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EXHIBIT 1
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") dated as of July 1,
2000, by and between SELBRIDGE CORP. ("Selbridge"), a Delaware corporation,
having an address c/o Brentway Management LLC, 44 South Bayles Avenue, Port
Washington, New York 11050 and LEO S. ULLMAN ("Ullman", and together with
Selbridge, collectively, "Seller"), an individual, having an address c/o
Brentway Management LLC, 44 South Bayles Avenue, Port Washington, New York
11050, and THE POINT SHOPPING CENTER LLC, a Delaware limited liability company,
having an address c/o Uni-Invest (U.S.A.), Ltd., 44 South Bayles Avenue, Port
Washington, New York 11050 ("Buyer").
W I T N E S S E T H:
A. WHEREAS, Seller is the owner of general and limited partnership
interests (the "Partnership Interests") in The Point Associates, L.P., a
Pennsylvania limited partnership (the "Partnership"), as more particularly
described on Schedule A annexed hereto and hereby made a part hereof.
B. WHEREAS, the Partnership owns the real property described on Exhibit
A annexed hereto and hereby made a part hereof.
C. WHEREAS, Seller desires to sell to Buyer and Buyer desires to
purchase from Seller a portion of the Partnership Interests as more particularly
described on Schedule A (such portion, the "Conveyed Interests"), upon the terms
and conditions and for the purchase price hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration set forth herein, the
parties hereto agree as follows:
SECTION 1. Certain Definitions.
"Actions" mean any claims, actions, suits, proceedings or
investigations, whether at law, in equity or in admiralty or before any court,
arbitrator, arbitration panel or Governmental Authority.
"Affiliate" of a party means any Person which, directly or
indirectly, controls, is controlled by or is under common control with, such
party.
"Court Order" means any judgment, decree, injunction, order,
decision, directive, regulation or ruling of any Governmental Authority that is
binding on any Person or its property under Law.
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"Employees" means Gary Decker and Michael Rudy who are both
currently employed by Seller to perform maintenance at the Property.
"Governmental Authority" means any agency, instrumentality,
department, commission, court, tribunal or board of any government, whether
foreign or domestic and whether national, federal, state, municipal or local.
"Hazardous Substances" means, without limitation, (i) all
substances which are designated pursuant to Section 311(b)(2)(A) of the Federal
Water Pollution Control Act ("FWPCA"), 33 U.S.C. ss.1251 et seq.; (ii) any
element, compound, mixture, solution, or substance which is designated pursuant
to Section 102 of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. ss.9601 et seq.; (iii) any hazardous waste
having the characteristics which are identified under or listed pursuant to
Section 3001 of the Resource Conservation and Recovery Act ("RCRA"), ss.6901 et
seq.; (iv) any toxic pollutant listed under Section 307(a) of the FWPCA; (v) any
hazardous air pollutant which is listed under Section 112 of the Clean Air Act,
42 U.S.C. ss.7401 et seq.; (vi) any imminently hazardous chemical substance or
mixture with respect to which action has been taken pursuant to Section 7 of the
Toxic Substance Control Act, 15 U.S.C. ss.2601 et seq.; and (vii) petroleum,
petroleum products, petroleum by-products, petroleum decomposition by-products,
and waste oil; (viii) "hazardous materials" within the meaning of the Hazardous
Materials Transportation Act, 49 U.S.C. ss. 1802 et seq., (ix) any hazardous
substance or material identified or regulated by or under any applicable
provisions of the laws of the State of Pennsylvania; (x) asbestos or any
asbestos containing materials; (xi) any radioactive material or substance; (xii)
all toxic wastes, hazardous wastes and hazardous substances as defined by, used
in, controlled by or subject to all implementing regulations adopted and
publications promulgated pursuant to the foregoing statutes; and (xiii)any other
hazardous or toxic substance or pollutant identified in or regulated under any
other applicable federal, state or local Laws.
"Laws" mean laws, statutes, rules, regulations, codes, orders,
ordinances, judgments, injunctions, decrees and policies.
"Lender" means Salomon Brothers Realty Corp., and its Affiliates,
successors and assigns.
"Liabilities" mean debts, liabilities, obligations,
guarantees, indemnities, duties and responsibilities of any kind and
description, whether absolute or contingent, monetary or non-monetary, direct or
indirect, known or unknown or matured or unmatured, or of any other nature.
"Licenses" means licenses, franchises, permits, certificates,
certificates of occupancy, easements, rights and other authorizations issued by
a Governmental Authority or any other Person.
"Mortgage" means that certain Open-ended Mortgage, Assignment
of Leases and Rents, Security Agreement and Fixture Filing dated as of March,
1999 made by the Partnership to Lender's predecessor-in-interest, Greyfield
Mortgage Corporation (together with the promissory note secured thereby).
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"Operating Agreements" mean any all reciprocal easement
agreements, development agreements, concession agreements, operating agreements,
service agreements, maintenance agreements, supply agreements, and any other
contracts and agreements affecting the Land and the Improvements.
"Person" means any natural person, corporation, business
trust, joint venture, association, company, limited liability entity, firm,
partnership, or other entity or government or Governmental Authority.
"Property" means: (a) that certain parcel of real property
commonly known as The Point Shopping Center, Harrisburg, Pennsylvania, as more
particularly described on Exhibit A annexed hereto and hereby made a part hereof
(the "Land"), (b) the buildings, improvements, structures and fixtures located
upon the Land (collectively, the "Improvements"), (c) all easements, rights of
way, privileges, appurtenances, strips, gores and other rights pertaining to the
Land and the Improvements, if any, including, without limitation, development
rights, and all income therefrom, (d) any land in the bed of any street, road,
avenue, open or proposed, public or private, in front of or adjoining the Land
or any portion thereof, to the center line thereof, and any award to be made in
lieu thereof and in and to any unpaid award for damage to the Land and the
Building by reasons of change of grade of any street occurring after the date of
execution and delivery of this Agreement, (e) all Tenant Leases, (f) all
Operating Agreements, (g) any Licenses (as that term is hereinafter defined)
required or used in or relating to the ownership, use, maintenance, occupancy or
operation of any part of the Premises.
"Tenant Leases" mean all leases, subleases, lettings, and
licenses affecting the Property.
"Tenants" mean the tenants, subtenants, licensees, and other
parties under Tenant Leases.
SECTION 2. Purchase and Sale. Based upon and subject to the terms,
agreements, warranties, representations and conditions of this Agreement, Seller
hereby agrees to sell, convey, transfer, assign and deliver to Buyer on the
Closing Date (as that term is hereinafter defined), and Buyer hereby agrees to
buy and accept on the Closing Date, the Conveyed Interests.
SECTION 3. Purchase Price. The total consideration (the "Purchase
Price") to be paid by Buyer for the Conveyed Interests shall be the sum of Two
Million One Hundred Thousand Dollars ($2,100,000.00), payable by Buyer at the
Closing (as that term is hereinafter defined), as adjusted by the prorations and
credits specified in Section 7 of this Agreement, by wire transfer of
immediately available federal funds to an account or accounts designated in
writing by Seller. The Purchase Price shall be allocated among Selbridge and
Ullman as set forth on Schedule A.
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SECTION 4. Title Matters.
(a) As a condition to Buyer's obligation to close hereunder,
(i) the Partnership shall have good, marketable, insurable title to the
Property, subject only to the Permitted Encumbrances (as hereinafter defined),
and (ii) in the event Buyer, in its sole discretion, elects to cause the
Partnership (at the Closing) to purchase title insurance covering its fee
interest in the Property, such title shall be insured by a reputable title
insurance company, selected by Buyer, licensed in the State of Pennsylvania (the
"Title Company"), by issuance of an ALTA owner's title insurance policy (the
"Owner's Policy"), insuring the title of the Partnership in the Property, at its
ordinary rates and without special premiums, and in the standard form issued by
the Title Company in the State of Pennsylvania, without exception or
reservations of any kind, including, without limitation, the standard
pre-printed exceptions to the title policy, other than the Permitted
Encumbrances (any such other exceptions or reservations, the "Non-Permitted
Encumbrances").
(b) The term "Permitted Encumbrances" as used in this
Agreement shall mean:
1. any state of facts shown on that certain survey of
the Property prepared by Robert L. Reed and dated November 4, 1998;
2. those matters specifically set forth on Exhibit B
annexed hereto and hereby made a part hereof;
3. all laws, ordinances, rules and regulations of the
United States, the State of Pennsylvania or any agency, department, commission,
bureau or instrumentality of any of the foregoing having jurisdiction over the
Property (each, a "Governmental Authority"), as the same may now exist or may be
hereafter modified, supplemented or promulgated, provided same to not prohibit
the use of the Property as a shopping-center;
4. all presently existing and future liens of real
estate taxes or assessments and water rates, water meter charges, water frontage
charges and sewer taxes, rents and charges, if any, provided that such items are
not yet due and payable and are apportioned as provided in this Agreement;
5. all violations of laws, ordinances, orders,
requirements or regulations of any Governmental Authority, applicable to the
Property whether or not noted in the records of or issued by, any Governmental
Authority, existing on the Closing Date;
6. such matters as the Title Company shall be willing
to omit as exceptions to coverage with respect to the Owner's Policy issued by
the Title Company on the Closing Date;
7. the Tenant Leases; and
8. the Operating Agreements.
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(c) If Buyer's commitment for a fee title policy (the "Title
Commitment") discloses judgments, bankruptcies or other returns against other
Persons having names the same as or similar to that of the Partnership, Seller
shall cause the Partnership, on the request of Buyer, to deliver to Buyer and
the Title Company affidavits showing that such judgments, bankruptcies or other
returns are not against the Partnership. Seller shall cause the Partnership to
deliver any customary affidavits required by the Title Company to eliminate
exceptions other than the Permitted Encumbrances appearing in the Title
Commitment.
(d) At the Closing, Seller shall cause to Partnership to
deliver to each of Buyer and the Title Company an affidavit and/or indemnity (i)
with respect to mechanic's liens certifying that there are no unpaid bills for
services rendered or materials furnished to the Property, and (ii) sufficient to
allow the Title Company to issue to Buyer, a "Fairway Endorsement" and a
"Non-Imputation Endorsement", as applicable, in connection with the existing
policy insuring the title of the Partnership in the Property, or a new Title
Policy (in the event Buyer elects to purchase same).
SECTION 5. Closing. The closing (the "Closing") of the sale and
purchase contemplated herein shall occur at 5:00 p.m. on July 1, 2000 (the
"Closing Date"), at the offices of Stroock & Stroock & Lavan LLP, 180 Maiden
Lane, New York, New York 10038.
SECTION 6. Closing Deliveries and Closing Costs.
6.1 Seller Deliveries. At the Closing, Seller shall deliver or cause to
be delivered to Buyer the following items executed and acknowledged by Seller,
as appropriate:
(a) duly executed counterparts of the Assignment and
Assumption of Partnership Interests (the "Assignment and Assumption"), from both
Selbridge and Ullman, in the forms of Exhibit C annexed hereto and hereby made a
part hereof.
(b) all Consents and Licenses required in connection with the
execution and delivery of this Agreement.
(c) Good and marketable title to the Conveyed Interests, free
and clear of all liens and an affidavit and/or indemnity sufficient to allow the
Title Company to issue to Buyer, a "Fairway Endorsement" and a "Non-Imputation
Endorsement", as applicable, in connection with the existing policy insuring the
title of the partnership in the Property, or a new Title Policy (in the event
Buyer elects to purchase same).
(d) Evidence reasonably satisfactory to Buyer and the Title
Company respecting the due organization of Seller and the due authorization and
execution by Seller of this Agreement and the documents required to be delivered
hereunder.
(e) a statement or agreement signed by a duly authorized
officer, employee or agent of Lender, dated no more than thirty (30) days before
the Closing: (i) stating the amount of the unpaid principal of the Mortgage, the
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date to which interest has been paid and the amounts, if any claimed to be
unpaid for principal and interest, and itemizing the same, (ii) stating the
nature and itemized balances (as of the Closing Date) of all escrows and
reserves held by Lender in connection with the Mortgage, (iii) certifying that
no defaults exist under the Mortgage, and (iv) consenting to the transactions
contemplated by this Agreement.
(f) such other documents required by the terms of this
Agreement or as may otherwise be reasonably necessary to consummate the
transactions contemplated under this Agreement, taking into account the terms
and conditions of this Agreement.
6.2 Buyer Deliveries. At the Closing, Buyer shall deliver or cause to
be delivered to Seller the following items executed and acknowledged by Buyer,
as appropriate:
(a) payment of the Purchase Price, as adjusted, to be made in
accordance with Section 3 above.
(b) the Assignment and Assumptions.
(c) such other documents as may be required under the terms of
this Agreement or as may otherwise be reasonably necessary to consummate the
transactions contemplated under this Agreement, taking into account the terms
and conditions of this Agreement.
6.3 Closing Costs. At the Closing, Seller and Buyer shall split the
cost of all transfer taxes, if any, including transfer taxes of the Commonwealth
of Pennsylvania and of the county in which the Property is located, payable in
connection with the transaction contemplated hereby. Buyer shall pay (a) the
title insurance premium for the Owner's Policy (to the extent it elects to
purchase same), (b) the costs of any survey (or an update thereto), and (c) all
fees, costs or expenses in connection with Buyer's due diligence reviews
hereunder. Except as expressly provided in the indemnities set forth in this
Agreement, Seller and Buyer shall pay their respective legal, consulting, and
other professional fees and expenses incurred in connection with this Agreement
and the transaction contemplated hereby and their respective shares of
prorations as hereinafter provided.
SECTION 7. Closing Adjustments. (a) The following shall be prorated,
between Seller and Buyer as of 11:59 p.m. on the day preceding the Closing Date
(on the basis of the actual number of days elapsed over the applicable period)
and shall take into account the percentage of such revenues or expenses
attributable to the Conveyed Interests:
(i) All real estate taxes, water charges, sewer rents,
vault charges and assessments on the Property on the basis of the fiscal year
for which assessed. In no event shall Seller be charged with or be responsible
for any increase in the taxes on the Property resulting from any improvements
made or leases entered into on or after the Closing Date. If any assessments on
the Property are payable in installments, then the installment for the current
period shall be prorated, with Seller paying its share of any installments due
before the Closing Date and Buyer assuming the obligation to pay its share of
any installments due after the Closing Date.
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(ii) Subject to Section 7(b) of this Agreement, all
fixed rent and regularly scheduled items of additional rent under the Tenant
Leases, security deposits (except as hereinafter provided), and other tenant
charges if, as and when received.
(iii) Expenses under the Operating Agreements.
(iv) Interest on the Mortgage.
(v) Charges and payments under Operating Agreements.
(vi) Fuel, if any, at Seller's cost therefor.
(vii) Any prepaid items, including, without limitation,
license fees and annual permit and inspection fees.
(viii) Utilities, including, without limitation,
telephone, steam, electricity and gas, on the basis of the most recently issued
bills therefor, subject to adjustment after the Closing when the next bills are
available, or if current meter readings are available, on the basis of such
readings.
(ix) Permitted administrative charges, if any, on
Tenants' security deposits.
(x) Payroll, F.I.C.A., any accrued vacation and sick
pay, any contributions to employee-medical or pension funds, any employee
benefits, any employee-related taxes and any amounts payable to the Employees
shall be prorated on an accrual basis. With respect to such Employee Costs,
Seller shall be responsible for its share of all amounts due which accrue prior
to the Closing Date and Buyer shall be responsible for its share of all amounts
which accrue after the Closing Date.
(b) Rents under Tenant Leases which are delinquent as of the
Closing Date shall not be prorated on the Closing Date. Buyer shall cause the
Partnership to include such delinquencies in its normal billing and shall
diligently pursue the collection thereof in good faith after the Closing Date
(but Buyer shall not be required to cause the Partnership to litigate or declare
a default in any Tenant Lease). Subject to the terms of the immediately
succeeding sentence, to the extent rents are collected by or on behalf of Buyer
(in its capacity as general partner of the Partnership) on or after the Closing
Date, such payments shall be applied first toward to the rents that shall then
be due and payable with respect to rents for months after the Closing, second to
the rents for the month in which the Closing occurs, and third to any delinquent
rents owed with respect to months prior to the Closing, with Seller's share
thereof being promptly delivered to Seller by Buyer. If percentage rents are
collected by or on behalf of Buyer (in its capacity as general partner of the
Partnership) on or after the Closing Date, such percentage rents shall be
allocated to the period to which they relate irrespective of the provisions of
the immediately preceding sentence and appropriate portions thereof shall be
applied to Buyer and Seller in proportion to the duration of such party's
ownership of the Conveyed Interests during such period, with Seller's share
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thereof being promptly delivered to Seller by Buyer. Buyer may not allow the
Partnership to waive any delinquent rents nor modify a Tenant Lease so as to
reduce or otherwise affect amounts owed thereunder for any period in which
Seller is entitled to receive a share of charges or amounts without first
obtaining Seller's written consent. Seller hereby reserves the right to pursue
any remedy against any tenant owing delinquent rents and any other amounts to
Seller, which right shall include the right to continue or commence legal
actions or proceedings against any tenant; provided, however, that Seller shall
not, following the Closing, commence legal actions or proceedings for collection
of rents against any tenant while such tenant remains a tenant at the Property.
Buyer shall reasonably cooperate with Seller in any collection efforts hereunder
(but shall not be required to litigate or declare a default under any Tenant
Lease). With respect to delinquent rents and any other amounts or other rights
of any kind respecting tenants who are no longer tenants of the Property at any
time following the Closing Date, Seller shall retain all rights relating to its
share thereof.
(c) At the Closing, Buyer shall reimburse Seller for its share
of the amount of the aggregate balance, as of the Closing Date, of the escrows
and reserves (established by Lender in connection with the Mortgage) described
on Exhibit D annexed hereto and made a part hereof.
(d) At the Closing, Buyer shall reimburse Seller for its share
of the amount of deposits with telephone and other utility companies, and any
other persons or entities who supply goods or services in connection with the
Property, if any.
(e) At the Closing, Buyer shall reimburse Seller, or Seller
shall deliver or allow Buyer a credit against the Purchase Price, as
appropriate, in accordance with the various adjustments described on Exhibit E
annexed hereto and hereby made a part hereof. In the event an adjustment set
forth on Exhibit E is contemplated by another provision of this Section 7, the
parties acknowledge that it is not their intent to require a duplication of any
such adjustment. The purpose of Exhibit E is to clarify the manner in which the
adjustments between the parties shall be accomplished and to set forth various
additional adjustments not contemplated elsewhere in this Agreement.
(f) If any of the items described in this Section 7 hereof
cannot be apportioned at the Closing because of the unavailability of
information as to the amounts which are to be apportioned or otherwise, or are
incorrectly apportioned at Closing or subsequent thereto, such items shall be
apportioned or reapportioned, as the case may be, as soon as practicable after
the Closing Date or the date such error is discovered, as applicable.
(g) If the terms of the Partnership Agreement (as that term is
hereinafter defined) provide for a method of distributions of income or an
allocation of expenses to its partners in a manner other than a direct
allocation accordingly to such partners' percentage interest in the Partnership,
the foregoing apportionments shall be readjusted accordingly.
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(h) If the Closing shall occur before a real estate or
personal property tax rate or assessment is fixed for the tax year in which the
Closing occurs, the apportionment of taxes at the Closing shall be upon the
basis of the tax rate or assessment for the preceding fiscal year applied to the
latest assessed valuation. Promptly after the new tax rate or assessment is
fixed, the apportionment of taxes or assessments shall be recomputed and any
discrepancy resulting from such recomputation and any errors or omissions in
computing apportionments at Closing shall be promptly corrected and the proper
party reimbursed.
SECTION 8. [Intentionally Omitted].
SECTION 9. Representations, Warranties and Covenants.
9.1 Representations, Warranties and Covenants of Seller. Seller hereby
represents and warrants to Buyer that, as of the date hereof:
(a) The Partnership is a limited partnership, duly organized,
validly existing and in good-standing under the laws of the Commonwealth of
Pennsylvania. The Partnership has all requisite power and authority to own,
lease, and operate its assets and property and to conduct its business as now
being conducted.
(b) Selbridge is a corporation, duly organized, validly
existing and in good-standing under the laws of the State of Delaware, and has
full power and authority to own and operate its properties and assets and to
conduct its business as now being conducted.
(c) The Partnership engages in no business other than the
ownership, maintenance and operation of the Property and has no direct or
indirect ownership interests in any other Person and neither owns, leases nor
has any tangible property other than the Property. The Partnership has not
qualified to do business in any jurisdiction other than Pennsylvania and the
character of the properties and assets owned by or leased to the Partnership and
the nature of the business transacted by the Partnership does not require that
the Partnership qualifies to do business in any jurisdiction other than
Pennsylvania.
(d) Seller owns the Partnership Interests (including
subscriptions and other rights to purchase or acquire any partnership interest
of the Partnership). Seller has not sold, conveyed, transferred, given, pledged,
mortgaged or otherwise disposed of, encumbered or granted in any manner all or
any portion of the Conveyed Interests other than in connection with the
Mortgage; there are no outstanding warrants, options, rights, agreements, calls
or other commitments to which Seller is a party relating to or providing for the
sale, conveyance, transfer, gift, pledge, mortgage or other disposition,
encumbrance or granting of, or permitting any Person to acquire all or any
portion of the Conveyed Interests; Seller owns the Conveyed Interests free and
clear of any Liens, and, subject to the receipt of the Lender's consent, has the
absolute right, power and capacity to sell, assign, convey, transfer and deliver
the Conveyed Interests as contemplated by this Agreement, free and clear of any
Liens; Seller has the full and unrestricted right, power and authority to admit
(or to cause the Partnership to admit) Buyer as a partner of the Partnership
pursuant to all the terms and conditions of the Partnership Agreement (as that
term is hereinafter defined).
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(e) Annexed hereto as Exhibit F are true and complete copies
of (a) the Limited Partnership Agreement of the Partnership and all amendments
thereto (the "Partnership Agreement") and (b) the Certificate of Limited
Partnership. To the best Actual Knowledge of Seller, the same are in full force
and effect and have not been modified, supplemented or amended, and there will
be no amendments thereto prior to the Closing Date. Seller has the full power
and authority to enter into this Agreement and to carry out the transactions
contemplated hereby and the execution, delivery and performance of this
Agreement by Seller has been duly authorized by all necessary action. The sale
of the Conveyed Interests by Seller to Buyer, the execution and delivery of this
Agreement, the fulfillment of the terms set forth in this Agreement and the
consummation of the transactions contemplated by this Agreement will not (i)
conflict with or constitute a default under the Partnership Agreement, or a
default under any Operating Agreement by which Seller or the Partnership is
bound or to which the Property is subject, or would be a violation of any Laws
or Court Orders applicable to Seller, the Partnership or the Property or (ii)
require the consent of any other Person under any Operating Agreement by which
the Partnership or any partner is bound or to which the Property is subject.
This Agreement has been duly executed and delivered and constitutes the legal,
valid and binding obligation of Seller, enforceable against Seller in accordance
with its terms, except as enforceability may be limited by applicable law
affecting creditors' rights generally and principles of equity, whether
considered in a proceeding at law or in equity. Neither Seller nor the
Partnership, require any consent, approval, authorization or order of, or
declaration, filing or registration with, any Governmental Authority or Person
in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby other than the consent of
the Lender.
(f) To the best Actual Knowledge of Seller, the Partnership
has paid all Taxes due or assessed against it or the Property and has duly filed
all Federal, State and local franchise, income and other tax returns required to
be filed by it prior to the date hereof, has filed all franchise, income and
other tax returns required (or which will be required) to be filed by it in
respect of the fiscal year ending December 31, 1998, has obtained an extension
(in accordance with the requirements of all applicable Governmental Authorities)
with respect to all franchise, income and other tax returns required (or which
will be required) to be filed by it in respect of the fiscal year ending
December 31, 1999, and all Taxes due (whether or not reflected on such returns)
with respect to the periods covered thereby have been paid. To the best Actual
Knowledge of Seller, (i) neither Seller nor the Partnership has received from
any authority any written notice of underpayment of any Taxes by the
Partnership, (ii) no Actions relating to the tax liability of the Partnership,
or Seller, is pending, (iii) the institution of any such Action is not
contemplated by any authority, and (iv) neither Seller nor the Partnership has
waived restrictions on assessment or collection of taxes or consented to the
extension of any statute of limitations with respect to taxation of the
Partnership.
(g) To the best Actual Knowledge of Seller, except for the
Mortgage: (i) there are no deeds of trust and/or mortgages on the Property, and
(ii) the Partnership has not consented to the placement of any mortgages or
deeds of trust on the Property. To the best Actual Knowledge of Seller, neither
Seller nor the Partnership has received any written notice or other
communication claiming that a default exists under any Mortgages presently
affecting the Property, or any part thereof.
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(h) To the best Actual Knowledge of Seller, neither Seller nor
the Partnership has received written notice of any Actions (whether or not
purportedly on behalf of the Partnership) pending or threatened against or
affecting the Partnership which are not otherwise covered by insurance.
(i) Seller is not a party to, and to the best Actual Knowledge
of Seller, is not subject to or bound by, any Court Order or Operating Agreement
that could prevent the performance of all or any of the terms of this Agreement.
(j) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
Seller has taken all necessary actions to authorize and approve the execution
and delivery of this Agreement and the consummation of the transaction
contemplated hereby. Provided Seller shall have received the consent of Lender
to the transactions contemplated by this Agreement, the fulfillment of the terms
set forth in this Agreement and the consummation of the transactions
contemplated by this Agreement will not (i) conflict with or constitute a
default under any agreement by which Seller is bound or to which the Property is
subject, including, without limitation, the Mortgage, or a violation of any Laws
or Court Orders applicable to Seller, the Partnership, or the Property.
(k) The Partnership is the owner of the Property. The Land and
Improvements are free of any liens and encumbrances other than the Permitted
Encumbrances.
(l) All of the Tenant Leases to which either the Partnership
is a party (by assignment or otherwise) or is bound in existence on the date
hereof have been delivered or made available to Buyer. The copies of the Tenant
Leases that have been delivered or made available by Seller to Buyer are true,
correct and complete. Exhibit G annexed hereto and hereby made a part hereof
sets forth a list of all Tenant Leases to which either the Partnership is a
party or is bound, and is true, complete and correct in all material respects.
Except as set forth on Exhibit G, the Tenant Leases are in full force and
effect. To the best actual knowledge of Seller, there are no parties in
possession of the Property, except the Tenants and any subtenants disclosed in
Exhibit G. Except as set forth in Exhibit G, all tenant improvements required
under the Tenant Leases to be completed by the date hereof by the landlord
thereunder have been completed and all tenant allowances required under the
Tenant Leases to be paid in full as of the date hereof have been paid in full.
Except as set forth on Exhibit G, to the best actual knowledge of Seller, there
is no material uncured default under any Tenant Leases and the Partnership has
not received from any Tenant any written notice claiming any default by the
landlord under its Tenant Lease which default remains uncured. Neither the
Partnership nor Seller has received written notice of any defense to, offsets,
claims or disputes against rental payable or obligations under any Tenant Lease.
To the best actual knowledge of Seller, no guarantor of any Tenant Lease has
been released or discharged, voluntarily (involuntarily, or by operation of law)
from any obligation related to such Tenant Lease except in accordance with the
terms of such Tenant Lease.
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(m) Annexed hereto as Exhibit H is a rent roll and security
deposit schedule (the "Rent Roll") for all Tenant Leases in effect as of the
date hereof. The Rent Roll is true, complete and correct in all material
respects.
(n) All of the Operating Agreements to which either the
Partnership is a party (by assignment or otherwise) or is bound in existence on
the date hereof have been delivered or made available to Buyer. The copies of
the Operating Agreements that have been delivered or made available by the
Partnership to Buyer are true, correct and complete. Exhibit I annexed hereto
and hereby made a part hereof sets forth a list of all Operating Agreements to
which either the Partnership is a party or is bound, and is true, complete and
correct in all material respects. Except as set forth on Exhibit I, the
Operating Agreements are in full force and effect. Except as set forth on
Exhibit I, to the best actual knowledge of Seller, no material uncured default
exists under any Operating Agreement.
(o) Except as set forth on Exhibit J annexed hereto and made a
part hereof, there are no unpaid brokerage commissions due or, with the passage
of time or the occurrence of an event, to be due, in connection with the current
term of any Tenant Lease entered into by the Partnership.
(p) The Employees are the only employees of the Partnership,
at the Property or otherwise. There are no union or employment contracts or
agreements (written or oral) affecting the Property (including, without
limitation, any such agreement relating to the Employees' employment at the
Property).
(q) To the best Actual Knowledge of Seller, except for the
Mortgage: (i) there are no deeds of trust and/or mortgages on the Property, and
(ii) Seller has not consented to the placement of any mortgages or deeds of
trust on the Property. The copies of the Mortgage that have been delivered or
made available by Seller to Buyer are true, correct and complete, and have not
been modified or amended. Seller has not received any written notice or other
communication claiming that a default exists under the Mortgage and, to the best
Actual Knowledge of Seller, no default exists under the Mortgage.
(r) To the best Actual Knowledge of Seller, the only consent
needed by Seller in connection with the consummation of the transactions
contemplated by this Agreement, is the consent of the Lender.
"Actual Knowledge" of Seller shall mean only the actual
knowledge of Ullman and/or Brenda Walker (the "Designated Employees"), and shall
not be construed to impose upon the Designated Employees any duty to investigate
the matter to which such Actual Knowledge, or the absence thereof, pertains.
Seller represents that the Designated Employees are those individuals who are
most knowledgeable about the Property.
9.2 GENERAL DISCLAIMER. THE SALE OF THE CONVEYED INTERESTS HEREUNDER IS
AND WILL BE MADE ON AN "AS IS" ,"WHERE IS," AND "WITH ALL FAULTS" BASIS, AND
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, WITHOUT REPRESENTATIONS AND
WARRANTIES OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY
REPRESENTATION OR WARRANTY CONCERNING TITLE TO THE CONVEYED INTERESTS OR THE
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PROPERTY, THE PHYSICAL CONDITION OF THE PROPERTY, THE ENVIRONMENTAL CONDITION OF
THE PROPERTY (INCLUDING THE PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES ON OR
AFFECTING THE PROPERTY), THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE LAWS AND
REGULATIONS (INCLUDING ZONING AND BUILDING CODES OR THE STATUS OF DEVELOPMENT OR
USE RIGHTS RESPECTING THE PROPERTY), THE FINANCIAL CONDITION OF THE PARTNERSHIP
OR THE PROPERTY, OR ANY OTHER REPRESENTATION OR WARRANTY RESPECTING ANY INCOME,
EXPENSES, CHARGES, LIENS OR ENCUMBRANCES, RIGHTS OR CLAIMS ON, AFFECTING OR
PERTAINING TO THE CONVEYED INTERESTS, THE PARTNERSHIP, OR THE PROPERTY OR ANY
PART THEREOF. EXCEPT AS TO MATTERS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
BUYER WILL ACQUIRE THE CONVEYED INTERESTS SOLELY ON THE BASIS OF ITS OWN
PHYSICAL AND FINANCIAL EXAMINATIONS, REVIEWS AND INSPECTIONS AND THE TITLE
INSURANCE PROTECTION AFFORDED BY THE OWNER'S POLICY (IN THE EVENT BUYER ELECTS
TO PURCHASE SAME).
9.3 Representations, Warranties and Covenants of Buyer.
(a) Buyer is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
and has full power and authority to own, lease and operate its properties and
assets and to conduct its business as now being conducted.
(b) Buyer has the full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby, and the
execution, delivery and performance of this Agreement by Buyer has been duly
authorized by all necessary action. The purchase of the Conveyed Interests by
Buyer from Seller, the execution and delivery of this Agreement, the fulfillment
of the terms set forth in this Agreement and the consummation of the
transactions contemplated by this Agreement will not conflict with or constitute
a default under the organizational documents of Buyer, or a default under any
contract by which Buyer is bound, or would be a violation of any Laws or Court
Orders applicable to Buyer. This Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms. Buyer does not require any consent,
approval, authorization or order of, or declaration, filing or registration
with, any Governmental Authority or Person in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
SECTION 10. [Intentionally Omitted].
SECTION 11. Conditions To Closing and Post-Closing Matters.
11.1 Conditions of Buyer's Obligation to Close. (a) The obligations of
Buyer to consummate the transactions contemplated by this Agreement are, at the
option of Buyer, subject to the condition set forth below, which condition may
be waived by Buyer without releasing or waiving of its rights hereunder:
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(i) Buyer shall, at its sole cost and expense, have
obtained a "fairness opinion", issued by Houlihan, Lokey, Howard & Zukin, in
form and substance satisfactory to Buyer, in the exercise of its sole
discretion, indicating that the transaction contemplated by this Agreement is
fair, from a financial point of view.
(ii) Buyer shall, at its sole cost and expense, have
obtained an appraisal of the Property prepared by St. Johns Realty Associates
evidencing that the fair market value of the Conveyed Interests is at least
equal to the Purchase Price.
(b) In the event that the condition contained in this Section
11.1 is not satisfied, Buyer shall have as its sole remedy hereunder the right
to (i) waive such unsatisfied condition whereupon the transactions contemplated
by this Agreement shall be consummated as provided in this Agreement, or (ii)
terminate this Agreement, by notice to Seller. Upon the giving of such
termination notice, this Agreement shall terminate and, except as otherwise set
forth herein, neither party to this Agreement shall have any further rights or
obligations hereunder.
11.2 Buyer's Assumed Responsibilities. (a) Without limiting the
generality of any other provision of this Agreement, from and after the Closing
Date, Buyer specifically assumes the obligation to cause the Partnership to pay
when due those brokerage commissions referenced on Exhibit J.
(b) Buyer agrees that, from and after the Closing, for such
time as Buyer, in its sole discretion, elects, it shall cause the Partnership to
retain the Employee to act in the capacity in which it currently serves.
(c) The provisions of this Section 11.2 shall survive the
Closing.
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<PAGE>
11.3 Seller's Post-Closing Obligation. (a) Seller shall use its
commercially reasonable efforts to cause the Partnership to deliver to Buyer,
within thirty (30) days after the Closing Date, a duly executed and delivered
Estoppel Certificate, substantially in the form of Exhibit K annexed hereto and
hereby made a part hereof, from Tenants under those Tenant Leases demising more
than Five Thousand (5,000) net rentable square feet of space in the Improvements
(the "Major Leases"). To the extent the Major Leases do not, in the aggregate,
demise at least eighty-five (85%) of the total net, rentable square footage in
the Improvements, Seller shall use its commercially reasonable efforts to cause
the Partnership to deliver Estoppel Certificates from a sufficient number of
additional Tenants so that Estoppel Certificates shall have been received with
respect to at least eighty-five (85%) of the total net, rentable square footage
in the Improvements.
(b) The parties acknowledge that the Partnership has recently entered
into a Tenant Lease (the "Giant Lease") with Giant Food Stores, Inc. ("Giant").
Pursuant to the terms of the Giant Lease, the commencement date thereunder shall
not occur (and the premises leased to Giant thereunder (the "Giant Premises")
shall not be delivered by the Partnership to Giant) until such time as the
Partnership has completed certain construction and alterations to the Giant
Premises (the "Landlord's Work"). Selbridge hereby absolutely, unconditionally
and irrevocably guarantees to Purchaser that, during the period commencing on
the date hereof and continuing until the earlier of (i) the date (the "Giant
Commencement Date") the Partnership has completed the Landlord's Work, delivered
to Giant (in accordance with the terms of the Giant Lease) the Giant Premises,
and Giant has commenced paying rent (in accordance with the terms of the Giant
Lease), and (ii) December 31, 2001, Purchaser shall receive, as its share of the
Partnership's profits, a return (on an annualized basis) equal to ten percent
(10%) of the Purchase Price (without taking into account any adjustments or
prorations contemplated by this Agreement). In order to defray the costs
relating to such guaranty, until the earlier of (i) the Giant Commencement Date,
and (ii) December 31, 2001, Selbridge shall be entitled to receive one hundred
(100%) percent of the cash flow received by the Partnership from the Property.
(c) The provisions of this Section 11.3 shall survive the Closing.
SECTION 12. [Intentionally Omitted].
SECTION 13. [Intentionally Omitted].
SECTION 14. NOTICES. All notices, requests or other communications
which may be or are required to be given, served or sent by either party hereto
to the other shall be deemed to have been properly given, if in writing and,
unless otherwise specified herein, and (a) upon delivery, if delivered in person
or by facsimile transmission with receipt thereof confirmed by printed facsimile
acknowledgment, (b) one (1) Business Day after having been deposited for
overnight delivery with any reputable overnight courier service, or (c) three
(3) Business Days after having been deposited in any post office or mail
depository regularly maintained by the United States Postal Office and sent by
registered or certified mail, postage paid, return receipt requested, and in
each case, addressed as follows:
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<PAGE>
To Seller:
---------
c/o Brentway Management LLC
44 South Bayles Avenue
Port Washington, New York 11050
Facsimile: 516/767-6497
Telephone: 516/883-5577
With a Copy To:
--------------
Nikolaus & Hohenadel, LLP
212 North Queen Street
Lancaster, Pennsylavnia 17603
Attention: Richard Greiner, Esq.
Facsimile: 717/299-1811
Telephone: 717/299-3726
To Buyer:
--------
c/o Uni-Invest (U.S.A.), Ltd.
44 South Bayles Avenue
Port Washington, New York 11050
Attention: Ms. Brenda Walker
Facsimile: 516/767-6497
Telephone: 516/883-5577
With a Copy To:
--------------
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
Attention: Peter A. Miller
Facsimile: 212/806-6006
Telephone: 212/806-5466
SECTION 15. OPTION. (a) The parties acknowledge that following the sale
by Selbridge to Buyer of Selbridge's portion of the Conveyed Interests,
Selbridge shall remain the owner of Partnership Interests constituting fifty
(50%) percent of the Partnership. Selbridge does hereby irrevocably grant and
convey to Buyer the exclusive right and option (the "Option") to purchase from
Selbridge, in a single or successive transactions, a portion of such retained
Partnership Interests in an amount equal to up to thirty-nine (39%) percent of
the Partnership (the "Option Interests"), in the manner hereinafter set forth.
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<PAGE>
(b) For such time as the Partnership remains in existence and
continues to operate its business, Buyer shall have the right to exercise the
Option. If Buyer elects to exercise the Option, written notice of such election,
shall be given by Buyer to Selbridge (the date of such notice, hereinafter
referred to as an "Exercise Date"). Such written notice shall specify the amount
(the "Exercised Portion") of the Option Interests which Buyer elects, at such
time, to acquire. The closing of the purchase and sale of Option Interests in
connection with the exercise of the Option (the "Option Closing Date") shall be
on a Business Day reasonably acceptable to Purchaser and Seller not less than
fifteen (15) and more than thirty (30) days after the applicable Exercise Date.
(c) If the Option shall be exercised in accordance with the
terms of this Agreement, Buyer and Selbridge shall, at or prior to the Option
Closing Date, enter into an Option Interest Contract (as that term is
hereinafter defined). On the Option Closing Date (or, if applicable, on each
Option Closing Date), Selbridge shall sell and transfer to Buyer and Buyer shall
acquire from Selbridge, the Exercised Portion, in accordance with the terms of
the Option Interest Contract. The cash purchase price for the Exercised Portion
shall be a dollar amount equal to (i) ten (10) times the net operating income of
the Partnership for the fiscal year of the Partnership immediately preceding the
year in which the Exercise Date occurs, minus (ii) the then outstanding
principal amount of the Mortgage or other mortgage debt encumbering the
Property, multiplied by (iii) the percentage of the entire Partnership Interests
comprised by the Exercised Portion.
(d) The term "Option Interest Contract" shall mean a purchase
and sale agreement, between Selbridge, as seller, and Buyer, as purchaser, in
materially the same form as this Agreement, except to the extent (i) any other
provisions of this Agreement are in conflict with this Section 15, or (ii) are
inapplicable to the conveyance of the Exercised Portion.
(e) Selbridge shall, within ten (10) days of a written request
made by Buyer, provide to Buyer, in form suitable for recordation in Dauphin
County Pennsylvania (and satisfying all applicable statutory requirements), a
memorandum of the Option, which may be recorded by Buyer at its sole cost and
expense.
(f) The provisions of this Section 15 shall survive the
Closing.
SECTION 16. MISCELLANEOUS (a) Buyer and Seller each warrant and
represent to the other that SKR Management Corp.(the "Broker") is the sole
broker involved in the negotiation and consummation of this transaction. Buyer
and Seller each agree to indemnify and hold the other harmless, and defend the
other from and against any claim, loss, damage, liability, cost and expense
(including, without limitation, reasonable attorneys' fees) resulting from the
claims of any other broker that shall involve a breach of the foregoing warranty
and representation. Seller agrees to pay the commission of the Broker pursuant
to a separate agreement. The provisions of this Section shall survive the
Closing or earlier termination of this Agreement.
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(b) This Agreement shall be construed and enforced in
accordance with the laws of the State of Pennsylvania, without giving effect to
principles of conflicts of law.
(c) The parties hereto agree that all representations,
warranties, covenants, indemnifications, conditions and agreements contained
herein or in any instrument or other document delivered pursuant to this
Agreement or in connection with the transactions contemplated hereby shall
survive the Closing for a period of six (6) months from the Closing or earlier
termination of this Agreement, provided, however Sections 11.2, 11.3, 15 and
16(a) hereof shall survive the Closing without regard to such six (6) month
limitation. [In the event that either party commences an action against the
other, the damages payable shall not exceed Five Hundred Thousand Dollars
($500,000.00)].
(d) Neither this Agreement nor any memorandum thereof shall be
recorded and any attempted recordation hereof shall be void and shall constitute
a default hereunder.
(e) This Agreement, including the Exhibits and Schedules
hereto, sets forth the entire agreement and understanding between the parties
and merges and supersedes all prior discussions, agreements and understandings
of every kind and nature among them as to the subject matter hereof, and no
party shall be bound by any condition, definition, warranty or representation
other than as expressly provided for in this Agreement or as may be on the date
hereof or subsequent hereto, duly set forth in writing signed by each party
which is to be bound thereby. Unless otherwise expressly defined, terms defined
in the Agreement shall have the same meanings when used in any Exhibit or
Schedule and terms defined in any Exhibit or Schedule shall have the same
meanings when used in this Agreement or in any other Exhibit or Schedule. This
Agreement (including the Exhibits and Schedules hereto) shall not be changed,
modified or amended except by a writing signed by each party to be charged and
this Agreement may not be discharged except by performance in accordance with
its terms or by a writing signed by each party to be charged.
(f) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and permitted
assigns. The Agreement may not be assigned by Seller except with the prior
written consent of Buyer, which can be withheld in Buyer's sole discretion. This
Agreement may not be assigned by Buyer except with the prior written consent of
Seller, which can be withheld in Seller's sole discretion. Nothing herein
contained shall confer or is intended to confer on any third party or entity
which is not a party to this Agreement any rights under this Agreement.
(g) Whenever the context requires, the use in this Agreement
of a pronoun of any gender shall be deemed to refer also to any other gender,
and the use of the singular shall be deemed to refer also to the plural.
(h) The headings in the sections, paragraphs, and Exhibits and
Schedules of this Agreement are inserted for convenience of reference only and
shall not constitute a part hereof. The words "herein," "hereof," "hereto" and
"hereunder," and other words of similar import refer to this Agreement as a
whole and not to any particular provision of this Agreement.
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<PAGE>
(i) If any provision of this Agreement is held to be invalid
or unenforceable as against any person or under certain circumstances, the
remainder of this Agreement and the applicability of such provision to other
persons or circumstances shall not be affected thereby. Each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
(j) This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, but all of which,
taken together, shall constitute but one and the same instrument. This Agreement
may be executed by facsimile which shall be deemed an original for all purposes.
In the event this Agreement is executed by the exchange of facsimile copies, the
parties agree to exchange ink-signed counterparts promptly after the execution
and delivery of this Agreement.
(k) No failure or delay of any party in the exercise of any
right given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit (unless the time specified herein for exercise of such
right, or satisfaction of such condition, has expired) shall constitute a waiver
of any other or further right nor shall any single or partial exercise of any
right preclude other or further exercise thereof or any other right. The waiver
of any breach hereunder shall not be deemed to be a waiver of any other or any
subsequent breach hereof.
[signature page follows]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SELLER:
SELBRIDGE CORP.
By:
-------------------------------------
Name:
Title:
----------------------------------------
LEO S. ULLMAN
BUYER:
THE POINT SHOPPING CENTER LLC
By: Uni-Invest (U.S.A.)Partnership, L.P.
By: Uni-Invest (U.S.A.), Ltd.
By:
-------------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
---------
(Land)
TRACT NO. 1
-----------
ALL THAT CERTAIN lot or piece of ground located an the southern side-of
relocated Union Deposit Road, L.R. 22008, Lower Paxton Township, Dauphin County,
Pennsylvania, more particularly described as follows:
BEGINNING at a point at the intersection of 'the eastern right-of-way
line of Ramp "D" of Interstate, Route 83 (said ramp extending tram the Eastern
side of Route 83 to the southern side of relocated Union Deposit Road) and the
southern right-of-way line of relocated Union Deposit Road, L. R. 22008, said
point being 90 feet South of the center line of the said relocated Union Deposit
Road, L. R. 22008; thence along said southern right-of-way line of said
relocated Union Deposit Road, North 84 degrees 18 minutes East, a distance of
256.10 feet to a point on said right-of-way line: thence by the same North 5
degrees 42 minutes West, a distance of 20 feet to a point an said right-of-way
line; thence by the same North 84 degrees 18 minutes East a distance of 318.46
feet to a point on line of other lands of Union Deposit Corp.; thence by said
last lands, South 3 degrees 44 minutes 15 seconds East a distance of 421.03 feet
to a point; thence by same South 84 degrees 18 minutes West, a distance of
569.29 feet to a point an the eastern right-of-way line of said Ramp "D"; thence
along the same North 3 degrees 44 minutes 15 seconds West a distance of 39.66
feet to a point; thence by the same South 86 degrees 15 minutes 45 seconds West,
a distance of 30 feet to a point; thence by the same North 3 degrees 44 minutes
15 seconds West, a distance of 308.64 feet to a point; thence by the same North
22 degrees 4 minutes 13 seconds East, a distance of 58.39 feet to a point, the
place of BEGINNING.
CONTAINING 5.62 acres of land.
AS MORE PARTICULARLY SHOWN on the Plan of Property of Union Deposit
Corporation prepared by D. P. Raffensperger Associates, Engineers and Surveyors,
dated June 25, 1973.
TRACT NO. 2
-----------
ALL that certain lot or piece of ground located in Lower Paxton
Township, Dauphin County, Pennsylvania, more fully bounded and described as
follows:
BEGINNING at the northwest corner of East Park Drive and Fast Park
Circle; thence along the northern line of East Park Circle South 84 degrees 18
minutes West a distance of 315.07 feet to a ' point; thence along same by a
curve to the left having a radius of 50 feet for an arc distance of 124.90 feet
to a point; thence along lands of Burr-Penn, South 84 degrees 18 minutes West a
distance of 207.90 feet to a point on the eastern line of Ramp "D" (L.R. 768-6);
thence along same North 19 degrees 20 minutes West, a distance of 133.55 feet to
a point; thence along same by a curve to the right having a radius of 2,794.83
feet for an arc distance of 103.41 feet to a point; thence along same North 72
degrees 4.7 minutes 12 seconds East, a distance of 10 feet to a point; thence
along same by a curve to the right having a radius of 2,784.83 feet for an arc
length of 73-35 feet to a point; thence along same North 15 degrees 42 minutes
<PAGE>
15 seconds West, a distance of 85.34 feet to a point on same; thence along lands
now or formerly of Westminster Shopping Centers, Inc., North 46 degrees 52
minutes 21 seconds East a distance of 375.89 feet to a point; thence along same
North 48 degrees 18 minutes 36 seconds East a distance of 427.18 feet to a
point; thence along same North 84 degrees 18 minutes East a distance of 287.49
feet to a point; thence along the western line of East Park Drive, south 11
degrees 56 minutes 37 seconds West, a distance of 685.75 feet to a point; thence
along same by a curve to the left having a radius of 848.51 feet for an arc
distance of 184.86 feet to the place of BEGINNING.
CONTAINING 11.76 acres of land.
AS MORE PARTICULARLY SHOWN on the Plan of Property for Alexander Boyd
prepared by D.P. Raffensperger Associates, Engineers and Surveyors, dated June
25, 1973.
TRACT NO. 3
-----------
ALL that certain lot or piece of ground located in Lower Paxton
Township, Dauphin County, Pennsylvania, more particularly bounded and described
as follows:
BEGINNING at a point a n the eastern right-of-way line of Ramp "D" of
Legislative Route No. 768-6 at lands now or formerly of Union Deposit mail
Equities Limited Partnership; thence along lands now or formerly of Union
Deposit Hall Equities Limited Partnership North 84 degrees 18 minutes East
569.29 feet to a point; thence along same North 3 degrees 44 minutes 15 seconds
West 421.03 feet to a point on the southern right-of-way line of relocated
Legislative Route No. 22008; thence along said right-of-way .North 84 degrees 18
minutes East 231.54 feet to a point; thence along same South 5 degrees 42
minutes East 20 feet to a point; thence along same North 84 degrees 18 minutes
East 5.76 feet to a point at lands of Union Deposit Corporation; thence along
lands of the same South 3 degrees 44 minutes 15 seconds East 175.10 feet to a
point; thence along same North 84 degrees 18 minutes East 198.59 feet to a point
on the western line of East Park Drive (60 feet wide); thence along said western
line, South 11 degrees 56 minutes 37 seconds West 236.93 feet to a point at
lands now or formerly of Westminster Shopping Centers, Inc.; thence along same
South 84 degrees 18 minutes West 287.49 feet to a point; thence along same South
46 degrees 427.18 feet to a point; thence along same South 46 degrees 52 minutes
21 seconds West 375.89 feet to a point on the eastern right-of-way line of Ramp
"D" aforesaid; thence along said right-of-way line North 15 degrees 42 minutes
15 seconds West 181.16 feet to a point; thence along same by a curve to the
right having a radius of 875.37 feet for an arc length of 146.46 feet to a
point; thence along same North 84 degrees 52 minutes 55 seconds Fast 30 feet to
a point; thence along same by a curve to the right having a radius of 845.37
feet for an arc length of 35.12 feet to a point; thence along same North 3
degrees 44 minutes 15 seconds West 120.65 feet to the place of BEGINNING.
-4-
<PAGE>
CONTAINING 6.90 acres of land.
AS MORE PARTICULARLY SHOWN an the Plan of Property for Union Deposit
Corporation prepared by D.P. Raffensperger Associates, Engineers and Surveyors,
dated June 25, 1973.
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<PAGE>
EXHIBIT B
---------
(Additional Exceptions to Title)
1. Rights granted to Pennsylvania Power and Light Company in Misc. Book R,
Volume 13, Page 532.
2. Rights granted to Bell Telephone Company in Misc. Book Y, Volume 13, Page
321 and Record Book 388, Page 126.
3. Subject to conditions on Plan of Survey prepared by D.P. Raffensperger
Associates, Engineers and Surveyors, dated June 25, 1973 :
(a) 15 foot wide drainage easement along the western side of Tract No. 3
(b) 20 foot by 20 foot easement for Shell Oil Company (now Gulf Oil) sign
along the western side of Tract No. 2
(c) Subject to limited access along Union Deposit Road (L.R. 22008) and
Ramp "O" (L.R. 768-6).
4. Deed of Dedication: Union Deposit Corporation, DDV Real Estate Corporation
of Pennsylvania, and Alexander Boyd and Anna E. Boyd, his wife, and Lower
Paxton Township Authority, dated March 23, 1970 and recorded in Misc. Book
K, Volume 13, Page 343.
5. Memorandum of Lease between Union Deposit Mall Equities Limited Partnership
(landlord) and J.C. Penney Company, Inc. (Tenant) dated May 30, 1972 and
recorded in Misc. Book N, Volume 14, Page 58.
6. Memorandum of Lease: Union Deposit Mall Equities Limited Partnership to
Sameric Corp. of Union Deposit Mall recorded in Misc. Book G, Volume 16,
Page 696.
7. Memorandum of Lease: Marathon Shopping Center Assoc. to J & J Burger, Inc.
dated July 10, 1986 and recorded July 21, 1986 in Record Book 787, Page
429.
8. Reservations and conditions and sign easement as set forth in Record Book
212, Page 544 and Record Book 212, Page 550.
9. Memorandum of Third Amendment of Lease: The Point Associates and Denny's,
Inc. dated September 12, 1991 and recorded October 18, 1991 in Record Book
1643, Page 61.
10. Conditions shown on Survey by Robert L. Reed, L.S. of Reed Engineering,
Inc. dated November & December, 1988, revised January, 1989, last revised
July, 1994.
<PAGE>
11. Memorandum of Lease to Staples, Inc. recorded December 22, 1997 in Record
Book 3000, Page 545.
-7-
<PAGE>
EXHIBIT C
---------
(Assignment and Assumption of Partnership Interests)
<PAGE>
ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST
THIS ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST is made as of
the _____ day of June, 2000, by and between SELBRIDGE CORP. ("Assignor"), a
Delaware corporation having an office c/o Brentway Management, 44 South Bayles
Avenue, Port Washington, New York 11050 and THE POINT SHOPPING CENTER LLC
("Assignee"), a Delaware limited liability company having an office c/o Brentway
Management, 44 South Bayles Avenue, Port Washington, New York 11050.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Assignor is the general partner of The Point Associates, L.P.
(the "Partnership"), a Pennsylvania limited partnership, pursuant to the terms
of that certain First Amended and Restated Agreement of Limited Partnership,
dated as of June 29, 1992, as previously amended by First Amendment to the First
Amended and Restated Agreement of Limited Partnership, dated as of June 29,
1992, Amendment No. 1 to the First Amended and Restated Agreement of Limited
Partnership, dated as of March __, 1998, Amendment No. 2 to the First Amended
and Restated Agreement of Limited Partnership, dated as of January 12, 1999
(collectively, the "Partnership Agreement";
WHEREAS, Assignor desires to assign and transfer to Assignee, and
Assignee desires to receive from Assignor, a 42% partnership interest in the
Partnership (the "Assigned Interest").
WHEREAS, Simultaneously herewith, the Partnership Agreement is being
amended by that certain Amendment No. 3 to the First Amended and Restated
Agreement of Limited Partnership ("Amendment No. 3"), which Amendment No. 3,
among other things, contemplates the assignment and transfer of the Assigned
Interest.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee agree as follows:
1. All capitalized terms used herein, but not otherwise
defined herein, shall have the meanings set forth with respect thereto in the
Partnership Agreement.
2. As of the date hereof Assignor hereby assigns, transfers,
and sets over to Assignee all of Assignor's right, title and interest in and to
the Assigned Interest, including, without limitation (i) all right, title and
interest of Assignor from time to time in and to the Partnership, (ii) all
right, title and interest of Assignor pursuant to the Partnership Agreement from
time to time in and to all real and personal property and every other right,
however characterized, now or hereafter held by the Partnership and (iii) all of
Assignor's respective claims, rights, powers, privileges, security interests,
liens and remedies under the Partnership Agreement free of all liens, claims and
encumbrances.
-9-
<PAGE>
3. The parties hereto agree that the consideration paid by
Assignee to Assignor for the Assigned Interest shall have the value set forth in
Schedule A of that certain Agreement for Purchase and Sale of Partnership
Interests, of even date herewith, between Assignor and Leo S. Ullman,
collectively, as seller, and Assignee, as purchaser.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns from and after the date hereof.
4. Assignee does hereby assume and agree to perform from and
after the date hereof all of the terms, covenants and conditions on the part of
Assignee to be performed pursuant to the Partnership Agreement.
5. The provisions of this Assignment shall be binding upon
Assignor, its successors and assigns, and all persons claiming by, under or
through Assignor or any such successor or assign, and shall inure to the benefit
of and be enforceable by Assignee and its successors and assigns.
6. This Assignment shall be construed in accordance with and
governed by the internal laws of the State of New York, without regard to
principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ASSIGNOR:
SELBRIDGE CORP.
By: __________________________
Name:
Title:
ASSIGNEE:
THE POINT SHOPPING CENTER LLC
By: Uni-Invest (U.S.A.)Partnership, L.P.
By: Uni-Invest (U.S.A.), Ltd.
By: _________________________
Name:
Title:
-10-
<PAGE>
ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST
THIS ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST is made as of
the _____ day of June, 2000, by and between LEO S. ULLMAN ("Assignor"), an
individual, having an office c/o Brentway Management, 44 South Bayles Avenue,
Port Washington, New York 11050 and THE POINT SHOPPING CENTER LLC ("Assignee"),
a Delaware limited liability company having an office c/o Brentway Management,
44 South Bayles Avenue, Port Washington, New York 11050.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Assignor is the limited partner of The Point Associates, L.P.
(the "Partnership"), a Pennsylvania limited partnership, pursuant to the terms
of that certain First Amended and Restated Agreement of Limited Partnership,
dated as of June 29, 1992, as previously amended by First Amendment to the First
Amended and Restated Agreement of Limited Partnership, dated as of June 29,
1992, Amendment No. 1 to the First Amended and Restated Agreement of Limited
Partnership, dated as of March __, 1998, Amendment No. 2 to the First Amended
and Restated Agreement of Limited Partnership, dated as of January 12, 1999
(collectively, the "Partnership Agreement";
WHEREAS, Assignor desires to assign and transfer to Assignee, and
Assignee desires to receive from Assignor, an 8% partnership interest in the
Partnership (the "Assigned Interest").
WHEREAS, Simultaneously herewith, the Partnership Agreement is being
amended by that certain Amendment No. 3 to the First Amended and Restated
Agreement of Limited Partnership ("Amendment No. 3"), which Amendment No. 3,
among other things, contemplates the assignment and transfer of the Assigned
Interest.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee agree as follows:
7. All capitalized terms used herein, but not otherwise
defined herein, shall have the meanings set forth with respect thereto in the
Partnership Agreement.
8. As of the date hereof Assignor hereby assigns, transfers,
and sets over to Assignee all of Assignor's right, title and interest in and to
the Assigned Interest, including, without limitation (i) all right, title and
interest of Assignor from time to time in and to the Partnership, (ii) all
right, title and interest of Assignor pursuant to the Partnership Agreement from
time to time in and to all real and personal property and every other right,
however characterized, now or hereafter held by the Partnership and (iii) all of
Assignor's respective claims, rights, powers, privileges, security interests,
liens and remedies under the Partnership Agreement free of all liens, claims and
encumbrances.
-11-
<PAGE>
9. The parties hereto agree that the consideration paid by
Assignee to Assignor for the Assigned Interest shall have the value set forth in
Schedule A of that certain Agreement for Purchase and Sale of Partnership
Interests, of even date herewith, between Assignor and Selbridge Corp.,
collectively, as seller, and Assignee, as purchaser.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns from and after the date hereof.
10. Assignee does hereby assume and agree to perform from and
after the date hereof all of the terms, covenants and conditions on the part of
Assignee to be performed pursuant to the Partnership Agreement.
11. The provisions of this Assignment shall be binding upon
Assignor, its successors and assigns, and all persons claiming by, under or
through Assignor or any such successor or assign, and shall inure to the benefit
of and be enforceable by Assignee and its successors and assigns.
12. This Assignment shall be construed in accordance with and
governed by the internal laws of the State of New York, without regard to
principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ASSIGNOR:
________________________________
Leo S. Ullman
ASSIGNEE:
THE POINT SHOPPING CENTER LLC
By: Uni-Invest (U.S.A.)Partnership, L.P.
By: Uni-Invest (U.S.A.), Ltd.
By: ___________________________
Name:
Title:
-12-
<PAGE>
EXHIBIT D
---------
(Lender Escrows/Reserves)
<PAGE>
EXHIBIT E
---------
(Method for Certain Apportionments)
<PAGE>
EXHIBIT F
---------
(Partnership Agreement)
<PAGE>
EXHIBIT G
---------
(Tenant Leases)
<PAGE>
EXHIBIT H
---------
(Rent Roll)
<PAGE>
EXHIBIT I
---------
(Operating Agreements)
<PAGE>
EXHIBIT J
---------
(Unpaid Brokerage Commissions)
Brokerage commissions relating any unexercised options granted to the respective
Tenants in any of the Tenant Leases.
<PAGE>
EXHIBIT K
---------
(Estoppel Certificate)
ESTOPPEL CERTIFICATE
--------------------
The following terms as used in this Certificate have the meanings
defined below.
<TABLE>
<CAPTION>
<S> <C>
Building: The Point Shopping Center, Dauphin County, Pennsylvania
Tenant:
Landlord: THE POINT ASSOCIATES, L.P.
Lease:
Premises: Shall mean the premises leased pursuant to the Lease which include
_______rentable square feet, located on floor(s) _____ and known as _____.
Current Monthly $[_____]per month ("Rent"), payable in equal monthly installments, plus any
Rent: common area charges, taxes, and other stipulated charges as specified in the
Lease to be payable.
Term Commencement Date:
Term Expiration Date:
Security Deposit:
Tenant's Address for Notices:
Extension/Renewal Rights:
Expansion Rights:
</TABLE>
<PAGE>
Landlord and Tenant are parties to the Lease as defined above; and
pursuant thereto, Tenant hereby agrees and certifies to Landlord, to any
purchaser of the Premises as successor landlord to Landlord under the Lease, and
to any of such purchaser's lenders, as follows.
1. The Lease is the only and entire agreement between Tenant and
Landlord affecting the Premises, and the Lease has not been
assigned, amended, modified, changed, altered or supplemented,
except as specified on page 1 of this Certificate and Tenant is
not entitled to receive any concession or benefit (rental or
otherwise) or other similar compensation in connection with
leasing the Premises other than as set forth in the Lease.
2. The Lease is valid and in full force and effect. There are no
defaults thereunder by Tenant (or to the best of Tenant's
knowledge, by Landlord), nor are there any conditions which with
the passage of time or giving of notice or both would become a
default under the Lease. Tenant has no defense(s) or
counterclaim(s) against Landlord arising out of, or in any way
relating to, the Lease.
3. No rental payments, common area charges, taxes, deposits or other
stipulated Tenant payments under the Lease have been prepaid
except as provided by the Lease, except for Rent payments which
have been paid not more than thirty (30) days in advance. There
are no set-offs or credits against or rights to withhold future
accruing Rents. The amount of any Security Deposit held by
Landlord is as specified on page 1 of this Certificate.
4. The Current Monthly Rent payable under the Lease is as specified
on page 1 of this Certificate and has been paid through _________.
Tenant is currently obligated under the Lease to pay the following
as additional rent: _________________________.
5. Tenant is in full and complete possession of the Premises pursuant
to the terms of the Lease, and the Term Commencement Date and the
Term Expiration Date are as specified on page 1 of this
Certificate. Tenant's obligation to pay Rent has also commenced.
There are no Tenant options or rights to extend or renew the
Tenant's leasehold or to expand the Premises except as set forth
in the Lease as specified on page 1 of this Certificate. Tenant
has no right or option to purchase the Building or the Premises.
6. The Premises, including all improvements, appurtenances and common
areas to be constructed by Landlord pursuant to the Lease satisfy
the requirements of the Lease and have been accepted and approved
in all respects by Tenant, and are open for the use of Tenant.
7. Tenant acknowledges that Tenant's address for notices to be given
pursuant to the Lease is as specified on page 1 of this
Certificate.
-21-
<PAGE>
8. Upon Tenant's receiving notice under the Lease from Landlord that
another person has acquired the Building from Landlord, Tenant
shall recognize such person as successor landlord under the Lease.
Executed to be effective this ____ day of __________, 2000.
Tenant:
By:________________________________
Name:
Title:
-22-
<PAGE>
SCHEDULE A
-----------
(Partnership Interests and Conveyed Interests)
Percentage of Interest Percentage of Interest in
in Partnership Partnership to be conveyed
---------------------- --------------------------
Selbridge 92% 42%
Ullman 8% 8%
Allocated Percentage of adjusted Purchase Price
-----------------------------------------------
Selbridge 84%
Ullman 16%
-23-
<PAGE>
AGREEMENT FOR
PURCHASE AND SALE
OF PARTNERSHIP INTERESTS
among
SELBRIDGE CORP. AND LEO S. ULLMAN, collectively, as Seller
AND
THE POINT SHOPPING CENTER, LLC, as Buyer
Dated: as of July 1, 2000
