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Securities and Exchange Commission
Washington, D.C. 20549
_________________________
FORM 8-K
_________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): March 31, 1998
CV REIT, INC.
(Exact name of registrant as specified in its charter.)
Delaware 1-8073 59-0950354
(State or Other (Commission File Number) (IRS Employer
Jurisdiction of Identification
Incorporation) Number)
100 Century Boulevard, West Palm Beach, Florida 33417
(Address of Principal Executive Offices) (zip code)
Registrant's telephone number, including area code: (407) 640-3155.
Item 2. Acquisition or Disposition of Assets.
On March 31, 1998, Newtown Village Plaza Associates, L.P., a
Pennsylvania limited partnership ("Purchaser"), consummated the acquisition
of the Newtown Village Shopping Center, located in Newtown Township, Bucks
County, Pennsylvania, together with certain personal property and other
interests related thereto (collectively, the "Property"). The Property
consists of an approximately one hundred seventy-seven thousand (177,000)
square foot retail shopping center. Tenants of the Property include
Genuardi's Market, Eckerd Drugs, Encore Books, Zany Brainy and Radio Shack.
The Property is 98% occupied. The Property was acquired from Newtown
Village Partnership, a Pennsylvania limited partnership ("Seller"),
pursuant to the terms of a Real Estate Purchase Agreement by and between
Seller and RCEK, Inc., as subsequently amended and assigned (the
"Agreement").
The purchase price for the Property under the Agreement was
Twenty-Seven Million Three Hundred Twenty-Five Thousand Dollars
($27,325,000) (the "Purchase Price"). Pursuant to the Agreement,
approximately Twenty Million Sixty-Five Thousand Dollars ($20,065,000)
of the Purchase Price was paid by the assumption of existing indebtedness
in such amount (the "Loan") by the Purchaser from the Seller, as evidenced
by a promissory note held by The Prudential Insurance Company of America
("Prudential"), and secured by a mortgage on the Property, and the
remainder of the Purchase Price was paid in cash.
As a result of this acquisition by the Purchaser, the Registrant
indirectly obtained an interest in the Property. The Registrant's
ownership interest in the Property is held through Montgomery CV Realty
Trust, a Delaware business trust of which Registrant is the one hundred
percent (100%) beneficial owner (the "Trust"). The Trust holds the general
partner interest in and approximately eighty-two percent (82%) of the
limited partner interests in Montgomery CV Realty L.P., a Delaware limited
partnership (the "Operating Partnership"). The Operating Partnership is
the sole member of Newtown Village Plaza LLC, a Delaware limited liability
company (the "LLC") which is the sole general partner of the Purchaser.
The Operating Partnership is also the sole limited partner of the
Purchaser.
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Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(a) Financial Statements of Business Acquired - Audited financial statements
of the Property are not included in this report, and will be filed on or
before June 14, 1998.
(b) Pro Forma Financial Information - Pro Forma financial information is
not included in this report, and will be filed on or before June 14, 1998.
(c) Exhibits
2.1 Real Estate Purchase Agreement dated September 29, 1997 by and
between Newtown Village Partnership and RCEK, Inc., or its nominee
or assignee.
2.2 Letter Amendment to Real Estate Purchase Agreement dated December
15, 1997 by and between Newtown Village Partnership and RCEK, Inc.
2.3 Assignment of Real Estate Purchase Agreement dated January 26, 1998
from RCEK, Inc. to Newtown Village Plaza Associates, L.P.
2.4 Second Amendment to Real Estate Purchase Agreement dated February 5,
1998 by and between Newtown Village Partnership and Newtown Village
Plaza Associates, L.P.
2.5 Third Amendment to Real Estate Purchase Agreement dated March 31,
1998 by and between Newtown Village Partnership and Newtown Village
Plaza Associates, L.P.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
CV REIT, INC.
(Registrant)
Date: April 14, 1998 /s/ Louis P. Meshon, Sr.
-------------------------
Louis P. Meshon, Sr.
President and Chief Executive Officer
EXHIBIT INDEX
2.1 Real Estate Purchase Agreement dated September 29, 1997
by and between Newtown Village Partnership and RCEK, Inc., or
its nominee or assignee.
2.2 Letter Amendment to Real Estate Purchase Agreement
dated December 15, 1997 by and between Newtown Village
Partnership and RCEK, Inc.
2.3 Assignment of Real Estate Purchase Agreement dated
January 26, 1998 from RCEK, Inc. to Newtown Village Plaza
Associates, L.P.
2.4 Second Amendment to Real Estate Purchase Agreement
dated February 5, 1998 by and between Newtown Village Partnership
and Newtown Village Plaza Associates, L.P.
2.5 Third Amendment to Real Estate Purchase Agreement dated
March 31, 1998 by and between Newtown Village Partnership and
Newtown Village Plaza Associates, L.P.
EXHIBIT 2.1
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT is made and entered as
of the 29th day of September, 1997 by and between (i) NEWTOWN
VILLAGE PARTNERSHIP, a Pennsylvania limited partnership
(hereinafter referred to as "Seller") and (ii) RCEK, INC., a
Pennsylvania corporation, or its nominee or assignee (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 at South West corner of Durham
Road and Sycamore Street, Newtown, Bucks County, Pennsylvania, as
more particularly described on Exhibit A attached hereto (the
"Land"), together with a shopping center, known as NEWTOWN
VILLAGE SHOPPING CENTER, containing approximately One Hundred
Seventy-Seven Thousand Thirty-Two (177,032) 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 Twenty-Six
Million Seven Hundred Fifty Thousand Dollars ($26,750,000.00) 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.
3. Deposit.
(a) Within three (3) business days 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 Chicago Title Insurance Company, 200 Commerce
Drive, Suite 200, Fort Washington, PA 19034 (the "Title
Company"), as escrow agent, an irrevocable, unconditional letter
of credit with an expiration date of February 15, 1998 in the
amount of One Hundred Thousand Dollars ($100,000.00) and subject
to earlier expiration in accordance with the terms of this
Agreement (the "Deposit"). The Deposit shall be in a form
reasonably acceptable to Seller's counsel and shall be held by
the Title Company pursuant to the terms and conditions of this
Agreement.
(b) The Title Company will immediately provide Seller
with written evidence of receipt of such Deposit.
(c) 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 cash the Deposit and hold the Deposit
proceeds in escrow in an interest bearing account pending
resolution of such dispute. Notwithstanding the foregoing,
should Purchaser exercise its termination right during the
Feasibility Period pursuant to Section 13(b), it is agreed by
Seller that Seller shall not dispute Purchaser's certification
that Purchaser is entitled to the Deposit.
(d) 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, unless Title
Company will agree to a standard of care of all but negligence.
Seller and 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. 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
be on or before the later of (i) thirty (30) days following
satisfaction of all contingencies as set forth in Section 8
hereof to Purchaser's satisfaction or (ii) January 31, 1997. The
Closing shall take place at the offices of the Purchaser at
Plymouth Plaza, 580 West Germantown Pike, Suite 200, Plymouth
Meeting, Pennsylvania 19462, or at such other place as may
mutually agreed upon by Seller and
Purchaser.
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 Commonwealth of Pennsylvania. 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 free and clear of
all liens, encumbrances, covenants, conditions, restrictions 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 actual and constructive knowledge, the present use of
the property is not in violation of applicable zoning laws and/or
ordinances nor has Seller received notices of violation
concerning applicable zoning laws and/or ordinances. There does
not exist any notice of any uncorrected violations 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 and all amendments and/or
modifications 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
or a right of first refusal 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 one month 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 no tenant is in default under its Lease;
(ix) there are no security deposits other than
those set forth in Exhibit B.
(e) Service Contracts. Except as set forth in Exhibit
C, 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 on information provided by Seller and its
own investigations, inspections and business judgment as to the
condition of the Property.
(i) Intentionally Omitted.
(j) Condemnation Proceedings. Seller has received no
correspondence or 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: (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 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 and has no reason to have 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, collectively, "Hazardous Substances") at, upon, under or
within the Land or any contiguous real estate. Seller has
received no notice of proceeding or action pending or threatened
by any person or governmental agency regarding the environmental
condition of the Property nor has Seller any knowledge
(constructive or actual) of any environmental condition at, upon,
under or within the Land or any contiguous real estate.
(n) Certificates of Occupancy and Building Permits.
Attached hereto as Exhibit G are true and correct copies of the
certificates of occupancy for all tenants of the Property.
Seller will not amend such certificates and will maintain them in
full force and effect. Seller shall also provide Purchaser with
copies of all tenant building permits it has in
its possession and attach same hereto as Exhibit G-1.
(o) Licenses and Permits. Seller has received no
notice, nor has any knowledge, nor has reason to have any
knowledge, that it is lacking any required permit or license (the
"Licenses ") which are necessary for the lawful ownership,
occupancy 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 1994, 1995, 1996 and partial year
1997 and, such operating statements fairly and accurately present
the operating results of the Property for the periods indicated.
(q) Personal Property. Attached hereto as Exhibit I
is a true, correct and complete inventory of all personal
property ("Personal Property"), used in the management,
maintenance and operation of the Property (other than trade
fixtures or personal property of tenants).
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
maintenance of the roof in a water-tight condition and 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. 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 the Closing Date, Seller shall not
apply all or any part of the security deposit of any tenant.
(e) Tenant Estoppel. Seller shall obtain and deliver
to Purchaser prior to the Closing Date, a tenant estoppel letter
substantially in the form attached hereto as Exhibit F (or such
other form as required by Purchaser's mortgage lender) 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
Pennsylvania corporation duly organized and existing and in good
standing under the laws of the Commonwealth of Pennsylvania.
Purchaser has all necessary power and authority 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 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) Deleted.
(d) Third Party Reports. If this Agreement shall be
terminated by either party, Purchaser shall deliver 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 its potential
purchase of 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 Date.
(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 ofthe Purchase Price
(or an unconditional commitment therefor) without any exceptions
("Printed Form" or otherwise) other than the Permitted Exceptions,
as hereinafter defined, 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 acceptable to Purchaser
under this subsection (B). Within thirty (30) days after the
date of complete execution of this Agreement, Purchaser shall,
at its sole cost and expense, request an interim title binder
from ther Title Company and within fifteen (15) days after receipt
thereof shall notify Seller of any reasonable objections of any
exceptions to title to the Property which are unacceptable to the
Purchaser, and which are set forth on Exhibit M. If Purchaser fails
to make an objection within the aforementioned thirty (30) 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 to the
Closing Date; provided however, that notwithstanding anything herein
to the contrary, Seller shall, at or prior to the Closing Date,
and except as provided in Section 8(a)(xi), cause all mortgages,
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. Except as provided for in Section 8
(a)(xi), 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 of other security documents affecting the Property
(collectively, the "Existing Mortgages").
(v) Survey. If Purchaser shall have obtained a current ALTA
survey for the property, such survey shall show no gaps of gores in
the Property boundry and no unrecorded easements or other matters
which would adversly affect the current use of the Property. Within
thirty (30) day of the complete execution hereof, Purchaser shall
give Seller written notice of any such matters which are objectionable
to the Purchaser. Seller shall remedy such objectionable matters by
the Closing Date. If Purchaser fails to give Seller written notice of
objectionable matter within such thirty (30) day period, Purchaser
shall be deemed to waived the condition contained in the clause (v).
(vi) Environmental. As of the Closing Date, there shall have
occurred no Spill of Hazardous Substances at the Property nor shall
there exist any condition relating to the environmental condition of
the Property. Within sixty (60) days of the complete execution of
this Agreement, Purchaser shall have an environmental audit of the
Property performed, at its expense. If such audit identifies any
Spill or condition, Purchaser shall give written notice to Seller,
together with a copy of such audit, requesting that Seller remedy
such Spill or condition (Environmental Notice"). Seller shall have
a period of ten (10) business days from receipt of the Environmental
Notice within which to send Purchaser a written notice electing to
either remedy such Spill or condition (which may include giving
Purchaser a credit against the Purchase Price in the amount of
the estimated cost of such remedy) or terminate this Agreement
("Environmental Election Notice"). If Seller's Environmental
Election Notice elects to terminate this Agreement, Purchaser
shall have a period of five (5) business days within which to
withdraw its Environmental Notice, waive the condition contained
in this clause (vi) and proceed to Closing. If Purchaser fails
to give an Environmental Notice on or before the sixtieth (60th)
day after complete execution of this Agreement, it shall be
deemed to waived the condition contained in this clause (vi).
(vii) 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 Date. Except as
provided in Section 11(e), all responsibility (current and
prospective) for dealings with any such brokers, including the
payment of any claims (if deemed warranted by Seller) and/or
commissions 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 claims and/or losses which might be incurred by such
indemnities 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.
(viii) Performance by Seller. Seller shall have
complied with and not be in breach of any of its covenants or
obligations under this Agreement.
(ix) Tenant Estoppels. Purchaser shall have
received (i) a tenant estoppel letter substantially in the form
attached hereto as 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 (ii) any subordination and attornment agreements
required by Purchaser's mortgage lender.
(x) Financing. Deleted.
(xi) Prudential Mortgage. Purchaser shall have
received a commitment from Prudential (Seller's existing
mortgagee), which shall allow Purchaser to assume Seller's
existing mortgage, with a balance on July 31, 1997 in the amount
of Twenty Million Three Hundred Eighty-Three Thousand Dollars
($20,383,000.00), as adjusted by monthly payments until Closing,
with such modifications as are acceptable to Purchaser in its
sole opinion. Purchaser shall use best efforts to procure such
commitment within sixty (60) days of the execution date hereof.
If Purchaser does not receive such commitment in a form
satisfactory to Purchaser in its sole opinion within sixty (60)
days of the execution date hereof, Seller shall have the right to
terminate this Agreement by written notice to Purchaser. Any
assumption, transfer or other such fee associated with the
assumption of the Prudential mortgage shall be borne equally by
Seller and Purchaser. Should either party's obligation pursuant
to this subsection (xi) exceed an amount which such party
believes unacceptable, such party shall have the right to
terminate this Agreement upon five (5) days' written notice to
the other. Such termination right must be exercised, if at all,
within five (5) days of the date it first accrues, and thereupon,
the Deposit shall be returned to Purchaser and neither party
shall have further liabilities or obligations to the other.
(b) Failure of Condition. In the event of the failure by
the Closing Date (or such earlier date as may be set forth in a
specific clause of Section 8(a) above) of any condition precedent
set forth above, then Purchaser, at its sole election, may (i)
terminate this Agreement, in which event the Deposit 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 (ii) 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.
(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 bill 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) with respect to Newtown Village Shopping Center:
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)(ix);
(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;
(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, 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
Paragraph 9, Purchaser 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). 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 Purchaser. Purchaser and Seller shall each pay their
respective legal fees related to the preparation of this
Agreement and all documents required to settle the transaction
contemplated hereby. 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:
(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 Closing
Date, if any, shall be paid in full by Seller at the Closing.
All other special assessments or similar charges occurring after
the Closing Date shall be the responsibility of Purchaser.
(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 sue 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' fees, 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 escalation charges
for real estate taxes or operating expenses ("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 final bill 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 have all utility
meters read on the Closing Date so as to accurately determine its
share of current utility bills.
(e) Leasing Commissions, Etc. Seller shall pay at the
Closing the full amount of any sales or leasing commissions or
tenant improvement costs to be paid by Seller pursuant to any
new, expanded or renewed lease for space in the Property executed
by Seller prior to the Closing Date.
(f) Site Conditions. Deleted.
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 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 Purchase Price shall
not be reduced except as hereinafter set forth, but Purchaser
shall be entitled to an assignment of Seller's share of (i) the
proceeds of fire or other casualty insurance and (ii) that
portion or any rent insurance proceeds payable with respect to
the period after Closing or (iii) proceeds 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 actual
cost of repairing such damage. If Purchaser 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
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, 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, during
all reasonable hours and upon reasonable notice, prior to 5:00
P.M. on December 15, 1997 (such period - herein referred to as
the "Feasibility Period"), cause at Purchaser's sole cost and
expense, such boring, engineering, water, sanitary and storm
sewer, utilities, topographic, structural, and other tests and
investigations, and review such financial information and books
and records, including leases, 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 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 the other. Said Feasibility Period
shall be extended one (1) day for each day the Acceptance Date
(as defined in Section 3 hereof) occurs after October 15, 1997.
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.
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 the 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
indemnification 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 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 (717) 783-3658.
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 ten (10) days after written notice
thereof from Seller, or fails to consummate the purchase and sale
contemplated when required to do so pursuant to the provisions
hereof (except as provided for in this Agreement), 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.
(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 Purchases 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 be freely
assignable by Purchaser to an entity to be associated with
Purchaser or to an entity affiliated with a publicly traded REIT.
(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 the General Partner of
Sellers, of the President of such General Partner (Vivian Meritz)
and of the W.L. Meritz Trust FBO Michael Meritz, a limited
partner.
(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:
(i) if to Purchaser:
[corporation to be formed]
c/o Montgomery Group Affiliates
Plymouth Plaza, Suite 200
580 West Germantown Pike
Plymouth Meeting, PA 19462
(ii) if to Seller:
BEGLEY, CARLIN & MANDIO
680 Middleton Boulevard
Langhorne, Pennsylvania 19047
Attn: William J. Carlin, Esquire
With a copy to:
GROEN, LAVESON, GOLDBERG & RUBENSTONE
Four Greenwood Square
Suite 200
Bensalem, Pennsylvania 19020
Attn: Mark E. Goldberg, Esquire
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 16 (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
Commonwealth of Pennsylvania. 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.
(m) Confidentiality. Before Closing, neither
Purchaser nor Seller 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 the other in each instance. The requested
party shall notify the requesting party of its
consent or refusal within two (2) business days after such
request 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, all
information, records, materials and other data pertaining to the
Property, including third party inspection reports, environmental
audits and other consultant's reports, which were acquired or
learned as a result of due diligence in connection with 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) 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 purchaser of the Property. Purchaser
shall complete to its satisfaction, all investigations,
inspections and tests which Purchaser deems necessary.
IN WITNESS WHEREOF, the parties hereto have executed this
Real Estate Purchase Agreement as of the day and year first
written above.
PURCHASER:
RCEK, INC.
ATTEST:
/s/Ronald J. Cappello By: /s/Ronald J. Cappello
------------------------------
Ronald J. Cappello, President
Date of execution by
Purchaser: September 29, 1997.
SELLER:
NEWTOWN VILLAGE PARTNERSHIP,
a Pennsylvania limited partnership,
By: GPWM, Inc., a Pennsylvania
corporation,
and corporate general partner,
ATTEST:
/s/John P. Koopman By: /s/Vivian Meritz
----------------------
President
Date of execution by
Seller: September 29, 1997.
EXHIBIT 2.2
December 15, 1997
RCEK, Inc.
580 West Germantown Pike
Plymouth Meeting, PA 19462
Attention: Ronald J. Cappello, President
Re: Letter Amendment
To Real Estate Purchase Agreement
Dated September 29, 1997
Village At Newtown Shopping Center
Newtown, Bucks County, Pennsylvania
Dear Mr. Cappello:
With respect to the above-referenced Agreement, this will
acknowledge our agreement that Seller has provided all items
necessary under the Agreement as required pursuant to Section
5(n). It is agreed that the Acceptance Date, as referred to
under the Agreement, shall be December 5, 1997. Purchaser has
three (3) business days from the Acceptance Date to deliver to
Chicago Title Insurance Company the Letter of Credit as set forth
in Section 3(a) of the Agreement.
Due to the delays associated with prolonged Mortgagee
negotiations and also because the Acceptance Date will occur
later than anticipated, it will serve as a mutual benefit to
modify some of the provisions relating to dates in the Agreement.
As such, the parties hereby agree to the following amendments to
the Agreement:
Section 8(a)(iii)(B), the second sentence shall be deleted
and replaced with "By January 5, 1998, Purchaser shall, at its
sole cost and expense, request an interim title binder from the
Title Company and within fifteen (15) days after receipt thereof
but no later than ten (10) days before closing, shall notify
Seller of any reasonable objection of any exceptions to title to
the Property which are unacceptable to Purchaser, and which are
set forth on Exhibit M."
Section 8(a)(v), the second sentence shall be deleted and
replaced with "By January 5, 1998, Purchaser shall obtain such
survey, at its expense, and within fifteen (15) days after
receipt thereof shall notify Seller of any such matters which are
objectionable to Purchaser."
Section 8(a)(vi), the second sentence shall be deleted and
replaced with "By January 25, 1998, Purchaser shall have an
environmental audit of the Property performed, at its expense."
The last sentence shall be deleted and replaced with "If
Purchaser fails to give an Environmental Notice by February 5,
1998, it shall be deemed to have waived the condition contained
in this clause (vi)."
Section 8(a)(x) and (xi), shall be deleted and replaced with
the following:
(x) Financing.
"Purchaser shall have received a loan commitment for
financing (or alternative funding acceptable to Purchaser) for
the acquisition of the Property by February 5, 1998. If
Purchaser does not receive such commitment in a form satisfactory
to Purchaser, at its sole option, by February 5, 1998, either
party shall have the right to terminate this Agreement by written
notice to the other party.
If financing/funding for the purchase is obtained by
Purchaser from Prudential, (Seller's existing mortgagee), which
shall allow Purchaser to assume or re-work Seller's existing
mortgage, with a balance on July 31, 1997 in the amount of Twenty
Million Three Hundred Eighty-Three Thousand Dollars
($20,383,000.00), as adjusted by monthly payments until Closing,
with such modifications as are acceptable to Purchaser in its
sole opinion, any assumption, transfer or other such fee
associated with the funding of the purchase from Prudential shall
be borne equally by Seller and Purchaser. Should either parties
obligation pursuant to this paragraph of subsection (x) exceed an
amount which such party believes unacceptable, such party shall
have the right to terminate this Agreement upon five (5) days'
written notice to the other. Such termination right must be
exercised, if at all, within five (5) days of the date it first
accrues, and thereupon, the Deposit shall be returned to
Purchaser and neither party shall have further liabilities or
obligations to the other.
If financing/funding for the purchase of the Property by
Purchaser is obtained other than through the assumption of
Seller's Prudential mortgage as set forth above, Purchaser shall
be responsible for the payment of any prepayment, penalty or
other fee associated with the payoff of Seller's existing
Prudential Mortgage at closing, provided, however, that if such
prepayment or other fee amount exceeds Two Hundred Thousand
Dollars, ($200,000.00), Seller shall be responsible for payment
of the amount in excess of Two Hundred Thousand Dollars,
($200,000.00), up to Three Hundred Thousand Dollars,
($300,000.00). Further, if any such prepayment or other fee
amount exceeds Three Hundred Thousand Dollars, ($300,000.00),
Seller shall be responsible for payment of one-half (1/2) of the
amount in excess of Three Hundred Thousand Dollars,
($300,000.00), up to the sum of Four Hundred Thousand Dollars,
($400,000.00). In no event shall Seller's responsibility for
payment of any prepayment or other fee or penalty exceed One
Hundred Fifty Thousand Dollars, ($150,000.00).
To evidence your acceptance of the foregoing, kindly sign
and return a copy of this letter, retaining a copy for your file.
Yours Sincerely,
/s/John P. Koopman
------------------------------
John P. Koopman
Attorney on behalf of Seller
Newtown Village Partnership
To evidence your acceptance of the
foregoing, kindly sign and return a
copy of this letter, retaining a copy
for your file.
Agreed to and accepted this 16th
day of December, 1997.
/s/Ronald J. Cappello
RCEK, Inc.
By: Ronald J. Cappello, President
JPK/jmd
Enclosures
EXHIBIT 2.3
ASSIGNMENT OF REAL ESTATE PURCHASE AGREEMENT
This ASSIGNMENT OF REAL ESTATE PURCHASE AGREEMENT
("Assignment") is made and entered into as of the 26th day of
January, 1998, by and between RCEK, Inc., a Pennsylvania
corporation ("Assignor"), and Newtown Village Plaza Associates,
L.P., a Delaware limited partnership ("Assignee").
BACKGROUND
Pursuant to a certain Real Estate Purchase Agreement dated
September 29, 1997, by and between Newtown Village Partnership, a
Delaware limited partnership ("Seller") and Assignor, as amended
by the terms of a certain letter dated December 15, 1997 from
Begley, Carlin & Mandio, counsel to Seller, to Assignor
(collectively, the "Agreement"), Seller has agreed to sell to
Assignor, and Assignor has agreed to purchase from Seller,
certain property located at the southwest corner of Durham Road
and Sycamore Street in Newtown, Bucks County, Pennsylvania
containing approximately 177,032 square feet of rentable space,
as more particularly described in the Agreement (the "Property").
Under the Agreement, Assignor has the right to assign its
right, title and interest in and to the Agreement to an entity
affiliated with a publicly traded real estate investment trust.
Assignee is a limited partnership, the sole limited partner of
which is Montgomery CV Realty L.P., a Delaware limited
partnership, whose general partner is Montgomery CV Realty Trust,
a Delaware Business Trust which is a qualified real estate
subsidiary of CV REIT, Inc., a publicly traded real estate
investment trust. Assignor is unable to pay the balance of the
purchase price due to Seller under the Agreement, and desires to
be relieved of its obligations to purchase the Property under the
Agreement. Assignee desires to purchase the Property and,
accordingly, assume all of the right, title and interest of
Assignor in and to the Agreement. Assignor desires to so assign
its entire right, title and interest in and to the Agreement to
Assignee.
Accordingly, for and in consideration of the mutual
covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Assignment. Assignor hereby assigns to Assignee all of
Assignor's right, title and interest in and to the Agreement.
Assignee hereby accepts such assignment and agrees to assume all
of Assignor's duties and obligations under the Agreement. The
foregoing assignment and assumption is made subject to the terms
of Section 5 hereof. In the event the conditions of Section 5
are satisfied, Assignor and Assignee shall promptly execute and
deliver to Seller written notice of the foregoing assignment of
the Agreement to Assignee and direct Seller to deliver all
notices, requests, consents and other communications under the
Agreement to Assignee.
2. Representations. Assignor hereby represents and warrants to
Assignee as follows:
a. The Agreement, a copy of which is attached hereto as
Exhibit "A", is in full force and effect, constitutes the entire
agreement between Assignor and Assignee, and has not been further
modified or amended;
b. Assignor has delivered to Assignee copies of all
material correspondence relating to the Agreement which has been
delivered by Assignor to Seller, or by Seller to Assignor, from
the date of the Agreement to the date hereof;
c. The Agreement represents the entire understanding and
agreement between Seller and Assignor with respect to the subject
matter of the Agreement, and there are no representations,
warranties, covenants or agreements between Seller and Assignor
except as described in the Agreement;
d. Neither Seller nor Assignor has defaulted under the
Agreement, and no event has occurred which, with the giving of
notice or passage of time, or both, would constitute a default by
Assignor or Seller under the Agreement;
e. All of the representations and warranties of Assignor
in the Agreement are true and correct in all material respects as
of the date they were made and as of the date hereof; and
f. Assignor has the legal right to assign the Agreement to
Assignee, and all necessary corporate action and authority
concerning such assignment has been adopted and granted.
Assignor hereby agrees to indemnify, defend and hold
Assignee harmless from and against any and all claims, demands,
damages, losses, liabilities, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses),
arising out of or in connection with any breach by Assignor of
the foregoing representations or warranties, each of which shall
survive the acquisition of the Property by Assignee under the
Agreement for a period of six months.
3. Deposit.
a. Assignor and Assignee acknowledge and agree that
Chicago Title Insurance Company ("Escrow Agent") is holding an
irrevocable unconditional letter of credit posted by the Assignor
as the "Deposit" under the Agreement (the "Assignor's LC"). In
the event it becomes necessary to post a new letter of credit as
a Deposit under the Agreement prior to the expiration of the
Assignor's LC, then Assignee shall be solely responsible for
posting such letter of credit, and shall do so at least five (5)
days prior to the expiration of the Assignor's LC.
b. In the event that, for any reason, the Assignor's LC is
not drawn upon but is not returned by the Escrow Agent to the
Assignor prior to the deadline for the "Closing Date" (as defined
in the Agreement), then Assignee shall deposit with Assignor a
letter of credit in the amount of One Hundred Thousand Dollars
($100,000) (the "Assignee's LC"), which shall be held by the
Assignor until such time as the Assignor's LC is returned to the
Assignor or expires. In the event that the Assignor's LC is not
returned to the Assignor or does not expire by the date which is
ten (10) days prior to the expiration of the Assignee's LC, then
Assignor may draw upon the full amount of Assignee's LC and hold
the cash proceeds thereof in escrow pending the return or
expiration of the Assignor's LC to Assignor. The Assignee's LC
or cash proceeds thereof shall be returned to the Assignee at
such time as the Assignor's LC expires or is returned to the
Assignor.
c. In the event the Assignor's LC is drawn upon, then
Assignee shall immediately pay the amount thereof to Assignor,
upon demand, or, if Assignor is holding the Assignee's LC or cash
proceeds thereof, Assignor may draw upon such letter of credit or
cash proceeds and retain the same.
4. General Indemnification. Assignee hereby agrees to
indemnify, defend and hold Assignor harmless from and against any
and all claims, demands, liabilities, losses, damages, costs and
expenses (including, without limitation, reasonable attorneys'
fees and expenses) arising out of any act or omission by Assignee
under the Agreement, including, without limitation, claims and
demands made by Seller against Assignor arising from an alleged
breach by the "Purchaser" of the terms and conditions of the
Agreement; provided, however, that such indemnification shall be
null and void and have no force or effect to the extent that a
claim of the Seller against the Assignor arises out of a breach
by the Assignor of its representations, warranties, covenants or
agreements set forth in the Agreement which also constitutes a
breach by the Assignor of any of its representations and
warranties to Assignee under the terms of Section 2 hereof.
5. Board Approval. Assignee acknowledged that on January 15,
1998, the Board of Directors of CV REIT, Inc. approved this
Assignment by duly authorized resolution, subject to the terms
and conditions of the Agreement, including, without limitation,
the provisions of the Agreement which permit the buyer to
terminate the Agreement as a result of Buyer's dissatisfaction
with environmental conditions, failure to obtain suitable
financing, and other conditions to settlement.
6. Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
7. Integration. This Assignment contains the entire agreement
and understanding between the parties with respect to the subject
matter hereof, and may not be modified or amended except in a
written instrument signed by both Assignor and Assignee.
8. Binding Effect. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the date and year first above-written.
RCEK, INC.
By: /s/Ronald J. Cappello
--------------------------
Its President
NEWTOWN VILLAGE PLAZA ASSOCIATES, L.P.
By: Newtown Village Plaza, LLC, its
general partner
By: Montgomery CV Realty L.P., its sole
member
By: Montgomery CV Realty Trust, its
general partner
By: /s/Jeffrey D. Hipple
-------------------------
Its: Managing Trustee
EXHIBIT 2.4
SECOND AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT
This SECOND AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT
("Amendment") is made as of the 5th day of February, 1998, by and
between NEWTOWN VILLAGE PARTNERSHIP, a Pennsylvania limited
partnership ("Seller") and NEWTOWN VILLAGE PLAZA ASSOCIATES,
L.P., a Delaware limited partnership ("Purchaser").
BACKGROUND
Seller and RCEK, Inc., a Pennsylvania corporation ("RCEK")
are parties to a certain Real Estate Purchase Agreement dated
September 29, 1997, as amended by a letter amendment dated
December 15, 1997 (collectively, the "Agreement"), pursuant to
which Seller agreed to sell to RCEK, and RCEK agreed to purchase
from Seller, certain real estate, together with the buildings and
improvements erected thereon and personal property, fixtures
and other rights and benefits appurtenant thereto, situate at the
southwest corner of Durham Road and Sycamore Street in Newtown,
Bucks County, Pennsylvania, known as the Newtown Village Shopping
Center, as more particularly described in the Agreement (the
"Property"). By Assignment of Real Estate Purchase Agreement
dated January 26, 1998, RCEK assigned its entire right, title and
interest in and to the Agreement to Purchaser. Seller and
Purchaser now desire to further amend the Agreement as described
below. Accordingly, intending to be legally bound hereby, and in
consideration of the Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to amend the Agreement as
follows:
1. Additional Property. The real estate described on Exhibit
"1" attached hereto and made a part hereof shall constitute part
of the "Land", as such term is defined in the Agreement, and the
appurtenances, rights, easements, rights-of-way, tenements and
hereditaments incident to such real estate shall constitute part
of the "Additional Property", as such term is defined in the
Agreement. Exhibit "1" to this Amendment is hereby made a part
of Exhibit "A" to the Agreement. The term "Property", as is
defined in the Agreement, shall include (a) that which is
described as such in the Agreement and (b) the real estate
described on Exhibit "1" attached hereto, together with the
improvements, appurtenances, rights, easements, rights-of-way,
tenements and hereditaments appurtenant thereto.
2. Purchase Price. The "Purchase Price", as defined in the
Agreement, is hereby reduced by Two Hundred Thousand Dollars
($200,000), to Twenty-Six Million Five Hundred Fifty Thousand
Dollars ($26,550,000).
<PAGE>
3. Closing Date. Paragraph 4 of the Agreement is hereby
amended to provide that the "Closing Date", as described therein,
shall be on or before the earlier of (i) thirty (30) days
following satisfaction of all contingencies as set forth in
Section 8 of the Agreement to Purchaser's satisfaction or (ii)
March 31, 1998.
4. Waiver of Conditions. Seller and Purchaser hereby waive the
condition of Section 8(a)(x) of the Agreement and their
respective rights to terminate the Agreement thereunder. The
foregoing waiver shall not, however, modify or affect in any way
the terms of the last paragraph of Section 8(a)(x), which shall
remain in full force and effect. Seller and Purchaser further
acknowledge that Purchaser has waived its right to terminate the
Agreement by sending an "Environmental Notice" under Section
8(a)(vi), and that the "Feasibility Period" described in Section
13(b) has expired.
5. Title Agreement. Simultaneously herewith, the parties have
entered into a certain Agreement as to Title Matters (the "Title
Agreement") concerning certain matters and obligations of the
parties arising from the Agreement. The parties acknowledge and
agree that the Title Agreement shall form part of the Agreement
in all respects and that the covenants and obligations of the
parties thereunder shall be binding upon the parties to the
Agreement as if such covenants and agreements were made therein.
This Amendment shall not modify, amend, supersede or alter in any
way the terms and conditions of the Title Agreement or those
certain letters dated anuary 12, 1998 and January 15, 1998 from
Mark L. Morris, counsel to Purchaser (and RCEK), to Seller, with
respect to the matters described therein, and the terms and
conditions of the Title Agreement and such letters shall remain
in full force and effect.
6. Ratification. Except as amended hereby, the Agreement is
hereby ratified and confirmed and shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date and year first above written.
NEWTOWN VILLAGE PARTNERSHIP
By: GPWM, Inc., its general partner
By: /s/Vivian Meritz, President
--------------------------------
NEWTOWN VILLAGE PLAZA ASSOCIATES, L.P.
By: Newtown Village Plaza, LLC, its general partner
By: Montgomery CV Realty L.P., its sole Member
By: Montgomery CV Realty Trust, its general partner
By: /s/Louis P. Meshon
----------------------------
Its: General Partner
EXHIBIT 2.5
THIRD AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT
This THIRD AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT
("Third Amendment") is made as of the 31 day of March, 1998, by
and between NEWTOWN VILLAGE PARTNERSHIP, a Pennsylvania limited
partnership ("Seller") and NEWTOWN VILLAGE PLAZA ASSOCIATES,
L.P., a Delaware limited partnership ("Purchaser").
BACKGROUND
Seller and RCEK, Inc., a Pennsylvania corporation ("RCEK")
are parties to a certain Real Estate Purchase Agreement dated
September 29, 1997, as amended by a letter amendment dated
December 15, 1997 (collectively, the "Agreement"), pursuant to
which Seller agreed to sell to RCEK, and RCEK agreed to purchase
from Seller, certain real estate, together with the buildings and
improvements erected thereon and personal property, fixtures
and other rights and benefits appurtenant thereto, situate at the
southwest corner of Durham Road and Sycamore Street in Newtown,
Bucks County, Pennsylvania, known as the Newtown Village Shopping
Center, as more particularly described in the Agreement (the
"Property"). By Assignment of Real Estate Purchase Agreement
dated January 26, 1998, RCEK assigned its entire right, title and
interest in and to the Agreement to Purchaser. By that certain
Second Amendment to Real Estate Purchase Agreement dated February
5, 1998 ("Second Amendment") the Agreement was amended. Seller
and Purchaser now desire to further amend the Agreement, as
amended by the Second Amendment, as described below.
Accordingly, intending to be legally bound hereby, and in
consideration of the Agreement, as amended by the Second
Amendment, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree to amend the Agreement as follows:
1. Purchase Price. Paragraph 2 of the Agreement, as amended by
Paragraph 2 of the Second Amendment, is hereby deleted and
the following shall be inserted in lieu thereof:
In consideration of the mutual covenants contained
herein, the parties agree that if the approval of The
Prudential Insurance Company of America ("Prudential")
to purchase the Property under and subject to Prudential's
existing first mortgage on the Property is obtained on
terms satisfactory to Purchaser, the parties hereby agree that
the "Purchase Price" shall be increased by Seven Hundred
Seventy-Five Thousand Dollars ($775,000), to Twenty-Seven
Million Three Hundred Twenty-Five Thousand Dollars ($27,325,000).
The Purchase Price, as adjusted for closing and other adjustments
as provided herein and as provided in the Agreement, as amended
by the Second Amendment, shall be payable by:
a. Purchaser taking title to the Property under and
subject to the loan secured by a first mortgage on the
Property (the "Prudential Loan") held by
Prudential, with an original principal balance of
approximately $21,000,000, an interest rate of
10.35% per annum and a monthly payment of
principal and interest of $206,402.27, with a
current principal balance in the amount of $20,065,537.93;
b. the balance shall be paid by cash or wire transfer of
immediately available funds, as Seller may direct at Closing.
2. Loan Assumption. In the event the Purchase Price is
increased and paid by Purchaser at Closing as provided for in
paragraph 1 herein, Seller shall pay to Prudential at Closing all
sums required by Prudential to approve the sale of the Property
under and subject to Prudential's existing first mortgage on the
Property, not to exceed Seven Hundred Seventy-Five Thousand
Dollars ($775,000).
3. Settlement Charges, Prorations and Adjustments. Paragraph
11 of the Agreement is hereby amended by deleting the third
sentence and inserting the following in lieu thereof:
The real estate transfer taxes in connection with this
transaction shall be paid as follows: (a) payment of
the real estate transfer taxes in connection with the
first Twenty-Six Million Five Hundred Fifty Thousand Dollars
($26,550,000) of the Purchase Price shall be borne equally by
Seller and Purchaser, and (b) payment of the real estate transfer
taxes in connection with that portion of the Purchase Price
in excess ofTwenty-Six Million Five Hundred Fifty Thousand be
borne solely by Purchaser;
The Purchaser shall receive a credit from Seller at Closing in the
amount of Seventy-Five Thousand Dollars ($75,000) representing
Seller's share of the Prudentialfees and costs to secure
Prudential's approval of the sale of the Property under and subject
to Prudential's existing first mortgage on the Property; and
The Seller shall be responsible for the payment of interest accrued
and payable under the Prudential Loan from March 15, 1998 through
the date of Closing.
5. Ratification. Except as amended hereby, the
Agreement, as amended by the Second Amendment, is hereby ratified
and confirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date and year first above written.
NEWTOWN VILLAGE PARTNERSHIP
By: GPWM, Inc., its general partner
By: /s/Vivian Meritz, President
NEWTOWN VILLAGE PLAZA ASSOCIATES, L.P.
By: Newtown Village Plaza, LLC, its general
partner
By: Montgomery CV Realty L.P., its sole member
By: Montgomery CV Realty Trust, its general
partner
By: /s/Jeffrey D. Hipple
----------------------------
Its: Managing Trustee
