22
PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(Sunrise Town Center; Sunrise, Florida)
THIS AGREEMENT is made and entered into as of the
17th day of November, 1997 (the "Effective Date"), by
and between CARLYLE INCOME PLUS, LTD., an Illinois limited
partnership (hereinafter called "Seller"), and PEBB
ENTERPRISES SUNRISE TOWN CENTER LTD., a Florida limited
partnership (hereinafter called "Buyer").
R E C I T A L S
A. Seller is the owner of that certain real property
located at the northeast corner of University Drive and
Oakland Park Boulevard, in Sunrise, Florida, consisting
primarily of a shopping center sometimes known as "Sunrise
Town Center" (the "Premises").
B. Buyer desires to purchase, and Seller desires to
sell, such Premises on the terms and conditions hereinafter
documented.
NOW, THEREFORE, in consideration of the mutual
undertakings of the parties hereto, it is hereby agreed as
follows:
1. Purchase and Sale. Seller shall sell to Buyer, and
Buyer shall purchase from Seller, the land (the "Land")
described in Exhibit "A" attached hereto and made a part
hereof, together with all right, title and interest of Seller
in and to all improvements, structures, supplies and fixtures
located upon the Land, all right, title and interest of Seller
in and to those items of personal property described in
Exhibit "B" attached hereto and made a part hereof, all right,
title and interest of Seller in and to the name "Sunrise Town
Center", and, to the extent assignable, all right, title and
interest of Seller in and to all leases, contract rights,
agreements, tenant lists, advertising material and telephone
exchange numbers (hereinafter, collectively, the "Property"),
all upon the terms, covenants and conditions hereinafter set
forth.
2. Purchase Price. The purchase price (the "Purchase
Price") for the Property shall be the sum of $4,100,000.
3. Payment of Purchase Price. The Purchase Price shall
be paid to Seller by Buyer as follows:
A. Escrow Deposit. Concurrently herewith, Buyer shall
deliver $100,000 (the "Initial Escrow Deposit") to
Commonwealth Land Title Insurance Company, at its offices at
00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxx Xxxx (which company, in its capacity as escrow
holder hereunder, is called "Escrow Holder"). In addition, if
Buyer shall deliver the "Approval Notice" prior to the
expiration of the "Due Diligence Period", as provided (and
defined) in paragraph 4B hereof, Buyer shall concurrently
therewith deliver an additional deposit of $105,000 (the
"Additional Escrow Deposit") to Escrow Holder. Each deposit
to be made hereunder shall be made by Buyer delivering the
applicable amount to Escrow Holder by wire transfer of
immediately available federal funds or by bank or cashier's
check evidencing good funds and drawn on a national bank
reasonably satisfactory to Seller, and the amounts so
deposited shall be held by Escrow Holder as a deposit against
the Purchase Price in accordance with the terms and provisions
of this Agreement. As used herein, the term "Escrow Deposit"
shall mean the Initial Escrow Deposit and, from and after the
deposit thereof, the Additional Escrow Deposit, together with
all interest earned on such deposits while the same are held
by Escrow Holder hereunder. The amounts deposited hereunder
shall be held by Escrow Holder as a deposit against the
Purchase Price in accordance with the terms and provisions of
this Agreement. At all times that the Escrow Deposit is being
held by the Escrow Holder, the Escrow Deposit shall be
invested by Escrow Holder in the following investments
("Approved Investments"): (i) United States Treasury
obligations, (ii) United States Treasury-backed repurchase
agreements issued by a major money center banking institution
reasonably acceptable to Seller, or (iii) such other manner as
may be reasonably agreed to by Seller and Buyer. The Escrow
Deposit shall be disposed of by Escrow Holder only as provided
in this Agreement. Interest on the Escrow Deposit will accrue
for the account of Buyer, except that in the event of Buyer's
default, the Escrow Deposit and all interest thereon will
belong to Seller.
B. Closing Payment. The balance of the Purchase Price,
as adjusted by the application of the Escrow Deposit and by
the prorations and credits specified herein, shall be paid in
cash on the Closing Date (the amount to be paid under this
subparagraph B being herein called the "Closing Payment").
4. Conditions Precedent.
A. Title Matters.
(1) Title Commitment. Seller has ordered and will
deliver to Buyer on or before the date that is ten (10) days
after the Effective Date, a copy of a commitment for title
insurance (the "Title Commitment") covering the Property from
Commonwealth Land Title Insurance Company (which company, in
its capacity as title insurer hereunder, is herein called the
"Title Company"), together with copies of all exceptions to
title referenced thereto, which Title Commitment shall be
reissued in the name of the Buyer with a policy amount equal
to the Purchase Price. In addition, Seller has delivered to
Buyer a current survey of the Property dated October 8, 1997,
prepared by Xxxxxxxx-Xxxxxxx & Associates, Inc., which survey
shall be recertified to Buyer, Buyer's lender (if any) and
Title Company ("Survey"). If Buyer shall fail to deliver
written notice ("Title Objection Notice") setting forth those
title and survey matters to which Buyer objects on or before
the date which is ten (10) days after the later of Buyer's
receipt of the Title Commitment and the Survey (the "Title
Review Period"), Buyer shall be deemed to have approved the
exceptions to title shown on the Title Commitment and the
matters disclosed on the Survey. Approval by Buyer of any
additional exceptions to title or survey matters disclosed
after the end of the Title Review Period, if any, shall be a
condition precedent to Buyer's obligation to purchase the
Property (Buyer hereby agreeing that such approval shall not
be unreasonably withheld). Unless Buyer gives written notice
that it disapproves any such additional exceptions to title or
survey matters, stating the exceptions so disapproved, on or
before the sooner to occur of five (5) business days after
receipt of written notice thereof or the Closing Date, Buyer
shall be deemed to have approved said exceptions or survey
matters. If for any reason, on or before the Closing Date
Seller does not cause such exceptions to title or survey
matters which Buyer disapproves (to the extent Buyer is
permitted hereunder to so disapprove) to be removed at no cost
or expense to Buyer (Seller having the right but not the
obligation to do so), the obligation of Seller to sell, and
Buyer to buy, the Property as herein provided shall terminate
(and Seller and Buyer shall have no further obligations in
connection herewith). Buyer shall have the option to waive
the condition precedent set forth in this paragraph 4A(1) by
notice to Seller. In the event of such waiver, such condition
shall be deemed satisfied. All matters set forth on the Title
Commitment which are not timely objected to by Buyer, are
herein called the "Permitted Exceptions". The term "Permitted
Exceptions" shall additionally include (i) any title matters
objected to by Buyer, which objections are subsequently waived
in writing by Buyer, and (ii) any title matters objected to by
Buyer, which objections are cured to Buyer's satisfaction.
(2) Exceptions to Title. Buyer shall be obligated to
accept title to the Property, subject to the following
exceptions to title:
(a) Real estate taxes and assessments not yet due and
payable; and
(b) The Permitted Exceptions.
Conclusive evidence of the availability of such title shall be
the willingness of Title Company to issue to Buyer on the
Closing Date a standard form owner's title insurance policy
("Owner's Policy"), in the face amount of the Purchase Price,
which policy shall (i) show title to the Property to be vested
of record in Buyer, and (ii) show the Permitted Exceptions to
be the only exceptions to title.
B. Due Diligence Reviews. Buyer shall have until 5:00
p.m. (Central time) on the date that is fifteen (15) days
after the Effective Date (the "Due Diligence Period") within
which to complete all of Buyer's due diligence examinations,
reviews and inspections of all matters pertaining to the
purchase of the Property (other than the title and survey
reviews contemplated in paragraph A above), including all
leases, service contracts, and all physical, environmental and
compliance matters and conditions respecting the Property.
During the Due Diligence Period, Seller shall provide Buyer
with reasonable access to the Property upon reasonable advance
notice, and in connection with such access Buyer shall be
permitted to make copies (at Buyer's sole expense) of those
materials (other than those of a proprietary nature) related
to the Property in Seller's possession. Buyer shall promptly
commence, and shall diligently and in good faith pursue, its
due diligence review hereunder. Buyer shall at all times
conduct its due diligence review, inspections and examinations
in a manner so as to not cause damage, loss, cost or expense
to Seller or the Property and so as to not interfere with or
disturb any tenant at the Property, and Buyer will indemnify,
defend, and hold Seller and the Property harmless from and
against any such damage, loss, cost or expense (the foregoing
obligation surviving any termination of this Agreement). In
no event shall Buyer (a) make any intrusive physical testing
(environmental, structural or otherwise) at the Property (such
as soil borings, water samplings or the like) without Seller's
prior written consent (and shall in all events promptly return
the Property to its prior condition and repair thereafter);
(b) contact any tenant of the Property without Seller's
express written consent; or (c) contact any governmental
authority having jurisdiction over the Property without
Seller's express written consent (which consent will not be
unreasonably withheld). Seller shall have the right, at its
option, to cause a representative of Seller to be present at
all inspections, reviews and examinations conducted hereunder.
At the request of Seller, Buyer shall promptly deliver to
Seller true, accurate and complete copies of any written
reports relating to the Property prepared for or on behalf of
Buyer by any third party and in the event of termination
hereunder, shall return all documents and other materials
furnished to or on behalf of Buyer by Seller hereunder. Buyer
shall keep all information or data received or discovered in
connection with any of the inspections, reviews or
examinations strictly confidential. If, on or before the
expiration of the Due Diligence Period, Buyer shall determine
that it intends to proceed with the acquisition of the
Property, then Buyer shall promptly notify Seller and Escrow
Holder of such determination in writing (such notice being
herein called the "Approval Notice"), and concurrently
therewith deliver the Additional Escrow Deposit as provided in
paragraph 3A hereof, and thereafter, Buyer shall have no
further right to terminate this Agreement pursuant to this
paragraph 4B. If, however, on or before the expiration of the
Due Diligence Period, (i) Buyer shall determine that it no
longer intends to acquire the Property (in which case Buyer
shall promptly notify Seller regarding such determination), or
(ii) if Buyer shall fail to deliver the Approval Notice and
the Additional Escrow Deposit on or before the expiration of
the Due Diligence Period pursuant to this Agreement (in which
case Buyer shall be deemed to have determined that it no
longer intends to acquire the Property), this Agreement, and
the obligations of the parties, shall terminate and the Escrow
Deposit shall be returned to Buyer.
C. Estoppel Certificates. Receipt of estoppel
certificates dated not more than thirty (30) days prior to the
Closing Date from a sufficient number of the tenants at the
Property so that estoppel certificates shall be received with
respect to not less than 70% of the gross leasable area, in
the aggregate, covered by leases at the Property in effect as
of the date hereof, is a condition precedent to Buyer's
obligation to purchase the Property hereunder. The estoppel
certificates to be obtained from each tenant shall be
substantially in the form of Exhibit "C" attached hereto and
made a part hereof; provided, however, (i) with respect to the
any major national tenant, the applicable estoppel certificate
may be in the standard form otherwise required by such entity
and (ii) if the applicable tenant lease limits the information
required to be certified by the tenant, then an estoppel
certificate setting forth only such required information shall
be deemed acceptable. Seller's sole obligation hereunder
shall be to utilize reasonable efforts to obtain such estoppel
certificates (such reasonable efforts obligation not including
any obligation to institute legal proceedings or to expend any
monies therefor, other than for minor administrative charges
incurred by Seller). Buyer shall have the option to waive the
condition precedent set forth herein by notice to Seller
(whereupon such condition will be deemed satisfied). In the
event that prior to the Closing Date such condition is not
satisfied (or is waived by Buyer as aforesaid), the
obligations of Seller to sell, and Buyer to purchase, the
Property hereunder shall terminate.
D. Performance by Seller. The performance and
observance, in all material respects, by Seller of all
covenants and agreements of this Agreement to be performed or
observed by Seller prior to or on the Closing Date shall be a
condition precedent to Buyer's obligation to purchase the
Property. In addition, in the event that the "Seller Closing
Certificate" (as hereinafter defined) shall disclose any
material adverse changes in the representations and warranties
of Seller contained in paragraph 7A below which are not
otherwise permitted or contemplated by this Agreement, then
Buyer shall have the right to terminate this Agreement. Buyer
shall have the option to waive the condition precedent set
forth in this paragraph 4D by written notice to Seller. In
the event of such waiver, such condition shall be deemed
satisfied.
E. Performance by Buyer. The performance and
observance, in all material respects, by Buyer of all
covenants and agreements of this Agreement to be performed or
observed by it prior to or on the Closing Date shall be a
condition precedent to Seller's obligation to sell the
Property. In addition, in the event that the "Buyer Closing
Certificate" (as hereinafter defined) shall disclose any
material adverse changes in the representations and warranties
of Buyer contained in paragraph 7B below which are not
permitted or contemplated by this Agreement, then Seller shall
have the right to terminate this Agreement. Seller shall have
the option to waive the condition precedent set forth in this
paragraph 4E by written notice to Buyer. In the event of such
waiver, such condition shall be deemed satisfied.
5. Closing Procedure Transactions. The sale and
purchase herein provided shall be consummated at a closing
conference ("Closing Conference"), which shall be held on the
Closing Date either at the offices of the Seller at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, xx through mutually agreeable escrow
arrangements. As used herein, "Closing Date" means the date
that is fifteen (15) days after the expiration of the Due
Diligence Period, or such earlier date as may be agreed upon
by Buyer and Seller in writing.
A. Escrow. On or before the Closing Date, the parties
shall deliver to Title Company, at its office located at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, the
following: (1) by Seller, a duly executed and acknowledged
original special warranty deed ("Deed") in favor of Buyer, in
the form of Exhibit "D" attached hereto and made a part
hereof, and (2) by Buyer, the Closing Payment in immediately
available federal funds. Such deliveries shall be made
pursuant to escrow instructions ("Escrow Instructions") to be
executed among Buyer, Seller and Title Company in form
reasonably acceptable to such parties in order to effectuate
the intent hereof. The conditions to the closing of such
escrow shall include the Title Company's receipt of the Deed,
the Closing Payment, the commitment of the Title Company to
issue the Owner's Policy in the form specified in paragraph
4A(2) hereof, and an authorization notice from each of Buyer
and Seller (and each of Buyer and Seller shall be obligated to
deliver such authorization notice at the Closing Conference as
soon as it is reasonably satisfied that the other party is in
a position to deliver the items to be delivered by such other
party under subparagraph B below).
B. Delivery to Parties. Upon full satisfaction of the
conditions set forth in the Escrow Instructions, then on the
Closing Date (1) the Deed shall be delivered to Buyer by Title
Company's depositing the same for recordation, (2) the Closing
Payment (and the Escrow Deposit) shall be delivered to Seller
and (3) at the Closing Conference, the following items shall
be delivered:
(1) Seller Deliveries. Seller shall deliver to Buyer
the following:
(a) A duly executed and acknowledged xxxx of sale,
assignment and assumption agreement ("Assignment and
Assumption Agreement") in the form of Exhibit "E" attached
hereto and made a part hereof;
(b) A certificate of Seller ("Seller Closing
Certificate") updating the representations and warranties
contained in paragraph 7A hereof to the Closing Date and
noting any changes thereto;
(c) Duly executed and acknowledged certificates
regarding the "non-foreign" status of Seller satisfying both
federal and state law requirements;
(d) Evidence reasonably satisfactory to Buyer and Escrow
Holder respecting the due organization of Seller and the due
authorization and execution of this Agreement and the
documents required to be delivered hereunder;
(e) Duly executed notices to the tenants at the Property
regarding the transfer of the Property to Buyer; and
(f) Such additional documents as may be reasonably
required by Buyer and Title Company in order to consummate the
transactions hereunder (provided the same do not increase the
costs to, or liability or obligations of, Seller in a manner
not otherwise provided for herein), including a closing
statement, an affidavit respecting sales tax at the Property,
a certificate respecting mechanic's liens and leases and a gap
indemnity, all in a form satisfactory to Seller).
(2) Buyer Deliveries. Buyer shall deliver to Seller the
following:
(a) A duly executed and acknowledged Assignment and
Assumption Agreement;
(b) A certificate of Buyer ("Buyer Closing Certificate")
updating the representations and warranties contained in
paragraph 7B hereof to the Closing Date and noting any changes
thereto;
(c) Evidence reasonably satisfactory to Seller and
Escrow Holder respecting the due organization of Buyer and the
due authorization and execution of this Agreement and the
documents required to be delivered hereunder; and
(d) Such additional documents as may be reasonably
required by Seller and Title Company in or to consummate the
transactions hereunder (provided the same do not increase the
costs to, or liability or obligations of, Buyer in a manner
not otherwise provided for herein).
C. Closing Costs. Seller shall pay the documentary or
transfer taxes attributable to the Deed, and the title
insurance premiums (at a rate not in excess of standard issue
rates) attributable to standard coverage respecting the
Owner's Policy, and the cost of the Survey. Buyer shall pay
all title insurance premiums attributable to the Owner's
Policy in excess of standard coverage, as well as any costs
attributable to ALTA coverage in connection therewith or for
other so-called "extended coverage" or for any endorsements to
the Owner's Policy, to the extent any of the foregoing is
requested by Buyer, all costs and expenses related to Buyer's
due diligence examinations, reviews and inspections, all costs
and expenses of any financing which Buyer may obtain in
connection with its acquisition, all recording fees for the
Deed, and all intangible, sales or use taxes attributable to
the transactions hereunder. Seller and Buyer shall each pay
one-half of any closing escrow charges. Seller and Buyer
shall each pay its own attorney's fees and expenses and its
own respective shares of prorations as hereinafter provided.
D. Prorations.
(1) Items to be Prorated. The following shall be
prorated between Seller and Buyer as of the Closing Date:
(a) Taxes. All real estate taxes and assessments
(including any certified and ratified assessment liens) on the
Property for the current year. In no event shall Seller be
charged with or be responsible for any increase in the taxes
on the Property resulting from the sale of the Property or
from any improvements made or leases entered into on or after
the Closing Date. In the event that any assessments on the
Property are payable in installments, then the installment for
the current period shall be prorated (with Buyer assuming the
obligation to pay any installments due after the Closing
Date).
(b) Rents. All fixed and additional rentals under the
Leases, and other tenant charges. Seller shall deliver or
provide a credit in an amount equal to all prepaid rentals for
periods after the Closing Date (to the extent not applied or
forfeited prior to the Closing Date) to Buyer on the Closing
Date. Rents which are delinquent as of the Closing Date shall
not be prorated on the Closing Date. Buyer shall include such
delinquencies in its normal billing and shall use commercially
reasonable efforts to collect the same after the Closing Date
(but Buyer shall not be required to litigate or declare a
default in any lease). To the extent Buyer receives rents
(other than "Additional Amounts", as hereinafter defined) on
or after the Closing Date, such payments shall be applied
first toward then current rent owed to Buyer in connection
with the applicable lease for which such payments are
received, and finally toward any excess monies received shall
be applied toward the payment of any delinquent rents, with
Seller's share thereof being promptly delivered to Seller.
Buyer may not waive any delinquent rents nor modify a lease so
as to reduce or otherwise affect amounts owed thereunder for
any period in which Seller is entitled to receive a share of
charges or amounts without first obtaining Seller's written
consent. Common area charges, taxes, operating expense and
other similar expense reimbursement obligations of the tenants
under the Leases, as well as any percentage payable thereunder
(collectively, "Additional Amounts") shall be prorated
effective as of the Closing Date. The parties will finalize
such Additional Amounts prorations on the Closing Date or as
soon as practicable thereafter (but in any event not later
than June 15, 1998). Proration of expense items contained in
the calculation of the Additional Amounts shall be made on the
basis that Seller shall be entitled to reimbursement of the
applicable expenses incurred by Seller (annualized or
otherwise appropriately apportioned) prior to the Closing
Date. To the extent that, based on such determinations,
Seller has received amounts in excess of the amount due
Seller, then Seller shall deliver such excess amount to Buyer
on the Closing Date (or if determined thereafter, then within
15 days of such determination). To the extent that Seller has
received an amount less than the amount so due, Buyer shall
deliver such shortfall amount to Seller on the Closing Date
(or if determined thereafter, then within 15 days of such
determination). The amount of percentage rent to be allocated
to Seller with respect to each Tenant Lease for the lease year
(the "Current Lease Year") in which the Closing Date occurs
shall be that amount equal to (i) the amount by which (A) the
tenant's gross receipts (to the extent taken into account in
determining percentage rent under such Tenant Lease) for that
portion of such Current Lease Year occurring prior to the
Closing Date exceed (B) the "Allocable Base Amount",
multiplied by (ii) the percentage specified in such Tenant
Lease to be used in determining such tenant's percentage rent
for such Current Lease Year. The "Allocable Base Amount"
means that portion of the "Base Amount" for such Current Lease
Year determined by multiplying such Base Amount for the entire
Current Lease Year by a fraction, the numerator of which is
the number of days in such Current Lease Year occurring prior
to the Closing Date and the denominator of which is the number
of days of such Current Lease Year. "Base Amount" is the
amount specified in each Tenant Lease for such Current Lease
Year that must be exceeded by the sales of the tenant during
such Current Lease Year before such tenant shall be obligated
thereunder to pay percentage rent for such Current Lease Year.
Buyer shall not be obligated to pay or credit Seller any sum
on account of the proration of percentage rent as aforesaid
unless and until the percentage rent to be prorated as
aforesaid shall be received by Buyer. Seller hereby reserves
the right to pursue any remedy against any tenant owing
delinquent rents, Additional Amounts and any other amounts to
Buyer. Prior to exercising any such remedies, Buyer shall
reasonably cooperate with Seller in any collection efforts
hereunder (but shall not be require to litigate or declare a
default in any lease). With respect to delinquent rents,
Additional Amounts and any other amounts or other rights of
any kind respecting tenants who are no longer tenants of the
Property as of the Closing Date, Seller shall retain all
rights relating thereto.
(c) Security Deposits. Seller shall deliver or provide
a credit in an amount equal to all refundable security
deposits (to the extent the foregoing are held by Seller and
are not applied or forfeited prior to the Closing Date) to
Buyer on the Closing Date.
(d) Utility and Operating Expenses. All utility costs
and other normal and customary operating expenses in
connection with the Property.
(2) Calculation. The prorations and payments shall be
made on the basis of a written statement submitted to Buyer
and Seller by Escrow Holder prior to the Close of Escrow and
approved by Buyer and Seller. In the event any prorations or
apportionments made under this subparagraph D shall prove to
be incorrect for any reason, then any party shall be entitled
to an adjustment to correct the same. Any item which cannot
be finally prorated because of the unavailability of
information shall be tentatively prorated on the basis of the
best data then available and reprorated when the information
is available. The obligations of Seller and Buyer under this
paragraph 5D(2) shall survive the closing until the date that
is nine (9) months after the Closing Date (and all
reprorations hereunder shall be finalized prior to such date).
6. Condemnation or Destruction of Property. In the
event that, after the date hereof but prior to the Closing
Date, either any portion of the Property is taken pursuant to
eminent domain proceedings or any of the improvements on the
Property are damaged or destroyed by any casualty, Seller
shall have no obligation to repair or replace any such damage
or destruction. Seller shall, upon consummation of the
transaction herein provided, assign to Buyer all claims of
Seller respecting any condemnation or casualty insurance
coverage, as applicable, and all condemnation proceeds or
proceeds from any such casualty insurance received by Seller
on account of any casualty (the damage from which shall not
have been repaired by Seller prior to the Closing Date), as
applicable. In connection with any assignment of insurance
proceeds hereunder, Seller shall credit Buyer with an amount
equal to the applicable deductible amount under Seller's
insurance; provided, however, if the amount of such deductible
shall exceed $100,000, Seller shall have the right to
terminate this Agreement by notice to Buyer given on or before
the Closing Date (whereupon the Escrow Deposit shall be
returned to Buyer). In the event the condemnation award or
the cost of repair of damage to the Property on account of a
casualty, as applicable, shall exceed $100,000 (or if a
casualty is uninsured, and Seller does not elect to credit
Buyer with an amount equal to the cost to repair such
uninsured casualty, Seller having the right, but not the
obligation, to do so), Buyer may, at its option, terminate
this Agreement by notice to Seller, given on or before the
Closing Date and receive a refund of the Escrow Deposit.
7. Representations and Warranties.
A. Representations and Warranties of Seller.
(1) General Disclaimer. Except as specifically set
forth in paragraph 7A(2) below or in the documents delivered
by Seller at closing pursuant to paragraph 5B(1) hereof, the
sale of the Property hereunder is and will be made on an "as
is" basis, without representations and warranties of any kind
or nature, express, implied or otherwise, including, but not
limited to, any representation or warranty concerning title to
the Property, the physical condition of the Property
(including, but not limited to, the condition of the soil or
the Improvements), the environmental condition of the Property
(including, but not limited to, the presence or absence of
hazardous substances on or respecting the Property), the
compliance of the Property with applicable laws and
regulations (including, but not limited to, zoning and
building codes or the status of development or use rights
respecting the Property), the financial condition of the
Property or any other representation or warranty respecting
income, expenses, charges, liens or encumbrances, rights or
claims on, affecting or pertaining to the Property or any part
thereof. Buyer acknowledges that, during the Due Diligence
Period, Buyer will examine, review and inspect all matters
which in Buyer's judgment bear upon the Property and its value
and suitability for Buyer's purposes. Except as to matters
specifically set forth in paragraph 7A(2) below or in the
documents delivered by Seller at closing pursuant to paragraph
5B(1) hereof, Buyer will acquire the Property solely on the
basis of its own physical and financial examinations, reviews
and inspections and the title insurance protection afforded by
the Owner's Policy. Without limitation thereon, Buyer hereby
waives any and all rights of contribution or other rights or
remedies against Seller under the Comprehensive Environmental
Response, Compensation and Liability Act or any other
applicable environmental laws, rules or regulations.
(2) Limited Representations and Warranties of Seller.
Seller hereby represents and warrants to Buyer that, except as
set forth in Exhibit "F" attached hereto and made a part
hereof, Seller has no knowledge that any of the following
statements is untrue (and, for this purpose, Seller's
knowledge shall mean only the present actual knowledge of
Xxxxx Xxxxxxx (after having made inquiry of Seller's third
party property manager with respect to the representations and
warranties contained in this Agreement, but otherwise without
any duty to investigate and with any imputed or constructive
notice being excluded)):
(a) List of Leases. Attached as Exhibit "G" and made a
part hereof is a true, complete and accurate list, as of the
date thereof, of all tenant leases respecting the Property
("List of Leases"), and Seller is not in monetary default or
material non-monetary default under any of such tenant leases
that remains uncured. Notwithstanding anything to the
contrary contained herein, Seller shall have no obligation or
liability to Buyer with respect to any of the foregoing
matters which shall be confirmed as correct in any tenant
estoppel certificate which may be delivered hereunder.
(b) Litigation. There is no pending action, litigation,
condemnation or other proceeding against the Property or
against Seller (or any of its partners or principals) with
respect to the Property.
(c) Compliance. Seller has received no written notice
from any governmental authority having jurisdiction over the
Property to the effect that the Property is not in compliance
with applicable laws and ordinances.
(d) Service Agreements. Other than those which are
cancelable on thirty (30) days' notice without payment of any
fees, there are no service agreements or contracts ("Service
Agreements") or other agreements (other than as expressly set
forth in this Agreement) relating to the Property which will
be in force on the Closing Date, except as described in
Exhibit "H" attached hereto and made a part hereof, and Seller
is not in monetary default or
material non-monetary default thereunder that remains uncured.
(e) Due Authority. This Agreement and all agreements,
instruments and documents herein provided to be executed or to
be caused to be executed by Seller are and on the Closing Date
will be duly authorized, executed and delivered by and are
binding upon Seller. Seller is a limited partnership, duly
organized and validly existing under the laws of the State of
Illinois, and is duly authorized and qualified to do all
things required of it under this Agreement. Seller has the
legal capacity and authority to enter into this Agreement and
consummate the transactions herein provided without the
consent or joinder of any other party (except as otherwise set
forth in this Agreement).
(f) Environmental Matters. Except as set forth in the
reports described in Exhibit "I" attached hereto and made a
part hereof (the "Environmental Reports"), Seller has received
no written notice of the existence, deposit, storage, removal,
burial or discharge of any material known to Seller to be a
"Hazardous Material" at, upon, under, within or adjacent to
the Property, in an amount which, in Seller's reasonable
judgment, would, as of the date hereof, give rise to an
"Environmental Compliance Cost". The term "Hazardous
Material" shall mean (i) asbestos and any chemicals, flammable
substances or explosives, any radioactive materials (including
radon), any hazardous wastes or substances which have, as of
the date hereof, been determined by any applicable Federal,
State or local government law to be hazardous or toxic by the
U.S. Environmental Protection Agency, the U.S. Department of
Transportation, and/or any instrumentality now or hereafter
authorized to regulate materials and substances in the
environment which has jurisdiction over the Property
("Environmental Agency"), and (ii) any oil, petroleum or
petroleum derived substance, any drilling fluids, produced
waters and other wastes associated with the exploration,
development or production of crude oil, which materials listed
under items (i) and (ii) above cause the Property (or any part
thereof) to be in material violation of any applicable
environmental laws or the regulations of any Environmental
Agency; provided, however, that the term "Hazardous Material"
shall not include normal and customary janitorial and
maintenance supplies or motor oil and gasoline contained in or
discharged from vehicles not used primarily for the transport
of motor oil or gasoline. The term "Environmental Compliance
Cost" means any reasonable out-of-pocket cost, fee or expense
incurred directly to satisfy any requirement imposed by an
Environmental Agency to bring the Property into compliance
with applicable Federal, State and local laws and regulations
directly relating to the existence on the Property of any
Hazardous Material.
(g) Property Insurance. As of the Effective Date, the
Property is insured with the insurance coverages (including
policy and deductible amounts) set forth on Exhibit "J"
attached hereto and made a part hereof.
B. Representations and Warranties of Buyer. Buyer
represents and warrants to Seller as follows: This Agreement
and all agreements, instruments and documents herein provided
to be executed or to be caused to be executed by Buyer are and
on the Closing Date will be duly authorized, executed and
delivered by and are binding upon Buyer; Buyer is a limited
partnership, duly organized and validly existing and in good
standing under the laws of the State of Florida, and is duly
authorized and qualified to do all things required of it under
this Agreement; and Buyer has the legal capacity and authority
to enter into this Agreement and consummate the transactions
herein provided without the consent or joinder of any other
party (except as otherwise set forth in this Agreement).
C. Survival. Any cause of action of a party for a
breach of the foregoing representations and warranties shall
survive until the date that is nine (9) months after the
Closing Date, at which time such representations and
warranties (and any cause of action resulting from a breach
thereof not then in litigation) shall terminate.
Notwithstanding the foregoing, if Buyer shall have actual
knowledge as of the Closing Date that any of the
representations or warranties of Seller contained herein are
false or inaccurate or that Seller is in breach or default of
any of its obligations under this Agreement, and Buyer
nonetheless closes the transactions hereunder and acquires the
Property, then Seller shall have no liability or obligation
respecting such false or inaccurate representations or
warranties or other breach or default (and any cause of action
resulting therefrom shall terminate upon such closing
hereunder).
8. Interim Covenants of Seller. Until the Closing Date
or the sooner termination of this Agreement:
A. Seller shall maintain the Property in the same
manner as prior hereto pursuant to its normal course of
business and in a manner with similarly situated shopping
centers in the area in which the Property is located (such
maintenance obligations not including extraordinary capital
expenditures or expenditures not incurred in such normal
course of business), subject to reasonable wear and tear and
further subject to destruction by casualty or other events
beyond the control of Seller.
B. Seller shall not enter into any additional service
contracts or other similar agreements without the prior
consent of Buyer, except those deemed reasonably necessary by
Seller which are cancelable on thirty (30) days' notice (and
Seller shall promptly provide Buyer with copies of all such
additional service contracts).
C. Seller shall continue to offer the Property for
lease in the same manner as prior hereto pursuant to its
normal course of business and shall keep Buyer reasonably
informed as to the status of leasing prior to the Closing
Date. After the Effective Date, Seller shall not enter into
any new leases or material modifications of existing leases
thereafter without the consent of Buyer (which consent will
not be unreasonably withheld or materially delayed).
Notwithstanding anything herein to the contrary, Seller shall
have no obligation to enter into any new leases or
modifications of existing leases unless Buyer shall agree to
pay all tenant improvement costs, leasing commissions and
other similar costs or expenses in connection therewith (Buyer
agreeing not to unreasonably withhold or unduly delay any such
approval if requested by Seller).
9. DISPOSITION OF DEPOSITS. IF THE TRANSACTION HEREIN
PROVIDED SHALL NOT BE CLOSED BY REASON OF SELLER'S DEFAULT
UNDER THIS AGREEMENT OR THE FAILURE OF SATISFACTION OF THE
CONDITIONS DESCRIBED IN PARAGRAPH 4 HEREOF OR THE TERMINATION
OF THIS AGREEMENT IN ACCORDANCE WITH PARAGRAPH 6 HEREOF, THEN
THE ESCROW DEPOSIT SHALL BE RETURNED TO BUYER, AND NEITHER
PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE
OTHER; PROVIDED, HOWEVER, IF THE TRANSACTIONS HEREUNDER SHALL
FAIL TO CLOSE SOLELY BY REASON OF A MATERIAL DEFAULT BY
SELLER, BUYER SHALL HAVE FULLY PERFORMED ITS OBLIGATIONS
HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE, THEN
BUYER SHALL BE ENTITLED TO SPECIFICALLY ENFORCE THIS AGREEMENT
(BUT NO OTHER ACTION, FOR DAMAGES OR OTHERWISE, SHALL BE
PERMITTED). IN THE EVENT THE TRANSACTION HEREIN PROVIDED
SHALL NOT CLOSE BY REASON OF BUYER'S DEFAULT UNDER THIS
AGREEMENT, THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO
SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER AND
IN CONNECTION WITH THIS AGREEMENT. IN THE EVENT THE
TRANSACTION HEREIN PROVIDED SHALL CLOSE, THE ESCROW DEPOSIT
SHALL BE APPLIED AS A PARTIAL PAYMENT OF THE PURCHASE PRICE.
IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT
SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BE
REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY
DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF
DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS
AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF
COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S
BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTY
SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN
THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER'S SOLE AND
EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH
DEFAULT, SUBJECT TO THE PROVISIONS OF PARAGRAPH 10I HEREOF.
Seller's Initials Buyer's Initials
10. Miscellaneous.
A. Brokers.
(1) Except as provided in subparagraph (2) below, Seller
represents and warrants to Buyer, and Buyer represents and
warrants to Seller, that no broker or finder has been engaged
by it, respectively, in connection with any of the
transactions contemplated by this Agreement or to its
knowledge is in any way connected with any of such
transactions. In the event of a claim for broker's or
finder's fee or commissions in connection herewith, then
Seller shall indemnify and defend Buyer from the same if it
shall be based upon any statement or agreement alleged to have
been made by Seller, and, except for any claims by Broker
which are Seller's responsibility hereunder, Buyer shall
indemnify and defend Seller from the same if it shall be based
upon any statement or agreement alleged to have been made by
Buyer. The indemnification obligations under this paragraph
10 A shall survive the closing of the transactions hereunder
or the earlier termination of this Agreement.
(2) If and only if the sale contemplated herein closes,
Seller agrees to pay a brokerage commission to Xxxxxxx Xxxxx,
LLC (the "Broker") pursuant to separate written agreements
between the Broker and Seller. The foregoing payments shall
be the sole commissions, fees or payments payable to the
Broker in connection with the transactions hereunder.
B. Limitation of Liability.
(1) Notwithstanding anything to the contrary contained
herein, if the closing of the transactions hereunder shall
have occurred (and Buyer shall not have waived, relinquished
or released any applicable rights in further limitation), the
aggregate liability of Seller arising pursuant to or in
connection with or related in any manner to the Property
(including, without limitation, the representations,
warranties, indemnifications, covenants or other obligations,
whether express or implied, of Seller under this Agreement or
any document executed or delivered in connection herewith)
shall not exceed $100,000.
(2) No constituent partner in or agent of Seller, nor
any advisor, trustee, director, officer, employee,
beneficiary, shareholder, participant, representative or agent
of any corporation or trust that is or becomes a constituent
partner in Seller (including, but not limited to, JMB Realty
Corporation and the individual(s) specified in paragraph 7A(2)
above) shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any
agreement made or entered into under or pursuant to the
provisions of this Agreement, or any amendment or amendments
to any of the foregoing made at any time or times, heretofore
or hereafter, and Buyer and its successors and assigns and,
without limitation, all other persons and entities, shall look
solely to Seller's assets for the payment of any claim or for
any performance, and Buyer, on behalf of itself and its
successors and assigns, hereby waives any and all such
personal liability. Notwithstanding anything to the contrary
contained in this Agreement, neither the negative capital
account of any constituent partner in Seller (or in any other
constituent partner of Seller), nor any obligation of any
constituent partner in Seller (or in any other constituent
partner of Seller) to restore a negative capital account or to
contribute capital to Seller (or to any other constituent
partner of Seller), shall at any time be deemed to be the
property or an asset of Seller or any such other constituent
partner (and neither Buyer nor any of its successors or
assigns shall have any right to collect, enforce or proceed
against or with respect to any such negative capital account
of partner's obligation to restore or contribute).
C. Entire Agreement. This Agreement contains the
entire agreement between the parties respecting the matters
herein set forth and supersedes all prior agreements between
the parties hereto respecting such matters. This Agreement
may not be modified or amended except by written agreement
signed by both parties.
D. Time of the Essence. Time is of the essence of this
Agreement.
E. Interpretation. Paragraph headings shall not be
used in construing this Agreement. Each party acknowledges
that such party and its counsel, after negotiation and
consultation, have reviewed and revised this Agreement. As
such, the terms of this Agreement shall be fairly construed
and the usual rule of construction, to the effect that any
ambiguities herein should be resolved against the drafting
party, shall not be employed in the interpretation of this
Agreement or any amendments, modifications or exhibits hereto
or thereto.
F. Governing Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of
Florida.
G. Successors and Assigns. Buyer may not assign or
transfer its rights or obligations under this Agreement
without the prior written consent of Seller (in which event
such transferee shall assume in writing all of the
transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder); provided,
however, Buyer may assign its interest in this Agreement to a
limited partnership or limited liability company in which
Buyer is the managing general partner or managing member, as
appropriate, and has not less than a 51% interest in capital
and profits in such limited partnership or limited liability
company. No consent given by Seller to any transfer or
assignment of Buyer's rights or obligations hereunder shall be
construed as a consent to any other transfer or assignment of
Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be
valid or enforceable. Subject to the foregoing, this
Agreement and the terms and provisions hereof shall inure to
the benefit of and be binding upon the successors and assigns
of the parties.
H. Notices. Any notice which a party is required or
may desire to give the other shall be in writing and shall be
sent by personal delivery, by telecopier transmission
(followed by delivery by mail as follows) or by mail (either
[i] by United States registered or certified mail, return
receipt requested, postage prepaid, or [ii] by Federal Express
or similar generally recognized overnight carrier regularly
providing proof of delivery), addressed as follows (subject to
the right of a party to designate a different address for
itself by notice similarly given):
To Buyer:
PEBB Enterprises Sunrise Town Center Ltd.
c/o PEBB Management Company, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxx
Facsimile No. (000) 000-0000
Telephone No. (000) 000-0000
To Seller:
Carlyle Income Plus, Ltd.
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile No. (000) 000-0000
Telephone No. (000) 000-0000
With Copies To:
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (GML)
Facsimile No. (000) 000-0000
Telephone No. (000) 000-0000
And To:
Xxxxxxx Xxxxx, LLC
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Facsimile No. (000) 000-0000
Telephone No. (000) 000-0000
Any notice so given by mail shall be deemed to have been given
as of the date of delivery (whether accepted or refused)
established by U.S. Post Office return receipt or the
overnight carrier's proof of delivery, as the case may be.
Any such notice not so given shall be deemed given upon
receipt of the same by the party to whom the same is to be
given.
I. Legal Costs. The parties hereto agree that they
shall pay directly any and all legal costs which they have
incurred on their own behalf in the preparation of this
Agreement, all deeds and other agreements pertaining to this
transaction and that such legal costs shall not be part of the
closing costs. In addition, if either Buyer or Seller brings
any suit or other proceeding with respect to the subject
matter or the enforcement of this Agreement, the prevailing
party (as determined by the court, agency or other authority
before which such suit or proceeding is commenced), in
addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and
costs of investigation actually incurred. The foregoing
includes, but is not limited to, attorneys' fees, expenses and
costs of investigation (including, without limitation, those
incurred in appellate proceedings), costs incurred in
establishing the right to indemnification, or in any action or
participation in, or in connection with, any case or
proceeding under Chapter 7, 11 or 13 of the Bankruptcy Code
(11 United States Code Sections 101 et seq.), or any successor
statutes.
J. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
document.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT
INTENDED TO NOR SHALL CONSTITUTE AN OFFER TO SELL, OR A
RESERVATION OF, OR OPTION OR PROPOSAL OF ANY KIND FOR THE
PURCHASE OF THE PROPERTY. IN NO EVENT SHALL ANY DRAFT OF THIS
AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING
UNDERSTOOD THAT THIS AGREEMENT SHALL BE EFFECTIVE AND BINDING
ONLY WHEN A COUNTERPART HEREOF HAS BEEN EXECUTED AND DELIVERED
BY EACH PARTY HERETO TO ESCROW HOLDER. ESCROW HOLDER SHALL
DATE THIS AGREEMENT WITH THE DATE ON WHICH ESCROW HOLDER SHALL
HAVE RECEIVED THIS AGREEMENT EXECUTED BY BOTH OPTIONEE AND
OPTIONOR (AND SUCH DATE SHALL BE THE
"EFFECTIVE DATE" FOR PURPOSES HEREOF).
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
CARLYLE INCOME PLUS, LTD.,
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation
Corporate General Partner
By:
Name:
Title:
"Seller"
PEBB ENTERPRISES SUNRISE
TOWN CENTER LTD.,
a Florida limited
partnership
By: PEBB MANAGEMENT
COMPANY, INC.,
a Florida corporation,
General Partner
By:
Name:
Title:
"Buyer"
ESCROW HOLDER'S ACKNOWLEDGEMENT
The undersigned hereby executes this Agreement to
evidence its agreement to act as scrow Holder in accordance
with the terms of this Agreement.
Date: COMMONWEALTH LAND TITLE
INSURANCE COMPANY,
a Pennsylvania corporation
By:
Name:
Title:
"Escrow Holder"
