PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 6th day of February, 1997, between
WAKE CAPITAL PARTNERSHIP, a North Carolina general partnership ("Seller"), and
RRC ACQUISITIONS, INC., a Florida corporation, its designees, successors and
assigns ("Buyer").
Background
Buyer wishes to purchase a shopping center in the City of Asheville,
County of Buncombe, State of North Carolina, owned by Seller, known as the
Oakley Plaza (the "Shopping Center"); and
Seller wishes to sell the Shopping Center to Buyer.
In consideration of the mutual agreements herein, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller
agrees to sell and Buyer agrees to purchase the Property (as hereinafter
defined) on the following terms and conditions:
1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
1.1 Agreement means this instrument as it may be amended
from time to time.
1.2 Allocation Date means the close of business on the
day immediately prior to the Closing Date.
1.3 Audit Representation Letter means the form of Audit
Representation Letter attached hereto as Exhibit 1.3.
1.4 Buyer means the party identified as Buyer on the
initial page hereof.
1.5 Closing means generally the execution and delivery of
those documents and funds necessary to effect the sale of the Property by Seller
to Buyer.
1.6 Closing Date means the date on which the Closing
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occurs.
1.7 Contracts means all service contracts, agreements or
other instruments to be assigned by Seller to Buyer at Closing.
1.8 Day means a business day, whether or not the term is
capitalized.
1.9 Xxxxxxx Money Deposit means the deposit delivered by Buyer
to Escrow Agent prior to the Closing under Section of this Agreement, together
with the earnings thereon, if any.
1.10 Environmental Claim means any investigation, notice,
violation, demand, allegation, action, suit, injunction, judgment, order,
consent decree, penalty, fine, lien, proceeding, or claim (whether
administrative, judicial, or private in nature) arising (a) pursuant to, or in
connection with, an actual or alleged violation of, any Environmental Law, (b)
in connection with any Hazardous Material or actual or alleged Hazardous
Material Activity, (c) from any abatement, removal, remedial, corrective, or
other response action in connection with a Hazardous Material, Environmental Law
or other order of a governmental authority or (d) from any actual or alleged
damage, injury, threat, or harm to health, safety, natural resources, or the
environment.
1.11 Environmental Law means any current legal requirement in
effect at the Closing Date pertaining to (a) the protection of health, safety,
and the indoor or outdoor environment, (b) the conservation, management,
protection or use of natural resources and wildlife, (c) the protection or use
of source water and groundwater, (d) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage, disposal,
Release, threatened Release, abatement, removal, remediation or handling of, or
exposure to, any Hazardous Material or (e) pollution (including any Release to
air, land, surface water, and groundwater); and includes, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. ss. 9601 et seq., Solid Waste Disposal Act, as amended by the Resource
Conservation Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. ss. 6901 et seq., Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. ss. 1251 et seq., Clean Air Act of 1966, as
amended, 42 U.S.C. ss. 7401 et seq., Toxic Substances Control Act of 1976, 15
U.S.C. ss. 2601 et seq., Hazardous Materials Transportation Act, 49 U.S.C. App.
1801, Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. ss. 651
et seq., Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 et seq., Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. ss. App. 11001 et
seq., National Environmental Policy Act of 1969, 42 U.S.C. ss. 4321 et seq.,
Safe Drinking Water Act of 1974, as amended by 42 U.S.C. ss. 300(f) et seq., and
any similar, implementing or successor law, any amendment, rule, regulation,
order or directive, issued thereunder.
1.12 Escrow Agent means Chicago Title Insurance Company
(Attn: Xxxx X. Xxxxxxx), whose address is 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (Phone 704/000-0000; Fax 704/332-
7509), or any successor Escrow Agent.
1.13 Governmental Approval means any permit, license,
variance, certificate, consent, letter, clearance, closure, exemption, decision,
action or approval of a governmental authority.
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1.14 Hazardous Material means any petroleum, petroleum
product, drycleaning solvent or chemical, biological or medical waste, "sharps"
or any other hazardous or toxic substance as defined in or regulated by any
Environmental Law in effect at the pertinent date or dates.
1.15 Hazardous Material Activity means any activity, event, or
occurrence at or prior to the Closing Date involving a Hazardous Material,
including, without limitation, the manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation, handling or corrective or response
action to any Hazardous Material.
1.16 Improvements means any buildings, structures or
other improvements situated on the Real Property.
1.17 Inspection Period means the period of time which expires
at the end of business on Friday, March 7, 1997. If such expiration date is a
weekend or national holiday, the Inspection Period shall expire at the end of
business on the next immediately succeeding business day.
1.18 Leases means all leases and other occupancy agreements
permitting persons to lease or occupy all or a portion of the Property.
1.19 Materials means all plans, drawings, specifications, soil
test reports, environmental reports, market studies, surveys, and similar
documentation, if any, owned by or in the possession of Seller with respect to
the Property, Improvements and any proposed improvements to the Property, which
Seller may lawfully transfer to Buyer except that, as to financial and other
records, Materials shall include only photostatic copies.
1.20 Permitted Exceptions means only the following
interests, liens and encumbrances:
(a) Liens for ad valorem taxes not payable on or
before Closing;
(b) Rights of tenants under Leases; and
(c) All other easements, restrictions conditions,
rights-of-way and other matters set forth in Seller's existing title insurance
policy, a copy of which has been furnished to Buyer, determined by Buyer during
the Inspection Period to be acceptable.
1.21 Personal Property means all (a) sprinkler, plumbing,
heating, air-conditioning, electric power or lighting, incinerating, ventilating
and cooling systems, with each of their
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respective appurtenant furnaces, boilers, engines, motors, dynamos, radiators,
pipes, wiring and other apparatus, equipment and fixtures, elevators,
partitions, fire prevention and extinguishing systems located in or on the
Improvements, (b) all Materials, and (c) all other personal property used in
connection with the Improvements, provided the same are now owned or are
acquired by Seller prior to the Closing.
1.22 Property means collectively the Real Property, the
Improvements and the Personal Property.
1.23 Prorated means the allocation of items of expense or
income between Buyer and Seller based upon that percentage of the time period as
to which such item of expense or income relates which has expired as of the date
at which the proration is to be made.
1.24 Purchase Price means the consideration agreed to be paid
by Buyer to Seller for the purchase of the Property as set forth in Section
(subject to adjustments as provided herein).
1.25 Real Property means the lands more particularly described
on Exhibit , together with all easements, licenses, privileges, rights of way
and other appurtenances pertaining to or accruing to the benefit of such lands.
1.26 Release means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the indoor or outdoor environment, including, without limitation,
the abandonment or discarding of barrels, drums, containers, tanks, and other
receptacles containing or previously containing any Hazardous Material at or
prior to the Closing Date.
1.27 Rent Roll means the list of Leases attached hereto as
Exhibit , identifying with particularity the space leased by each tenant, the
term (including extensions), square footage and applicable rent, common area
maintenance, tax and other reimbursements, security deposits and similar data.
1.28 Seller means the party identified as Seller on the
initial page hereof.
1.29 Seller Financial Statements means the unaudited balance
sheets and statements of income, cash flows and changes in financial positions
of Seller for the Property, as of and for the two (2) calendar years next
preceding the date of this Agreement and all monthly reports of income, expense
and cash flow prepared by Seller for the Property, which shall be consistent
with past practice, for any period beginning after the latest of such calendar
years, and ending prior to Closing.
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1.30 Shopping Center means the Shopping Center identified
on the initial page hereof.
1.31 Survey means a map of a stake survey of the Real Property
which shall comply with Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys, jointly established and adopted by ALTA and ACSM in 1992, and
includes items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof, which
meets the accuracy standards (as adopted by ALTA and ACSM and in effect on the
date of the Survey) of an urban survey, which is dated not earlier than thirty
(30) days prior to the Closing, and which is certified to Buyer, Seller, the
Title Insurance company providing Title Insurance to Buyer, and Buyer's lender,
and dated as of the date the Survey was made.
1.32 Tenant Estoppel Letter means a letter or other
certificate from a tenant certifying as to certain matters regarding such
tenant's Lease, in substantially the same form as attached hereto as Exhibit ,
or in the case of national or regional "credit" tenants identified as such on
the Rent Roll, the form customarily used by such tenant provided the information
disclosed is acceptable to Buyer. If the lease for a particular tenant requires
a particular form of estoppel certificate, or obligates the tenant to provide
only certain information, the Tenant Estoppel Letter to be obtained by Seller
from such Tenant shall be limited to such form or information, as the case may
be, but Seller shall nevertheless endeavor to obtain a Tenant Estoppel Letter in
the form of that attached as Exhibit .
1.33 Title Defect means any exception in the Title Insurance
Commitment or any matter disclosed by the Survey, other than a Permitted
Exception.
1.34 Title Insurance means an ALTA Form B Owners Policy of
Title Insurance for the full Purchase Price insuring marketable title in Buyer
in fee simple, subject only to the Permitted Exceptions, issued by a title
insurer acceptable to Buyer.
1.35 Title Insurance Commitment means a binder whereby the
title insurer agrees to issue the Title Insurance to Buyer.
1.36 Transaction Documents means this Agreement, the deed
conveying the Property, the assignment of leases, the xxxx of sale conveying the
Personal Property and all other documents required or appropriate in connection
with the transactions contemplated hereby.
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2. PURCHASE PRICE AND PAYMENT.
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The total Purchase
Price for the Property (subject to adjustment as provided herein) shall be
$8,057,000. The Purchase Price shall be payable in cash at Closing.
(b) Adjustments to the Purchase Price. The
Purchase Price shall be adjusted as of the Closing Date by:
(1) prorating the Closing year's real and
tangible personal property taxes as of the Allocation Date (if the amount of the
current year's property taxes are not available, such taxes will be prorated
based upon the prior year's assessment);
(2) prorating as of the Allocation Date cash
receipts and expenditures for the Shopping Center and other items
customarily prorated in transactions of this sort; and
(3) subtracting the amount of security
deposits, prepaid rents from tenants under the Leases, and credit balances, if
any, of any tenants. Any rents, percentage rents or tenant reimbursements
payable after the Allocation Date but applicable to periods on or prior to the
Allocation Date shall be remitted to Seller by Buyer within thirty (30) days
after receipt. Buyer shall have no obligation to collect delinquencies, but
should Buyer collect any delinquent rents or other sums which cover periods
prior to the Allocation Date and for which Seller have received no proration or
credit, Buyer shall remit same to Seller within thirty (30) days after receipt,
less any costs of collection. Buyer will not interfere in Seller's efforts to
collect sums due it prior to the Closing. Seller will remit to Buyer promptly
after receipt any rents, percentage rents or tenant reimbursements received by
Seller after Closing which are attributable to periods occurring after the
Allocation Date. Undesignated receipts after Closing of either Buyer or Seller
from tenants in the Shopping Center shall be applied first to then current rents
and reimbursements for such tenant(s), then to delinquent rents and
reimbursements attributable to post-Allocation Date periods, and then to
pre-Allocation Date periods.
2.2 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the
amount of $50,000 shall be delivered to Escrow Agent within three (3) days after
the date of execution by the last of Buyer or Seller to execute and transmit a
copy of this Agreement to the other. This Agreement may be terminated by Seller
if the Xxxxxxx Money Deposit is not received by Escrow Agent by such deadline.
The Xxxxxxx Money Deposit paid by Buyer shall be held as specifically provided
in this Agreement and shall be applied to the Purchase Price at the Closing.
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2.3 Closing Costs.
(a) Seller shall pay:
(1) Documentary stamp and other transfer taxes
imposed upon the conveyance;
(2) Cost of satisfying any liens on the
Property;
(3) Cost of curing title defects and recording
any curative title documents;
(4) The broker's commission of Xxxxxx X.
Xxxxxx/Lat Xxxxxx & Associates, Inc., if and when this transaction closes, but
not otherwise, in an amount equal to two and one-half percent (2.5%) of the
Purchase Price; and
(5) Seller's attorneys' fees relating to the
sale of the Property.
(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Costs of the Phase 1 environmental site
assessment to be obtained by Buyer;
(3) Cost of title insurance and Survey;
(4) Cost of recording the deed; and
(5) Buyer's attorneys' fees.
3. INSPECTION PERIOD AND CLOSING.
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection
Period to physically inspect the Property, review the economic data, underwrite
the tenants and review their leases, and to otherwise conduct its due diligence
review of the Property and all books, records and accounts of Seller related
thereto. Buyer hereby agrees to indemnify and hold Seller harmless from any
damages, liabilities or claims for property damage or personal injury arising
out of such inspection and investigation by Buyer or its agents or independent
contractors. Within the Inspection Period, Buyer may, in its sole discretion and
for any reason or no reason, elect to go forward with this Agreement to closing,
which election shall be made by notice to Seller given within the Inspection
Period. If such notice is not timely given, this Agreement and all rights,
duties and obligations of Buyer and
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Seller hereunder, except any which expressly survive termination, shall
terminate and Escrow Agent shall forthwith return to Buyer the Xxxxxxx Money
Deposit. If Buyer so elects to go forward, the Xxxxxxx Money Deposit shall not
be refundable except upon the terms otherwise set forth herein.
(b) Buyer, through its officers, employees and
other authorized representatives, shall have the right to reasonable access to
the Property and all records of Seller related thereto, including without
limitation all Leases and Seller Financial Statements, at reasonable times
during the Inspection Period for the purpose of inspecting the Property, taking
soil borings, conducting Hazardous Materials inspections, reviewing the books
and records of Seller concerning the Property and otherwise conducting its due
diligence review of the Property. Seller shall cooperate with and assist Buyer
in making such inspections and reviews. Seller shall give Buyer any
authorizations which may be required by Buyer in order to gain access to records
or other information pertaining to the Property or the use thereof maintained by
any governmental or quasi-governmental authority or organization. Buyer, for
itself and its agents, agrees not to enter into any contract with existing
tenants without the written consent of Seller if such contract would be binding
upon Seller should this transaction fail to close. Buyer shall have the right to
have due diligence interviews and other discussions or negotiations with
tenants, provided Buyer informs Seller of the time and place of any such
interview or discussion and affords Seller an opportunity to be present.
(c) Buyer, through its officers or other authorized
representatives, shall have the right to reasonable access to all Materials
(other than privileged or confidential litigation materials) for the purpose of
reviewing and copying the same.
3.2 Hazardous Material. Prior to the end of the Inspection
Period Buyer may order a "Phase 1" assessment of the Property, and a copy of any
assessment report, if made, shall be furnished by Buyer to Seller promptly upon
its completion. If the assessment report discloses the existence of any
Hazardous Material or any other matters concerning the environmental condition
of the Property or its environs, Buyer may notify Seller in writing, within ten
(10) business days after receipt of the assessment report that it elects to
terminate this Agreement, whereupon this Agreement shall terminate and Escrow
Agent shall return to Buyer its Xxxxxxx Money Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed by the
parties, the Closing shall take place at the offices of Escrow Agent at 10:00
A.M. on Friday, March 14, 1997, provided that Buyer may designate an earlier
date for Closing.
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4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER.
Seller warrants and represents as follows as of the date of this
Agreement and as of the Closing and where indicated covenants and agrees as
follows:
4.1 Organization; Authority. Seller is duly organized, validly
existing and in good standing under the laws of the state of its organization
and the state in which the Shopping Center is located, and has full power and
authority to enter into and perform this Agreement in accordance with its terms,
and the persons executing this Agreement and other Transaction Documents have
been duly authorized to do so on behalf of Seller. Seller is not a "foreign
person" under Sections 1445 or 897 of the Internal Revenue Code nor is this
transaction subject to any withholding under any state or federal law.
4.2 Authorization; Validity. The execution and delivery of
this Agreement by Seller and Seller's consummation of the transactions
contemplated by this Agreement have been duly and validly authorized. This
Agreement constitutes a legal, valid and binding agreement of Seller enforceable
against it in accordance with its terms.
4.3 Title. Seller is the owner in fee simple of all of
the Property, subject only to the Permitted Exceptions.
4.4 Commissions. Seller has neither dealt with nor does it
have any knowledge of any broker or other party who has or may have any claim
against Seller, Buyer or the Property for a brokerage commission or finder's fee
or like payment arising out of or in connection with the transaction provided
herein except for Xxxxxx X. Xxxxxx and Lat Xxxxxx & Associates, Inc., the
commission of whom shall be paid by Seller. Seller agrees to indemnify Buyer
from any other brokerage claim arising by, through or under Seller.
4.5 Sale Agreements. The Property is not subject to any
outstanding agreement(s) of sale, option(s), or other right(s) of
third parties to acquire any interest therein, except for Permitted
Exceptions and this Agreement.
4.6 Litigation. There is no litigation or proceeding
pending, or to the best of Seller's knowledge, threatened against
Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, oral
or written, except as listed on the Rent Roll attached hereto and certified as
true by Lat Xxxxxx & Associates, Inc. Any Leases or modifications entered into
between the date of this Agreement and the Closing Date shall be entered into
only with the consent of Buyer. Copies of the Leases, which have been delivered
to Buyer or
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shall be delivered to Buyer within five (5) days from the date hereof, are, to
the best knowledge of Seller, true, correct and complete copies thereof, subject
to the matters set forth on the Rent Roll. Between the date hereof and the
Closing Date, Seller will not terminate or modify existing Leases or enter into
any new Leases without the consent of Buyer. All of the Property's tenant leases
are in good standing and to the best of Seller's knowledge no defaults exist
thereunder except as noted on the Rent Roll. No rent or reimbursement has been
paid more than one (1) month in advance and no security deposit has been paid,
except as stated on the Rent Roll. No tenants under the Leases are entitled to
interest on any security deposits. No tenant under any Lease has or will be
promised any inducement, concession or consideration by Seller other than as
expressly stated in such Lease, and except as stated therein there are and will
be no side agreements between Seller and any tenant.
4.8 Financial Statements. To the best of Seller's knowledge,
each of the Seller Financial Statements delivered or to be delivered to Buyer
hereunder has or will have been prepared in accordance with the books and
records of Seller and presents fairly in all material respects the financial
condition, results of operations and cash flows for the Property as of and for
the periods to which they relate. There has been no material adverse change in
the operations of the Property or its prospects since the date of the most
recent Seller Financial Statements. Seller covenants to furnish promptly to
Buyer copies of the Seller Financial Statements together with unaudited updated
monthly reports of cash flow for interim periods beginning after December 31,
1996. Buyer and its independent certified accountants shall be given access to
Seller's books and records at any time prior to and for six (6) months following
Closing upon reasonable advance notice in order that they may verify the
financial statements prior to Closing. Seller agrees to execute and deliver to
Buyer or its accountants the Audit Representation Letter should Buyer's
accountants audit the records of the Shopping Center.
4.9 Contracts. To the best of Seller's knowledge, except for
Leases and Permitted Exceptions, there are no management, service, maintenance,
utility or other contracts or agreements affecting the Property, oral or
written, which extend beyond the Closing Date and which would bind Buyer or
encumber the Property, at Buyer's option, more than thirty (30) days after
Closing. All such Contracts are in full force and effect in accordance with
their respective terms, and all obligations of Seller under the Contracts
required to be performed to date have been performed in all material respects;
no party to any Contract has asserted any claim of default or offset against
Seller with respect thereto and no event has occurred or failed to occur, which
would in any way affect the validity or enforceability of any such Contract; and
the copies of the Contracts delivered to Buyer prior to the date hereof are
true, correct and complete copies thereof.
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Between the date hereof and the Closing, Seller covenants to fulfill all of its
obligations under all Contracts, and covenants not to terminate or modify any
such Contracts or enter into any new contractual obligations relating to the
Property without the consent of Buyer (not to be unreasonably withheld) except
such obligations as are freely terminable without penalty by Seller upon not
more than thirty (30) days' written notice.
4.10 Maintenance and Operation of Property. From and after the
date hereof and until the Closing, Seller covenants to keep and maintain and
operate the Property substantially in the manner in which it is currently being
maintained and operated and covenants not to cause or permit any waste of the
Property nor undertake any action with respect to the operation thereof outside
the ordinary course of business without Buyer's prior written consent. In
connection therewith, Seller covenants to make all necessary repairs and
replacements until the Closing so that the Property shall be of substantially
the same quality and condition at the time of Closing as on the date hereof.
Seller covenants not to remove from the Improvements or the Real Property any
article included in the Personal Property. Seller covenants to maintain such
casualty and liability insurance on the Property as it is presently being
maintained.
4.11 Permits and Zoning. To the best knowledge of Seller,
there are no material permits and licenses (collectively referred to as
"Permits") required to be issued to Seller by any governmental body, agency or
department having jurisdiction over the Property which materially affect the
ownership or the use thereof which have not been issued. The use of the Property
is consistent with the land use designation and zoning for the Property. There
are no outstanding assessments, impact fees or other charges related to the
Property.
4.12 Rent Roll; Tenant Estoppel Letters. To the best knowledge
of Seller, the Rent Roll is true and correct in all material respects, to be
certified by Lat Xxxxxx & Associates, Inc., in the form of certificate attached
hereto as Exhibit . Seller agrees to use its best reasonable efforts to obtain
current Tenant Estoppel Letters acceptable to Buyer from all Tenants under
Leases, which Tenant Estoppel Letters shall confirm the matters reflected by the
Rent Roll as to the particular tenant and shall be otherwise acceptable to Buyer
in all material respects.
4.13 Condemnation. To the best of Seller's knowledge, neither
the whole nor any portion of the Property, including access thereto or any
easement benefitting the Property, is subject to temporary requisition of use by
any governmental authority or has been condemned, or taken in any proceeding
similar to a condemnation proceeding, nor is there now pending any condemnation,
expropriation, requisition or similar proceeding against the
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Property or any portion thereof. Seller has received no notice nor has any
knowledge that any such proceeding is contemplated.
4.14 Governmental Matters. Seller has not entered into any
commitments or agreements with any governmental authorities or agencies
affecting the Property that have not been disclosed in writing to Buyer and
Seller has received no notices from any such governmental authorities or
agencies of uncured violations at the Property of building, fire, air pollution
or zoning codes, rules, ordinances or regulations, environmental and hazardous
substances laws, or other rules, ordinances or regulations relating to the
Property.
4.15 Repairs. Seller has received no notice of any
requirements or recommendations by any lender, insurance companies, or
governmental body or agencies requiring or recommending any repairs or work to
be done on the Property (other than repairs made in the ordinary course of
business) which have not already been completed.
4.16 Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by Seller nor the consummation by
Seller of the transactions contemplated hereby will (a) require Seller to file
or register with, notify, or obtain any permit, authorization, consent, or
approval of, any governmental or regulatory authority; (b) conflict with or
breach any provision of the organizational documents of Seller; (c) violate or
breach any provision of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, any note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation to which Seller is a
party, or by which Seller, the Property or any of Seller's material assets may
be bound; or (d) violate any order, writ, injunction, decree, judgment, statute,
law or ruling of any court or governmental authority applicable to Seller, the
Property or any of Seller's material assets.
4.17 Environmental Matters.
(a) Seller represents and warrants as of the date
hereof and as of the Closing that:
(1) Seller has not, and has no knowledge that
any other person has, caused any Release, threatened Release, or
disposal of any Hazardous Material at the Property in any material
quantity; and
(2) To Seller's knowledge, the Property does
not now contain and to the best of Seller's knowledge has not
contained any: (a) underground storage tank, (b) material amounts
of asbestos-containing building material, (c) landfills or dumps,
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(d) drycleaning plant or other facility using drycleaning solvents; or (e)
hazardous waste management facility as defined pursuant to the Resource
Conservation and Recovery Act ("RCRA") or any comparable state law. The Property
is not a site on or nominated for the National Priority List promulgated
pursuant to Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA") or any state remedial priority list promulgated or published pursuant
to any comparable state law.
(b) It has delivered to Buyer copies of
environmental assessment reports for the Property dated _________________,
prepared by ______________________, receipt of which Buyer acknowledges. Seller
knows of the existence of, and has reviewed, no other environmental assessment
reports which concern the Property or any portion thereof.
(c) During the Inspection Period Buyer may cause
additional environmental assessments to be performed. Should an environmental
condition be discovered and disclosed to Buyer prior to Closing, Buyer's remedy
shall be to terminate the Agreement, in which event the Xxxxxxx Money Deposit
shall be returned to Buyer, or Buyer may waive such condition and proceed to
Closing. Buyer shall have no other remedy with respect to such pre-closing
discovery, if any, of environmental conditions.
(d) Seller shall indemnify, hold harmless, and
hereby waives any claim for contribution against Buyer for any damages to the
extent they arise from the inaccuracy or breach of any representation or
warranty by Seller in this section of this Agreement. This indemnity shall
survive Closing for a period of two (2) years and shall be in addition to the
post-closing indemnities contained in Section .
4.18 No Untrue Statement. Neither this Agreement nor any
exhibit nor any written statement or Transaction Document furnished or to be
furnished by Seller to Buyer in connection with the transactions contemplated by
this Agreement contains or will contain any untrue statement of material fact or
omits or will omit any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
4.19 As-Is Acquisition. Buyer acknowledges that, except as
expressly represented and warranted by Seller in this Agreement, there have been
no representations or warranties, express or implied, upon which Buyer is
relying which have been made by Seller or upon Seller's behalf relating in any
way to the Property, including, without limitation, the condition of the
Property, any restrictions related to or approvals required for the development
of the Property, or the suitability of the Property for any purposes whatsoever,
and that subject to any and all conditions to Buyer's obligations described in
this Agreement and to Seller's
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representations and warranties expressed in this Agreement, Buyer is acquiring
the Property "as is," subject to all faults of every kind and nature whatsoever
whether latent or patent and whether now or hereafter existing. Seller shall not
be responsible for any work or improvement necessary to cause the Property to
meet any applicable law, ordinance, regulation or code or to be suitable for any
particular use or for any other work except that which is covered by an express
warranty or representation made herein by Seller.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER.
Buyer hereby warrants and represents as of the date of this Agreement
and as of the Closing and where indicated covenants and agrees as follows:
5.1 Organization; Authority. Buyer is a corporation duly
organized, validly existing and in good standing under laws of Florida and has
full power and authority to enter into and perform this Agreement in accordance
with its terms, and the persons executing this Agreement and other Transaction
Documents on behalf of Buyer have been duly authorized to do so.
5.2 Authorization; Validity. The execution, delivery and
performance of this Agreement and the other Transaction Documents have been duly
and validly authorized by the Board of Directors of Buyer. This Agreement has
been duly and validly executed and delivered by Buyer and (assuming the valid
execution and delivery of this Agreement by Seller) constitutes a legal, valid
and binding agreement of Buyer enforceable against it in accordance with its
terms.
5.3 Commissions. Buyer has neither dealt with nor does it have
any knowledge of any broker or other party who has or may have any claim against
Buyer or Seller for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transaction provided herein except
Xxxxxx X. Xxxxxx/Lat Xxxxxx & Associates, Inc., whose commission shall be paid
by Seller as provided above; and Buyer agrees to indemnify Seller from any other
such claim arising by, through or under Buyer.
6. POSSESSION; RISK OF LOSS.
6.1 Possession. Possession of the Property will be
transferred to Buyer at the conclusion of the Closing.
6.2 Risk of Loss. All risk of loss to the Property shall
remain upon Seller until the conclusion of the Closing. If, before the
possession of the Property has been transferred to Buyer, any material portion
of the Property is damaged by fire or other casualty and will not be restored by
the Closing Date or if any material portion of the Property is taken by eminent
domain or
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there is a material obstruction of access to the Improvements by virtue of a
taking by eminent domain, Seller shall, within ten (10) days of such damage or
taking, notify Buyer thereof and Buyer shall have the option to:
(a) terminate this Agreement upon notice to Seller
given within ten (10) business days after such notice from Seller, in which case
Buyer shall receive a return of its Xxxxxxx Money Deposit; or
(b) proceed with the purchase of the Property, in
which event Seller shall assign to Buyer all Seller's right, title and interest
in all amounts due or collected by Seller under the insurance policies or as
condemnation awards. In such event, the Purchase Price shall be reduced by the
amount of any insurance deductible to the extent it reduced the insurance
proceeds payable.
7. TITLE MATTERS.
7.1 Title.
(a) Title Insurance. Prior to the end of the
Inspection Period Buyer shall order the Title Insurance Commitment from Chicago
Title Insurance Company and the Survey from a reputable surveyor familiar with
the Property (Seller agreeing to furnish to Buyer copies of any existing surveys
and title information in its possession promptly after execution of this
Agreement). Buyer will have ten (10) days from receipt of the Title Commitment
(including legible copies of all recorded exceptions noted therein) and Survey
to notify Seller in writing of any Title Defects, encroachments or other matters
not acceptable to Buyer which are not permitted by this Agreement. Any Title
Defect or other objection disclosed by the Title Insurance Commitment (other
than liens removable by the payment of money) or the Survey which is not timely
specified in Buyer's written notice to Seller of Title Defects shall be deemed a
Permitted Exception. Seller shall notify Buyer in writing within five (5) days
of Buyer's notice if Seller intends to cure any Title Defect or other objection.
If Seller elects to cure, Seller shall use diligent efforts to cure the Title
Defects and/or objections by the Closing Date (as it may be extended). If Seller
elects not to cure or if such Title Defects and/or objections are not cured,
Buyer shall have the right, in lieu of any other remedies, to: (i) refuse to
purchase the Property, terminate this Agreement and receive a return of the
Xxxxxxx Money Deposit; or (ii) waive such Title Defects and/or objections and
close the purchase of the Property subject to them.
(b) Miscellaneous Title Matters. If a search of
the title discloses judgments, bankruptcies or other returns against other
persons having names the same as or similar to that of Seller, Seller shall on
request deliver to Buyer an affidavit
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stating, if true, that such judgments, bankruptcies or the returns are not
against Seller. Seller further agrees to execute and deliver to the Title
Insurance agent at Closing such documentation, if any, as the Title Insurance
underwriter shall reasonably require to evidence that the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized and that there are no mechanics' liens on the Property
or parties in possession of the Property other than tenants under Leases and
Seller.
8. CONDITIONS PRECEDENT.
8.1 Conditions Precedent to Buyer's Obligations. The
obligations of Buyer under this Agreement are subject to satis-
faction or waiver by Buyer of each of the following conditions or
requirements on or before the Closing Date:
(a) Seller's warranties and representations under
this Agreement shall be true and correct as of the Closing Date, and Seller
shall not be in default hereunder.
(b) All obligations of Seller contained in this
Agreement, shall have been fully performed in all material respects and Seller
shall not be in default under any covenant, restriction, right-of-way or
easement affecting the Property.
(c) No tenant occupying more than 5,000 square feet
nor an aggregate of any three tenants, regardless of size, has vacated the
Property, filed any proceeding (or been the subject of the filing of any
proceeding) under the National Bankruptcy Act, terminated its lease or otherwise
defaulted under its lease.
(d) A Title Insurance Commitment in the full amount
of the Purchase Price shall have been issued and "marked down" through Closing,
subject only to Permitted Exceptions, and the survey shall have been obtained by
Buyer.
(e) The physical and environmental condition of the
Property shall be unchanged from the date of this Agreement, ordinary wear and
tear excepted.
(f) Seller shall have delivered to Buyer the
following in form reasonably satisfactory to Buyer:
(1) A special warranty deed in the form
approved by the North Carolina Bar Association, executed in the proper form for
recording, duly executed and acknowledged so as to convey to Buyer the fee
simple title to the Property, subject only to the Permitted Exceptions;
(2) Originals, if available, or if not, true
copies of the Leases and of the contracts, agreements, permits and
- 16 -
licenses, and such Materials as may be in the possession or control
of Seller;
(3) A blanket assignment to Buyer of all
Leases and the contracts, agreements, permits and licenses (to the extent
assignable) as they affect the Property, including an indemnity against breach
of such instruments by Seller prior to the Closing Date, and an indemnity from
Buyer for breach of such instruments by Buyer after the Closing Date;
(4) A xxxx of sale with respect to the
Personal Property and Materials;
(5) A title certificate, properly endorsed by
Seller, as to any items of Property for which title certificates
exist;
(6) Intentionally omitted;
(7) A current rent roll for all Leases in
effect showing no changes from the rent roll attached to this Agreement other
than those set forth in the Leases or approved in writing by Buyer;
(8) All Tenant Estoppel Letters obtained by
Seller, which must include Bi-Lo, Baby Superstore, Western Auto and Revco and
eighty percent (80%) of the other tenants who have signed leases for any portion
of the Property, without any material exceptions, covenants, or changes to the
form of Tenant Estoppel Letter (except as noted in Section above) and
distributed to the tenants by Seller, the substance of which Tenant Estoppel
Letters must be acceptable to Buyer in all respects, and the certificate of
Seller as landlord, or of Lat Xxxxxx & Associates, Inc., as property manager on
behalf of Landlord, for all of the remaining tenants certifying as to the
substance of the form of Tenant Estoppel Letter, excluding paragraphs 10 and 11
thereof;
(9) A general assignment of all assignable
existing warranties relating to the Property (the costs of the
transfers of such, if any, to be borne by Buyer);
(10) An owner's affidavit, non-foreign affida-
vits, non-tax withholding certificates and such other documents as may
reasonably be required by Buyer or its counsel in order to effectuate the
provisions of this Agreement and the transactions contemplated herein;
(11) The originals or copies of any real and
tangible personal property tax bills for the Property for the tax year of
Closing and the previous year, and, if requested, the originals or copies of any
current water, sewer and utility bills which are in Seller's custody or control;
- 17 -
(12) Resolutions of Seller authorizing the
transactions described herein;
(13) All keys and other means of access to the
Improvements in the possession of Seller or its agents;
(14) Materials; and
(15) Such other documents as Buyer may
reasonably request to effect the transactions contemplated by this
Agreement.
(g) Full execution and delivery to Buyer of an
amendment to the Bi-Lo lease evidencing Bi-Lo's expansion and commitment to pay
additional rent (new annual rent of $380,620) and extension of term (20 yrs.).
The cost of Bi-Lo's expansion will be at Seller's expense and the payment due
Bi-Lo as consideration therefor under the Bi-Lo lease shall be escrowed with
Escrow Agent at Closing under an escrow agreement which is mutually acceptable
to Buyer and Seller, or alternatively, the Bi-Lo Lease shall be amended in
accordance with the proposed letter agreement attached hereto as Exhibit , the
form and substance of such lease amendment to be satisfactory to Buyer in all
respects.
(h) Baby Superstore's opening and commencement of
annual rent payments on a monthly basis in the amounts specified in its lease.
All free rent and inducement costs to be Seller's expense and to be paid to Baby
Superstore at or before Closing such that full rent and other sums due under the
Lease will be payable from and after Closing, the same to be verified by Baby
Superstore by a lease amendment and in its Tenant Estoppel Letter.
(i) Simultaneous closing of acquisition by Buyer
from Charlotte Capital Partnership of Carmel Commons Shopping
Center in Mecklenburg County, North Carolina, pursuant to Purchase
and Sale Agreement of even date herewith.
In the event that all of the foregoing provisions of this
Section are not satisfied and Buyer elects in writing to terminate this
Agreement, then the Xxxxxxx Money Deposit shall be promptly delivered to Buyer
by Escrow Agent and, upon the making of such delivery, neither party shall have
any further claim against the other by reasons of this Agreement, except as
provided in Article . Upon Closing, all conditions precedent shall be deemed
satisfied or waived, unless otherwise agreed by Seller and Buyer.
8.2 Conditions Precedent to Seller's Obligations. The
obligations of Seller under this Agreement are subject to satisfac-
tion or waiver by Seller of each of the following conditions or
requirements on or before the Closing date:
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(a) Buyer's warranties and representations under
this Agreement shall be true and correct as of the Closing Date, and Buyer shall
not be in default hereunder.
(b) All of the obligations of Buyer contained in
this Agreement shall have been fully performed by or on the date of Closing in
compliance with the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Seller at or
prior to the Closing the following, which shall be reasonably
satisfactory to Seller:
(d) Simultaneous closing of acquisition by Buyer
from Charlotte Capital Partnership of Carmel Commons Shopping
Center in Mecklenburg County, North Carolina, pursuant to Purchase
and Sale Agreement of even date herewith.
(1) Delivery and/or payment of the balance of
the Purchase Price in accordance with Section at Closing;
(2) Such other documents as Seller may
reasonably request to effect the transactions contemplated by this
Agreement.
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
have not, and Seller elects in writing to terminate this Agreement, then the
Xxxxxxx Money Deposit shall be promptly delivered to Seller by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
against the other by reasons of this Agreement, except as provided in Article .
Upon Closing, all conditions precedent shall be deemed satisfied or waived,
unless otherwise agreed by Seller and Buyer.
8.3 Best Efforts. Each of the parties hereto agrees to
use reasonable best efforts to take or cause to be taken all
actions necessary, proper or advisable to consummate the trans-
actions contemplated by this Agreement.
9. PRE-CLOSING BREACH; REMEDIES.
9.1 Breach by Seller. In the event of a breach of Seller's
covenants or warranties herein and failure by Seller to cure such breach within
the time provided for Closing, Buyer may, at Buyer's election (i) terminate this
Agreement and receive a return of the Xxxxxxx Money Deposit, and the parties
shall have no further rights or obligations under this Agreement (except as
survive termination); (ii) enforce this Agreement by suit for specific
performance; or (iii) waive such breach and close the purchase contemplated
hereby, notwithstanding such breach.
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9.2 Breach by Buyer. In the event of a breach of Buyer's
covenants or warranties herein and failure of Buyer to cure such breach within
the time provided for Closing, Seller's sole remedy shall be to terminate this
Agreement and retain Buyer's Xxxxxxx Money Deposit as agreed liquidated damages
for such breach, and upon payment in full to Seller of such amounts, the parties
shall have no further rights, claims, liabilities or obligations under this
Agreement (except as survive termination).
10. POST CLOSING INDEMNITIES AND COVENANTS.
10.1 Seller's Indemnity. Should this transaction close,
Seller, subject to the limitations set forth herein, shall indemnify, defend and
hold harmless Buyer from all claims, demands, liabilities, damages, penalties,
costs and expenses, including, without limitation, reasonable attorneys' fees
and disbursements, which may be imposed upon, asserted against or incurred or
paid by Buyer by reason of, or on account of, any material breach by Seller of
Seller's warranties, representations and covenants. Seller's warranties,
representations and covenants, and the foregoing indemnity, shall survive the
Closing for a period of six (6) months only following the Closing Date, after
which six-month period all indemnities, representations, warranties, covenants,
or other obligations of Seller contained or referenced in this Agreement (other
than title warranties and the environmental indemnity set forth in Section ),
shall be deemed to have terminated, and shall be null and void and of no further
force and effect. Any claim for indemnification under the provisions of Section
must be made in writing within six (6) months following the Closing Date.
10.2 Buyer's Indemnity. Should this transaction close, Buyer
shall indemnify, defend and hold harmless Seller from all claims, demands,
liabilities, damages, penalties, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, which may be imposed
upon, asserted against or incurred or paid by Seller by reason of, or on account
of, any breach by Buyer of Buyer's warranties, representations and covenants.
Buyer's warranties, representations and covenants, and the foregoing indemnity,
shall survive the Closing, after which six-month period all indemnities,
representations, warranties, covenants, or other obligations of Buyer contained
or referenced in this Agreement shall be deemed to have terminated, and shall be
null and void and of no further force and effect. Any claim for indemnification
under the provisions of Section must be made in writing within six (6) months
following the Closing Date.
11. MISCELLANEOUS.
11.1 Disclosure. Neither party shall disclose the trans-
actions contemplated by this Agreement without the prior approval
of the other, except to its attorneys, accountants and other
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consultants, their lenders and prospective lenders, or where
disclosure is required by law.
11.2 Entire Agreement. This Agreement, together with the
Exhibits attached hereto, constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and may not be modified,
amended or otherwise changed in any manner except by a writing executed by Buyer
and Seller.
11.3 Notices. All written notices and demands of any kind
which either party may be required or may desire to serve upon the other party
in connection with this Agreement shall be served by personal delivery,
certified or overnight mail, reputable overnight courier service or facsimile
(followed promptly by hard copy) at the addresses set forth below:
As to Seller: Wake Capital Partnership
c/o Lat Xxxxxx & Associates, Inc.
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxx X. Xxxxxxxxx, Esq.
Xxxx Xxxxxxx & Xxxxxxxxx, P.L.L.C.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
As to Buyer: RRC Acquisitions, Inc.
Xxxxx 000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Rogers, Towers, Xxxxxx, Xxxxx & Gay
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any notice or demand so served shall constitute proper notice hereunder upon
delivery to the United States Postal Service or to such overnight courier. A
party may change its notice address by notice given in the aforesaid manner.
11.4 Headings. The titles and headings of the various
sections hereof are intended solely for means of reference and are
- 21 -
not intended for any purpose whatsoever to modify, explain or place any
construction on any of the provisions of this Agreement.
11.5 Validity. If any of the provisions of this Agreement or
the application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.6 Attorneys' Fees. In the event of any litigation between
the parties hereto to enforce any of the provisions of this Agreement or any
right of either party hereto, the unsuccessful party to such litigation agrees
to pay to the successful party all costs and expenses, including reasonable
attorneys' fees, whether or not incurred in trial or on appeal, incurred therein
by the successful party, all of which may be included in and as a part of the
judgment rendered in such litigation. Any indemnity provisions herein shall
include indemnification for reasonable attorneys' fees and costs, whether or not
suit be brought and including fees and costs on appeal.
11.7 Time of Essence. Time is of the essence of this
Agreement.
11.8 Governing Law. This Agreement shall be governed by the
laws of North Carolina and the parties hereto agree that any litigation between
the parties hereto relating to this Agreement shall take place (unless otherwise
required by law) in a court located in Buncombe County, State of North Carolina.
Each party waives its right to jurisdiction or venue in any other location.
11.9 Successors and Assigns. The terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. No third parties, including any
brokers or creditors, shall be beneficiaries hereof.
11.10 Exhibits. All exhibits attached hereto are incorporated
herein by reference to the same extent as though such exhibits were included in
the body of this Agreement verbatim.
11.11 Gender; Plural; Singular; Terms. A reference in this
Agreement to any gender, masculine, feminine or neuter, shall be deemed a
reference to the other, and the singular shall be deemed to include the plural
and vice versa, unless the context otherwise requires. The terms "herein,"
"hereof," "hereunder," and other words of a similar nature mean and refer to
this Agreement as a whole and not merely to the specified section or clause in
which the respective word appears unless expressly so stated.
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11.12 Further Instruments, Etc. Seller and Buyer shall,
at or after Closing, execute any and all documents and perform any
and all acts reasonably necessary to fully implement this
Agreement.
11.13 Survival. Subject to the time limitations set forth in
Section , the obligations of Seller and Buyer intended to be performed after the
Closing shall survive the closing.
11.14 No Recording. Neither this Agreement nor any
notice, memorandum or other notice or document relating hereto
shall be recorded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses:
RRC ACQUISITIONS, INC.,
____________________________ a Florida corporation
[ - - - - - - - - - - - - - ]
Name (Please Print)
By:_________________________
____________________________ Its: ________________________
[ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: February ____, 1997
Name (Please Print)
Tax Identification No. 00-0000000
"BUYER"
WAKE CAPITAL PARTNERSHIP,
____________________________ a North Carolina general partnership
[ - - - - - - - - - - - - - ]
Name (Please Print)
By:_________________________
____________________________ Its:________________________
[ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: February ____, 1997
Name (Please Print)
Tax Identification No. _____________
"SELLER"
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JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of acknowledging
receipt of the initial Xxxxxxx Money Deposit and agrees to comply with the terms
hereof insofar as they apply to Escrow Agent. Escrow Agent shall receive and
hold the Xxxxxxx Money Deposit in trust, to be disposed of in accordance with
the provisions of this joinder and Section of the foregoing Agreement.
2. Indemnity. Escrow Agent shall not be liable to either party except
for claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow
Agent with respect to the escrow, the parties hereto expressly agree that Escrow
Agent shall have the absolute right to do either or both of the following: (i)
withhold and stop all proceedings in performance of this escrow and await
settlement of the controversy by final appropriate legal proceedings or
otherwise as it may require; or (ii) file suit for declaratory relief and/or
interpleader and obtain an order from the court requiring the parties to
interplead and litigate in such court their several claims and rights between
themselves. Upon the filing of any such declaratory relief or interpleader suit
and tender of the Xxxxxxx Money Deposit to the court, Escrow Agent shall
thereupon be fully released and discharged from any and all obligations to
further perform the duties or obligations imposed upon it. Buyer and Seller
agree to respond promptly in writing to any request by Escrow Agent for
clarification, consent or instructions. Any action proposed to be taken by
Escrow Agent for which approval of Buyer and/or Seller is requested shall be
considered approved if Escrow Agent does not receive written notice of
disapproval within fourteen (14) days after a written request for approval is
received by the party whose approval is being requested. Escrow Agent shall not
be required to take any action for which approval of Buyer and/or Seller has
been sought unless such approval has been received. No disbursements shall be
made, other than as provided in Sections and of the foregoing Agreement, or to a
court in an interpleader action, unless Escrow Agent shall have given written
notice of the proposed disbursement to Buyer and Seller and neither Buyer nor
Seller shall have delivered any written objection to the disbursement within 14
days after receipt of Escrow Agent's notice. No notice by Buyer or Seller to
Escrow Agent of disapproval of a proposed action shall affect the right of
Escrow Agent to take any action as to which such approval is not required.
4. Continuing Counsel. Seller acknowledges that Escrow Agent is counsel
to Buyer herein and Seller agrees that in the event of a dispute hereunder or
otherwise between Seller and Buyer, Escrow Agent may continue to represent Buyer
notwithstanding that it is acting and will continue to act as Escrow Agent
hereunder, it being acknowledged by all parties that Escrow Agent's duties
hereunder are ministerial in nature.
5. Tax Identification. Seller and Buyer shall provide to
Escrow Agent appropriate Federal tax identification numbers.
CHICAGO TITLE INSURANCE COMPANY
By:_____________________________
Its Authorized Agent
Date: ______________, 1997
"ESCROW AGENT"
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EXHIBIT 1.3
Audit Representation Letter
------------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
Xxxxx 0000
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
We are writing at your request to confirm our understanding that your
audit of the Statement of Revenue and Certain Expenses for the twelve months
ended ________________, was made for the purpose of expressing an opinion as to
whether the statement presents fairly, in all material respects, the results of
its operations in conformity with generally accepted accounting principles. In
connection with your audit we confirm, to the best of our knowledge and belief,
the following representations made to you during your audit:
1. We have made available to you all financial records and
related data for the period under audit.
2. There have been no undisclosed:
a. Irregularities involving any member of management or
employees who have significant roles in the internal control
structure.
b. Irregularities involving other persons that could
have a material effect on the Statement of Revenue and Certain
Expenses.
c. Violations or possible violations of laws or
regulations, the effects of which should be considered for
disclosure in the Statement of Revenue and Certain Expenses.
3. There are no undisclosed:
a. Unasserted claims or assessments that our lawyers
have advised us are probable of assertion and must be disclosed in
accordance with Statement of Financial Accounting Standards No. 5
(SFAS No. 5).
b. Material gain or loss contingencies (including oral
and written guarantees) that are required to be accrued or
disclosed by SFAS No. 5.
c. Material transactions that have not been properly
recorded in the accounting records underlying the Statement of
Revenue and Certain Expenses.
d. Material undisclosed related party transactions and related
amounts receivable or payable, including sales, purchases, loans, transfers,
leasing arrangements, and guarantees.
e. Events that have occurred subsequent to the balance
sheet date that would require adjustment to or disclosure in the
Statement of Revenue and Certain Expenses.
4. All aspects of contractual agreements that would have a material
effect on the Statement of Revenue and Certain Expenses have been complied with.
Further, we acknowledge that we are responsible for the fair
presentation of the Statements of Revenue and Certain Expenses prepared in
conformity with generally accepted accounting principles.
Very truly yours,
Seller/Manager
Name:________________________
Title________________________
- 2 -
EXHIBIT 1.25
Legal Description of Real Property
All of that certain tract of land located in Asheville, Buncombe
County, North Carolina, and more particularly described as follows:
BEGINNING at a point, said point being located North 36 deg. 57' 28"
West 1779.82 feet from a U.S.C. & G.S. monument labeled "A- 142 RESET," said
beginning point also being situated at the intersections of the I-240
right-of-way and the new U.S. 74 right-of-way, thence with the U.S. 74
right-of-way North 35 deg. 44' 59" East 234.87 feet to a point, thence
continuing with said right-of-way North 48 deg. 00' 52" East 624.71 feet to a
point, thence South 05 deg. 14' 50" East 140.08 feet to a point, thence North 84
deg. 04' 50" East 185.99 feet to a point, thence North 05 deg. 13' 00" West
105.84 feet to a point, thence North 42 deg. 17' 00" West 140.00 feet to a point
in the aforesaid U.S. 74 right-of-way, thence with said right-of-way along a
curve to the left which has a radius of 810.64 feet, an arc length of 173.40
feet to a point, thence South 59 deg. 00' 47" East 85.18 feet to a point, thence
North 81 deg. 17' 48" East 10.99 feet to a point in the right-of-way of N.C.
Xxxxx Xxxx Xx. 0000, thence with said right-of-way South 08 deg. 38' 46" East
880.99 feet to a point, thence leaving said right-of-way South 86 deg. 38' 57"
West 482.23 feet to a point, thence South 89 deg. 06' 27" West 167.26 feet to a
point, thence South 68 deg. 05' 16" West 213.58 feet to a point in the I- 240
right-of-way, thence with said right-of-way North 41 deg. 56' 38" West 252.94
fee to the point and place of BEGINNING, as shown on survey dated August 1,
1988, prepared by Long & Associates, P.A., entitled "Oakley Plaza."
BEING all of that real property conveyed to Wake Capital Partnership by
warranty deed from Wake Capital Partners, Inc., recorded in Book 1589, page 372,
in the Buncombe County Registry.
EXHIBIT 1.27
Rent Roll
EXHIBIT 1.32
Form of Tenant Estoppel Letter
_____________________, 199_
RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised you may purchase the above
Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of _____________________
________________, Landlord, in the above Shopping Center, and is currently in
possession and paying rent on premises known as Store No. _______________ [or
Address: _________________________ _______________________________________], and
containing approximately _____________ square feet, under the terms of the lease
dated ______________________, which has (not) been amended by amendment dated
________________________ (the "Lease"). There are no other written or oral
agreements between Tenant and Landlord. Tenant neither expects nor has been
promised any inducement, concession or consideration for entering into the
Lease, except as stated therein, and there are no side agreements or
understandings between Landlord and Tenant.
2. The term of the Lease commenced on ___________________,
expiring on ___________________, with options to extend of
________________ (____) years each.
3. As of ____________________, monthly minimum rental is
$_______________ a month.
4. Tenant is required to pay its pro rata share of Common Area Expenses
and its pro rata share of the Center's real property taxes and insurance cost.
Current additional monthly payments for expense reimbursement total
$____________ per month for common area maintenance, property insurance and real
estate taxes.
5. Tenant has given [no security deposit] [a security
deposit of $______________].
6. No payments by Tenant under the Lease have been made for more than
one (1) month in advance, and minimum rents and other charges under the Lease
are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the Tenant's premises
and development of the Shopping Center, including without limitation, parking
requirements, have been performed by Landlord.
8. The Lease contains no first right of refusal, option to
expand, option to terminate, or exclusive business rights, except
as follows:
9. Tenant knows of no default by either Landlord or Tenant under the
Lease, and knows of no situations which, with notice or the passage of time, or
both, would constitute a default. Tenant has no rights to off-set or defense
against Landlord as of the date hereof.
10. The undersigned has not entered into any sublease,
assignment or any other agreement transferring any of its interest
in the Lease or the Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or
released any hazardous substances at, on or in the Premises. "Hazardous
Substances" means any flammable, explosive, toxic, carcinogenic, mutagenic, or
corrosive substance or waste, including volatile petroleum products and
derivatives and drycleaning solvents. To the best of Tenant's knowledge, no
asbestos or polychlorinated biphenyl ("PCB") is located at, on or in the
Premises. The term "Hazardous Substances" does not include those materials which
are technically within the definition set forth above but which are contained in
pre-packaged office supplies, cleaning materials or personal grooming items or
other items which are sold for consumer or commercial use and typically used in
other similar buildings or space.
The undersigned makes this statement for your benefit and protection
with the understanding that you intend to rely upon this statement in connection
with your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
------------------------------
______________________(Tenant)
Mailing Address:
------------------------------
By:___________________________
Its:__________________________
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EXHIBIT 4.12
Form of Manager's Certificate
Certification of Leases
THIS CERTIFICATION OF LEASES ("Certification") is made this
____ day of ____________, 19___, by LAT XXXXXX & ASSOCIATES, INC.
("Lat Xxxxxx"), in favor of ____________________________________
("Seller") and RRC ACQUISITIONS, INC. ("Buyer").
WHEREAS, Seller and Buyer have entered into that certain Purchase and
Sale Agreement for the sale and purchase of that certain real property and
improvements known as Oakley Plaza, located in Asheville, North Carolina (the
"Property");
WHEREAS, Lat Xxxxxx is the property manager of the Property;
and
WHEREAS, Seller and Buyer have requested that Lat Xxxxxx provide this
Certification in connection with the sale of the Property and Lat Xxxxxx has
agreed to provide the same;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lat Xxxxxx hereby certifies the
following to Seller and Buyer as of the date hereof:
1. The lease agreements, and amendments and modifications thereto,
attached to this Certification (collectively, "Leases") are all the leases
affecting the Property. The Rent Roll attached hereto is true and accurate in
all material respect, and the Leases are in full force and effect. There are no
modifications and amendments to any of such Leases except as stated in the Rent
Roll.
2. Seller as landlord under the Leases is not in default under the
Leases and none of the tenants under the Leases is in default thereunder, except
as set forth on the Rent Roll.
IN WITNESS WHEREOF, Lat Xxxxxx has executed this Certification as of
the day and year first above written.
LAT XXXXXX & ASSOCIATES, INC.
By:_________________________
Name:_______________________
Title:______________________
EXHIBIT
January _____, 1997
BI-LO, Inc.
Industrial Xxxxxxxxx
Xxxx Xxxxxx Xxxxxx 00
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:_______________________
RE: Lease By and Between Wake Capital Partnership and BI-LO,
Inc. ("BI-LO") for BI-LO Store Located at Oakley Plaza
Shopping Center, Asheville, Buncombe County, North
Carolina
Dear Sir or Madam:
As discussed, Wake Capital Partnership has decided to sell the Oakley
Plaza Shopping Center, the location of your above referenced store. Upon the
closing of the sale, we prefer to immediately pay to BI-LO the total amount of
One Million Two Hundred Thousand and 00/100 Dollars ($1,200,000.00) representing
the Landlord's reimbursement obligation for the store expansion and remodeling
costs, as detailed in the Lease Extension and Modification Agreement ( the
"Lease Modification"), dated July 19, 1996. Additionally, Wake Capital desires
to obtain BI-LO's acknowledgment of the proper name of Landlord's ownership
entity that holds the shopping center. Please let this letter serve as our
mutual agreement that:
(a) BI-LO will accept the said $1,200,000.00 payment prior to the
completion of its store expansion. Said payment will be in lieu of
and shall satisfy in full the payment required under Section 2 of
the Lease Modification; and
(b) Upon the date BI-LO receives the said $1,200,000.00 payment, and
irrespective of the completion at that time of the BI-LO store expansion:
(1) BI-LO's annual rent shall be adjusted and increased to Three
Hundred Eighty Thousand Six Hundred Twenty and 00/100 Dollars
($380,620.00), payable in monthly installments of Thirty-one
Thousand Seven Hundred Eighteen and 33/100 Dollars
($31,718.33) as detailed in Paragraph 6 of the Lease
Modification; and
(2) BI-LO's new twenty (20) year lease term shall commence as of
the first day of the next succeeding month following the date
of payment of the $1,200,000.00; and
(3) BI-LO will complete the construction and opening for business
in the expansion area at no cost or expense to Landlord no
later than March 1, 1998.
(4) The minimum sales base, as that term is defined in the Lease
Modification, shall be adjusted and increased to Thirty-eight
Million Sixty-two Thousand and 00/100 Dollars ($38,062,000.00)
as detailed in Paragraph 6 of the Lease Modification; and
(5) BI-LO's annual pro rata share of the Common Area Maintenance
Costs shall be adjusted and increased to Twelve Thousand and
00/100 Dollars ($12,000.00), payable in monthly installments
of One Thousand and 00/100 Dollars ($1,000.00), as detailed
and subject to adjustment in Paragraph 4 of the Lease
Modification; and
(6) The proper name of the Landlord and party to the Lease
Modification is Wake Capital Partnership, a North Carolina
general partnership. The Lease Agreement is hereby amended to
replace all references to the Landlord from "Wake Capital
Partners, Inc., a North Carolina corporation" to "Wake Capital
Partnership, a North Carolina general partnership," and
(7) Except as herein modified and amended, the terms and
provisions of the Lease Modification shall remain in full
force and effect as originally written.
If BI-LO agrees with the terms of this letter, please indicate your
acceptance where indicated below. Please keep one copy of this letter for your
files, and return the other to my attention. We will prepare a lease amendment
incorporating these provisions in order to have it ready for execution by March
1, 1997.
Sincerely,
LAT XXXXXX & ASSOCIATES, INC.
Agent for Wake Capital
Partnership, a North Carolina
general partnership
("Landlord")
------------------------------
Lat X. Xxxxxx, III
President
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The terms of this letter have been read and are hereby accepted on this
____ day of January, 1997.
BI-LO, INC. ("Tenant")
BY:___________________________
TITLE:________________________
WAKE CAPITAL PARTNERSHIP
BY:___________________________
Xxxxxx X. Xxxxxx
Managing General Partner
xxx\reg\oakley\xxx.xxx
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