EXHIBIT 10.52
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT is made and entered as of September
23, 1996, by and between (I) NEWTOWN SQUARE ASSOCIATES, L.P., a Pennsylvania
limited partnership (hereinafter referred to as "Seller") and (ii) FIRST
WASHINGTON REALTY LIMITED PARTNERSHIP or its assignees (hereinafter referred to
as "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the record and beneficial owner of all that certain
real property located in Newtown Square, Delaware County, Pennsylvania, as more
particularly described on Exhibit A attached hereto (the "Land"), together with
a shopping center containing approximately 137,569 square feet of rentable area
and all other buildings and improvements situated thereon (collectively, the
"Building"), all personal property and fixtures located therein (the
"Personalty"), and all appurtenances, rights, easements, rights-of-way,
tenements and hereditaments incident thereto (the "Additional Property") (the
Land, Building, Personalty and Additional Property are hereinafter collectively
referred to as the "Property"); and
WHEREAS, Purchaser desires to purchase the Property from Seller and
Seller desires to sell and transfer the same to Purchaser.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Purchase and Sale. Purchaser agrees to buy and Seller agrees to sell
and convey the Property for and in consideration of the purchase price and upon
the terms and conditions set forth herein.
2. Purchase Price. The Purchase Price shall be paid as follows:
(a)(i) $7,700,000.00 or such lesser amount which represents
the outstanding principal balance with respect to the Prudential Loan (as
hereinafter defined) as of Closing (the "Actual Loan Amount"), by Purchaser
assuming the Prudential Loan as described below.
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(ii) a sum equal to $11,700,000.00 minus the Actual Loan
Amount, as adjusted for closing or other adjustments herein provided, by cash or
wire transfer of immediately available federal funds, as Seller may direct at
Closing.
(b)(i) The Property is presently encumbered by a Mortgage and
Security Agreement ("Mortgage") from the Seller, as debtor, for the benefit of
Prudential Insurance Company of America, as secured party (the "Lender"), which
Mortgage secures an original principal indebtedness of $7,700,000.00 with
interest thereon payable over the term thereof (which ends on September 15,
2005) at a fixed interest rate of 7.77% per annum, as evidenced by a Mortgage
Note from Seller to Lender ("Note"). The Mortgage and Note and all documents and
instruments executed in connection therewith are collectively referred to as the
"Prudential Loan". The Prudential Loan is non-recourse to the Seller and
requires equal monthly installments of principal and interest in the amount of
the $55,270.00 per month. The outstanding principal balance under the Prudential
Loan as of the date hereof is approximately $7,682,246.67. Copies of the
Mortgage and Note are attached hereto as Exhibits J and K, respectively.
(ii) Purchaser's obligations under this Agreement shall be
expressly contingent on the condition that Seller obtains for and delivers to
Purchaser by Closing a letter (the "Letter") from Lender (i) permitting
Purchaser to assume the Prudential Loan, at no cost to Purchaser (other than an
assumption fee of up to 1% of the then outstanding balance of the Prudential
Loan) and on the same terms and conditions as presently exist, except that the
Lender shall release the Property from the lien of any other Prudential loans
that presently exist with Seller, (ii) confirming that the Prudential Loan is as
described above, (iii) certifying that, to the best knowledge of Lender, there
is no default, or event which with notice or lapse of time, or both, would
constitute a default under the Prudential Loan. At Closing, Seller shall execute
an estoppel certificate in favor of Purchaser certifying that, to the best
knowledge of Seller, there is no default, or event which with notice or lapse of
time, or both, would constitute a default under the Prudential Loan. Seller
shall use commercially reasonable efforts to deliver to Purchaser such Letter
from Lender before the end of the Feasibility Period (as defined below),
provided that Purchaser shall reasonably cooperate with Seller and Prudential
and shall deliver such financial information or execute such documents as
Prudential may reasonably request including, but not limited to, an Assumption
of Mortgage Loan Documents. If such Letter is not received by Purchaser by
Closing, Purchaser shall have the right to terminate this Agreement, in which
event the Deposit (as defined below), together with interest thereon, shall be
returned to Purchaser. If Lender denies the assumption of the Prudential Loan by
Purchaser or if Lender's Letter is other than as set forth above and is not
reasonably acceptable to Purchaser, Purchaser shall have the right, at its sole
election, to terminate this Agreement by giving written notice thereof to Seller
within ten (10) days thereafter, whereupon the Deposit, together with interest
thereon, shall be returned to Purchaser and neither party shall
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have any further liability to the other. If Purchaser does not terminate this
Agreement as aforesaid, this Agreement shall continue in full force and effect.
3. Deposit.
(a) Within one (1) business day after the date of delivery to
Purchaser of an original of this Agreement executed by Seller, together with
completed Exhibits hereto (the date of such delivery by Seller being the
"Acceptance Date"), Purchaser shall deliver to Commercial Settlements, Inc.,
0000 X Xxxxxx, X.X., Xxxxxxxxxx, XX 00000 (the "Title Company"), as escrow
agent, a deposit (the "Initial Deposit") of One Hundred Thousand Dollars
($100,000.00) by a check payable to the Title Company.
(b) In the event that Purchaser elects to extend the Closing
Date pursuant to Section 4(b) hereof, then, on the date of such election,
Purchaser shall deliver to the Title Company, as escrow agent, an additional
deposit (the "Extension Deposit") of Thirty Thousand Dollars ($30,000.00) by
check payable to the Title Company.
(c) The Initial Deposit and the Extension Deposit and all
accrued interest thereon are hereinafter referred to collectively as the
"Deposit". The Title Company will immediately provide Seller with written
evidence of receipt of such Deposit. The Title Company shall place the Deposit
in an interest-bearing account within one (1) business day after the date of
receipt thereof, and interest on the Deposit shall accrue to the benefit of the
party entitled to receive the Deposit hereunder. The Deposit shall be held by
the Title Company pursuant to the terms and conditions of this Agreement.
(d) In the event that, at any time prior to Closing, Seller or
Purchaser provides Title Company with a certification (a copy of which shall be
delivered contemporaneously to the other party) that the Seller or Purchaser, as
the case may be, is entitled to the Deposit pursuant to the terms of this
Agreement, Title Company shall deliver the Deposit to such party within five (5)
business days after receipt of said notice and upon 24-hours prior written
notice to each party, unless the other party disputes such certification by
written notice to Title Company (a copy of which shall be delivered
contemporaneously to the other party) delivered within three (3) business days
of Title Company's receipt of the initial certification. In such event, Title
Company shall hold the Deposit pending resolution of such dispute.
(e) The parties acknowledge that Title Company is acting
solely as a stakeholder at their request and for their convenience, that Title
Company shall not be deemed to be the agent of either of the parties, and Title
Company shall not be liable to either of the parties for any act or omission on
its part unless taken or suffered in bad faith, in willful disregard to this
Agreement or involving gross negligence. Seller and
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Purchaser shall jointly and severally indemnify and hold Title Company harmless
from and against all costs, claims and expenses, including reasonable attorneys'
fees, incurred in connection with the performance of Title Company's duties
hereunder, except with respect to actions or omissions taken or suffered by
Title Company in bad faith, in willful disregard of this Agreement or involving
gross negligence on the part of Title Company.
4. Closing.
(a) Closing. Except as otherwise provided in this Agreement,
the purchase and sale contemplated herein shall be consummated at the "Closing",
which shall take place on the date (the "Closing Date") specified by Purchaser
on not less than ten (10) days notice to Seller, provided that the Closing Date
shall not be later than thirty (30) days after the end of the Feasibility Period
(as defined and described in Section 13(b) hereof). The Closing shall take place
at the offices of the Seller, or at such other place as may mutually agreed upon
by Seller and Purchaser.
(b) Extension of Closing. Notwithstanding the provisions
contained in Section 4(a), Purchaser may extend the Closing Date to a date not
later than sixty (60) days after the end of the Feasibility Period by (i)
delivery of the Extension Deposit to the Title Company as set forth in Section
3(b) above, and (ii) notifying Seller in writing, no later than five (5) days
before the original Closing Date, of Purchaser's intention to exercise said
right.
5. Representations and Warranties of Seller. In order to induce
Purchaser to enter into this Agreement and to purchase the Property, Seller
hereby makes the following representations and warranties, each of which shall
survive Closing for a period of one (1) year (unless expressly provided that it
will survive Closing without time limitation):
(a) Authority of Seller. Seller is a limited partnership duly
organized and existing and in good standing under the laws of the State of
Delaware. Seller has all necessary power and authority and has taken all
necessary partnership or corporate action to execute, deliver and perform this
Agreement and consummate all of the transactions contemplated by this Agreement.
This Agreement is the valid and binding obligation of Seller, enforceable
against it in accordance with its terms.
(b) Title. Seller is the sole owner of fee simple title to the
Property with the authority to sell and convey the Property to Purchaser without
the consent of any other party, and such title is marketable and good of record
and, to the best of Seller's knowledge, free and clear of all liens,
encumbrances, covenants, conditions, restrictions
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and other matters affecting title, except for the Permitted Exceptions (as
defined in Section 8(a)(iii)).
(c) Compliance with Existing Laws. To the best of Seller's
knowledge, the present use of the property is not in violation of applicable
zoning laws and ordinances. To the best of Seller's knowledge, there does not
exist any notice of an uncorrected violation of the housing, building, safety or
fire ordinances.
(d) Leases. True, correct and complete copies of all of the
leases of the Property and any amendments thereto (collectively, the "Leases")
have been delivered to Purchaser. Attached hereto as Exhibit B is a description
of all of the Leases and a current rent schedule ("Rent Schedule") covering the
Leases. There are no leases or tenancies of any space in the Property other than
those set forth in Exhibit B or any subleases or subtenancies unless otherwise
noted therein. Except as otherwise set forth in the Leases in Exhibit B or
elsewhere in this Agreement:
(i) The Leases are in full force and effect and are
assignable by Seller to Purchaser;
(ii) no tenant has an option to purchase the
Property;
(iii) no renewal or expansion options have been
granted to the tenants;
(iv) to the best of Seller's knowledge, Seller is not
in default under the Leases;
(v) the rents set forth on the Rent Schedule are
being collected on a current basis and there are no arrearages
in excess of one month (other than as noted thereon) nor has
any tenant paid any rent, additional rent or other charge of
any nature for a period of more than thirty (30) days in
advance;
(vi) all work for tenant alterations and other work
or materials contracted for by Seller and any tenant has been
completed, and all work and materials have been fully paid
for;
(viii) Seller has not sent written notice to any
tenant claiming that such tenant is in default, which default
remains uncured, and to the best of Seller's knowledge, no
tenant is in default under its Lease;
(ix) there are no security deposits other than those
set forth in Exhibit B.
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(e) Service Contracts. Except as set forth in Exhibit C, to
the best of Seller's knowledge there are no service contracts relating to the
management, leasing, operation, maintenance or repair of the Property (the
"Service Contracts"). True and correct copies of all of the Service Contracts
have been delivered to Purchaser. No Service Contract which Purchaser notifies
Seller that it agrees to assume will be terminated, amended, modified or
supplemented prior to the Closing Date without Purchaser's prior written
approval; otherwise, Service Contracts will be terminated as of the Closing
Date.
(f) Tax Bills. Attached hereto as Exhibit D are true and
correct copies of tax bills issued by any applicable federal, state or local
governmental authority to Seller with respect to the Property for the most
recent past and current tax years, and any new assessment received with respect
to a current or future tax year.
(g) Insurance. Attached hereto as Exhibit E are certificates
of all hazard, liability and other insurance policies presently affording
coverage with respect to the Property. Seller shall maintain in full force and
effect all such policies until the Closing Date and shall cause its insurer to
name Purchaser as an additional insured as a contract party on its rent loss
policy with respect to the Property.
(h) Condition. Possession of Property shall be delivered to
Purchaser at Closing in "as is, where is" condition as of the date of
Purchaser's execution of this Agreement, and Purchaser is relying solely on its
own investigations, inspections and business judgment as to the condition of the
Property.
(i) Intentionally Omitted.
(j) Condemnation Proceedings. Seller has received no written
notice of any condemnation or eminent domain proceedings are pending or, to the
best of Seller's knowledge, threatened against the Property or any part thereof,
and Seller has made no commitments to and has received no written notice of the
desire of any public authority or other entity to take or use the Property or
any part thereof whether temporarily or permanently, for easements,
rights-of-way, or other public or quasi-public purposes.
(k) Litigation. Except as provided in Exhibit L, no litigation
is pending or, to the best of Seller's knowledge, threatened, including
administrative actions or orders relating to governmental regulations, affecting
the Property or any part thereof or Seller's right to sell the Property.
(l) No Defaults. Neither the execution of this Agreement nor
the consummation of the transactions contemplated hereby will, except for the
Prudential Loan,: (i) conflict with, or result in a breach of, the terms,
conditions or provisions of, or
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constitute a default under, any agreement or instrument to which Seller is a
party or by which the Property is bound, (ii) violate any restriction,
requirement, covenant or condition to which the Seller is subject or by which
the Property is bound, (iii) constitute a violation of any applicable code,
resolution, law, statute, regulation, ordinance, rule, judgment, decree or
order, or (iv) result in the cancellation of any lease pertaining to the
Property.
(m) Hazardous Waste. Except as provided in environmental
reports delivered by Seller to Purchaser, Seller has no knowledge of any
discharge, spillage, uncontrolled loss, seepage or filtration (a "Spill") of
oil, petroleum or chemical liquids or solids, liquid or gaseous products or any
hazardous waste or hazardous substance (as those terms are used in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, the Resource Conservation and Recovery Act of 1976, as amended, or in
any other applicable federal, state or local laws, ordinances, rules or
regulations relating to protection of public health, safety or the environment,
as such laws may be amended from time to time) at, upon, under or within the
Land or any contiguous real estate. To the best of Seller's knowledge, there is
no proceeding or action pending or threatened by any person or governmental
agency regarding the environmental condition of the Property.
(n) Certificates of Occupancy. To the extent available,
attached hereto as Exhibit G are true and correct copies of the certificates of
occupancy for all of the Property. Seller will not amend such certificates and
will maintain them in full force and effect.
(o) Licenses and Permits. Seller has received no notice, nor
has any knowledge, that it is lacking any required permit or license (the
"Licenses") which are necessary for the ownership and operation of the Property.
(p) Operating Statements. Attached hereto as Exhibit H are
true and correct copies of the year-end operating statements of the Property for
1993, 1994, 1995 and, if audited, such operating statements fairly present the
operating results of the Property for the periods indicated. Also attached as
Exhibit H is a copy of the 1996 operating budget detailed as to amounts by month
and operating department in reasonably sufficient detail.
(q) Personal Property. Attached hereto as Exhibit I is a true,
correct and complete inventory of all personal property ("Personal Property"),
if any, used in the management, maintenance and operation of the Property (other
than trade fixtures or personal property of tenants).
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For the purposes of the representations and warranties of Seller set
forth in this Agreement, the words "to the best of Seller's knowledge" or
"knowledge" shall be limited to being the actual knowledge and information (as
distinguished from, and shall exclude, constructive knowledge or receipt of
constructive notice) of those persons currently employed by Seller or its
affiliates who are responsible for the current management and operation of the
Property, and shall not include any information which Seller or its agents,
counsel, directors, officers or employees, management companies or leasing
agents, as a reasonably prudent person, should reasonably have known, and shall
expressly exclude any state of facts or matters of which Purchaser has actual
knowledge as of the Closing Date (provided that such inaccuracy of any
representation was not due to the willful misconduct or bad faith of Seller).
6. Obligations of Seller Pending Closing. From and after the date of
this Agreement through the Closing Date, Seller covenants and agrees as follows:
(a) Maintenance and Operation of Premises. Seller will cause
the Property to be maintained in its present order and condition, normal wear
and tear excepted, and will cause the continuation of the normal operation
thereof, including the repair of fixtures and equipment, and the continuation of
the normal practice with respect to maintenance and repairs so that the Property
will, except for normal wear and tear, be in substantially the same condition on
the Closing Date as of the Acceptance Date.
(b) Licenses. Seller shall use commercially reasonable efforts
to preserve in force all Licenses and to cause those expiring to be renewed.
(c) Changes in Representations. Seller shall notify Purchaser
promptly, and Purchaser shall notify Seller promptly, if either becomes aware of
any occurrence prior to the Closing Date which would make any of its
representations, warranties or covenants contained herein not true in any
material respect.
(d) Obligations as to Leases. From the Acceptance Date to the
expiration of the Feasibility Period provided for in Section 13, Seller shall
have the right to enter into new leases for space at the Property ("New
Lease(s)") or to amend, modify, renew, supplement or extend any Lease in any
respect or approve any assignment of leases or subletting of leased space, or
terminate any Lease (with respect to any provision amending, modifying,
renewing, supplementing or extending, etc. above, "Amended Lease(s)"), and as to
any Amended or New Leases entered into by the Seller during this period, the
Seller shall give Purchaser notice (including therewith copies of the New Leases
and all relevant data related to the particular Amended or New Lease) of such
Amended and/or New Leases within three (3) days after the entry into any Amended
or New Lease, but, in any event, not later than seven (7) days prior to the
expiration of the Feasibility Period. After the expiration of the
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Feasibility Period, Seller shall not, without Purchaser's prior written consent
(which consent shall not be unreasonably withheld or delayed), amend, modify,
renew or extend any Lease in any respect unless required by law, or enter into
new leases or approve any assignment of leases or subletting of leased space, or
terminate any Lease. Seller hereby further agrees that if any space is vacant on
the Closing Date, Purchaser shall accept the Property subject to such vacancy,
provided that the vacancy was not permitted or created by Seller in violation of
any restrictions contained in this Agreement. Prior to Closing, Seller shall not
apply all or any part of the security deposit of any tenant unless such tenant
has vacated the Property or defaulted under its Lease.
(e) Tenant Estoppel. Seller shall use commercially reasonable
efforts to obtain and deliver to Purchaser within thirty (30) days after the
expiration of the Feasibility Period, a tenant estoppel letter substantially in
the form attached hereto as Exhibit F (or such other form as required by
Purchaser's mortgage lender or required by such tenant) from each of the tenants
of the Property.
7. Representations and Warranties of Purchaser. In order to induce
Seller to enter into this Agreement and to sell the Property, Purchaser hereby
makes the following representations and warranties, each of which is material
and shall survive Closing, notwithstanding any investigation at any time made by
or on behalf of Seller:
(a) Authority of Purchaser. Purchaser is a limited partnership
duly organized and existing and in good standing under the laws of the State of
Maryland. Subject to the approval of the Board of Directors of FWRT which must
occur before the expiration of the Feasibility Period, Purchaser has all
necessary power and authority to execute, deliver and perform this Agreement and
consummate all of the transactions contemplated by this Agreement. Subject to
the approval of the Board of Directors of FWRT which must occur before the
expiration of the Feasibility Period, this Agreement is the valid and binding
obligation of Purchaser, enforceable against it in accordance with its terms.
(b) No Defaults. Neither the execution of this Agreement nor
the consummation of the transactions contemplated hereby will: (i) conflict
with, or result in a breach of, the terms, conditions or provisions of, or
constitute a default under, any agreement or instrument to which Purchaser is a
party, (ii) violate any restriction, requirement, covenant or condition to which
Purchaser is subject, and (iii) constitute a violation of any applicable code,
resolution, law, statute, regulation, ordinance, rule, judgment, decree or
order.
(c) Purchaser shall not contact any tenant of the Property
without the consent of Seller.
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(d) If this Agreement shall be terminated by either party,
Purchaser shall delivery to Seller (at Seller's request and without cost to
Seller) copies of applications, licenses, permits, plans, drawings, surveys,
reports, studies, tests, analyses and other documents obtained by Purchaser from
third parties with respect to the Property.
8. Conditions Precedent to Closing.
(a) It shall be a condition precedent of Purchaser's
obligation to make a full settlement hereunder that each and every one of the
following conditions shall exist on the Closing Date:
(i) Representations and Warranties. Seller's
representations and warranties hereunder shall be true and
correct in all material respects in the same manner and with
the same effect as though such representations and warranties
had been made on and as of the Closing.
(ii) Zoning. No proceedings shall have occurred or
be pending to change, redesignate or redefine the zoning
classification of the Property to a more restrictive
classification than presently exists on the date of
Purchaser's execution of this Agreement.
(iii) Title. Title to the Property shall be
marketable, good of record, and insurable by the Title
Company, pursuant to a full coverage ALTA Form-B (Rev. 1992)
owner's title insurance policy in the amount of the Purchase
Price (or an unconditional commitment therefor) without any
exceptions ("Printed form" or otherwise) other than the
Permitted Exceptions, and in addition, providing affirmative
coverage insuring against any mechanic's or materialmen's lien
arising from goods, labor or materials provided to the
Property prior to the Closing Date. The "Permitted Exceptions"
are:
(A) the lien of current real estate taxes
and special assessments not yet due and payable; and
(B) such matters set forth in Exhibit M
attached hereto and such other matters which are not
reasonably unacceptable to Purchaser under this
subsection (B). Promptly after the date of execution
of this Agreement by Seller, Purchaser shall, at its
sole cost and expense, request an interim title
binder from the Title Company and within ten (10)
days after receipt thereof shall notify Seller of any
reasonable objection of any exceptions to title to
the Property which are unacceptable to Purchaser,
which is not set
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forth on Exhibit B. If Purchaser fails to make an
objection within the aforementioned ten (10) day
period, all items shown on the title binder shall be
deemed Permitted Exceptions and Purchaser shall take
title to the Property subject thereto. Seller may, at
its sole option and its sole expense, correct such
conditions at least thirty (30) days prior the
Closing Date; provided however, that notwithstanding
anything to the contrary, Seller shall, at or prior
to Closing, cause all mortgages (other than the
Prudential Loan), deeds of trusts, financing
statements, mechanics liens, judgement liens and
other matters that may be satisfied by a liquidated
sum to be satisfied and released of record or bonded
over or to provide an indemnity or other assurance to
the Title Company so as to permit the Title Company
to issue the owner's title insurance policy required
above (provided Seller is diligently pursuing
resolution of such encumbrances). If Seller elects to
eliminate any such exceptions, Seller may extend the
Closing Date for an additional reasonable period of
time, not to exceed thirty (30) days from the Closing
Date. If Seller is unable or does not desire to
eliminate any of the exceptions, Seller shall notify
Purchaser within five (5) days; otherwise Seller
shall be deemed to have elected to eliminate such
exceptions. Upon receipt of such notice, Purchaser
shall have the option to either (i) to terminate this
Agreement, (ii) to close on the purchase of the
Property and waive such defects in title. In the
event of termination of this Agreement, Seller and
Purchaser shall be relieved of all liabilities under
this Agreement and the Deposit shall be returned to
Purchaser. If Purchaser does not terminate this
Agreement, Purchaser shall be deemed to have waived
all objections to such matters.
(iv) Existing Mortgages. Seller shall have delivered
to the Title Company such releases or other instruments
necessary to release of record and beneficially any and all
existing mortgages, deeds of trust, financing statements or
other security documents affecting the Property, other than
the Prudential Loan (collectively, the "Existing Mortgages").
(v) Leasing Brokerage and Property Management
Agreements. Seller shall have terminated any and all leasing
brokerage and property management agreements with respect to
the Property effective as of the Closing. Except as provided
in Section 11(e), all responsibility for dealings with any
such brokers, including the payment of any claims (if deemed
warranted by Seller) shall be the sole responsibility of
Seller. Seller agrees that it will indemnify and hold
Purchaser, its successors, assigns, partners, agents and
employees, harmless against any such
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claims and/or losses which might be incurred by such
indemnitees in connection with any additional and/or
contingent leasing commissions or fees or management fees. The
provisions of this subparagraph (vi) shall survive Closing
without time limitation.
(vi) Performance by Seller. Seller shall have
complied with and not be in breach of any of its covenants or
obligations under this Agreement.
(vii) Tenant Estoppels. Purchaser shall have received
a tenant estoppel letter substantially in the form attached
hereto as (A) Exhibit F from, at a minimum tenants satisfying
the requirements described on Exhibit F-1 (or from such
tenants and in such form as required by Purchaser's mortgage
lender), confirming the information set forth in Section 4(d)
and in the Lease and Rent Schedule attached hereto as Exhibit
B for such tenants and containing no material changes from the
Rent Schedule, and (B) any subordination and attornment
agreements required by Purchaser's mortgage lender.
(viii) FWRT Board Approval. The Board of Directors of
FWRT shall have approved this Agreement and the transactions
contemplated hereby. In the event that the aforesaid condition
is not satisfied by the end of the Feasibility Period,
Purchaser may elect to terminate this Agreement by giving
Seller written notice thereof before the expiration of the
Feasibility Period in which event the Deposit and any interest
thereon shall be returned to Purchaser and neither party shall
have any further obligations or liabilities to the other.
(b) Failure of Condition. In the event of the failure by the
Closing Date of any condition precedent set forth above, then Purchaser, at its
sole election, may (a) terminate this Agreement, in which event the Deposit and
any interest thereon shall be returned to Purchaser and, except as otherwise
provided in Paragraph 16 hereof, neither party shall have any further
obligations or liabilities to the other; or (b) waive such conditions and
proceed to Closing.
(c) It shall be a condition precedent of Seller's obligation
to make a full settlement hereunder that each and every one of the following
conditions shall exist on the Closing Date.
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(i) Representations and Warranties. Purchaser's
representations and warranties hereunder shall be true and
correct in all material respects in the same manner and with
the same effect as though such representations and warranties
has been made on and as of the Closing
9. Seller's Deliveries. Seller shall execute, acknowledge and deliver
to Purchaser at the Closing the following documents, dated on the Closing Date:
(a) a special warranty deed, in form and substance
satisfactory to Title Company, conveying good and marketable fee simple title to
the Property, free and clear of all liens, encumbrances, easements and
restrictions except for the Permitted Exceptions;
(b) a xxxx of sale which shall convey to Purchaser good title
to all the Personalty, free and clear of all liens and encumbrances;
(c) an affidavit setting forth that all of Seller's
representations and warranties are true and correct in all material respects on
the Closing Date;
(d) an assignment and assumption of the Leases and security
deposits, together with all originally executed Leases, and the security
deposits shall be assigned to Purchaser;
(e) an assignment and assumption of Licenses, permits and
Service Contracts, if any, which are to be assumed by Purchaser at Purchaser's
request, together with the originally executed Service Contracts which are to be
assumed;
(f) a schedule updating the Rent Schedule and setting forth
all arrearages in rents and all prepayments of rents;
(g) copies of books, records, operating reports, files and
other materials related to the ownership, use and operation of the Property, to
the extent that any exist and are in the possession of Seller, which obligation
shall survive Closing;
(h) Tenant estoppel letters as required in Section 8(a)(vii);
(i) an original letter executed by Seller advising the tenants
of the sale of the Property to Purchaser and directing that rents and other
payments thereafter be sent to Purchaser or as Purchaser may direct;
(j) possession of the Property in the condition required by
this Agreement, and the keys therefore;
-13-
(k) the Certification of Non-foreign Status as provided in
Treas. Reg. 1.1445-2T(b)(2)(iii)(B) or in any other form as may be required by
the Internal Revenue Code or the regulations issued thereunder;
(l) such other items and instruments, at no additional cost or
expense to Seller, as shall be required by the Title Company in connection with
the issuance of its title insurance policy to Purchaser pursuant to Section
8(a)(iii) (including customary Seller's or owner's affidavit);
(m) any and all documents necessary to release the cash
constituting the Deposit from escrow with the Title Company and to have said
cash returned to Purchaser; and
(n) any other documents required by this Agreement to be
delivered by Seller.
10. Purchaser's Performance. At Closing, simultaneously with the
deliveries of Seller pursuant to the provisions of Xxxxxxxxx 0, Xxxxxxxxx shall
pay to Seller the Purchase Price in the manner specified in Paragraph 2,
whereupon the Deposit, and any interest accrued thereon, shall be returned to
Purchaser by the Title Company or, at the option of Purchaser, shall be applied
against the payment of Purchase Price. Purchaser shall also execute and deliver
to Seller an assignment and assumption of Leases and such other documents
reasonably requested to effectuate the purposes of this transaction.
11. Settlement Charges; Prorations and Adjustments. Purchaser shall pay
for the title examination, the title insurance premium, notary fees, recording
fees (i.e., per page charges) and other such charges incident to Closing. The
cost of preparation of the deed for the Property shall be borne by Seller. Any
real estate transfer taxes in connection with this transaction shall be borne
equally by Seller and by Purchaser. Purchaser and Seller shall each pay its own
legal fees related to the preparation of this Agreement and all documents
required to settle the transaction contemplated hereby. Provided, however, that
in the event Purchaser is permitted to and does assign its rights under this
Agreement and such assignee makes additional payments of any kind in connection
with such assignment of this Agreement, Purchaser shall be solely responsible
for any additional transfer taxes assessed as a result thereof and Purchaser
shall pay such additional taxes at settlement and recording of the deed; Seller
shall have no liability for any taxes assessed based on any consideration
greater than the Purchase Price, and Purchaser shall indemnify Seller for any
such additional taxes. In addition to the foregoing, at the Closing, the
following adjustments and prorations shall be computed as of the Closing Date
and the Purchase Price shall be adjusted to reflect such prorations, as follows:
-14-
(a) Taxes. Real estate and personal property taxes shall be
apportioned as of the Closing Date.
(b) Assessments. All special assessments and other similar
charges which have become a lien upon the Property or any part thereof and are
due and payable on or before the last day of the Feasibility Period, if any,
shall be paid in full by Seller at the Closing. All other special assessments or
similar charges shall be adjusted as of the Closing Date, if possible;
otherwise, they shall be the responsibility of Purchaser after Closing.
(c) Rent. Rent for the month of Closing and any month after
Closing collected by Seller prior to Closing shall be apportioned as of the
Closing Date. If any tenant is in arrears in the payment of rent on the Closing
Date, rents received from such tenant after the Closing shall be applied in the
following order of priority: (a) first, to the payment of current rent then due;
(b) second, to delinquent rent for any period after the Closing Date; and (c)
third, to delinquent rent for any period prior to the Closing Date. Such
delinquent rent shall be paid to Seller within thirty (30) days of receipt by
Purchaser. Purchaser does not guarantee or undertake any obligation to xxx or
take other action for collection of arrearages in rents due from tenants as of
the Closing Date; provided, however, Seller shall have the right to pursue and
collect such delinquent rents by any remedies available to it at law or equity.
If rents or any portion thereof received by Seller or Purchaser after the
Closing Date are payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fee,
costs and expenses of collection thereof, if any, shall be promptly paid to the
other party, which obligation shall survive the Closing.
If any tenants are required to pay percentage rents,
escalation charges for real estate taxes, operating expenses, cost-of-living
adjustments or other charges of a similar nature ("Additional Rents") and any
Additional Rents are collected by Purchaser after the Closing which are
attributable in whole or in part to any period prior to the Closing, then
Purchaser shall promptly pay to Seller Seller's proportionate share thereof,
less a proportionate share of any reasonable attorneys' fees, costs and expenses
of collection thereof, if any, if and when the tenant paying the same has made
such payments of Additional Rent then due to Purchaser pursuant to the tenant's
Lease, which obligation shall survive the Closing.
(d) Miscellaneous. All other charges and fees customarily
prorated and adjusted in similar transactions, including utilities, insurance
premiums and charges for Service Contracts to be assumed by Purchaser, shall be
prorated as of the Closing Date. In the event that accurate prorations and other
adjustments cannot be made at Closing because current bills are not obtainable
or the amount to be adjusted is not yet ascertainable (as, for example, in the
case of utility bills) the parties shall prorate on the best available
information, subject to further adjustment promptly upon receipt of the
-15-
final xxxx or upon completion of final computations. Seller agrees that an
appropriate amount in respect of water consumption charges may be held in escrow
by the Title Company in connection with its issuance of a title insurance policy
to Purchaser. Seller shall use commercially reasonable efforts to have all
utility meters read on the Closing Date so as to accurately determine its share
of current utility bills.
(e) Seller shall be reimbursed at the Closing for the full
amount of any leasing commissions or tenant improvement costs paid by Seller
pursuant to any new, expanded or renewed lease for space in the Property
executed by Seller after the date of this Agreement and consented to by
Purchaser pursuant to this Agreement.
12. Risk of Loss. The risk of loss or damage to the Property by fire or
other casualty until recordation of the deed of conveyance shall be borne by
Seller. If prior to Closing (i) condemnation proceedings are commenced against
all or any portion of the Property, or (ii) if the Property is damaged by fire
or other casualty to the extent that the cost of repairing such damage shall be
One Hundred Thousand Dollars ($100,000.00) or more, or (iii) if the Property is
damaged by an uninsured risk, or (iv) the Property becomes subject to litigation
which may deprive Purchaser of any material benefit to which it would become
entitled pursuant to this Agreement, then Purchaser shall have the right, upon
notice in writing to the Seller delivered within thirty (30) days after actual
notice of such condemnation or fire or other casualty or litigation, to
terminate this Agreement, and thereupon the parties shall be released and
discharged from any further obligations to each other and the discharged from
any further obligations to each other and the Deposit shall be refunded to
Purchaser. If Purchaser does not elect to terminate this Agreement, or in the
event of fire or other casualty not giving rise to a right to terminate this
Agreement by Purchaser, this Agreement shall continue in full force and effect
and the Purchaser Price shall not be reduced except as hereinafter set forth,
but Purchaser shall be entitled to an assignment of all of Seller's share of the
proceeds of fire or other casualty insurance and rent insurance proceeds payable
with respect to the period after Closing or of the condemnation award, as the
case may be, and Seller shall have no obligation to repair or restore the
Property; provided, however, that the Purchase Price shall be reduced (but only
if the total insurance proceeds are less than the Purchase Price) by an amount
equal to (a) the "deductible" applied by Seller's insurance policy, or (c) if
Seller is self-insured, the cost of repairing such damage. If Purchase elects
not to terminate this Agreement, Purchaser shall have the right to participate
in the negotiation and settlement of any litigation, casualty or
condemnation-related claim.
13. Inspection of Property.
(a) Purchaser's Right of Inspection. Purchaser shall have the
right, at its own risk, cost and expense, at any time or times prior to Closing
(upon at least 24 hours prior verbal notice to Seller and during reasonable
hours and with a
-16-
representative of Seller, if required by Seller), to enter, or cause its agents
or representatives to enter, upon the Property for the purpose of making
surveys, or any tests, investigations and/or studies relating to the Property or
Purchaser's intended acquisition thereof which Purchaser deems appropriate, in
its sole discretion. Purchaser shall further have complete access to all
documentation, agreements and other information in the possession of Seller
related to the ownership, use and operation of the Property, to the extent it is
readily available to Seller, and shall have the right to make copies of same.
(b) Feasibility Period. Any other provisions of this Agreement
to the contrary notwithstanding, Purchaser may, prior to the expiration of sixty
(60) days after the Acceptance Date (such 60-day period herein referred to as
the "Feasibility Period"), cause at Purchaser's sole cost and expense, such
boring, engineering, economic, water, sanitary and storm sewer, utilities,
topographic, structural, environmental and other tests, investigations, market
studies and other studies as Purchaser shall elect; provided, however that any
intrusive testing by Purchaser (such as soil borings, and the like) shall be
subject to Seller's prior reasonable consent. In the event that any of such
tests, investigations and/or studies indicate, in Purchaser's sole and absolute
discretion, that Purchaser's plans for the Property would not be feasible for
any reason, then Purchaser shall have the right, at its sole election on or
before the last day of the Feasibility Period, to terminate this Agreement by
giving written notice thereof to Seller, in which event this Agreement shall
terminate, the Deposit shall be returned to Purchaser and neither party shall
have any further liabilities or obligations to each other. Purchaser agrees to
repair any damage to the Property that may be caused by its inspections and to
indemnify and defend Seller and its partners, affiliates, agents and employees,
and hold Seller and its partners, affiliates, agents and employees harmless
against any property damage or physical injury suffered as a result of such
inspections, investigations, studies or tests. Purchaser agrees not to enter
upon the Property until such time as Purchaser has furnished Seller with
evidence of a commercial general liability insurance policy with an insurer
reasonably satisfactory to Seller covering any activities of Purchaser on the
Property and containing limits of liability reasonably satisfactory to Seller.
(c) Audit. Seller hereby agrees to allow its books and records
related to the Property to be audited (at Purchaser's sole expense) by an
independent, certified public accounting firm selected by Purchaser, and Seller
will cooperate and cause its employees and other agents to cooperate in such
auditing process, including any customary certifications required by the
auditors. Purchaser shall provide Seller with prior notice of such audit.
-17-
14. Indemnifications.
(a) Indemnification by Seller. Seller hereby indemnifies and
agrees to defend and hold harmless Purchaser and its partners and subsidiaries,
and any officer, director, employee or agent of any of them, and their
respective successors and assigns, from and against any and all claims,
expenses, costs, damages, losses and liabilities (including reasonable
attorneys' fees) which may at any time be asserted against or suffered by
Purchaser or the Property, or any part thereof, whether before or after the
Closing Date, as a result of, on account of or arising from (a) any breach of
any covenant, representation, warranty or agreement on the part of Seller made
herein or in any instrument or document delivered pursuant to this Agreement,
and/or (b) any third party claim relating to or arising out of any contract,
agreement, debt or other obligation, or encumbrance or other occurrence (other
than encumbrances expressly approved by Purchaser and other than occurrences
which are the subject of representations and/or warranties covered by clause (a)
above) created, arising or accruing prior to the Closing Date, regardless of
when asserted and relating to the Property or its operations, provided such
claim is derived from an occurrence or breach which took place prior to Closing.
The foregoing indemnifications set forth in this Section 14(a) shall survive
Closing without time limitation (other than indemnifications for breach of
representation or warranties on the part of Seller made herein which are subject
to a limited survival period under this Agreement, in which case the survival of
such indemnification shall be limited to the survival period of such
representation or warranty).
(b) Intentionally Omitted.
(c) Indemnification by Purchaser. Purchaser hereby indemnifies
and agrees to defend and hold harmless Seller and its partners and subsidiaries,
and any officer, director, employee or agent of any of them, and their
respective successors and assigns, from and against any and all claims,
expenses, costs, damages, losses and liabilities (including reasonable
attorneys' fees) which may at any time be asserted against or suffered by Seller
as a result of, on account of or arising from (a) any breach of any covenant,
representation, warranty or agreement on the part of Purchaser made herein or in
any instrument or document delivered pursuant to this Agreement, and/or (b) any
obligation, claims, suit, liability, contract, agreement, debt or encumbrance or
other occurrence created, arising or accruing on or after the Closing Date and
relating to the Property or its operations. The foregoing indemnifications set
forth in this Section 14 (c) shall survive closing without time limitation.
15. Brokerage Commission. Seller and Purchaser represent and warrant to
each other that no brokerage fee or real estate commission is or shall be due or
owing in connection with this transaction, and Seller and Purchaser hereby
indemnify and hold the other harmless from any and all claims of any other
broker or agent so claiming
-18-
based on action or alleged action of the other. The Legislature of the
Commonwealth of Pennsylvania has established a Real Estate Recovery Fund. The
purpose of the Fund is to compensate persons who obtain a judgment because of
fraud, misrepresentation or deceit of an agent. For further information call
(000) 000-0000.
16. Default Provisions; Remedies.
(a) Purchaser's Default. If Purchaser shall default in
performance of its obligations under this Agreement, and such default is not
cured within five (5) days after written notice thereof from Seller, or fails to
consummate the purchase and sale contemplated herein when required to do so
pursuant to the provisions hereof, then the Title Company shall deliver the
Deposit to Seller as full and complete liquidated damages, and as the exclusive
and sole right and remedy of Seller, whereupon this Agreement shall terminate
and neither party shall have any further obligations or liabilities to any other
party. Notwithstanding the foregoing, Purchaser agrees that Purchaser not be
exculpated from any personal liability with respect to the indemnifications set
forth in Section 13 (b) hereof.
(b) Seller's Default. Except for any breaches waived in
writing by Purchaser, if Seller has breached any of its covenants or obligations
under this Agreement or has failed, refused or is unable to consummate the
purchase and sale contemplated herein by the Closing Date or if any of the
representations and warranties made by Seller under this Agreement shall be
inaccurate or incorrect, then Purchaser shall be entitled to as its sole and
exclusive remedies to either (i) waive such breach, default or failure, (ii)
extend the Closing for such reasonable time or times as may be necessary in
order to enable Seller to remedy such breach, default or failure, (iii)
terminate this Contract and obtain the return of the Deposit, or (iv) pursue an
action for specific performance. In the event that Purchaser elects to pursue
specific performance and Purchaser prevails in such litigation, Seller shall be
obligated to pay all reasonable legal fees, costs and expenses incurred by
Purchaser.
17. Miscellaneous Provisions.
(a) Completeness and Modification. This Agreement (together
with Exhibits A to M attached hereto) with respect to the transactions
contemplated herein, and it supersedes all prior discussions, understandings or
agreements between the parties. This Agreement shall not be modified or amended
except by an instrument in writing signed by all of the parties hereto.
(b) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
assigns.
(c) Assignment. This Agreement shall not be freely assignable
by
-19-
Purchaser, without the consent of Seller provided that this Agreement may be
assigned at Closing without Seller's consent to an entity controlled by,
controlling or under common control with FWRLP.
(d) Waiver; Modification. Failure by Purchaser or Seller to
insist upon or enforce any of its rights hereto shall not constitute a waiver or
modification thereof.
(e) Governing Law. This Agreement shall be governed by and
construed under the laws of the Commonwealth of Pennsylvania without regard to
choice of law principles.
(f) Headings. The headings are herein used for convenience or
reference only and shall not be deemed to vary the content of this Agreement or
the covenants, agreements, representations and warranties herein set forth, or
the scope of any provision hereof.
(g) Continuing Documentation and Access. From and after
Closing, Seller shall cooperate with Purchaser to provide all information in its
possession concerning the ownership, use and operation of the Property
(including the right to copy same at the expense of Purchaser) for purposes of
any tax examination or audit or other similar purpose, subject to the agreements
of Purchaser concerning confidentiality set forth herein.
(h) All Warranties Joint and Several. Each and every warranty,
covenant, undertaking and agreement of Seller and Purchaser hereunder shall be
deemed a joint and several warranty, covenant, undertaking and agreement of each
person and entity collectively comprising the Seller and Purchaser.
(i) Counterparts. To facilitate execution, this Agreement may
be executed in as many counterparts as may be required; it shall be sufficient
that the signature of, or on behalf of, each party, or that the signatures of
the persons required to bind any party, appear on one or more such counterparts.
All counterparts shall collectively constitute a single agreement.
(j) Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be personally delivered
or mailed by first-class registered or certified mail, return receipt requested,
postage prepaid or delivered by commercial courier, telecopy or overnight
courier (e.g., Federal Express), against receipt, to the addresses indicated
below:
-20-
(i) if to Purchaser:
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esquire
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
(ii) if to Seller:
Newtown Square Associates, L.P.
c/o CMS Companies
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esquire
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Such notice shall be deemed given on the date of receipt by
the addressee or the date receipt would have been effectuated if delivery were
not refused. Each party may designate a new address by written notice to the
other in accordance with this Paragraph 17(j).
(k) Business Days. A "business day" shall be Mondays through
Fridays, less and excepting all legal holidays observed by the United States
Government or the Government of the State of Maryland. Any date specified in
this Agreement which does not fall on a business day shall be automatically
extended until the first business day after such date.
(l) Time of Essence. TIME SHALL BE OF THE ESSENCE IN THE
PAYMENT OF ALL SUMS, PERFORMANCE OF ALL OBLIGATIONS, GIVING OF ALL NOTICES AND
THE EXERCISE OF ALL RIGHTS UNDER THIS AGREEMENT.
-21-
(m) Confidentiality. Before Closing, Purchaser shall not issue
any press release or other publicity of any kind whatsoever with respect to this
Agreement or any of the transactions contemplated hereby, without the prior
written consent of Seller in each instance. Seller shall notify Purchaser of its
consent or refusal within two (2) business days after Seller's requests for
consent. Before Closing, Purchaser agrees that it will keep confidential, and
will make reasonable efforts to have the respective partners, employees,
officers, directors, shareholders, agents, counsel, accountants and affiliates
of Purchaser, keep confidential, the terms of this Agreement, and all
information, records, materials and other data pertaining to the Property which
was acquired or learned from this Agreement or the negotiations relating thereto
or arising out of the transactions contemplated hereby, except (i) to the extent
necessary to effect the transactions contemplated hereby, (ii) pursuant to
compulsion by due process of law, (iii) in connection with the resolution of any
dispute between Purchaser and Seller, or (iv) if such information was obtained,
or is otherwise available, in the public domain or from other sources. The
provisions of this paragraph shall survive the Closing and the termination of
this Agreement.
(n) Recording. Neither this Agreement nor any memorandum or
assignment hereof shall be filed in any public place of record. If recorded,
such recording shall not constitute constructive or other notice to any third
party. The recording or attempt to record this Agreement or any memorandum or
assignment hereof, by or on behalf of Purchaser, shall constitute a default of
this Agreement by Purchaser and a waiver and release by Purchaser of all rights
of Purchaser under this Agreement.
(o) Except as expressly set forth in this Agreement or in the
documents to be delivered at Closing, Seller hereby expressly disclaims any and
all warranties, express or implied, relating in any way to the Property,
including, without limitation, any warranty provided for under statutory or
common law or the uniform commercial code, including but not limited to
warranties of merchantability and fitness for a particular purpose. Both
Purchaser and Seller are acting at arm's length to protect their own interests,
and both Purchaser and Seller shall use their own independent business judgment
concerning the sale and purchase of the Property. Purchaser shall complete to
its satisfaction, all investigations, inspections and tests which Purchaser
deems necessary.
-22-
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase Agreement as of the day and year first written above.
PURCHASER:
FIRST WASHINGTON REALTY
LIMITED PARTNERSHIP
By: First Washington Realty Trust, Inc.,
WITNESS: Its general partner
By: /s/
--------------------------- ------------------------------------
Xxxxxxx X. Xxxxx
President
Date of execution by
Purchaser: August 8 , 1996
SELLER:
NEWTOWN SQUARE ASSOCIATES, L.P.
By: JCF/CMS Joint Venture
Its general partner
By: CMS Xxxxxx, X.X.
Its general partner
By: MSPS Xxxxxx, Inc.
WITNESS: Its general partner
By: /s/
---------------------------- --------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Date of execution by
Seller: September 20 , 1996
-23-
ACKNOWLEDGE BY TITLE COMPANY
The undersigned Title Company executes this Real Estate Purchase
Agreement solely to acknowledge receipt of the Deposit pursuant to Paragraph 3
hereof and to evidence its agreement to serve as escrow agent pursuant to the
terms of the foregoing Agreement.
COMMERCIAL SETTLEMENTS, INC.
By: /s/
------------------------------------
Name:
Title:
Date: September 24, 1996
-24-
LIST OF EXHIBITS
EXHIBIT A. Legal Description of Land Recitals
EXHIBIT B. Leases and Rent Schedule Section 5(d)
EXHIBIT C. Service Contracts Section 5(e)
EXHIBIT D. Tax Bills Section 5(f)
EXHIBIT E. Insurance Certificates Section 5(g)
EXHIBIT F. Form of Tenant Estoppel Section 6(f)
EXHIBIT F-1. Tenant Estoppels Section 8(a)(vii)
EXHIBIT G. Certificates of Occupancy Section 5(n)
EXHIBIT H. Operating Statements and Operating Budget Section 5(p)
EXHIBIT I. Personal Property Section 5(q)
EXHIBIT J. Prudential Mortgage Section 2(b)(i)
EXHIBIT K. Prudential Note Section 2(b)(i)
EXHIBIT L. Litigation Section 5(k)
EXHIBIT M. Permitted Exceptions Section 8(a)(iii)(B)
[Seller to Attach Foregoing at Acceptance of this Agreement]
-25-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
-26-
EXHIBIT B
LEASES AND RENT SCHEDULE
-27-
EXHIBIT C
SERVICE CONTRACTS
-28-
EXHIBIT D
TAX BILLS
-29-
EXHIBIT E
INSURANCE CERTIFICATES
-30-
EXHIBIT F
[Form of Tenant Estoppel]
ESTOPPEL CERTIFICATE
, 199
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Re: Collegeville Shopping Center
Lease dated 19 , with [name of Tenant]
----------------------------------------------------------
Gentlemen:
Please be advised that the undersigned tenant hereby certifies as of
the date hereof as follows with respect to the Lease:
Name of Tenant:
Description of Leased Premises:
Date of Commencement of Lease:
Date of Termination of Lease:
Options to Renew:
Base Rental: Annual Rental of $ , payable monthly in arrears.
-------------
Real Estate Tax Charges: pro rata: yes no.
Percentage Rent: % of Gross Receipts over $
------
Common Area Maintenance Charges: pro rata: yes no.
Tenant in possession of the premises under the Lease?: Yes
The Lease is unmodified and in full force and effect except for modifications,
listed by number and date on Exhibit A attached hereto.
Amount of rent paid in advance: $
Amount of Security Deposit: $
-i-
Compliance with Construction Requirements: Landlord has complied with all
construction requirements of Tenant, and Tenant has accepted all of the leased
premises under the Lease.
Tenant has not made any claims against Landlord and has no knowledge of any
uncured default on the part of Landlord (If there is knowledge of any uncured
default, please note and attach separate sheet).
Tenant's Right to Purchase: Tenant has no option or right in the nature of a
right of first refusal to purchase or otherwise acquire any interest in the
leased premises.
Tenant's Right of Premature Termination or Option to Renew: Tenant has no right
to premature termination and no right or option to renew or extend the term
beyond its present term and no option to lease additional space, except as
expressly set forth in the Lease.
TENANT:
[Name of Tenant]
By:
Name:
Title:
STATE OF )
) ss:
COUNTY OF )
Signed and sealed in my presence this day of , 199 .
---- -------- ---
Notary Public
[SEAL]
My Commission Expires:
F:\XXXXXX\XXXXXX\REIT\NEWTCLEA.AGT
-ii-
EXHIBIT F-1
TENANT ESTOPPELS
o Acme Markets 35,282 x.x.
x Xxxxxx Drug 13,179 x.x.
x Xxxxxx Bank 4,200 s.f.
o True Value Hardware 9,416 s.f.
o Dress Barn 5,017 s.f.
--------
67,094 s.f.
o Tenant's occupying at least 75% of
the remaining space at the Property.
[(137,569 s.f. - 67,094 s.f.) x 75% = 52,856]
-iii-
EXHIBIT G
CERTIFICATES OF OCCUPANCY
-iv-
EXHIBIT H
OPERATING STATEMENTS AND OPERATING BUDGET
-v-
EXHIBIT I
PERSONAL PROPERTY
-vi-
EXHIBIT J
PRUDENTIAL MORTGAGE
-vii-
EXHIBIT K
PRUDENTIAL NOTE
-viii-
EXHIBIT L
LITIGATION
-ix-
EXHIBIT M
PERMITTED EXCEPTIONS
-x-
