a Seller becoming aware of any such breach;
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(b) Maintain and operate each Property in substantially the same
condition and manner as the Property is now maintained and operated;
(c) Maintain insurance coverage for the Premises in accordance with
the current insurance coverage;
(d) Maintain all Leases in full force and effect, timely make and
observe and perform all obligations to be paid, observed or performed by Sellers
thereunder and enforce the obligations of the Tenants thereunder;
(e) Promptly deliver notice to CSCP of, and, if the same may
adversely affect CSCP or the Premises, defend, all actions, suits, claims and
other proceedings affecting the Premises, or the use, possession or occupancy
thereof;
(f) Promptly deliver notice to CSCP of any actual or threatened
condemnation of the Premises or any portion thereof;
(g) Maintain all Permits in full force and effect and promptly
deliver notice to CSCP of any intention of Sellers to seek any new Permit;
(h) Maintain all Service Contracts in full force and effect, timely
make all payments and observe and perform all obligations to be paid, observed
or performed by Sellers thereunder;
(i) Comply with all obligations under the Debt Documents;
(j) Terminate, at or prior to Closing, all management and leasing
agreements with respect to the Premises and, if there are any third party
property managers for the Premises, obtain a final lien waiver from each such
property manager, and a termination of each such management agreement, effective
as of the Closing Date;
(k) Terminate, at or prior to Closing, all Unassumed Service
Contracts (as hereinafter defined);
(l) Promptly make available to CSCP any and all documents relating
to the Property, make its personnel available to CSCP at all reasonable times,
and cooperate in all respects with CSCP in connection with (i) CSCP's due
diligence investigation of the Property, its review and verification of
financial information relating thereto and CSCP's development of projections
with respect thereto, and (ii) the consummation of the transactions set forth in
this Agreement;
(m) Promptly deliver to CSCP copies of any notices of violation of
Law relating to the Premises, any Environmental Law applicable to the Premises
and any notice of violation of any site plan approvals, zoning or subdivision
regulations, urban redevelopment plans applicable to the Premises or Permitted
Exceptions;
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(n) With respect to the Development Work, comply with the terms of
Article XX hereof; and
(o) Comply at all times with the applicable requirements of
Executive Order 13224; the International Emergency Economic Powers Act, 50
U.S.C. Sections 1701-06; the United and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.
L. 107-56; the Iraqi Sanctions Act, Pub. L. 101-513, 104 Stat. 2047-55; the
United Nations Participation Act, 22 U.S.C. Section 287c; the Antiterrorism and
Effective Death Penalty Act, (enacting 8 U.S.C. Section 219, 18 U.S.C. Section
2332d, and 18 U.S.C. Section 2339b); the International Security and Development
Cooperation Act, 22 U.S.C. Section 2349 aa-9; the Terrorism Sanctions
Regulations, 31 C.F.R. Part 595; the Terrorism List Governments Sanctions
Regulations, 31 C.F.R. Part 596; and the Foreign Terrorist Organizations
Sanctions Regulations, 31 C.F.R. Part 597 and any similar laws are regulation
currently in force or hereafter enacted.
2. From the date of this Agreement to the Closing Date, Sellers and the
RVG Entities shall not:
(a) Modify, terminate, amend or allow the assignment of existing
Leases, except as required by the terms of the existing Leases, without CSCP's
prior written consent, such consent not to be unreasonably withheld.
(b) Prior to the Designated Date, enter into Leases (i) with
reputable and creditworthy Tenants covering four thousand (4,000) square feet or
less, other than in accordance with Sellers' ordinary conduct of business as
presently conducted, or (ii) covering more than four thousand (4,000) square
feet, in each instance without CSCP's prior written consent (not to be
unreasonably withheld). Following the Designated Date, enter into any Leases
without CSCP's prior written consent. Prior to the Designated Date, CSCP's
failure to respond to Sellers' written request for consent to a new Lease within
five (5) Business Days following receipt of such written request shall be deemed
to be CSCP's written consent to such Lease.
(c) Modify, terminate, amend or assign the Debt Documents or the TIF
Documents;
(d) Remove from the Premises any article of Personal Property,
except as may be necessary for repairs, or the discarding of worn out or useless
items; provided, however, that any article removed for repairs shall be returned
to the Premises promptly upon its repair and shall remain a part of the Personal
Property whether or not such article shall be located on the Premises at the
time of the Closing, and any article so discarded shall be replaced with a new
article of similar quality and utility prior to the Closing;
(e) Modify, amend, renew, extend, terminate or otherwise alter any
of the Service Contracts or enter into any new maintenance service contracts or
any other agreements affecting the Premises which shall be binding upon the
Premises or any RVG Entity or CSCP following Closing, without the prior written
consent of CSCP in each instance, which consent shall not be unreasonably
withheld, conditioned or delayed; provided, however, that from and after the
Designated Date such consent may be withheld in CSCP's sole discretion;
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(f) Undertake or commence any capital renovations or alterations at
the Premises, except those necessary to comply with any of the provisions of
this Agreement or the Leases, without the prior written consent of CSCP in each
instance, which consent shall not be unreasonably withheld, conditioned or
delayed;
(g) Subject the Property to any additional liens, encumbrances,
covenants, conditions, easements, rights of way or similar matters which will
not be eliminated at Sellers' sole cost and expense prior to the Closing Date;
or
(h) Permit the lapse of any Letter of Credit Security Deposit (as
hereinafter defined) or apply any Security Deposit other than, prior to the
Designated Date, application pursuant to law and the express terms of the
Leases.
3. On or prior to the Designated Date, CSCP may give Sellers written
notice (the "Service Contract Notice") designating those Service Contracts which
CSCP wishes Seller or an RVG Entity to terminate as of the Closing (the
"Unassumed Service Contracts") and those Service Contracts which CSCP elects to
have remain in effect after the Closing (the "Assumed Service Contracts"). The
failure of CSCP to give the Service Contract Notice shall be deemed to
constitute CSCP's election to have all Service Contracts remain in effect
following Closing (other than leasing and management agreements which Sellers
shall terminate effective as of the Closing). Provided that the Closing occurs
hereunder, Sellers shall, or shall cause the applicable RVG Entities to,
terminate effective as of the Closing Date such Unassumed Service Contracts that
may be terminated pursuant to their terms; provided, however, that if an
Unassumed Service Contract cannot be terminated without the payment of a
termination fee, Sellers shall pay such termination fee directly to the
applicable party under such Unassumed Service Contract.
4. From time to time after the Closing Date, on CSCP's request and with
reasonable notice, Sellers and the RVG Entities shall during normal business
hours make all of their respective records relating to the RVG Entities and the
Property available to CSCP for inspection, copying and audit by CSCP and its
representatives and outside accountants.
5. The provision of this Article shall survive the Closing.
ARTICLE X: Apportionments.
1. The following items shall be apportioned between Sellers and CSCP as
of 11:59 PM of the day immediately preceding the Closing Date (the "Proration
Time"):
(a) All rentals (including all CAM, tax, insurance and trash charges
and all percentage rentals) and all other income related to the Property, on a
per diem basis, based on rentals actually collected for such month or such other
period as herein provided. All rentals received by Sellers or the RVG Entities
prior to the Closing Date for periods after the Closing Date shall be credited
to CSCP at Closing. Subsequent to the Closing, (a) Sellers shall promptly
deliver to CSCP any rentals received by Sellers following the Closing, and (b)
CSCP shall promptly pay to Sellers any amount to which Sellers shall be entitled
pursuant to this Article.
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(b) Promotional and marketing payments collected by Sellers or the
RVG Entities from Tenants and the promotional and marketing expenses (including
carry-forwards) solely attributable to the Property incurred and paid by Sellers
or the RVG Entities for the calendar year in which the Closing occurs shall be
prorated at Closing. If the promotional and marketing payment collected by
Sellers or the RVG Entities from Tenants from the first day of the calendar year
in which the Closing occurs through the Proration Time (the "Adjustment Period")
exceeds promotional and marketing expenses (including carry-forwards) solely
attributable to the Property incurred and paid by Sellers or the RVG Entities
for the Adjustment Period (the "Excess Promotional Payment"), Sellers shall
credit such Excess Promotional Payment against the Consideration at the Closing.
If the promotional and marketing payment collected by Sellers or the RVG
Entities during the Adjustment Period is less than the promotional and marketing
expenses (including carry-forwards) solely attributable to the Property and
incurred and paid by Sellers or the RVG Entities for the Adjustment Period (the
"Promotional Underpayment"), and such deficiency is reimbursable by Tenants in
good standing, the Consideration payable to Sellers at the Closing shall be
increased by such Promotional Underpayment.
(c) All operating expenses (including utility charges and charges
under Service Contracts being assumed by CSCP), relating to the Property shall
be prorated between Sellers and CSCP as of the Proration Time. Sellers shall pay
in full all invoices, bills and other obligations and liabilities relating to
the Property and the Interests for the period prior to the Closing Date,
regardless of whether the invoices, bills and evidences of other obligations are
received prior to, on or after the Closing Date. To the extent practicable,
utility meters (other than those payable directly by Tenants to the public
utilities) shall be read no more than one Business Day prior to the Closing
Date. Sellers shall assign to CSCP all of Sellers' right, title and interest in
all utility security deposits and Sellers shall receive a credit therefor at
Closing. Sellers shall not receive any credit with respect to any utility
security deposits that shall not be assigned to CSCP.
(d) CSCP shall receive a credit against the Consideration at Closing
in an amount equal to all Security Deposits made by Tenants as security for
rent, cleaning or any other purpose (whether identified as refundable or
non-refundable) that have not been applied in accordance with the terms of the
Leases, together with, if applicable, the amount of interest then accrued
thereon at the interest rate payable with respect thereto in accordance with the
terms of the applicable Lease (or at law, to the extent a higher rate is
required). Seller shall cause all Security Deposits in the form of letters of
credit (the "Letter of Credit Security Deposits") to be assigned or reissued to
CSCP in a manner so that at the Closing (i) the issuing bank recognizes CSCP or
its designee as the named beneficiary or (ii) the letters of credit have been
reissued with CSCP or its designee as the named beneficiary, and Sellers shall
pay all fees and expenses of the issuing bank charged in connection with any
such assignment or reissuance.
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(e) With respect to any Property for which the reconciliation of
CAM, trash, tax and insurance paid by Tenants ("Additional Charges") for the
calendar year immediately prior to the calendar year in which the Closing Date
occurs (the "Prior Calendar Year") shall not have occurred, Sellers shall
prepare and provide to CSCP, promptly following the Closing Date (and in any
event prior to such date as shall be required by any Lease with respect to such
Property), the reconciliation for Additional Charges for the Prior Calendar
Year. Following completion of the Additional Charges reconciliations for the
Prior Calendar Year, CSCP shall send the reconciliations for said Prior Calendar
Year to the Tenants and invoice all Tenants for any shortages in payments of the
Additional Charges. Within thirty (30) days after completion, Sellers shall
reimburse CSCP for any overpayments by Tenants of Additional Charges
attributable to the period of Sellers' ownership under the Leases (such that,
after taking into account the prorations elsewhere in this Article, neither
Sellers nor CSCP shall have retained Additional Charges in excess of what each
spent). Notwithstanding anything to the contrary contained herein, CSCP shall
reimburse Sellers promptly after receipt of same from Tenants for any shortages
attributable to the period of Sellers' ownership to the extent CSCP receives
reimbursement from Tenants, less a pro rata share of the third party costs (but
excluding third party property management fees) incurred by CSCP in obtaining
same.
(f) Percentage rents for the month in which the Closing shall occur
shall be prorated and adjusted based on the percentage rent actually received
and attributable for such month and the period of ownership of the Premises
during such month, and shall be paid by CSCP to Sellers within thirty (30) days
after receipt.
(g) All general and special real property, personal property and
other ad valorem taxes and assessments for the Property and all other
governmental taxes, fees, charges and assessments affecting the Property or any
part thereof shall be prorated as of the Proration Time, on the basis of the
most recent reliable information available (which, in the case of real property
taxes and assessments, shall be the most current real property tax bill
available). CSCP shall receive a credit in an amount equal to all of such taxes
and assessments which are either due and payable as of the Proration Time (and
are unpaid) or are accrued but are not yet due and payable and Sellers shall
receive a credit in an amount equal to all such taxes and assessments paid by
Sellers for periods after the Proration Time; provided, however that if any such
assessment is or may become payable in installments, and the first installment
is then a charge or lien or has been paid, then for purposes of this Agreement
all the unpaid installments shall be deemed to be due and payable and to be a
lien upon the Property and shall be paid and discharged by Sellers as of the
Closing Date. Sellers shall remain solely responsible for and shall promptly pay
before their due dates all real property taxes and assessments (including,
without limitation, supplemental or escaped assessments or reassessments)
relating or attributable to periods prior to the Closing Date, regardless of
when notice of such taxes, assessments, or reassessments is received or who
receives the notice. Notwithstanding the foregoing, if Giant or Farm Fresh (or
any other national tenant approved for purposes of this subsection only by CSCP,
acting reasonably) shall be responsible pursuant to the terms of its Lease for
payment of any portion of the real estate taxes for a Property and, as a result
of the prorations hereunder, CSCP shall be entitled to a credit on account
thereof, no proration shall be required hereunder provided Giant or Farm Fresh
(or such other national tenant approved by CSCP, acting reasonably) is in good
standing under its Lease.
(h) Interest under the Assumable Debt shall be prorated as of the
Proration Time. Sellers shall receive a credit for escrows held in connection
with the Assumable Debt (provided all of Sellers' rights with respect to such
escrows have been assigned to CSCP).
(i) All commission, listing and referral fees, and tenant
improvement and inducement costs existing at Closing or due and payable after
Closing shall be paid or discharged by Sellers at or prior to the Closing, and
evidence thereof shall be presented to CSCP at the Closing.
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(j) CSCP shall receive a credit in the amount of Twenty Five
Thousand Dollars ($25,000) on account of the condition of the roof at the
General Booth, Virginia Beach, Virginia Property, and CSCP acknowledges and
agrees that the repair of the roof shall be CSCP's responsibility.
(k) Such other items as are customarily apportioned between sellers
and purchasers of real properties of a type similar to the Premises located in
the State where each Property is located shall be prorated.
2. Rents and other sums which are delinquent at the Closing shall not
be prorated. Sellers shall have no right to take any action to collect such
delinquent rents and other sums after the Closing. All sums received from the
Tenants after the Closing shall first be applied to the then current rent and
then to delinquent sums, if any, owed by such Tenants in the reverse order of
occurrence. Any rents collected by CSCP that are owed to Sellers pursuant to the
preceding sentence shall be held by CSCP for the account of Sellers, and, after
deducting therefrom a pro-rata share of all third party expenses (but excluding
third party property management fees) incurred in connection with the collection
thereof, CSCP shall remit the same to Sellers. Sellers shall pay to CSCP,
promptly following receipt, all income received by Sellers from and after the
Closing Date (regardless of the period to which such income relates) and
attributable to the Property for allocation by CSCP pursuant to this Article.
3. With respect to the transfer of the Interests in the RVG Entities,
CSCP and Sellers acknowledge and agree that the Sellers shall be responsible for
all liabilities and obligations of the RVG Entities arising or accruing prior to
the Closing Date, and apportionments shall be made at Closing to effectuate the
foregoing.
4. Sellers will prepare in good faith and deliver to CSCP no less than
five (5) Business Days before the Closing Date a statement (the "Closing
Statement") of (i) estimated proration items, and other credits and adjustments
to the Consideration, (ii) a detailed accounting for each Tenant of the then
current payment status of all rentals and other amounts (including amounts
payable on account of operating expenses) payable under the Leases for the
applicable calendar year, percentage rent lease year or other applicable payment
period(s), and (iii) a detailed accounting of all operating expenses then
incurred for the Premises for the current calendar year and the Prior Calendar
Year (together with documentation evidencing such operating expenses). Upon
approval by Sellers and CSCP of the Closing Statement, the preliminary proration
items, credits and adjustments reflected in the Closing Statement will be paid
at Closing by CSCP to Sellers (if the preliminary proration items, credits and
adjustments result in a net credit to Sellers) or by Sellers to CSCP (if the
preliminary proration items, credits and adjustments result in a net credit to
CSCP) by increasing or reducing the Consideration at the Closing. If amounts
collected from Tenants on account of operating expenses for the current calendar
year or the Prior Calendar Year exceed the actual amounts incurred by Sellers on
account of such operating expenses, at Closing, Sellers shall deposit with CSCP
or allow as a credit against the Consideration, an amount equal to such excess.
Sellers shall, promptly following the Closing, deliver to CSCP an update to the
Closing Statement providing the information required in clauses (ii) and (iii)
above through the Closing Date.
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5. If any of the items described in this Article cannot be apportioned
at the Closing because of the unavailability of information as to the amounts
which are to be apportioned or otherwise, or are incorrectly apportioned at
Closing or subsequent thereto, such items shall be apportioned or reapportioned,
as the case may be, as soon as practicable after the Closing Date or the date
such error is discovered, as applicable; provided that neither party shall have
the right to request apportionment or reapportionment of any such item at any
time following the two (2) year anniversary of the applicable Closing Date.
Remittance of the amount due from one party to another shall be made promptly
after the request for re-proration.
6. The provisions of this Article shall survive the Closing.
ARTICLE XI: Closing Documents.
1. At or prior to the Closing, Sellers, at their sole cost and expense,
shall deliver or cause to be delivered to CSCP (or to CSCP's nominee or
designee) the following, to the extent applicable, each of which shall be
executed by the appropriate Seller (or such other party as indicated below) and,
to the extent applicable, acknowledged:
(a) A deed conveying fee simple title to the Properties located in
the Commonwealth of Pennsylvania (the "Pennsylvania Properties") in the form of
EXHIBIT Q attached hereto and made a part hereof;
(b) An assignment and assumption of interest for each of the
Interests (collectively, the "Assignment and Assumption of Interests") in the
form of EXHIBIT R attached hereto and made a part hereof
(c) An assignment and assumption of leases for each of the
Pennsylvania Properties (collectively, the "Assignment and Assumption of
Leases") in the form of EXHIBIT S attached hereto and made a part hereof;
(d) With respect to those Service Contracts related to the
Pennsylvania Properties that have not been terminated in accordance with this
Agreement, an assignment and assumption of Service Contracts for each of the
Pennsylvania Properties (collectively, the "Assignment and Assumption of Service
Contracts") in the form of EXHIBIT T attached hereto and made a part hereof;
(e) A bill of sale and general assignment for each of the
Pennsylvania Properties in the form of EXHIBIT U attached hereto and made a part
hereof;
(f) The Title Affidavits;
(g) A certification of non-foreign status in the form of EXHIBIT V
attached hereto and made a part hereof from each Seller;
(h) Complete sets of "as-built" plans and specifications for the
improvements in Sellers' or an RVG Entity's possession or control;
25
(i) The originals of all documents attached as or referred to in the
Exhibits to this Agreement, including, without limitation, the Leases (and all
tenant files related thereto), the Debt Documents, the TIF Documents, the Tenant
Estoppel Certificates (as hereinafter defined), the REA Estoppels (as
hereinafter defined), P & S Estoppel (as hereinafter defined), the Service
Contracts that are not being terminated pursuant to this Agreement and the RVG
Organizational Documents;
(j) A certificate of Sellers in the form of EXHIBIT W attached
hereto and made a part hereof dated as of the Closing Date, certifying that all
of Sellers' representations and warranties set forth in this Agreement remain
true, correct and complete, as if made on the Closing Date, or if not,
specifying the respect in which any such representation or warranty is no longer
true, correct and complete;
(k) Assignments or reissuances of the Letter of Credit Security
Deposits related to the Pennsylvania Properties;
(l) An update of each Rent Roll, dated as of the Closing Date and
represented and certified by Sellers to be true, correct and complete with
respect to the information contained therein;
(m) All maintenance records and operating manuals pertaining to the
Property in Sellers' or an RVG Entity's possession or control;
(n) All keys to the Premises in Sellers' or an RVG Entity's
possession or control;
(o) A letter to each of the Tenants of the Pennsylvania Properties
in the form of EXHIBIT X-1 attached hereto and made a part hereof advising them
of the change in ownership of the Pennsylvania Properties and the transfer of
the Security Deposits and directing that rentals or other payments thereafter be
paid to a payee designated by CSCP, and otherwise complying with applicable law;
(p) A letter to each of the Tenants of the Premises other than the
Pennsylvania Properties in the form of EXHIBIT X-2 attached hereto and made a
part hereof advising them of the change in ownership of the RVG Entities and
directing that rentals or other payments thereafter be paid to a payee
designated by CSCP, and otherwise complying with applicable law
(q) A letter to each of the service providers under the Service
Contracts related to the Pennsylvania Properties assumed by CSCP, in form and
content reasonably acceptable to Sellers and CSCP advising the service providers
of the change in ownership of the Pennsylvania Properties;
(r) If requested by CSCP, a letter to each of the service providers
under the Service Contracts to which an RVG Entity is a party that will not be
terminated pursuant to this Agreement, in form and content reasonably acceptable
to Sellers and CSCP advising the service providers of the change in ownership of
the RVG Entities;
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(s) A non-compete agreement among CSCP, RVG Management & Development
Co., Dennis J. Schmidt, Robert V. Gothier, Sr., and Robert V. Gothier, Jr. in
the form of EXHIBIT Y attached hereto and made a part hereof, executed by each
of the RVG Parties with respect to each Property (the "Non-Compete Agreement");
(t) The Assumption Documents;
(u) A domain name assignment, the change of registrant forms and any
additional documentation required to assign to CSCP any domain names for the
Properties in form and content reasonable satisfactory to CSCP (collectively,
the "Domain Name Documents");
(v) For each Pennsylvania Property, Realty Transfer Tax Statement of
Value and any other transfer tax forms required under Pennsylvania state or
local law (the "Pennsylvania Transfer Tax Forms");
(w) The Dubois Out-Parcels Restriction Agreement (as hereinafter
defined);
(x) Good standing certificates for each of the RVG Entities dated
not earlier than thirty (30) days prior to Closing;
(y) Such corporate, partnership and/or limited liability company
certificates and resolutions as CSCP and the Title Company may reasonably
request in order to confirm each Seller's authority to consummate the
transactions contemplated hereby;
(z) True, correct and complete copies of operating statements
relating to the Premises for the period commencing on the last day of the month
immediately prior to the date of this Agreement was executed and ending on the
last day of the month immediately prior to the Closing Date which do not contain
untrue statements of any material facts or omit to state a material fact
necessary to make the information contained therein not misleading and were
prepared in accordance with generally accepted accounting principles,
consistently applied;
(aa) An agreement executed by the owner of the Fullington Parcel (as
defined in the Hoover REA) in form and content required by the terms of the
Hoover REA or otherwise satisfactory to CSCP in the exercise of its reasonable
judgment subjecting the Fullington Parcel to the terms of the Hoover REA; and
(bb) An assignment and assumption agreement (the "Hoover P & S
Agreement Assignment and Assumption") of Hoover Avenue GF, LP's rights under the
P & S Agreement in form and content satisfactory to CSCP in the exercise of its
reasonable judgment.
2. At the Closing, to the extent applicable, CSCP (or CSCP's designee
or nominee), at CSCP's sole cost and expense, shall deliver to Sellers the
following, each of which shall be executed by CSCP or its nominee or designee
(or such other party as indicated below) and, to the extent applicable,
acknowledged:
(a) The Consideration required pursuant to Article II, in the amount
and form required thereby;
27
(b) The Assignment and Assumption of Interests;
(c) The Assignment and Assumption of Leases;
(d) The Assignment and Assumption of Service Contracts;
(e) The Assignment and Assumption of Permits;
(f) The Assumption Documents;
(g) The Dubois Out-Parcels Restrictive Covenants;
(h) Such corporate, partnership and/or limited liability company
certificates and resolutions as Sellers and the Title Company may reasonably
request in order to confirm CSCP's authority to consummate the transactions
contemplated hereby;
(i) A certificate of CSCP in the form of EXHIBIT Z attached hereto
and made a part hereof dated as of the Closing Date, certifying that all of
CSCP's representations and warranties set forth in this Agreement remain true,
correct and complete as of the Closing Date, or if not, specifying the respect
in which any such representation or warranty is no longer true, correct and
complete;
(j) The Pennsylvania Transfer Tax Forms;
(k) The Non-Compete Agreements;
(l) The Domain Name Documents; and
(m) The Hoover P & S Agreement Assignment and Assumption.
3. At or before the Closing, CSCP and Sellers shall each execute and
deliver such other customary instruments as are reasonably required by the Title
Company or otherwise required to consummate the purchase and sale of the
Property in accordance with the terms hereof, including, without limitation, an
agreement (the "Designation Agreement") designating the Title Company as the
"Reporting Person" for the transaction pursuant to Section 6045(e) of the
Internal Revenue Code of 1986, as amended (the "Code") and the regulations
promulgated thereunder, and executed by Sellers, CSCP and the Title Company. The
Designation Agreement shall be in a form reasonably acceptable to the parties,
and, in any event, shall comply with the requirements of Section 6045(e) of the
Code and the regulations promulgated thereunder.
ARTICLE XII: Due Diligence Investigation; Right to Terminate.
1. CSCP shall have the right until the Closing to perform and complete
all of CSCP's due diligence examinations, reviews and inspections of all matters
pertaining to the purchase of the Interests and the Property, including all RVG
Organizational Documents, Leases and Service Contracts, and all physical,
environmental and compliance matters and conditions respecting the Interests and
the Premises (collectively, the "Investigations"). During the term of this
Agreement, but subject to the terms of the Leases, Sellers shall provide CSCP
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and CSCP's Representatives (as hereinafter defined) with access to the Premises
and shall also make available to CSCP, at the offices of Sellers and/or the
property manager of the Premises, access to such RVG Organizational Documents,
Leases, Service Contracts, other contracts, books, records, plans and
specifications, surveys, engineering and environmental reports, soil studies,
traffic studies, market analysis, and other documentation in Sellers' possession
with respect to the Interests and the Property as CSCP shall reasonably request.
Without limiting the foregoing, CSCP and its directors, officers, employees,
affiliates, partners, members, brokers, agents and other representatives,
including, without limitation, attorneys, accountants, contractors, consultants,
engineers and financial advisors (collectively, "CSCP's Representatives") shall
have the right to (i) perform physical testing (environmental, structural and
otherwise) at the Premises (such as soil borings, water samplings and the like),
(ii) contact Tenants and/or (iii) contact Governmental Authorities having
jurisdiction over the Interests and Premises to inquire with respect to the
compliance of the RVG Entities and the Premises with applicable Laws relating to
the RVG Entities and the Premises.
2. CSCP shall have the right, as part of its Investigations, to cause a
reputable third party engineer selected by CSCP to perform engineering studies
of the Premises.
3. CSCP shall promptly repair any damage to the Premises resulting from
the Investigations and replace, refill and regrade any holes made in, or
excavations of, any portion of the Premises used for such Investigations so that
the Premises shall be in substantially the same condition that it existed in
prior to such Investigations. The provisions of this Section 3 shall survive the
Closing or a termination of this Agreement.
4. CSCP shall defend, indemnify Sellers and hold harmless Sellers from
and against (i) any and all personal injury claims and property damage resulting
from the Investigations, except any claims resulting from any pre-existing
condition and (ii) any liens or encumbrances filed or recorded against the
Premises as a consequence of the Investigations; provided, however, that the
foregoing indemnity and hold harmless shall not include (a) any consequential,
punitive or special damages (except to the extent owed to Tenants pursuant to
matters for which Sellers shall be indemnified pursuant to this Section 4), or
(b) any loss, damage, claims, liability or expense, including reasonable
attorneys' fees, arising from or out of pre-existing conditions on the Premises,
including the discovery by CSCP of pre-existing conditions on the Premises
during any Investigation conducted pursuant to the terms of this Agreement (but
CSCP shall be liable to the extent it negligently aggravates any such
pre-existing condition). The provisions of this Section 4 shall survive the
Closing or a termination of this Agreement.
5. Any provision herein to the contrary notwithstanding and subject to
the terms and conditions of this Section 5, on or before 5:00 P.M. (Eastern
time) on June 24, 2005 (as the same may be extended pursuant to Section 7 below,
the "Designated Date"), CSCP shall have the right (i) with respect to the
Premises located in Mechanicsburg, Pennsylvania only, to remove such Premises
from the Premises being conveyed pursuant to this Agreement (and receive a
corresponding reduction in the Consideration) if the condition of such Premises
shall not be satisfactory to CSCP in CSCP's reasonable discretion (the "Removal
Option"), or (ii) in its sole and absolute discretion, to terminate this
Agreement (the "Termination Option") for any reason or no reason.
Notwithstanding the foregoing, prior to exercise of the Removal Option, CSCP
shall notify Sellers of the unsatisfactory condition with respect to such
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Premises, and, provided that Sellers cure such unsatisfactory condition, as
reasonably determined by CSCP, prior to Closing, CSCP shall have no right to
remove such Premises, as a result of such condition. CSCP shall be deemed to
have waived the Removal Option and the Termination Option, unless, on or before
5:00 P.M. (Eastern time) on the Designated Date CSCP shall deliver to Sellers
written notice of CSCP's election to exercise the Removal Option or the
Termination Option. In the event that CSCP shall exercise the Termination Option
in accordance with this Section 5, the Title Company shall return the Required
Deposit to CSCP and no party hereto shall have any further obligations in
connection herewith except under those provisions that expressly survive the
termination of this Agreement.
6. Sellers shall deliver to CSCP accurate, correct and complete copies
of the following items (the "Property Information") within five (5) days after
the date of this Agreement (or, in the case of item (t) below, within five (5)
days after request by CSCP):
(a) current Rent Roll and current Lease plan;
(b) copies of the Leases (and amendments), together with copies of
all correspondence to and from the Tenants and all estoppels and any
subordination, non-disturbance and attornment agreements obtained by or for
Seller in connection with such Leases;
(c) Tenant sales histories for the most recent 36 months in Sellers'
possession or control;
(d) historical statements (comprised of balance sheets and profit
and loss statements) for the Property and showing results for the most recent
three (3) years and a proforma for the current year;
(e) most recent ALTA survey;
(f) current title insurance policy;
(g) copies of all Debt Documents;
(h) Existing Appraisals, engineering surveys, reports and permits,
soils, hydrological, environmental, asbestos or other reports or test results in
Sellers' possession or control;
(i) real estate and personal property tax bills;
(j) copies of agreements and contracts relating to the ownership,
management, marketing and/or operation of all or any part of the Property,
excluding Leases;
(k) Tenant arrears reports;
(l) warranties and guaranties affecting the improvements or Personal
Property;
(m) government approvals such as licenses, permits, variances or
exceptions (including without limitation pertaining to environmental protection,
fire safety, zoning) and certificates of occupancy;
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(n) notices and correspondence with any government authority or
insurance company concerning compliance or non-compliance with any Law
applicable to the Property;
(o) copies of any current tax protest;
(p) as-built plans and specifications for the improvements and site
plans, drawings and surveys in Sellers' possession or control;
(q) copies of the most recent federal tax returns of each Seller
(other than natural persons) and RVG Entity to the extent such Seller or RVG
Entity is not a "disregarded entity" for federal income tax purposes or, if a
Seller (other than natural persons) or RVG Entity is a "disregarded entity" for
federal income tax purposes, such other tax documentation reasonably acceptable
to CSCP;
(r) the RVG Organizational Documents;
(s) operating statements for the 2003 and 2004 calendar years; and
(t) any other reasonable items requested by CSCP.
7. Notwithstanding anything to the contrary contained in Section 5
above, in the event that Sellers shall fail to deliver any of such Property
Information within the five (5) days required for delivery, the Designated Date
shall automatically be extended on a day for day basis for each day beyond such
five (5) day period until CSCP's receipt of such Property Information.
ARTICLE XIII: Estoppel Certificates.
1. Sellers shall use commercially reasonable efforts to obtain a tenant
estoppel certificate from (i) each Tenant (each, a "Tenant Estoppel
Certificate", and collectively, the "Tenant Estoppel Certificates"), (ii) each
party to any reciprocal easement agreement (or other similar agreement)
designated by CSCP and affecting all or any portion of any Premises (the
"Designated REAs"), and (iii) Green Dot with respect to the P & S Agreement.
2. Sellers shall, promptly following the date hereof, deliver a Tenant
Estoppel Certificate in the applicable form (but with all relevant information
filled in by Sellers) attached hereto and made a part hereof as (i) with respect
to all Tenants other than the Tenants set forth on EXHIBIT BB attached hereto
and made a part hereof, EXHIBIT AA-1 and (ii) with respect to the Tenants set
forth on EXHIBIT BB, EXHIBIT AA-2 (the applicable forms being hereinafter
referred to as, the "Tenant Estoppel Certificate Form") to each Tenant of a
Premises for execution by such Tenant. Sellers shall deliver to CSCP each
executed Tenant Estoppel Certificate promptly following Sellers' receipt thereof
(but in all events prior to the Designated Date, with respect to all executed
Tenant Estoppel Certificates received prior to the Designated Date). It shall be
a condition precedent to CSCP's obligation to consummate the transactions
contemplated by this Agreement with respect to the Property that CSCP shall
receive Tenant Estoppel Certificates from (a) all of the Tenants set forth on
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EXHIBIT BB and (b) Tenants occupying not less than eighty percent (80%) of the
total gross leaseable square footage of the Premises less the square footage
occupied by the Tenants referred to in the preceding clause (a), each (i) dated
no earlier than forty five (45) days prior to the Closing Date, (ii) consistent
with the terms of the Leases and the representations and warranties of Sellers
contained in this Agreement, and (iii) in form substantially similar to the
Tenant Estoppel Certificate Form or in such other form as CSCP shall approve in
the exercise of its reasonable judgment (the "Required Tenant Estoppels"). If,
on or before the Scheduled Closing Date, such condition is not satisfied (or
waived in writing by CSCP), then CSCP shall have the right, exercisable by
delivery of written notice to Seller, to (i) with respect to the Premises
located in Mechanicsburg, Pennsylvania only, remove such Premises from the
Premises being conveyed pursuant to this Agreement and receive a corresponding
reduction in the Consideration, or (ii) terminate this Agreement by written
notice delivered to Sellers (in which event the Title Company shall return the
Required Deposit to CSCP and no party hereto shall have any further obligations
in connection herewith except under those provisions that expressly survive a
termination of this Agreement). Either Sellers or CSCP shall have a one (1) time
right to extend the Scheduled Closing Date for up to thirty (30) additional days
if the conditions precedent to CSCP's obligation to close set forth in this
Section 2 have not been satisfied prior to the original Scheduled Closing Date
(exercisable by delivery of written notice to the other parties hereto on or
prior to the Scheduled Closing Date).
3. It shall be a condition precedent to CSCP's obligation to consummate
the transactions contemplated by this Agreement that CSCP shall receive estoppel
certificates in form and content satisfactory to CSCP in its reasonable judgment
from (i) each party to a Designated REA (the "REA Estoppels"), it being
acknowledged and agreed that the Hoover REA is a Designated REA, and (ii) Green
Dot, Inc. with respect to the P & S Agreement. If after using commercially
reasonable efforts Sellers shall be unable to obtain an estoppel certificate
with respect to the Hoover REA acceptable to CSCP in its reasonable judgment,
CSCP shall consider in good faith (without any obligation to accept)
alternatives to the receipt of the Hoover REA proposed by Sellers.
ARTICLE XIV: Brokerage.
1. Sellers represent and warrant to CSCP, and CSCP represents and
warrants to Sellers, that no broker or finder has been engaged by it,
respectively, in connection with the transactions contemplated under this
Agreement. In the event of a claim for broker's or finder's fee or commissions
in connection with the transactions contemplated by this Agreement, Sellers
shall indemnify, defend and hold harmless CSCP from the same if it shall be
based upon any statement or agreement alleged to have been made by Sellers, and
CSCP shall indemnify, defend and hold harmless Sellers from the same if it shall
be based upon any statement or agreement alleged to have been made by CSCP.
2. The Provisions of this Article shall survive the Closing or a
termination of this Agreement.
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ARTICLE XV: Condemnation and Destruction.
1. If, prior to the Closing Date, all or any portion of the Premises is
taken by eminent domain or condemnation (or is the subject of a pending or
contemplated eminent domain or condemnation proceeding which has not been
consummated), Sellers shall notify CSCP of such fact and CSCP shall have the
option (which option shall be set forth in a notice from CSCP to Sellers given
not later than thirty (30) days after receipt of Sellers' notice):
(a) to (i) with respect to the Premises located in Mechanicsburg,
Pennsylvania only, remove such Premises from the Premises being conveyed
pursuant to this Agreement and receive a corresponding reduction in the
Consideration, or (ii) terminate this Agreement by written notice delivered to
Sellers (in which event the Title Company shall return the Required Deposit to
CSCP and no party hereto shall have any further obligations in connection
herewith except under those provisions that expressly survive a termination of
this Agreement); or
(b) to accept title to the Premises or the Interests in the RVG
Entity that owns such Premises, as applicable, without any abatement of the
Consideration.
2. In the event of the taking or pending or contemplated taking of all
or any portion of the Premises, and CSCP elects to accept title to the Premises
or the Interests in the RVG Entity that owns such Premises, (i) Sellers shall be
entitled to any and all amounts awarded and received prior to Closing and (ii)
with respect to amounts not received prior to Closing, Sellers shall assign over
to CSCP at the Closing, and CSCP shall be entitled to keep, all amounts to be
awarded to Sellers as the result of the taking. In either of such events, (a)
Sellers shall not, prior to Closing, settle any action or claim with respect to
any eminent domain or condemnation proceeding without CSCP's prior written
consent (not to be unreasonably withheld) and (b) Sellers agree to cooperate
with CSCP in good faith in connection with all eminent domain and condemnation
proceedings including, without limitation, executing all documents and
instruments necessary to allow CSCP, following the Closing, to settle all
actions and claims and collect all sums in connection therewith.
3. If, prior to the Closing Date, all or any "material" portion of the
Premises is damaged or destroyed or otherwise affected by a fire or other
casualty, Sellers shall notify CSCP of such fact and CSCP shall have the option
(which option shall be set forth in a written notice from CSCP to Sellers given
not later than thirty (30) days after receipt of Sellers' notice):
(a) either (i) with respect to the Premises located in
Mechanicsburg, Pennsylvania only, remove such Premises from the Premises being
conveyed pursuant to this Agreement and receive a corresponding reduction in the
Consideration, or (ii) terminate this Agreement by written notice delivered to
Sellers (in which event the Title Company shall return the Required Deposit to
CSCP and no party hereto shall have any further obligations in connection
herewith except under those provisions that expressly survive a termination of
this Agreement); or
(b) to accept title to the Premises in their existing condition
without any abatement of the Consideration, in which event Sellers shall pay and
assign to CSCP, at the Closing, all of Sellers' and the RVG Entities' right,
title and interest in and to the insurance proceeds awarded or to be awarded to
Sellers as the result of such damage or destruction and CSCP shall receive a
credit for any applicable deductible under Sellers' and the RVG Entities'
insurance policies. In such event, (y) Sellers and the RVG Entities shall not,
prior to Closing, settle any insurance claim without CSCP's prior written
consent and (z) Sellers agree to cooperate with CSCP in good faith in connection
with the settlement of all insurance claims including, without limitation,
executing all documents and instruments necessary to allow CSCP, following the
Closing, to settle and collect all sums in connection therewith.
33
4. If there is damage to or destruction of a part of the Premises by
fire or other casualty that is not "material", such damage or destruction shall
be repaired promptly by Sellers, in which event Sellers shall receive the
insurance proceeds awarded or to be awarded to Sellers as the result of such
damage or destruction, and in the event the same is not repaired on or before
the Closing Date, then at CSCP's option (a) the Closing shall be postponed until
such repairs have been completed or (b) the reasonable cost of such repairs, as
estimated by a reputable third party engineer selected by Sellers and approved
by CSCP (the "Engineer"), shall be credited against the Consideration.
5. A "material" part thereof shall be deemed to have been damaged or
destroyed if (a) with respect to all of the Premises, the cost (as estimated by
a third party engineer acceptable to Seller and CSCP in the exercise of their
reasonable discretion) of repair or replacement thereof shall be equal to or
greater than Five Hundred Thousand Dollars ($500,000) or (b) with respect to any
individual Premises, the cost (as estimated by a third party engineer acceptable
to the applicable Seller and CSCP in the exercise of their reasonable
discretion) of repair or replacement thereof shall be equal to or greater than
Fifty Thousand Dollars ($50,000) or (c) with respect to any individual Premises,
the anchor Tenant has the right to terminate its Lease (and has not waived such
right) as a result of such damage or destruction.
6. The parties hereto waive the provisions of any statute which
provides for a different treatment or outcome in the event of a casualty or a
condemnation or eminent domain proceeding including, without limitation, Section
5-1311 of the General Obligations Laws of the State of New York.
7. The provisions of this Article shall survive the Closing.
ARTICLE XVI: Closing Costs. Sellers shall pay (y) other than the Virginia
Grantor's tax, one-half of all documentary stamp taxes, real estate transfer
fees and taxes, including recordation taxes, and other state and county taxes
due in connection with the sale of the Properties and the Interests (if any),
and (z) one-half of the escrow fees charged by the Title Company for acting as
escrow agent. CSCP shall pay (a) all of the Virginia Grantor's tax, (b) one-half
of all documentary stamp taxes, real estate transfer fees and taxes, including
recordation taxes, and other state and county taxes due in connection with the
sale of the Properties and the Interests (if any) (other than the Virginia
Grantor's Tax), (c) the cost of each Survey, (d) the cost of issuing the Owner's
Policies, (e) the following third party costs and expenses of the Existing
Lenders incurred in connection with obtaining the consents of the Existing
Lenders to the Debt Assumptions: applications fees, processing fees, assumption
fees, attorneys' fees, consultants' fees and the cost of issuing the Lender's
Policies (collectively, the "Assumption Costs"), and (f) one half of the escrow
fees charged by the Title Company for acting as escrow agent. Any other closing
costs shall be allocated in accordance with local custom. Except as expressly
provided in this Agreement, Sellers and CSCP shall pay their respective legal,
consulting, and other professional fees and expenses incurred in connection with
this Agreement and the transaction contemplated hereby and their respective
shares of prorations as herein provided. The provisions of this Article shall
survive the Closing or a termination of this Agreement.
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ARTICLE XVII: Sellers' Defaults.
1. IF THE TRANSACTIONS HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF ANY
SELLER'S BREACH OR DEFAULT UNDER THIS AGREEMENT, THEN CSCP SHALL HAVE, EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS ARTICLE, AS ITS EXCLUSIVE REMEDIES THE
RIGHT TO EITHER (A) TERMINATE THIS AGREEMENT AND RECEIVE PAYMENT OF CSCP'S
REIMBURSABLE DUE DILIGENCE EXPENSES (AS HEREINAFTER DEFINED) FROM SELLERS (IN
WHICH EVENT THE REQUIRED DEPOSIT SHALL BE RETURNED TO CSCP, AND, FOLLOWING THE
RETURN OF SUCH REQUIRED DEPOSIT AND THE PAYMENT TO CSCP OF CSCP'S REIMBURSABLE
DUE DILIGENCE EXPENSES, NO PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR
LIABILITY TO ANY OTHER PARTY HERETO EXCEPT WITH RESPECT TO THOSE PROVISIONS OF
THIS AGREEMENT WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT), OR
(B) SPECIFICALLY ENFORCE THIS AGREEMENT OR SEEK INJUNCTIVE RELIEF OR (C) IF
SPECIFIC PERFORMANCE IS UNAVAILABLE, SUE FOR ACTUAL DAMAGES. AS USED HEREIN,
"CSCP'S REIMBURSABLE DUE DILIGENCE EXPENSES" SHALL MEAN ALL THIRD PARTY COSTS
AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED BY CSCP IN
CONNECTION WITH THE NEGOTIATION AND PREPARATION OF THIS AGREEMENT, CSCP'S
INVESTIGATIONS AND THE ENFORCEMENT OF THIS AGREEMENT IN AN AMOUNT NOT TO EXCEED
SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000).
2. CSCP may only exercise the remedies set forth in this Article
following (y) delivery of written notice to Sellers of the default or breach
(which notice shall contain, in reasonable detail, the nature of the default or
breach) and (z) Sellers' failure to cure such default or breach by the fifteen
(15th) day after receipt of such notice; provided, however, that if CSCP shall
seek specific performance or injunctive relief, CSCP may exercise the remedies
set forth in this Article without giving such notice or providing for such cure
period.
ARTICLE XVIII: CSCP Defaults.
1. IF THE TRANSACTIONS HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF
CSCP'S BREACH OR DEFAULT UNDER THIS AGREEMENT, THEN SELLERS SHALL HAVE, AS THEIR
EXCLUSIVE REMEDY, THE RIGHT TO TERMINATE THIS AGREEMENT AND TO RETAIN THE
REQUIRED DEPOSIT THEN ON DEPOSIT AS LIQUIDATED DAMAGES, AND FOLLOWING SUCH
TERMINATION NO PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO
ANY OTHER PARTY HERETO EXCEPT WITH RESPECT TO THOSE PROVISIONS OF THIS AGREEMENT
WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT. IN CONNECTION WITH
THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLERS WILL INCUR EXPENSE IN
CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE
PREMISES WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY
DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLERS
CAUSED BY THE BREACH BY CSCP UNDER THIS AGREEMENT AND THE FAILURE OF THE
CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF
COMPENSATION SELLERS SHOULD RECEIVE AS A RESULT OF CSCP'S DEFAULT. IN NO EVENT
SHALL CSCP BE LIABLE FOR LOST OR ANTICIPATED PROFITS OR ANY OTHER DAMAGES OTHER
THAN THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS ARTICLE.
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2. Sellers may only exercise the remedy set forth in this Article
following (y) delivery of written notice to CSCP of the default or breach (which
notice shall contain, in reasonable detail, the nature of the default or breach)
and (z) CSCP's failure to cure such default or breach by the fifteenth (15th)
day after receipt of such notice.
ARTICLE XIX: Notices. All notices, requests or other communications which may be
or are required to be given, served or sent by either party hereto to the other
shall be deemed to have been properly given, if in writing and shall be deemed
received (a) upon delivery, if delivered in person or by facsimile transmission,
with receipt thereof confirmed by printed facsimile acknowledgment (with a
confirmation copy delivered in person or by overnight delivery), or (b) one (1)
Business Day after having been deposited for next day overnight delivery with
any reputable overnight courier service, and in each case, addressed as follows:
To CSCP:
Cedar Shopping Centers, Inc.
44 South Bayles Avenue
Port Washington, New York 11050
Attention: Leo S. Ullman
Facsimile: (516) 767-6497
Telephone: (516) 944-4525
With a copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Attention: Steven P. Moskowitz, Esq.
Facsimile: (212) 806-6006
Telephone: (212) 806-5899
To Sellers:
c/o RVG Management & Development Co.
1000 North Front St., Suite 500
Wormleysburg, Pennsylvania 17043
Attention: Robert V. Gothier, Jr.
Facsimile: (717) 731-8580
Telephone: (717) 731-0700
With a Copy To:
Law Offices of Stephen C. Nudel, PC
219 Pine Street
Harrisburg, Pennsylvania 17101
Attention: Stephen C. Nudel, Esq.
Facsimile: (717) 236-5080
Telephone: (717) 236-5000
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ARTICLE XX: Development Work.
1. During the period (the "Development Period") commencing on the date
hereof and ending on the Completion Date (as hereinafter defined), Sellers shall
cause Coliseum FF, LLC, at Sellers' sole cost and expense, to diligently and
continuously prosecute the performance of the Development Work (as hereinafter
defined).
2. As used in this Agreement, the term "Development Work" shall mean
the design, planning and construction of one or more buildings on the Coliseum
Hampton, Virginia Property in accordance with the Development Plans and
Specifications. The Development Plans and Specifications shall not be modified
without the prior written consent of CSCP (not to be unreasonably withheld);
provided, however, that Sellers shall have the right to make "field changes",
provided that such field changes do not (i) adversely affect the value, use, or
financeability of the Development Premises, (ii) constitute a downgrading of the
quality of the materials, equipment or systems, (iii) affect the design or
appearance of the Premises, (iv) constitute a change in the scope of work from
that contemplated by the Development Plans and Specifications or (v) violate any
Law or the terms of any financing documents secured by the Development Premises
or the terms of any easement, covenant, condition or restriction encumbering the
Development Premises or any Lease covering all or any portion of the Development
Premises.
3. Neither Sellers nor RVG Entities shall amend or modify in any
material respect the Development Contracts without the prior written consent of
CSCP and any new Development Contract entered into after the date of this
Agreement shall be subject to the prior approval of CSCP, said approval not to
be unreasonably withheld. Each Development Contract shall permit the assignment
of Sellers' rights under such Development Agreement to CSCP.
4. (a) Sellers shall notify CSCP in writing (the "Completion Notice")
that Completion of the Development Premises will occur on the date specified in
the Completion Notice, and CSCP and representatives of Sellers shall, promptly
thereafter at a mutually acceptable time, perform a walk-through and inspection
of the Development Premises to determine if Completion has occurred. The date on
which Completion of the Development Premises shall actually occur, as agreed to
by CSCP and Sellers, is referred to herein as the "Completion Date".
37
(b) As used in this Agreement, the term "Completion" shall mean that
the Development Work has been completed (including all "punch list" items,
including those identified by CSCP during the walk-through following issuance of
the Completion Notice) in a good, workmanlike and lien-free manner in accordance
with the Development Plans and Specifications, all Laws, the terms of any
financing documents secured by the Development Premises, and the terms of any
easement, covenant, condition or restriction encumbering the Development
Premises, and any Lease covering all or any portion of the Development Premises
(including, without limitation, all equipment and systems contemplated by the
Development Plans and Specifications being in good working order), and receipt
by CSCP of (i) a certification of "final completion", in form and substance
reasonably satisfactory to CSCP executed by Sellers and the architect for said
Development Premises; (ii) copies of all certificates and approvals of all
applicable Governmental Authorities required for the full, unrestricted use and
occupancy of the improvements on the Development Premises for its intended
purpose, including, without limitation, certificate(s) of occupancy and
certificates of inspection for such systems and installations (as applicable),
elevators, moving stairs and walks, mechanical systems, plumbing systems, fire
protection and electrical systems; (iii) final waivers of lien, in form and
substance reasonably satisfactory to CSCP, from all contractors, subcontractors
and materialmen who shall have furnished materials or supplies or performed work
or services in connection with the Development Work and (iv) confirmation of all
of the foregoing from CSCP's construction consultant.
5. Sellers shall warrant the design and construction of the Development
Work (including latent defects) for a period of one (1) year from the date of
Completion of such Development Work.
6. The provisions of this Article shall survive the Closing.
ARTICLE XXI: Indemnification.
1. Sellers, by execution of this Agreement, hereby agree, on a joint
and several basis, to indemnify, defend and hold harmless CSCP, CSCP's nominees
and/or designees, and each of CSCP's and CSCP's nominees' and/or designees'
direct and indirect members, partners, shareholders, principals, officers,
directors and employees (collectively, the "CSCP Parties" and each,
individually, a "CSCP Party") from and against any and all loss, claims,
damages, liabilities, fees, fines, costs and expenses (including reasonable
attorney's fees and disbursements), and actions with respect thereto, regardless
of whether foreseeable, unforeseeable, past, present or future (collectively,
"Claims"), asserted against, incurred or suffered by any CSCP Party in
connection with, related to or arising from (i) the untruth or inaccuracy of any
of the representations or warranties made by Sellers in this Agreement or in any
documents or instrument executed in connection herewith, (ii) the failure of any
Seller to comply with the terms of this Agreement that shall survive the
Closing, (iii) any obligation or liability of any RVG Entity arising or accruing
prior to the Closing Date, including without limitation, in connection with
claims and litigations brought by or against any of the RVG Entities, (iv) liens
for services, labor and materials supplied or claimed to have been supplied to
or in connection with the Premises arising from or in connection with any work
performed by or on behalf of, or materials or services provided to or on behalf
of, any Seller or any RVG Entity including, without limitation, the Development
Work, (v) subject to the provisions of Article XX, Section 5, any defects in the
design and/or construction of the Development Work including latent defects,
(vi) the failure of Seller to comply with Pennsylvania bulk sale laws and
regulations and/or (vii) the failure of the owner of the Adjacent Property to
comply with the Dubois Out-Parcels Restriction Agreement. CSCP shall notify the
Sellers of any Claims promptly following CSCP's receipt of written notification
38
of any Claim. Notwithstanding the foregoing, the failure of CSCP to promptly
notify the Sellers of a Claim shall not impact the Sellers' liability hereunder
unless and to the extent that the Sellers are materially prejudiced thereby, but
shall relieve the Sellers for any third party out of pocket costs incurred by
CSCP in defense of such Claim prior to such written notification. Any settlement
of any such Claim by the Sellers shall be subject to the reasonable approval of
CSCP. The right of CSCP Parties to defend any Claim shall be limited to those
cases where the Sellers have failed or refused to defend or to where any CSCP
Party reasonably determines that a conflict of interest may exist. The Sellers
shall regularly apprise CSCP of the status of all proceedings.
2. The provisions of this Article shall survive the Closing or an
earlier termination of this Agreement.
ARTICLE XXII: Restrictive Covenant on Adjacent Properties. At the Closing,
Sellers shall cause the owner of the properties set forth on EXHIBIT CC attached
hereto and made a part hereof (the "Adjacent Properties") to execute and deliver
an agreement for the benefit of the Property located in Dubois, Pennsylvania in
the form of EXHIBIT DD attached hereto and made a part hereof with respect to
the Adjacent Properties (the "Dubois Out-Parcels Restriction Agreement").
ARTICLE XXIII: Tax Proceedings. Sellers represent that no proceedings for the
correction of the assessed valuation of the Premises (the "Proceedings") have
been filed on any Seller's behalf and are pending, other than as set forth in
EXHIBIT EE attached hereto and made a part hereof. Neither party hereto shall
agree to any settlement or termination of the Proceedings for the year in which
the Closing occurs without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed. If any refund shall be
paid on account of real estate taxes for the tax year in which the Closing
occurs, whether by means of settlement of the Proceedings, or otherwise, then
the net refund shall be apportioned between Sellers and CSCP, as of the Closing
Date, after deducting therefrom all costs and expenses, including reasonable
attorneys' fees, incurred in connection with the Proceedings and all amounts
owed to Tenants on account of such refund. Both parties agree to cooperate in
good faith in connection with the Proceedings and take such action and execute
such documents at or after the date of the Closing as may be necessary to give
effect to the provisions of this Article. The provisions of this Article shall
survive the Closing.
ARTICLE XXIV: Entire Agreement. This Agreement contains all of the terms agreed
upon between the parties with respect to the subject matter hereof and
supersedes any and all prior written or oral understandings. The provisions of
this Article shall survive the Closing or earlier termination of this Agreement.
ARTICLE XXV: Amendments. This Agreement may not be changed, modified or
terminated except by an instrument executed by the parties hereto.
ARTICLE XXVI: Successors and Assigns.
1. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
Sellers may not assign this Agreement or all or any part of their rights and
obligations hereunder to another party without the consent of CSCP.
39
2. CSCP may not assign this Agreement or all or any part of its rights
and obligations hereunder to another party without the consent of Sellers;
provided, however, that CSCP shall have the right, without the consent of
Sellers, to assign all or a portion of its rights and obligations under this
Agreement to one or more entities which is owned or controlled by or under
common control or affiliated with CSCP.
3. Notwithstanding anything to the contrary contained in this
Agreement, CSCP shall have the right to designate nominee(s) and/or designee(s)
to take title to all or any portion of the Property and/or Interests, and each
such nominee or designee shall be entitled to the rights and benefits of CSCP
under this Agreement with respect to the portion of the Property and/or
Interests acquired by such nominee or designee and shall be deemed to be third
party beneficiaries of the representations, warranties, certifications,
covenants, agreements and indemnities made by Sellers in favor of CSCP pursuant
to this Agreement.
4. The provisions of this Article shall survive the Closing.
ARTICLE XXVII: Governing Law; Jurisdiction. This Agreement shall be governed by
and in accordance with the laws of the State of New York applicable to contracts
made and to be performed wholly within that State without giving effect to the
conflict-of-laws principles thereof. Any action, suit or proceeding in
connection with this Agreement may be brought against Seller in a court of
record of the State of New York, County of New York, or of the United States
District Court for the Southern District of New York, and Sellers hereby consent
and submit to the jurisdiction thereof. Service of process in any such action,
suit or proceeding brought in New York County or the Southern District of New
York may be made upon Sellers by certified or registered mail, at the address to
be used for the giving of Notice to Sellers hereunder. Nothing herein shall
affect the right of CSCP to commence legal proceedings or otherwise to proceed
against any Seller in any other jurisdiction or to serve process in any manner
permitted by applicable law. In any action, suit or proceeding in connection
with this Agreement, Sellers and CSCP hereby waive any claim that New York
County or the Southern District of New York is an inconvenient forum, and
Sellers hereby further waive the right to interpose any defense based upon any
claim of laches and any set-off or counterclaim of any nature or description.
The provisions of this Article shall survive the Closing or earlier termination
of this Agreement.
ARTICLE XXVIII: Business Days. Whenever any action must be taken (including the
giving of notice or the delivery of documents) under this Agreement during a
certain period of time (or by a particular date) that ends (or occurs) on a
non-Business Day, then such period (or date) shall be extended until the next
succeeding Business Day. As used herein, the term "Business Day" shall be deemed
to mean any day, other than a Saturday or Sunday, on which commercial banks in
the State of New York are not required or authorized to be closed for business.
The provisions of this Article shall survive the Closing or earlier termination
of this Agreement.
40
ARTICLE XXIX: Interpretation. Section and Article headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed and
the usual rule of construction, to wit, that ambiguities in this Agreement
should be resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications or exhibits
hereto or thereto. Whenever the words "including", "include" or "includes" are
used in this Agreement, they shall be interpreted in a non-exclusive manner.
Except as otherwise indicated, all Exhibit and Section and Article references in
this Agreement shall be deemed to refer to the Exhibits and Sections and
Articles in this Agreement. The provisions of this Article shall survive the
Closing or earlier termination of this Agreement.
ARTICLE XXX: Third Parties. Nothing in this Agreement, whether expressed or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement upon any other person other than the parties hereto and their
respective permitted successors and assigns (and, with respect to CSCP (i) its
designees and nominees, and (ii) the parties being indemnified, held harmless
and defended pursuant to this Agreement including Article XXI of this
Agreement), nor is anything in this Agreement intended to relieve or discharge
the obligation or liability of any third persons to any party to this Agreement,
nor shall any provision give any third parties any right of subrogation or
action over or against any party to this Agreement. Except as expressly provided
above, this Agreement is not intended to and does not create any third party
beneficiary rights whatsoever. The provisions of this Article shall survive the
Closing or earlier termination of this Agreement.
ARTICLE XXXI: Legal Costs. Except as expressly provided to the contrary in this
Agreement, the parties hereto agree that they shall pay directly any and all
legal costs which they have incurred on their own behalf in the preparation of
this Agreement, and other agreements pertaining to this transaction; provided,
however, that in any litigation occurring under this Agreement, the prevailing
party shall be entitled to be reimbursed for its reasonable legal fees and
expenses. The provisions of this Article shall survive the Closing or earlier
termination of this Agreement.
ARTICLE XXXII: Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
ARTICLE XXXIII: Effectiveness. In no event shall any draft of this Agreement
create any obligation or liability, it being understood that this Agreement
shall be effective and binding only when a counterpart hereof has been executed
and delivered by each party hereto. Delivery of this Agreement by facsimile by
any party shall represent a valid and binding execution and delivery of this
Agreement by such party.
ARTICLE XXXIV: No Implied Waivers. No failure or delay of either party in the
exercise of any right or remedy given to such party hereunder or the waiver by
any party of any condition hereunder for its benefit (unless the time specified
in this Agreement for exercise of such right or remedy has expired) shall
constitute a waiver of any other or further right or remedy nor shall any single
or partial exercise of any right or remedy preclude other or further exercise
thereof or any other right or remedy. No waiver by either party of any breach
hereunder or failure or refusal by the other party to comply with its
obligations shall be deemed a waiver of any other or subsequent breach, failure
or refusal to so comply. The provisions of this Article shall survive the
Closing or earlier termination of this Agreement.
41
ARTICLE XXXV: Unenforceability. If all or any portion of any provision of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
then such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and such provision shall be limited and construed as if such
invalid, illegal or unenforceable provision or portion thereof were not
contained herein unless doing so would materially and adversely affect a party
or the benefits that such party is entitled to receive under this Agreement. The
provisions of this Article shall survive the Closing or earlier termination of
this Agreement.
ARTICLE XXXVI: Waiver of Trial by Jury. SELLERS AND CSCP HEREBY WAIVE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR
CONTRACT) BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS AGREEMENT. The provisions of this Article shall
survive the Closing or earlier termination of this Agreement.
ARTICLE XXXVII: Press Releases; Confidentiality. Sellers shall not issue any
press release or other media publicity of any kind whatever with respect to this
Agreement or any of the transactions contemplated hereby, unless approved by
CSCP. For so long as this Agreement shall be in full force and effect, prior to
the requirement (as determined by CSCP) to file a current report on form 8-K,
CSCP shall not issue a press release expressly disclosing the identity of the
Sellers without the Sellers' prior written consent. Except as otherwise
expressly set forth herein, this Agreement and the transactions contemplated
hereby shall be kept confidential by the parties and all information contained
herein and in any Property Information shall not be disclosed except (i) to
those employees, attorneys, accountants and professionals of the parties who
have a need to know in order to evaluate the Property and/or to consummate the
transactions, and such third parties shall also be directed to keep such
information confidential, (ii) if and to the extent that such information at the
time of disclosure or thereafter is generally available to and known by the
public, or (iii) as required by law or court order. This restriction shall
exclude releases or announcements required by SEC reporting requirements, and
other legal requirements associated with the operation of a public real estate
investment trust. This restriction shall also exclude disclosure to the lenders
as required to obtain consent to the assumption of the Assumable Debt.
Notwithstanding any terms or conditions in this Agreement to the contrary, but
subject to restrictions reasonably necessary to comply with federal or state
securities laws, any person may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
are provided relating to such tax treatment and tax structure. For the avoidance
of doubt, this authorization is not intended to permit disclosure of the names
of, or other identifying information regarding, the participants in the
transaction, or of any information or the portion of any materials not relevant
to the tax treatment or tax structure of the transaction. The provisions of this
Article shall survive a Closing or earlier termination of this Agreement.
ARTICLE XXXVIII: Exhibits. Each of the exhibits attached to this Agreement is
incorporated into and made a part of this Agreement. To the extent that any
exhibit has not been attached to this Agreement as of the date of execution of
this Agreement, this Agreement shall nonetheless constitute a binding agreement
between the parties relating to the matters set forth herein, the parties agree
to negotiate in good faith the form and content of the remaining exhibits prior
to the Designated Date, and prior to the Designated Date those agreed upon
exhibits shall be attached to and made a part of this Agreement as if attached
to and made a part of this Agreement on the date of execution of this Agreement.
42
ARTICLE XXXIX: State Specific Clauses.
1. Sellers shall comply in all respects with Pennsylvania bulk sales
laws and regulations to the extent applicable to the transactions contemplated
by this Agreement, including, without limitation, the giving of all notices and
the delivery to CSCP of all clearance certificates from the Pennsylvania
Department of Revenue and Pennsylvania Department of Labor and Industry.
2. To Sellers' knowledge, the zoning classification of each of the
Premises located in the Commonwealth of Pennsylvania is as set forth on EXHIBIT
FF, and the current use of the Premises is a lawful use under such
classification.
3. The provisions of this Article shall survive the Closing.
ARTICLE XL: Securitization. Sellers shall, in good faith, cooperate with CSCP
and Existing Lenders in connection with securitizations of any of the Assumable
Debt, including, without limitation, promptly upon receipt of written requests
therefor reviewing for accuracy all information that is related to Sellers, the
RVG Entities and/or the condition or operation of the Property with respect to
the period prior to the Closing contained in the documentation prepared by or on
behalf of Existing Lenders in connection with said securitizations and/or
providing to Existing Lenders all reasonable materials and information in
Sellers' possession or control requested by Existing Lenders from either Sellers
or CSCP that is related to Sellers, the RVG Entities and/or the condition or
operation of the Property with respect to the period prior to the Closing. The
provisions of this Article shall survive the Closing.
ARTICLE XLI: Cooperation. Sellers and CSCP shall in good faith cooperate with
each other in connection with the consummation of the transactions contemplated
by this Agreement including, without limitation, executing and delivering any
documents and instruments, and taking such other actions, whether prior to or
subsequent to Closing, as may be reasonably requested to effectuate the intent
of this Agreement. The provisions of this Article shall survive the Closing.
ARTICLE XLII: Put Right. If Seller shall remove the Premises located in
Mechanicsburg, Pennsylvania pursuant to an express right in this Agreement to
remove such Premises and (y) Sellers shall (i) cure, to CSCP's reasonable
satisfaction, the reason for such removal within sixty (60) days following the
Scheduled Closing Date, and (ii) provide written notice to CSCP promptly after
such cure but in all events within such sixty (60) day period, of Sellers'
desire to cause CSCP to purchase the Premises located in Mechanicsburg,
Pennsylvania, and (z) all conditions precedent to CSCP's obligation to purchase
such Premises remain satisfied, then CSCP and Sellers shall consummate the
purchase and sale of such Premises on a Business Day selected by CSCP not later
than forty five (45) days from receipt of such written notice upon the terms and
conditions set forth in this Agreement. Notwithstanding anything to the contrary
contained in this Agreement, the provisions of this Article shall not be
applicable if such Premises shall be removed pursuant to Article XV of this
Agreement. The provisions of this Article shall survive the Closing.
43
ARTICLE XLIII: Vacant Space. If (a) (i) prior to Closing, a lease approved by
CSCP in accordance with the terms of this Agreement has been entered into by
Seller for the 6,600 square feet of vacant space in the newly constructed
portion of the Premises located in Hampton, Virginia ("Coliseum Vacant Space")
and the 2,400 square feet of currently vacant space in the Premises located in
Dubois, Pennsylvania ("Dubois Vacant Space"; each of the Dubois Vacant Space and
the Coliseum Vacant Space being hereinafter referred to as a "Vacant Space"),
each with a minimum initial term of five (5) years and an option period not to
exceed in the aggregate the length of the initial term or (ii) within eighteen
(18) months following Closing, a lease has been entered into by CSCP for each
Vacant Space with a minimum initial term of five (5) years and an option period
not to exceed in the aggregate the length of the initial term, and (b) within
eighteen (18) months following the Closing, the tenant under each such lease
shall take occupancy and commence the ordinary conduct of business and commence
the regularly scheduled payment of rent, then, within thirty (30) days
thereafter, CSCP shall pay to Sellers an amount equal to the Lease Value for the
Vacant Space that is the subject of said lease. As used herein, the term "Lease
Value" shall mean (a) a seven and twenty eight hundredths percent (7.28%)
capitalization rate applied to the Net Operating Income of the Vacant Space
lease, less (b) free rent, leasing commissions and tenant build-out costs in
connection with said lease. As used herein, the term "Net Operating Income"
shall mean the net rent payable under the Vacant Space for the first year of
said lease as adjusted for the application of a three percent (3%) vacancy
factor and a three and one-half percent (3.5%) management factor; provided,
however, that with respect to the Coliseum Vacant Space only, if the tenant is a
national credit tenant (it being acknowledged that for purposes of this clause
Panera Bread shall be deemed to be a national credit tenant), Net Operating
Income shall not be adjusted for the application of a three percent (3%) vacancy
factor. A sample calculation of Lease Value is attached hereto as EXHIBIT H. The
provisions of this Article shall survive the Closing.
44
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first above written.
/s/ Dennis J. Schmidt
----------------------------------------
DENNIS J. SCHMIDT
/s/ Robert V. Gothier, Sr.
----------------------------------------
ROBERT V. GOTHIER, SR.
/s/ Robert V. Gothier, Jr.
----------------------------------------
ROBERT V. GOTHIER, JR.
MECHANICSBURG GF, LP,
a Pennsylvania limited partnership
By: Mechanicsburg GF, LLC,
a Pennsylvania limited liability company,
its general partner
By: /s/ Robert V. Gothier, Jr.
----------------------------------
Robert V. Gothier, Jr.
Authorized Member
HOOVER AVENUE GF, LP,
a Pennsylvania limited partnership
By: Dubois Hoover, Inc.,
a Pennsylvania corporation,
its general partner
By: /s/ Robert V. Gothier, Jr.
----------------------------------
Robert V. Gothier, Jr.
Vice President
BRYCE GENERAL BOOTH CORP., a Virginia corporation
By: /s/ Robert V. Gothier, Jr.
----------------------------------
Robert V. Gothier, Jr.
Vice President
BRYCE SUFFOLK CORP., a Virginia corporation
By: /s/ Robert V. Gothier, Jr.
----------------------------------
Robert V. Gothier, Jr.
Vice President
BRYCE SMITHFIELD CORP., a Virginia corporation
By: /s/ Robert V. Gothier, Jr.
----------------------------------
Robert V. Gothier, Jr.
Vice President
ROBBIE LITTLE CREEK CORP., a Virginia corporation
By: /s/ Robert V. Gothier, Jr.
----------------------------------
Robert V. Gothier, Jr.
Vice President
COLISEUM FF MM, INC., a Virginia corporation
By: /s/ Robert V. Gothier, Jr.
----------------------------------
Robert V. Gothier, Jr.
Vice President
ROBBIE KEMPSVILLE CORP., a Virginia corporation
By: /s/ Robert V. Gothier, Jr.
----------------------------------
Robert V. Gothier, Jr.
Vice President
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a Delaware
limited partnership
By: Cedar Shopping Centers, Inc.,
a Maryland corporation, its general partner
By: /s/ Brenda J. Walker
----------------------------------
Name: Brenda J. Walker
Title: Vice President
EXHIBIT A
SELLERS
-------
--------------------------------------------------- ------------------------------------------------------
DENNIS J. SCHMIDT Individual
--------------------------------------------------- ------------------------------------------------------
ROBERT V. GOTHIER, SR. Individual
--------------------------------------------------- ------------------------------------------------------
ROBERT V. GOTHIER, JR. Individual
--------------------------------------------------- ------------------------------------------------------
HOOVER AVENUE GF, LP a Pennsylvania limited partnership
--------------------------------------------------- ------------------------------------------------------
MECHANICSBURG GF, LP a Pennsylvania limited partnership
--------------------------------------------------- ------------------------------------------------------
ROBBIE KEMPSVILLE CORP. a Virginia corporation
--------------------------------------------------- ------------------------------------------------------
COLISEUM FF MM, INC. a Virginia corporation
--------------------------------------------------- ------------------------------------------------------
ROBBIE LITTLE CREEK CORP. a Virginia corporation
--------------------------------------------------- ------------------------------------------------------
BRYCE SMITHFIELD CORP. a Virginia corporation
--------------------------------------------------- ------------------------------------------------------
BRYCE SUFFOLK CORP. a Virginia corporation
--------------------------------------------------- ------------------------------------------------------
BRYCE GENERAL BOOTH CORP. a Virginia corporation
--------------------------------------------------- ------------------------------------------------------
1
EXHIBIT B-1
- ---------------------------------------------------------------- -------------------------------------------------------------
RVG ENTITIES RVG ENTITY OWNERS
- ---------------------------------------------------------------- -------------------------------------------------------------
1. Virginia Kempsville, LLC, a Virginia limited liability a) 1% Robbie Kempsville Corp.
company 1) 50% Robert V. Gothier, Sr.
2) 25% Robert V. Gothier, Jr.
3) 25% Dennis J. Schmidt
b) 49.5% Robert V. Gothier, Sr.
c) 24.75% Robert V. Gothier, Jr.
d) 24.75% Dennis J. Schmidt
- ---------------------------------------------------------------- -------------------------------------------------------------
2. Coliseum FF, LLC, a Virginia limited liability company a) 1% Coliseum FF MM, Inc.
1) 50% Robert V. Gothier, Sr.
2) 25% Robert V. Gothier, Jr.
3) 25% Dennis J. Schmidt
b) 49.5% Robert V. Gothier, Sr.
c) 24.75% Robert V. Gothier, Jr.
d) 24.75% Dennis J. Schmidt
- ---------------------------------------------------------------- -------------------------------------------------------------
3. Virginia Little Creek, LLC, a Virginia limited liability a) 1% Robbie Little Creek Corp.
company 1) 50% Robert V. Gothier, Sr.
2) 25% Robert V. Gothier, Jr.
3) 25% Dennis J. Schmidt
b) 49.5% Robert V. Gothier, Sr.
c) 24.75% Robert V. Gothier, Jr.
d) 24.75% Dennis J. Schmidt
- ---------------------------------------------------------------- -------------------------------------------------------------
4. East Little Creek KFC, LLC, a Virginia limited liability a) 50% Robert V. Gothier, Sr.
company b) 25% Robert V. Gothier, Jr.
c) 5% Dennis J. Schmidt
- ---------------------------------------------------------------- -------------------------------------------------------------
5. Virginia Smithfield, LLC, a Virginia limited liability a) 1% Bryce Smithfield Corp.
company 1) 50% Robert V. Gothier, Sr.
2) 25% Robert V. Gothier, Jr.
3) 25% Dennis J. Schmidt
b) 49.5% Robert V. Gothier, Sr.
c) 24.75% Robert V. Gothier, Jr.
d) 24.75% Dennis J. Schmidt
- ---------------------------------------------------------------- -------------------------------------------------------------
6. Virginia Suffolk, LLC, a Virginia limited liability a) 1% Bryce Suffolk Corp. company
1) 50% Robert V. Gothier, Sr.
2) 25% Robert V. Gothier, Jr.
3) 25% Dennis J. Schmidt
b) 49.5% Robert V. Gothier, Sr.
c) 24.75% Robert V. Gothier, Jr.
d) 24.75% Dennis J. Schmidt
- ---------------------------------------------------------------- -------------------------------------------------------------
7. Virginia General Booth, LLC, a Virginia limited a) 1% Bryce General Booth Corp.
liability company 1) 50% Robert V. Gothier, Sr.
2) 25% Robert V. Gothier, Jr.
3) 25% Dennis J. Schmidt
b) 49.5% Robert V. Gothier, Sr.
c) 24.75% Robert V. Gothier, Jr.
d) 24.75% Dennis J. Schmidt
- ---------------------------------------------------------------- -------------------------------------------------------------
1
EXHIBIT B-2
PREMISES NAMES, ADDRESSES AND OWNERS
Kempsville Crossing Virginia Kempsville, LLC
1830 Kempsville Road
Virginia Beach, VA 23464
Coliseum Marketplace Coliseum FF, LLC
2170 Coliseum Drive
Hampton, VA 23666
City of Hampton
East Little Creek Virginia Little Creek, LLC
230 E Little Creek Road
Norfolk, VA 23505
City of Norfolk
East Little Creek KFC East Little Creek KFC, LLC
230 East Little Creek Road
Norfolk, VA 23505
City of Norfolk
Smithfield Plaza Virginia Smithfield, LLC
1282 Smithfield Plaza
Smithfield, VA 23430
Suffolk Virginia Suffolk, LLC
1401 N Main Street
Suffolk, VA 23434
City of Suffolk
General Booth Plaza Virginia General Booth, LLC
1615 General Booth Blvd
Virginia Beach, VA 23434
Tidewater County
Liberty Marketplace Hoover Avenue GF, LP
22 Hoover Avenue
Dubois, PA 15801
Clearfield County
Mechanicsburg Giant Mechanicsburg GF, LP
5301 Simpson Ferry Road
Mechanicsburg, PA 17055
Cumberland County
1
EXHIBIT C
TRADE NAMES
-----------
1
EXHIBIT D
ALLOCATION OF CONSIDERATION AMONG PROPERTIES AND INTERESTS
----------------------------------------------------------
1
EXHIBIT E
ASSUMABLE DEBT
--------------
1
EXHIBIT F
TIF DOCUMENTS
-------------
1
EXHIBIT G
ESCROW AGREEMENT
----------------
EXHIBIT H
LEASE VALUE CALCULATION
-----------------------
1
EXHIBIT I
RENT ROLLS
----------
1
EXHIBIT J
EXCEPTIONS TO REPRESENTATIONS
-----------------------------
1
EXHIBIT K
SERVICE CONTRACTS
-----------------
1
EXHIBIT L
INTENTIONALLY OMITTED
---------------------
1
EXHIBIT M
INTENTIONALLY OMITTED
---------------------
EXHIBIT N
DEBT DOCUMENTS
--------------
1
EXHIBIT O
RVG ORGANIZATIONAL DOCUMENTS
----------------------------
EXHIBIT P-1
LIST OF DEVELOPMENT PLANS AND SPECIFICATIONS
--------------------------------------------
1
EXHIBIT P-2
LIST OF DEVELOPMENT CONTRACTS
-----------------------------
1
EXHIBIT P-3
DEVELOPMENT SCHEDULE
--------------------
1
EXHIBIT Q
DEED - PENNSYLVANIA
-------------------
EXHIBIT R
ASSIGNMENT OF INTERESTS
-----------------------
EXHIBIT S
ASSIGNMENT OF LEASES
--------------------
1
EXHIBIT T
ASSIGNMENT OF SERVICE CONTRACTS
-------------------------------
1
EXHIBIT U
BILL OF SALE AND GENERAL ASSIGNMENT
-----------------------------------
1
EXHIBIT V
FIRPTA CERTIFICATE
------------------
1
EXHIBIT W
SELLERS' CERTIFICATE
--------------------
1
EXHIBIT X-1
LETTER TO TENANTS OF PENNSYLVANIA PROPERTIES
--------------------------------------------
1
EXHIBIT X-2
LETTER TO TENANTS OF VIRGINIA PROPERTIES
----------------------------------------
1
EXHIBIT Y
NON-COMPETE AGREEMENTS
----------------------
1
EXHIBIT Z
CSCP'S CERTIFICATE
------------------
1
EXHIBIT AA-1
FORM OF TENANT ESTOPPEL CERTIFICATE - LOCAL TENANTS
---------------------------------------------------
1
EXHIBIT AA-2
FORM OF TENANT ESTOPPEL CERTIFICATE - NATIONAL TENANTS
------------------------------------------------------
1
EXHIBIT BB
LIST OF REQUIRED TENANTS
1
EXHIBIT CC
ADJACENT PROPERTIES
-------------------
1
EXHIBIT DD
DUBOIS OUT-PARCELS RESTRICTIVE COVENANTS
----------------------------------------
1
EXHIBIT EE
TAX CONTEST PROCEEDINGS
-----------------------
1
EXHIBIT FF
ZONING CLASSIFICATION OF PENNSYLVANIA PROPERTIES
------------------------------------------------
1