Exhibit 10.3
AGREEMENT FOR SALE
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THIS AGREEMENT FOR SALE ("Agreement") is dated as of July 6, 2001 (the
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"Effective Date"), by and between HOME DEPOT U.S.A., INC., a Delaware
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corporation ("Buyer"), and KPT PROPERTIES, L.P., a Delaware limited partnership,
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formerly known as FAC Properties, L.P., doing business in North Carolina as KPT
PROPERTIES LIMITED PARTNERSHIP ("Seller").
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IN CONSIDERATION of the respective agreements hereinafter set forth, Seller
and Buyer agree as follows:
1. Property Included in Sale. Seller hereby agrees to sell and convey to
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Buyer, and Buyer hereby agrees to purchase from Seller, subject to the terms and
conditions set forth herein, all of Seller's right, title and interest in and to
the following:
(a) That certain land located in Kitty Hawk, Dare County, North
Carolina, more particularly described or shown on Exhibit A attached hereto, and
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all rights, privileges and easements appurtenant thereto (collectively, the
"Land").
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(b) All improvements on the Land, including, without limitation, the
one story shopping center, commonly known as Shoreside Center (collectively, the
"Improvements"). The Land and the Improvements are sometimes collectively
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referred to as the "Real Property".
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(c) The landlord's interest in all Leases (as more particularly
described in Section 4(b) below) relating to occupancy of the Real Property by
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anyone other than Seller.
(d) All equipment, machinery, furniture, furnishings, supplies and
other tangible personal property owned by Seller, and Seller's interests in any
such property leased by Seller, now or hereafter located on or used exclusively
in connection with the Real Property (collectively, the "Tangible Personal
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Property").
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(e) To the extent assignable, all intangible personal property owned by
Seller, if any, and related to the Real Property, including, without limitation:
all trade names and trade marks associated with the Real Property, including
Seller's rights and interests, if any, in the name "Shoreside Center"; any
warranties; contract rights related to the construction, operation, ownership or
management of the Real Property (but only to the extent Seller's obligations
thereunder are expressly assumed by Buyer pursuant to this Agreement);
governmental permits, approvals and licenses (collectively, the "Intangible
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Property").
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All of the items referred to in Sections 1(a) through (e) above are
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hereinafter collectively referred to as the "Property."
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2. Purchase Price.
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(a) The purchase price for the Property is Seven Million Five Hundred
Thousand Dollars ($7,500,000) (the "Purchase Price"), subject to the credits,
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adjustments and prorations provided for in this Agreement.
(b) The Purchase Price shall be paid at Closing by (i) assumption by
Buyer of one or both of the "Jefferson-Pilot Mortgage" and/or the "State Street
Mortgage", as more particularly provided in Section 4(d), below, and (ii)
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payment of the balance of the Purchase Price, as adjusted (the "Cash Portion"),
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as more particularly provided in Section 6(c)(i), below.
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3. Deposit.
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(a) Concurrently with the execution and delivery of this Agreement by
Buyer, Buyer shall deliver to Fidelity National Title Insurance Company, 000
Xxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (the "Title Company") in
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escrow the sum of Seventy Five Thousand Dollars ($75,000) (the "Deposit"). The
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Deposit shall be held and released by the Title Company in accordance with the
provisions of this Agreement and the escrow provisions attached as Exhibit B.
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The Title Company shall designate, by written notice to Buyer and Seller, an
agent in the locality of the Property to serve as custodian of all documents to
be delivered into escrow pursuant to this Agreement and to handle the
recordation of all documents to be admitted to record.
(b) All sums constituting the Deposit shall be held in an
interest-bearing account or in investments approved by Seller and Buyer and
interest accruing thereon shall be for the account of Buyer. All interest earned
on the Deposit shall be considered a portion of the Deposit. In the event the
sale of the Property as contemplated hereunder is consummated, the Deposit shall
be applied to the Purchase Price at Closing (as hereinafter defined) in
accordance with the provisions of this Agreement. In the event this Agreement is
terminated by either party or the Closing does not otherwise take place, the
disposition of the Deposit shall be governed by the applicable provisions of
this Agreement and the escrow provisions attached as Exhibit B.
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4. Review Period. During the period commencing on the Effective Date and
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ending at 5:00 p.m., EDST, on July 27, 2001, or such earlier date as Buyer may
elect by delivery of written notice to Seller (the "Review Period"), Buyer shall
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have the right to examine, inspect and investigate the Property at its sole
risk, cost and expense. Buyer's investigations may include, without limitation,
the following:
(a) Review and approval of title to the Property. Buyer may obtain at
Buyer's expense:
(i) a title insurance commitment for the Real Property (the
"Commitment"), issued by the Title Company, accompanied by copies of all
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documents referred to in the Commitment. The Commitment shall evidence the Title
Company's agreement to issue an Owner's Policy of Title Insurance (the "Title
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Policy"), in the full amount of the Purchase Price, insuring fee simple title to
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the Real Property vested in Buyer, subject only to the following exceptions (the
"Permitted Exceptions"): (i) matters shown in Seller's title insurance policy,
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(ii) matters disclosed in the Commitment or the Survey (as hereinafter defined),
except to the extent that the Title Company or Seller agrees to remove such
matters or cause such matters to be removed in accordance with this Section 4,
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and (iii) the Mortgages, except to the extent that one or both of the Mortgages
is to be satisfied at Closing in accordance with the provisions of this
Agreement.
(ii) a survey of the Real Property by a licensed surveyor or civil
engineer (the "Survey").
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(b) Review and approval of all leases and rental agreements relating to
the Property in effect as of the Effective Date (the "Leases"), together with a
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current rent roll for the Property, listing for each Lease the amount of the
current monthly base rent and whether or not such payments are current; the name
of the tenant; the space occupied by such tenant; the amount of any security
deposit; and the lease termination date (the "Rent Roll").
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(c) Review and approval of all management, service, supply, equipment
rental and other contracts, leases, and other obligations relating to the
operation of the Property (collectively, the
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(c) "Contracts") and all operating statements and other financial records and
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reports relating to the operation of the Property as Buyer may reasonably
request (collectively, the "Reports").
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(d) Review and approval of the notes, mortgages or deeds of trust, and
other documents (collectively, the "Mortgage Documents") evidencing, securing or
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otherwise relating to that certain deed of trust loan (the "Jefferson-Pilot
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Mortgage") secured by, among other things, a certain Deed of Trust for the
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benefit of Jefferson-Pilot Life Insurance Company ("Jefferson-Pilot") and
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encumbering the Property, having an outstanding principal balance of
approximately $2,940,000 as of March 31, 2001, and that certain deed of trust
loan (the "State Street Mortgage") secured by, among other things, a certain
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Deed of Trust for the benefit of State Street Bank and Trust Company ("State
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Street Bank") and encumbering the Property, having an outstanding principal
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balance of approximately $2,528,000 as of March 31, 2001. The Jefferson-Pilot
Mortgage and the State Street Mortgage are collectively referred to herein as
the "Mortgages". During the Review Period, Buyer shall use reasonable diligence
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and good faith to negotiate agreements acceptable to Jefferson-Pilot and State
Street Bank providing for the assumption by Buyer of liability accruing under
the Mortgage Documents relating to each of the Mortgages from and after the
Closing and for release of Seller from any continuing liability thereunder
(collectively, the "Assumption Agreement").
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(e) Review and approval of the documents evidencing or otherwise
relating to the Shoreside Effluent Waste and Garbage Elimination Partnership
("SEWGEP"), including without limitation, the Lease Agreement dated May 16,
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1994, by and between SEWGEP, as tenant, and Shoreside Associates Limited
Partnership ("Shoreside Associates") and XxXxxxxx'x Corporation, collectively as
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the landlord, as assigned to Seller by that certain Assignment and Assumption of
Leases and General Intangibles dated December 18, 1997, by and between Shoreside
Associates, as assignor, and Seller, as buyer (the "SEWGEP Lease Agreement").
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Buyer shall accept an assignment at Closing of Seller's ownership interest in
SEWGEP and assume all of Seller's duties and obligations arising from and after
the Closing in connection with that certain sewer treatment facility located on
or adjacent to the Property, including the SEWGEP Lease Agreement and Seller's
duties and obligations under any and all permits, licenses, agreements, leases
and any and all other like agreements pertaining thereto, to the extent
assignable under applicable law.
(f) Entry upon the Property to make and perform physical and other
non-invasive inspections and investigations of the Property. Buyer shall be
permitted to enter the Property at reasonable times during normal business hours
from time to time during the Review Period following not less than one (1)
business day's prior written notice to conduct its inspections and
investigations. Buyer agrees not to unreasonably interfere with the operations
of Seller or any tenants of Seller. Buyer agrees to indemnify and hold Seller
harmless against any claims for bodily injury, property damage and mechanics'
liens, and Seller's attorneys' fees arising out of any actions of Buyer or its
agents or representatives on the Property in the course of such activities. If
any inspection or test disturbs the Property, Buyer shall restore the Property
to substantially the same condition as existed prior to any such inspection or
test. At Seller's request, Buyer shall provide Seller with evidence of insurance
reasonably acceptable to Seller in an amount not less than $1,000,000 per
occurrence, naming Seller as an additional insured, to insure against Buyer's
activities under this paragraph. Such insurance may be through Buyer's program
of self-insurance. Without first providing Seller with written notice and a
reasonable opportunity to participate in any conversations, Buyer shall not
contact any tenants of the Property. At Buyer's request, Seller shall schedule
tenant interviews at which a representative of Seller may be present.
(g) Confirmation of the availability from all applicable private and
governmental authorities of all zoning, platting, site plan, and other
applicable approvals, permits, licenses and easements. Without first providing
Seller with written notice and a reasonable opportunity to participate in any
conversations, Buyer shall not contact any governmental authority having
jurisdiction over the
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Property. Seller's consent shall not be required with respect to a customary
code compliance review of public records.
(h) Review and determination of the existence, availability and
sufficiency of connections to electricity, gas, telephone, cable, sewer, water,
storm drain facilities and all other utilities to service the Property.
(i) Review and approval of annual operating statements for the Property
for the calendar years 1999 and 2000, and monthly operating statements (to the
extent available) for the current calendar year (collectively, the "Operating
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Statements").
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(j) Prior to the expiration of the Review Period, Buyer shall have
received and approved tenant estoppel certificates substantially in the form
attached hereto as Exhibit C-1 (or such other form as may be required under the
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terms of the applicable Lease) ("Tenant Estoppels") from Walmart, SeaMark
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Grocery, Subway and Radio Shack, and from a sufficient number of other tenants
to represent in the aggregate at least 70% of the rentable area of the
Improvements and the buildings located on land which is ground leased to
tenants. Seller shall, at Buyer's request, provide to Buyer estoppel
certificates substantially in the form attached hereto as Exhibit C-2 (each, a
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"Seller's Estoppel") to satisfy the requirements evidenced by this Section 4(j).
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Seller shall be released from any liability in connection with a Seller's
Estoppel to the extent that additional Tenant Estoppels are delivered at a later
date.
(k) Prior to the expiration of the Review Period, Buyer shall have
received written evidence of Walmart's consent to the sale of the Property to
Buyer, as required by Walmart's Lease.
(l) Prior to the expiration of the Review Period, Buyer shall have
received written evidence of Subway's waiver of any right of first refusal
contained in their Lease or other evidence reasonably satisfactory to Buyer that
such right no longer remains in effect.
Seller shall, within five (5) business days following the Effective Date,
deliver or make available to Buyer copies of Seller's existing title insurance
policy and survey, if any, in Seller's possession which relate to the Property,
and copies of all Leases, Mortgage Documents, Rent Roll and Operating
Statements, and the organizational and operational documents relating to the
SEWGEP. Originals or copies of all Contracts and Reports shall be made available
to Buyer at the Property or at Seller's principal place of business, as
applicable, upon reasonably prior notice during normal business hours. Except as
expressly set forth in Section 8 below, Seller makes no representations or
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warranties, express or implied, regarding the adequacy, accuracy, truth,
completeness, or content of any document, instrument, agreement, report,
correspondence, or other information, written or oral, concerning the Property
delivered or made available to Buyer by Seller or any person acting on Seller's
behalf.
Prior to the expiration of the Review Period, Buyer shall, by written
notice to Seller, (A) accept or waive any objections to its reviews and
inspections, in which event, the parties shall proceed to Closing in accordance
with the terms of this Agreement (a "Continuation Notice"), (B) advise Seller in
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writing of its objections, and request that Seller remedy such objections prior
to the Closing Date (an "Objection Notice"), or (C) elect to terminate this
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Agreement (a "Termination Notice"). Failure by Buyer to deliver an Objection
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Notice or a Continuation Notice prior to the expiration of the Review Period
shall be considered for all purposes under this Agreement to constitute Buyer's
election to accept or waive any objections and proceed to Closing, subject to
the remaining terms of this Agreement. In the event Buyer delivers an Objection
Notice, Seller shall, by written notice to Buyer within five (5) business days
following delivery of the Objection Notice, elect to remedy all, some or none of
Buyer's objections described in the Objection Notice ("Seller's Election
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Notice"). Within five (5) business days following delivery of Seller's Election
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Notice, Buyer shall deliver to Seller either a Continuation Notice or (but only
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if Seller does not agree to remedy all of Buyer's objections) a Termination
Notice. Failure to deliver a Termination Notice shall be deemed to be Buyer's
election to proceed to Closing, subject to Seller's compliance with the
elections set forth in the Seller's Election Notice.
If, notwithstanding Buyer's reasonable diligence and good faith efforts,
Buyer has not been able to reach agreement with Jefferson-Pilot and State Street
Bank on an acceptable Assumption Agreement prior to the expiration of the Review
Period, Buyer may extend the Review Period for an additional period of thirty
(30) days for the sole purpose of finalizing negotiations with Jefferson-Pilot
and State Street Bank for an acceptable Assumption Agreement, in which event
Buyer waives all right to terminate this Agreement or seek a return of the
Deposit pursuant to this Section 4 other than on account of a failure to reach
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an acceptable Assumption Agreement after reasonable diligence and good faith
efforts by Buyer.
5. Conditions to Closing. In addition to any express conditions of Closing
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located elsewhere in this Agreement, the following are conditions precedent to
the obligations of Buyer, on the one hand, and Seller, on the other hand (or, if
so provided, of Buyer only), to consummate the transactions hereunder and the
purchase of the Property:
(a) As a condition of each party's obligation to close, all of the
other party's representations and warranties contained in or made pursuant to
this Agreement shall have been true and correct when made, and shall be true,
correct and complete in all material respects as of the Closing Date and the
Closing, subject to the provisions of Section 8, below.
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(b) As a condition of each party's obligation to close, the other party
shall have performed its obligations hereunder in all material respects and
shall have tendered all deliveries to be made by it on or before the Closing
Date or as otherwise required under this Agreement.
(c) As a condition of Buyer's obligation to close, State Street Bank
and Jefferson-Pilot shall each have executed and delivered the Assumption
Agreement as agreed upon in accordance with Section 4, above.
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(d) As a condition of Buyer's obligation to close, Seller shall have
cured those matters which Seller elected to cure pursuant to Seller's Election
Notice.
(e) As a condition of Buyer's obligation to close, the Title Company
shall be prepared to issue the Title Policy.
(f) As a condition of Buyer's obligation to close, since the expiration
of the Review Period, (A) there shall be no material changes in the financial
condition of Walmart or SeaMark Grocery, (B) there shall be no release or
discharge of Hazardous Substances (as defined in Section 8, below) on or from
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the Property, (C) there shall be no new material change in the condition of
title to the Property, and (D) there shall be no material change in the truth or
accuracy of the representations and warranties set forth in Section 8.
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So long as a party is not in default hereunder, if any condition to such
party's obligation to close has not been satisfied as of the Closing Date, such
party may, in its sole discretion, (A) terminate this Agreement by delivering
written notice to the other party on or before the Closing Date, in which event
the Deposit shall be returned to Buyer, or (B) elect to consummate the
transactions notwithstanding the non-satisfaction of such condition, in which
event such party shall be deemed to have waived any such condition.
Notwithstanding the foregoing, the failure of a condition due to the breach of a
party shall not relieve such breaching party from any liability it would
otherwise have hereunder.
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6. Closing and Escrow.
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(a) Upon execution of this Agreement, the parties shall deposit an
executed counterpart of this Agreement with the Title Company and this
instrument shall serve as the instructions to the Title Company as the escrow
holder for consummation of the purchase and sale contemplated hereby. Seller and
Buyer agree to execute such additional and supplementary escrow instructions as
may be appropriate to enable the escrow holder to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control.
(b) The closing ("Closing") hereunder shall be held and delivery of all
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items to be made at the Closing under the terms of this Agreement shall be made
at the office of Title Company, within thirty (30) days following the expiration
of the Review Period (or if extended in accordance with the last paragraph of
Section 4, fifteen (15) days following expiration of the Review Period, as
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extended), on a date selected by Buyer on not less than five (5) days' notice to
Seller, but in no event later than September 30, 2001 (the "Closing Date").
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(c) On or prior to 1:00 p.m. EDST on the Closing Date, Buyer shall
deliver the following into escrow with the Title Company:
(i) The Cash Portion of the Purchase Price, reduced by the
amount of the Deposit, subject to the credits, adjustments and prorations
described in this Agreement, in the form of a wire transfer of good federal
funds.
(ii) A counterpart Assignment and Assumption of Leases (which
shall include the assignment of the SEWGEP Lease Agreement) in the form attached
hereto as Exhibit E, duly executed by Buyer.
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(iii) A counterpart Assignment and Assumption of Service
Contracts, Warranties and Guaranties and Other Intangible Property in the form
attached hereto as Exhibit F, duly executed by Buyer.
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(iv) A counterpart Assignment of Ownership Interest in SEWGEP in
the form attached hereto as Exhibit G and a Joinder to Partnership Agreement in
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the form attached hereto as Exhibit H, duly executed by Buyer.
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(v) A counterpart Assumption Agreement duly executed by Buyer
and Jefferson-Pilot and State Street Bank, respectively, as applicable, with
respect to each of the Mortgages to be assumed at Closing.
(vi) Such resolutions, authorizations, bylaws or other corporate,
company and/or partnership documents or agreements relating to Buyer as shall be
reasonably required by the Title Company in connection with this transaction.
(vii) A statement itemizing funds to be collected and disbursed at
Closing (the "Closing Statement"), duly executed by Buyer.
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(viii) Any other documents, instruments, records, correspondence or
agreements called for hereunder or reasonably requested by the Title Company
which have not previously been delivered.
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(d) On or prior to 1:00 p.m., EDST, on the Closing Date, Seller shall
deliver the following into escrow with the Title Company:
(i) A special warranty deed (the "Deed"), in the form that is
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customary in the state where the Property is located and reasonably acceptable
to the Title Company, duly executed and acknowledged by Seller, conveying to
Buyer fee simple title to the Property, subject only to the Permitted
Exceptions.
(ii) A duly executed Xxxx of Sale in the form attached hereto as
Exhibit D.
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(iii) A duly executed counterpart of the Assignment and Assumption
of Leases in the form attached hereto as Exhibit E.
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(iv) A duly executed counterpart of the Assignment and Assumption
of Service Contracts, Warranties and Guaranties and Other Intangible Property in
the form attached hereto as Exhibit F, whereby Buyer assumes all service
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contracts and other agreements relating to the Property which have been
identified to Buyer by Seller during the Review Period (the "Assumed
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Contracts").
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(v) A duly executed counterpart of the Assignment of Ownership
Interest in the form attached hereto as Exhibit G.
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(vi) A duly executed Notice to Tenants for each tenant of the
Property in the form attached hereto as Exhibit I.
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(vii) A duly executed counterpart of any Assumption Agreements,
if applicable.
(viii) The Rent Roll, updated to the Closing Date.
(ix) An affidavit in form satisfactory to Buyer that Seller is
not a "foreign person" within the meaning of Section 1445(e)(3) of the Internal
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Revenue Code of 1986, as amended (the "Code") in the form attached hereto as
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Exhibit J.
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(x) Sufficient funds to meet all of Seller's obligations with
respect to closing costs, prorations and adjustments.
(xi) Such resolutions, authorizations, bylaws or other corporate
and/or partnership documents or agreements relating to Seller as shall be
reasonably required in connection with this transaction.
(xii) A duly executed affidavit or certificate, in favor of Buyer
and the Title Company, sufficient to remove the exceptions from the Title Policy
for mechanic's lien and parties in possession.
(xiii) The Closing Statement, duly executed by Seller.
(xiv) Any other documents, instruments, records, correspondence
or agreements called for hereunder or reasonably requested by the Title Company
which have not previously been delivered.
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(e) Upon receipt of all the funds and documents described in Sections
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6(c) and 6(d), above, and provided the Title Company is in a position to issue
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the Title Policy, the Title Company shall (i) deliver the funds on account of
the Purchase Price to Seller after applying the Purchase Price to the
satisfaction of amounts due on account of the outstanding balance of principal
and interest due with respect to any Mortgage to be satisfied at Closing, and
otherwise disburse funds in accordance with the Closing Statement, (ii) record
the Deed and such other documents as may be appropriate as directed by Buyer and
Seller, and (iii) deliver the remaining documents from escrow to the party
entitled to receive the same.
(f) Real estate taxes and assessments and all rents, common area
maintenance charges, and other items of income and expense relating to the
operation of the Property shall be adjusted and prorated as of 12:01 a.m. on the
Closing Date, based on a 365-day year as follows:
(i) Base rents actually collected prior to the Closing shall be
prorated as of the Closing Date. Rent received by Buyer after Closing shall be
first applied to all unpaid rent accruing after the Closing Date, then to the
month in which the Closing occurs, and then to periods prior to the Closing
Date.
(ii) To the extent possible, percentage rents collected prior to
the Closing shall be prorated at Closing as if received ratably throughout the
year.
(iii) Additional rent collected from tenants under the Leases to
cover taxes, insurance, utilities, maintenance, marketing and other operating
costs and expenses (commonly known as "common area maintenance charges") shall
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be prorated as of the Closing Date, along with the expenses for which such
charges are collected.
(iv) Real estate taxes and assessments for the current year shall
be prorated, whether or not due and payable. If real estate taxes for the
current year cannot be ascertained, those for the previous year shall be
utilized without allowance for any discount allowed by law. Seller shall be
responsible for all installments for assessments and bonds which constitute a
lien against the Property and are due and payable as of the Closing Date.
(v) The charges under the Assumed Contracts shall be prorated as
of the Closing Date.
(vi) All security deposits delivered to Seller and not otherwise
applied in accordance with the provisions of the applicable Lease shall be
credited to Buyer at Closing.
(vii) All assumable utility deposits shall be transferred and
assigned to Buyer, and credited to Seller, at Closing.
(g) At the end of each calendar quarter for a period of one (1) year
following the Closing, Buyer shall prepare and present to Seller a recalculation
of any and all amounts due under Section 6(f), above, taking into consideration
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such matters as receipt of current year tax bills and receipt of subsequent
payments from tenants on account of base rent, percentage rent and common area
maintenance charges. The parties shall make the appropriate adjusting payment
between them within 30 days of delivery of any such recalculation.
(h) Buyer shall pay the premium for the Title Policy, the cost of the
Commitment and all survey costs. The cost of any transfer and recordation taxes
(including documentary stamps) applicable to the Deed shall be paid by Seller,
and recording fees shall be paid by Seller. The Title
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Company's fees for escrow services shall be divided equally between Buyer
and Seller. Any costs associated with the assumption or prepayment of the
Mortgages or other financing obtained by Buyer shall be borne exclusively by
Buyer.
(i) Buyer shall pay any and all assumption fees, mortgage assumption
taxes, attorneys' fees and other costs assessed by one or both of State Street
Bank and/or Jefferson-Pilot in connection with the Mortgages to be assumed at
Closing, or any and all prepayment fees, attorneys' fees and other costs
assessed by one or both of State Street Bank and/or Jefferson-Pilot in
connection with the payment and satisfaction of one or both of the Mortgages to
be satisfied at Closing. If one or both of the Mortgages are to be assumed at
Closing, interest due on account of such Mortgages, as applicable, shall be
prorated as of the Closing Date, and Seller shall receive a credit in the amount
of any escrows, holdbacks or undisbursed funds held by the lender (or servicer)
in connection with such Mortgages. Seller shall, subject to the provisions of
Section 5(c), pay any nominal costs associated with the payment and satisfaction
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of any Mortgage to be satisfied at Closing.
(j) Possession of the Property shall be delivered to Buyer at Closing.
7. Covenants of Seller.
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(a) Prior to the expiration of the Review Period, Seller shall only
enter into new Leases or amendments, expansions and renewals of existing Leases
in the ordinary course of business, at rates and for terms which are consistent
with prevailing rental rates and terms of other tenants of the Property or as
otherwise approved by Buyer, and upon not less than five (5) days prior written
notice to Buyer. Following expiration of the Review Period, Seller shall only
enter into new Leases or amendments, expansions or renewals of existing Leases
with the prior written approval of Buyer, in its commercially reasonable
discretion. At Closing, Buyer shall pay to Seller a commission of $2.50 per
rentable square foot for any new Lease entered into by Seller following the
Effective Date in accordance with this Section 7(a), and at Closing, Buyer shall
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assume all obligations with respect to each approved new Lease, including any
obligations for tenant improvements or other concessions.
(b) During the pendency of this Agreement, Seller agrees to join with
the adjacent landowner in applications for necessary permits and approvals to
(i) facilitate Buyer's proposed development of the adjacent property as a retail
home improvement center and supporting facilities (the "Project"), and (ii)
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permit construction in or around areas designated as "wetlands" by the U.S. Army
Corp of Engineers, provided that such actions shall not cause Seller to incur
any liability, obligations or out-of-pocket expenses, or in any manner delay or
otherwise affect the Closing hereunder, and the application for or the receipt
of such permits or approvals shall not in any manner constitute a contingency or
a condition of Closing.
(c) From and after the Effective Date, Seller shall exercise good faith
efforts and cooperate with Buyer (i) to obtain the required Tenant Estoppels,
(ii) to obtain the consents and approvals with respect to the Mortgages
described in Section 4(d), and (ii) to assist Buyer in the conduct of Buyer's
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due diligence efforts.
(d) From and after the Effective Date, Seller shall exercise good faith
efforts to provide Buyer with written notice of the occurrence of any event of
which Seller has knowledge and which (i) would render any representation and
warranty contained in Section 8, below, untrue in any material respect, (ii)
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materially and adversely affects the physical condition of or title to the
Property, (iii) would constitute a material and adverse change with respect to
any of the documents provided to Buyer pursuant to Section 4, above, or (iv)
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would constitute a material and adverse change with respect to any facts recited
in a Tenant Estoppel delivered pursuant to Section 4(j) above.
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8. Representations and Warranties of Seller. Seller hereby represents
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and warrants to Buyer as follows:
(a) Seller is a limited partnership duly organized and validly
existing under the laws of the State of Delaware, and Seller is authorized to
conduct its business in the State of North Carolina in which the Property is
located. Seller has the power to own its property and to enter into this
Agreement and perform its obligations and consummate the transactions
contemplated under this Agreement.
(b) This Agreement and all documents executed and delivered by
Seller are or at the time of Closing will be: duly authorized, executed, and
delivered by Seller; the legal, valid, and binding obligations of Seller. Such
documents do not violate any provisions of or cause a default under any
agreement, instrument or judicial order to which Seller is a party or by which
Seller or the Property is bound.
(c) To Seller's knowledge, the Loan Documents delivered to Buyer
include true, accurate and complete copies of all the documents and instruments
in effect with respect to the Loan, including any and all amendments and
supplements thereto. Seller has not received written notice that Seller is in
default under any of the Mortgage Documents, which default remains uncured.
(d) Seller has received no written notice of any existing, pending
or threatened litigation, action, suit or other proceeding, judicial or
administrative, by any person or any governmental authority, against Seller or
arising in connection with the Property.
(e) Except as disclosed in materials provided or made available to
Buyer during the Review Period, Seller has not received written notice from any
governmental authority or agency having jurisdiction over the Property, no
actual knowledge of any violation of Environmental Laws related to the Property
or the presence or release of Hazardous Materials on or from the Property. The
term "Environmental Laws" includes, without limitation, the Resource
------------------
Conservation and Recovery Act and the Comprehensive Environmental Response
Compensation and Liability Act and other federal laws governing the environment
as in effect on the date of this Agreement together with their implementing
regulations and guidelines as of the Effective Date, and all state, regional,
county, municipal and other local laws, regulations and ordinances that are
equivalent or similar to the federal laws recited above or that purport to
regulate Hazardous Materials. The term "Hazardous Materials" includes petroleum,
-------------------
including crude oil or any fraction thereof, natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural
gas or such synthetic gas), and any substance, material waste, pollutant or
contaminant listed or defined as hazardous or toxic under any Environmental Law.
(f) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Code.
(g) To Seller's knowledge, there are no leases, rental agreements or
other rights to occupy or conduct business at the Property except under the
Leases described in the Rent Roll. To Seller's knowledge, each of the Leases
delivered by Seller to Buyer are true, correct and complete in all materials
respects. To Seller's knowledge, except as disclosed to Buyer during the Review
Period, there are no material defaults under the any of the Leases which remain
uncured. To Seller's knowledge, the Rent Roll is true, correct and complete in
all material respects.
(h) To Seller's knowledge, except for the Assumed Contracts, there
are no service contracts, equipment leases, sign leases and other agreements
(excluding Leases and similar agreements
10
and matters of record) relating to the operation and maintenance of the Property
which will be binding upon Buyer following the Closing.
(i) To Seller's knowledge, the Mortgage Documents delivered to Buyer
include true, accurate and complete copies of all the documents and instruments
in effect with respect to the Mortgages, including any and all amendments and
supplements thereto.
(j) To Seller's knowledge, (i) Seller has not received written
notice of any material defective condition relating to the structural soundness
of the SEWGEP facilities, (ii) the documents relating to the formation and
continuing existence of SEWGEP delivered to Buyer during the Review Period are
true, correct and complete copies of all such documents in Seller's possession,
and (iii) Seller is not in default in any material respect in the performance of
its obligations as a partner of SEWGEP.
For purposes of this Section 8, "Seller's actual knowledge", "to
---------
Seller's knowledge", or words of similar import refer to the current, actual
knowledge of Xxxxxx X. Xxxxx III, without any duty of inquiry or investigation
and without imputation of the knowledge of any other person. Seller's warranties
and representations are qualified by and deemed to be modified to include
exception for any knowledge obtained by Buyer during the Review Period, and
Seller may further qualify such warranties and representations by delivery of
written notice at any time prior to the expiration of the Review Period. Should
Buyer discover information which indicates that any of Seller's representations
or warranties are untrue, incorrect or incomplete in any material respect prior
to the Closing , Buyer's sole remedy on account thereof shall be to provide
written notice of such information to Seller within five (5) business days
following receipt thereof and to permit Seller a reasonable opportunity to elect
to either (A) to agree to correct any breach of its representations and
warranties in a commercially reasonable matter and, if appropriate, to extend
the Closing Date for a period of up to thirty (30) days to correct such breach,
or (B) to terminate this Agreement, in which event the Deposit shall be returned
to Buyer and neither party shall incur any further liability hereunder. The
foregoing limitation on the remedies of Buyer shall not apply to a willful,
fraudulent or knowing misrepresentation of any material fact by Seller, for
which Buyer may pursue reimbursement of actual and reasonable expenses incurred
in connection with the negotiation, execution and delivery of this Agreement,
including reasonable attorneys' fees and costs. In no event shall Buyer be
entitled to pursue or seek incidental, special, consequential, indirect or
punitive damages.
AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER
AGREES TO ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, WITH ALL
FAULTS. EXCEPT FOR THOSE WARRANTIES AND REPRESENTATIONS, IF ANY, SPECIFICALLY
MADE BY SELLER IN THIS AGREEMENT OR THE CLOSING DOCUMENTS DELIVERED PURSUANT TO
THIS AGREEMENT, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER WITH RESPECT TO
THE PROPERTY AS TO (I) FITNESS FOR ANY PARTICULAR PURPOSE, (II) MERCHANTABILITY,
(III) CONDITION, (IV) ABSENCE OF DEFECTS OR FAULTS, (V) ABSENCE OF HAZARDOUS OR
TOXIC SUBSTANCES, (VI) FLOODING, OR (VII) COMPLIANCE WITH LAWS AND REGULATIONS,
INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE
ENVIRONMENT, AS THEY MAY APPLY TO THE CURRENT CONDITION OF THE PROPERTY OR
BUYER'S INTENDED DEVELOPMENT, CONSTRUCTION OR USE, OR FOR ANY OTHER PURPOSE.
BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION
OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL,
ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS
NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND
WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR
UNDER OR ON SELLER'S BEHALF CONCERNING THE PROPERTY. THE PROVISIONS OF THIS
PARAGRAPH SHALL SURVIVE
11
INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE
MERGED INTO ANY DOCUMENTS, EXECUTED OR DELIVERED AT CLOSING.
9. Representations and Warranties of Buyer. Buyer hereby represents
---------------------------------------
and warrants to Seller as follows: Buyer is a corporation duly organized and
validly existing under the laws of the State of Delaware, and Buyer is
authorized to conduct its business in the state in which the Property is
located. Buyer has the power to own its property and carry on its business as
and where it is now conducted and has the power and unrestricted authority to
enter into this Agreement and perform its obligations and consummate the
transactions contemplated under this Agreement without the joinder of any other
person or entity, including delivery of the funds and other items required for
Closing. This Agreement and all documents executed by Buyer which are to be
delivered at the Closing are or at the time of Closing will be duly authorized,
executed, and delivered by Buyer, and are or at the Closing will be legal,
valid, and binding obligations of Buyer, and do not and at the time of Closing
will not violate any provisions of any agreement or judicial order to which
Buyer is a party or to which it is subject.
10. Loss by Fire or Other Casualty; Condemnation.
--------------------------------------------
(a) Risk of loss up to and including the Closing Date shall be
borne by Seller. In the event of any material damage to or destruction of the
Property or any portion thereof, Buyer may, at its option, by notice to Seller
given within 10 days after Seller notifies Buyer of such damage or destruction
(and if necessary the Closing Date shall be extended to give Buyer the full
10-day period to make such election): (i) terminate this Agreement and the
Deposit shall be immediately returned to Buyer, or (ii) proceed under this
Agreement, receive any insurance proceeds (including any rent loss insurance
applicable to any period on and after the Closing Date) due Seller as a result
of such damage or destruction and assume responsibility for such repair, and
Buyer shall receive a credit at Closing for any deductible, uninsured or
coinsured amount under said insurance policies. If Buyer elects (ii) above,
Buyer may extend the Closing Date for up to an additional 10 day period in which
to obtain insurance settlement agreements with Seller's insurers, and Seller
will cooperate with Buyer in obtaining the insurance proceeds and such
agreements from Seller's insurers. If the Property is not materially damaged,
then Buyer shall not have the right to terminate this Agreement, but Seller
shall, at its cost, repair the damage before the Closing in a manner reasonably
satisfactory to Buyer or if repairs cannot be completed before the Closing,
credit Buyer at Closing for the reasonable cost to complete the repair.
"Material damage" and "materially damaged" means damage reasonably exceeding ten
--------------- ------------------
percent (10%) of the Purchase Price to repair.
(b) In the event any proceedings in eminent domain are
instituted by any body having the power of eminent domain with respect to the
Property or any material portion thereof, Buyer may, at its option, by notice to
Seller given within 10 business days after Seller notifies Buyer of such
proceedings (and if necessary the Closing Date shall be extended to give Buyer
the full 10 business day period to make such election): (i) terminate this
Agreement and the Deposit shall be immediately returned to Buyer, or (ii)
proceed under this Agreement, in which event Seller shall, at the Closing,
assign to Buyer its entire right, title and interest in and to any condemnation
award, and Buyer shall have the sole right during the pendency of this Agreement
to negotiate and otherwise deal with the condemning authority in respect of such
matter. "Material portion" shall mean more than ten percent (10%) of the
----------------
rentable square footage of the Improvements, or any taking of the access ways on
the Land which prevents access to the Land from North Croatan Highway (US Route
158).
11. Default; Remedies. If Buyer should default in any material
-----------------
respect in the performance of any of Buyer's obligations under this Agreement,
and provided that Seller is not in default in any material respect under the
terms of this Agreement, Seller shall be entitled to terminate this Agreement
and receive the Deposit as liquidated damages and as Seller's sole and exclusive
remedy for any such default, with
12
Seller hereby waiving any rights it might otherwise have to xxx for damages or
seek specific performance, injunctive relief or any other equitable remedy on
account of a default by Buyer. Buyer and Seller agree that in the event of
Buyer's default, Seller's damages would be difficult to ascertain and the
Deposit represents a reasonable estimate of such damages under the
circumstances. If Seller should default in any material respect in the
performance of any of Seller's obligations in this Agreement and provided that
Buyer has duly and timely performed all of its obligations and is not in default
hereunder, as Buyer's sole and exclusive remedy (except as specifically provided
in Section 8 above), Buyer may either (i) terminate this Agreement and request
---------
the return of the Deposit, or (ii) bring an action for specific performance of
this Agreement, provided, however, in the event of a material default by Seller
resulting from willful or intentional misconduct, fraud or intentional
misrepresentation, or similar acts or omissions of Seller, should specific
performance not be available as a remedy for Buyer, then Buyer shall have the
right to bring an action to seek reimbursement of damages actually incurred by
Buyer as a direct result of such default. In either event, except as
specifically provided in Section 8, Seller shall not be liable to Buyer for any
---------
indirect, incidental, special, consequential, punitive or other speculative or
compensatory damages on account thereof.
12. Indemnification by Seller. Seller hereby agrees to indemnify and
-------------------------
defend Buyer and hold it harmless from and against any and all liabilities,
costs, expenses, penalties, damages and losses, including, without limitation,
reasonable attorneys' fees, resulting from the claims of third parties arising
from or in connection with Seller's breach or default in the performance of
Seller's obligations which Seller was obligated to perform on or prior to the
Closing Date under each of the Mortgages to be assumed at Closing, the Leases,
the SEWGEP Lease, the Assumed Contracts, and the Partnership Agreement of
SEWGEP. The indemnification provisions of this Section 12 shall survive beyond
----------
the delivery of the Deed and transfer of title to the Property to Buyer for a
period of six (6) months following the Closing Date.
13. Indemnification by Buyer. Buyer hereby agrees to indemnify and
------------------------
defend Seller and hold it harmless from and against any and all liabilities,
costs, expenses, penalties, damages and losses, including, without limitation,
reasonable attorneys' fees, resulting from the claims of third parties arising
from or in connection with Buyer's breach or default in the performance of those
obligations which Buyer assumes and agrees to perform (under this Agreement or
any document to be delivered pursuant to Section 6 (c) hereof) from and after
the Closing Date under each of the Mortgages to be assumed at Closing, the
Leases, the SEWGEP Lease, the Assumed Contracts, and the Partnership Agreement
of SEWGEP (collectively, the "Assumed Obligations"). The indemnification
-------------------
provisions of this Section 13 shall survive beyond the delivery of the Deed and
----------
transfer of title to the Property to Buyer for so long as the Assumed
Obligations remain to be performed.
14. Miscellaneous.
-------------
(a) Notices. Unless otherwise provided herein, any notice
-------
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been given the day after such notice was deposited with
a nationally-recognized overnight delivery service, or the date sent by
confirmed telecopy and addressed as follows:
13
If to Buyer: Home Depot U.S.A., Inc.
-----------
0000 Xxxxx Xxxxx Xxxx, X.X.
Building C, 20/th/ Floor
Xxxxxxx, XX 00000
Attn: Vice-President, Real Estate Law Group
Fax No.: (000) 000-0000
Copy to: Home Depot U.S.A., Inc.
-------
0000 Xxxxx Xxxxx Xxxx, X.X.
Building C, 19/th/ Floor
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxxxx - Real Estate Department
Fax No.: (000) 000-0000
Copy to: Xxxxxxx & Xxxxxx, P.C.
-------
0000 Xxxxxx Xxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx or Xxxxx-Xxxxxx Xxxxxxxx
Fax No: (000) 000-0000
If to Seller: KPT Properties, L.P.
------------
c/o Konover Property Trust, Inc.
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Legal Department
Fax No: (000) 000-0000
Copy to: Xxxxx, Xxxxx & Xxxxx
-------
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxxxxx
Fax No: (000) 000-0000
or such other address as either party may from time to time specify in writing
to the other.
(b) Brokers and Finders. Neither party has had any contact or
-------------------
dealings regarding the Property, or any communication in connection with the
subject matter of this transaction, through any licensed real estate broker or
other person who can claim a right to a commission or finder's fee as a
procuring cause of the sale contemplated herein, except for 1/st/ Carolina
Property and Xxxxxxx Xxxxxx Properties (collectively, "Broker"), whose
------
commissions shall be paid by Buyer pursuant to a separate agreement. Buyer shall
indemnify, save harmless and defend Seller from any liability, cost, or expense
(including reasonable attorneys' fees) arising out of or connected with any
claim for any commission or compensation made by any person or entity claiming
to have been retained or contacted by Buyer in connection with this transaction,
other than Broker. Seller shall indemnify, save harmless and defend Buyer from
any liability, cost, or expense (including reasonable attorneys' fees) arising
out of or connected with any claim for any commission or compensation made by
any person or entity claiming to
14
have been retained or contacted by Seller in connection with this transaction,
including Broker. The provisions of this paragraph shall survive the Closing and
any termination of this Agreement.
(c) Successors and Assigns. Neither party may assign this
----------------------
Agreement without the prior written consent of the other, and any such
prohibited assignment shall be void. Notwithstanding the immediately preceding
sentence, Buyer may assign this Agreement to a commercial developer upon
notification to Seller, provided that (i) Buyer provides written notice to
-------------
Seller of the name of the assignee, financial statements of the assignee, and
other pertinent information reasonably requested by Seller prior to the
expiration of the Review Period, (ii) such assignment shall not release Buyer
from any obligations or liability for the performance of Buyer's obligations
under this Agreement, (iii) the Closing shall not be delayed or affected by
reason of such assignment nor shall the consummation or accomplishment of the
assignment be a condition precedent or condition subsequent to Buyer's
obligations under this Agreement, (iv) such assignment is approved by the
holder(s) of any assumable debt to be assumed at Closing, and (v) such
assignment is consented to by Walmart. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the respective legal
representatives, successors, assigns, heirs, and devisees of the parties.
(d) Amendments. Except as otherwise provided herein, this
----------
Agreement may be amended or modified only by a written instrument executed by
Seller and Buyer.
(e) Continuation and Survival. All representations and
-------------------------
warranties by the respective parties contained herein or made in writing
pursuant to this Agreement are intended to and shall remain true and correct as
of the time of Closing, and shall survive the execution and delivery of this
Agreement, the delivery of the Deed and transfer of title for a period of six
(6) months following the Closing, except as otherwise expressly provided in this
Agreement. In addition, the provisions of this Agreement that contemplate
performance after the Closing and the obligations of the parties not fully
performed at the Closing shall survive the Closing and shall not be deemed to be
merged into or waived by the instruments of Closing.
(f) Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of North Carolina.
(g) Merger of Prior Agreements. This Agreement, including the
--------------------------
exhibits hereto, constitutes the entire agreement between the parties with
respect to the purchase and sale of the Property and supersedes all prior
agreements and understandings between the parties hereto relating to the subject
matter hereof.
(h) Enforcement. In the event either party hereto fails to
-----------
perform any of its obligations under this Agreement or in the event a dispute
arises concerning the meaning or interpretation of any provision of this
Agreement, the defaulting party or the party not prevailing in such dispute, as
the case may be, shall pay any and all costs and expenses incurred by the other
party in enforcing or establishing its rights hereunder, including, without
limitation, court costs and reasonable attorneys' fees.
(i) Time of the Essence. Time is of the essence in the
-------------------
performance of this Agreement.
(j) Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts, each of which shall be deemed to be an original, and
all of such counterparts shall constitute one Agreement. To facilitate execution
of this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
15
(k) Calculation of Time Periods. Unless otherwise specified, in
---------------------------
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the
Property is located, in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein shall be deemed to end at 6:00 p.m. North
Carolina time.
(l) Confidentiality. Between the date hereof and for a period
---------------
ending six (6) months after the Closing Date or one (1) year following the
Effective Date, whichever is the first to occur, except as expressly otherwise
provided in this Agreement, neither Seller nor Buyer shall make or cause to be
made any public announcement or disclosure of this Agreement, the material
economic terms of this Agreement or any "Confidential Information" related to
this Agreement (as that term is defined in the Confidentiality Agreement dated
June 8, 2001, executed by Buyer and Seller) to outside brokers or any other
third parties, without first obtaining the written consent of the other party,
provided that Buyer may disclose material terms which are necessary or required
to be disclosed in connection with its due diligence investigations or in
obtaining or evaluating governmental approvals. The foregoing shall not preclude
either party from discussing the substance or any relevant details of such
transactions with any of its attorneys, accountants, professional consultants,
lenders, partners, investors, or any prospective lender, partner or investor, as
the case may be, or prevent either party hereto, from complying with laws,
rules, regulations and court orders, including without limitation, governmental
regulatory, disclosure, tax and reporting requirements. In addition to any other
remedies available to a party, each party shall have the right to seek equitable
relief, including without limitation injunctive relief or specific performance,
against the other party in order to enforce the provisions of this Section
12(l). Buyer shall not record this Agreement or any affidavit or memorandum of
this Agreement or any document to which this Agreement is attached.
(m) Section 1031 Exchange. Buyer may consummate the purchase of
---------------------
the Property as part of a so-called like kind exchange (the "Exchange") pursuant
--------
to ss. 1031 of the Code, provided that: (i) the Closing shall not be delayed or
affected by reason of the Exchange nor shall the consummation or accomplishment
of the Exchange be a condition precedent or condition subsequent to Buyer's
obligations under this Agreement; (ii) Buyer shall effect the Exchange through
an assignment of this Agreement, or rights under this Agreement, to a qualified
intermediary; (iii) Seller shall not be required to take an assignment of the
purchase agreement for the relinquished property or be required to acquire or
hold title to any real property for purposes of consummating the Exchange; and
(iv) Buyer shall pay any additional costs that would not otherwise have been
incurred by Buyer or Seller had Buyer not consummated its purchase through the
Exchange. Seller shall not by this agreement or acquiescence to the Exchange (1)
have its rights under this Agreement affected or diminished in any manner or (2)
be responsible for compliance with or be deemed to have warranted to Buyer that
the Exchange in fact complies with ss. 1031 of the Code.
(n) Further Assurances. In addition to the acts and deeds
------------------
recited herein and contemplated to be performed, executed and/or delivered by
either party at Closing, each party agrees to perform, execute and deliver, but
without any obligation to incur any additional liability or expense, on or after
the Closing any further deliveries and assurances as may be reasonably necessary
to consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Buyer.
[signature page follows]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER: KPT PROPERTIES, L.P.,
a Delaware limited partnership, doing business
in North Carolina as KPT Properties Limited
Partnership
By: Konover Property Trust, Inc.,
a Maryland corporation,
Its General Partner
By:_______________________________________
Name:
Title:
BUYER: HOME DEPOT U.S.A., INC.,
a Delaware corporation
By:____________________________________________
Name:
Title:
17
