REAL ESTATE SALE AGREEMENT
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THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the ___
day of January, 1998, by and between FIRST CAPITAL INCOME PROPERTIES, LTD. -
SERIES IX, a Florida limited partnership ("Seller"), with an office at Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and KRC Acquisition Corp.,
("Purchaser"), a Delaware corporation, with an office at 3333 New Hyde Park
Road, X.X. Xxx 0000, Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000.
RECITALS
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A. Seller is the owner of a certain parcel of real estate (the "Real
Property") in the City of West Melbourne, County of Brevard, State of Florida,
which parcel is more particularly described in attached Exhibit A, and upon
which is located at a shopping mall commonly known as "Shoppes of West
Melbourne".
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the Property (as such term is hereinafter defined), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
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Subject to and in accordance with the terms and conditions set forth
in this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with:
(i) all buildings and improvements owned by Seller and any and
all of Seller's rights, easements, licenses and privileges presently
thereon or appertaining thereto;
(ii) any land lying in the bed of any open street, road or
avenue adjoining the Real Estate, any strips or gores adjoining the
Real Estate and all appurtenances and hereditaments appertaining to
the Real Estate, all to the extent owned by Seller and to the extent
same are transferable;
(iii) Seller's right, title and interest in and to the leases
(the "Leases") affecting the Property or any part thereof;
(iv) all furniture, furnishings, fixtures, equipment,
maintenance vehicles, tools and other tangible personalty owned by
Seller, located on the Property and used in connection therewith
(collectively, the "Tangible Personal Property");
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(v) all right, title and interest of Seller under any and all
of the maintenance, service, advertising and other like contracts and
agreements with respect to the ownership and operation of the Property
(the "Service Contracts");
(vi) all right, title and interest of Seller, if any, and to
the extent assignable and in Seller's possession, under any
architectural and engineering drawings, renderings, and specifications
pertaining to the Real Estate and the buildings and improvements
currently located thereon;
(vii) all right, title and interest of Seller, if any, and to
the extent assignable, in any license, permits, warranties pertaining
exclusively to the Real Estate and the buildings and improvements
currently located thereon; and
(viii) all trade or assumed names and trade logos, if any, and to
the extent assignable, used by Seller exclusively in the operation of
the Shoppes of West Melbourne.
all to the extent applicable to the period from and after the Closing (as
such term is hereinafter defined). Items (i) through (vi) above, together with
the Real Property, are collectively referred to in this Agreement as the
"Property". All of the foregoing expressly excludes (i) all property owned by
tenants or other users or occupants of the Property, and (ii) all rights with
respect to any refund of taxes applicable to any period prior to the "Closing
Date" (as defined herein), subject to Seller's obligations under (S)4(c)(ii) and
4(c)(iii) hereafter.
2. PURCHASE PRICE
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The purchase price to be paid by Purchaser to Seller for the Property
is Eleven Million Dollars ($11,000,000) (the "Purchase Price"). The Purchase
Price shall be paid as follows:
X. Xxxxxxx Money.
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(i) Upon execution of this Agreement by Purchaser, Purchaser
shall deliver to Xxxxx Xxxxxx of the Chicago, Illinois office of Chicago Title
Insurance Company ("Escrowee") xxxxxxx money in the sum of Two Hundred Thousand
Dollars ($200,000), together with any interest earned thereon net of investment
costs, are referred to in this Agreement as the "Xxxxxxx Money". The Xxxxxxx
Money shall be invested as Seller and Purchaser so direct. Any and all interest
earned on the Xxxxxxx Money shall be reported to Purchaser's federal tax
identification number.
(ii) If the transaction closes in accordance with the terms of
this Agreement, at Closing, the Xxxxxxx Money shall be delivered by Escrowee to
Seller as partial payment of the Purchase Price. If the transaction fails to
close due to a default on the part of Purchaser, the Xxxxxxx Money shall be
delivered by Escrowee to Seller in accordance with and as provided by Section
7(B) below. If the transaction fails to close due to a default on the part of
Seller, the Xxxxxxx Money shall be delivered by Escrowee to Purchaser, and
Purchaser shall have the remedy provided for in Section 7(A) below.
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B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
wire transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Xxxxxxx Money which Seller receives at Closing from the
Escrowee, and plus or minus, as the case may require, the closing prorations and
adjustments to be made pursuant to Section 4(C) below.
3. EVIDENCE OF TITLE
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A. Title Commitment. Seller shall, within twenty (20) days after the
date of this Agreement, obtain and cause to be delivered to Purchaser a current
(that is, effective within thirty (30) days prior to the date of this Agreement)
commitment for an ALTA Owner's Title Insurance Policy (the "Title Commitment"),
in the amount of the Purchase Price, issued by Chicago Title Insurance Company
of Chicago, Illinois (the "Title Insurer"). At Closing, the conveyance of the
Property to Purchaser shall be made subject only to those exceptions to title
which are more fully described on attached Exhibit B and exceptions to title
which become Permitted Exceptions pursuant to this Section 3 (collectively, the
"Permitted Exceptions").
B. Survey. Seller shall, within thirty (30) days after the date of
this Agreement, deliver to Purchaser a survey (the "Survey") of the Real
Property prepared by a surveyor licensed in the State of Florida in accordance
with the Minimum Standard Requirements for Land Title Surveys (as jointly
established and adopted in 1992 by the American Land Title Association and
American Congress on Surveying and Mapping) for an "Urban ALTA/ACSM Land Title
Survey" (as defined therein), and certified as being prepared after the date
hereof.
C. Review of Title Commitment and Survey. If the Title Commitment or
Survey disclose exceptions to title other than those Permitted Exceptions which
are noted on attached Exhibit B, then Purchaser shall have until 5:00 p.m.
(Chicago, Illinois time) on the tenth (10th) day after its receipt of the last
of the Title Commitment and the Survey within which to notify Seller of any such
exceptions to title to which Purchaser objects. If any additional exceptions to
title not disclosed in the Title Commitment arise between the date of the Title
Commitment, the Survey and the Closing, Purchaser shall have five (5) days after
its receipt of notice of same within which to notify Seller of any such
exceptions to title to which Purchaser objects. Any such exceptions to title not
objected to by Purchaser as aforesaid shall become Permitted Exceptions. If
Purchaser objects to any such exceptions to title, Seller shall have until
Closing (but in any event at least fifteen [15] days after it receives notice of
Purchaser's objection(s)) to remove such exceptions to title by waiver or
endorsement by the Title Insurer. If Seller fails to remove any such exceptions
to title as aforesaid, Purchaser may, as its sole and exclusive remedy,
terminate this Agreement and obtain a return of the Xxxxxxx Money. If Purchaser
does not elect to terminate this Agreement, Purchaser shall consummate the
Closing and accept title to the Property subject to all such exceptions to title
(in which event, all such exceptions to title shall be deemed "Permitted
Exceptions"). Notwithstanding anything to the contrary contained herein, Seller
shall be obligated to remove or cause the Title Insurer to insure over (i) any
liens voluntarily incurred by Seller and (ii) any liens involuntarily incurred
by Seller in an aggregate amount not to exceed $10,000, provided Purchaser has
raised any of such liens as an objection to title in accordance with this
Section 3(C).
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4. CLOSING
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A. Closing Date. The "Closing" of the transaction contemplated by
this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and conditions of
this Agreement) shall occur at 10:00 a.m. on the fifth (5th) business day
following the expiration of the Review Period, at the Chicago, Illinois office
of the Title Insurer, or at such other time and place as Seller and Purchaser
shall agree in writing. The "Closing Date" shall be the date of Closing. If the
date for Closing above provided for falls on a Saturday, Sunday or legal
holiday, then the Closing Date shall be the next business day.
B. Closing Documents.
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(i) Seller. At Closing, Seller shall execute and deliver to
Purchaser the following:
(a) a Special Warranty Deed, subject to Permitted
Exceptions, and in form acceptable to the Title Insurer;
(b) a "special" or "limited" warranty xxxx of sale
sufficient to transfer to Purchaser title to the Tangible Personal
Property and expressly disclaiming any warranties other than as to
title as aforesaid;
(c) a letter advising each tenant under the Leases, and each
provider of services under the Service Contracts, of the change in
ownership of the Property in the forms attached hereto as Exhibit "C-
1" and Exhibit "C-2", respectively;
(d) a counterpart of the Assignment and Assumption of
Leases, Service Contracts, Security Deposits and Intangibles, in the
form attached hereto as Exhibit "C-3";
(e) an affidavit stating, under penalty of perjury, Seller's
U.S. taxpayer identification number and that Seller is not a foreign
person within the meaning of Section 1445 of the Internal Revenue
Code; and
(f) evidence of the termination of Seller's management
contract for the Property with The Xxxxx Organization, Inc.
("Manager"), effective as of the Closing;
(g) a counterpart of the closing statement ("Closing
Statement") setting forth the prorations and adjustments to the
Purchase Price as required by Section 4(C) below.
At Closing, possession of the Property, subject to rights of tenants
under the Leases, all keys, original Leases, Service Contracts, licenses,
sepias, drawings, plans and specifications, tenant correspondence and Estoppel
Certificates received by Seller as referenced in Section 12.2 hereafter (all to
the extent in the possession or control of Seller) shall be delivered to
Purchaser.
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At Closing, Seller shall provide the Title Insurer with Seller's
customary ALTA Statement/Owner's Affidavit, Gap Undertaking, and evidence of
authority.
(ii) Purchaser. Purchaser shall execute and deliver or cause to
be delivered to Seller at Closing:
(a) the funds required pursuant to Section 2(B) above;
(b) a counterpart of the Assignment and Assumption of
Leases, Service Contracts, Security Deposits and Intangibles, in the
form attached hereto as Exhibit "C-3";
(c) a counterpart of the Closing Statement.
(iii) Within the Review Period, Seller and Purchaser shall agree
upon the form of all closing documents not set forth as Exhibits hereto. If
Seller and Purchaser do not or cannot agree upon the form of all such closing
documents within the Review Period, then either party may terminate this
Agreement by notice received by the other party within the Review Period. If
neither Seller nor Purchaser terminates this Agreement as aforesaid, then
Purchaser's or Seller's failure to so terminate within the Review Period shall
constitute its acceptance of the form of all closing documents then most
recently proposed by Seller.
C. Closing Prorations and Adjustments.
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(i) The following items are to be prorated or adjusted (as
appropriate) as of the close of business on the Closing Date, it being
understood that for purposes of prorations and adjustments, Seller shall be
deemed the owner of the Property on such day and Purchaser shall be deemed the
owner of the Property as of the Closing Date:
(a) 1998 real estate and personal property taxes and
assessments (on the basis of the actual taxes paid by Seller for
1997);
(b) the "minimum" or "base" rent payable by tenants under
the Leases; provided, however, that rent and all other sums which are
due and payable to Seller by any tenant but uncollected as of the
Closing shall not be adjusted, but Purchaser shall cause the rent and
other sums for the period prior to Closing to be remitted to Seller
if, as and when collected. At Closing, Seller shall deliver to
Purchaser a schedule of all such past due but uncollected rent and
other sums owed by tenants. If Purchaser sends any bills, statements
or notices of default to tenants, Purchaser shall include the amount
of such rent and other sums in the bills, statements or notices, if
any, thereafter submitted to the tenants in question after the
Closing, and shall continue to do so for twelve (12) months
thereafter. Purchaser shall promptly deliver to Seller a copy of each
such xxxx, statement or notice submitted to tenants. Purchaser shall
promptly remit to Seller any such rent or other sums paid by scheduled
tenants, but only if such tenant is otherwise current in its rent then
due or previously due to Purchaser under its Lease. Seller hereby
retains the right to pursue tenants for payment of delinquent
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rent but may not seek to dispossess a tenant, terminate a lease or
enforce a landlord lien. With respect to percentage or overage rent
(to the extent not set forth on said schedule of past due amounts),
Purchaser shall furnish to Seller promptly upon receipt copies of all
sales reports received from tenants relative thereto, including,
without limitation, (i) all sales reports with respect to any tenants
whose lease years have expired as of the Closing but whose sales
reports were not available on Closing, and (ii) sales reports of any
tenants whose lease year expires after the Closing. The proration for
percentage or overage rent to be made by any tenant shall be made in
accordance with such tenant's Lease existing as of the Closing and
Purchaser shall promptly pay to Seller a prorata portion of such
rents, based upon apportionment being made as of the Closing Date,
promptly after the date when such rents are received from the
applicable tenant;
(c) the amount of security deposits paid under the Leases;
(d) water, electric, telephone and all other utility and
fuel charges, fuel on hand (at cost plus sales tax), and any deposits
with utility companies (to the extent possible, utility prorations
will be handled by meter readings on the day immediately preceding the
Closing Date);
(f) amounts due and prepayments under the Service Contracts;
(g) assignable license and permit fees; and
(h) other similar items of income and expenses of operation.
(ii) Notwithstanding the foregoing, Seller shall in all events be
entitled to retain amounts paid by tenants (referred to herein as "Tenant
Reimbursements") for real estate taxes and assessments, merchant association
dues, insurance, utilities, water and sewer charges and other common area and
operating expenses (collectively, "Tenant Reimbursable Expenses") as of the
Closing, and following the Closing and upon Purchaser's completion of the
reconciliation of such amounts with tenants for the calendar year 1998 (the
"Closing Year"), then:
(x) in the event that the amount of Tenant Reimbursements
collected by Seller for the Closing Year is less than the amount of
Tenant Reimbursable Expenses paid by Seller with respect to the
Closing Year and for which Seller is entitled to recover under the
terms of the Leases, Purchaser shall (1) to the extent such amounts
have already been collected by Purchaser from the tenants, promptly
remit such amounts to Seller but only if the applicable tenant is
otherwise current in the payment of all obligations due for the period
following Closing, and (2) to the extent such amounts have not yet
been collected from tenants, Purchaser shall promptly xxxx the tenants
for such amounts and continue to xxxx such tenants for such amounts
each month for six (6) months thereafter, and, promptly upon receipt
thereof, pay such amounts to Seller; and
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(y) in the event that the amount of Tenant Reimbursements
collected by Seller for the Closing Year exceeds the amount of Tenant
Reimbursable Expenses paid by Seller with respect to the Closing Year
and for which Seller is entitled to recover under the terms of the
Leases, Seller shall remit such excess amounts directly to the
particular tenants entitled thereto, less any amounts due from tenants
which are past due.
(iii) Seller shall be responsible for the reconciliation with
tenants of Tenant Reimbursements and Tenant Reimbursable Expenses for the
calendar year 1997 (the "Preceding Year"), and (x) in the event the amount of
Tenant Reimbursements collected by Seller for the Preceding Year is less than
the amount of Tenant Reimbursable Expenses paid by Seller with respect to the
Preceding Year and for which Seller is entitled to recover under the terms of
the Leases, then Seller shall be entitled to xxxx such tenants and retain any
such amounts due from tenants, and (y) in the event that the amount of Tenant
Reimbursements collected by Seller for the Preceding Year exceeds the amount of
Tenant Reimbursable Expenses paid by Seller with respect to the Preceding Year
and for which Seller is entitled to recover under the terms of the Leases, then,
to the extent required under the terms of the Leases, Seller shall remit such
excess amounts to the applicable tenants less any amounts due from tenants which
are past due.
(iv) Notwithstanding anything to the contrary contained in this
Section 4, Seller reserves the right (i) to meet with governmental officials and
to contest any reassessment governing or affecting Seller's obligations under
Section 4(C)(i) above and (ii) to contest any assessment of the Property or any
portion thereof and to attempt to obtain a refund for any taxes previously paid.
Seller shall retain all rights with respect to any refund of taxes applicable to
any period prior to the Closing Date, provided that Purchaser shall disburse to
any tenant not in default under its Lease a portion of such refund as may be due
that tenant under its Lease. The remainder of the refund, if any, shall be
prorated between Purchaser and Seller as of the proration date provided in
Section 4(C) after deducting therefrom the cost and expenses reasonably incurred
in pursuing the appeal and not charged to tenants.
(v) For purposes of this Section 4(C), the amount of any expense
credited by one party to the other shall be deemed an expense paid by that
party. If any item of income or expense set forth in this Section 4(C) is
subject to final adjustment after Closing, then Seller and Purchaser shall make,
and each shall be entitled to, an appropriate reproration to each such item
promptly when accurate information becomes available. Any such reproration shall
be paid promptly in cash to the party entitled thereto, but in no event shall it
be paid later than fifteen (15) months after the Closing Date. The terms of this
Section 4(C), to the extent they call for adjustments, prorations or payments
after Closing, shall survive the Closing.
D. Transaction Costs.
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Seller shall pay the cost of all transfer taxes, documentary stamps,
deed recording charges, escrow fees, the Survey and the basic premium for the
owner's title insurance policy (but excluding endorsements), whether or not the
Closing occurs. Purchaser shall pay for all endorsements to the owner's title
insurance policy, any mortgage tax, intangible tax and any lender's title
insurance policy. Seller and Purchaser shall, however, be responsible for the
fees of their respective attorneys.
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E. Possession.
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Upon Closing, Seller shall deliver to Purchaser possession of the
Property, subject to Permitted Exceptions and such other matters as are
permitted by or pursuant to this Agreement.
5. CASUALTY LOSS AND CONDEMNATION
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If, prior to Closing, the Property or any part thereof shall be
condemned or destroyed or damaged by fire or other casualty, Seller shall
promptly so notify Purchaser. If the reasonably estimated cost to repair or
restore the Property as a result of such condemnation or casualty exceeds Five
Hundred Thousand Dollars ($500,000.00) (a "Material Loss"), Purchaser shall have
the option to terminate this Agreement by giving notice to Seller within fifteen
(15) days of Seller's request that the option be exercised. If the condemnation,
destruction or damage does not result in a Material Loss, or if Purchaser fails
to terminate this Agreement following a Material Loss as provided herein, then
Seller and Purchaser shall consummate the transaction contemplated by this
Agreement notwithstanding such condemnation, destruction or damage. If the
transaction contemplated by this Agreement is consummated, Purchaser shall be
entitled to receive the condemnation proceeds or settle the loss under all
policies of insurance applicable to the destruction or damage and receive the
proceeds of insurance applicable thereto, and Seller shall, at Closing, allow
Purchaser a credit against the Purchase Price in an amount equal to any
applicable deductibles and shall also execute and deliver to Purchaser all
customary proofs of loss, assignments of claims and other similar items. If
Purchaser elects to terminate this Agreement as a result of a Material Loss, the
Xxxxxxx Money shall be returned to Purchaser by the Escrowee, in which event
this Agreement shall, without further action of the parties, become null and
void and neither party shall have any further rights or obligations under this
Agreement except as otherwise provided for in Section 9(C) below.
6. BROKERAGE
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Seller agrees to pay upon Closing (but not otherwise) the brokerage
commission due to Xxx Xxxxxx Associates, Inc. (the "Broker") for services
rendered in connection with the sale and purchase of the Property, such
commission to be calculated pursuant to the terms of a separate agreement
between Seller and Broker. Seller and Purchaser shall each indemnify and hold
the other harmless from and against any and all claims of all other brokers and
finders claiming by, through or under the indemnifying party and in any way
related to the sale and purchase of the Property, this Agreement or otherwise,
including, without limitation, attorneys' fees and expenses incurred by the
indemnified party in connection with such claim.
7. DEFAULT AND REMEDIES
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A. Notwithstanding anything to the contrary contained in this
Agreement, if Seller fails to perform in accordance with the terms of this
Agreement, then, as Purchaser's sole and exclusive remedy hereunder and at
Purchaser's option, either (i) the Xxxxxxx Money shall be returned to Purchaser,
in which event this Agreement shall be null and void, and neither party shall
have any rights or obligations under this Agreement, or (ii) upon notice to
Seller not less than ten (10) days after Purchaser becomes aware of such
failure, and provided an action is filed within
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thirty (30) days thereafter, Purchaser may seek specific performance of Seller's
obligation to execute and deliver the conveyance documents required of it under
this Agreement, but not damages. Purchaser's failure to seek specific
performance as aforesaid shall constitute its election to proceed under clause
(i) above.
B. If Purchaser fails to perform in accordance with the terms of this
Agreement, the Xxxxxxx Money may be retained by Seller as liquidated damages and
as Seller's sole and exclusive remedy, other than those rights that survive as
provided in Section 9(C) below. Purchaser and Seller acknowledge and agree that
(1) the Xxxxxxx Money is a reasonable estimate of and bears a reasonable
relationship to the damages that would be suffered and costs incurred by Seller
as a result of having withdrawn the Property from sale and the failure of
Closing to occur due to a default of Purchaser under this Agreement; (2) the
actual damages suffered and costs incurred by Seller as a result of such
withdrawal and failure to close due to a default of Purchaser under this
Agreement would be extremely difficult and impractical to determine; (3)
Purchaser seeks to limit its liability under this Agreement to the amount of the
Xxxxxxx Money in the event this Agreement is terminated and the transaction
contemplated by this Agreement does not close due to a default of Purchaser
under this Agreement; and (4) the Xxxxxxx Money shall be and constitute valid
liquidated damages.
C. After Closing, Seller and Purchaser shall, subject to the terms and
conditions of this Agreement, have such rights and remedies as are available at
law or in equity, except that neither Seller nor Purchaser shall be entitled to
recover from the other consequential, exemplary, punitive or special damages.
8. CONDITION PRECEDENT
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A. Inspection Period. Subject to the indemnification obligations set
forth in the following paragraph, Purchaser shall have until 5:00 p.m. (Chicago
time) on the thirty fifth (35th) day after the date hereof within which to
inspect the Property (the "Review Period"). During the Review Period, Purchaser
shall be entitled to review copies of (i) the Leases, (ii) the most recent real
estate tax statements with respect to the Property, (iii) the most recent sewer
and water bills with respect to the Property, (iv) the Service Contracts, (v)
bills for electricity and for fuel used to operate the heating and air
conditioning systems controlled by Seller at the Property covering the previous
twelve (12) months, (vi) correspondence between tenants and Seller (as
landlord), (except for any of such items that contain privileged information),
(vii) xxxxxxxx to tenants for Tenant Reimbursables and invoices for Tenant
Reimbursable Expenses, (viii) any plans for the buildings located on the
Property, and (ix) any licenses or permits issued to Seller in connection with
the ownership and operation of the Property, all to the extent in Seller's
possession and to the extent the same are located at the Property. If Purchaser
determines in its sole and absolute discretion that the Property is unsuitable
for its purposes and notifies Seller of such decision within the Review Period,
the Xxxxxxx Money shall be returned to Purchaser, at which time this Agreement
shall be null and void and neither party shall have any further rights or
obligations under this Agreement, except for the indemnity obligations set forth
in Sections 6 and 8(A) hereof which shall survive termination. Purchaser's
failure to object within the Review Period shall be deemed a waiver by Purchaser
of the condition contained in this Section 8(A).
Purchaser's right of inspection pursuant to this Section 8(A) above
shall be subject to the rights of tenants under the Leases and other occupants
and users of the Property. No
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inspection shall be undertaken without 24 hours prior notice to Seller. Seller
shall have the right to be present at any or all inspections. Neither Purchaser
nor its agents or representatives shall contact any tenants without 24 hours
prior notice to Seller, and Seller shall have the right to be present for all
such tenant interviews. Notwithstanding the foregoing, Seller need not be
present for offsite discussions with national and regional tenants. No
inspection shall involve the taking of samples or other physically invasive
procedures without the prior consent of Seller. Notwithstanding anything to the
contrary contained in this Agreement, Purchaser shall restore the Property to
its condition existing prior to its entry thereon, and shall indemnify, defend
and hold Seller and its employees and agents, and each of them, harmless from
and against any and all losses, claims, damages and liabilities (including,
without limitation, attorneys' fees incurred in connection therewith) arising
out of or resulting from Purchaser's exercise of its rights under this
Agreement, including, without limitation, its right of inspection as provided
for in this Section 8(A) above. The terms of this Section 8(A) shall survive
the termination of this Agreement and the Closing.
Notwithstanding anything to the contrary contained herein, subject to
the conditions described below, Seller hereby consents to Purchaser, through its
consultant Xxxxxxx Environmental Consultants ("Xxxxxxx"), performing the
following physically invasive work within Unit 1120 of the Property (the
"Work"): core holes in the floor slab in two locations, obtain two samples of
soil (one from each location) between two and four feet below the floor slab.
Seller's consent is conditioned upon the following: (i) Purchaser shall be
responsible, at its sole cost and expense, for compliance with all applicable
laws and regulations in connection with the Work; (ii) prior to initiating the
Work, Purchaser shall provide Seller with evidence that Xxxxxxx maintains
insurance (with Seller as an additional named insured) with at least the
following limits (a) comprehensive general liability insurance with a limit of
at least $1,000,000, (b) professional errors and omissions insurance with a
limit of at least $1,000,000, and (c) worker compensation insurance with at
least the statutorily mandated limit; (iii) Purchaser agrees that the results of
the Work shall be held by Purchaser as confidential information and shall not be
disclosed to any other party, other than Purchaser's lenders and as may be
required by law, without the prior written consent of Seller; and (iv) Purchaser
agrees that at the conclusion of the Work, the site shall be left in
substantially the same condition as it was prior to the Work, and all equipment
and waste generated during the Work shall be removed at Purchaser's sole cost
and expense.
B. Estoppel Certificates.
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(i) Seller shall request estoppel certificates ("Estoppel
Certificates") be returned by all tenants prior to Closing. As a condition of
Closing, Purchaser shall have received Estoppel Certificates dated no more than
forty-five (45) days prior to Closing, from (i) Marshalls, (ii) Service
Merchandise Company, Inc. ("Service"), (iii) Books-A-Million, (iv) Specs, and
(v) any four (4) of the other ten (10) tenants (individually a "Minor Tenant"
and together "Minor Tenants") occupying rentable space leased as of the date of
Closing pursuant to valid and existing Leases and in the form and content as set
forth herein (the aforesaid acceptable Estoppel Certificates to be delivered are
collectively referred to as the "Required Estoppel Certificates"). The Estoppel
Certificates shall be in the form of Exhibit "D" attached hereto (the "Form
Tenant Estoppel Certificate"), provided that an Estoppel Certificate shall be
deemed an acceptable Estoppel Certificate for purposes of this Section 8(B) if
(a) the Estoppel Certificate contains the qualification by the tenant of any
statement as being subject to materiality or to the best of its knowledge, or as
being subject to any similar qualification, (b) the Estoppel
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Certificate is otherwise in a form permitted under the applicable Lease, (c) any
tenant with national operations delivers an Estoppel Certificate in the standard
form typically issued by such tenant, or (d) the Estoppel Certificate contains
any allegations by the tenant as to physical deficiencies at the Property. In
addition, the Estoppel Certificate from Service shall be deemed acceptable
notwithstanding any exception taken regarding Service's right of first offer on
the Property.
(ii) In addition to the foregoing, for any Minor Tenant that has
not returned an Estoppel Certificate, at Closing, Seller shall deliver to
Purchaser a "Landlord Certificate" for any such tenant. Any such Landlord
Certificate shall be deemed to be an Estoppel Certificate for purposes of the
condition set forth in the preceding paragraph. Seller's liability under any
Landlord Certificate shall terminate upon the sooner of: (a) the termination or
amendment of the applicable Lease (provided such termination is not the direct
result of a default or alleged default of the Lease pursuant to a landlord-
tenant controversy), (b) when Purchaser subsequently obtains an Estoppel
Certificate for the applicable tenant in the form required hereunder, or (c) the
six (6) month anniversary of the Closing. The Tenant Certificates and Landlord
Certificates shall confirm, subject to the terms of the Leases, that the
tenancies of the applicable tenants are in substantial conformity with the terms
of their Leases, and that, to tenant's knowledge or Seller's knowledge, as the
case may be, no event of default exists which would entitle tenant to terminate
its Lease.
(iii) In the event that Seller is unable to provide to Purchaser
the Required Estoppel Certificates on or before Closing, or if any Estoppel
Certificate is not in conformity with the provisions of this Section 8(B) in any
material respect, then Purchaser shall elect on or before the Closing:
(a) elect not to purchase the Property, in which event the
Xxxxxxx Money shall be returned to Purchaser, at which time this Agreement
shall be null and void and neither party shall have any further rights or
obligations under this Agreement, except for the indemnity obligations set
forth in Sections 6 and 8(A) hereof which shall survive termination, or
(b) elect to purchase the Property notwithstanding Seller's
inability to provide the Required Estoppel Certificates, in which event
Purchaser shall be deemed to have waived the condition contained in this
Section 8(B), and Seller's representations and warranties in Section 9
below shall be deemed to be modified by any information or disclosures
contained in such Estoppel Certificate.
C. Accuracy of Seller's Representations and Warranties. As a condition
to Purchaser's obligation to close hereunder, each of Seller's representations
and warranties set forth in Section 9 below shall be true and correct as of the
Closing, as modified by any "Pre-Closing Disclosures" (as defined in Section
9(B) below). Notwithstanding the foregoing, if Seller makes any Pre-Closing
Disclosure to Purchaser, Purchaser shall have the right to terminate this
Agreement and receive the return of the Xxxxxxx Money by delivering written
notice thereof to Seller on or before the earlier of (i) the Closing, or (ii)
the fifth (5th) business day after Purchaser receives written notice of such
Pre-Closing Disclosure. If Purchaser does not terminate this Agreement pursuant
to its rights under this Section 8(C), then such
11
representations and warranties shall be deemed modified to conform them to the
Pre-Closing Disclosure.
D. Waivers. The obligations of Seller and Purchaser to consummate the
transaction contemplated hereunder are expressly conditioned upon Seller's
receipt of a waiver of certain rights to purchase the Property held by Service.
In the event Service exercises its right to purchase the Property, then upon
Seller's delivery of written notice to Purchaser, this Agreement shall be
terminated and Purchaser shall be entitled to the return of the Xxxxxxx Money,
and thereupon, neither party shall have any rights or obligations hereunder,
except as provided under Section 8(A).
9. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
--------------------------------------------------
A. Subject to Section 9(C) below, Seller represents and warrants to
Purchaser that, as of the date of this Agreement:
(i) Authorization to Own and Convey Property. Seller is
authorized to own and convey title to land in the State in which the Property is
located.
(ii) Organization and Authority. Seller is a limited partnership
duly organized and in good standing under the laws of the State of Florida.
Seller has the power and authority under (a) Seller's limited partnership
agreement, and (b) the articles of incorporation and bylaws of Seller's general
partner (the instruments described in (a) and (b) above being referred to as
"Seller's Organizational Documents"), to sell, transfer, convey and deliver the
Property to be sold and purchased hereunder, and all action and approvals
required thereunder have been duly taken and obtained.
(iii) No Breach. The execution and delivery of this Agreement,
the consummation of the transactions provided for herein and the fulfillment of
the terms hereof will not result in a breach of any of the terms or provisions
of, or constitute a default under, any provision of Seller's Organizational
Documents.
(iv) Service Contracts. There are no Service Contracts affecting
the Property except as listed in Exhibit "E" attached to this Agreement and
except for any Permitted Exceptions that constitute or might be deemed to
constitute Service Contracts. Seller has paid all amounts currently due and
payable under the Service Contracts. Except as set forth in Exhibit "E", each of
the Service Contracts is valid and binding and Seller has not received nor
issued any written notice which remains outstanding as of the date hereof
regarding the material breach of or material default under any such Service
Contract by Seller or any other party thereto.
(v) Leases. Attached hereto as Exhibit "F" to the best of
Seller's Actual Knowledge is a true and accurate rent roll for the Property
setting forth the name of each tenant under each of the Leases affecting the
Property as of the date hereof, the space occupied by each tenant, the monthly
base rent and additional rent payable pursuant to each tenant's Lease, and the
approximate square footage demised under the particular Lease. Seller shall be
deemed to have actual knowledge of terms contained in any Lease or amendment
thereto executed by Equity Properties and Development Limited Partnership, an
Illinois limited
12
partnership d/b/a Equity Properties and Development Limited Partnership
(Illinois), as agent for First Capital Income Properties, Ltd. - Series IX, a
Florida limited partnership. There are no leasing commissions due nor will any
become due in connection with any Lease or the renewal thereof, and no
understanding or agreement exists in regard to payment of any leasing
commissions or fees for future Leases.
(vi) Notices. Except as listed on Exhibit "G" attached to this
Agreement, Seller has not received from any governmental authority written
notice of any violation of any municipal, state or federal law, rule or
regulation (including those pertaining to environmental matters), or the lack of
any required permit or license, which notice has not been cured or is still
outstanding.
(vii) Condemnation. Seller has not received from any governmental
authority any written notice of any condemnation of the Property or any part
thereof.
(viii) Litigation. Except as set forth on Exhibit "H" attached
hereto, Seller has not been served with any litigation which is still pending
with respect to its ownership or operation of the Property.
(ix) Tangible Personal Property. Seller owns all of the Tangible
Personal Property free and clear of any conditional bills of sale, chattel
mortgages, security agreements or financing statements or other liens or
security interests of any kind (collectively "Liens"), except for Liens which
will be released as of the Closing.
(x) Seller has no on-site employees or hired persons in
connection with the management, operation or maintenance of the Property other
than its management and leasing agent, Xxxxx. Purchaser shall have no
obligation, liability or responsibility to Xxxxx with respect to charges,
salaries, vacation pay, fringe benefits or like items subsequent to Closing, nor
with respect to any management or employment agreements with Xxxxx.
(xi) Subject to Section 8(D), neither the execution and delivery
of this Agreement nor the consummation of the transaction herein contemplated
will result in a breach of or constitute (with or without the giving of notice
or the passing of time, or both) a default under any Lease.
As used herein, the term "Seller's Actual Knowledge" shall mean and be
limited to the actual (and not constructive) current knowledge of Xxxxxx Xxxxxx
and Xxxxxx Xxxxxx, Assistant Vice President and Executive Vice President,
respectively, of Equity Properties and Development Limited Partnership. It is
expressly understood and agreed that neither Xxxxxx Xxxxxx nor Xxxxxx Xxxxxx
shall have any personal liability or obligation whatsoever with respect to this
Agreement and/or the representations and warranties set forth herein.
B. As of Closing, Seller shall be deemed to remake and restate the
representations set forth in Section 9(A)(ii) through Section 9(A)(iv), and
Section 9(A)(v) through Sections 9(A)(ix) above, except that the representations
shall be updated by delivering written notice to Purchaser in order to reflect
any fact, matter or circumstance which Seller's Chicago, Illinois
representatives become aware of that would make any of Seller's representations
or warranties contained herein untrue or incorrect (any such disclosure being
referred to as a "Pre-
13
Closing Disclosure"). Notwithstanding the foregoing, the obligation to update
the representations and warranties as provided herein shall not relieve Seller
from liability (if any) under any other provision of this Agreement.
C. The representations and warranties set forth in Section 9(A)(i)
shall not survive the Closing. The remaining representations and warranties set
forth in Section 9(A), subject to modifications thereto as a result of any Pre-
Closing Disclosure, and the covenants of Seller set forth in Section 9(D) below,
shall survive the Closing, but only for a period of six (6) months thereafter,
and not otherwise. Except as provided for in Sections 4(C)(iv), 6, 8(A), and
this Section 9(C), the obligations of the parties under this Agreement shall not
survive the Closing or any termination of this Agreement.
D. Between the date of this Agreement and Closing (or earlier
termination of this Agreement), Seller hereby covenants and agrees with
Purchaser that:
(i) Seller shall not remove any item of Tangible Personal
Property except as may be required for repair or replacement or to retire
obsolete property.
(ii) Seller shall keep all existing insurance for the Property
(or coverage substantially equivalent thereto) in full force and effect.
(iii) From and after the date hereof through the expiration of
the Review Period, Seller may enter into any modification, amendment,
restatement or renewal of any Lease, or new Service Contract, or any
modification, amendment, restatement or renewal of any existing Service
Contracts (collectively, "New Agreements") without Purchaser's consent, so long
as Seller delivers a copy of any New Agreements to Purchaser at least five (5)
days prior to the expiration of the Review Period. Following the expiration of
the Review Period, Seller shall not enter into any New Agreement without
Purchaser's prior written consent, which will not be unreasonably withheld or
delayed, and provided that if Purchaser does not respond in writing to Seller's
request for approval or disapproval of a New Agreement within five (5) days
after Purchaser's receipt of Seller's request, Purchaser shall be conclusively
deemed to have approved of such New Agreement.
(iv) Seller shall use commercially reasonable efforts to operate
and maintain the Property in a manner generally consistent with the manner in
which Seller has operated and maintained the Property prior to the date hereof,
but in no event shall Seller be obligated to make any capital repairs,
replacements or improvements.
10. MISCELLANEOUS
-------------
A. All understandings and agreements heretofore had between Seller and
Purchaser with respect to the Property are merged in this Agreement, which alone
fully and completely expresses the agreement of the parties. Purchaser
acknowledges that it has inspected or will inspect the Property and that it
accepts same in its "as is" condition subject to use, ordinary wear and tear and
natural deterioration. Purchaser further acknowledges that, except as expressly
provided in this Agreement, neither Seller nor any agent or representative of
Seller has made, and Seller is not liable for or bound in any manner by, any
express or implied
14
warranties, guaranties, promises, statements, inducements, representations or
information pertaining to the Property.
B. Neither this Agreement nor any interest hereunder shall be assigned
or transferred by Purchaser, except to an entity which is owned and controlled
by Purchaser. Seller may assign or otherwise transfer its interest under this
Agreement. As used in this Agreement, the term "Seller" and "Purchaser" shall be
deemed to include any permitted assignee or other transferee of any Seller or
Purchaser, as the case may be. Upon any such transfer by a Seller or Purchaser,
such original Seller or Purchaser, as the case may be, shall remain liable for
the obligations of Seller or Purchaser, as the case may be, under this
Agreement. Subject to the foregoing, this Agreement shall inure to the benefit
of and shall be binding upon Seller and Purchaser and their respective
successors and assigns.
C. This Agreement shall not be modified or amended except in a written
document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance with
the laws of the State of Florida.
F. All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and delivered personally, by
certified mail, return receipt requested, postage prepaid, by overnight courier
(such as Federal Express), or by facsimile transmission (with a copy to follow
by either overnight courier or certified mail, return receipt requested, postage
prepaid), addressed as follows:
1. If to Seller:
First Capital Income Properties, Ltd. - Series IX
c/o Equity Properties & Development LP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Suite 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
15
2. If to Purchaser:
KRC Acquisitions Corp.
c/o Kimko Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
With a copy to:
Kimko Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
All notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or otherwise
received. Either party hereto may change the address for receiving notices,
requests, demands or other communication by notice sent in accordance with the
terms of this Section 10(F).
G. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD
AND AGREED THAT NEITHER SELLER NOR ANY OF SELLER'S PARTNERS, SHAREHOLDERS,
BENEFICIARIES, AFFILIATES, ADVISORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
ACCOUNTANTS, MANAGERS, BROKERS, ATTORNEYS, OR ASSIGNS (SUCH PARTIES BEING
REFERRED TO AS "SELLER'S AFFILIATES") IS MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR
ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS,
THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTY INFORMATION OR ANY OTHER
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER
OR THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON
CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS". EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT, PURCHASER HAS NOT RELIED AND WILL NOT RELY
ON, AND NEITHER SELLER NOR ANY OF SELLER'S AFFILIATES IS LIABLE FOR OR BOUND BY,
ANY EXPRESSED OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING
SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH
RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER OR SELLER'S AFFILIATES, TO
WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS
SPECIFICALLY SET FORTH IN THIS
16
AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL
CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER
DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND 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
AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT.
PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE
NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM FOR
CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST SELLER OR SELLER'S AFFILIATES
BASED ON (A) ANY FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY LAW
OR REGULATION, INCLUDING THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980, AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER,
OR ANY STATE EQUIVALENT, OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED,
(B) ANY DISCHARGE, DISPOSAL, RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY MATERIAL
WHATSOEVER, ON, AT, TO, OR FROM THE PROPERTY; OR (C) ANY ENVIRONMENTAL
CONDITIONS WHATSOEVER ON, UNDER, OR IN THE VICINITY OF THE PROPERTY.
I. In any lawsuit or other proceeding initiated by Purchaser under or
with respect to this Agreement, Purchaser waives any right it may have to trial
by jury. In addition, Purchaser waives any right to seek rescission of the
transaction provided for in this Agreement.
J. Except as may be required by law, and without the prior written
consent of Seller, unless the Closing occurs, Purchaser shall not disclose to
any third party (including, but not limited to, any press release, publicity, or
advertising promotion) the existence of this Agreement or any term or condition
thereof or the results of any inspections or studies undertaken in connection
herewith.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, (i) return to Seller all information and
materials provided by Seller to Purchaser relating to the Property, and (ii)
deliver to Seller a copy of any and all studies, reports, surveys and other
information, data and/or documents relating to the Property or any part thereof
prepared by or at the request of Purchaser, its employees and agents.
L. Seller and Purchaser hereby designate Escrowee to act as and
perform the duties and obligations of the "reporting person" with respect to the
transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller
and Purchaser each agree to execute at Closing, and to cause the Escrowee to
execute at Closing, a Designation Agreement, designating Escrowee as the
reporting person with respect to the transaction contemplated by this Agreement.
17
M. After Closing, Seller shall not be liable to Purchaser in respect
of obligations under this Agreement, or under any agreement or instrument
delivered by Seller pursuant to this Agreement, which survive Closing for any
amounts in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) in the
aggregate, or for any amounts less than Five Thousand Dollars ($5,000.00) in the
aggregate, Purchaser hereby waiving any and all claims it may have to such
recoveries in excess of, or less than, the foregoing amounts. The foregoing
limitations shall apply only to liabilities admitted by Seller to exist or
proven by Purchaser to exist through the final adjudication thereof in an
appropriate judicial proceeding, and not to reprorations made pursuant to
Section 4(C)(ii) above.
N. Purchaser agrees that it does not have and will not have any claims
or causes of action against any of Seller's Affiliates arising out of or in
connection with this Agreement or the transactions contemplated hereby.
Purchaser agrees to look solely to Seller and its assets (exclusive of any right
to compel performance of obligations to contribute capital) for the satisfaction
of any liability or obligation arising under this Agreement or the transactions
contemplated hereby, or for the performance of any of the covenants, warranties
or other agreements contained herein, and further agrees not to xxx or otherwise
seek to enforce any personal obligation against any of Seller's Affiliates with
respect to any matters arising out of or in connection with this Agreement or
the transactions contemplated hereby. Without limiting the generality of the
foregoing provisions of this Section 10(N), Purchaser hereby unconditionally and
irrevocably waives any and all claims and causes of action of any nature
whatsoever it may now or hereafter have against Seller's Affiliates, and hereby
unconditionally and irrevocably releases and discharges Seller's Affiliates from
any and all liability whatsoever which may now or hereafter accrue in favor of
Purchaser against Seller's Affiliates, in connection with or arising out of this
Agreement or the transactions contemplated hereby. Notwithstanding anything to
the contrary contained herein, but subject to the limitations described in
Section 10(M) above and any other limitations regarding survival contained in
this Agreement, Purchaser shall have the right to pursue the general partner of
Seller, First Capital Financial Corporation, a Florida corporation, for any
claim arising under this Agreement that it has against Seller. The provisions of
this Section 10(N) shall survive the termination of this Agreement and the
Closing.
O. This Agreement may be executed in any number of counterparts, any
or all of which may contain the signatures of less than all of the parties, and
all of which shall be construed together as a single instrument.
P. Neither party shall record this Agreement or a memorandum thereof.
Q. Pursuant to Section 404.05618, Florida Statues (1988), the
following notification regarding radon gas is hereby made, and all parties
executing this Agreement acknowledge receipt of this notification:
Radon Gas: "Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities,
may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida.
18
Additional information regarding radon and radon testing may be
obtained from your county public health unit".
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER: PURCHASER:
------- ----------
FIRST CAPITAL INCOME PROPERTIES, KRC ACQUISITION CORP.,
LTD. - SERIES IX, a Florida limited partnership a Delaware corporation
By: First Capital Financial Corporation,
a Florida corporation, its general
partner By: _______________________
Its: _______________________
By: __________________________
Its: _________________________
19
EXHIBITS
--------
A Legal Description
B Permitted Exceptions
C-1 Notice to Tenants
C-2 Notice to Providers under Service Contracts
C-3 Assignment and Assumption of Leases, Service
Contracts and Security Deposits
D Form Tenant Estoppel Certificate
E Service Contracts
F Rent Roll
G Notices of Violations
H Litigation
20
EXHIBIT A
LEGAL DESCRIPTION
-----------------
(see attached)
21
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments not yet delinquent.
3. Rights of tenants under the Leases, and those claiming by, through and
under said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Any adverse claim to any portion of the Property which has been created by
artificial means or has accreted to any such portion so created and
riparian rights, if any.
6. Covenants, conditions, restrictions, and private or public utility
easements of record together with easements or claims of easements not
shown by the public records.
7. Encroachments, overlaps, boundary line disputes, or other matters which
would be disclosed by an accurate survey or inspection of the Property.
22
EXHIBIT C-1
NOTICE TO TENANTS
-----------------
___________, 1998
Re: Sale of ___________________ Office Building
_________, _____________ (the "Property")
Dear Tenant:
This is to notify you that the Property has been sold to
_________________________ and that ____________________________ has been
retained by the new owner as managing agent of the building.
Any security or other deposits and any prepaid rents under your lease have
been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord, and
correspondence pursuant to your lease should be mailed to the following address:
_______________________________________________________________.
Very truly yours,
__________________________________
as agent for Seller
By:_______________________________
Its:______________________________
23
EXHIBIT C-2
NOTICE TO PARTIES TO SERVICE CONTRACTS
--------------------------------------
______________, 1998
Re: Sale of ___________________ Office Building
_________, _____________ (the "Property")
Dear Service Provider:
This is to notify you that the Property has been sold to
_______________________ ("Purchaser"). Purchaser has assumed all of the
obligations of the undersigned under the service contracts as of the date
hereof. All notices to Purchaser should be sent to Purchaser at the office of
the building, and should be sent or delivered to such address in the manner
provided in the service contract.
Very truly yours,
__________________________________
as agent for Seller
By:_______________________________
It:_______________________________
24
EXHIBIT C-3
ASSIGNMENT AND ASSUMPTION OF LEASES, SERVICES CONTRACTS,
--------------------------------------------------------
SECURITY DEPOSITS AND INTANGIBLES
---------------------------------
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ____________________________ ("Assignor") hereby assigns to
____________________________ ("Assignee") with an office and place of business
at ______________________________, all of Assignor's right, title and interest
as of the date hereof in and to (1) the leases ("Leases") (subject to Seller's
rights and obligations as contained in Section 4(C) of that certain Real Estate
Sale Agreement by and between Assignor and Assignee dated January __, 1998) and
security deposits ("Security Deposits") described in Exhibit B attached hereto
relating to certain real property known as ________________________ located in
___________, ______________ and more particularly described in Exhibit A
attached hereto (the "Land"); (2) the service contracts set forth on Exhibit C
attached hereto ("Service Contracts"), (3) any license, permits, warranties
pertaining exclusively to the Land and the buildings and improvements currently
located thereon.
Assignee hereby accepts such assignment and hereby assumes and agree to be
bound by and to perform, as of the date hereof, the Assignor's obligations,
covenants and agreements under each of the Leases and Service Contracts, and
Assignee further assumes all liability of Assignor for the proper refund or
return of the Security Deposits if, when, and as required by the terms of the
Leases or otherwise by law. In addition, Assignee agrees to pay all brokerage
fees and leasing commissions payable from and after the date hereof in
connection with any of the Leases, including any fees or commissions payable
upon the renewal or extension of any of the Leases;
This Assignment and Assumption may be executed and delivered in any number
of counterparts, each of which so executed and delivered shall be deemed to be
an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and
Assumption effective as of this ____ day of ____________, 1998.
ASSIGNOR:
_________________________________
By:______________________________
Its:_____________________________
ASSIGNEE:
_________________________________
By:______________________________
Its:_____________________________
25
EXHIBIT D
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
____________________________
c/o Equity _____________
Two North Riverside Plaza
Suite ____
Xxxxxxx, Xxxxxxxx 00000
Attn: _______________
___________________________
___________________________
___________________________
___________________________
Re: ____________________ ("Tenant")
Ladies and Gentlemen:
At the request of _______________________________, a __________________
("Landlord"), made in connection with the proposed sale of the
__________________ Shopping Center, ________________________________ (the
"Property") and Landlord's interest in the "Lease" (as hereinafter defined) to
_______________________________ ("Purchaser"), Tenant hereby certifies to
Landlord and Purchaser as follows:
1. Tenant is the lessee under a lease with Landlord, dated __________, 19___,
[as amended by _________________, dated __________, 19___ (collectively,
the "Lease")][(the "Lease")] for suite(s) _______ on the ________ floor(s)
at the Property (the "Premises").
2. The Lease sets forth the entire agreement between Landlord and Tenant with
respect to the Premises, is in full force and effect and has not been
amended, modified or extended.
3. The monthly [base][minimum] rent of $________ due under the Lease has been
paid through _______, 199_ and all additional rent (consisting of
$_________ per month for estimated operating expenses and estimated real
estate taxes) due under the Lease has been paid through ______________,
199_.
4. To Tenant's knowledge, Landlord is not in default under the Lease.
5. The expiration date of the Lease is ____________________, 19___.
26
6. The amount of the security deposit currently held by Landlord under the
Lease is $ _______________.
7. There is no prepaid rent, except $ _____________.
8. Tenant has not assigned any of its interest in the Lease or subleased all
or any portion of the Premises, except as follows: _______________________.
9. To Tenant's knowledge, the undersigned has no defenses, counterclaims, set-
offs or concessions against rent or charges due or to become due under the
Lease.
10. Tenant has accepted the Premises and [has commenced payment of full rent]
[or] [is entitled to _____ month's abatement of base rent, as of the date
hereof] under the Lease and is the owner and holder of the entire lessee's
interest in the Lease.
11. To Tenant's knowledge, all work required to be performed by Landlord as of
the date hereof with respect to the Lease and in connection with the
Premises has been completed by Landlord.
12. Tenant has no right or option pursuant to the Lease or otherwise to
purchase all or any part of the Premises or the Property.
13. This Tenant Estoppel Certificate (this "Certificate") shall inure to the
benefit of Landlord, Purchaser and their successors and assigns.
14. The individual executing this Certificate on behalf of Tenant is duly
authorized to execute this Certificate.
Very truly yours,
_______________________________ , Tenant
By:_____________________________________
________________________ , Title
Date:____________________________, 1998
27
EXHIBIT E
SERVICE CONTRACTS
-----------------
(see attached)
28
EXHIBIT F
RENT ROLL
---------
(see attached)
29
EXHIBIT G
NOTICES OF VIOLATIONS
---------------------
None.
30
EXHIBIT H
LITIGATION
----------
Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx v. First Capital Income Properties, Ltd. -
Series IX, a Florida limited partnership d/b/a Shoppes of West Melbourne and
Phar-Mor of Florida, Inc., Circuit Court of the Eighteenth Judicial Circuit,
Brevard County, Florida, Case No. 97 05496 CA X. Plaintiff, Xxxxxxx Xxxxxxx,
alleges she slipped and fell on oily substance outside the Phar-Mor retail
store.
31
