PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as
of the 4th day of October, 2000, by and between Deptford
Crossing Associates, L.P., a Delaware limited partnership,
having an office c/o Dean Witter Realty Inc., Two World Trade
Center, 64th Floor, New York, New York 10048, (the "Seller"),
and The Hutensky Group, LLC, a Connecticut limited liability
company, having an office at 280 Trumbull Street, 2nd Floor,
Hartford, Connecticut 06103-3504 (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the real property
known as Deptford Crossing, Deptford Township, New Jersey;
WHEREAS, the Seller and the Purchaser have entered into
negotiations wherein the Purchaser expressed its intent to
purchase the Property (as defined herein) from the Seller and
the Seller expressed its intent to sell the Property to the
Purchaser; and
WHEREAS, the Seller and the Purchaser now desire to enter
into an agreement whereby, subject to the terms and conditions
contained herein, the Seller shall sell the Property to the
Purchaser and the Purchaser shall purchase the Property from
the Seller.
NOW, THEREFORE, in consideration of ten ($10.00) dollars
and the mutual covenants and agreements hereinafter set forth,
and intending to be legally bound hereby, it is hereby agreed
as follows:
1. Sale of the Property.
The Seller agrees to sell and convey to the Purchaser, and the
Purchaser agrees to purchase from the Seller, at the price and
upon the terms and conditions set forth in this Agreement, all
those certain plots, pieces and parcels of land described in
Schedule 1 hereto (the "Land"), together with (i) all
buildings and other improvements situated on the Land
(collectively, the "Buildings"), (ii) all easements, rights of
way, reservations, privileges, appurtenances, and other
estates and rights of the Seller pertaining to the Land or the
Buildings, (iii) all right, title and interest of the Seller
in and to all fixtures, machinery, equipment, supplies and
other articles of personal property attached or appurtenant to
the Land or the Buildings, or used in connection therewith
(collectively, the "Personal Property"), and (iv) all right,
title and interest of the Seller, if any, in and to the trade
names of the Buildings (the Land, together with all of the
foregoing items listed in clauses (i)-(iv) above being
hereinafter sometimes referred to as the "Property").
<PAGE>
1.1. Excluded Property.
Specifically excluded from the Property and this
sale are all items of personal property not described in
Section 1 (and all personal property of tenants under the
Leases other than any interest of Seller therein) and the
items described in Schedule 2 annexed hereto and made a
part hereof.
1.2. Closing Date.
The delivery of the Deed and the consummation of the
transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Dechert
Price & Rhoads, 4000 Bell Atlantic Tower, 1717 Arch
Street, Philadelphia, Pennsylvania, 09103 on the date
which is five (5) days after the end of the Due Diligence
Period unless such day is not a day on which the records
office of Gloucester County, New Jersey is open for
business, in which case, the Closing shall take place on
the next day on which such records office is open (the
"Closing Date") or such earlier date as the Seller and
Purchaser may agree in writing; provided that Purchaser
may extend such the Closing Date to the date that is
thirty-five (35) days after the expiration of the Due
Diligence Period by (i) giving written notice thereof to
Seller at any time prior to the end of such five (5) day,
(ii) substituting the Cash Downpayment for any
outstanding Letter of Credit, and (iii) depositing an
additional Two Hundred Seventy Thousand Dollars
($270,000) (the "Additional Downpayment") with the Escrow
Agent to be held pursuant to the terms of the Escrow
Agreement. The Additional Downpayment shall be in the
form of a certified or bank check drawn on or by a
Clearing House Bank (as defined below) or by wire
transfer in immediately available funds to the Escrow
Agent's account as set forth in the Escrow Agreement.
Notwithstanding anything to the contrary in this Section
1.2, Purchaser shall have one (1) option to extend the
Closing Date for two (2) days, provided Purchaser
delivers to Seller written notice of its intent to
exercise such option no later than the date which is five
(5) days or thirty-five (35) days, as applicable, after
the end of the Due Diligence Period. From and after the
date that the Escrow Agent is in receipt of the
Additional Downpayment, the definition "Cash Downpayment"
shall be deemed to include the Additional Downpayment.
2. Purchase Price.
The purchase price to be paid by the Purchaser to the
Seller for the Property (the "Purchase Price") is Thirteen
Million Five Hundred Thousand Dollars ($13,500,000) payable as
follows:
<PAGE>
(a) Two Hundred Seventy Thousand Dollars ($270,000)
shall be payable simultaneously with the execution and
delivery of this Agreement, by delivery to Lawyers Title
Insurance Corporation (the "Escrow Agent") of either (i)
a certified or bank check drawn on or by a bank which is
a member of the New York Clearing House Association (a
"Clearing House Bank") or by wire transfer of immediately
available funds to the Escrow Agent's account as set
forth in the Escrow Agreement (the "Cash Downpayment") or
(ii) a letter of credit in substantially in the form of
Exhibit L hereto from Hudson United Bank (the "Letter of
Credit"). The Purchaser may substitute the Cash
Downpayment for the Letter of Credit at any time. In any
event, the Letter of Credit shall be converted to the
Cash Downpayment no latter than the Closing Date. The
Cash Downpayment or the Letter of Credit, as the case may
be, shall be held and disbursed by the Escrow Agent in
accordance with the terms of Section 15. At the Closing,
the Deposit shall be delivered to the Seller and such
amount shall be credited against the portion of the
Purchase Price payable pursuant to Section 2(b).
(b) The balance of the Purchase Price (i.e., the
Purchase Price minus the credit set forth in Section 2(a)
above), plus or minus the apportionments set forth in
Section 3, shall be paid at the Closing by bank wire
transfer of immediately available funds to the Seller's
account or to the account or accounts of such other party
or parties as may be designated by the Seller on or
before the Closing Date.
3. Apportionments
The following shall be apportioned between the Seller and
the Purchaser at the Closing as of 11:59 p.m. of the day
preceding the Closing Date (the "Adjustment Date"):
(a) fixed or base rents ("Rents") which have been
prepaid, Rents for the month in which the Closing occurs
and Additional Rents and other amounts paid by tenants
applicable to periods which begin before but expire after
the Closing Date, which have been received by Seller;
(b) real estate taxes, special assessments, water
charges, sewer rents and charges with the Seller to be
responsible for any period or portion thereof (calculated
on a per diem basis) occurring prior to the Adjustment
Date and the Purchaser to be responsible for all of the
same relating to any period or portion thereof occurring
thereafter, regardless of when billed;
<PAGE>
(c) value of prepaid fuel belonging to the Seller
stored on the Property, at the Seller's cost, including
any taxes, on the basis of a statement from the Seller's
suppliers;
(d) charges and payments under Contracts that are
being assigned to the Purchaser pursuant to the terms of
this Agreement and listed on Schedule 3 hereto or
permitted renewals or replacements thereof;
(e) any prepaid items, including, without
limitation, fees for licenses which are transferred to
the Purchaser at the Closing and annual permit and
inspection fees;
(f) utilities, to the extent required by Section
3.4;
(g) deposits with telephone and other utility
companies, and any other persons or entities who supply
goods or services in connection with the Property if same
are assigned to the Purchaser at the Closing;
(h) personal property taxes, if any, on the basis
of the fiscal year for which assessed;
(i) all other revenues from the operation of the
Property other than Rents and Additional Rents
(including, without limitation, parking charges, tenant
direct electrical reimbursements, HVAC overtime charges,
and telephone booth and vending machine revenues);
(j) New Lease Expenses as provided in Section
10.1.2; and
(k) such other items as are customarily apportioned
between sellers and purchasers of real properties of a
type similar to the Property and located in Deptford
Township, New Jersey.
3.1. Taxes.
If the amount of real estate taxes, special
assessments or other taxes for the Property for the
fiscal year during which Closing occurs is not finally
determined at the Adjustment Date, such taxes shall be
apportioned on the basis of the full amount of the
assessment for such period (or the assessment for the
prior tax period if the assessment for the current tax
period is not then known) and the rate for the
immediately prior tax year, and shall be reapportioned as
soon as the new tax rate and valuation, if any, has been
finally determined. If any taxes which have been
apportioned shall
<PAGE> subsequently be reduced by abatement, the
amount of such abatement, less the cost of obtaining the
same and after deduction of sums payable to tenants under
Leases or expired or terminated Leases, shall be
equitably apportioned between the parties hereto.
3.2. Rents.
3.2.1. Arrearages.
If on the Closing Date any tenant is in arrears
in the payment of Rent or has not paid the Rent
payable by it for the month in which the Closing
occurs (whether or not it is in arrears for such
month on the Closing Date), any Rents received by
the Purchaser or the Seller from such tenant after
the Closing shall be applied to amounts due and
payable by such tenant in the manner specified by
such tenant, provided that if such tenant does not
so specify, such Rents shall be applied to amounts
due and payable by such tenant during the following
periods in the following order of priority:
(i) first, to the month in which the Closing
occurred, (ii) second, to the months following the
month in which the Closing occurred, and
(iii) third, to the months preceding the month in
which the Closing occurred. If Rents or any portion
thereof received by the Seller or the Purchaser
after the Closing are due and payable to the other
party by reason of this allocation, the appropriate
sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in
connection with the collection thereof, shall be
promptly paid to the other party (to the extent not
collected from or reimbursed by tenants).
3.2.2. Additional Rents.
If any tenants are required to pay percentage
rent, escalation charges for real estate taxes,
parking charges, operating expenses and maintenance
escalation charges, or other charges of a similar
nature ("Additional Rents") and any Additional Rents
are collected by the Purchaser from a tenant after
the Closing Date, then the Purchaser shall promptly
pay to the Seller out of the first such sums
received from such tenant the amount of all
Additional Rents which are due and payable by such
tenant with respect to any period prior to the
Closing Date (whether or not such Additional Rents
first became due and payable on or after the Closing
Date), less a proportionate share of any reasonable
attorneys' fees and costs and expenses of collection
thereof (to the extent not collected from or
reimbursed by tenants). To the extent that such
<PAGE>Additional Rents consist of percentage rents,
such Additional Rents shall be allocated under this
Section 3.2.2. based on the assumption that such
Additional Rents are earned at a constant rate
during the course of the period for which such
Additional Rents are paid. The obligations of this
Section 3.2.2. shall survive the Closing for a
period of one (1) year. To the extent that tenant
disputes any amount of Additional Rent, Purchaser
shall only pay Seller its proportionate share, if
any, of the amount thereof actually paid by tenant,
and the determination of the portion thereof payable
to Seller shall otherwise be subject to this
paragraph.
3.2.3. Collection After the Closing.
After the Closing, the Seller shall continue to
have the right, in its own name, to demand payment
of and to collect Rent and Additional Rent
arrearages owed to the Seller by any tenant, which
right shall include, without limitation, the right
to continue or commence legal actions or proceedings
against any tenant, provided, however, that such
legal actions or proceedings shall not result in the
termination of such tenant's Lease. The Purchaser
agrees to reasonably cooperate with the Seller, at
the Seller's cost, in connection with all efforts by
the Seller to collect such Rents and Additional
Rents by, including, without limitation, delivering
to the Seller, promptly after written demand, copies
of any relevant books and records (including any
Rent or Additional Rent statements, receipted bills
and copies of tenant checks used in payment of such
Rent or Additional Rent), executing any and all
consents or other documents in form and substance
reasonably satisfactory to the Purchaser, and
undertaking any act reasonably necessary for the
collection of such Rents and Additional Rents by the
Seller. If for any fiscal period which includes the
Adjustment Date tenants are paying Additional Rent
based upon estimates prepared by the Seller, such
Additional Rents shall be reapportioned when the
actual Additional Rents for the fiscal period are
known. Any and all Rents, Additional Rents or other
amounts received by Seller on or after the Closing
Date under any of the Leases or otherwise in
connection with the Property shall be received in
trust for Purchaser and shall be promptly paid over
to Purchaser less only any portion of the particular
payment received which is due to Seller from the
payor and which Seller is entitled to retain under
the preceding Sections of this Agreement.
<PAGE>
3.3. Water.
If there is a water meter on the Property, the
Seller shall furnish a reading to a date not more than
thirty (30) days prior to the Closing Date, and the
unfixed water charges and sewer rent, if any, for the
intervening time shall be apportioned on the basis of
such last reading.
3.4. Utilities.
The Seller will attempt to obtain final cut-off
readings of fuel, telephone, electricity, and gas to be
made as of the Adjustment Date. The Seller shall pay the
bills based on such readings promptly after the same are
rendered. If arrangements cannot be made for any such
cut-off reading, the parties shall apportion the charges
for such services on the basis of the bill therefor for
the most recent billing period prior to the Adjustment
Date, and when final bills are rendered for the period
which includes the Adjustment Date the Seller and
Purchaser shall promptly readjust the apportionments in
accordance with such final bills.
3.5. Post-Closing Adjustments.
The items set forth in this Section 3 shall be
apportioned at the Closing by payment of the net amount
of such apportionments to the Seller in the manner set
forth herein for the payment of the Purchase Price if the
net apportionment is in favor of the Seller or by a
credit against the Purchase Price if the net
apportionment is in favor of the Purchaser. However, if
any of the items subject to apportionment under the
foregoing provisions of this Section 3 cannot be
apportioned at the Closing because of the unavailability
of the information necessary to compute such
apportionment, or if any errors or omissions in computing
apportionments (including errors or omissions resulting
from using estimates rather than actual amounts) at the
Closing are discovered subsequent to the Closing, then
such item shall be reapportioned and such errors and
omissions corrected as soon as practicable after the
Closing Date and the proper party reimbursed, which
obligation shall survive the Closing for a period of one
year after the Closing Date.
4. Due Diligence Period.
The Purchaser shall have a forty-five (45) day period
commencing on the date hereof (the "Due Diligence Period") to
examine title to the Property, to inspect the physical and
financial condition of the Property and to review the Property
Information. The Purchaser and the Purchaser's
Representatives may contact any governmental authority or any
of the Seller's tenants, vendors, employees, consultants or
contractors prior to the Closing without obtaining the
Seller's prior written consent.
<PAGE>
4.1. Access to the Property.
During the Due Diligence Period, the Purchaser and
the Purchaser's Representatives shall have the right to
enter upon the Property for the sole purpose of
inspecting the Property and making surveys, soil borings,
engineering tests and other investigations, inspections,
assessments and tests (collectively, "Investigations"),
provided (i) the Purchaser shall give the Seller not less
than one (1) business days' prior written notice before
each entry, (ii) the first such notice shall include
sufficient information to permit the Seller to review the
scope of the proposed Investigations, and (iii) neither
the Purchaser nor the Purchaser's Representatives shall
permit any borings, drillings or samplings to be done on
the Property without the Seller's prior written consent,
which shall not be unreasonably withheld or delayed.
Notwithstanding the immediately preceding sentence, the
Purchaser and the Purchaser's Representatives shall have
the right to enter upon the Property without prior
written notice for the sole purpose of (i) making
Investigations that are not physically intrusive, or (ii)
meeting with the person identified by the Seller in
writing as the manager of the Property. Any entry upon
the Property and all Investigations shall be during the
Seller's normal business hours and at the sole risk and
expense of the Purchaser and the Purchaser's
Representatives, and shall not interfere with the
activities on or about the Property of the Seller, its
tenants and their employees and invitees. The Purchaser
shall:
(a) promptly repair any damage to the Property
resulting from any such Investigations and replace,
refill and regrade any holes made in, or excavations
of, any portion of the Property used for such
Investigations so that the Property shall be in the
same condition as that which existed prior to such
Investigations;
(b) fully comply with all Laws applicable to
the Investigations and all other activities
undertaken in connection therewith;
(c) permit the Seller to have a representative
present during all Investigations undertaken
hereunder;
(d) take all reasonable actions and implement
all reasonable protections necessary to ensure that
all actions taken in connection with the
Investigations, and the equipment, materials, and
substances generated, used or brought onto the
<PAGE>Property pose no threat to the safety or
health of persons or the environment, and cause no
damage to the Property or other property of the
Seller or other persons;
(e) if the Closing does not occur and if
requested by the Seller, furnish to the Seller, at
no cost or expense to the Seller, copies of all
surveys, written soil test results, written
engineering, written asbestos, written environmental
and other written studies and reports relating to
the Investigations which the Purchaser shall obtain
with respect to the Property promptly after the
Purchaser's receipt of same;
(f) maintain or cause to be maintained, at the
Purchaser's expense, a policy of comprehensive
general public liability insurance with a combined
single limit of not less than $1,000,000 per
occurrence for bodily injury and property damage,
automobile liability coverage including owned and
hired vehicles with a combined single limit of
$1,000,000 per occurrence for bodily injury and
property damage, and an excess umbrella liability
policy for bodily injury and property damage in the
minimum amount of $3,000,000, insuring the Purchaser
and the Seller and certain of Seller's Affiliates
listed on Schedule 4, as additional insureds,
against any injuries or damages to persons or
property that may result from or are related to (i)
the Purchaser's and/or the Purchaser's
Representatives' entry upon the Property, (ii) any
Investigations or other activities conducted
thereon, and (iii) any and all other activities
undertaken by the Purchaser and/or the Purchaser's
Representatives in connection with the Property, and
deliver evidence of such insurance policy to the
Seller on or prior to the first entry on the
Property; and
(g) indemnify the Seller and the Seller's
Affiliates and hold the Seller and the Seller's
Affiliates harmless from and against any and all
claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including without
limitation reasonable attorneys' fees and
disbursements), suffered or incurred by the Seller
or any of the Seller's Affiliates and arising out of
or in connection with (i) the Purchaser and/or the
Purchaser's Representatives' entry upon the
Property, (ii) any investigations or other
activities conducted thereon by the Purchaser or the
Purchaser's Representatives, and (iii) any liens or
encumbrances filed or recorded against the Property
as a consequence of the Investigations other than
any and all claims, <PAGE>demands, causes of action,
losses, damages, liabilities, costs and expenses (x)
directly caused by or directly arising out of the
Seller's gross negligence or willful misconduct, or
(y) resulting from or arising out of Purchaser's
discovery of any existing environmental condition or
the disclosure thereof in accordance with applicable
law.
The provisions of this Section 4.1 shall survive the
termination of this Agreement and the Closing.
4.2. Purchaser's Termination Notice.
Subject to the last sentence of this Section 4.2,
the Purchaser shall have the absolute and unconditional
right to elect to terminate this Agreement by giving
written notice (the "Purchaser's Termination Notice") of
such election to the Seller at any time prior to the
expiration of the Due Diligence Period. If the
Purchaser's Termination Notice has not been deemed to
have been both given by the Purchaser and received by the
Seller prior to the expiration of the Due Diligence
Period under Section 16, the Purchaser shall be deemed to
have irrevocably waived the right of termination granted
under this Section 4.2, and such right of termination
shall be of no further force or effect.
4.3. Estoppel Certificates.
Promptly after execution and delivery of this
Agreement, the Seller agrees to request and to use
commercially reasonable efforts to obtain a tenant
estoppel certificate (collectively "Tenant Estoppel
Certificates") from each tenant under a Lease. Subject
to the last sentence of this Section 4.3, it shall be an
obligation of the Seller under this Agreement to obtain
executed Tenant Estoppel Certificates from all of the
tenants, including the following tenants: Michaels, Pet
Smart, Marshalls, TJ Maxx, Office Max, ULTA3 Cosmetics
and Jo Ann Fabrics (collectively, the "Key Leases"). The
Tenant Estoppel Certificates shall be in the form annexed
hereto as Exhibit G and made a part hereof; provided,
however, if any tenant is required or permitted under its
Lease to make different statements in a certificate of
such nature than are set forth in Exhibit G, after
requesting a Tenant Estoppel Certificate from such tenant
in the form of Exhibit G, the Seller may modify the
Tenant Estoppel Certificate for such tenant to set forth
only the statements required under such tenant's Lease to
be made by such tenant in such a certificate, if so
requested by such tenant. If any tenant other than a
tenant under any of the Key Leases fails to deliver a
Tenant Estoppel Certificate in the form required by this
Agreement, Seller shall have the right to substitute in
lieu thereof an estoppel certificate <PAGE>(collectively
"Landlord Estoppel Certificates") substantially in such
form executed by Seller and such Landlord Estoppel
Certificate shall be treated for all purposes as a Tenant
Estoppel Certificate from such failing tenant, provided
that Landlord Estoppel Certificates may not be
substituted for Tenant Estoppel Certificates for more
than 25% of the non-Key Lease tenants..
5. Title.
The Seller shall convey and the Purchaser shall accept
good, marketable, indefeasible fee simple title to the
Property subject only to those matters set forth on Schedule 5
hereto and to any and all other matters approved by Purchaser
(collectively the "Permitted Encumbrances"). Purchaser shall
obtain, at the Purchaser's expense, within seven (7) days
after the execution of this Agreement a commitment for an
owner's fee title insurance policy with respect to the
Property (the "Title Commitment") from Lawyers Title Insurance
Corporation (the "Title Company") and shall immediately
deliver a copy of the Title Commitment to Seller. The
Purchaser shall obtain, at the Purchaser's expense, within
thirty-five (35) days after the execution of this Agreement an
as-built survey ("Survey") of the Land and Building dated
after the date of this Agreement and prepared in accordance
with the "Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys" jointly established and adopted by ALTA
and ACSM in 1999 and including such Table A items as Purchaser
shall reasonably request and shall immediately deliver a copy
of the Survey to Seller. The Survey shall contain a surveyor's
certificate in favor of Purchaser and the Title Company in
form and substance satisfactory for deletion of the standard
survey exception from the title insurance policy.
5.1. Unacceptable Encumbrances.
If the Title Commitment or the Survey indicate the
existence of any liens or encumbrances (collectively,
"Liens") or other defects or exceptions in or to title to
the Property other than the Permitted Encumbrances
(collectively, the "Unacceptable Encumbrances") subject
to which the Purchaser is unwilling to accept title and
the Purchaser gives the Seller notice of the same within
ten (10) days after Purchaser's receipt of the Title
Commitment or the Survey, respectively, the Seller shall
undertake to eliminate the same (or to arrange for title
insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the
same out of, the Property) subject to Section 5.2. The
Purchaser hereby waives any right the Purchaser may have
to advance as objections to title or as grounds for the
Purchaser's refusal to close this transaction any
Unacceptable Encumbrance which the Purchaser does not
notify the Seller of within such ten (10) day period
unless (i) such Unacceptable Encumbrance was first raised
by the Title Company <PAGE>subsequent to the date of the
Title Commitment or the Purchaser shall otherwise first
discover same or be advised of same subsequent to the
date of the Title Commitment or the Survey, respectively,
and (ii) the Purchaser shall notify the Seller of the
same within five (5) days after the Purchaser first
becomes aware of such Unacceptable Encumbrance. The
Seller, in its sole discretion, may adjourn the Closing
one or more times for up to thirty (30) days in the
aggregate in order to eliminate Unacceptable
Encumbrances.
5.2. Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to bring any
action or proceeding, to make any payments or otherwise
to incur any expense in order to eliminate Unacceptable
Encumbrances not waived by the Purchaser or to arrange
for title insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the
same out of, the Property; except that the Seller shall
satisfy Unacceptable Encumbrances which are (i) mortgages
and past due real estate taxes and assessments secured by
or affecting the Property, (ii) consensual judgements
against the Seller or other consensual Liens secured by
or affecting the Property, and (iii) other judgments
against the Seller or other Liens secured by or affecting
the Property which judgments and other Liens can be
satisfied by payment of liquidated amounts not to exceed
$250,000 in the aggregate for all such judgments and
other Liens. The Seller may eliminate any such
Unacceptable Encumbrance by the payment of amounts
necessary to cause the removal thereof of record, by
bonding over such Unacceptable Encumbrance in a manner
reasonably satisfactory to the Purchaser or by arranging
for title insurance reasonably satisfactory to the
Purchaser insuring against enforcement of such
Unacceptable Encumbrance against, or collection of the
same out of, the Property. If the Seller fails to
eliminate any such Unacceptable Encumbrance in accordance
with the procedures set forth in the immediately
preceding sentence, the Purchaser may proceed to closing
and withhold from the Purchase Price such amounts
reasonably necessary (subject in cases under clause (iii)
above to the $250,000 limitation set forth in this
Section 5.2) to cause the removal thereof of record.
5.3. Options Upon Failure to Remove Unacceptable
Liens.
If the Seller is unable or is not otherwise
obligated (pursuant to Section 5.2) to eliminate all
Unacceptable Encumbrances not waived by the Purchaser, or
to bond over in a manner reasonably satisfactory to the
Purchaser any Unacceptable Encumbrances not waived by the
Purchaser, or to arrange for title insurance reasonably
acceptable to <PAGE>the Purchaser insuring against
enforcement of such Unacceptable Encumbrances against, or
collection of the same out of, the Property, and to
convey title in accordance with the terms of this
Agreement on or before the Closing Date (whether or not
the Closing is adjourned as provided in Section 5.1), the
Purchaser shall elect on the Closing Date, as its sole
remedy for such inability of the Seller, either (i) to
terminate this Agreement by notice given to the Seller
pursuant to Section 14.1, in which event the provisions
of Section 14.1 shall apply, or (ii) to accept title
subject to such Unacceptable Encumbrances and receive no
credit against, or reduction of, the Purchase Price.
5.4. Use of Purchase Price.
If on the Closing Date there may be any Liens or
other encumbrances which the Seller must pay or discharge
in order to convey to the Purchaser such title as is
herein provided to be conveyed, the Seller may use any
portion of the Purchase Price to satisfy the same,
provided:
(a) the Seller shall deliver to the Purchaser
or the Title Company, at the Closing, instruments in
recordable form and sufficient to satisfy such Liens
or other encumbrances of record together with the
cost of recording or filing said instruments; or
(b) the Seller, having made arrangements with
the Title Company, shall deposit with said company
sufficient moneys acceptable to said company to
insure the obtaining and the recording of such
satisfactions and any such actions are satisfactory
to the Title Company such that it will insure
Purchaser and its lender providing financing for the
Property against any such Lien or encumbrance.
5.5. Franchise Taxes.
Any franchise or corporate tax open, levied or
imposed against the Seller or other owners in the chain
of title that may be a Lien on the Closing Date shall not
be an objection to title if the Title Company omits same
from the title policy issued pursuant to the Title
Commitment or excepts same but insures the Purchaser
against collection thereof out of the Property.
5.6. Transfer Taxes; Title Insurance Premiums.
At the Closing, the Seller shall pay all transfer
and recording taxes (the "Transfer Tax Payments") imposed
pursuant to the Laws of the State of New Jersey or any
other governmental authority in respect of the
transactions contemplated by this Agreement by delivery
to the Title Company of sufficient funds to pay such
taxes together with any return (the "Transfer Tax
Return") required thereby which shall be duly
<PAGE>executed by the Seller and the Purchaser to the
extent required by applicable law. At the Closing, the
premiums due the Title Company to obtain title insurance
policies in the form contemplated by the Title Commitment
(as the same may be amended pursuant to this Agreement),
the cost of obtaining the survey and other Closing-
related expenses shall be paid in the manner set forth on
Schedule 6 hereto.
6. Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser as
follows:
(a) The Seller is a duly formed and validly
existing limited partnership organized under the laws of
the State of Delaware and is qualified under the laws of
the State of New Jersey to conduct business therein.
(b) The Seller has the full, legal right, power and
authority to execute and deliver this Agreement and all
documents now or hereafter to be executed by the Seller
pursuant to this Agreement (collectively, the "Seller's
Documents"), to consummate the transaction contemplated
hereby, and to perform its obligations hereunder and
under the Seller's Documents.
(c) This Agreement and the Seller's Documents do
not and will not contravene any provision of the limited
partnership agreement of the Seller, any judgment, order,
decree, writ or injunction issued against the Seller, or,
to the current actual knowledge, without independent
inquiry, of Robert B. Austin, Vice President of LS
Deptford, Inc., but not to the knowledge of any other
trustee, partner, officer, director, agent, employee or
representative of the Seller or the Seller's Affiliates
(which standard of knowledge is herein referred to as
"Seller's Knowledge"), any provision of any laws or
governmental ordinances, rules, regulations, orders or
requirements (collectively, the "Laws") applicable to the
Seller. The consummation of the transactions
contemplated hereby will not result in a breach or
constitute a default or event of default by the Seller
under any agreement to which the Seller or any of its
assets are subject or bound and will not result in a
violation of any Laws applicable to the Seller.
(d) There are no leases, licenses or other
occupancy agreements affecting any portion of the
Property (collectively, the "Leases"), except for the
Leases listed in Schedule 7 annexed hereto and made a
part hereof. The copies of the Leases furnished by the
Seller to the Purchaser are true and complete. To the
Seller's Knowledge, the Leases are in full force and
effect, without any <PAGE>material default by the Seller
or any tenant thereunder. Except as listed on Schedule
7, the Seller has not given or received any notice of
default which remains uncured or unsatisfied, with
respect to any of the Leases. No tenant under a Lease or
other person or entity has any option, right of first
refusal or other right to purchase the Property or any
part thereof or interest therein which is not contained
in a recorded document or in a Lease delivered to the
Purchaser. As of the Closing Date, Seller has performed
all work and repairs required to be performed by Seller
under all Leases and no work allowance or other
allowance, credit or setoff is owed to any tenant under
any Lease.
(e) There are no pending or to the Seller's
Knowledge, threatened actions, suits, proceedings or
investigations before any court or other governmental
authority to which the Seller or the Property is or would
be a party before any court or other governmental
authority except as set forth on Schedule 8 hereto.
(f) Except as disclosed on Schedule 9 hereto, since
the date the Seller acquired legal and beneficial title
to the Property (i) to the Seller's Knowledge, neither
Seller nor any third party has engaged in the generation,
use, manufacture, treatment, storage or disposal of any
Hazardous Substance (as hereinafter defined) on the
Property in violation of Applicable Environmental Law (as
hereinafter defined), and (ii) neither Seller, nor to the
Seller's Knowledge, any third party has received any
written notice from any governmental authority having
jurisdiction over the Property of any violation of
Applicable Environmental Law with respect to the
Property. Disclosure of any matter on Schedule 9 hereto
shall not constitute any admission by Seller that such
matter was material or a violation of Applicable
Environmental Law. As used in this Agreement, the term
"Hazardous Substance" shall mean any substance, chemical
or waste that is currently listed as hazardous, toxic or
dangerous under Applicable Environmental Law. As used in
this Agreement, the term "Applicable Environmental Law"
shall mean the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C.
9601 et seq.; the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. 6901, et seq.; the Water Pollution
Control Act, 33 U.S.C. 1251 et seq.; the Clean Air
Act, 42 U.S.C. 7401 et seq.; and the Toxic Substances
Control Act, 15 U.S.C. 2601 et seq.; as the foregoing
have been amended from time to time to the date of this
Agreement and the regulations thereunder; and any similar
state and local laws and ordinances and the regulations
implementing such statutes in <PAGE>effect on the date
hereof imposing liability or establishing standards of
conduct for environmental protection.
(g) There is no marketing fund or merchant's
association for the Property.
(h) There are no fixed or contingent leasing
commissions due now or at anytime in the future that are
not contained in the Leases delivered to the Purchaser.
(i) To the Seller's Knowledge, each REA is in full
force and effect and has not been modified or
supplemented except as set forth in a recorded
instrument. To the Seller's Knowledge, there is no
default under any REA of either the Seller or any other
party to any REA, and no state of facts which with notice
or the passage of time would ripen into a default. To
the Seller's Knowledge, no unperformed work or
installations or unpaid amounts is required of or due as
of the Closing Date from the Seller under any REA. To
the extent that any representations of the Seller in this
Section 6 are expressly confirmed by REA estoppels
referred to in Section 8(q) or tenant estoppels referred
to in Section 4.3, the Seller shall be released from any
post-closing liability thereunder.
(j) Seller has not previously assigned, encumbered,
conveyed or otherwise transferred any of the Leases, the
Licenses, the Contracts, the Personal Property or any of
the other Property covered by the A&A Agreements, except
pursuant to collateral assignments which secure financing
to be paid at or prior to the Closing, and which shall be
discharged and released at or prior to Closing.
(k) Seller has not received written notice from any
governmental authority, mortgagee, tenant, insurer or
other party (i) alleging any current violation with
respect to the Property of any zoning, environmental or
other code, ordinance, law or regulation or order of any
governmental authority, the requirements of any Permitted
Encumbrance or the recommendations of any insurance
carrier or Board of Fire Underwriters affecting the
Property, or that any investigation has been commenced,
or is contemplated, regarding any possible violation of
any of the same; or (ii) asserting that Seller is
required to perform work at the Property.
6.1. Survival of Representations.
The representations and warranties of the Seller set
forth in this Section 6 (i) shall be true, accurate and
correct in all material respects upon the execution of
this <PAGE>Agreement and shall be deemed to be repeated
on and as of the Closing Date (except as they relate only
to an earlier date), and (ii) shall remain operative and
shall survive the Closing and the execution and delivery
of the Deed for a period of six (6) months following the
Closing Date and then shall expire, and no action or
claim based thereon shall be commenced after such period.
6.2. Discovery of Untrue Representation.
If at or prior to the Closing, (i) the Purchaser
shall become aware that any of the representations or
warranties made herein by the Seller is untrue,
inaccurate or incorrect in any material respect and shall
give the Seller notice thereof at or prior to the
Closing, or (ii) the Seller shall notify the Purchaser
that a representation or warranty made herein by the
Seller is untrue, inaccurate or incorrect, then the
Seller may, in its sole discretion, elect by notice to
the Purchaser to adjourn the Closing one or more times
for up to thirty (30) days in the aggregate in order to
cure or correct such untrue, inaccurate or incorrect
representation or warranty. If any such representation
or warranty is not cured or corrected by the Seller on or
before the Closing Date (whether or not the Closing is
adjourned as provided above), then the Purchaser, as its
sole remedy for such inability of Seller, shall elect
either (i) to waive such misrepresentations or breaches
of warranties and consummate the transactions
contemplated hereby without any reduction of or credit
against the Purchase Price, or (ii) to terminate this
Agreement by notice given to Seller pursuant to the
provisions of Section 14.1. In the event the Closing
occurs, the Purchaser hereby expressly waives,
relinquishes and releases any right or remedy available
to it at law, in equity or under this Agreement to make a
claim against the Seller for damages that the Purchaser
may incur, or to rescind this Agreement and the
transactions contemplated hereby, as the result of any of
the Seller's representations or warranties being untrue,
inaccurate or incorrect if the Purchaser knew that such
representation or warranty was untrue, inaccurate or
incorrect and knew the extent of the breach at the time
of the Closing and the Purchaser nevertheless closes
title hereunder.
6.3. Limited Nature of Representations.
This Agreement, as written, contains all the terms
of the agreement entered into between the parties as of
the date hereof, and the Purchaser acknowledges that
neither the Seller nor any of the Seller's Affiliates,
nor any of their agents or representatives, nor Broker
has made any representations or held out any inducements
to the Purchaser, and the Seller hereby specifically
disclaims any representation, oral or written, past,
present <PAGE>or future, other than those specifically
set forth in this Section 6, Section 12 or elsewhere in
this Agreement or the Conveyance Documents. The
Purchaser acknowledges that the Seller, pursuant to the
terms of this Agreement, has afforded the Purchaser the
opportunity for full and complete investigations,
examinations and inspections of the Property and all
Property Information. The Purchaser acknowledges and
agrees that, subject to the representations and
warranties set forth elsewhere in this Agreement or the
Conveyance Documents, (i) the Property Information
delivered or made available to the Purchaser and the
Purchaser's Representatives by the Seller or the Seller's
Affiliates, or any of their agents or representatives may
have been prepared by third parties and may not be the
work product of the Seller and/or any of the Seller's
Affiliates; (ii) neither the Seller nor any of the
Seller's Affiliates has made any independent
investigation or verification of, or has any knowledge
of, the accuracy or completeness of, any Property
Information prepared by third parties; (iii) the
Purchaser is relying solely on its own investigations,
examinations and inspections of the Property and those of
the Purchaser's Representatives and on the
representations and warranties of Seller contained herein
and in the Conveyance Documents and is not relying in any
way on the Property Information furnished by the Seller
or any of the Seller's Affiliates, or any of their agents
or representatives; and (iv) the Seller expressly
disclaims any representations or warranties with respect
to the accuracy or completeness of the Property
Information, and, subject to the representations and
warranties set forth in this Agreement and the Conveyance
Documents, the Purchaser releases the Seller and the
Seller's Affiliates, and their agents and
representatives, from any and all liability with respect
to the Property Information subject to such
representations and warranties. The Purchaser or anyone
claiming by, through or under the Purchaser, hereby fully
and irrevocably releases the Seller and the Seller's
Affiliates, and their agents and representatives, from
any and all claims that it may now have or hereafter
acquire against any of the Seller or the Seller's
Affiliates, or their agents or representatives for any
cost, loss, liability, damage, expense, action or cause
of action, whether foreseen or unforeseen, arising from
or related to the presence of environmentally hazardous,
toxic or dangerous substances, or any other conditions
(whether patent, latent or otherwise) affecting the
Property, except for claims against the Seller based upon
any obligations and liabilities of the Seller expressly
provided in this Agreement and the documents to be
delivered to the Purchaser pursuant to Sections 8(a),
8(b), 8(c), 8(d), 8(f), 8(i) (to the extent that such
deliveries under Section 8(i) consist of <PAGE>Landlord
Estoppel Certificates), 8(n), 8(o) and any other
documents delivered at the Closing that by their terms
contain provisions that survive the Closing
(collectively, the "Conveyance Documents").
The provisions of this Section 6 shall survive the
Closing.
7. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Seller as
follows:
(a) The Purchaser is a duly formed and validly
existing limited liability company organized under the
laws of the State of Connecticut, and is qualified under
the laws of the State of Connecticut to conduct business
therein on the date hereof.
(b) The Purchaser has the full, legal right, power,
authority and financial ability to execute and deliver
this Agreement and all documents now or hereafter to be
executed by it pursuant to this Agreement (collectively,
the "Purchaser's Documents"), to consummate the
transactions contemplated hereby, and to perform its
obligations hereunder and under the Purchaser's
Documents.
(c) This Agreement and the Purchaser's Documents do
not and will not contravene any provision of the
operating agreement of the Purchaser, any judgment,
order, decree, writ or injunction issued against the
Purchaser, or any provision of any Laws applicable to the
Purchaser. The consummation of the transactions
contemplated hereby will not result in a breach or
constitute a default or event of default by the Purchaser
under any agreement to which the Purchaser or any of its
assets are subject or bound and will not result in a
violation of any Laws applicable to the Purchaser.
(d) There are no pending actions, suits,
proceedings or investigations to which the Purchaser is a
party before any court or other governmental authority
which may have an adverse impact on the transactions
contemplated hereby.
The representations and warranties of the Purchaser set
forth in this Section 7 and elsewhere in this Agreement shall
be true, accurate and correct in all material respects upon
the execution of this Agreement, shall be deemed to be
repeated on and as of the Closing Date (except as they relate
only to an earlier date) and shall survive the Closing for six
(6) months.
<PAGE>8. Documents to be Delivered by the Seller at
Closing.
At the Closing, the Seller shall execute, acknowledge
and/or deliver, as applicable, the following to the Purchaser:
(a) A special warranty deed or its equivalent (the
"Deed") conveying title to the Property in the form of
Exhibit A annexed hereto and made a part hereof.
(b) The Assignment and Assumption of Leases and
Security Deposits in the form of Exhibit B annexed hereto
and made a part hereof assigning all of the Seller's
right, title and interest, if any, in and to the Leases
in effect on the Closing Date, all guarantees thereof and
the security deposits thereunder which are in the
possession of or received by the Seller or that were in
the possession of or received by the Seller and are now
unaccounted for (the "Lease Assignment").
(c) The Assignment and Assumption of Contracts and
Licenses in the form of Exhibit C annexed hereto and made
a part hereof (the "Contract and License Assignment")
assigning all of the Seller's right, title and interest,
if any, in and to (i) all of the assignable licenses,
permits, certificates, approvals, authorizations and
variances issued for or with respect to the Property by
any governmental authority (collectively, the
"Licenses"), and (ii) all contracts listed on Schedule 3
hereto relating to the operation of the Property
(collectively, the "Contracts") not terminated by Seller
pursuant to the terms of this Agreement.
(d) The Assignment and Assumption of Intangible
Property in the form of Exhibit D annexed hereto and made
part hereof assigning all of the Seller's right, title
and interest, if any, in and to all intangible property
owned by the Seller with respect to the operation of the
Property listed on Schedule 10 annexed hereto and made a
part hereof, including, without limitation, the trade
names Deptford Crossing Shopping Center (the "Intangible
Property Assignment") (the Lease Assignment, the Contract
and License Assignment and the Intangible Property
Assignment are herein referred to collectively as the "A
& A Agreements").
(e) To the extent in the Seller's possession or
control, executed counterparts of all Leases and New
Leases and any amendments, guarantees and other documents
relating thereto, together with a schedule of all tenant
security deposits thereunder which are in the possession
of or received by the Seller or that were in the
possession of or received by the Seller and are now
unaccounted for.
<PAGE>(f) A bill of sale in the form of Exhibit E
annexed hereto and made a part hereof (the "Bill of
Sale") conveying, transferring and selling to the
Purchaser all right, title and interest of the Seller in
and to all Personal Property.
(g) Notices to the tenants of the Property in the
form of Exhibit F annexed hereto and made a part hereof
advising the tenants of the sale of the Property to the
Purchaser and directing that rents and other payments
thereafter be sent to the Purchaser or as the Purchaser
may direct.
(h) A certificate of a general partner of the
Seller that the Seller has taken all necessary
partnership action to authorize the execution, delivery
and performance of this Agreement and the consummation of
the transaction contemplated hereby.
(i) Executed originals of all Tenant Estoppel
Certificates and Landlord Estoppel Certificates required
by Section 4.3 and any other Tenant Estoppel
Certificates, received by the Seller from tenants prior
to the Closing Date and not previously delivered to the
Purchaser; none of which shall contain any information
inconsistent with the representations and warranties of
Seller contained herein or any information the knowledge
(when aggregated with all other information obtained from
the Tenant Estoppel Certificates and the Landlord
Estoppel Certificates) of which materially impairs the
value of the Property to Purchaser or its lender
providing financing for the Property. If Seller delivers
a Landlord Estoppel Certificate at the Closing and
Purchaser subsequently receives a Tenant Estoppel
Certificate from the corresponding tenant, the Seller may
substitute the Tenant Estoppel Certificate for the
Landlord Estoppel Certificate to the extent the Tenant
Estoppel Certificate covers the same matters as, and does
not contain additional adverse matters not contained in,
the Landlord Estoppel Certificate. In this event, the
Purchaser shall return the original Landlord Estoppel
Certificate to the Seller and it shall be considered null
and void. This Section 9(i) shall survive the Closing.
(j) To the extent in the Seller's possession or
control and not already located at a space designated by
the Seller at the Property, keys to all entrance doors
to, and equipment and utility rooms located in, the
Property.
<PAGE>(k) To the extent in the Seller's possession
or control and not already located at a space designated
by the Seller at the Property, all Licenses.
(l) To the extent in the Seller's possession or
control, executed counterparts of all Contracts and all
warranties in connection therewith which are in effect on
the Closing Date and which are assigned by the Seller.
(m) To the extent in the Seller's possession or
control and not located at a space designated by the
Seller at the Property, plans and specifications of the
Buildings.
(n) The Transfer Tax Returns, if any.
(o) A "FIRPTA" affidavit sworn to by the Seller in
the form of Exhibit H annexed hereto and made a part
hereof. The Purchaser acknowledges and agrees that upon
the Seller's delivery of such affidavit, the Purchaser
shall not withhold any portion of the Purchase Price
pursuant to Section 1445 of the Internal Revenue Code of
1986, as amended, and the regulations promulgated
thereunder.
(p) The Seller shall use all reasonable efforts to
obtain from each tenant an "SNDA" in such form as may be
reasonably requested by the Purchaser's lender that is
providing financing with respect to the Property.
(q) The Seller shall use all reasonable efforts to
obtain from each person or entity owning real property
(other than the Property) that is benefited by the rights
and easements or is entitled to enforce any restrictions
or obligations created or contemplated under the
Declaration of Easements and Restrictions dated August
15, 1989, recorded in Deed Book 1917, Page 180 or under
any other reciprocal easement affecting the Property
identified by Purchaser or its lender providing financing
for the Property (collectively, the "REAs") an estoppel
certificate in such form as may be reasonably requested
by the Purchaser's lender that is providing financing
with respect to the Property, without discrepancy,
adverse claim or exception. Notices to other parties
subject to REAs advising them of the sale of the Property
to the Purchaser.
(r) A letter dated after the date hereof from the
New Jersey Department of Environmental Protection stating
that the sale of the Property hereunder is not subject to
the provisions of ISRA.
<PAGE>(s) All other documents the Seller is required
to deliver pursuant to the provisions of this Agreement
or is otherwise reasonably required by the Title Company
or the Purchaser's lender that is providing financing
with respect to the Property.
9. Documents to be Delivered by the Purchaser at Closing.
At the Closing, the Purchaser shall execute, acknowledge
and/or deliver, as applicable, the following to the Seller:
(a) The cash portion of the Purchase Price payable
at the Closing pursuant to Section 2, subject to
apportionments, credits and adjustments as provided in
this Agreement.
(b) The Bill of Sale.
(c) If the Purchaser is a corporation, (i) copies
of the certificate of incorporation and by-laws of the
Purchaser and of the resolutions of the board of
directors of the Purchaser authorizing the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated by this
Agreement certified as true and correct by the Secretary
or Assistant Secretary of the Purchaser; (ii) a good
standing certificate issued by the state of incorporation
of the Purchaser, dated within thirty (30) days of the
Closing Date; (iii) a qualification to do business
certificate issued by the State of New Jersey, dated
within thirty (30) days of the Closing Date; and (iv) an
incumbency certificate executed by the Secretary or
Assistant Secretary of the Purchaser with respect to
those officers of the Purchaser executing any documents
or instruments in connection with the transactions
contemplated herein.
(d) If the Purchaser is a partnership, (i) copies
of the Purchaser's partnership agreement and partnership
certificate (if applicable) and, if required by law or
its partnership agreement, copies of partnership
resolutions and/or consents of the partners authorizing
the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by
this Agreement, all certified as true and correct by the
managing general partner of the Purchaser, or in the
absence thereof, then by all of the Purchaser's general
partners; (ii) a legal existence certificate issued by
the state of incorporation of the Purchaser, dated within
thirty (30) days of the Closing Date; and (iii) a
qualification to do business certificate issued by the
State of New Jersey, dated within thirty (30) days of the
Closing Date.
<PAGE>(e) If the Purchaser is a limited liability
company, (i) copies of resolutions of the manager
authorizing the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement, all certified as true and
correct by the manager of the Purchaser; (ii) a good
standing certificate issued by the state of incorporation
of the Purchaser, dated within thirty (30) days of the
Closing Date; and (iii) a qualification to do business
certificate issued by the State of New Jersey, dated
within thirty (30) days of the Closing Date.
(f) The A & A Agreements.
(g) The Transfer Tax Return, if any.
(h) All other documents the Purchaser is required
to deliver pursuant to the provisions of this Agreement
or is otherwise reasonably required by the Title Company.
10. Operation of the Property prior to the Closing Date.
Between the date hereof and the Closing Date, the Seller
shall, at its own expense, materially comply with all its
obligations under all Leases and Contracts and all easement
agreements benefiting the Property and, to the extent not
included in the foregoing, all Permitted Exceptions. The
Seller shall operate the Property in a manner consistent with
past practice and materially in accordance with its insurance
company's requirements and applicable federal, state and local
laws, ordinances and requirements and Seller shall maintain
the Property in the same condition as on the date hereof,
reasonable wear and tear, casualty and condemnation (subject
to the relevant provisions of Section 12) excepted, and shall
maintain its existing insurance against fire and other
casualty.
10.1. New Leases.
Prior to the expiration of Due Diligence Period, the
Seller may not modify, extend, renew, cancel or permit
the expiration of any Lease or enter into any proposed
Lease of all or any portion of the Property without the
Purchaser's consent, which consent shall not be
unreasonably withheld, delayed or conditioned and shall
be given or denied, with the reasons for any such denial,
within five (5) business days after receipt by the
Purchaser of the Seller's notice requesting the
Purchaser's consent to the proposed action relating to
such existing or proposed Lease, together with a copy of
such proposed Lease and other material information in
Seller's possession regarding New Lease Expenses. If the
Purchaser fails to reply to the Seller's request for
consent in a notice given within such period or if the
Purchaser expressly denies its consent but fails to
provide the Seller <PAGE>with the reasons for such
denial, the Purchaser's consent shall be deemed to have
been granted. After the expiration of Due Diligence
Period, the Seller may not modify, extend, renew, cancel
or permit the expiration of any Lease or enter into any
proposed Lease of all or any portion of the Property.
10.1.1. New Lease Expenses.
If after the date of this Agreement the Seller
enters into any Leases, or if there is any extension
or renewal of any Leases, whether or not such Leases
provide for their extension or renewal, or any
expansion or modification of any Leases (each, a
"New Lease"), the Seller shall keep accurate records
of all expenses (collectively, "New Lease Expenses")
incurred in connection with each New Lease,
including, without limitation, the following: (i)
brokerage commissions and fees relating to such
leasing transaction, (ii) expenses incurred for
repairs, improvements, equipment, painting,
decorating, partitioning and other items to satisfy
the tenant's requirements with regard to such
leasing transaction, (iii) reimbursements to the
tenant for the cost of any of the items described in
the preceding clause (ii), and (iv) reasonable legal
fees for services in connection with the preparation
of documents and other services rendered in
connection with the effectuation of the leasing
transaction, (v) rent concessions relating to the
demised space provided the tenant has the right to
take possession of such demised space during the
period of such rent concessions, and (vi) expenses
incurred for the purpose of satisfying or
terminating the obligations of a tenant under a New
Lease to the landlord under another lease (whether
or not such other lease covers space in the
Property).
10.1.2. Allocation of New Lease Expenses.
The New Lease Expenses for each New Lease
allocable to and payable by the Seller shall be
determined by multiplying the amount of such New
Lease Expenses by a fraction, the numerator of which
shall be the number of days contained in that
portion, if any, of the term of such New Lease
commencing on the date on which the tenant
thereunder shall have commenced to pay fixed rent
("Rent Commencement Date") and expiring on the date
immediately preceding the Closing Date, and the
denominator of which shall be the total number of
days contained in the period commencing on the Rent
Commencement Date and expiring on the date of the
scheduled expiration of the term of such New Lease,
without provision for any optional extensions or
renewals, <PAGE>and the remaining balance of the New
Lease Expenses for each New Lease shall be allocable
to and payable by the Purchaser by addition to the
Purchase Price. At the Closing, the Purchaser shall
reimburse the Seller for all New Lease Expenses
theretofore paid by the Seller, if any, in excess of
the portion of the New Lease Expenses allocated to
the Seller pursuant to the provisions of the
preceding sentence. For purposes of this Section
10.1.2, the Rent Commencement Date under a renewal,
extension, expansion or modification of a Lease
shall be deemed to be (i) in the case of a renewal
or extension (whether effective prior to or after
the Closing), the first date during such renewal or
extension period after the originally scheduled
expiration of the term of such Lease on which the
tenant under such Lease commences to pay fixed rent,
(ii) in the case of an expansion (whether effective
prior to or after the Closing), the date on which
the tenant under such Lease commences to pay fixed
rent for the additional space, and (iii) in the case
of a modification not also involving a renewal,
extension or expansion of such Lease, the effective
date of such modification agreement. The provisions
of this Section 10.1.2 shall survive the Closing.
10.2. Termination of Existing Leases.
Notwithstanding anything to the contrary contained
in this Agreement, the Seller reserves the right, but is
not obligated, to institute summary proceedings against
any tenant or terminate any Lease as a result of a
default by the tenant thereunder prior to the expiration
of the Due Diligence Period. After the expiration of the
Due Diligence Period, the Seller shall not institute
summary proceedings against any tenant or terminate any
Lease as a result of a default by the tenant thereunder.
The Seller makes no representations and assumes no
responsibility with respect to (i) the continued
occupancy of the Property or any part thereof by any
tenant and (ii) the fulfillment by any tenant of its
obligations under any Lease. The removal of a tenant
whether by summary proceedings or otherwise prior to the
expiration of the Due Diligence Period shall not give
rise to any claim on the part of the Purchaser. Further,
the Purchaser agrees that it shall not be grounds for the
Purchaser's refusal to close this transaction that any
tenant is a holdover tenant or in default under its Lease
pursuant to any economic or non-economic terms of its
Lease on the Closing Date and the Purchaser shall accept
title subject to such holding over or default without
credit against, or reduction of, the Purchase Price.
<PAGE>10.3. Contracts.
Prior to expiration of the Due Diligence Period, the
Seller may not cancel, modify, extend, renew or permit
the expiration of Contracts or enter into any new
Contract without the Purchaser's prior consent, which
consent shall not be unreasonably withheld or delayed,
and if withheld, the Purchaser shall promptly give the
Seller a notice stating the reasons therefor. If the
Purchaser fails to reply within five (5) days to the
Seller's request for consent in a notice given pursuant
to the immediately preceding sentence or if the Purchaser
expressly denies its consent but fails to provide the
Seller with the reasons for such denial, the Purchaser's
consent shall be deemed to have been granted. After the
expiration of the Due Diligence Period, the Seller shall
not modify, extend, renew or cancel any Contracts, or
enter into any new Contract without the Purchaser's prior
consent in each instance, in its sole and absolute
discretion.
11. Broker.
The Purchaser and the Seller represent and warrant to
each other that Cushman & Wakefield of Pennsylvania, Inc. (the
"Broker") is the sole broker with whom they have dealt in
connection with the Property and the transactions described
herein. The Seller shall be liable for, and shall indemnify
the Purchaser against, all brokerage commissions or other
compensation due to the Broker arising out of the transaction
contemplated in this Agreement, which compensation shall be
paid subject and pursuant to a separate agreement between the
Seller and the Broker. Each party hereto agrees to indemnify,
defend and hold the other harmless from and against any and
all claims, causes of action, losses, costs, expenses, damages
or liabilities, including reasonable attorneys' fees and
disbursements, which the other may sustain, incur or be
exposed to, by reason of any claim or claims by any broker,
finder or other person, except (in the case of the Purchaser
as indemnitor hereunder) the Broker, for fees, commissions or
other compensation arising out of the transactions
contemplated in this Agreement if such claim or claims are
based in whole or in part on dealings or agreements with the
indemnifying party. The obligations and representations and
warranties contained in this Section 11 shall survive the
termination of this Agreement and the Closing.
12. Casualty; Condemnation.
12.1. Damage or Destruction.
If a "material" part (as hereinafter defined) of the
Property is damaged or destroyed by fire or other
casualty, the Seller shall notify the Purchaser of such
fact and the Purchaser shall have the option to terminate
this Agreement upon notice to the Seller given not later
than ten (10) business days after receipt of the Seller's
notice. If (i) the Purchaser does not elect to
<PAGE>terminate this Agreement as to the damaged
Property, or (ii) there is damage to or destruction of an
"immaterial" part ("immaterial" is herein deemed to be
any damage or destruction which is not "material", as
such term is hereinafter defined) of the Property, the
Purchaser shall close title as provided in this Agreement
and, at the Closing, the Seller shall, unless the Seller
has repaired such damage or destruction prior to the
Closing, (x) pay over to the Purchaser the proceeds of
any insurance collected by the Seller plus any deductible
thereunder and the amount of any self insurance less the
amount of all reasonable costs incurred by the Seller in
connection with the repair of such damage or destruction,
and (y) assign and transfer to the Purchaser all right,
title and interest of the Seller in and to any
uncollected insurance proceeds which the Seller may be
entitled to receive from such damage or destruction. A
"material" part of the Property shall be deemed to have
been damaged or destroyed if the cost of repair or
replacement shall be five percent (5%) or more of the
Purchase Price.
12.2. Condemnation.
If, prior to the Closing Date, all or any
"significant" portion (as hereinafter defined) of the
Property is taken by eminent domain or condemnation (or
is the subject of a pending taking which has not been
consummated), the Seller shall notify the Purchaser of
such fact and the Purchaser shall have the option to
terminate this Agreement upon notice to the Seller given
not later than ten (10) business days after receipt of
the Seller's notice. If the Purchaser does not elect to
terminate this Agreement, or if an "insignificant"
portion ("insignificant" is herein deemed to be any
taking which is not "significant", as such term is herein
defined) of the Property is taken by eminent domain or
condemnation, at the Closing the Seller shall assign and
turnover, and the Purchaser shall be entitled to receive
and keep, all awards or other proceeds for such taking by
eminent domain or condemnation. A "significant" portion
of the Property means (i) any portion of any building on
the Land, (ii) a portion of the parking areas if the
taking thereof reduces the remaining available number of
parking spaces below the minimum legally required, or
required under any Lease or all Leases in the aggregate,
(iii) a portion of the Land if the taking thereof
materially impairs the ingress thereto or egress
therefrom, or (iv) any currently used driveway on the
Land providing ingress thereto or egress therefrom.
12.3. Termination.
If the Purchaser effectively terminates this
Agreement pursuant to Section 12.1 or 12.2, this
Agreement shall be <PAGE>terminated and the rights of the
parties shall be the same as if notice of termination
were given pursuant to Section 14.1.
13. Conditions Precedent to Closing.
13.1. Conditions Precedent to the Purchaser's
Obligations to Perform.
The Purchaser's obligation under this Agreement to
purchase the Property is subject to the fulfillment of
each of the following conditions: (i) the representations
and warranties of the Seller contained herein shall be
materially true, accurate and correct as of the Closing
Date except to the extent they relate only to an earlier
date; (ii) the Seller shall be ready, willing and able to
deliver title to the Property in accordance with the
terms and conditions of this Agreement; (iii) the Seller
shall have delivered all the documents and other items
required pursuant to Section 8, and shall have performed
all other covenants, undertakings and obligations, and
complied with all conditions required by this Agreement
to be performed or complied with by the Seller at or
prior to the Closing.
13.2. Conditions Precedent to the Seller's
Obligations to Perform.
The Seller's obligation under this Agreement to
sell the Property to the Purchaser is subject to the
fulfillment of each of the following conditions: (i) the
representations and warranties of the Purchaser contained
herein shall be materially true, accurate and correct as
of the Closing Date; (ii) the Purchaser shall have
delivered the funds required hereunder and all the
documents to be executed by the Purchaser set forth in
Section 9; (iii) all consents and approvals of
governmental authorities and parties to agreements to
which the Purchaser is a party or by which the
Purchaser's assets are bound that are required with
respect to the consummation of the transactions
contemplated by this Agreement shall have been obtained
and copies thereof shall have been delivered to the
Seller at or prior to the Closing; and (iv) the
additional matters set forth in Schedule 11 annexed
hereto and made a part hereof shall have occurred or been
delivered to the Seller, as applicable, at or prior to
the Closing.
13.3.
Remedies Upon Failure to Satisfy Conditions.
In the event that any condition contained in
Sections 13.1 or 13.2 is not satisfied, the party
entitled to the satisfaction of such condition as a
condition to its obligation to close title shall have as
its sole remedy hereunder the right to elect to (i) waive
such unsatisfied condition whereupon title shall close as
provided in this Agreement or (ii) proceed as provided in
Section 14 hereof.
<PAGE>14. Remedies.
14.1. Seller's Inability to Perform.
If the Closing fails to occur by reason of the
Seller's inability to perform its obligations under this
Agreement which has not been waived pursuant to Section
13.3, then the Purchaser, as its sole remedy for such
inability of the Seller, may terminate this Agreement by
notice to the Seller. If the Purchaser elects to
terminate this Agreement, then this Agreement shall be
terminated and neither party shall have any further
rights, obligations or liabilities hereunder, except as
otherwise expressly provided herein (collectively, the
"Surviving Obligations"), and the Deposit shall be
thereupon immediately returned to Purchaser. Except as
set forth in this Section 14.1, the Purchaser hereby
expressly waives, relinquishes and releases any other
right or remedy available to it at law, in equity or
otherwise by reason of the Seller's inability, through no
fault of the Seller, to perform its obligations
hereunder. Notwithstanding anything to the contrary
herein, if the Seller's inability to perform its
obligations under this Agreement is a result of any
action of, or failure to act by, the Purchaser or any of
the Purchaser's Representatives, in breach of this
Agreement, the Purchaser shall not be relieved of its
obligations under this Agreement and Purchaser shall not
be entitled to any right or remedy provided in this
Section 14.1 or elsewhere in this Agreement.
14.2. Purchaser's Failure to Perform.
In the event the Closing fails to occur by reason of
the Purchaser's failure or refusal to perform its
obligations hereunder, then the Seller may terminate this
Agreement by notice to the Purchaser. If the Seller
elects to terminate this Agreement, then this Agreement
shall be terminated and the Seller may retain the Deposit
as liquidated damages for all loss, damage and expenses
suffered by the Seller, it being agreed that the Seller's
damages are impossible to ascertain, and neither party
shall have any further rights, obligations or liabilities
hereunder, except for the Surviving Obligations. Nothing
contained herein shall limit or restrict the Seller's
ability to pursue any rights or remedies it may have
against the Purchaser with respect to the Purchaser's
obligations under Section 4.1(g). Except as set forth in
this Section 14.2, the Seller hereby expressly waives,
relinquishes and releases any other right or remedy
available to them at law, in equity or otherwise by
reason of the Purchaser's default hereunder or the
Purchaser's failure or refusal to perform its obligations
hereunder. Notwithstanding anything to the contrary
herein, if the Purchaser's default or the Purchaser's
failure or refusal to perform its obligations under this
Agreement is a result of <PAGE>any action of, or failure
to act by, the Seller or any of the Seller's Affiliates,
the Seller shall not be relieved of its obligations under
this Agreement and the Seller shall not be entitled to
any right or remedy provided in this Section 14.2 or
elsewhere in this Agreement.
14.3. Seller's Failure to Perform.
If the Closing fails to occur by reason of the
Seller's failure or refusal to perform its obligations
hereunder which has not been waived by the Purchaser,
then the Purchaser, as its sole remedy hereunder, may (i)
terminate this Agreement by notice to the Seller and the
Deposit shall be thereupon immediately returned to
Purchaser, or (ii) seek specific performance from the
Seller. As a condition precedent to the Purchaser
exercising any right it may have to bring an action for
specific performance as the result of the Seller's
failure or refusal to perform their obligations
hereunder, the Purchaser must commence such an action
within ninety (90) days after the occurrence of such
default. The Purchaser agrees that its failure to timely
commence such an action for specific performance within
such ninety (90) day period shall be deemed a waiver by
it of its right to commence such an action.
Notwithstanding anything to the contrary herein, if the
Seller's failure or refusal to perform its obligations
under this Agreement is a result of any action of, or
failure to act by Purchaser or any of Purchaser's
Representatives in breach of this Agreement, the
Purchaser shall not be relieved of its obligations under
this Agreement and Purchaser shall not be entitled to any
right or remedy provided in this Section 14.3 or
elsewhere in this Agreement.
Nothing in this Section 14 shall be deemed a waiver
of any claim for intentional misrepresentation or fraud.
15. Escrow.
The Escrow Agent shall hold the Letter of Credit and the
Cash Downpayment, as applicable, and all interest accrued
thereon, if any, (collectively, the "Deposit") in escrow and
shall dispose of the Deposit only in accordance with the
provisions of that certain Escrow Agreement of even date
herewith by and among the Escrow Agent, the Purchaser and the
Seller relating to the Property (the "Escrow Agreement") in
the form of Exhibit I hereto.
The obligation to maintain the Letter of Credit shall
expire on the earlier of (i) the Seller's receipt of a
Purchaser's Termination Notice timely given as contemplated by
Section 4.2 hereof, (ii) the receipt by the Escrow Agent of
the Cash Downpayment as contemplated by Section 2(a) hereof,
(iii) the receipt by the Seller of the balance of the Purchase
Price (i.e., the <PAGE>Purchase Price minus the credit set
forth in Section 2(a) hereof), plus or minus the
apportionments set forth in Section 3 hereof, or (iv) the
termination of this Agreement by the Purchaser pursuant to
Section 5.3, 6.2, 12.1, 12.2, 14.1 or 14.3 hereof. Within one
(1) business day after the date on which the obligation to
maintain the Letter of Credit expires, the Escrow Agent will
return the Letter of Credit to the issuing bank together with
a letter to the issuing bank instructing the issuing bank to
cancel the Letter of Credit. The Escrow Agent shall draw on
the Letter of Credit, without the requirement that Escrow
Agent provide prior notice thereof to the Purchaser, if the
Purchaser fails to renew the Letter of Credit or substitute
the Cash Downpayment therefor at least ten (10) days prior to
the expiration of the then existing Letter of Credit. In such
event, the Escrow Agent will deposit and hold the drawn funds
in accordance with the terms of Escrow Agreement as if such
funds were the Cash Downpayment.
Simultaneously with their execution and delivery of this
Agreement, the Purchaser and the Seller shall furnish the
Escrow Agent with their true Federal Taxpayer Identification
Numbers so that the Escrow Agent may file appropriate income
tax information returns with respect to any interest earned on
or credited to the Deposit. The party entitled to the
economic benefit of the Deposit representing interest earned
on the Cash Downpayment shall be the party responsible for the
payment of any tax due thereon.
The provisions of the Escrow Agreement shall survive the
termination of this Agreement and the Closing.
16. Notices.
All notices, elections, consents, approvals, demands,
objections, requests or other communications which the Seller
or the Purchaser may be required or desire to give pursuant
to, under or by virtue of this Agreement must be in writing
and (i) delivered by hand to the addresses set forth below, or
(ii) (a) sent by express mail or courier (for next business
day delivery), or (b) sent by certified or registered mail,
return receipt requested with proper postage prepaid,
addressed as follows:
If to the Seller:
Deptford Crossing Associates, L.P.
c/o Dean Witter Realty Inc.
Two World Trade Center
64th Floor
New York, New York 10048
Attention: Robert B. Austin
<PAGE>
with a copy to:
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
Attention: Vincent M. Sacchetti, Esq.
If to the Purchaser:
The Hutensky Group, LLC
280 Trumbull Street
2nd Floor
Hartford, Connecticut 06103-3504
Attention: Brad M. Hutensky
with a copy to:
Dechert Price & Rhoads
90 State House Square
Hartford, Connecticut 06103-3702
Attention: Timothy J. Boyce, Esq.
The Seller or the Purchaser may designate another
addressee or change its address for notices and other
communications hereunder by a notice given to the other
parties in the manner provided in this Section 16. A notice
or other communication sent in compliance with the provisions
of this Section 16 shall be deemed given and received (i) if
by hand, at the time of the delivery thereof to the receiving
party at the address of such party set forth above (or to such
other address as such party has designated as provided above),
(ii) if sent by express mail or overnight courier, on the date
it is delivered to the other party, or (iii) if sent by
registered or certified mail, on the third business day
following the day such mailing is made.
17. Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing, all
Property Information shall be kept strictly confidential and
shall not, without the prior consent of the Seller, be
disclosed by the Purchaser or the Purchaser's Representatives,
in any manner whatsoever, in whole or in part, and will not be
used by the <PAGE>Purchaser or the Purchaser's
Representatives, directly or indirectly, for any purpose other
than evaluating the Property. Moreover, the Purchaser agrees
that, prior to the Closing, the Property Information will be
transmitted only to the Purchaser's Representatives and
lenders providing financing for the Property (i) who need to
know the Property Information for the purpose of evaluating
the Property, and who are informed by the Purchaser of the
confidential nature of the Property Information, and (ii) who
agree to be bound by the terms of this Section 17 and Section
6.3. The provisions of this Section 17 shall in no event
apply to Property Information which is a matter of public
record or public knowledge and shall not prevent the Purchaser
from complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting
requirements, or from discussing the substance or any relevant
details of the transactions contemplated in this Agreement
with any of its attorneys, accountants, professional
consultants or potential lenders, as the case may be.
17.1. Press Releases.
The Purchaser and Seller, for the benefit of each
other, hereby agree that between the date hereof and the
Closing Date, they will not release or cause or permit to
be released any press notices, publicity (oral or
written) or advertising promotion relating to, or
otherwise announce or disclose or cause or permit to be
announced or disclosed, in any manner whatsoever, the
terms, conditions or substance of this Agreement or the
transactions contemplated herein, without first obtaining
the written consent of the other party hereto. It is
understood that the foregoing shall not preclude either
party from discussing the substance or any relevant
details of the transactions contemplated in this
Agreement with any of its attorneys, accountants,
professional consultants or potential lenders, as the
case may be, or prevent either party hereto from
complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting
requirements. If the Purchaser assigns this Agreement to
an affiliate of The Hutensky Group, LLC, any press
release or advertising by the Seller or the Broker after
such assignment shall refer to the Purchaser as an
affiliate of The Hutensky Group, LLC.
17.2. Return of Property Information.
In the event this Agreement is terminated, the
Purchaser and the Purchaser's Representatives shall
promptly deliver to the Seller all originals and copies
of the Property Information furnished by the Seller to
the Purchaser and in the possession of the Purchaser and
the Purchaser's Representatives.
Page>17.3. Property Information Defined.
As used in this Agreement, the term "Property
Information" shall mean all information and documents in
any way relating to the Property, the operation thereof
or the sale thereof (including, without limitation,
Leases, Contracts, Licenses and financial statements and
reports) furnished to, or otherwise made available for
review by, the Purchaser or its directors, officers,
employees, affiliates, partners, brokers, agents or other
representatives, including, without limitation,
surveyors, attorneys, accountants, contractors,
consultants, engineers and financial advisors
(collectively, the "Purchaser's Representatives"), by the
Seller or any of the Seller's Affiliates, or their agents
or representatives, including, without limitation, their
contractors, engineers, attorneys, accountants,
consultants, brokers or advisors.
17.4. Remedies.
In addition to any other remedies available to the
Seller, the Seller shall have the right to seek equitable
relief, including, without limitation, injunctive relief
or specific performance, against the Purchaser or the
Purchaser's Representatives in order to enforce the
provisions of this Section 17 and 6.3.
The provisions of this Section 17 shall survive the
termination of this Agreement and the Closing.
18. Access to Records.
For a period of three (3) years subsequent to the Closing
Date, the Seller, the Seller's Affiliates and their employees,
agents and representatives shall be entitled to access during
business hours to all documents, books and records given to
the Purchaser by the Seller at the Closing for tax and audit
purposes, regulatory compliance, and cooperation with
governmental investigations upon reasonable prior notice to
the Purchaser, and shall have the right, at their sole cost
and expense, to make copies of such documents, books and
records.
19. Assignments.
This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and to their respective
heirs, executors, administrators, successors and permitted
assigns. This Agreement may be assigned by the Purchaser
without the consent of the Seller. The parties hereto agree
that notwithstanding the immediately preceding sentence (i) as
of the date of such assignment and through and including the
Closing, the Purchaser and its assignee shall be jointly and
severally liable for the observance and performance of all of
the terms, covenants, obligations and conditions to be
observed or performed by the Purchaser or such assignee
hereunder and under each of the documents executed pursuant to
the terms of this Agreement, and (ii) as of the date of such
assignment and through and including the Closing, the Seller
shall <PAGE>have the right to enforce the observance and
performance of all the terms, covenants, obligations and
conditions to be observed or performed by the Purchaser or its
assignee hereunder and under each of the documents executed in
connection herewith directly against the Purchaser without
notice or demand to such assignee. The parties hereto agree
that after the Closing, the Purchaser (named herein) shall
have no liability hereunder to the Seller except for
intentional misrepresentation or fraud, the Seller shall have
no liability hereunder to the Purchaser (named herein) except
for intentional misrepresentation or fraud and the Seller
shall look solely to the Purchaser's assignee hereunder for
the observance and performance of all of the terms, covenants,
obligations and conditions to be observed or performed by the
Purchaser (named herein).
20. Entire Agreement, Amendments.
All prior statements, understandings, representations and
agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone fully
and completely expresses the agreement between them in
connection with this transaction and which is entered into
after full investigation, neither party relying upon any
statement, understanding, representation or agreement made by
the other not embodied in this Agreement. This Agreement shall
be given a fair and reasonable construction in accordance with
the intentions of the parties hereto, and without regard to or
aid of canons requiring construction against the Seller or the
party drafting this Agreement. This Agreement shall not be
altered, amended, changed, waived, terminated or otherwise
modified in any respect or particular, and no consent or
approval required pursuant to this Agreement shall be
effective, unless the same shall be in writing and signed by
or on behalf of the party to be charged.
21. Merger.
Except for those obligations, liabilities,
representations and warranties expressly made to survive
herein and except as otherwise expressly provided herein or in
the Conveyance Documents, the Purchaser's acceptance of the
Deed shall be deemed a discharge of all of the obligations of
the Seller hereunder and all of the Seller's representations,
warranties, covenants and agreements herein shall merge in the
documents and agreements executed at the Closing and shall not
survive the Closing.
22. Limited Recourse.
The Purchaser agrees that it does not have and will not
have any claims or causes of action against any disclosed or
undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other affiliate of
the Seller, including, without limitation, Dean Witter Realty
Inc. and the parent and affiliates (other than the Seller) of
Dean Witter Realty Inc. (collectively, the "Seller's
<PAGE>Affiliates"), arising out of or in connection with this
Agreement or the transactions contemplated hereby, provided
that nothing herein shall be deemed to waive any claim that
the Purchaser may have against any person or entity for fraud.
The Purchaser agrees to look solely to the Seller and the
Seller's assets directly attributable to the Building and the
Seller Escrow Amount for the satisfaction of the Seller's
liability or obligation arising under this Agreement or the
transactions contemplated hereby, or for the performance of
any of the covenants, warranties or other agreements of the
Seller contained herein, and further agrees not to sue or
otherwise seek to enforce any personal obligation against any
of the Seller's Affiliates with respect to any matters arising
out of or in connection with this Agreement or the
transactions contemplated hereby. The total liability of the
Seller hereunder shall in no event exceed Two Hundred Seventy
Thousand Dollars ($270,000). Nothing in this Section 22 shall
be deemed to limit the rights of the Purchaser to bring an
action for specific performance pursuant to the terms of this
Agreement.
To secure its obligations under this Agreement, the
Seller agrees to deposit Two Hundred Seventy Thousand Dollars
($270,000) (the "Seller Escrow Amount") with the Escrow Agent
at the Closing, which sum shall be held pursuant to the terms
of the escrow agreement attached hereto as Exhibit L.
23. Miscellaneous.
Neither this Agreement nor any memorandum thereof shall
be recorded and any attempted recordation hereof shall be void
and shall constitute a default. Each of the Exhibits and
Schedules referred to herein and attached hereto is
incorporated herein by this reference. The caption headings
in this Agreement are for convenience only and are not
intended to be a part of this Agreement and shall not be
construed to modify, explain or alter any of the terms,
covenants or conditions herein contained. If any provision of
this Agreement shall be unenforceable or invalid, the same
shall not affect the remaining provisions of this Agreement
and to this end the provisions of this Agreement are intended
to be and shall be severable. This Agreement shall be
interpreted and enforced in accordance with the laws of the
State of New Jersey without reference to principles of
conflicts of laws.
24. Time of the Essence.
Time is of the essence with respect to this Agreement,
including but not limited to the occurrence of the Closing as
of the scheduled date.
25. IRS Form 1099-S Designation.
In order to comply with information reporting
requirements of Section 6045(e) of the Internal Revenue Code
of 1986, as amended, and the Treasury Regulations
<PAGE>thereunder, the parties agree (i) to execute an IRS Form
1099-S Designation Agreement in the form attached hereto as
Exhibit J at or prior to the Closing to designate the Title
Company as the party who shall be responsible for reporting
the contemplated sale of the Property to the Internal Revenue
Service (the "IRS") on IRS Form 1099-S; (ii) to provide the
Title Company with the information necessary to complete Form
1099-S; (iii) that the Title Company shall not be liable for
the actions taken under this Section 25, or for the
consequences of those actions, except as they may be the
result of gross negligence or willful misconduct on the part
of the Title Company; and (iv) that the Title Company shall be
indemnified by the parties for any costs or expenses incurred
as a result of the actions taken under this Section 25, except
as they may be the result of gross negligence or willful
misconduct on the part of the Title Company. The Title
Company shall provide all parties to this transaction with
copies of the IRS Forms 1099-S filed with the IRS and with any
other documents used to complete IRS Form 1099-S.
26. Attorneys' Fees.
In any event that at any time Seller or Purchaser shall
institute any action or proceeding against the other relating
to this Agreement or any default hereunder, then and in that
event the prevailing party in such action or proceeding shall
be entitled to recover from the other party its reasonable
attorneys' fees which shall be deemed to have accrued on the
commencement of such action or proceeding and shall be payable
whether or not such action is prosecuted to judgment. This
provision shall survive the Closing.
27. Counterparts.
This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
[Signature Page Follows]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed
by the parties hereto as of the day and year first above
written.
SELLER:
DEPTFORD CROSSING ASSOCIATES, L.P.
By: LS Deptford Crossing, L.P.,
its general partners
By: LS Deptford, Inc., its
general partner
By: /s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
PURCHASER:
THE HUTENSKY GROUP, LLC
By: /s/ Brad Hutensky
Name: Brad Hutensky
Title: Managing Member
