Exhibit 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND
SALE AGREEMENT (the "Agreement") is made and entered into this 9th day of July, 2019, by and between RCG-Goldsboro,
LLC, a Georgia limited liability company (hereinafter referred to as "Seller"), and Medalist
Diversified Holdings, L.P., a Delaware limited partnership (hereinafter referred to as "Purchaser").
WITNESSETH:
WHEREAS, Seller
has offered to sell its right, title and interest in and to certain improved real property to Purchaser and Purchaser has offered
to purchase such interest in and to the property from Seller; and
WHEREAS, the
parties desire to provide for said purchase and sale on the terms and conditions hereinafter set forth;
NOW, THEREFORE,
for and in consideration of the foregoing premises, the mutual covenants and agreements set forth herein and other good and valuable
consideration, all of which each party respectively agrees constitutes sufficient consideration received at or before the execution
hereof, the parties hereto do hereby agree as follows:
1. DEFINITIONS
AND MEANINGS. In addition to any other terms whose definitions are fixed and defined by this Agreement, each of the following
defined terms, when used in this Agreement with an initial capital letter, shall have the meaning ascribed thereto by this Section
1:
1.1 Agreement
means this Purchase and Sale Agreement, together with all exhibits attached hereto.
1.2 Closing
means the consummation of the purchase and sale contemplated by this Agreement by the deliveries required under Section 10 hereof.
1.3 Closing
Date means the time and date, established under Subsection 10.1 hereof, when the purchase and sale contemplated by this
Agreement is to be consummated, as such date may be extended by mutual agreement of the parties or pursuant to the provisions of
this Agreement.
1.4 Due
Diligence Items means those documents and other items set forth on Schedule 1.4 hereof that are in Seller’s
possession.
1.5 Xxxxxxx
Money shall have the meaning set forth in Section 4.2.
1.6 Escrow
Agent means First American Title Insurance Company, located at Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxxx Xxxxxxxxx.
1.7 Execution
Date means the date on which this Agreement is duly executed by both Seller and Purchaser; and such date shall be inserted
in the preamble on the first page of this Agreement.
1.8 [Intentionally
deleted].
1.9 Hazardous
Substances mean any waste, substance or material determined to be hazardous, toxic, a pollutant or contaminate, under any
federal, state or local statute, law, ordinance, rule, regulation or judicial or administrative order or decision, now in effect,
including, without limitation, petroleum and petroleum products, flammable explosives, radioactive materials, asbestos or any material
containing asbestos, polychlorinated biphenyls and/or hazardous, toxic or dangerous wastes, substances or materials defined as
such, or as a hazardous substance or any similar term, by, in or for the purposes of (i) the Comprehensive Environmental Response,
Compensation and Liability Act (codified in scattered sections of 26 U.S.C., 33 U.S.C., 42 U.S.C. and 42 U.S.C. §9601 et
seq.)("CERCLA"); (ii) the Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 et seq.)("RCRA");
(iii) the Hazardous Substances Transportation Act (49 U.S.C. §1801 et seq.); (iv) the Toxic Substances Control Act
(15 X.X.X. §0000 et seq.); (v) the Clean Water Act (33 X.X.X. §0000 et seq.); (vi) the Clean Air Act (42
X.X.X. §0000 et seq., §7401 et seq. and §7601 et seq.); (vii) the Safe Drinking Water Act (21
X.X.X. §000, 00 X.X.X. §000 and §300f et seq.); (viii) the National Environmental Policy Act (42 X.X.X. §0000,
§§4331 to 4335, §4341 et seq. and §8473); (ix) the Superfund Amendments and Reauthorization Act of 1986
(codified in scattered sections of 10 U.S.C., 29 U.S.C., 33 U.S.C. and 42 U.S.C.); (x) Title III of the Superfund Amendment and
Reauthorization Act; (xi) the Uranium Mill Tailings Radiation Control Act (42 X.X.X. §0000 et seq.); (xii) the Occupational
Safety and Health Act of 1970 (29 U.S.C. §651 et seq.); (xiii) the Federal Insecticide, Fungicide and Rodenticide Act
(7 U.S.C. §136 et seq.); (xiv) the Noise Control Act (42 X.X.X. §0000 et seq.); (xv) the Emergency Planning
and Community Right-to-Know Act (42 U.S.C. §11001 et seq. and §11041 et seq.); and (xvi) Regulations of
Environmental Protection Agency, 33 C.F.R. and 40 C.F.R.
1.10 Inspection
Period means the period of time commencing on the Execution Date and ending at 5:00 P.M., Atlanta, Georgia time on the
day which is forty (40) days following the Execution Date.
1.11 Permitted
Exceptions means, other than any Mandatory Cure Items, any Title Objections to which Purchaser fails to object or which
Purchaser waives pursuant to Section 5 hereof.
1.12 Property
means collectively all of the following:
(i) That
certain tract or parcel of real property commonly known as Ashley Plaza, located in Xxxxxxxxx, Xxxxx County, North Carolina, and
being more particularly described in the legal description attached hereto as Exhibit "A" and incorporated herein
by reference, together with all rights, interests, ways, privileges, easements, appurtenances, plants, shrubs and trees located
thereon or appurtenant thereto, and all right, title and interest of Seller in and to all public and private ways abutting, adjoining
or traversing said tracts or parcels of real property (collectively, the "Land");
(ii) all
buildings, structures, improvements, equipment, fixtures, appliances, mechanical, heating, ventilating, air conditioning, plumbing
and electrical systems and equipment and other improvements of any and every nature located on the Land (exclusive of personalty
owned or leased by any tenant occupying any portion of the Land) (the "Improvements");
(iii) all
personal property which is now owned or hereafter acquired by Seller prior to the Closing Date and used in connection with the
ownership, operation and maintenance of the Shopping Center (as hereinafter defined) and which is located at the Shopping Center
(the "Personalty");
(iv) all
of Seller's right, title and interest in and to (a) the leases with all amendments thereto described on Exhibit "C"
attached hereto and incorporated herein by reference, and (b) any other written lease or written rental, occupancy, concession
or license agreement entered into by Seller after the Execution Date which affects all or any portion of the Land and the Improvements
and pertains to the leasing, rental, occupancy or licensing of the Land and the Improvements, together with all rents, issues and
profits therefrom and security deposits thereunder (the "Tenant Leases");
(v) to
the extent assignable or transferable, all of Seller's right, title and interest in and to all warranties, guarantees and bonds
from third parties (including, without limitation, contractors, subcontractors, materialmen, suppliers, manufacturers, vendors
and distributors) received in connection with or relating to the Land, the Improvements or the Personalty or with respect to the
performance and quality of workmanship or the quality of materials relating to any of the foregoing (the "Warranties");
(vi) to
the extent assignable or transferable, all of Seller's right, title and interest in and to all permits, licenses, approvals, consents
and certificates affecting the construction, ownership, occupancy, operation, maintenance, use and manner of use of the Shopping
Center, including without limitation, zoning and variance approvals, special use or exception approvals or other zoning or building
approvals, building permits and certificates of occupancy, issued by all governmental authorities or agencies having jurisdiction
over any of the Shopping Center or the operation thereof (the "Permits");
(vii) to
the extent assignable or transferable, all "as built" surveys of the Property, "as built" plans and specifications
of the Improvements, building and landscape plans and specifications and blueprints and engineering and architectural drawings
relating to the Shopping Center (including any plans, specifications, blueprints or drawings for tenant improvements, outparcels
and future expansions or modifications of the Shopping Center) which are now or hereafter in the possession of Seller (the "Plans
and Specifications"); and
(viii) all
of Seller's right, title and interest in and to: the telephone numbers and listings for the Property (other than telephone numbers
and listing owned by Seller’s property manager); all master keys and keys to common areas, if any; the tradenames or fictitious
names of "Ashley Plaza" (collectively, the "Other Business Assets").
The types
or items of property described in subparagraphs (i) - (ix) above are sometimes hereinafter collectively referred to as the "Property",
and are commonly known collectively as of the Execution Date as "Ashley Plaza." The Property is also sometimes herein
referred to as the "Shopping Center."
1.13 Purchase
Price means the amount which Purchaser shall pay to consummate the purchase and sale of the Property as provided in Subsection
3.1 of this Agreement.
1.14 Title
Objection and Title Objections mean any deeds to secure debt, mortgages, liens, financing statements, security interests,
easements, leases, restrictive covenants, agreements, options, claims, clouds, encroachments, rights, taxes, assessments, mechanics'
or materialmen's liens (inchoate or perfected), liens for federal or state income, estate or inheritance taxes and other encumbrances
of any nature whatsoever, whether existing of record or otherwise, together with any and all matters of any kind or description,
including, without limitation, matters of survey and any litigation or other proceedings affecting Seller and which affect title
to the Property, or the right, power and authority of Seller to convey to Purchaser title to the Property, in accordance with the
terms of this Agreement, other than the Tenant Leases.
2. SALE
AND PURCHASE. Seller agrees to sell the Property to Purchaser on the terms and conditions contained in this Agreement, and
Purchaser agrees to purchase the Property from Seller on the terms and conditions contained in this Agreement.
3. PURCHASE
PRICE.
3.1 Amount
of Purchase Price. The Purchase Price for the Property shall be Fifteen Million Two Hundred Thousand and No/100 Dollars ($15,200,000.00).
3.2 Payment
of Purchase Price. On the Closing Date, Purchaser shall pay the balance of the Purchase Price to Seller in cash, federal funds
check or by wire transfer of immediately available funds to an account with a Federal Reserve member bank designated by Seller,
less a credit for the Xxxxxxx Money to the extent paid, and as adjusted pursuant to the adjustments and prorations provided herein.
4. XXXXXXX
MONEY.
4.1 Deposit.
Within three (3) business days following the Execution Date, Purchaser shall deposit the sum of One Hundred Thousand and No/100
Dollars ($100,000.00) with Escrow Agent as the xxxxxxx money deposit (the "Initial Xxxxxxx Money Deposit"). Upon the
expiration of the Inspection Period, in the event Purchaser does not terminate this Agreement pursuant to the terms hereof, the
Xxxxxxx Money shall become non-refundable and shall not be returnable to the Purchaser under any circumstances except as otherwise
expressly provided in this Agreement or in the event Seller defaults hereunder. If Purchaser shall validly exercise any right or
option under this Agreement to rescind, cancel or terminate this Agreement, the Xxxxxxx Money shall be immediately paid over and
refunded to Purchaser in accordance with the terms and conditions of an escrow agreement to be entered into by and between Seller,
Purchaser and Escrow Agent, which is attached hereto as Exhibit "D" and incorporated herein by reference (the
"Escrow Agreement"), in which event neither Seller nor Purchaser shall have any further rights, duties or obligations
under this Agreement, except as otherwise expressly provided herein. Escrow Agent shall promptly invest the Xxxxxxx Money and disburse
same in accordance with the terms, conditions and provisions of the Escrow Agreement, and interest and income earned thereon shall
accrue to and become part of the Xxxxxxx Money. Seller and Purchaser shall each pay one-half of Escrow Agent's fees and banking
charges for serving as escrow agent, if any. At and in the event of Closing, Escrow Agent shall tender the Xxxxxxx Money to Seller
on the Closing Date and the Xxxxxxx Money so delivered to Seller shall be applied and credited in reduction of the Purchase Price.
4.2 Additional
Xxxxxxx Money Deposit. In the event Purchaser does not elect to terminate this Agreement prior to the expiration of the Inspection
Period, within three (3) business days after the expiration of the Inspection Period, Purchaser shall deposit the additional sum
of One Hundred Thousand and No/100 Dollars ($100,000.00) with Escrow Agent (the “Additional Xxxxxxx Money Deposit”).
The Additional Xxxxxxx Money Deposit shall be held along with the Initial Xxxxxxx Money Deposit and shall be collectively referred
to as the "Xxxxxxx Money."
5. TITLE
EXAMINATION AND OBJECTIONS.
5.1 Title
Examination. Promptly after the Execution Date, Seller shall deliver to Purchaser a title insurance commitment for the Property
(the "Title Commitment") from Escrow Agent, in its capacity as a title insurance company (the "Title Company"),
which Title Commitment shall be certified to a current date and thereafter, if Purchaser does not elect to terminate this Agreement
prior to the expiration of the Inspection Period, updated prior to the Closing Date. On or before the day that is seven (7) business
days prior to the expiration of the Inspection Period, Purchaser may notify Seller, in writing (“Purchaser’s Title
Notice”), of (i) any matters shown on the Title Commitment or Survey (as defined herein) to which Purchaser objects; (ii)
any modifications, supplements and/or other modifications of the legal description, description of exceptions and/or other matters
set forth in the Title Commitment and/or Survey; and (iii) any endorsement and/or other affirmative title insurance coverage required
by Purchaser to be included in the Purchaser’s title insurance policy. Seller has no obligation to cure any Title Objection
other than the Mandatory Cure Items (as defined below). Within three (3) business days after receipt of Purchaser's Title Notice
(the "Election Date"), Seller shall notify Purchaser, in writing, of any Title Objections (other than the Mandatory Cure
Items) which it either refuses to cure or is unable to cure in a manner acceptable to Purchaser. The absence of such notice from
Seller shall be deemed to be Seller's election not to satisfy, correct or cure any objections set forth in the Purchaser’s
Title Notice.
5.2 Election
Not to Correct Title Objections. In the event Seller notifies Purchaser on or before the Election Date of its election not
to satisfy or correct any or all of the objections set forth in the Purchaser’s Title Notice (or is deemed to have elected),
Purchaser shall, by notice to Seller within two (2) business days after the Election Date, elect one of the following:
5.2.1 To
waive such Title Objection(s) identified in Purchaser’s Title Notice and to close the transaction in accordance with the
terms of this Agreement; or
5.2.2 To
terminate this Agreement by notice to Seller and to receive a complete refund of all the Xxxxxxx Money in accordance with the terms
hereof, together with all interest accrued thereon (less and except the sum of One Hundred Dollars ($100), which shall be paid
to Seller as consideration for entering into this Agreement), in which event neither Seller nor Purchaser shall have any further
rights, duties or obligations under this Agreement, except as otherwise expressly provided herein. If Purchaser fails to give a
written notice of termination within the time required herein, it shall be conclusively deemed that Purchaser has elected to waive
the Title Objections (other than the Mandatory Cure Items) not so corrected or removed, and accept them as Permitted Exceptions.
5.3 Mandatory
Cure Items. Notwithstanding anything herein to the contrary, Seller shall be obligated to remove or discharge the following:
any deed of trust, deed to secure debt, mortgage, financing statements or security interests entered into by or on behalf of Seller
encumbering the Property, and all judgments and liens against the Property caused by or on behalf of Seller (collectively, the
“Mandatory Cure Items”); provided, however, that Seller shall not be obligated to cure any lien or encumbrance caused
by or arising from Purchaser’s inspections of the Property.
5.4 Additional
Title Matters. In the event that any update(s) of the Title Commitment or Survey delivered after the date that Purchaser’s
Title Notice is required to be made under Section 5.1 discloses any matters not set forth in the original Title Commitment or the
Survey, then no later than five (5) business days after Purchaser’s receipt of the updated Title Commitment or update to
the Survey, as applicable, Purchaser shall give written notice (the “Additional Title Notice”) to Seller of any such
Title Objection disapproved by Purchaser. If Purchaser does not deliver the Additional Title Notice to Seller within the time-period
set forth above, then Purchaser shall be deemed to have waived any objections to such matters disclosed in the updated Title Commitment
or update of the Survey, as applicable, and such matters shall be considered Permitted Exceptions. In no event shall Seller intentionally
cause any matters to affect title to the Property after the expiration of the Inspection Period without Purchaser’s prior
written consent. Within three (3) business days after receiving the Additional Title Notice pursuant to this section, Seller will
notify Purchaser in writing which matters objected to in the Additional Title Notice, if any, Seller will cure, satisfy or remove
and Seller’s failure to so notify Purchaser will be deemed to be Seller’s notice that it will not cure, satisfy or
remove any matters raised in the Additional Title Notice objected to by Purchaser. In the event Seller elects to cure less than
all of the matters objected to in the Additional Title Notice, then Purchaser shall have the option to: (i) waive such Title Objection(s)
identified in the Additional Title Notice and to close the transaction in accordance with the terms of this Agreement, or (ii)
terminate this Agreement by notice to Seller and to receive a complete refund of all the Xxxxxxx Money in accordance with the terms
hereof, together with all interest accrued thereon (less and except the sum of One Hundred Dollars ($100), which shall be paid
to Seller as consideration for entering into this Agreement), in which event neither Seller nor Purchaser shall have any further
rights, duties or obligations under this Agreement, except as otherwise expressly provided herein, such option to be exercised
within two (2) business days following the date of Seller’s actual or deemed notification that Seller elects to cure less
than all of the matters properly objected to in the Additional Title Notice.
6. SELLER'S
REPRESENTATIONS AND WARRANTIES. As used in this Section 6, the phrase "to the extent of Seller's actual knowledge"
shall mean the actual knowledge of Xxxxxxx Xxxxx, Vice President of Operations for Seller’s affiliated property manager,
("Seller's Representative"). There shall be no duty imposed or implied to investigate, inspect or audit any such matters,
and there shall be no personal liability on the part of Seller's Representative. To the extent Purchaser has or acquires actual
knowledge prior to the Closing Date that these representations and warranties are inaccurate, untrue or incorrect in any material
way and thereafter elects to consummate the transactions contemplated by this Agreement, such representations and warranties shall
be deemed modified to reflect Purchaser's knowledge If at any xxxx Xxxxxx discovers that any of the warranties or representations
set forth herein is untrue, then Seller shall notify Purchaser of such discovery, in which event such warranty or representation
shall be deemed modified to the extent described in such notice. Upon Seller giving written notice to Purchaser of the modification
of any such warranty or representation, then, notwithstanding any other provision of this Agreement, Purchaser shall have five
(5) days after receipt of such notice to notify Seller of Purchaser’s election to terminate the Agreement. If Purchaser elects
to terminate the Agreement, neither party shall thereafter have any rights or obligations to the other hereunder, other than pursuant
to any provision hereof which expressly survives the termination of this Agreement, except that Purchaser will have the right to
have its out of pocket expenses (not to exceed $25,000) incurred in connection with the transaction that is the subject matter
of this Agreement reimbursed by Seller. As an inducement to Purchaser to enter into this Agreement and to purchase the Property,
Seller represents and warrants to Purchaser, as follows:
6.1 Authority.
Seller has the right, power and authority to enter into this Agreement and to consummate the transactions contemplated herein.
Seller is a limited liability company that is duly organized, validly existing and in good standing under the laws of the State
of Georgia and is qualified to transact business in the State of North Carolina.
6.2 Execution
and Delivery. The execution and delivery of this Agreement, and the performance and observance by Seller of Seller's duties
and obligations under this Agreement and of all other acts necessary and appropriate for the consummation of the transactions contemplated
herein, are consistent with and not in violation of, and will not create any adverse condition, default or breach under, (i) any
contract, agreement or other instrument (including, without limitation, any lease, license, covenant, commitment or understanding)
to which Seller or its assets or properties are a party or are bound, (ii) any law, rule, regulation, notice, order decree or judgment
of any nature to which Seller or its assets or properties are a party or are bound, or (iii) the governing agreement(s) of Seller.
6.3 Rights
of Third Parties. Seller is not a party to any outstanding right of first refusal, right of reverter or option to purchase
relating to the Property or any interest therein.
6.4 Non-Foreign
Status. Seller is not a “foreign person” within the meaning of Section 1445(f) of the Internal Revenue Code of
1986, as amended (the “Code”).
6.5 OFAC
Compliance. Neither Seller nor any of its affiliates, nor any of their respective partners, members, shareholders or other
equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor will they become,
a person or entity with whom United States persons or entities are restricted from doing business under regulations of the Office
of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s
Specially Designated and Blocked Persons List) or under any statute, executive order (including, without limitation, the September
24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action, and is not and will not engage in any dealings or transactions or be otherwise associated
with such persons or entities.
6.6 Claims.
There is not any action, suit or proceeding pending or, to the best knowledge of Seller, threatened in writing against, by or affecting
Seller's right to transfer the Property or the title of the Property.
6.7 Compliance
with Laws. Seller has received no written notice of the violation of or failure to comply with any law, ordinance, rule, regulation
or requirement which is applicable to the Property.
6.8 Condemnation.
There is not any pending or, to the best of Seller's knowledge, threatened action by any governmental authority or agency having
the power of condemnation or eminent domain, which might result in all or any portion of the Property or any interest therein being
taken by eminent domain, condemnation or conveyed in lieu thereof.
6.9 Service
Contracts. Except as set forth in Schedule 6.6 attached hereto and incorporated herein by reference, there are no management,
maintenance, service or other contracts or agreements (oral or written), specifically including but not limited to Tenant Leases,
contracts or other agreements with vendors for any equipment, property or services affecting the Property or the operation thereof
entered into by or binding upon Seller for which Purchaser shall, at or after the Closing, have any obligation or liability whatsoever
(the "Service Contracts").
6.10 Leases.
The Tenant Leases described on Exhibit "C" attached hereto and incorporated herein by reference constitute and
accurately reflect the only Tenant Leases affecting the Property or any portion thereof as of the Execution Date. Except as set
forth on Exhibit "C", Seller is not aware of any default by or on the part of the tenants under the Tenant Leases
which have not been heretofore cured (and no default on the part of the landlord exists). There are no tenant improvement allowances,
non-monetary tenant improvement obligations of landlord, leasing commissions and/or rent concessions with respect to the current
term of the Tenant Leases, except as disclosed on Exhibit “C” attached hereto.
6.11 Financial
Reports. The financial reports delivered as part of the Due Diligence Items are the same reports used and relied upon by the
Seller in connection with its operation of the Property.
6.12 Hazardous
Substances. To the best of Seller's knowledge except as set forth in any environmental report delivered by Seller, the Property
does not contain Hazardous Substances in violation of applicable laws; and (ii) no Hazardous Substances or waste of any type have
been generated, stored, treated, handled, transported, disposed of or released on the Property in violation of applicable laws.
6.13 Closing.
Except with respect to any representation or warranty for which Seller has given Purchaser notice of a changed condition, all of
the representations and warranties made herein by Seller are true and correct in all material respects as of the Execution Date
and shall be true and correct in all material respects as of the Closing Date.
6.14 No
Other Warranties and Representations. Except as expressly stated in this Section 6, Seller makes no representation or warranty
as to the truth, accuracy or completeness of any materials, data or information delivered by Seller or its brokers or agents to
Purchaser in connection with the transaction contemplated hereby. Purchaser acknowledges and agrees that all materials, data and
information delivered by Seller to Purchaser in connection with the transaction contemplated herein are provided to Purchaser as
a convenience only and that any reliance on or use of such materials, data or information by Purchaser shall be at the sole risk
of Purchaser, except as otherwise expressly stated herein. Neither Seller, nor any affiliate of Seller, nor the person or entity
which prepared any report or reports delivered by Seller to Purchaser, shall have any liability to Purchaser for any inaccuracy
in or omission from any such reports.
6.15 SELLER’S
LIMITATION OF LIABILITY. All representations and warranties made in this Agreement by Seller shall survive Closing for a period
of nine (9) months (the “Survival Period”), and upon expiration thereof shall be of no further force or effect except
to the extent that with respect to any particular alleged breach, Purchaser gives Seller written notice on or before the expiration
of the Survival Period of such alleged breach with reasonable detail as to the nature of such breach and files an action against
Seller with respect thereto within thirty (30) days after the giving of such notice. Notwithstanding anything to the contrary contained
in this Section 6.15, Seller shall have no liability to Purchaser for the breach of any representation or warranty made
in this Agreement unless the loss resulting from Seller’s breach of its representations and warranties exceeds, in the aggregate,
Twenty Thousand and No/100 Dollars ($20,000.00), in which event Seller shall be liable for each dollar of damages in excess of
such Twenty Thousand and No/100 Dollars ($20,000.00) resulting from the breach or breaches of its representations and warranties;
provided, however, in no event shall Seller’s total liability for any such breach or breaches exceed, in the aggregate, Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00). In no event shall any claim for a breach of any representation or warranty
of either party be actionable or payable if the breach in question results from, or is based on, a condition, state of facts or
other matter which was known to the non-breaching party prior to Closing or which was contained in the Due Diligence Items or in
any other of Seller’s files, books or records made available to Purchaser for inspection or could have been discovered by
Purchaser with the application of reasonable efforts to inspect the Property prior to Closing.
7. PURCHASER'S
REPRESENTATIONS AND WARRANTIES. As an inducement to Seller to enter into this Agreement and to sell the Property, Purchaser
represents and warrants to Seller, as follows:
7.1 Authority.
Purchaser has the right, power and authority to enter into this Agreement and to consummate the transactions contemplated herein.
Purchaser is a validly created limited partnership under the laws of the State of Delaware.
7.2 Execution
and Delivery. The execution and delivery of this Agreement and the performance and observance by Purchaser of Purchaser's duties
and obligations under this Agreement and of all other acts necessary and appropriate for the consummation of the transactions contemplated
herein, are consistent with and not in violation of, and will not create any adverse condition, default or breach under, (i) any
contract, agreement or other instrument (including, without limitation, any lease, license, covenant, commitment or understanding)
to which Purchaser or its assets or properties are a party or are bound, (ii) any law, rule, regulation, notice, order, decree
or judgment of any nature to which Purchaser or its assets or properties are a party or are bound, or (iii) the articles of incorporation,
by-laws and shareholders' agreements (if any) of Purchaser.
7.3 Non-Foreign
Status. Purchaser is not a “foreign person” within the meaning of the Code.
7.4 OFAC
Compliance. Neither Purchaser nor any of its affiliates, nor any of their respective partners, members, shareholders or other
equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor will they become,
a person or entity with whom United States persons or entities are restricted from doing business under OFAC regulations (including
those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including, without
limitation, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action, and is not and will not engage in any dealings or transactions
or be otherwise associated with such persons or entities.
7.5 DISCLAIMER.
EXCEPT AS STATED IN THIS AGREEMENT AND IN THE SPECIAL WARRANTY DEED TO BE DELIVERED BY SELLER TO PURCHASER AT CLOSING, IN CONNECTION
WITH THE CONVEYANCE OF THE PROPERTY AS PROVIDED FOR HEREIN, SELLER HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATIONS, WARRANTIES
OR COVENANTS OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY OF CONDITION OF THE PROPERTY,
THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, COMPLIANCE BY THE PROPERTY
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, AND SPECIFICALLY, EXCEPT AS STATED IN THIS AGREEMENT, SELLER DOES NOT MAKE ANY REPRESENTATIONS REGARDING
HAZARDOUS SUBSTANCES.
7.6 "AS
IS" SALE. EXCEPT AS SET FORTH IN THIS AGREEMENT, PURCHASER AGREES TO ACCEPT THE PROPERTY AT THE CLOSING WITH THE PROPERTY
BEING IN ITS PRESENT AS IS CONDITION WITH ALL FAULTS. PURCHASER ACKNOWLEDGES AND AGREES THAT PURCHASER IS EXPERIENCED IN THE OWNERSHIP,
DEVELOPMENT AND/OR OPERATION OF PROPERTIES SIMILAR TO THE PROPERTY AND THAT PURCHASER PRIOR TO THE CLOSING WILL HAVE INSPECTED
THE PROPERTY TO ITS SATISFACTION AND IS QUALIFIED TO MAKE SUCH INSPECTION. PURCHASER ACKNOWLEDGES THAT IT IS FULLY RELYING ON PURCHASER'S
(OR PURCHASER'S REPRESENTATIVES') INSPECTIONS OF THE PROPERTY AND, EXCEPT FOR SELLER'S REPRESENTATIONS AND WARRANTIES CONTAINED
IN THIS AGREEMENT AND IN THE SPECIAL WARRANTY DEED TO BE DELIVERED BY SELLER TO PURCHASER AT CLOSING, NOT UPON ANY STATEMENT (ORAL
OR WRITTEN) WHICH MAY HAVE BEEN MADE OR MAY BE MADE (OR PURPORTEDLY MADE) BY SELLER OR ANY OF ITS REPRESENTATIVES. PURCHASER ACKNOWLEDGES
THAT PURCHASER HAS (OR PURCHASER'S REPRESENTATIVES HAD), OR PRIOR TO THE CLOSING WILL HAVE, THOROUGHLY INSPECTED AND EXAMINED THE
PROPERTY TO THE EXTENT DEEMED NECESSARY BY PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE THE CONDITION OF THE PROPERTY AND
ALL OTHER ASPECTS OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION OF THE PROPERTY); AND PURCHASER ACKNOWLEDGES
THAT, EXCEPT AS SET FORTH IN THIS AGREEMENT, PURCHASER IS RELYING SOLELY UPON ITS OWN (OR ITS REPRESENTATIVES') INSPECTION, EXAMINATION
AND EVALUATION OF THE PROPERTY. EXCEPT AS SET FORTH IN THIS AGREEMENT, PURCHASER HEREBY EXPRESSLY ASSUMES ALL RISKS, LIABILITIES,
CLAIMS, DAMAGES AND COSTS (AND AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER
DAMAGES) RESULTING OR ARISING FROM OR RELATED TO THE OWNERSHIP, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR OR OPERATION OF THE
PROPERTY ATTRIBUTABLE TO THE PERIOD FROM AND AFTER THE DATE OF CLOSING. PURCHASER EXPRESSLY WAIVES (TO THE EXTENT ALLOWED BY APPLICABLE
LAW) ANY CLAIMS UNDER FEDERAL, STATE OR OTHER LAW THAT PURCHASER MIGHT OTHERWISE HAVE AGAINST SELLER RELATING TO THE USE, CHARACTERISTICS
OR CONDITION OF THE PROPERTY EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY THIS AGREEMENT OR IN THE SPECIAL WARRANTY DEED TO BE
DELIVERED BY SELLER TO PURCHASER AT CLOSING.
7.7 ENVIRONMENTAL
MATTERS. PURCHASER REPRESENTS TO SELLER THAT PURCHASER WILL CONDUCT PRIOR TO CLOSING SUCH INVESTIGATIONS OF THE PROPERTY REGARDING
THE ENVIRONMENTAL CONDITIONS THEREOF AS PURCHASER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE EXISTENCE OR NONEXISTENCE
OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY
SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO,
OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING,
PURCHASER SHALL ASSUME THE RISK THAT ADVERSE ENVIRONMENTAL CONDITIONS MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS
AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED, EXCEPT AS SET FORTH IN THIS AGREEMENT,
SELLER (AND SELLER'S PARTNERS AND SUCH PARTNERS' OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY
AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES ACTUALLY INCURRED) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER
MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S PARTNERS AND SUCH PARTNERS' OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT ADVERSE ENVIRONMENTAL CONDITIONS, VIOLATIONS OF ANY
APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE ENVIRONMENTAL CONDITION OF
THE PROPERTY. NOTWITHSTANDING THE FOREGOING, HOWEVER, PURCHASER SHALL NOT AND HEREBY DOES NOT RELEASE SELLER (OR SELLER'S PARTNERS
OR SUCH PARTNERS' OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM ANY OF SUCH CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING
CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES ACTUALLY INCURRED)
WHICH PURCHASER MIGHT ASSERT OR ALLEGE AGAINST SELLER (AND SELLER'S PARTNERS AND SUCH PARTNERS' OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY FRAUD OR INTENTIONAL MISREPRESENTATION BY SELLER (OR ANY OF
SELLER'S PARTNERS OR SUCH PARTNERS' OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS).
8. COVENANTS
OF SELLER. As a material inducement to Purchaser to enter into this Agreement and to purchase the Property, Seller hereby covenants
unto Purchaser the following:
8.1 Access
to Property. Purchaser, upon one (1) business days’ notice to Seller, and Seller’s reasonable approval of the scope
of any tests or studies conducted at the Property and subject to the rights of tenants under the Tenant Leases, shall have reasonable
access to the Property at all times subsequent to the Execution Date, with full right to (i) inspect the Property; and (ii) to
conduct all non-invasive tests thereon, including, but not limited to, surveys, a phase I environmental site assessment and property
condition inspection, with respect thereto as Purchaser, its counsel, licensed engineers, surveyors or other representatives may
deem necessary or desirable. Any entry on or to the Property by provisions hereof shall be at the risk of Purchaser, who hereby
agrees not to cause damage to the Property and indemnifies Seller from any damage caused thereby; provided, however, and notwithstanding
the foregoing, that Purchaser shall not be liable for the mere discovery of any pre-existing condition of the Property. In no event
shall Purchaser have the right to conduct any invasive testing on the Property, without the prior written consent of Seller which
may be withheld in Seller’s sole discretion. In the event Purchaser wishes to conduct tenant interviews, Purchaser shall
provide Seller with written notice not less than forty-eight (48) hours prior to the proposed time for such tenant interview. Seller
shall have the right to have a representative present during any such tenant interview. In the event Purchaser elects to terminate
this Agreement prior to the expiration of the Inspection Period or if the Purchaser fails to close for any reason (other than Seller’s
default), if requested by Seller, Purchaser shall assign and deliver to Seller all third party reports obtained by Purchaser in
connection with its review and inspection of the Property. Purchaser agrees that its access to the Property shall be afforded in
such a manner as not to interfere with the businesses or operations of Seller, any tenant under the Tenant Leases, or any of their
respective customers, suppliers or distributors. Purchaser shall indemnify Seller for any loss or damage, including court costs
and reasonable attorneys' fees, incurred by Seller due to Purchaser's inspection of the Property hereunder; provided, however,
and notwithstanding the foregoing, that Purchaser shall not be liable for the mere discovery of any pre-existing condition of the
Property. Purchaser shall promptly restore the Property to its condition existing prior to the commencement of such activities
which disturb or alter such Property. Furthermore, Purchaser agrees to maintain and/or cause any of its representatives or agents
conducting on the Property any surveys, tests, investigations, analysis or assessments pursuant to this Section 8.1 to maintain
and have in effect workers' compensation insurance required by law, with statutory limits of coverage, and commercial general liability
insurance with (i) all risk coverage (ii) waiver of subrogation, and (iii) limits of not less than Two Million Dollars ($2,000,000)
for personal injury, including bodily injury and death, and property damage. Such insurance shall name the Seller and its property
manager (RCG Ventures I, LLC) as an additional insureds. The terms of this Section 8.1 related to Purchaser’s obligation
to assign the third party reports shall survive the termination of this Agreement.
8.2 No
Pending Legal Matters. If Seller receives any notice, or otherwise acquires knowledge, of the commencement of any legal action
or notice from any governmental or quasi-governmental authority affecting the Property or the transaction contemplated by this
Agreement, Seller agrees to promptly provide written notice of same to Purchaser. In the event that (i) Seller receives notice
of any legal action or of the violation of any governmental laws, ordinances, rules, regulations or similar matters which will
affect the Property in any material respect, and (ii) Seller fails to cure such matter giving rise to such legal action or violation
within thirty (30) days from date of notice to Purchaser thereof (whereupon the Closing Date shall be extended for up to thirty
(30) days without the payment of any extension fees to permit Seller's cure thereof, if applicable), Purchaser shall have the right
to terminate this Agreement upon written notice to Seller, whereupon the Xxxxxxx Money, together with interest earned thereon,
if any, shall be promptly returned to Purchaser.
8.3 No
Violations. Seller agrees that it will observe all laws, ordinances, regulations and restrictions which affect the Property
and its use. Seller will maintain the Property in a good and clean condition and shall perform or cause to be performed routine
maintenance and repairs in connection with maintaining the Property.
8.4 Conducting
Business. Seller shall operate and maintain the Shopping Center through and including the Closing Date in a manner consistent
with its past practices and in accordance with the provisions of this Agreement. Seller shall, promptly upon receiving any notice
or knowledge of any material damage or destruction to the Property, give Purchaser notice thereof. From and after the Execution
Date and continuing through and until the Closing Date, Seller, at Seller's cost and expense, shall maintain in effect its present
hazard and public liability insurance policies. Prior to the expiration of the Inspection Period, Seller shall have the right to
enter into any new lease or extend, renew or materially modify any existing Tenant Lease without obtaining Purchaser’s prior
written consent. In such event, Seller, shall, however, deliver a copy of the proposed new lease or extension, renewal or other
modification agreement to Purchaser at least five (5) business days prior to the expiration of the Inspection Period, together
with an estimate of the tenant allowances, leasing commissions, tenant improvements costs and other out-of-pocket costs and expenses
(collectively, “Leasing Costs”) estimated to be incurred in connection with such transaction. Seller has disclosed
to Purchaser that it is currently negotiating a lease for a portion of the Shopping Center with USAA for an ATM to be located at
the Shopping Center (the “USAA Lease”). Notwithstanding anything contained herein to the contrary, Seller shall be
responsible for the Leasing Costs with respect to the USAA Lease and shall pay such costs at Closing, if due, or otherwise provide
Purchaser with a credit at Closing in the amount of such Leasing Costs; provided, however, in no event shall such Leasing Costs
exceed $10,000 unless otherwise agreed to by Seller and Purchaser. Following the Inspection Period, Seller shall not enter into
any new lease or extend, renew or materially modify any existing Tenant Lease without obtaining Purchaser’s prior written
consent, which shall not be unreasonably withheld. At the Closing, Purchaser shall reimburse Seller for all actual out-of-pocket
Leasing Costs incurred by Seller with respect to any such new Lease/extension/renewal or modification, and shall assume all unperformed
liabilities and obligations of Seller with respect to such transactions pursuant to the assignment and assumption of Tenant Leases
referred to in Section 10.2.4 hereof.
8.5 Deliveries.
Seller covenants and agrees to deliver the Due Diligence Items to Purchaser on or before the third (3rd) business day after the
Execution Date. Such delivery may be effected by making some or all of the Due Diligence Items electronically available to Purchaser
via an FTP website.
8.6 Tenant
Estoppels and Subordination Agreements. Seller shall use commercially reasonable efforts to provide (i) estoppel certificates
("Tenant Estoppels"), and (ii) subordination, nondisturbance and attornment agreements (“SNDAs”) dated not
more than thirty (30) days prior to the originally scheduled Closing Date from tenants under the Tenant Leases. The Tenant Estoppels
shall be substantially in the form of Schedule 8.6 attached hereto and made a part hereof and the SNDAs shall be
in the form provided by Purchaser to Seller within fifteen (15) days following the Execution Date; provided, however, that if any
tenant is required or permitted under the terms of its Lease to provide less information or to otherwise make different statements
in a certification of such nature or in a form annexed to such Tenant’s Lease than are set forth on Schedule 8.6
or with respect to the form SNDA, provided by Purchaser to Seller, then Purchaser shall accept any modifications made to such Tenant
Estoppel and SNDAs to the extent that such changes are consistent with the minimum requirements set forth in such Tenant's Lease.
Purchaser shall complete the SNDAs to be delivered to the tenants under the Tenant Leases and provide such completed forms not
less than 10 business days prior to the expiration of the Inspection Period. Seller shall have no obligation to send SNDAs to any
tenants if Purchaser fails to deliver the completed SNDAs by such date. Notwithstanding the foregoing, Seller shall deliver to
Purchaser not less than three (3) business days prior to the Closing Date, (a) Tenant Estoppels executed by the applicable tenants
from (i) each of the tenants under the Tenant Leases commonly known as Hobby Lobby, Planet Fitness, Harbor Freight Tools, Citi
Trends and Ashley Home Store (each, a “Major Tenant”) and (ii) from such other tenants constituting, in combination
with the space occupied by the Major Tenants, seventy-five percent (75%) of the total space at the Property (collectively, the
“Required Estoppels”), and (b) executed SNDAs from (i) each Major Tenant, and (ii) any of the remaining tenants who
has a recorded memorandum of its Tenant Lease as set forth in the Title Commitment, or whose Tenant Lease requires an SNDA (the
“Required SNDAs”). Seller’s delivery of the Required Estoppels and Required SNDAs shall be a condition precedent
to Purchaser’s obligation to close the transaction contemplated by this Agreement; provided, however, if Seller fails to
deliver any Required Estoppels and Required SNDAs such failure shall not constitute a default by Seller. In the event Seller has
not obtained all of the Required Estoppels and Required SNDAs prior to the Closing Date, Seller shall have the right to extend
the Closing Date for a period of fifteen (15) business days to allow Seller additional time to obtain the Required Estoppels and
Required SNDAs. In the event Seller fails to deliver the Required Estoppels and Required SNDAs to Purchaser prior to the Closing
Date (as may be extended), Purchaser’s sole remedy shall be to terminate this Agreement by written notice to Seller and upon
such termination, the Xxxxxxx Money shall be refunded to Purchaser and neither Seller nor Purchaser shall have any further liability
hereunder except as may specifically survive the termination of this Agreement.
8.7 Estoppels
for Covenants, Easements, etc. Seller shall use commercially reasonable efforts to provide prior to the Closing Date an estoppel
certificate dated no earlier than thirty (30) days prior to Closing, in form and substance reasonably acceptable to Purchaser,
from all parties to any reciprocal easement agreements, declarations of covenants, conditions, and restrictions, or similar agreements.
8.8 Service
Contracts. Prior to the expiration of the Inspection Period, Seller shall terminate all Service Contracts at Seller’s
sole cost and expense.
9. SURVEY
AND LEGAL DESCRIPTION.
9.1 Surveys.
Promptly after the Execution Date, Purchaser may, at Purchaser's expense, have the Property surveyed to ALTA standards as determined
by Purchaser (or its lender) by land surveyors of Purchaser's choice, registered as such in the State of North Carolina. Upon Seller’s
request, Purchaser shall deliver a PDF copy of such survey (the “Survey”) to Seller.
9.2 Legal
Description. For purposes of the special warranty deed and other documents to be delivered to Purchaser by Seller at Closing,
the legal descriptions of the Property shall be as set forth on Exhibit "A". To the extent that the Surveys describe
property in any way different than said legal description, the Survey legal description will be conveyed by quitclaim deed and
other documents and instruments which are to be delivered at Closing with no adjustment to the Purchase Price.
10. CLOSING.
10.1 Closing
Date. The Closing shall be held through deliveries to Escrow Agent (with no physical attendance by Purchaser or Seller required)
on or before the date which is twenty (20) days following the expiration of the Inspection Period.
10.2 Deliveries
At Closing. On the Closing Date, the Closing shall occur as follows, subject to satisfaction of all of the terms and conditions
of this Agreement:
10.2.1 Seller
shall convey the Property to Purchaser (subject to the Permitted Exceptions), by delivering to Purchaser (i) a North Carolina special
warranty deed in the form attached hereto as Schedule 10.2.1, conveying the Property to Purchaser pursuant to the legal
description attached hereto as Exhibit "A", and (ii) a quitclaim deed in form reasonably acceptable to Purchaser
and Seller, conveying the Property to Purchaser pursuant to the legal description to be drawn from the Survey.
10.2.2 Seller
shall deliver to Purchaser an owner's affidavit in a form reasonably acceptable to the Title Company.
10.2.3 Seller
shall deliver to Purchaser a certificate and affidavit of non-foreign status in a form satisfying the requirements of the foreign
investors real property tax act ("FIRPTA").
10.2.4 Seller
shall execute and deliver to Purchaser a limited warranty xxxx of sale and assignment in the form attached hereto as Schedule
10.2.4 (the "Xxxx of Sale and Assignment"). By executing and delivering the Xxxx of Sale and Assignment, Seller shall
(i) convey to Purchaser the Personalty, the Plans and Specifications and the Other Business Assets (subject only to the Permitted
Exceptions), and (ii) assign to Purchaser the Tenant Leases, the Warranties and the Permits.
10.2.5 Seller
and Purchaser shall execute and deliver a closing statement in form and substance reasonably satisfactory to both Seller and Purchaser
setting forth and describing the Adjustments required under and described in Subsection 10.4 hereof and such other matters reasonably
required by Purchaser and reasonably approved by Seller (the "Closing Statement").
10.2.6 Seller
shall execute and deliver to Purchaser a letter (or letters) addressed to the tenants under the Tenant Leases in the form attached
hereto as Schedule 10.2.6.
10.2.7 Seller
shall provide Purchaser with a certificate dated the Closing Date stating that all of the representations and warranties of Seller
contained in Section 6 hereof are true and correct as of the date such representations and
warranties are made and as of the Closing Date, except as to those matters with respect to the representations and warranties made
herein by Seller that Purchaser may otherwise have been given notice regarding a changed condition.
10.2.8 Seller
shall deliver to the Title Company such duly executed and verified certificates, resolutions, affidavits and other documents respecting
the power and authority to perform the obligations hereunder and as to the due authorization thereof by appropriate proceeding
and as to the authority of the members, partners or officers of Seller, as the case may be, as the Title Company may reasonably
request.
10.2.9 Concurrently
with Seller's deliveries at the Closing, Purchaser shall pay to Seller the Purchase Price as provided in Subsection 3.2 hereof.
10.2.10 Seller
shall deliver the following items to Purchaser at the Closing:
(i) to
the extent in the possession or control of Seller, the originals of (a) the Permits, (b) the Warranties, and (c) the Plans and
Specifications;
(ii) the
originals (to the extent in Seller’s possession or control) of the Tenant Leases, including all riders, attachments, addenda
and amendments thereto, guarantees thereof and all other documents which are or will be binding and enforceable on, or with respect
to, Purchaser (or documents which create an estoppel effect on, or with respect to, Purchaser) relating to the Tenant Leases; and
(iii) any
and all keys to the Improvements in Seller's possession.
All other items
of Personal Property to be conveyed hereunder which are not expressly required to be delivered under this Paragraph shall remain
at, and be located upon, the Property on the Closing Date.
10.2.11 In
addition to all documents, instruments and agreements expressly provided for herein, Purchaser and Seller shall execute and/or
provide such other documents as may be reasonably required by counsel for either party to effectuate the purposes of this Agreement.
10.2.12 Seller
shall deliver exclusive possession of the Property to Purchaser at Closing subject only to the Permitted Exceptions and tenants
in possession under the Tenant Leases.
10.3 Closing
Costs. At the Closing, Seller and Purchaser shall respectively pay the following costs and expenses:
10.3.1 Seller
shall pay (i) the fees and expenses of Seller's attorneys, (ii) the cost of any transfer taxes or documentary stamp taxes attributable
to the deed of conveyance for the Property, (iii) the cost of recording the deed, (iv) one-half of any Escrow Agent’s fees,
and (v) the brokerage commission (pursuant to a separate written agreement) to the Broker, and any other costs and expenses actually
incurred by Seller or required to be borne by Seller hereunder.
10.3.2 Purchaser
shall pay (i) all title insurance costs, premiums, search and exam fees and endorsement costs (iii) recording and filing fees for
all recordable instruments other than the deed delivered by Seller at the Closing pursuant to the terms hereof, (iv) the costs
of the Survey, (v) the fees and expenses of Purchaser's attorneys and other professional or third-party fees and expenses incurred
by Purchaser in connection with the transactions contemplated herein, (vi) any costs and expenses incurred in connection with Purchaser's
financing of the Property, (vii) one half of any Escrow Agent fees, and (viii) any other costs and expenses actually incurred by
Purchaser or required to be borne by Purchaser hereunder.
10.4 Prorations.
All matters involving prorations or adjustment to be made in connection with the Closing and not specifically provided for in some
other provision of this Agreement shall be prorated as of 11:59 P.M. Eastern time of the day immediately preceding the Closing
Date. The following prorations or adjustments (the "Adjustments") shall be apportioned by way of credits to or against
the Purchase Price (except as otherwise provided herein), as follows:
10.4.1 Taxes:
At the Closing, all state, county and city ad valorem taxes (real and personal property) with respect to the Property shall be
prorated, based upon the amount of such taxes payable in the calendar year of the Closing, if known, or otherwise, based on the
taxes for the previous calendar year. If the proration is based on taxes for the previous calendar year and the actual amount of
such taxes for the calendar year of the Closing differs from the amount of such taxes for the previous calendar year, Purchaser
and Seller, promptly upon receipt by either of them, of the notice or xxxx for such taxes, shall make the proper adjustment so
that the proration will be accurate, based upon the actual amount of such taxes for the calendar year of the Closing (computed
with the maximum discount for prompt payment), and payment shall be made promptly by Seller or Purchaser, whichever shall be required
to make such payment, to the other party for the purpose of making such adjustment.
10.4.2 Receivables
and Monthly Rentals: Except as otherwise provided in subparagraph 10.4.7 below, all monthly rentals and other fixed monthly
charges payable for the month of the Closing and collected prior to Closing shall be prorated as of 11:59 p.m. of the day immediately
preceding the Closing Date. Seller shall be charged and Purchaser shall be credited with any rent collected by Seller before Closing
but applicable to any period of time from and after Closing. All due but uncollected rent and other uncollected income for any
period prior to the Closing Date (“Delinquent Rents”) shall not be prorated. Seller shall be entitled to receive
all collected rentals from the Property for the period of its ownership through 11:59 p.m. of the day immediately preceding the
Closing Date. Purchaser shall promptly pay to Seller Delinquent Rents if and when collected by Purchaser, provided that any money
received by Purchaser shall be applied to then current obligations under the Lease accruing from and after the Closing Date prior
to being applied to Delinquent Rents. Purchaser agrees to xxxx tenants of the Property for all Delinquent Rents in accordance with
Purchaser’s standard practices. All receivables from the Property which are accrued from and after the Closing Date shall
be paid to Purchaser or, if collected by Seller, shall promptly be paid over to Purchaser as and when collected.
10.4.3 Utilities:
Excluding any utilities in the name of tenants, in order to prorate charges for water, gas, electricity and any other utility services,
representatives of Seller and of Purchaser shall arrange with the appropriate utility companies and governmental agencies to render
final bills based upon a reading as of the day before the Closing of the meters monitoring the servicing of the Property. Seller
shall pay all charges for utilities accrued to the time of such readings and shall be responsible for the payment of such bills
as and when rendered. If, however, final bills for the foregoing charges are not rendered as of the Closing Date or such readings
are not possible as of the day before Closing, the proration for utilities will be done as of 11:59 P.M. Eastern time the day before
Closing and will be based on the most current and accurate billing information available. Should such proration be inaccurate upon
receipt of the actual bills for the Property, Purchaser and Seller, promptly upon receipt by either of them of the utility bills,
shall make the proper adjustment so that the proration will be accurate, based upon the actual amount of the utility bills, and
payment shall be made promptly by Seller or Purchaser, whichever shall be required to make such payment, to the other party for
the purpose of making such adjustment. Upon mutual agreement of Seller and Purchaser and with consent of the respective utility
companies, utility deposits may be assigned to Purchaser. In such event, the amount of the assigned deposits will be paid by Purchaser
to Seller at the Closing in addition to the Purchase Price.
10.4.4 Intentionally
Omitted.
10.4.5 Intentionally
Omitted.
10.4.6 Security
Deposits: Seller shall transfer to Purchaser by way of a credit against the Purchase Price all security deposits actually held
or received by Seller under the Tenant Leases and the aggregate amount of any unapplied advance and pre-paid rentals and monetary
allowances with respect to the Tenant Leases.
10.4.7 Additional
Rent. As used in Paragraph 10.4.2, the term monthly rentals means any amounts of base rent or minimum rent due and payable
on a monthly basis under a Tenant Lease. With respect to any other amounts due under Tenant Leases, whether due on a monthly, quarterly,
semi-annual or annual basis, including, without limitation, common area maintenance charges, the tenant's pro rata share of ad
valorem taxes and assessments, the tenant's pro rata share of insurance premiums, and similar charges (collectively, "Additional
Rents"), such amounts shall be prorated at Closing only to the extent actually collected from such tenants on or before such
date. Purchaser shall use commercially reasonable efforts to collect all Additional Rents as and when they become due and payable.
Upon receipt of any Additional Rents, the amount received by Purchaser shall be prorated between Seller and Purchaser in proportion
to the amount due Purchaser for the period from and after the Date of Closing and the amount to Seller prior to the Date of Closing.
The foregoing provision regarding post-closing collection and allocation of Additional Rents shall survive for twelve (12) months
after the Closing. If, as of the Closing Date, Seller owes any tenant a rebate or credit ("Tenant Credits") because of
any overpayment by such tenant of Additional Rents, Purchaser shall receive a credit against the Purchase Price at Closing equal
to the Tenant Credits. If, after Closing but prior to March 31, 2020, it is determined that any tenants are entitled to a Tenant
Credit for the calendar year in which the Closing occurs due to any overpayment of Additional Rent by such tenant prior to Closing,
Seller shall reimburse Purchaser for Seller's pro rata share of such Tenant Credit. If Purchaser shall fail to request a payment
related to any such Tenant Credits for any reason prior to June 30, 2020, by providing written notice to Seller of same, Seller
shall not be responsible for paying any amounts to Purchaser related to any such Tenant Credits.
10.4.8 Adjustments. Except as otherwise expressly provided herein, all adjustments and prorations, including without limitation,
the Adjustments described in this Subsection 10.4, will be made in accordance with generally accepted accounting practices. The
computation of the Adjustments shall be prepared and approved by Seller and Purchaser and set forth in the Closing Statement.
10.4.9 Survival. The provisions of this Section 10 shall survive the Closing.
11. CASUALTY
AND CONDEMNATION.
11.1 Risk
of Loss. Until the purchase of the Property has been consummated on the Closing Date, all risk of loss of, or damage to, or
destruction of, the Property (whether by fire, flood, tornado or other casualty, or by the exercise of the power of condemnation
or eminent domain, or otherwise) shall belong to and be borne by Seller.
11.2 Casualty
or Condemnation. In the event of any damage to or destruction of the Property or any portion thereof which is reasonably estimated
by Seller and Purchaser to cost Two Hundred Fifty Thousand Dollars ($250,000.00) or less to replace or repair, subject to the other
terms and conditions of this Agreement, Purchaser shall nonetheless be obligated to consummate the purchase of the Property. In
the event of any damage to or destruction of the Property or any portion thereof which is reasonably estimated by Seller and Purchaser
to cost in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) to replace or repair, or in the event of any taking or written
threat of taking by eminent domain or condemnation (or any conveyance in lieu thereof) of the Property or any portion thereof by
anyone having the power of eminent domain or condemnation, Purchaser shall, by notice to Seller provided within ten (10) days of
receiving notice from Seller of such event, elect to: (i) terminate this Agreement, whereupon the Xxxxxxx Money, together with
all interest accrued thereon (less and except the sum of One Hundred Dollars ($100) which shall be paid to Seller as consideration
for entering into this Agreement), shall be returned to Purchaser, in which event neither Seller nor Purchaser shall have any further
rights, duties or obligations under this Agreement, except as otherwise expressly provided herein; or (ii) consummate the purchase
of the Property with no reduction in Purchase Price, subject to the following provisions of this Subsection 11.2. If Purchaser
does not elect to terminate this Agreement pursuant to clause (i) of this Subsection 11.2 (or if the cost to replace or repair
the damage or destruction is estimated to be Two Hundred Fifty Thousand Dollars ($250,000) or less), then Seller shall on the Closing
Date pay to Purchaser all insurance proceeds then received by Seller, together with any deductible amounts under Seller's insurance
policies (except for (i) Seller's allocable share of business interruption or rental loss insurance proceeds, which shall be treated
as an Adjustment in accordance with Subsection 10.4 hereof, and (ii) such proceeds which have been paid by Seller to unaffiliated
independent contractors for the repair or restoration of the Property occasioned by the damage or destruction; provided, however,
Seller shall have no duty to undertake any such repair or restoration) and all condemnation awards and compensation then received
by Seller which are not paid to tenants pursuant to the Tenant Leases. In addition, Seller shall transfer and assign to Purchaser,
in form reasonably satisfactory to Purchaser, all rights and claims of Seller and all unpaid insurance proceeds (and all rights
and claims relating thereto) with respect to the damage or destruction (except for (i) Seller's allocable share of business interruption
or rental loss insurance proceeds, which shall be treated as an Adjustment in accordance with Subsection 10.4 hereof, and (ii)
sums which have been paid by Seller to unaffiliated independent contractors for the repair or restoration of the Property occasioned
by the damage or destruction; provided, however, Seller shall have no duty to undertake any such repairs or restorations) and all
compensation and awards on account of such taking.
12. DEFAULT.
12.1 Seller's
Default. In the event Seller is in material breach of or fails or refuses to perform its material obligations under this Agreement,
then, after not less than ten (10) days prior written notice and opportunity to cure, in addition to Purchaser’s rights and
remedies (and subject to the limitations under the first paragraph of Section 6) with regard to Seller’s breach of
any of its representations and warranties hereunder, at Purchaser’s option, as Purchaser’s sole remedies hereunder
either (a) the Xxxxxxx Money, to the extent paid, shall be refunded to Purchaser on demand, and Purchaser shall be entitled to
reimbursement by Seller of Purchaser’s actual, documented, out-of-pocket third-party expenses and costs, including reasonable
attorneys’ fees, incurred by Purchaser in connection with its due diligence investigations of the Property not to exceed
Twenty-Five Thousand and 00/100 Dollars ($25,000.00), whereupon this Agreement shall be terminated and neither party shall have
any further rights or obligations with respect hereto except as specifically set forth herein, or (b) Purchaser shall have the
right to seek specific performance of this Agreement, which right must be exercised by Purchaser within thirty (30) days of delivery
of Purchaser’s written default notice to Seller described above. Purchaser shall have no right to receive any other equitable
or legal relief. Notwithstanding the foregoing, Purchaser shall be deemed to have elected to pursue the remedy set forth in clause
(a) above as its sole and exclusive remedy if Purchaser fails to file suit for specific performance against Seller on or before
thirty (30) days following the scheduled Closing Date. Purchaser shall not be entitled to record a lis pendens against the
Property other than in connection with any such timely filed specific performance action. Notwithstanding the provisions of this
Section 12.1, in the event specific performance is unavailable because of an act of willful misconduct by Seller (for example,
but not by way of limitation, because Seller has conveyed or encumbered all or a part of the Property to a third party without
notice) or in the event Seller’s default is as a result of the willful misconduct of Seller, Purchaser shall, in addition
to the remedy under clause (a) above, be entitled to recover its actual damages (but not exemplary or punitive damages) incurred
as a result of Seller’s default in an amount not to exceed Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00). The
remedies set forth in this Section 12.1 shall be Purchaser’s sole remedies arising from a default, breach or failure
to perform by Seller. Purchaser hereby waives for itself and anyone who may claim by or through Purchaser, any and all rights to
pursue any other remedial rights or xxx or recover any amounts from Seller (including, without limitation, punitive, indirect and
consequential damages), except to the extent set forth in the foregoing clauses (a) or (b) and except as set forth in Section
6.14, and shall not commence or pursue any such remedy. No partner, manager of, member or, beneficial interest holder in or
agent of Seller, nor any advisor, trustee, manager, member, director, officer, employee, beneficiary, shareholder, participant,
representative or agent of any company, corporation or trust that is or becomes a member, trustee or manager of Seller (collectively
“Seller Parties”), shall have any personal liability, directly or indirectly, under or in connection with this
Agreement or any agreement made or entered into under or pursuant to the provisions of this Agreement, or any amendment or amendments
to any of the foregoing made at any time or times, heretofore or hereafter, or in or with respect to any document, agreement or
instrument delivered at Closing, except to the extent such parties are determined, pursuant to a final, non-appealable judgment,
to have knowingly and intentionally defrauded Purchaser.
12.2 Purchaser's
Default. If the sale and purchase of the Property contemplated by this Agreement is not consummated because of Purchaser's
default, failure or refusal to perform hereunder, Seller shall be entitled, as its sole and exclusive remedy hereunder or otherwise,
to payment of the Xxxxxxx Money, with interest thereon, as full and complete liquidated damages for such default of Purchaser,
the parties hereto acknowledging that it is difficult or impossible to estimate more precisely or accurately the damages which
might be suffered by Seller upon Purchaser's default. Seller's receipt of the Xxxxxxx Money, with interest thereon, is intended
not as a penalty, but as full liquidated damages. The right to retain such sums as full liquidated damages is Seller's sole and
exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby
covenants that it shall not) xxx Purchaser: (i) for specific performance of this Agreement, or (ii) to recover actual damages in
excess of such sums. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller to seek
or claim a refund of such sums (or any part thereof) on the grounds that such amount is unreasonable in amount and exceeds Seller's
actual damages or that the retention of such sums by Seller constitutes a penalty and not agreed upon and reasonable liquidated
damages. The parties further acknowledge and agree that the liquidated damages provided herein is a reasonable pre-estimate of
Seller's probable loss resulting from Purchaser's default.
13. CONDITIONS
PRECEDENT.
13.1 Inspection
Period Condition. Purchaser's obligation to consummate the purchase of the Property in accordance with the terms and conditions
of this Agreement is subject to and conditioned upon Purchaser's determination, on or before 5:00 p.m., Atlanta, Georgia time on
the last day of the Inspection Period that the acquisition of the Property is desirable, which determination shall be made in Purchaser's
sole and absolute discretion for any reason (or for no reason).
13.2 Satisfaction
or Waiver of Inspection Period Condition. If the condition precedent in Subsection 13.1 is not satisfied or waived by Purchaser
as aforesaid, then Purchaser shall have the right to terminate this Agreement by providing written notice to Seller and Escrow
Agent on or before 5:00 p.m., Atlanta, Georgia time on the last day of the Inspection Period. If Purchaser does not give timely
notice to Seller and Escrow Agent of Purchaser's intent to terminate this Agreement, then this Agreement shall continue in full
force and effect and the Xxxxxxx Money shall be non-refundable except as otherwise expressly set forth herein. In the event that
Purchaser timely sends notice of its intent to terminate this Agreement, then Escrow Agent shall immediately refund to Purchaser
the Xxxxxxx Money, together with accrued interest thereon (less and except the sum of One Hundred Dollars ($100) which shall be
paid to Seller as consideration for entering into this Agreement), in which event neither Seller nor Purchaser shall have any further
rights, duties or obligations under this Agreement, except as otherwise expressly provided herein.
13.3 Conditions
Precedent to Purchaser’s Obligation to Close. In addition to any other conditions precedent in favor of Purchaser as
may be expressly set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are subject to the timely
fulfillment of the conditions set forth in this Section 13.3 on or before the Closing Date, or such earlier date as
is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Seller,
in Purchaser’s sole and absolute discretion. Purchaser may terminate this Agreement upon written notice to Seller due to
the failure of any of the conditions precedent contained in this Agreement, in which event Purchaser shall be entitled to a prompt
return of the Deposit, and the parties hereto shall have no further obligations hereunder except those which by their terms expressly
survive any such termination.
13.3.1 Seller performing and complying in all material respects with all of the terms of this Agreement to be performed and complied with
by Seller prior to or at the Closing.
13.3.2 On
the Closing Date, all of the representations and warranties of Seller set forth in Section 6 hereof shall be true,
accurate and complete.
14. BROKERS
AND INDEMNIFICATION.
14.1 Commission.
All negotiations relative to this Agreement and the sale and purchase of the Property as contemplated by this Agreement have been
conducted by and between Seller and Purchaser without the intervention of any person or party as agent or broker, except for HFF
(the "Broker"), which shall be paid a commission at Closing by Seller pursuant to a separate agreement. Seller and Purchaser
warrant and represent that there are and will be no brokers' or intermediaries' commissions or fees payable as a consequence of
the sale and purchase of the Property as contemplated by and provided for in this Agreement, other than the commission to Broker,
if any, which shall be paid by Seller pursuant to a separate agreement. Seller and Purchaser shall and do hereby indemnify, defend
and hold harmless each of the other from and against the claims, demands, actions and judgments (including, without limitation,
attorneys' fees and expenses incurred in defending any claims or in enforcing this indemnity) of any and all brokers, agents and
other intermediaries alleging a commission, fee or other payment to be owing by reason of any dealings, negotiations or communications
with the indemnifying party in connection with this Agreement or the sale and purchase of the Property. The foregoing indemnities
shall survive the rescission, cancellation, termination or consummation of this Agreement.
15. TIME
OF ESSENCE. Time is of the essence of this Agreement.
16. GOVERNING
LAW; VENUE; WAIVER OF JURY TRIAL. This Agreement shall be construed, interpreted and enforced in accordance with the laws of
the State of North Carolina. Purchaser and Seller hereby consent to the jurisdiction and venue of the federal and state courts
for Xxxxx County, North Carolina. Purchaser and Seller, to the extent they may legally do so, hereby expressly waive any and all
right to trial by jury of any claim, demand, action, cause of action, or proceeding arising under or with respect to this Agreement,
or in any way connected with, or related to, or incidental to, the dealing of the parties hereto with respect to this Agreement
or the transactions related hereto or thereto, in each case whether now existing or hereafter arising, and irrespective of whether
sounding in contract, tort, or otherwise. To the extent they may legally do so, Seller and Purchaser hereby agree that any such
claim, demand, action, cause of action or proceeding shall be decided by a court trial without a jury and that any party hereto
may file an original counterpart or a copy of this paragraph with any court as written evidence of the consent of the other party
or parties hereto to waiver of its or their right to trial by jury.
17. NOTICES.
Any notices, requests or other communications required or permitted to be given hereunder shall be in writing and shall be delivered
by nationally recognized courier (such as Federal Express) which maintains a record or receipt of delivery, hand, facsimile transmission
or other electronic transmission (including email transmission of a PDF), and addressed to each party at its addresses, facsimile
numbers or email addresses as set forth below:
To Seller: |
RCG-Goldsboro, LLC
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxx.xxx
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With a copy to: |
RCG-Goldsboro, LLC
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Email: xxx@xxxxxxxxxxx.xxx |
With a copy to: |
McGuireWoods LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxxx.xxx
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To Purchaser: |
Medalist Diversified Holdings, L.P.
00 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Email: xxxx.xxxxxxx@xxxxxxxxxxxx.xxx
|
With a copy to: |
Xxxxxx Xxxxxxx Xxxxxxxxxx & Xxxxx, PLC
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
Email: xxxxxxxx@xx-xxxxx.xxx |
Any such notice, request
or other communication shall be considered given or delivered, as the case may be, on the date of hand, courier facsimile delivery
or other electronic transmission (including e-mail). Rejection or other refusal to accept or inability to deliver because of changed
address of which no notice was given shall be deemed to be receipt of the notice, request or other communication. By giving at
least five (5) days prior written notice thereof, any party may from time to time at any time change its mailing address hereunder.
Any notice given by counsel to a party shall have the same effect as if given by such party.
18. ENTIRE
AGREEMENT; MODIFICATION. This Agreement supersedes all prior discussions and agreements between Seller and Purchaser with respect
to the Property and contains the sole and entire understanding between Seller and Purchaser with respect to the Property. All promises,
inducements, offers, letters of intent, solicitations, agreements, commitments, representations and warranties heretofore made
between such parties are merged into this Agreement. This Agreement shall not be modified or amended in any respect except by a
written instrument executed by or on behalf of each of the parties to this Agreement.
19. SURVIVAL.
This Agreement and the provisions, covenants, representations and warranties hereof shall survive the delivery of the deed, quitclaim
deed, conveyance documents or any of the instruments or documents executed and delivered at the Closing for a period of nine (9)
months after Closing.
20. EXHIBITS.
Each and every exhibit referred to or otherwise mentioned in this Agreement is attached to this Agreement and is and shall be construed
to be made a part of this Agreement by such reference or other mention, in the same manner and with the same effect as if each
exhibit were set forth in full and at length every time it is referred to or otherwise mentioned.
21. CAPTIONS.
All captions, heading, Section, Subsection, Paragraph and subparagraph numbers and letters and other reference numbers or letters
are solely for the purpose of facilitating reference to this Agreement and shall not supplement, limit or otherwise vary in any
respect the text of this Agreement.
22. REFERENCES.
All references to Sections, Subsections, Paragraphs or subparagraphs shall be deemed to refer to the appropriate Section, Subsection,
Paragraph or subparagraph of this Agreement. Unless otherwise specified in this Agreement, the terms "herein", "hereof",
"hereunder" and other terms of like or similar import, shall be deemed to refer to this Agreement as a whole, and not
to any particular Section, Subsection, Paragraph or subparagraph hereof. Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words of a singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise.
23. COUNTERPARTS.
This Agreement may be executed in several counterparts and by electronic or facsimile signatures which shall be deemed originals,
each of which shall constitute an original and all of which together shall constitute one and the same instrument. Transmission
of a signed copy of this Agreement or any amendment or addendum by facsimile or by electronic delivery of a PDF copy, and the retransmission
of any signed facsimile or electronic delivery of a PDF copy shall be the same as delivery of an original.
24. WAIVER.
Any condition or right of termination, cancellation or rescission granted by this Agreement to Purchaser or Seller may be waived
by such party.
25. RIGHTS
CUMULATIVE. Except as expressly limited by the terms of this Agreement (including Subsection 12.2), all rights, powers and
privileges conferred hereunder shall be cumulative and not restrictive of those given by law.
26. ASSIGNMENT.
Purchaser shall neither assign its rights nor delegate its obligations hereunder without obtaining Seller’s prior written
consent, which consent may be granted or withheld in Seller’s sole discretion. Notwithstanding anything to the contrary contained
in this Section 26, Purchaser may assign without Seller’s consent, on or prior to the Closing, all of its rights and
delegate all of its obligations hereunder to an entity under common ownership or control with Purchaser. Purchaser shall provide
Seller with prompt notice of such assignment/delegation together with a true, correct and complete copy of such assignment/delegation.
In connection with any assignment permitted or consented to hereunder, such assignee shall assume in writing all of the assignor’s
obligations under this Agreement in form and substance satisfactory to Seller, provided that Purchaser originally named herein
shall not be relieved from its obligations under this Agreement. No consent given by Seller to any transfer or assignment of Purchaser’s
rights or obligations under this Agreement shall be construed as a consent to any other transfer or assignment of Purchaser’s
rights or obligations under this Agreement. No transfer or assignment in violation of the provisions hereof shall be valid or enforceable,
and such shall be deemed a Purchaser default hereunder
27. SUCCESSORS
AND ASSIGNS. This Agreement shall apply to, be binding upon and enforceable against and inure to the benefit of the parties
hereto and their respective heirs, successors and permitted assigns to the same extent as if specified at length throughout this
Agreement.
28. DATE
FOR PERFORMANCE. If the time period by which any right, option or election provided under this Agreement must be exercised,
or by which any act required hereunder must be performed, or by which the Closing must be held, expires on a Saturday, Sunday or
legal or bank holiday, then such time period shall be automatically extended through the close of business on the next regularly
scheduled business day.
29. FURTHER
ASSURANCES. The parties hereto agree that they will each take such steps and execute such documents as may be reasonably required
by the other party or parties to carry out the intents and purposes of this Agreement.
30. SEVERABILITY.
In the event any provision or portion of this Agreement is held by any court of competent jurisdiction to be invalid or unenforceable,
such holding shall not affect the remainder hereof, and the remaining provisions shall continue in full force and effect at the
same extent as would have been the case had such invalid or unenforceable provision or portion never been a part hereof.
31. JUDICIAL
INTERPRETATION. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting
or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by
reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its
agent prepared the same, it being agreed that the agents of all parties have participated in the preparation hereof.
32. AUTHORITY
OF SELLER. The undersigned partner of Seller hereby represents and warrants to Purchaser that it has full right, power and
authority to execute and deliver this Agreement for and on behalf of Seller.
33. AUTHORITY
OF PURCHASER. The undersigned officer of Purchaser, in the event Purchaser is not an individual, hereby represents and warrants
that he has full right, power and authority to execute and deliver this Agreement for and on behalf of Purchaser.
34. LIKE-KIND
EXCHANGE. Each of the parties hereto agrees to cooperate at no expense to the cooperating party with the other party (or any
member of the other party) in effecting an I.R.C. Section 1031 exchange, including executing and delivering any and all documents
required by the exchange trustee or intermediary; provided, however, that the cooperating party shall have no obligation to execute
any document, enter any transaction or arrangement or take or omit any other action, if such party determines in its reasonable
discretion that the same would result in any liability, cost, expense, increased risk, delay or other detriment to the cooperating
party.
35. RECORD
ACCESS AND RETENTION. At Purchaser’s request, Seller shall provide to Purchaser (at Purchaser’s sole cost and expense)
copies of, or at Purchaser’s option shall provide Purchaser access to, such factual information as may be requested by Purchaser
in its sole discretion, and in the possession of Seller, or its property manager or accountants, to enable Purchaser’s auditor
to conduct an audit, in accordance with Rule 3-14 of Securities and Exchange Commission Regulation S-X, of the financial statements
of the Property for the year to date of the year in which Closing occurs plus the three (3) immediately preceding calendar years
(provided, however, that other than fees paid or payable to Seller, a Seller affiliate or a third party for on-site property management,
such audit shall not include an audit of asset management fees internally allocated by Seller (as opposed to paid to a third party)
or interest expenses attributable to the Seller). Purchaser shall be responsible for all out-of-pocket costs associated with any
such audit. Seller shall cooperate (at no cost to Seller) with Purchaser and its auditor in Purchaser’s preparation and review
of such information and the conduct of such audit. In addition, to the extent available Seller agrees to provide to Purchaser or
any affiliate of Purchaser, if requested, historical financial statements for the Property to the extent in Seller’s possession,
including (without limitation) income and balance sheet data for the Property, whether required before or after Closing. Without
limiting the foregoing, (i) Purchaser or its designated independent or other auditor may audit Seller’s operating statements
of the Property, at Purchaser’s expense, and, to the extent available, Seller shall provide such documentation as Purchaser
or its auditor may reasonably request in order to complete such audit, and (ii) Seller shall, to the extent available, furnish
to Purchaser such financial and other information as may be requested by Purchaser or any affiliate of Purchaser to make any required
filings with the Securities and Exchange Commission or other governmental authority. Seller shall maintain its records for use
under this Section 35 for a period of not less than twelve (12) months after the Closing Date. The provisions of this Section
shall survive Closing.
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Signatures Begin on Next Page]
IN WITNESS WHEREOF,
the parties hereto have duly signed, sealed, and delivered this Agreement on the day and year first above written.
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"SELLER": |
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RCG-GOLDSBORO, LLC, a Georgia limited liability company |
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By: |
RCG Ventures Distressed Real Estate Opportunity Fund, LP, a Georgia limited partnership, its manager |
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By: |
RCG Ventures Fund II GP, LLC, a Georgia limited liability company, its general partner |
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Xxxxxx X. Xxxxxx |
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Chief Financial Officer |
[Signatures Continue on Next Page]
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"PURCHASER": |
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Medalist Diversified Holdings, L.P.,
a Delaware limited partnership |
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By: |
/s/ Xxxxxxx X. Xxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Chief Operating Officer and President |