COMMONWEALTH OF PENNSYLVANIA AGREEMENT TO SELL AND PURCHASE
COUNTY OF XXXXXXXX (New Castle) REAL ESTATE
THIS AGREEMENT TO SELL AND PURCHASE REAL ESTATE ("Agreement") is made
and entered into as of the date of the last execution hereof, which date is the
____ day of April, 2000, by and between XXXX TWELVE ASSOCIATES, L.P., a
Pennsylvania limited partnership, hereinafter referred to as "Seller", and
LOWE'S HOME CENTERS, INC., a North Carolina corporation, hereinafter referred to
as "Buyer".
W I T N E S S E T H:
THAT WHEREAS, Seller has warranted to Buyer that it is the owner of the
premises described hereinafter; and
WHEREAS, Seller has offered to sell and Buyer has agreed to purchase
the premises described hereinafter subject to the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein, the sufficiency of which consideration is
acknowledged by all parties hereto, IT IS HEREBY AGREED AS FOLLOWS:
1. DESCRIPTION. The premises which are to be purchased by Buyer and
sold and conveyed by Seller consist of that certain tract of land containing
approximately 13 acres located in Union Township, Xxxxxxxx County, Pennsylvania
and generally shown outlined in red upon Exhibit A attached hereto and made by
this reference a part hereof (the "Premises"), together with any improvements
and personal property currently located thereon and all and singular the rights,
privileges, advantages, and appurtenances belonging or in anywise appertaining
to the Premises, as well as all easements appurtenant to the Premises.
2. SURVEY. Seller shall obtain and deliver or cause to be delivered to
Buyer a boundary survey map of the Premises drawn in accordance with Buyer's
Survey Requirements which are attached hereto and labeled Exhibit B (the
"Survey"). The metes and bounds description of the Premises resulting from the
Survey, if and as accepted by Buyer, shall upon such acceptance supersede and
replace the description of the Premises set forth in Paragraph 1 hereof for all
purposes hereunder and shall be the description of the Premises used in the
special warranty deed and Owner's Policy of Title Insurance to be furnished
hereunder. Seller shall be solely responsible for the cost of the Survey and
shall pay the same directly either prior to closing or by a deduction from
Seller's proceeds at closing.
3. TIME FOR PERFORMANCE. Seller shall convey the Premises to Buyer
thirty (30) days following the earlier to occur of:
(a) One hundred twenty (120) days from the last execution of this
Agreement; or
(b) Notification by Buyer that all of the requirements set forth in
Paragraph 5 of this Agreement have been fulfilled, in the opinion of Buyer,
unless the Agreement is terminated as otherwise provided.
Buyer shall have the option to extend the time specified in
sub-paragraph (a) above for an additional one hundred twenty (120) days by
giving written notice to Seller before the expiration of the one hundred twenty
(120) day period set forth in subparagraph (a) above and depositing with the
Title Company (as hereinafter defined) an additional deposit of TWENTY-FIVE
THOUSAND DOLLARS ($25,000.00) (the "Second Deposit").
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4. PURCHASE PRICE. The purchase price for the Premises shall be for
the total consideration of ONE MILLION NINE HUNDRED THOUSAND AND NO/100
($1,900,000.00) (the "Purchase Price").
Within five (5) business days after the full execution of this
Agreement, Buyer shall deliver into escrow with the Title Company an xxxxxxx
money deposit (the "First Deposit") in the amount of TWENTY-FIVE THOUSAND
DOLLARS ($25,000), which First Deposit shall be held by the Title Company in an
interest-bearing escrow account and disbursed in accordance with the terms of
this Agreement. The First Deposit and the Second Deposit shall hereinafter be
collectively (or individually, as the case may be) referred to as the "Deposit".
The Deposit shall be refunded to Buyer in the event Buyer rightfully elects to
terminate this Agreement under the terms and conditions defined herein;
otherwise, it shall be applied to the Purchase Price at closing or, in the event
of Purchaser's default, paid over to Seller in accordance with Paragraph 14
hereof.
5. BUYER'S REQUIREMENTS. Buyer shall be under no obligation to
purchase the Premises or otherwise perform under this Agreement unless Buyer
determines the Premises to be suitable for its intended purposes and until each
of the following requirements of Buyer is satisfied. The decision as to whether
the Premises are suitable for its intended purposes and the requirements have
been fulfilled shall be the sole decision of Buyer, determined in the absolute
discretion of Buyer, with Buyer's decision being final and binding upon both
parties. Buyer shall have one hundred twenty (120) days (or two hundred forty
(240) days, if extended under the provisions of Paragraph 3 above) from the last
execution of this Agreement to notify Seller of its cancellation of this
Agreement due to Buyer's determination that the Premises are unsuitable or to a
failure of fulfillment of any one of the requirements. If Buyer so elects to
terminate and is not in material default hereunder, the Title Company shall be
obligated to return the Deposit, together with all interest earned thereon, to
Buyer with neither party thereafter having any other rights or obligations under
this Agreement.
REQUIREMENTS TO BE ACCOMPLISHED
(a) Governmental Approvals: Buyer must have obtained or be able to
obtain, on terms satisfactory to Buyer, all appropriate municipal, county, state
and federal authorities' approvals and permits required for Buyer's intended use
and development of the Premises (collectively, the "Permits and Approvals")
including, but not limited to, the following: proper zoning, site plan and
development plan approvals, including any required drainage or storm water
management, building permits for planned improvements including approval for the
construction or relocation of utilities, any necessary governmental approval for
access such as curb cuts or entrances and any wetlands or environmental
approvals and permits. Notwithstanding and in addition to the foregoing, Seller
must have obtained and provided to Buyer all necessary variances, amendments and
approvals with respect to the existing approved site plan for the Premises as
provided in Paragraph7 hereof.
(b) Utilities: The Premises must have available suitable utilities,
including by way of illustration and not limitation, electricity, water, sewer
or septic tank disposal facilities, telephone services and natural gas if
available locally.
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(c) Public Service: The Premises must have available suitable fire
and police protection.
(d) Adaptability to Construction: The Premises must be adaptable to
construction of the improvements envisioned by Buyer at costs satisfactory to
Buyer. The Premises must not have been used as a dump and further must not
contain any harmful, toxic or polluting substance.
(e) Ingress and Egress: The Premises must have suitable legal and
insurable ingress to and egress from State Route 224 (via the shopping center
access drives shown on Exhibit A hereto or as may otherwise be approved by
Buyer).
(f) Soil Test: Any and all soil tests conducted on the Premises by
Buyer, at Buyer's expense, must yield a result satisfactory to accomplish the
site plan development and the construction of improvements planned by Buyer.
(g) Drainage: The Premises must be adaptable to effect drainage at
an expense satisfactory to Buyer.
(h) Flood Plain: The Premises must not lie in a flood plain.
(i) Environmental Conditions: Buyer must be satisfied that the
Premises is free of any pollutants, contaminants, chemical or industrial, toxic
or Hazardous Substances as defined in Paragraph 16.
(j) Zoning: The zoning classification of the Premises must permit
Buyer's intended use of the Premises and it is a further express condition of
this Agreement for the benefit of Buyer that Buyer must have obtained all
necessary Permits and Approvals, free from conditions and restrictions
compliance with which would result in extraordinary costs of development or use,
the determination of such being in the sole discretion of Buyer, or restrictions
on Buyer's ability to use any part of the Premises for its intended use
(including related uses necessary thereto).
(k) Ancillary Documents: Buyer and Seller shall have agreed to the
form of a declaration of easements, covenants, conditions and restrictions or
other similar instrument or an amendment to any existing reciprocal easement
agreement ("REA") adding Buyer as a party thereto and providing for the unified
development of the Premises and Seller's remaining property as shown on Exhibit
A hereto ("Seller's Remaining Property"), which REA shall be executed and
acknowledged by the parties and recorded at Closing. The Premises and Seller's
Remaining Property are hereinafter collectively referred to as the "Shopping
Center". The REA shall, inter alia, (i) establish a general site plan for the
Shopping Center generally conforming to Exhibit A hereto, (ii) establish certain
easements for the benefit of the Premises and Seller's Remaining Property
including, but not limited to, utility easements and easements for access to
State Route 224 as shown on Exhibit A, (iii) provide for the placement, to the
maximum extent permitted by applicable law and governmental authorities, of
Buyer's sign panel on the existing Shopping Center sign(s) and the construction
and installation, to the maximum extent permitted by applicable law and
governmental authorities, of an interstate multi-tenant pylon sign at a location
behind the Sears store shown on Exhibit A and along State Route 422, with
Buyer's sign panel in the top position thereon, and (iv) establish certain
restrictions on the Premises and Seller's Remaining Property, as the case may
be, as set forth in Exhibit C hereto.
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(l) Economic Feasibility: Buyer's intended use and development of
the Premises must be deemed by Buyer to be an economically feasible project in
Buyer's sole discretion.
(m) Third Party Consents: Seller shall have obtained and provided
to Buyer the consent or approval of any third party (including, without
limitation, any tenant or occupant of any portion of Seller's Remaining
Property) necessary or required in order to permit Buyer's intended development
and use of the Premises ("Third Party Consents") including, without limitation,
Buyer's prototypical outdoor sales and displays and the free-standing signage
contemplated by the parties as set forth in subparagraph (k) above. At closing,
Seller shall in writing represent and warrant unto Buyer that (i) all such Third
Party Consents have been obtained by Seller (and provide true and correct copies
thereof to Buyer) and (ii) no other Third Party Consents are necessary or
required. Such writing shall further set forth Seller's indemnity of Buyer with
respect to any breach of such representation and warranty.
(n) Exclusives Rights and Restrictions:Seller hereby represents and
warrants to Buyer and Buyer acknowledges that the Premises are or may be
currently encumbered by those certain exclusive rights and restrictions set
forth in Exhibit D attached hereto ("Exclusive Rights and Restrictions"), which
Exclusive Rights and Restrictions are imposed by certain existing leases of
portions of Seller's Remaining Property. In connection therewith, Buyer and
Seller shall reasonably cooperate in order to obtain waivers or releases of the
Exclusive Rights and Restrictions from the appropriate tenants or occupants of
Seller's Remaining Property to the extent the same encumber the Premises. In the
event the parties are unable, despite the exercise of commercially reasonable
efforts, to obtain such waivers or releases on terms acceptable to Buyer, Buyer
shall have its rights set forth in the first paragraph of this Paragraph 5
including, without limitation, the right to waive the requirement set forth in
this Paragraph 5(n) and close the transaction contemplated by this Agreement
subject to such Exclusive Rights and Restrictions.
6. TITLE INSURANCE. Buyer shall be under no obligation to purchase the
Premises from Seller unless Buyer shall be able to obtain at closing, at Buyer's
cost, an owner's policy of title insurance (the "Policy") from Commonwealth Land
Title Insurance Company, having an address at c/o Land America Financial Group,
Inc., National Commercial Services, 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000-0000 (the "Title Company"), based upon a satisfactory commitment
for title insurance for the Premises (the "Commitment") to be furnished to Buyer
by the Title Company following execution of this Agreement by both parties. The
Commitment and Policy shall identify the Premises and all easements appurtenant
thereto by the legal description(s) set forth on the Survey (as defined in
Paragraph 2 above) and contain endorsements (unless prohibited by law) stating
(a) that all of the parcels comprising the Premises are contiguous (if the
Premises is comprised of more than one parcel) and that the Premises is
contiguous to any property containing easements appurtenant thereto, (b) the
zoning classification of the Premises, (c) that the Premises abuts the public
street(s) immediately adjacent thereto and has direct and valid full and
unrestricted access thereto at the locations designated on the site plan
provided by Buyer, and (d) such other endorsements as Buyer may reasonably
require (the "Endorsements"). Seller hereby agrees to provide to the Title
Company any abstracts of title covering the Premises and/or any other form of
title evidence it may have in its possession or control, including any
attorney's title opinion or any owner's title insurance policy. Buyer's decision
as to whether "satisfactory" title insurance can be obtained shall be final and
shall not be subject to question by Seller. Seller shall cooperate fully with
Buyer in helping Buyer to eliminate such exceptions from Buyer's Commitment as
Buyer may desire eliminated, and further, Seller shall cooperate fully with
Buyer in order for all requirements of closing outlined in Buyer's Commitment to
be accomplished in all respects.
The Commitment and Policy must only contain exceptions for liens,
encumbrances, claims, easements or other matters that would not adversely affect
Buyer's intended use and development of the Premises as determined in Buyer's
sole discretion. Those exceptions and encumbrances which have been approved or
accepted by Buyer hereunder shall be the "Permitted Encumbrances".
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7. DELAYS FOR PERMITS AND APPROVALS; REA. Except as provided herein,
Buyer shall promptly commence efforts to obtain any and all Permits and
Approvals at its own expense; provided, however, that Seller shall promptly
commence efforts to obtain and diligently pursue at its own expense any and all
necessary variances and approvals with respect to the existing approved site
plan in order to permit Buyer's prototypical building on the Premises in a
manner and design acceptable to Buyer as well as any Third Party Consents. Buyer
and Seller shall cooperate with each other in this regard and all applications
and submittals to governmental authorities or third parties and all terms and
conditions of any such approvals to be obtained by Seller shall be subject to
the prior review and approval of Buyer. Seller shall, if requested or required
to do so, execute such applications or requests as may be necessary for the
owner of the Premises to execute and to provide any information privy to, known
to, or in possession of Seller which may be necessary or useful in completing
applications or requests. In addition, the parties acknowledge that they are in
negotiations with respect to the REA and will diligently pursue same. If, while
in compliance with the requirements of this Agreement, the parties shall
experience delay in obtaining any necessary Permits and Approvals or Third Party
Consents to use the Premises for Buyer's intended use or the REA shall not be
completed within the time frames herein set forth, Buyer will by written notice
to Seller elect one of the following:
(a) To waive such Permits and Approvals, Third Party Consents
and/or REA and to close the transaction in accordance with the terms of this
Agreement.
(b) To cancel this Agreement and to receive a complete refund of
the Deposit, together with all interest earned thereon, in which event neither
Seller nor Buyer will have any further rights, duties or obligations under this
Agreement, except as expressly provided herein; provided, however, that if Buyer
elects to terminate this Agreement and receive a refund of the Deposit as
aforesaid as a result of Seller's willful breach of its obligations hereunder,
Buyer's termination shall be without prejudice to Buyer's right to xxx Seller
for damages in the amount of the out-of-pocket costs and expenses incurred by
Buyer in its investigation of the Premises.
Further, if the sale of the Premises to Buyer constitutes or requires a
subdivision of the Premises owned by Seller, Seller shall pay all subdivision
and platting expenses and obtain all necessary governmental approvals.
8. ENVIRONMENTAL DISCLOSURE AND INVESTIGATION. Within ten (10)
business days of the last execution of this Agreement, Seller shall inform Buyer
of any Hazardous Materials or Release, and of any underground structures or
utilities which, to the best of Seller's actual knowledge, are or may be present
on the Premises and Seller shall deliver to Buyer true, correct and complete
copies of any environmental assessments and reports for the Premises in Seller's
possession or control, together with any and all soils reports, surveys and
other reports and information for the Premises and the Survey, and such further
documentation (for example, any title evidence, surveys, reports, studies, test
results, engineering drawings, permits or tank registrations) Seller has within
its possession or control regarding the physical condition of the Premises and
any structures or utilities thereon. Seller understands that Buyer needs this
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information in order to properly evaluate the Premises, to avoid damaging
underground structures and utilities and to avoid causing, contributing to or
exacerbating the Release of a Hazardous Substance in the course of its
investigations.
Seller hereby grants to Buyer and its employees, agents, consultants
and contractors the right to enter upon the Premises and, upon at least 24 hours
advance notice to Seller, Seller's Remaining Property (as necessary) in order to
itself conduct any surveys, soil tests, environmental assessments and tests and
other investigations as Buyer shall deem necessary. Buyer agrees to pay the
costs and expenses associated with any such investigation and testing it
undertakes and to repair and restore any damage to the Premises caused by
Buyer's investigations or testing, at Buyer's expense. Buyer also agrees to
defend and hold Seller harmless from all costs, expenses and liabilities arising
out of Buyer's negligence or willful misconduct or that of its employees,
agents, consultants or contractors in performing any such investigation or
testing of the Premises, except that Buyer shall have no responsibility to
Seller and Seller hereby releases Buyer and agrees to defend and hold Buyer
harmless from all costs, expenses and liabilities arising in connection with
environmental conditions, Hazardous Materials Release or underground structures
or utilities that were actually known by Seller and not disclosed to Buyer as
provided in this paragraph. In connection with any such on-site investigation,
Buyer shall cause its contractors and/or consultants to supply Seller with
certificates of insurance evidencing their respective insurance coverage.
Soil, rock, water, asbestos, and other samples taken from the Premises
shall remain the property of Seller. Seller shall be solely responsible for
making arrangements for the lawful disposal of any contaminated samples, to pay
any related transportation or disposal fees, and to sign the manifest and any
other documents required in connection with the disposal of contaminated
samples.
9. POSSESSION. Buyer shall be given sole and exclusive possession of
the Premises at such time as a special warranty deed satisfactory to Buyer is
delivered by Seller to Buyer conveying to Buyer the Premises in fee simple and
Buyer pays the remaining balance of the purchase price as described in Paragraph
4 of this Agreement.
10. CLOSING. Seller shall prepare at its cost the special warranty deed
conveying the Premises to Buyer. Seller agrees that it will convey the Premises
to Buyer by special warranty deed containing a covenant of title stating that
Seller has not done, committed or knowingly or willingly suffered to be done or
committed, any act, matter or thing whatsoever whereby the Premises, or any part
thereof, is, are, shall or may be impeached, charged or encumbered in title,
charge, estate or otherwise howsoever. Title to the Premises at closing shall be
marketable and good of record and in fact and zoned to permit Buyer's intended
use. At the closing, Seller shall convey marketable title to the Premises in fee
simple, free and clear of any and all liens, mortgages, deeds of trust, security
interests, covenants, conditions, restrictions, easements, rights-of-way,
licenses, encroachments, judgments or encumbrances of any kind except:
(i) the lien of real estate taxes not yet due and payable;
(ii) the Permitted Encumbrances; and
(iii) the REA.
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In addition, Buyer and Seller shall each be responsible for paying
one-half (1/2) of all state or county transfer taxes and documentary stamps, if
any, occasioned by the conveyance of the Premises as well as any notary fees
incurred, and Buyer shall be responsible for the premium for Buyer's owner's
policy of title insurance. All unpaid ad valorem taxes due and payable within
the calendar year of the closing shall be prorated between Seller and Buyer as
of the closing date. Seller shall pay all rollback taxes, recoupment fees or
similar taxes occasioned by a change in the use of the Premises in connection
with Buyer's proposed acquisition and development thereof. Seller agrees to
promptly forward to Buyer any property tax statements for the Premises received
by Seller after closing.
Buyer and Seller each agree to indemnify and hold the other harmless
from any claims of brokers or real estate agents claiming by, through or under
the indemnifying party for fees or commissions arising out of the sale of the
Premises to Buyer. Buyer and Seller each represent to the other that they have
not employed nor engaged any real estate agents or brokers to be involved in
this transaction other than Xxxxxxx Xxxxxx Development Corporation (hereinafter
referred to as the "Broker"), for whose commission or fees Seller shall be
solely responsible.
11. ASSIGNMENT BY BUYER. This Agreement and the rights, duties,
interests, and obligations of Buyer hereunder may be assigned by Buyer without
the consent of Seller only to an affiliate of Buyer.
12. NOTICES. Any notices, requests or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or a widely recognized national overnight courier service or mailed by
United States registered or certified mail, return receipt requested, postage
prepaid and addressed to each party at its address as set forth below:
To Seller: Xxxx Twelve Associates, L.P.
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
and to Buyer: Xxxx'x Home Centers, Inc.
c/o Lowe's Companies, Inc.
X.X. Xxx 0000
(Xxxxxxx 000 Xxxx, X. Xxxxxxxxxx, Xxxxx Xxxxxxxx 28659)
N. Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxx, Real Estate Manager (REO)
cc: Xxxx'x Companies, Inc.
X.X. Xxx 0000
(Xxxxxxx 000 Xxxx, X. Xxxxxxxxxx, Xxxxx Xxxxxxxx 28659)
N. Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Law Dept. (REO)
Any such notice, request or other communication shall be considered
given or delivered, as the case may be, on the date of hand or overnight courier
delivery or upon deposit in the United States mail as provided above. 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.
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13. DESTRUCTION, CONDEMNATION. In the event of any material damage to
or destruction of the Premises or any material portion thereof or in the event
of any taking or threat of taking by condemnation (or any conveyance in lieu
thereof of the Premises or any portion thereof by anyone having the power of
eminent domain), Buyer shall, by written notice to Seller delivered within
fifteen (15) days of receiving written notice from Seller of such event, elect
to: (i) terminate this Agreement and all of Buyer's obligations under this
Agreement, whereupon the Deposit, together with all interest earned thereon,
shall be refunded in full to Buyer by the Title Company and this Agreement shall
become null and void and neither party shall thereafter have any right, duty or
obligation under this Agreement, or (ii) consummate the purchase of the
Premises. If Buyer does not elect to terminate this Agreement, then Seller shall
on the closing date pay to Buyer all condemnation awards and compensation then
received by Seller, it being understood that the Premises consists of vacant,
unimproved land for which no casualty insurance coverage is provided. In
addition, Seller shall transfer and assign to Buyer, in form reasonably
satisfactory to Buyer, all rights and claims of Seller with respect to payment
for damages and compensation on account of such damage, destruction or taking.
Seller will not settle any condemnation or eminent domain proceeding or any
award or payment in respect of or in connection with the Premises without
obtaining Buyer's prior written consent in each case, which consent shall not be
unreasonably withheld or delayed.
14. DEFAULT.
(a) Seller's Default. One of the purposes of this Agreement is to
bind Seller to sell the Premises described in Paragraph 1. If the sale and
purchase of the Premises contemplated by this Agreement is not consummated on
account of Seller's default hereunder, the Deposit, together with all interest
earned thereon, shall be refunded in full to Buyer on notice by Buyer to the
Title Company holding such deposit, without prejudice to Buyer's rights to
enforce specific performance of this Agreement against Seller or pursue an
action at law against Seller to recover Buyer's out-of-pocket costs and expenses
incurred in connection with this transaction.
(b) Buyer's Default. If the sale and purchase of the Premises
contemplated by this Agreement is not consummated on account of Buyer's default
hereunder, Seller shall be entitled, as its sole and exclusive remedy hereunder,
to payment of the Deposit as full and complete liquidated damages for such
default of Buyer, the parties hereto acknowledging that it is impossible to
estimate more precisely the damages which might be suffered by Seller upon
Buyer's default. Seller's entitlement and receipt of the Deposit 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 Buyer, and Seller hereby waives and releases any right to
(and hereby covenants that it shall not) xxx Buyer: (a) for specific performance
of this Agreement, or (b) to recover actual damages in excess of such sums.
15. EASEMENTS AND RIGHTS-OF-WAY. Seller covenants and agrees that
during the term of this Agreement it shall not grant or enter into any
easements, rights-of-way, contracts for work, or other agreements affecting the
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Premises, or the title thereto, without first obtaining the prior written
consent of Buyer, which consent shall not be unreasonably withheld or delayed.
16. WARRANTIES, REPRESENTATIONS AND COVENANTS TO SURVIVE CLOSING. The
warranties, representations and covenants made by the parties hereto shall
survive the closing of the purchase of the Premises under this Agreement and the
closing date and shall continue in full force and effect without termination for
a period of two (2) years thereafter. Also, wherever in this Agreement Seller or
Buyer shall have agreed or promised to perform certain acts or grant certain
easements or other rights where the context of the Agreement would require such
performance or grants to occur after the closing, then those agreements and
covenants expressed herein shall survive closing and continue to bind Seller and
Buyer. Each party shall indemnify, defend and hold harmless the other from and
against any and all claims, demands, liabilities and expenses (including
reasonable attorneys' fees) incurred by a party as a result of a breach by the
other party of its covenants, warranties and representations set forth in
Paragraphs 17 and 18 hereof.
17. SELLER'S WARRANTIES, REPRESENTATIONS AND COVENANTS. As an
inducement to Buyer to enter into this Agreement and to purchase the Premises,
Seller warrants, represents and covenants to Buyer as follows:
(a) Authority. Seller (i) is a lawfully constituted limited
partnership, duly organized, validly existing, and in good standing under the
laws of the Commonwealth of Pennsylvania; (ii) has the authority and power to
enter into this Agreement and to consummate the transactions contemplated
herein; and (iii) upon execution hereof will be legally obligated to Buyer in
accordance with the terms and provisions of this Agreement.
(b) Title and Characteristics of Premises. Seller as of the date of
execution of this Agreement owns the Premises in fee and has marketable title
and the Premises at closing shall have the title status as described in
Paragraph 9 above.
(c) Conflicts. The execution and entry into this Agreement, the
execution and delivery of the documents and instruments to be executed and
delivered by Seller on the closing date, and the performance by Seller of
Seller's duties and obligations under this Agreement and of all other acts
necessary and appropriate for the full consummation of the purchase and sale of
the Premises as contemplated herein, are consistent with and not in violation
of, and will not create any adverse condition under, any contract, agreement or
other instrument to which Seller is a party or any judicial order or judgment of
any nature by which Seller is bound. On the closing date all necessary and
appropriate action will have been taken by Seller authorizing and approving the
execution of and entry into this Agreement, the execution and delivery by Seller
of the documents and instruments to be executed by Seller on the closing date,
and the performance by Seller of Seller's duties and obligations under this
Agreement and of all other acts necessary and appropriate for the consummation
of the purchase and sale of the Premises as contemplated herein.
(d) Condemnation. Seller has received no notice of, nor is Seller
aware of, any pending, threatened or contemplated action by any governmental
authority or agency having the power of eminent domain, which might result in
any part of the Premises being taken by condemnation or conveyed in lieu
thereof.
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(e) Litigation. There is no action, suit or proceeding pending or,
to the best of Seller's actual knowledge, threatened by or against or affecting
Seller or the Premises which does or will involve or affect the Premises or
title thereto. Seller will, promptly upon receiving any such notice or learning
of any such contemplated or threatened action, give Buyer written notice
thereof.
(h) No Violations. To the best of Seller's actual knowledge, there
are no violations of state or federal law, municipal or county ordinances, or
any other legal requirements with respect to the Premises. Seller has received
no notice (oral or written) that any municipality or governmental or
quasi-governmental authority has determined that there are such violations. In
the event Seller receives prior to the closing notice of any such violations
affecting the Premises, Seller shall promptly notify Buyer thereof, and shall
promptly and diligently defend any prosecution thereof and take any and all
commercially reasonable actions to eliminate said violations.
(i) Foreign Ownership. Seller is not a "foreign person" as that
term is defined in the U. S. Internal Revenue Code of 1986, as amended, and the
regulations promulgated pursuant thereto, and Buyer has no obligation under
Section 1445 of the U. S. Internal Revenue Code of 1986, as amended, to withhold
and pay over to the U. S. Internal Revenue Service any part of the "amount
realized" by Seller in the transaction contemplated hereby (as such term is
defined in the regulations issued under said Section 1445).
(j) Prior Options. No prior options or rights of first refusal have
been granted by Seller to any third parties to purchase or lease any interest in
the Premises, or any part thereof, which are effective as of the execution date.
(k) Mechanics and Materialmen. Seller will, at Closing, provide
Buyer and the Title Company with a standard Affidavit as to Liens and Parties in
Possession certified to Buyer and the Title Company or such other assurances as
shall be sufficient to cause the Title Company to delete the mechanics' liens
and parties in possession standard exceptions from the Policy to be issued to
Buyer at closing.
(l) Hazardous-Materials. Except as disclosed and delivered to Buyer
pursuant to Paragraph 8 above:
(i) To the best of Seller's actual knowledge, the Premises are
free from contamination by Hazardous Materials. To the best of Seller's actual
knowledge, there is no evidence of Release of Hazardous Materials at the
Premises.
(ii) There has been no generation, treatment or storage of any
Hazardous Materials at the Premises by Seller or, to the best of Seller's actual
knowledge, any third person nor has any activity been conducted by Seller or, to
the best of Seller's actual knowledge, any third person at the Premises which
could have produced Hazardous Materials.
(iii) To the best of Seller's actual knowledge, there are no
surface impoundments, lagoons, waste piles, landfills, injection xxxxx,
underground storage areas, tanks, storage vessels, drums, containers or other
man-made facilities at the Premises which may have accommodated Hazardous
Materials at the Premises. Neither Seller, nor to the best of Seller's actual
knowledge any third person, has stored, placed, buried or Released Hazardous
Materials at the Premises, including the soil, surface water and ground water.
10
(iv) To the best of Seller's actual knowledge, no inspection,
audit, inquiry or other investigation has been or is being conducted by any
Governmental Authority (as hereinafter defined in Paragraph 16(l)(vi) below) or
other third person with respect to the presence or discharge of Hazardous
Materials at the Premises or the quality of the air or surface or subsurface
conditions at the Premises except for Phase I environmental audits, if any,
performed on behalf of Seller or any lender of Seller, if any, copies of which
will be delivered to Buyer pursuant to this Agreement to the extent in Seller's
possession or control. Seller has not received notice that any such inspection,
audit, inquiry or investigation is pending or proposed. Seller has not received
any warning, notice, notice of violation, administrative complaint, judicial
complaint or other formal or informal notice or request for information alleging
that Hazardous Materials have been stored or Released at the Premises or that
conditions at the Premises are in violation of any Environmental Laws or
requesting information regarding the use, storage, release or potential Release
of Hazardous Materials at the Premises.
(vi) Definitions. For purposes of this Paragraph 17 and this
Agreement: "Environmental Laws" shall mean any federal, state or local statute,
regulation or ordinance or any judicial or administrative decree or decision,
whether now existing or hereinafter enacted, promulgated or issued, with respect
to any Hazardous Materials, drinking water, groundwater, wetlands, landfills,
open dumps, storage tanks, underground storage tanks, solid waste, waste water,
storm water runoff, waste emissions or xxxxx. Without limiting the generality of
the foregoing, the term shall encompass each of the following statutes, and all
regulations, orders, decrees, permits, licenses and deed restrictions now or
hereafter promulgated thereunder, and any amendments and successors to such
statutes and regulations as may be enacted and promulgated from time to time:
(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.
Section 9601 et seq.) ("CERCLA"); (ii) the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.) ("RCRA"); (iii) the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.); (iv) the Toxic Substances
Control Act (15 U.S.C. Section 2061 et seq.); (v) the Clean Water Act (33 U.S.C.
Section 1251 et seq.); (vi) the Clean Air Act (42 U.S.C. Section 7401 et seq.);
(vii) the Safe Drinking Water Act (21 U.S.C. Section 349, 42 U.S.C. Section 201
and Section 300f et seq.); (viii) the National Environmental Policy Act (42
U.S.C. Section 4321 et seq.); (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
(40 U.S.C. Section 1101 et seq.); (xi) the Uranium Mill Tailings Radiation
Control Act (42 U.S.C. Section 7901 et seq.); (xii) the Occupational Safety and
Health Act (29 U.S.C. Section 655 et seq.); (xiii) the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.); (xiv) the Noise
Control Act (42 U.S.C. Section 4901 et seq.); and (xv) the Emergency Planning
and Community Right to Know Act (42 U.S.C. Section 1100 et seq.).
"Hazardous Materials" means each and every element,
compound, chemical mixture, contaminant, pollutant, material, waste or other
substance which is defined, determined or identified as hazardous or toxic under
any Environmental Law. Without limiting the generality of the foregoing, the
term shall mean and include:
11
"Hazardous Substances" as defined in CERCLA, the Superfund
Amendments and Reauthorization Act of 1986, or Title III of the Superfund
Amendment and Reauthorization Act, each as amended, and regulations promulgated
thereunder including, but not limited to, asbestos or any substance containing
asbestos, polychlorinated biphenyls, any explosives, radioactive materials,
chemicals known or suspected to cause cancer or reproductive toxicity,
pollutants, effluents, contaminants, emissions, infectious wastes, any petroleum
or petroleum-derived waste or product or related materials and any items defined
as hazardous, special or toxic materials, substances or waste;
"Hazardous Waste" as defined in the Resource Conservation
and Recovery Act of 1976, as amended, and regulations promulgated thereunder;
Materials defined as "Hazardous Materials" in the
Hazardous Materials Transportation Act, as amended, and regulations promulgated
thereunder; and
"Chemical Substance or Mixture" as defined in the Toxic
Substances Control Act, as amended, and regulations promulgated thereunder.
"Governmental Authorities" means the United States, the
Commonwealth of Pennsylvania and any political subdivision thereof, and any and
all agencies, departments, commissions, boards, bureaus, bodies, councils,
offices, or authorities, or any instrumentality of any of them, of any nature
whatsoever for any governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx,
xxxxxxxxx, xxxx or otherwise) whether now or hereafter in existence.
"Release" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, storing, escaping,
leaching, dumping, discarding, burying, abandoning, or disposing into the
environment in amounts or of a magnitude that would require remediation pursuant
to applicable laws, rules, statutes, ordinances and/or regulations.
18. BUYER'S WARRANTIES, REPRESENTATIONS AND COVENANTS. Purchaser
represents and warrants to Seller as follows:
(a) Authority. Buyer (i) is a lawfully constituted corporation,
duly organized, validly existing, and in good standing under the laws of the
State of North Carolina; (ii) has the authority and power to enter into this
Agreement and to consummate the transactions contemplated herein; and (iii) upon
execution hereof will be legally obligated as Buyer in accordance with the terms
and provisions of this Agreement.
(b) Conflicts. The execution and entry into this Agreement, the
execution and delivery of the documents and instruments to be executed and
delivered by Buyer on the closing date, and the performance by Buyer of Buyer's
duties and obligations under this Agreement and of all other acts necessary and
appropriate for the full consummation of the purchase and sale of the Premises
as contemplated herein, are consistent with and not in violation of, and will
not create any adverse condition under, any contract, agreement or other
instrument to which Buyer is a party or any judicial order or judgment of any
nature by which Buyer is bound. On the closing date all necessary and
appropriate action will have been taken by Buyer authorizing and approving the
execution of and entry into this Agreement, the execution and delivery by Buyer
of the documents and instruments to be executed by Buyer on the closing date,
12
and the performance by Buyer of Buyer's duties and obligations under this
Agreement and of all other acts necessary and appropriate for the consummation
of the purchase and sale of the Premises as contemplated herein.
19. WAIVER. The failure to enforce any particular provision of this
Agreement on any particular occasion shall not be deemed a waiver by either
party of any of its rights hereunder, nor shall it be deemed to be a waiver of
subsequent or continuing breaches of that provision, unless such waiver be
expressed in a writing signed by the party to be bound.
20. 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
will be automatically extended through the close of business on the next
following business day.
21. FURTHER ASSURANCES. The parties 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 intent and purposes of this Agreement.
22. 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 will not effect the remainder hereof, and the
remaining provisions shall continue in full force and effect to the same extent
as would have been the case had such invalid or unenforceable provision or
portion never been a part hereof.
23. INTENTIONALLY DELETED.
24. AUTHORITY. The undersigned officers of Seller and Buyer hereby
represent, covenant and warrant that all actions necessary by their respective
Boards of Directors, shareholders, general partners and partners, as the case
may be, will have been obtained and that they will have been specifically
authorized to enter into this Agreement and that no additional action will be
necessary by them in order to make this Agreement legally binding upon them in
all respects. Buyer and Seller covenant to provide written evidence of
compliance with this Paragraph 22 prior to or at Closing.
25. SUCCESSORS AND ASSIGNS. The designation Seller and Buyer as used
herein shall include said parties, their heirs, successors, and assigns, and
shall include the singular, plural, masculine, feminine or neuter as required by
context.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and shall become a binding and enforceable agreement among
the parties hereto upon the full and compete execution and unconditional
delivery of this Agreement by all parties hereto. No prior verbal or written
agreement shall survive the execution of this Agreement. In the event of an
alteration of this Agreement, the alteration shall be in writing and shall be
signed by all the parties in order for the same to be binding upon the parties.
27. TAX DEFERRED EXCHANGE. The sale and purchase of the Premises may,
at Seller's and/or Buyer's option, be structured, in whole or part, as a
like-kind or tax-free exchange under Section 1031 of the Internal Revenue Code
of 1986, as amended. Each party will, at the other party's request, reasonably
cooperate in structuring the method of sale and purchase and will timely take
13
all action necessary for the transaction to qualify as a like-kind or tax-free
exchange and so as to cause no delay in the Closing hereunder. The party
effecting a like-kind or tax-free exchange shall be responsible for any and all
costs incurred by the other party in connection therewith (including, without
limitation, reasonable attorneys' fees) and the other party shall not be
obligated to take title to any exchange property.
28. AS IS.
(a) Except as otherwise expressly provided herein, Buyer hereby
acknowledges that the Premises is being sold "AS-IS, WHERE-IS, AND WITH ALL
FAULTS."
(b) This Agreement, as written, contains all the terms of the
agreement entered into between the parties as of the date hereof, and Buyer
acknowledges that, except as otherwise expressly provided and set forth in this
Agreement, neither Seller nor any affiliates of Seller, nor any of their
respective agents or representatives, nor Broker has made any representations or
held out any inducements to Buyer, and Seller hereby specifically disclaims any
representation, oral or written, past, present or future, other than those
expressly set forth in this Agreement. Without limiting the generality of the
foregoing, Buyer has not relied on any representations or warranties, and
neither Seller nor any affiliates of Seller, nor any of their respective agents
or representatives has or is willing to make any representations or warranties,
express or implied, other than as may be expressly set forth herein, as to (i)
the status of title to the Premises, (ii) the current or future real estate tax
liability, assessment or valuation of the Premises; (iii) the potential
qualification of the Premises for any and all benefits conferred by applicable
law whether for subsidies, special real estate tax treatment, insurance,
mortgages or any other benefits, whether similar or dissimilar to those
enumerated; (iv) the nature and extent of any right-of-way, lease, possession,
lien, encumbrance, license, reservation, condition or otherwise; (v) the
availability of any financing for the purchase, alteration, rehabilitation or
operation of the Premises from any source, including, without limitation, any
government authority or any lender; or (vi) the current or future use of the
Premises, including, without limitation, the premises use for commercial,
manufacturing or general office purposes.
(c) Buyer acknowledges and agrees that (i) any reports or other
information regarding the Premises delivered or made available to Buyer and
Buyer's representatives by Seller or Seller's affiliates, or any of their
respective agents or representatives, pursuant to or in accordance with
Paragraph 8 hereof or this Agreement (collectively, the "Premises Information")
may have been prepared by third parties and may not be the work product of
Seller and/or any of Seller's affiliates; (ii) neither Seller nor any affiliate
of Seller has made any independent investigation or verification of, or has any
knowledge of, the accuracy or completeness of the Premises Information; (iii)
the Premises Information delivered or made available to Buyer and Buyer's
representatives is furnished to each of them at the request, and for the
convenience of, Buyer; (iv) Buyer is relying solely on its own investigations,
examinations and inspections of the Premises and those of Buyer's
representatives and is not relying in any way on the Premises Information
furnished by Seller or any affiliates of Seller, or any of their respective
agents or representatives; and (v) Seller expressly disclaims any
representations or warranties with respect to the accuracy or completeness of
the Premises Information.
14
(d) The provisions of this Section 26 shall survive the termination
of this Agreement and the Closing.
29. ESCROW INSTRUCTIONS. The Title Company shall accept the Deposit,
hold the same in escrow (in an interest-bearing escrow account acceptable to
Buyer and Seller) and release and deliver the same in accordance with the
provisions of this Agreement. In that regard, the Title Company shall deliver
the Deposit to Seller or Buyer, as the case may be, as follows:
(a) to Seller, upon Closing pursuant to this Agreement; or
(b) to Seller, after receipt of Seller's demand and notice of
default given to Buyer and the Title Company in which Seller certifies either
that (i) Buyer has defaulted under the Agreement, or (ii) the Agreement has been
otherwise terminated or cancelled, and Seller is thereby entitled to receive the
Deposit, except that the Title Company shall not honor Seller's demand until
more than ten (10) days after the Title Company has given a copy of Seller's
demand and notice to Buyer and the Title Company has received no notice from
Buyer within such ten (10)-day period objecting to same; or
(c) to Buyer, after receipt of Buyer's demand and notice given to
Seller and the Title Company in which Buyer certifies either that (i) Seller has
defaulted under the Agreement, or (ii) the Agreement has been otherwise
terminated or cancelled, and Buyer is thereby entitled to receive the Deposit,
except that the Title Company shall not honor Buyer's demand until more than ten
(10) days after the Title Company has given a copy of Buyer's demand and notice
to Seller and the Title Company has received no notice from Seller within such
ten (10)-day period objecting to same.
The Title Company assumes no liability under this Agreement other than
that of a stakeholder. If there is any dispute as to whether the Title Company
is obligated to deliver funds or as to whom such funds are to be delivered or if
any notice of objection is timely delivered to the Title Company as provided in
(b) and (c) above, the Title Company shall not be obligated to make any delivery
thereof, but may hold the same until receipt by the Title Company of an
authorization in writing signed by all parties to such dispute, directing the
disposition of such funds. In the absence of such authorization, the Title
Company may hold such funds until the final determination of the rights of the
parties in an appropriate proceeding. If such written authorization is not
given, or proceedings for such determination are not timely begun and diligently
pursued, the Title Company shall not be required to, but may, bring an
appropriate action or proceeding for leave to deposit such funds in Court,
pending such determination. No provisions of this Agreement shall be construed
to relieve the Title Company of any obligations or liabilities which may now
exist or hereafter accrue by virtue of any writing other than this Paragraph 29.
30. HEADINGS. The paragraph headings are included for convenience only
and shall not be used in connection with the interpretation of this Agreement.
31. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
32. BINDING EFFECT. This Agreement is binding upon and inures to the
benefit of the parties hereto and their respective successors and permitted
assigns.
15
33. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
taken together shall constitute one and the same single instrument.
34. RELA ADMONITION. Buyer acknowledges that at the time of the
execution of this Agreement, Buyer is advised by this writing that Buyer should
have an abstract covering the Premises examined by an attorney of Buyer's own
selection, or that Buyer should be furnished with or obtain an Owner's Policy of
Title Insurance.
35. ZONING CERTIFICATION. Seller warrants that the Premises is now or
will, on or prior to the Closing Date, be zoned in such manner so as to permit
the commercial use of the Premises and certifies that the zoning under the
Zoning Ordinance of the Township of Union is ___.
36. COAL NOTICE. NOTICE - THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER,
INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHT OF SUPPORT UNDERNEATH THE
SURFACE LAND DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH
COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL OF SUCH COAL AND, IN THAT
CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING
OR OTHER STRUCTURE ON OR IN SUCH LAND. THE INCLUSION OF THIS NOTICE DOES NOT
ENLARGE, RESTRICT OR MODIFY ANY LEGAL RIGHTS OR ESTATES OTHERWISE CREATED,
TRANSFERRED, EXCEPTED OR RESERVED BY THIS INSTRUMENT. [THIS NOTICE IS SET FORTH
IN THE MANNER PROVIDED IN SECTION 1 OF THE ACT OF JULY 17, 1957, P.L. 984, AS
AMENDED, AND IS NOT INTENDED AS NOTICE OF UNRECORDED INSTRUMENTS, IF ANY.]
37. SEWERAGE CERTIFICATION. The Pennsylvania Sewage Facilities Act of
January 24, 1966, No. 537 P.L. 1535, as amended, requires that there be a
statement regarding the availability of a community sewage provision:
_____ (a) The Premises is serviced by a community sewage system
(If the Premises is not so serviced check (b) or (c)
below.)
_____ (b) Buyer is hereby advised that there is no currently
existing community sewage system available to the
Premises. There is a permit for the operation of an
individual sewage system for the Premises, and said permit
has been exhibited by Seller to Buyer.
_____ (c) Buyer is hereby advised that there is no currently
existing community sewage system available to the Premises
and that a permit for an individual sewage system will
have to be obtained from the appropriate local agency
pursuant to the Pennsylvania Sewage Facilities Act. Buyer
should contact the appropriate local agency which
administers the Pennsylvania Sewage Facilities Act, which
is the Union Township sewage officer, before signing this
Agreement to determine the procedures and requirements for
obtaining a permit for an individual sewage system.
[Signatures Appear on Following Page]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date first above written.
ATTEST: SELLER:
XXXX TWELVE ASSOCIATES, L.P., a
Pennsylvania limited partnership
By: New Castle Fifty Realty Corp., a
Pennsylvania corporation, its
General Partner
By:
------------------------------------- -------------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary Title: President
ATTEST: BUYER:
LOWE'S HOME CENTERS, INC.
_____________________________________ By:__________________________________
Name:________________________________ Name:________________________________
Title:_______________________________ Title:_______________________________
(CORPORATE SEAL)
The undersigned joins in the execution
of this Agreement to Sell and Purchase
Real Estate solely for the purpose of
agreeing to act as escrow agent pursuant
to Paragraph 29 hereof and to abide by
the provisions thereof and of Paragraph
3 hereof.
COMMONWEALTH LAND TITLE INSURANCE COMPANY
(Title Company)
By:________________________________________
Name:______________________________________
Title:_____________________________________
17
EXHIBIT "A"
SITE PLAN
18
EXHIBIT "B"
SURVEY REQUIREMENTS
I. BOUNDARY SURVEY AND SEPARATE LEGAL DESCRIPTION
Lowe's requires an ALTA land survey, accompanied by the attached Schedule B
Surveyor's Report Form. The survey should be certified and sealed according
to Schedule C, entitled "Minimum Standard Detail Requirements For ALTA/ACSM
Land Title Surveys" as per the most currently adopted requirements. The
survey should be an Urban Class Survey as defined in these requirements and
should include Items 1 - 11 and Item 13 of Table A thereof.
The certification shown below, should appear on the face of all survey
prints with both an original signature and seal. The surveyor must fill in,
sign and certify four (4) copies of the enclosed Surveyor's Report Form,
together with the survey prints.
A. Entitle the survey and description "Survey for Lowe's Home Centers,
Inc.".
B. Use scale of one (1) inch equals one hundred (100) feet (if applicable).
C. Reference description and plat, to a clearly definable point away from
the property. Example: Intersection of two right-of-ways, etc.
D. Clearly xxxx the property corner designated as the point-of-beginning
using "P.O.B.".
E. Clearly show all adjacent property owners on Boundary Survey.
F. Clearly show acreage within the confines of the property to the nearest
one hundredth of an acre.
G. Regarding adjacent right-of-ways:
1. Clearly define right-of-ways on Boundary Survey. Example: "North
right-of-way", "East right-of-way", etc.
2. Clearly xxxx centerlines as "CL".
3. Clearly show right-of-way widths, both from centerline and total
width.
H. Show all easements crossing property and:
1. Clearly define type of easement. Example: Electrical, sewer, etc.
2. Clearly xxxx centerlines as "CL" (if applicable).
3. Clearly show easement widths, both from centerline and total width.
19
4. Within or directly adjacent to each easement, show the recording
information. Example: Book 285, Page 163.
I. Prepare Metes and Bounds description on a separate sheet of paper from
Boundary Survey.
J. Forward a mylar sepia or other reproducible copy and four (4) copies of
the Boundary Survey, all signed and sealed.
K. Forward four (4) copies of the Metes and Bounds description, all signed
and sealed.
L. Forward four (4) copies of the Surveyor's Report, all signed and sealed.
M. All surveys and descriptions must be prepared in recordable form.
NOTE: Any bearing, distance, lot line, section or township number,
County or State name, street name, recording data, etc., included in the
Metes and Bounds description must also be shown on the Boundary Survey
itself. In short, any items included in the Metes and Bounds description
must be clearly shown on the Boundary Survey.
N. Our title insurance company will forward to you a copy of the title
insurance commitment and the exceptions. Please prepare an index on the
face of the survey itemizing each exception listed on Schedule B-Section
2 in the commitment. The index should be prepared with the following
guidelines:
INDEXING THE EXCEPTIONS ON THE SURVEY:
1. State if the exception affects or does not affect the property
surveyed;
2. State if the exception cannot be described;
3. State if the exception is a blanket easement; and
4. When indexing the exception, state to whom the exception is to (with
the recording Book and Page).
EXAMPLE:
1. Blanket easement granted unto XYZ Power Company affecting all parcels (or
be specific as to which parcel it does affect), D.B. 29, Page 89
(unplottable).
2. Twenty foot access easement to Xxxx and Xxxx Xxxxx affecting Parcel B, D.B.
31, Page 90 (Drawn).
20
DRAWING THE EXCEPTIONS ON THE SURVEY:
o Draw every exception in the title commitment and reference it with the Deed
Book and Page, and the number where it is itemized in the index.
EXAMPLE:
________________________________________________________________________________
________________________________________________________________________________
20' Access Easement
D.B. 31, Page 90
See Index Note 2
II. We will notify you of the attorney examining the title and you should
provide four (4) copies of the Boundary Survey and the Surveyor's Report to
that attorney.
III. You should certify the four (4) copies of the Survey with an original seal
to the following entities:
X. Xxxx'x Home Centers, Inc.
B. Title company
The following certifications should be provided in addition to the required
ALTA/ACSM certification in the format below:
The undersigned hereby certifies to _________________________________ that this
survey was actually made upon the ground; that it and the information, courses,
angles and distances shown thereon are correct; that this survey correctly shows
the location of all buildings, structures and other improvements on the
Premises, including, without limitation, all streets, easements, rights-of-way
and utility lines; and that, except as shown, there are no (a) easements or
rights-of-way across the Premises; (b) party walls, (c) encroachments on
adjoining premises, streets or alleys of any of said buildings, structures or
improvements, or (d) encroachments upon the Premises by any building, structure
or other improvements situated on any adjoining premises; physical evidence of
boundary lines on all sides of the Premises is as stated on the survey; and that
the improvements do not violate any set-back or other building lines.
I hereby certify that this survey has been made using the latest recorded plat
or deed, that there are no encroachments other than those shown, and that the
survey is correct to the best of my knowledge and belief.
In addition, the surveys provided pursuant to this paragraph must contain a
Flood Zone Certification. Those surveys should be sent directly to the Lowe's.
I hereby certify that the ___________________________ project, shown hereon does
or does not lie within a special flood hazard zone according to
___________________________________ of the Flood Insurance Rate Map of
______________________ dated ________________ and noted as zone _______ (also
include year flood) to the best of my knowledge and belief.
21
EXHIBIT "C"
RESTRICTIONS
Use Restrictions.
(a) During the term of this Declaration no portion of the Properties
may be used for any of the following purposes without the written consent of
Seller and Lowe's:
(i) A tavern, bar, nightclub, discotheque or any other
establishment selling alcoholic beverages for on-premises consumption; provided,
however, that the foregoing shall not preclude the operation of a restaurant
where the sale of alcoholic beverages therein comprises less than fifty percent
(50%) of the restaurant's gross revenue.
(ii) A bowling alley or game room.
(iii) A theater (motion picture or live performance).
(iv) A health club or spa, except that a health club or spa of no
more than 10,000 square feet shall be permitted so long as it is located at
least 400 feet from the Premises.
(v) A gas station, service station or truck stop, except that a
convenience store selling gasoline and oil products shall be permitted on the
Outparcels only; provided, however, that such convenience store shall be
operated by a national or regional operator and shall not offer automotive
services or repairs; and, provided further, that the Owner of the Outparcel
shall at all times keep and maintain the Outparcel and the improvements thereon
in a neat, clean, orderly and first-class condition.
(vi) A flea market, auction house, or second hand or surplus store.
(vii) A church, meeting hall, school or employee training facility,
except that a Sylva or comparable learning center of no more than 5,000 square
feet shall be permitted so long as it is located at least 400 feet from the
Premises and does not provide or permit bus service on the Properties.
(vii) A car wash, except that a full-service car wash shall be
permitted on an Outparcel so long as the improvements on such Outparcel are
designed in a manner which shall not permit any stacking of vehicles on the
access drives and roads adjacent to said Outparcel or otherwise on property
outside of said Outparcel.
(viii) A dry cleaning plant or central laundry or laundromat.
(ix) A facility used for the sale, rental, repair, storage or
service of new or used cars, trucks, motorcycles, trailers, mobile homes or
recreational vehicles or other motor vehicles.
(b) During the term of this Declaration no portion of the Properties
may ever be used for any of the following uses whatsoever:
(i) An adult type bookstore or other establishment selling,
displaying or exhibiting pornographic materials or providing adult type
entertainment or displays of a variety involving or depicting nudity or lewd
acts.
(ii) A massage parlor.
(iii) A skating rink.
(iv) A mortuary or funeral parlor.
(v) A mobile home or trailer court, labor camp, junkyard or
stockyard.
(vi) A land fill, garbage dump or for the dumping, disposing,
incineration or reduction of garbage.
(vii) An off-track betting parlor, carnival or amusement park.
(viii) A manufacturing, distillation, smelting, refining,
industrial, agricultural, drilling, mining or quarrying operation (provided,
however, that assembling or manufacturing incidental to a permitted retail use
shall be permitted).
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(ix) A plasma center or a center for medical procedures, counseling
or activities primarily relating to abortion, birth control or euthanasia
(except that this prohibition shall not be applicable to a general medical
office or facility which may include, but is not primarily related to, such
activities or any dental office or facility as the same may be found in similar
regional shopping centers); or
(x) A warehouse (other than indoor storage incidental to a
permitted retail use operating on the Shopping Center) or "mini-storage" use or
operation.
(xi) Living quarters, sleeping apartments or lodging rooms.
(xii) A veterinary hospital or animal raising facility.
Use Restrictions on the Seller Property. No portion of Seller Property shown on
the Site Plan may be used for the following purposes (provided that such
restrictions shall only apply to Seller Property for a period of time not to
exceed two (2) years after the Lowe's Property is no longer used by Lowe's as a
retail and/or warehouse home improvement center, home improvement service
center, lumber yard or building materials supply center):
(a) A hardware store containing more than 5,000 square feet of useable
floor area.
(b) A lawn and garden store containing more than 5,000 square feet of
useable floor area.
(c) A paint and/or decor center containing more than 5,000 square feet
of useable floor area.
(d) A retail and/or warehouse home improvement center, lumber yard,
building materials supply center, home improvement service center and other
stores or centers similar to those operated by Lowe's, Home Depot, Home Owner's
Warehouse, Home Quarters, Hechinger's, Builders Square, 84 Lumber, Wickes,
Xxxxxx Lumber, McCoys, Home Base, Eagle, Menard's, Sears Hardware, Sutherlands,
Orchard Supply and Payless Cashways.
These restrictions shall not apply to any tenants existing on Seller's
Property as of the date hereof nor their successors and assigns in interest to
such leases.
These restrictions or exclusive rights shall also apply to prohibit a
larger business having space in its store devoted to selling the merchandise
described in subparagraphs (a) through (c) when such space exceeds the
limitations of subparagraphs (a) through (c). Subject to these restrictions,
Seller reserves the right to subdivide, convey, lease or assign the Seller
Property or any portion thereof through any means including, but not limited to,
subdivision, lease, ground lease, condominium declaration or air-lot condominium
declaration.
Outparcel Development. Any Outparcel sold or developed on the Properties will
only be developed under the following guidelines:
(a) Any building constructed on any of the Outparcels shall not exceed
10,000 square feet, shall be self-supporting with respect to parking and shall
contain not less than five (5) paved full size automobile parking spaces for
each 1,000 square feet of Building floor area constructed thereon (or the number
of parking spaces required by applicable law, whichever is greater); provided,
however, that ten (10) paved full size automobile parking spaces for each 1,000
square feet of Building floor area constructed thereon (or the number of parking
spaces required by applicable law, whichever is greater) will be required for
restaurants; and, provided further, that twelve (12) paved full size automobile
parking spaces for each 1,000 square feet of Building floor area constructed
thereon (or the number of parking spaces required by applicable law, whichever
is greater) will be required for restaurants serving alcohol.
(b) Any building constructed on any of the Outparcels shall not exceed
one (1) story and 24 feet in height, as measured from the finished elevation of
the parking area of the Properties, except that the prototypical architectural
features of a national or regional occupant may extend above such height
limitation provided that such building and architectural features do not exceed
an aggregate height of 33 feet as measured from the finished elevation of the
parking area of the Properties.
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(c) Any rooftop equipment installed on any Outparcel shall be screened
in a manner reasonably satisfactory to Seller and Lowe's;
(d) No rooftop signs shall be erected on any building constructed on
any Outparcel.
(e) No more than two (2) freestanding signs may be erected on each
Outparcel, but in no event shall such freestanding signage exceed five feet in
height or block the visibility of the Lowe's building or signs.
(f) Any Outparcel shall be kept neat, orderly, planted in grass and
trimmed until improved and constructed.
(g) Any building, structure, or improvement constructed on any of the
Outparcels shall be used for retail, restaurant, medical or office purposes
only. Banks and financial institutions shall be deemed retail purposes subject
to the further limitations set forth in Section __.
(h) Any party or independent owner purchasing or leasing from Seller
and having an ownership or leasehold interest in an Outparcel shall repair any
damage caused to any of the utility facilities, as described in this Section of
this Declaration, serving the Properties and the Outparcel caused by such party,
or a lessee or user of the Outparcel, to the extent the Outparcel benefits from
any of the utility facilities serving the Properties and the Outparcel.
(i) Any of the restrictions set forth in this Section may be waived,
amended, modified, released, or terminated in writing at any time and from time
to time by Seller and Lowe's; provided that either Party shall not waive, amend,
modify, release, or terminate this Declaration without the prior written consent
of the other Party. However, Seller and/or Lowe's, as the case may be, shall not
amend or modify any of the foregoing restrictions if any such amendment or
modification would impose additional restrictions on an Outparcel without the
prior written consent of the fee owner of the Outparcel. The fee owner of such
Outparcel, however, may impose additional, restrictions on an Outparcel as such
fee owner deems appropriate, subject to any exceptions thereto imposed on said
fee owner at the time of conveyance of said Outparcel by Seller to said fee
owner.
(j) Seller may subdivide, convey, lease or assign any Outparcel or any
portion thereof through any means including, but not limited to, subdivision,
lease, ground lease, condominium declaration or air-lot condominium declaration.
(k) The foregoing restrictions and agreements are imposed on each of
the Outparcels for the benefit of the Properties. The agreements, restrictions
and covenants herein made shall be deemed restrictive covenants running with the
land and shall be binding upon each of the Outparcels and any person who may
from time to time own, lease, or otherwise have an interest in any of the
Outparcels.
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EXHIBIT "D"
EXCLUSIVE RIGHTS AND RESTRICTIONS
Hills Lease:
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1. No discount department store containing 30,000 square feet or more
or no deep discount drug store containing 30,000 square feet or
more.
2. No supermarket shall devote more than 30,000 square feet to general
merchandise categories.
3. No supermarket shall have a sit-down restaurant.
4. Only one pylon sign for the Shopping Center.
Xxxxxxx Lease:
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1. No outdoor sales area or kiosk.
2. No store larger than Xxxxxxx to be in full line department store,
such as those operated by Belk, Legget, X. X. Xxxxxx, Dillard's of
The May Company or any store larger than 15,000 square feet as a
so-called "of-price" retail store (a store selling at retail brand
name merchandise at less than the full retail price on a regular
basis) such as T> J. Maxx, Xxxxx Mart, Lochmann, Kohl's, Burlington
Coat Factory or Goody's.
Sears Lease:
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1. No pylon signs except as shown on Exhibit A to the Sears Lease.
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