EXHIBIT 10.26
AGREEMENT
THIS AGREEMENT ("Agreement") is dated as of December __, 2000 (the
"Effective Date"), by and between AJS GROUP, LLC, a South Carolina limited
liability company ("Member"), and MOUNT PLEASANT KPT LLC, a Delaware limited
liability company (the "Company").
IN CONSIDERATION of the respective agreements hereinafter set forth,
Member and the Company agree as follows:
1. Member Interest. Member hereby agrees to sell, transfer and convey to
the Company, and the Company hereby agrees to redeem and acquire from Member,
the entire interest of the "Non-Managing Member" of the Company (the "Member
Interest"), as more particularly described in Operating Agreement of Mount
Pleasant FAC LLC dated November __, 1997 (the "Original Agreement"), as modified
by that certain First Amendment to Operating Agreement of Mount Pleasant KPT LLC
dated November 10, 1998 (the "First Amendment"), and that certain Second
Amendment to Operating Agreement of Mount Pleasant KPT LLC dated April 13, 1999
(the "Second Amendment") (collectively as amended, the "Operating Agreement"),
and any other rights, entitlements, claims or other interests of Member in the
Company, including Member's Capital Account and all of Member's rights to
profits, losses, distributions, and any other amounts due Member under the
Operating Agreement, in complete liquidation of such Member Interest.
2. Consideration. As consideration for redemption and complete liquidation
of the Member Interest by the Company, the Company agrees (subject to the terms
and conditions set forth in this Agreement) at Closing (as hereinafter defined)
to:
(a) Pay to Member as Member may direct the sum of Two Million Two
Hundred Fifty Thousand Dollars ($2,250,000) (the "Cash Portion"), with
$100,000 of the Cash Portion being allocated to the covenant not to
compete described in Section 10(n), below;
(b) Convey to Member or its designated assignee, SGCT Group I, LLC,
a South Carolina limited liability company ("Assignee") all of the
Company's right, title and interest in and to the real property more
particularly described in Exhibit A attached hereto (individually, a
"Tract", and collectively, the "Tracts"), together with all privileges
appurtenant thereto, subject to the covenants, conditions and restrictions
described in Section 10(n), below;
(c) Assign to Member or Assignee all of the Company's right, title
and interest as landlord under that certain lease agreement dated November
8, 1999 between the Company and Elite Management Team, Inc., doing
business as The Mattress Firm, and any prospective lease with The Talbots,
Inc., a lease which is currently under negotiation (collectively, the
"Lease Rights");
(d) Assign to Member or Assignee all of the Company's right, title
and interest in any contracts for services to the extent related to the
Tracts (the "Service Contracts"); and
(e) Assign to Member or Assignee all of the Company's right, title
and interest in any engineering and architectural plans, governmental
approvals, permits and licenses, and other rights relating to construction
of improvements on the Tracts (collectively, the "Licenses and Permits")
to the extent such rights (i) are severable from the same rights of the
Company as they relate to the shopping center property more particularly
described in Exhibit B attached hereto (the "Shopping Center") which the
Company will continue to own and operate, and (ii) may be transferred to
Member without any out-of-pocket costs to the Company. The Licenses and
Permits shall include
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(i) any impact fee credits held by the Company, to the extent such credits
(A) are transferable, and (B) used and applied against impact fees
otherwise payable in connection with the development and construction of
improvements appurtenant to the Tracts, and (ii) any building permits and
building permit applications identified solely with the Tracts which have
previously been filed or processed by the Company.
All of the items referred to in Sections 2(a) through (e) above are
hereinafter collectively referred to as the "Consideration".
3. Inspection Rights. Member acknowledges that Member is familiar with the
Tracts and has been afforded a reasonable opportunity to inspect the Tracts and
conduct such investigations as it deems to be appropriate. Member agrees that
the Tracts are being acquired "AS IS", "WHERE IS" and "WITH ALL FAULTS", and
that neither the Company nor any person or entity acting on its behalf has made
any representation or warranty with respect to the Tracts; rather, in acquiring
the Tracts, Member is relying on its own inspections, investigations and
knowledge of such property.
4. Conditions to Closing. The following are conditions precedent to the
obligations of the Company to consummate the redemption and complete liquidation
of the Member Interest at "Closing" (as defined in Section 5, below) as
contemplated by this Agreement:
(a) All of Member's representations and warranties contained in or
made pursuant to this Agreement shall have been true and correct when made, and
shall be true, correct and complete (without giving effect to any limitations
based on the knowledge of the representing party) as of the "Closing Date" (as
defined in Section 5, below) and the Closing.
(b) Member shall have performed its obligations hereunder and
shall have tendered all deliveries to be made by it on or before the Closing
Date or as otherwise required under this Agreement.
(c) There shall be no litigation, arbitration, suits, claims,
administrative agency or other governmental action, or any other proceeding of
any kind whatsoever, pending or threatened, which could materially and adversely
affect the ability of either party to perform its obligations under this
Agreement.
(d) Following the date of this Agreement, there shall have been no
material changes, threatened or actual, in (i) the physical condition of the
Shopping Center or the Tracts (collectively, the "Property") (including, without
limitation, any change relating to hazardous substances or toxic materials),
reasonable wear and tear excepted, (ii) the net operating income of the
Property, (iii) the condition of title to the Property, (iv) the availability
of, or charges associated with, any utility services provided to the Property,
(v) the existence of governmental licenses, permits and approvals respecting the
Property or the use thereof, (vi) the availability or existence of signage for
the Property, (vii) access from Property to physically open, dedicated and
accepted public streets, or (viii) the terms or enforceability of any leases or
rental agreements relating to the Property.
(e) No proceedings shall be pending or threatened which could (i)
cause the change, redesignation or other modification of the zoning
classification of, or of any building code or environmental requirements
applicable to, the Property, or any portion thereof, or (ii) materially and
adversely affect the value of the Property or the ability of the Company to
operate the Property in the manner contemplated by the parties.
(f) The Company shall be in a position to close that certain
permanent loan in the original principal amount of $46.4 million (the "GMAC
Loan") which is being provided by GMAC Mortgage
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Corporation ("Lender") and to receive the full disbursement of the proceeds
thereof concurrently with the Closing hereunder.
(g) Member shall have obtained the consent of the ground lessor of
the ground lease applicable to the Tract identified as "Tract 14" so as to
permit assignment of that ground lease to Member or Assignee.
So long as the Company is not in default under any material
provision of this Agreement, if any condition to close has not been satisfied as
of the Closing Date, the Company may, in its sole discretion, (A) terminate this
Agreement by delivering written notice to Member on or before the Closing Date,
(B) elect to extend the Closing for a period up to ninety (90) days to
facilitate the satisfaction of such condition, or (C) elect to consummate the
transactions notwithstanding the non-satisfaction of such condition, in which
event such party shall be deemed to have waived any such condition.
Notwithstanding the foregoing, the failure of a condition due to the breach of a
party shall not relieve such breaching party from any liability it would
otherwise have hereunder.
5. Closing and Escrow.
(a) Upon execution of this Agreement, the parties shall deposit an
executed counterpart of this Agreement with Chicago Title Insurance Company or a
mutually acceptable agent located in the State of South Carolina (the "Title
Company") and this instrument, together with the Escrow Provisions attached
hereto as Exhibit K, shall serve as the instructions to the Title Company as the
escrow holder for consummation of the transaction contemplated hereby. Member
and the Company agree to execute such additional and supplementary escrow
instructions as may be appropriate to enable the Title Company, as escrow
holder, to comply with the terms of this Agreement; provided, however, that as
between Member and the Company, in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control.
(b) The closing ("Closing") hereunder shall be held and delivery
of all items to be made at the Closing under the terms of this Agreement shall
be made at the office of Title Company, on a date selected by the Company on not
less than five (5) days' notice to Member (the "Closing Date"), but in no event
later than December 20, 2000, so as to close concurrently with the closing and
funding of the GMAC Loan, provided, however, that, in the event the condition
enumerated in Section 4(f) has not been satisfied by the original Closing Date,
at the Company's sole option, the Closing Date may be extended by the Company,
by notice to Member, to that date which is five (5) days after the satisfaction
of such condition of closing, but in no event later than January 15, 2001. In
the event of such extension, the "Closing Date" as used herein shall mean for
all purposes hereunder the Closing Date, as so extended.
(c) Prior to 10:30 a.m., Eastern Standard Time, on the Closing
Date, Member shall deliver the following into escrow with the Title Company:
(i) An Assignment of Member Interest, assigning and
conveying to the Company the entire Member Interest free and clear of all liens
and encumbrances, in the form attached hereto as Exhibit C, duly executed by
Member.
(ii) A counterpart of the Ground Lease Assignment in the
form attached hereto as Exhibit G, duly executed by Member or Assignee.
(iii) A counterpart of the Assignment and Assumption of
Leases in the form attached hereto as Exhibit H, duly executed by Member or
Assignee.
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(iv) A counterpart of the Assignment and Assumption of
Service Contracts, Licenses and Permits in the form attached hereto as Exhibit
I, duly executed by Member or Assignee.
(v) [Intentionally Deleted]
(vi) Certificates from the Secretary of State of the State
of South Carolina dated no more than thirty (30) days prior to the Closing,
confirming that Member and Assignee are each duly formed, validly existing and
in good standing under the laws of such state.
(vii) A certificate from the Secretary of State of the
State of South Carolina, indicating that, as of the Closing Date, there are no
filings against Member or any of its members in the office of the Secretary of
State or other government official under the Uniform Commercial Code of such
state which would be liens on any the Member Interest or on any partnership,
membership or corporate interest in Member.
(viii) An affidavit in form satisfactory to the Company
that Member is not a "foreign person" within the meaning of Section 1445(e)(3)
of the Internal Revenue Code of 1986, as amended (the "Code") in the form
attached hereto as Exhibit E. Member shall provide a similar affidavit from each
person receiving a distribution of funds or property at the direction of Member.
(ix) Such resolutions, authorizations, bylaws or other
corporate and/or partnership documents or agreements relating to Member and its
members and/or Assignee as shall be reasonably required in connection with this
transaction.
(x) A closing statement in form and content reasonably
satisfactory to the Company (the "Closing Statement"), duly executed by Member
and each of its members.
(xi) Any other documents, instruments, records,
correspondence or agreements called for hereunder or reasonably requested by the
Title Company which have not previously been delivered.
The Company may waive compliance on Member's part under any of the
foregoing items by an instrument in writing.
(d) On the Closing Date, following the delivery of the documents
described in Section 5(c) by Member, the Company shall deliver the following
into escrow with the Title Company:
(i) The funds on account of the Cash Portion of the
Consideration, in the form of a wire transfer of good federal funds.
(ii) A duly executed and acknowledged special warranty deed
in the form attached hereto as Exhibit F (the "Deed"), duly executed and
acknowledged by the Company, conveying to Member or Assignee all of the
Company's right, title and interest in the Tract identified as "Tract 13",
subject to covenants, conditions, restrictions and other matters of record.
(iii) A duly executed and acknowledged Assignment and
Assumption of Ground Lease in the form attached hereto as Exhibit G (the "Ground
Lease Assignment"), duly executed and acknowledged by the Company and consented
to by the ground lessor, conveying to Member or Assignee all of the Company's
right, title and interest in its leasehold interest in the Tract identified as
"Tract 14", subject to covenants, conditions, restrictions and other matters of
record.
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(iv) A duly executed Assignment and Assumption of Leases in
the form attached hereto as Exhibit H, together with originals of all Leases and
related documents to the extent in the Company's possession.
(v) A duly executed Assignment and Assumption of Service
Contracts, Licenses and Permits in the form attached hereto as Exhibit I,
together with originals of all Contracts and Licenses and Permits to the extent
in the Company's possession (or copies thereof if such Contracts or Licenses and
Permits relate to other portions of the Property as well).
(vi) A duly executed Notice to Tenants for each tenant
under the Leases in the form attached hereto as Exhibit J.
(vii) A certificate from the Secretary of State of the
State of Delaware dated no more than thirty (30) days prior to the Closing,
confirming that the Company is duly formed and in good standing under the laws
of such state, and a certificate from the Secretary of State of the State of
South Carolina dated no more than thirty (30) days prior to the Closing,
confirming that the Company is authorized to do business in such state.
(viii) Such resolutions, authorizations, bylaws or other
corporate and/or partnership documents or agreements relating to the Company and
its members as shall be reasonably required in connection with this transaction.
(ix) A duly executed affidavit or certificate, in form and
substance acceptable to the Title Company, sufficient to remove the exceptions
from a standard form owner's policy of title insurance for mechanic's lien and
parties in possession (other than the pursuant to the Leases).
(x) A counterpart of the Closing Statement, duly executed
by the Company.
(xi) Any other documents, instruments, records,
correspondence or agreements called for hereunder or reasonably requested by the
Title Company which have not previously been delivered.
Member may waive compliance on the Company's part under any of the
foregoing items by an instrument in writing.
(e) Subject to the timely receipt of the funds and documents
described in Sections 5(c) and 5(d), above, at the Closing, the Title Company
shall (i) record the Deed and the Ground Lease Assignment and deliver the
documents delivered into escrow by Member to the Company, and (ii) disburse the
Cash Portion in accordance with the Closing Statement, and deliver the documents
delivered into escrow by the Company to Member, Assignee or the Title Company,
as applicable. With respect to the Cash Portion, Member does hereby direct that
$1,000,000 of the Cash Portion shall be disbursed as directed by Wachovia Bank,
N.A., as Trustee of the Xxxxxxx Children's Trust, and that the remaining
$1,250,000 of the Cash Portion shall be disbursed $250,000 as directed by Xxxxx
X. Xxxxx, and $1,000,000 as directed Xxxxxxx X. Xxxxxxxx, as Trustee of the
Xxxxxx X. Xxxxxxxx AJS Trust.
(f) Real estate taxes and assessments relating to the Tracts shall
be adjusted and prorated as of 12:01 a.m. on the Closing Date, based on a
365-day year, whether or not due and payable. If real estate taxes for the
current year cannot be ascertained, those for the previous year shall be
utilized without allowance for any discount allowed by law. Member and Assignee
shall be responsible for all assessments and bonds which now or hereafter become
due and constitute a lien against the Tract. Any security deposit delivered on
account of the Leases shall be credited to the Company at Closing, and any
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real estate commissions paid on account of Leases. There shall be no other
prorations of income or expenses with regard to the Tracts or the Member
Interest or the Property.
(g) The cost of any transfer and recordation taxes (including
documentary stamps) applicable to the conveyance of the Tracts and recording
fees relating to the Deed and the Ground Lease Assignment shall be paid by the
Company. The Title Company's fees for escrow services shall be paid by the
Company.
(h) Member or Assignee shall pay when due all third party leasing
commissions due on account of the Leases following the Closing.
(i) Possession of the Tracts shall be delivered to Member or
Assignee at Closing. The Company shall remove all stored materials and debris
located on the Tracts within sixty (60) days following the Closing.
(j) Following the Closing, the Company agrees to use commercially
reasonable efforts to assist Member or Assignee in the processing of building
permit applications and obtaining building permits for each of the Tracts;
provided, however, that Member or Assignee shall reimburse the Company for all
actual out-of-pocket expenses incurred by the Company in providing such
assistance.
(k) Following the Closing, Member and Assignee shall assume and
shall perform in a timely fashion the installation and construction of
landscaping and other cosmetic improvements required to be performed with
respect to the Shopping Center and the Tracts in the median and along the street
known as "Market Center Boulevard" which adjoins the Property. Upon completion
of those improvements, the Company agrees to pay to Member or Assignee, as
applicable, the sum of $10,000 as its contribution on account of such
improvements. The obligation set forth in this Section 5(k) shall survive
Closing.
(l) Any third party costs and expenses associated with or related
to the Tracts, including but not limited to title insurance, survey costs,
property taxes, third party leasing commissions, and costs associated with
obtaining building permits, shall be borne by Assignee or if by Member, by Xxxxx
X. Xxxxx and Xxxxxxx X. Xxxxxxxx, as Trustee of the Xxxxxx X. Xxxxxxxx AJS
Trust, as the responsible members of Member.
6. Representations and Warranties of Member. Member hereby represents and
warrants to the Company as follows:
(a) Member is a limited liability company duly organized and
validly existing under the laws of the State of South Carolina, and Member is
authorized to conduct its business in the state in which the Property is
located. Member has the power to own its property and carry on its business as
and where it is now conducted and has the power and unrestricted authority to
enter into this Agreement and perform its obligations and consummate the
transactions contemplated under this Agreement without the joinder of any other
person or entity, including delivery of the Assignment of Member Interest and
other items required for Closing.
(b) This Agreement and all documents executed and delivered by
Member are or at the time of Closing will be: duly authorized, executed, and
delivered by Member; the legal, valid, and binding obligations of Member, and
sufficient to convey title (if they purport to do so). Such documents do not
violate any provisions of or cause a material default under any agreement,
instrument or judicial order to which Member is a party or by which Member or,
to Member's knowledge, the Property is bound.
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(c) Member is not in default under any note, evidence of
indebtedness, lease, contract, license, undertaking or other agreement where the
liability thereunder might adversely affect Member's ability to perform its
obligations under this Agreement.
(d) Member has received no written notice and has no knowledge of
any existing, pending or threatened litigation, action, suit or other
proceeding, judicial or administrative, by any person or any governmental
authority, against Member or the Company arising in connection with the
Property.
(e) Member is the sole owner of the Member Interest. Member has
not sold, transferred, conveyed, hypothecated, pledged or otherwise assigned all
or any interest in the Member Interest to any person, and at Closing, Member
shall assign the Member Interest to the Company free and clear of all liens,
encumbrances, restrictions, easements and other matters and exceptions.
(f) Member is not a "foreign person" within the meaning of Section
1445(f)(3) of the Code.
(g) To the extent that Assignee is the recipient of funds or the
assignee or grantee of the Tracts, all of the foregoing representations and
warranties shall be true, correct and complete as of the Closing Date and the
Closing as if made by Assignee in place of Member in each instance.
7. Representations and Warranties of the Company. The Company hereby
represents and warrants to Member as follows:
(a) The Company is a limited liability company duly organized and
validly existing under the laws of the State of Delaware, and authorized to
conduct its business in the state in which the Property is located. The Company
has the power to own its property and carry on its business as and where it is
now conducted and has the power and unrestricted authority to enter into this
Agreement and perform its obligations and consummate the transactions
contemplated under this Agreement without the joinder of any other person or
entity, including delivery of the Deed and the Ground Lease Assignment and other
items required for Closing.
(b) This Agreement and all documents executed and delivered by the
Company are or at the time of Closing will be: duly authorized, executed, and
delivered by the Company; the legal, valid, and binding obligations of the
Company, and sufficient to convey title (if they purport to do so). Such
documents do not violate any provisions of or cause a material default under any
agreement, instrument or judicial order to which the Company is a party or by
which the Company or the Property is bound.
(c) The Company is not in default under any note, evidence of
indebtedness, lease, contract, license, undertaking or other agreement where the
liability thereunder might adversely affect the Company's ability to perform its
obligations under this Agreement.
(d) The Company has received no written notice and has no
knowledge of any existing, pending or threatened litigation, action, suit or
other proceeding, judicial or administrative, by any person or any governmental
authority, against the Company arising in connection with the Property,
excepting only an action relating to a materialman's lien associated with
leasehold improvements for Red's Backwoods Barbeque, liens for which appropriate
bonds have been posted.
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8. Release and Indemnification.
(a) For so long as the Company does not default in any material
respect in the performance of its obligations under this Agreement, and provided
that none of the conditions described in Section 4 of this Agreement fail to
occur as the result of matters within the reasonable control of the Company,
Member, on behalf of itself, its members, Assignee, and those persons listed as
"Member Parties" in the "Joinder" section of the signature page of this
Agreement, and each of their respective officers, directors, employees, agents
and contractors (collectively, the "Member Parties") hereby release and forever
discharge the Company Parties (as hereinafter defined) from and against any and
all claims, demands, liabilities, costs, expenses, penalties, damages and
losses, including, without limitation, reasonable attorneys' fees, known or
unknown, actual or contingent, arising out of or in connection with the Property
or the Company, including, without limitation, the execution and deliver of the
Operating Agreement, the performance of each of the obligations of any of the
Company Parties thereunder, and the acquisition, development, construction,
financing, ownership or management of the Property, and any acts or omissions in
connection therewith, but specifically excluding any breach or default in the
performance of a party's obligations under this Agreement or any deed,
assignment, agreement or other document to be delivered pursuant to the terms
hereof (collectively, the "Claims").
(b) For so long as Member does not default in any material respect
in the performance of its obligations under this Agreement, and provided that
none of the conditions described in Section 4 of this Agreement fail to occur as
the result of matters within the reasonable control of Member, the Company on
behalf of itself, its members, and those persons listed as "Company Parties" in
the "Joinder" section of the signature page of this Agreement, and each of their
respective officers, directors, employees, agents and contractors (collectively,
the "Company Parties") hereby release and forever discharge the Member Parties
from and against any and all Claims.
(c) The Member Parties and the Company Parties agree and
acknowledge that the releases contained in this Section 8 are intended to
constitute general releases of all claims of every kind and nature relating to
or arising from the Property and/or the Operating Agreement, and that such
releases relate to matters which may be disputed or contested and shall not be
construed as an admission of liability on the part of any party.
(d) Each of the Company Parties and the Member Parties hereby
agrees to indemnify the other party and hold it harmless from and against any
and all claims, demands, liabilities, costs, expenses, penalties, damages and
losses, including, without limitation, reasonable attorneys' fees, resulting
from (i) any action, proceeding or other legal action instituted against the
other party by any of the Company Parties or the Member Parties, respectively,
on account of any Claims, and (ii) any misrepresentations or breach of warranty
or breach of covenant made by such party in this Agreement or in any document,
certificate, or exhibit given or delivered to the other pursuant to or in
connection with this Agreement.
(e) The provisions of this Section 8 shall survive beyond the
Closing, the delivery of the Deed the Ground Lease Assignment and any
termination of this Agreement.
9. Default; Remedies.
(a) Member Default. If this transaction fails to close as a result
of Member's default in the performance of any of Member's obligations in this
Agreement, the parties acknowledge that such default could result in permanent
and irreparable harm to the Company which may not be compensable by monetary
damages, and as a result, the Company shall have the right to pursue specific
performance and all other available equitable remedies on account of such
default. Should specific performance or
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other remedies be unavailable or should the Company otherwise determine that it
is in its best interests to seek damages, the Company may elect to terminate
this Agreement and/or pursue any other available remedies.
(b) Company Default. If this transaction fails to close as a
result of the Company's default in the performance of any of the Company's
obligations in this Agreement for any reason other than Member's default, the
parties acknowledge that such default could result in permanent and irreparable
harm to Member which may not be compensable by monetary damages, and as a
result, Member shall be have the right to pursue specific performance and all
other available equitable remedies on account of such default. Should specific
performance or other remedies be unavailable or should Member otherwise
determine that it is in its best interests to seek damages, Member may elect to
terminate this Agreement and/or pursue any other available remedies.
10. Miscellaneous.
(a) Notices. Unless otherwise provided herein, any notice required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given the day after such notice was deposited with a
nationally-recognized overnight delivery service, or the date sent by confirmed
telecopy and addressed as follows:
If to Member: AJS Group, LLC
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxx
Fax No.: 000-000-0000
Copy to: Wacovia Bank, N.A., Trustee
Estates and Closely Held Businesses
GA - 0654
000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxx 0000
Xxxxxxx, XX 00000
Fax No: 000-000-0000
If to the Company: Mount Pleasant KPT LLC
c/o Konover Property Trust, Inc.
00000 Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxx Xxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Attn: Legal Department
Fax No: (000) 000-0000
Copy to: Xxxxx, Xxxxx & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx Xxxxxxxxx
Fax No: (000) 000-0000
or such other address as either party may from time to time specify in writing
to the other.
(b) Brokers and Finders. Neither party has had any contact or
dealings regarding the transfers and payments contemplated by this Agreement, or
any communication in connection with the
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subject matter of this transaction, through any licensed real estate broker or
other person who can claim a right to a commission or finder's fee as a
procuring cause of the sale contemplated herein. The Company shall indemnify,
save harmless and defend Member from any liability, cost, or expense (including
reasonable attorneys" fees) arising out of or connected with any claim for any
commission or compensation made by any person or entity claiming to have been
retained or contacted by the Company in connection with this transaction. Member
shall indemnify, save harmless and defend the Company from any liability, cost,
or expense (including reasonable attorneys' fees) arising out of or connected
with any claim for any commission or compensation made by any person or entity
claiming to have been retained or contacted by Member in connection with this
transaction. The provisions of this paragraph shall survive the Closing and any
termination of this Agreement.
(c) Successors and Assigns. Neither party may assign this
Agreement without the prior written consent of the other, and any such
prohibited assignment shall be void. It is specifically agreed and understood
that notwithstanding the assignment of certain rights under this Agreement by
Member to Assignee, that such assignment shall in no manner release or discharge
Member from principal and primary responsibility for the performance of all of
the obligations of Member hereunder. By acceptance of such assignment, Assignee
shall be deemed to have assumed and agreed to be jointly and severally liable
for all of the obligations of Member under this Agreement and each of the
documents to be delivered by Member at Closing hereunder. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
respective legal representatives, successors, assigns, heirs, and devisees of
the parties.
(d) Amendments. Except as otherwise provided herein, this
Agreement may be amended or modified only by a written instrument executed by
Member and the Company.
(e) Continuation and Survival. All representations and warranties
by the respective parties contained herein or made in writing pursuant to this
Agreement are intended to and shall remain true and correct as of the time of
Closing, and shall survive the execution and delivery of this Agreement, the
delivery of the Deed and transfer of title. In addition, the provisions of this
Agreement that contemplate performance after the Closing and the obligations of
the parties not fully performed at the Closing shall survive the Closing and
shall not be deemed to be merged into or waived by the instruments of Closing.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of Delaware.
(g) Merger of Prior Agreements. This Agreement, including the
exhibits hereto, constitutes the entire agreement between the parties with
respect to the purchase and sale of the Property and supersedes all prior
agreements and understandings between the parties hereto relating to the subject
matter hereof.
(h) Enforcement. In the event either party hereto fails to perform
any of its obligations under this Agreement or in the event a dispute arises
concerning the meaning or interpretation of any provision of this Agreement, the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party in
enforcing or establishing its rights hereunder, including, without limitation,
court costs and reasonable attorneys" fees.
(i) Time of the Essence. Time is of the essence in the performance
of this Agreement.
(j) Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of such counterparts shall
10
constitute one Agreement. To facilitate execution of this Agreement, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
(k) Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the
Property is located, in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein shall be deemed to end at 6:00 p.m. North
Carolina time.
(l) Confidentiality. Except as expressly otherwise provided in
this Agreement, neither Member nor the Company will release or cause or permit
to be released any press notices, or publicity (oral or written) or advertising
promotion relating to, or otherwise announce or disclose or cause or permit to
be announced or disclosed, in any manner whatsoever, the terms, conditions or
substance of this Agreement without first obtaining the written consent of the
other party. The foregoing shall not preclude either party from discussing the
substance or any relevant details of such transactions with any of its
attorneys, accountants, professional consultants, lenders, partners, investors,
or any prospective lender, partner or investor, as the case may be, or prevent
either party hereto, from complying with laws, rules, regulations and court
orders, including without limitation, governmental regulatory, disclosure, tax
and reporting requirements. In addition to any other remedies available to a
party, each party shall have the right to seek equitable relief, including
without limitation injunctive relief or specific performance, against the other
party in order to enforce the provisions of this Section 10(l).
(m) Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party at Closing, each party agrees to perform, execute and deliver, but without
any obligation to incur any additional liability or expense, on or after the
Closing any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to the Company.
(n) Non-Competition. Member agrees that neither Member nor any
person acting on Member's behalf shall either directly or indirectly contract,
offer to contract, negotiate, or otherwise solicit any person for the purposes
of inducing such person to enter into a lease or otherwise occupy all or any
portion of the Tracts, if such person (i) is an existing tenant of the Shopping
Center, or has executed a lease and agreed to become a tenant of the Shopping
Center or agreed to purchase an outparcel within the Shopping Center, for a
period five (5) years following the date of this Agreement, or (iii) if such
tenant or its affiliate is listed on Exhibit L, for a period of nine (9) months
following the date of this Agreement or, if a lease is executed, for a period of
five (5) years following the date of this Agreement. The Company agrees that
neither the Company nor any person acting on the Company's behalf shall either
directly or indirectly contract, offer to contract, negotiate, or otherwise
solicit (i) Elite Management Team, Inc. for the purposes of inducing such tenant
to enter into a lease or otherwise occupy all or a portion of the Shopping
Center for a period of five (5) years following the date of this Agreement, or
(ii) The Talbots, Inc. for its women's or petite shops for a period of nine (9)
months following the date of this Agreement or, if a lease is executed, for a
period of five (5) years following the date of this Agreement. The provisions of
this Section 10(n) shall survive the Closing and any conveyance of the Tracts or
the Shopping Center, and are intended to be binding on each party's successors
and assigns and run with the land as an encumbrance against each property for
the benefit of the other.
11
[signature page follows]
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
MEMBER: AJS GROUP, LLC,
a South Carolina limited liability company
By: ________________________________
Xxxxxxx X. Xxxxxxxx, as Trustee of the
Xxxxxx X. Xxxxxxxx AJS Trust, Member
By: ________________________________
Xxxxx X. Xxxxx, Member
By: __________________________________
Wachovia Bank, N.A., as Trustee of the Xxxxxxx
Children's Trust, Member
THE COMPANY: KPT PROPERTIES, L.P.,
a Delaware limited partnership,
Its Managing Member
By: Konover Property Trust, Inc.,
its General Partner
By: _________________________
Name: _______________________
Title: ______________________
[Joinder on next page]
13
Joinder
In addition to Member and the Company, the undersigned, by affixing their
signatures below, hereby join and agree to be bound by the provisions of Section
8 of this Agreement as Member Parties or Company Parties, respectively, as
designated below:
Member Parties Company Parties
KPT PROPERTIES, L.P.,
______________________________ a Delaware limited partnership
Xxxxxxx X. Xxxxxxxx, as Trustee of the By: Konover Property Trust, Inc.,
Xxxxxx X. Xxxxxxxx AJS Trust its General Partner
By: _____________________________
______________________________ Name:
Xxxxx X. Xxxxx Title:
Wachovia Bank, N.A., as Trustee of the KONOVER PROPERTY TRUST, INC.,
Xxxxxxx Children's Trust a Maryland corporation
By: _____________________________
By: ___________________________ Name:
Name: Title:
Title:
_______________________________
Xxxx X. Xxxxxxx
_______________________________
Xxxxxx X. Xxxxxxxx
_______________________________
Xxxxx Xxxxx
14
LIST OF EXHIBITS
----------------
Exhibit A Legal Description of Tracts
Exhibit B Legal Description of Property
Exhibit C Assignment of Member Interest
Exhibit D [Intentionally Deleted]
Exhibit E FIRPTA Certificate
Exhibit F Deed
Exhibit G Ground Lease Assignment
Exhibit H Assignment and Assumption of Leases
Exhibit I Assignment and Assumption of Service Contracts, Licenses and Permits
Exhibit J Form of Notice to Tenants
Exhibit K Escrow Instructions
Exhibit L Shopping Center Prospective Tenants
15
EXHIBIT A
[LEGAL DESCRIPTION OF THE TRACTS]
TRACT 13, 1.35 Acres
--------------------
ALL that certain piece, parcel and tract of land, together with any improvements
thereon, situate, lying and being in the Town of Mt. Pleasant, County of
Charleston, State of South Carolina, shown and designated as "TRACT 13 58,706
sq. ft. 1.35 acres" on a plat entitled "FINAL PLAT OF TRACTS A, 13, & 14 AND
PARCELS 00-00, XXXXX XXXX & XXXXXX XXXXXX XXXXXXXXX AND FUTURE RIGHT-OF-WAY
MARKET CENTER, TOWN OF MT. PLEASANT, CHARLESTON COUNTY, SOUTH CAROLINA" prepared
by SouthStar Surveying, Inc., dated December 15, 1997, and recorded July 30,
1998, in Plat Book EC at page 646 in the RMC Office for Charleston County, South
Carolina.
Said property being more fully described based on a plat entitled "AN ALTA/ACSM
LAND TITLE SURVEY OF TRACTS 13 AND 14, AND PARCELS 5, 7, AND 8 MARKET CENTER" by
Xxxxxx & Xxxxxx Engineering Co. dated September 28, 1998 as follows:
Commencing at the intersection of the southerly right-of-way of Mazzy Lane and
the westerly right-of-way or Market Center Boulevard and traveling along the
westerly right-of-way of Market Center Boulevard a distance of 456 feet +/- to
an iron pin being the True Point of Beginning:
Thence continuing along the westerly right-of-way of Market Center Boulevard
along a line with a course of S35-08-51E for 432.10 feet to an iron pin set at
the intersection of the westerly right-of-way of Market Center Boulevard and the
northerly right-of-way of a future right of way; Thence along the northerly
right-of-way of the future right-of-way along a line with a course of S54-50-35W
for 135.88 feet to an iron pin set; Thence along a line with a course of
N35-09-25W for 432.01 feet to an iron pin set; Thence along a line with a course
of N54-48-23E for 135.88 feet to an iron pin set being the True Point of
Beginning.
Said tract containing 1.35 acres.
BEING the property conveyed to Mount Pleasant KPT LLC by deed dated February 9,
1999, and recorded February 12, 1999, in Book E320 at page 489 in the RMC office
aforesaid.
TMS: 558-00-00-405 (formerly pt. -096 then -398) - Xxxxx 00
X-0
XXXXX 00, 1.21 Acres
--------------------
ALL that certain piece, parcel and tract of land, situate, lying and being on
U.S. Highway 17 in the Town of Mt. Pleasant, County of Charleston, State of
South Carolina, shown and designated as "TRACT 14 52,646 sq. ft. 1.21 acres" and
on a plat entitled, "FINAL PLAT OF TRACTS A, 13, & 14 AND PARCELS 00-00, XXXXX
XXXX & XXXXXX XXXXXX XXXXXXXXX AND FUTURE RIGHT-OF-WAY MARKET CENTER, TOWN OF
MT. PLEASANT, CHARLESTON COUNTY, SOUTH CAROLINA" prepared by SouthStar Surveying
Inc., dated December 15, 1997, and recorded July 30, 1998, in Plat Book EC at
page 646 in the RMC Office for Charleston County, South Carolina.
Said property being more fully described based on a plat entitled "AN ALTA/ACSM
LAND TITLE SURVEY OF TRACTS 13 AND 14 AND PARCELS 5, 7, AND 8 MARKET CENTER" by
Xxxxxx & Xxxxxx Engineering Co. dated September 28, 1998 as follows:
Commencing at the intersection of the southerly right-of-way of Mazzy Lane and
the westerly right-of-way of Market Center Boulevard at an iron pin set being
the True Point of Beginning:
Thence along the westerly right-of-way of Market Center Boulevard along a curve
to the right with a radius of 167.39 feet, a length of 11.27 feet and a chord of
S37-05-32E for 11.27 feet to an iron pin set; Thence continuing along the
westerly right-of-way of Market Center Boulevard along a line with a course of
S35-08-51E for 368.30 feet to an iron pin set; Thence along a line with a course
of S54-48-23W for 135.88 feet to an iron pin set; Thence along a line with a
course of N35-09-25W for 366.02 feet to an iron pin set on the southerly
right-of-way of Mazzy Lane; Thence along the southerly right-of-way of Mazzy
Lane along a line with a course of N35-40-06E for 108.17 feet to an iron pin
set; Thence continuing along the southerly right-of-way of Mazzy Lane along a
curve to the right with a radius of 25.07 feet, a length of 45.90 feet and a
chord of S88-19-21W for 39.75 feet to the True Point of Beginning.
Said tract containing 1.21 acres.
A-2
EXHIBIT B
[LEGAL DESCRIPTION OF PROPERTY]
B-1
EXHIBIT C
ASSIGNMENT OF MEMBER INTERESTS
THIS ASSIGNMENT OF MEMBER INTERESTS (this "Assignment") is made as of
this ____ day of December, 2000, by and between AJS GROUP, LLC, a South Carolina
limited liability company ("Member"), and MOUNT PLEASANT KPT LLC, a Delaware
limited liability company ("Company").
RECITALS
A. Member is the owner of the entire interest of the "Non-Managing
Member" of the Company (the "Member Interest"), as more particularly described
in Operating Agreement of Mount Pleasant FAC LLC dated November __, 1997 (the
"Original Agreement"), as modified by that certain First Amendment to Operating
Agreement of Mount Pleasant KPT LLC dated November 10, 1998 (the "First
Amendment"), and that certain Second Amendment to Operating Agreement of Mount
Pleasant KPT LLC dated April 13, 1999 (the "Second Amendment") (collectively as
amended, the "Operating Agreement"), and any other rights, entitlements, claims
or other interests of Member in the Company, including Member's Capital Account
and all of Member's rights to profits, losses, distributions, and any other
amounts due Member under the Operating Agreement, in complete liquidation of
such Member Interest.
B. Member and Company have entered into that certain Agreement dated as
of December __, 2000 whereby, among other things, Member agreed to sell,
transfer and convey to the Company and the Company agreed to redeem and acquire
the Member Interest.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are acknowledged by
each party, the parties agree as follows:
C-1
1. The Recitals set forth above are hereby incorporated by this reference
as a material part of this Assignment.
2. Member hereby sells, transfers, assigns and conveys to Company all of
the Member Interest, and any other rights, entitlements, claims or other
interests of Member in the Company, including Member's Capital Account and all
of Member's rights to profits, losses, distributions, and any other amounts due
Member under the Operating Agreement, in complete liquidation of such Member
Interest. Member hereby withdraws as a Member of the LLC.
3. The Company hereby redeems and acquires the Member Interest from
Member.
4. Member hereby represents and warrants to the Company that, on the date
hereof and at the time of such delivery, Member is the sole legal and beneficial
owner of the Member Interest. Member further represents and warrants to the
Company that Member has not sold, transferred, conveyed, hypothecated, pledged
or otherwise assigned all or any interest in the Member Interest to any person
and that the Member Interest is being transferred and conveyed to the Company
free and clear of all liens, encumbrances, restrictions, easements and other
matters and exceptions.
5. This Assignment shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, personal representatives,
successors and assigns hereunder.
6. This Assignment may be executed in counterparts.
[EXECUTION PAGE FOLLOWS]
C-2
IN WITNESS WHEREOF, each party has executed this Assignment, or
caused it to be executed on its behalf by its duly authorized
representatives, the day and year first above written.
ASSIGNOR:
AJS GROUP, LLC, a South Carolina limited
liability company
By: _______________________________________
Xxxxxxx X. Xxxxxxxx, as Trustee of the
Xxxxxx X. Xxxxxxxx AJS Trust,
Member
By: _______________________________________
WACHOVIA BANK, N.A., as
Trustee of the Xxxxxxx Children's
Trust, Member
By: _______________________________________
Xxxxx X. Xxxxx, Member
COMPANY:
MOUNT PLEASANT KPT LLC, a
Delaware limited liability company
By: KPT Properties, L.P., a Delaware
limited partnership
By: Konover Property Trust, Inc.,
Its General Partner
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
X-0
XXXXXXX X
[XXXXXXXXXXXXX XXXXXXX]
X-0
EXHIBIT E
[FIRPTA CERTIFICATE]
CERTIFICATE OF NON-FOREIGN STATUS BY ENTITY TRANSFEROR
(Tract 13)
1. Section 1445 of the Internal Revenue Code provides that a
transferee must withhold tax if the transferor is a foreign person.
2. In order to inform AJS GROUP, LLC that withholding of tax is
not required upon disposition of a U.S. real property interest by MOUNT PLEASANT
KPT LLC ("Transferor"), the undersigned hereby certifies and declares by means
of this certificate the following on behalf of the Transferor.
A. The one item marked below is true and correct:
X (i) The Transferor is not a foreign
--- corporation, foreign partnership, foreign
partnership, foreign trust or foreign estate
(as these terms are defined in the Internal
Revenue Code and Income Tax Regulations).
___ (ii) The Transferor is a foreign corporation
incorporated under the laws of a foreign
jurisdiction, but has elected to be treated
as a U.S. corporation under Section 897(i) of
the Internal Revenue Code, AND HAS ATTACHED TO
THIS CERTIFICATE A GENUINE COPY OF THE
ACKNOWLEDGMENT OF SUCH ELECTION ISSUED BY THE
IRS.
B. The Transferor's employer identification
number is: 00-0000000
C. The Transferor's office address is:
c/o Konover Property Trust, Inc
00000 Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000
3. The Transferor understands that this certificate may be
disclosed to the Internal Revenue Service by the transferee and that any false
statement contained in this certificate may be punished by fine, imprisonment,
or both.
4. The Transferor hereby agrees to indemnify and hold harmless
each transferee from any liability or cost which such transferee may incur as a
result of: (i) The Transferor's failure to pay any U.S. federal income tax which
the Transferor is required to pay under applicable U.S. law, or (ii) any false
or misleading statement contained herein.
Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true, correct and
complete. I further declare that I have
E-1
authority to sign this document on behalf of the Transferor.
EXECUTED this ___ day of December, 2000.
TRANSFEROR:
MOUNT PLEASANT KPT LLC, a Delaware
limited liability company
By: KPT Properties, L.P., Its
Managing Member
By: Konover Property Trust, Inc.,
Its General Partner
By: _______________________
Name:
Title:
X-0
XXXXXXX X
XXXXX XX XXXXX XXXXXXXX
XXXXXX OF CHARLESTON TITLE TO REAL ESTATE
KNOW ALL MEN BY THESE PRESENTS that MOUNT PLEASANT KPT LLC ("Grantor"),
a Delaware limited liability company, in consideration of the sum of Ten and
00/100 ($10.00) Dollars and other good and valuable consideration in hand paid
to the Grantor by the below-named Grantee at and before the sealing of these
presents, the receipt whereof is hereby acknowledged, has granted, bargained,
sold and released, and by these presents does grant, bargain, sell and release
unto AJS GROUP, LLC, a South Carolina limited liability company ("Grantee"), the
following described premises, to wit:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE PART HEREOF BY REFERENCE
(Tract 13, Market Center, Mt. Pleasant, SC) (the "Premises")
SUBJECT TO current taxes not yet due and payable, assessments and any
other liens arising therefrom, all easements, restrictions,
reservations, covenants, encumbrances, limitations, and other matters
as may appear of record, and all other matters that can be obtained by
a visual inspection or complete and accurate survey of the Premises.
TOGETHER with all and singular the Rights, Members, Hereditaments, and
Appurtenances to the said premises belonging, or in anywise incident or
appertaining.
TO HAVE TO AND TO HOLD all and singular the said Premises before
mentioned unto the Grantee hereinabove named and Grantee's successors and
assigns forever.
And the Grantor does hereby bind the Grantor and the Grantor's heirs
and assigns to warrant and forever defend all and singular the said Premises
unto the Grantee hereinabove named and the Grantee's successors and assigns
against the Grantor and the Grantor's heirs and assigns lawfully claiming or to
claim the same or any part thereof.
F-1
IN WITNESS WHEREOF, the Grantor has set Grantor's Hand and Seal this
____ day of December, 2000.
WITNESS: MOUNT PLEASANT KPT LLC, a Delaware
limited liability company
By: KPT Properties, L.P., Its Managing Member
By: Konover Property Trust, Inc., Its
_________________________________ General Partner
Witness Signs Here
By: _________________________________
_________________________________ Name: _______________________________
Notary Signs Here AS WITNESS Title: ______________________________
X-0
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXX ACKNOWLEDGMENT
I, the undersigned Notary Public for the State of North Carolina, do
hereby certify that Mount Pleasant KPT LLC, by KPT Properties, L.P., its
Managing Member, by Konover Property Trust, Inc., its General Partner, by
_________________, its _______________, personally appeared before me this day
and acknowledged the due execution of the foregoing instrument.
Subscribed to and sworn before me this ___ day of December, 2000.
_______________________________________
Name of Notary Public
Notary Public, State of North Carolina
My commission expires:_________________
F-3
EXHIBIT G
[GROUND LEASE ASSIGNMENT]
STATE OF SOUTH CAROLINA )
)
COUNTY OF CHARLESTON )
ASSIGNMENT AND ASSUMPTION OF
GROUND LEASE (Tract 14, Market Center)
(Book E-283, Page 415)
(Book K-292, Page 215)
(Book H-293, Page 679)
(Book H-320, Page 530)
(Book H-326, Page 792)
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (this "Assignment") is
dated as of this _____ day of December, 2000, and made by and between MOUNT
PLEASANT KPT LLC, a Delaware limited liability company ("Assignor"), and AJS
GROUP, LLC, a South Carolina limited liability company ("Assignee").
RECITALS:
WHEREAS, Assignor is the lessee under that certain Ground Lease dated
April 24, 1997 by and between Assignor, as lessee, and Xxxxxx X. Xxxxxx, Xx. and
Xxxxx X. Xxxxxx, as lessor, a memorandum of which entitled "Memorandum of Lease
for Recordation (Parcel 11-Market Center)" was recorded in Book E-283 at Page
415 in the RMC Office for Charleston County, South Carolina, as amended by that
certain Amendment to Ground Lease dated October 31, 1997 and recorded in Book
K-292 at Page 215 in the RMC office aforesaid and re-recorded on November 20,
1997, in Book H-293 at Page 679 in the RMC office aforesaid, as assigned to
Assignor by that certain Assignment and Assumption of Ground Lease dated as of
February 7, 1999 and recorded in Book H-320 at Page 530 on February 12, 1999 in
the RMC office aforesaid, and as amended by that certain Amendment to Ground
Lease dated as of May 10, 1999 and recorded in Book H-326 at Page 792 on May 12,
1999 in the RMC office aforesaid (collectively, "Ground Lease"), relating to
that certain real property more particularly described therein (the "Real
Property").
WHEREAS, Assignor desires to assign and Assignee desires to assume all
of Assignor's interest in the Ground Lease on the terms and conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained and Ten Dollars ($10.00) in hand paid by each party to the other, the
receipt and sufficiency of which hereby are acknowledged, the parties agree:
G-1
I. Recitals. The Recitals above are hereby incorporated as a material
part of this Assignment.
II. Assignment of Interest in the Ground Lease. Assignor, hereby
grants, bargains, assigns, sets over, transfers, and conveys to Assignee (i) all
of the leasehold estate and other rights, title, and interests of Assignor in
and to the Ground Lease, and (ii) all easements, rights, privileges and
appurtenances pertaining to the Real Property.
III. Assumption of Interest in the Ground Lease. Assignee hereby
assumes all of Assignor's right, title and interests in and to the Ground Lease
and agrees to perform and observe all of the covenants and conditions required
to be performed by Assignor from and after the date hereof. Assignee hereby
agrees to indemnify and hold harmless Assignor from and against any and all
claims, demands, liabilities, costs, expenses, penalties, damages and losses,
including, without limitation, reasonable attorneys' fees, of any kind
whatsoever arising or accruing on or after the date hereof, suffered or incurred
by Assignor, with respect to the Ground Lease.
IV. Binding Effect. This Assignment shall be binding on the parties and
their respective successors, and assigns.
V. Governing Law. This Assignment shall be subject to and governed by
the laws of the State of South Carolina.
VI. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed to be an original instrument, but
all of which together shall constitute one instrument.
[Signature Pages Follow]
G-2
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals, the day
and year first above written.
WITNESSES: ASSIGNOR:
MOUNT PLEASANT KPT LLC, a
Delaware limited liability company
By: KPT Properties, L.P., a Delaware
limited partnership
By: Konover Property Trust, Inc.,
Its General Partner
By: ____________________________________
Name: __________________________________
Title: _________________________________
WITNESSES: ASSIGNEE:
AJS GROUP, LLC, a South Carolina limited
liability company
By: ________________________________________
Xxxxxxx X. Xxxxxxxx, as Trustee of the
Xxxxxx X. Xxxxxxxx AJS Trust,
Member
By: ________________________________________
WACHOVIA BANK, N.A., as
Trustee of the Xxxxxxx Children's
Trust, Member
By: ________________________________________
Xxxxx X. Xxxxx, Member
X-0
XXXXX XX XXXXX XXXXXXXX
XXXXXX OF ______________ ACKNOWLEDGMENT
I, the undersigned Notary Public for the State of South Carolina, do
hereby certify that Xxxxxxx X. Xxxxxxxx, as Trustee of the Xxxxxx X. Xxxxxxxx
AJS Trust, as a Member of AJS Group, LLC, personally appeared before me this day
and acknowledged the due execution of the foregoing instrument.
Subscribed to and sworn before me this ___ day of December, 2000.
_______________________________________
Name of Notary Public
Notary Public, State of South Carolina
My commission expires:_________________
STATE OF SOUTH CAROLINA
COUNTY OF ____________ ACKNOWLEDGMENT
I, the undersigned Notary Public for the State of South Carolina, do
hereby certify that Xxxxx X. Xxxxx, as a Member of AJS Group LLC, personally
appeared before me this day and acknowledged the due execution of the foregoing
instrument.
Subscribed to and sworn before me this ___ day of December, 2000.
_______________________________________
Name of Notary Public
Notary Public, State of South Carolina
My commission expires:_________________
X-0
XXXXX XX XXXXX XXXXXXXX
XXXXXX OF ____________ ACKNOWLEDGMENT
I, the undersigned Notary Public for the State of South Carolina, do
hereby certify that WACHOVIA BANK, N.A., as the Trustee of the Xxxxxxx
Children's Trust, as a Member of AJS Group, LLC, by _______________ its
_________________, personally appeared before me this day and acknowledged the
due execution of the foregoing instrument.
Subscribed to and sworn before me this ___ day of December, 2000.
_______________________________________
Name of Notary Public
Notary Public, State of South Carolina
My commission expires:_________________
X-0
XXXXX XX XXXXX XXXXXXXX
XXXXXX OF WAKE ACKNOWLEDGMENT
I, the undersigned Notary Public for the State of North Carolina, do
hereby certify that Mount Pleasant KPT LLC, by KPT Properties, L.P., its
Managing Member, by Konover Property Trust, Inc., its General Partner, by
_________________, its _______________, personally appeared before me this day
and acknowledged the due execution of the foregoing instrument.
Subscribed to and sworn before me this ___ day of December, 2000.
_______________________________________
Name of Notary Public
Notary Public, State of North Carolina
My commission expires:_________________
G-6
CONSENT
By their execution hereof, Xxxxxx X. Xxxxxx, Xx., and Xxxxx X. Xxxxxx,
hereby acknowledge their consent to the foregoing Assignment and Assumption of
Ground Lease.
________________________________ _______________________________
Witness Signs Here Xxxxxx X. Xxxxxx, Xx.
________________________________ _______________________________
Notary Signs Here AS WITNESS Xxxxx X. Xxxxxx
STATE OF SOUTH CAROLINA
COUNTY OF ________________ ACKNOWLEDGMENT
I, the undersigned Notary Public for the State of South Carolina, do
hereby certify that Xxxxxx X. Xxxxxx, Xx. and Xxxxx X. Xxxxxx personally
appeared before me this day and acknowledged the due execution of the foregoing
instrument.
Subscribed to and sworn before me this ___ day of December, 2000.
_______________________________________
Name of Notary Public
Notary Public, State of South Carolina
My commission expires:_________________
G-7
EXHIBIT H
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (the "Assignment") is
made as of the ___ day of December, 2000, by and between MOUNT PLEASANT KPT LLC,
a Delaware limited liability company ("Seller"), and AJS GROUP, LLC, a South
Carolina limited liability company ("Buyer").
RECITALS
A. Seller and Buyer entered into that certain Agreement dated
as of December __, 2000 (the "Agreement") whereby, among other things, Buyer
agreed to acquire from Seller certain real property described in Exhibit A
attached hereto (the "Property").
B. Seller is the landlord under certain leases (collectively,
the "Leases") and the owner under certain leasing commission agreements (the
Commission Agreements"), affecting all or a portion of the Property, listed in
Exhibit B attached hereto.
C. As a condition to purchasing the Property, Buyer has
required that Seller enter into this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Seller hereby assigns to Buyer, its successors and assigns, all of
the right, title and interest of Seller in and to the Leases and the Commission
Agreements, and any security deposits (including accrued interest thereon) and
all advance rentals plus any interest to which tenants may be entitled, and
Buyer assumes the obligations of Seller thereunder for the period from and after
the date hereof, including without limitation, the obligation to pay all leasing
commissions and tenant improvement costs.
2. Buyer hereby indemnifies and agrees to hold Seller harmless from and
against any loss, cost, damage or expense (including attorneys' fees) whatsoever
resulting from arising out of any actual or alleged breach by Buyer of its
obligations under any of the Leases and the Commission Agreements arising after
the date hereof.
3. Seller hereby indemnifies and agrees to hold Buyer harmless from and
against any loss, cost, damage or expense (including attorneys' fees) whatsoever
resulting from or arising out of any actual or alleged breach by Seller of its
obligations under any of the Leases and the Commission Agreements arising on or
before the date hereof.
4. This Assignment shall be binding upon, and shall inure to the
benefit of, the successors and assigns and the parties hereto.
5. This Assignment may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment as of the day and year first above written.
H-1
SELLER: MOUNT PLEASANT KPT LLC, a Delaware
limited liability company
By: KPT Properties, L.P., Its Managing Member
By: Konover Property Trust, Inc., Its
General Partner
By: ________________________________
Name: ___________________________________
Title: __________________________________
BUYER: AJS GROUP, LLC, a South Carolina limited
liability company
By: __________________________________________
Xxxxxxx X. Xxxxxxxx, as Trustee of the
Xxxxxx X. Xxxxxxxx AJS Trust, Member
By: __________________________________________
Xxxxx X. Xxxxx, Member
By: __________________________________________
WACHOVIA BANK, N.A., as Trustee of the
Xxxxxxx Children's Trust, Member
H-2
EXHIBIT A
Legal Description of Tracts 13 and 14
H-3
EXHIBIT B
List of Leases and Commission Agreements
H-4
EXHIBIT I
[ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS, LICENSES AND PERMITS]
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS,
WARRANTIES AND GUARANTIES AND PERMITS
(Tracts 13 and 14)
THIS ASSIGNMENT (this "Assignment") is made and entered into
as of the ___ day of December ___, 2000, by MOUNT PLEASANT KPT LLC, a Delaware
limited liability company ("Assignor"), to AJS GROUP, LLC, a South Carolina
limited liability company ("Assignee").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree
as follows: 1. Assignor hereby assigns and transfers unto Assignee all of its
right, title, claim and interest in and under:
A. All warranties and guaranties received by Seller from any
third party in connection with the construction or operation of the real
property described in Exhibit A attached hereto (the "Property") and listed in
Schedule 1, to the extent such warranties and guaranties are assignable and
relate solely to the Property;
B. All of the contracts listed in Schedule 2 attached hereto
(the "Service Contracts"), to the extent such warranties and guaranties are
assignable and relate solely to the Property;
C. All plans and specifications, permits, licenses,
governmental approvals, entitlements, development agreements, utility agreements
with any governmental or quasi-governmental entities or agencies relating to the
Property, to the extent each of the foregoing are assignable and relate solely
to the Property.
2. Assignee agrees that to the extent any Service Contract (A) affects
the Property and other real property owned by Assignor, and (B) is not
terminable without cause and without a penalty on 30-days notice (or less),
Assignee, its successors and assigns, shall assume and continue to be bound by
such Agreement for the remaining term of such Service Contract. In such case,
Assignee shall pay to Assignor its prorata share of the costs of the services
provided under such Service Contract, such prorata share being equal to the
percentage expressed as a fraction, the numerator of which is the total acreage
of the Property and the denominator of which is the total acreage of the
property affected by such Service Contract.
3. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
4. This Assignment may be executed in counterparts.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment the day and year first above written.
I-1
ASSIGNOR: MOUNT PLEASANT KPT LLC, a Delaware limited
liability company
By: KPT Properties, L.P., Its Managing Member
By: Konover Property Trust, Inc., Its General Partner
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
ASSIGNEE: AJS GROUP, LLC, a South Carolina limited liability
company
By: _________________________________________________
Xxxxxxx X. Xxxxxxxx, as Trustee of the
Xxxxxx X. Xxxxxxxx AJS Trust, Member
By: _________________________________________________
Xxxxx X. Xxxxx, Member
By: _________________________________________________
WACHOVIA BANK, N.A., as Trustee of the Xxxxxxx
Children's Trust, Member
I-2
EXHIBIT A
Legal Description for Tracts 13 and 14
--------------------------------------
I-3
Schedule 1
List of Warranties and Guaranties
I-4
Schedule 2
Service Contracts
I-5
EXHIBIT J
[FORM OF NOTICE TO TENANTS]
NOTICE TO TENANTS
-----------------
_____________________
_____________________
_____________________
Re: __________________________________
Dear Tenant:
This letter will serve as legal notice, as further described in your
lease, of the changes to the ownership and management company for the referenced
property.
The property was purchased by _____________________________________
from ________________________________________________________. ______________
replaces _________________________________ as the legal Landlord for the
property.
Effective immediately the property will be managed by
______________________ ______________________________________. All payments,
notices, etc. of any kind are to be addressed to:
_____________________
_____________________
_____________________
If you have any questions or require further information regarding this
transition or the property in general, please call _______________________ at
(___) _______________.
Sincerely,
________________________
J-1
EXHIBIT K
ESCROW PROVISIONS
Investment and Use of Funds. The Title Company shall invest any funds
deposited(the "Deposit") and held overnight in government insured
interest-bearing accounts satisfactory to the Company, shall not commingle the
Deposit with any funds of the Title Company or others, and shall promptly
provide the Company with confirmation of the investments made. If the Closing
under this Agreement occurs, the Title Company shall deliver the Deposit to, or
upon the instructions of, the Company on the Closing Date. Provided such
supplemental escrow instructions are not in conflict with this Agreement as it
may be amended in writing from time to time, Member and the Company agree to
execute such supplemental escrow instructions as may be appropriate to enable
Title Company to comply with the terms of this Agreement.
Termination. Upon a termination of this Agreement, either party to this
Agreement may give written notice to the Title Company and the other party of
such termination and the reason for such termination. Upon termination, the
Title Company shall, without further notice or instruction, release the funds
and documents held in escrow to the party who delivered such funds or documents.
Interpleader. Except as specifically provided above, Member and the
Company mutually agree that in the event the Title Company receives conflicting
written instructions regarding funds or documents delivered into escrow, unless
mutual written instructions are received by the Title Company directing
disposition, the Title Company need not take any action, but instead may await
the disposition of any proceeding relating such funds and documents or, at the
Title Company's option, the Title Company may interplead all parties and deposit
such funds and documents with a court of competent jurisdiction in which event
the Title Company may recover all of its court costs and reasonable attorneys'
fees. Member or the Company, whichever loses in any such interpleader action,
shall be solely obligated to pay such costs and fees of the Title Company, as
well as the reasonable attorneys' fees of the prevailing party in accordance
with the other provisions of this Agreement.
Liability of Title Company. The parties acknowledge that the Title Company
is acting solely as a stakeholder at their request and for their convenience,
that the Title Company shall not be deemed to be the agent of either of the
parties, and that the Title Company shall not be liable to either of the parties
for any action or omission on its part taken or made in good faith, and not in
disregard of this Agreement, but shall be liable for its negligent acts and for
any loss, cost or expense incurred by Member or the Company resulting from the
Title Company's mistake of law respecting the Title Company's scope or nature of
its duties. Member and the Company shall jointly and severally indemnify and
hold the Title Company harmless from and against all costs, claims and expenses,
including reasonable attorneys' fees, incurred in connection with the
performance of the Title Company's duties hereunder, except with respect to
actions or omissions taken or made by the Title Company in bad faith, in
disregard of this Agreement or involving negligence on the part of the Title
Company.
Escrow Fee. Except as expressly provided herein to the contrary, the
escrow fee, if any, charged by the Title Company for holding funds and documents
or conducting the Closing shall be shared paid by the Company.
K-1
EXHIBIT L
---------
LIST OF PROSPECTIVE TENANTS
---------------------------
XX Xxxxx
Xxxxxxx Furniture
Birkenstock by Phootloose
Carlyle and Co.
City Grille (Xxxx Xxxxx)
Xxxx & XxXxxxx
Xx. Xxx Xxxxxxx (Orthodontist)
Dress Barn
Earthfare
Ethan Xxxxx
Eye Candy
Gateway
IVS Media, Inc. (Xxxx Xxxxxx)
Jo-Anne's ETC
Kirkland's
Kyoto Express
Xxxxx Xxxxxxxx Shoes
S&K Menswear
Sprint
Storehouse
Suncom
Talbot's Kids
Tango Bay
Verizon
Vino & Xxxx
World of Leather
Zales
L-1
