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CONTRACT OF SALE
THIS CONTRACT OF SALE is made and entered into as of the 25th day of February,
1998, by and between ATLANTIC INCOME PROPERTIES LIMITED PARTNERSHIP ("Seller")
and XXXXX & AVANT PROPERTIES LIMITED PARTNERSHIP ("Purchaser").
ARTICLE I
PURCHASE AND SALE
1.01. DEFINITIONS. As used herein the following terms shall have the
following meanings:
(a) Properties - The following shopping centers, each being
more fully described on the attached EXHIBIT "A": Lincoln Center, Lincolnton,
North Carolina; Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx; and Southwest
Plaza, Roanoke, Virginia. Each of the above shopping centers is a "Property".
(b) Purchase Price - Fifteen Million Eight Hundred Fifty
Thousand Dollars ($ 15,850,000.00). The Purchase Price shall be allocated as
set forth on the attached EXHIBIT "B".
(c) Xxxxxxx Money - One Hundred Thousand Dollars
($100,000.00) letter of credit as hereinafter described.
(d) Escrow Agent - First American Title Insurance Company.
(e) Inspection Period - The period ending on March 10, 1998.
The Inspection Period is subject to a thirty (30) day extension as hereinafter
provided. If the Inspection Period ends on a Saturday, Sunday, or legal holiday
it shall be extended until the end of the next following business day.
(f) Closing Date - March 10, 1998
ARTICLE II
PURCHASE AND SALE
2.01. Seller agrees to sell and Purchaser agrees to buy the Properties
for the Purchase Price subject to the terms and conditions hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
3.01. Seller hereby represents and warrants to Purchaser except as set
forth to the contrary
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herein or on any exhibit hereto, which representations and warranties shall be
deemed made by Seller to Purchaser also as of the Closing Date and shall
survive the Closing, as follows:
(a) At the Closing, Seller will have and will convey to
Purchaser good, indefeasible and marketable fee simple title to each Property,
free and clear of all mortgages, liens, encumbrances, restrictions,
rights-of-way, easements, judgments and other matters affecting title, except
the following matters (hereafter called the "Permitted Exceptions"), provided
they do not interfere with the use of the Property as a shopping center or the
marketability of title: (i) zoning ordinances affecting the Property; (ii)
general utility easements of record; (iii) subdivision restrictions of record;
(iv) current city, state and county ad valorem property and sanitary taxes not
yet due and payable; and (v) leases, other easements, restrictions and
encumbrances specified in this Contract or any exhibit hereto or approved by
Purchaser pursuant to Section 4.01 hereof. Seller shall not take any action
which will adversely affect title to the Properties.
(b) EXHIBIT "C" (the "Lease Exhibit") attached hereto is a
complete and correct list in all material respects of all leases, tenancies,
licenses and other rights of occupancy or use for any portion of the Properties
in effect on the date of this Contract (herein collectively referred to as the
"Tenant Leases"). There are no other leases, tenancies, licenses or other
rights of occupancy affecting the Properties as of the date of this Contract.
Except as set forth in the Lease Exhibit, the rentals and other charges therein
set forth are the actual rentals and other charges presently being collected by
Seller or its agents, and none of the rents or other amounts payable hereunder
have been or shall be assigned, pledged or encumbered other than to the holder
of the mortgages as collateral security therefor, and no rents have been
prepaid for more than one month in advance. Except as set forth in the Lease
Exhibit, to the best of Seller's knowledge, all Tenant Leases are in full force
and effect, and not in default. Except as set forth in the Lease Exhibit, no
brokerage commission is due and unpaid in connection with any Tenant Lease or
renewal thereof and all such commissions and fees, including those shown on the
Lease Exhibit, shall be paid, cashed out and discharged in full by Seller at or
prior to Closing. All documentary stamp tax required for the Tenant Leases has
been paid, or, if not paid, Purchaser shall receive a credit for same at
closing. Except for new leases described in the following paragraph and
consented to by Purchaser, no tenant has been granted any rent-free occupancy
or is entitled to any future rental concessions, credits or reimbursements. All
decorating, installation, alteration or repair work which Seller may be
obligated to perform for any tenant has been performed or will be performed
prior to the Closing Date at the expense of Seller. Except for new leases
described in the following paragraph and consented to by Purchaser, Seller has
paid or will pay prior to the Closing Date the cost and expense of all tenant
improvements and allowances required by the Tenant Leases.
No new leases shall be entered into between now and the Closing without
Purchaser's prior consent, which shall not be unreasonably withheld or delayed.
All leases entered into by Seller between the date hereof and the Closing Date
shall be deemed to be included in the term "Tenant Leases" as it hereinafter
appears.
(c) There are no maintenance, management or other contracts
or agreements affecting the Properties except those which may be terminated on
thirty (30) days' notice or less, and Seller shall disclose and provide copies
of all contracts or agreements affecting the Properties to Purchaser during the
Inspection Period. Between the date hereof and Closing, Seller shall not enter
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into any maintenance, management or other contracts which are not terminable on
thirty (30) days' notice, and Seller shall disclose any such contract(s) to
Purchaser.
(d) The improvements on the Properties are to be conveyed in
an "As Is" condition without warranty by Seller as to their condition, and
Seller's responsibility in connection with the foregoing shall cease at
Closing.
(e) No tenant or other occupant under any of the Tenant
Leases and no other person, firm, corporation or other entity has any right or
option to acquire a Property or any portion thereof or to require expansion of
any of the leased premises except as set forth in the Tenant Leases.
(f) Seller has received no written notice that any zoning,
building, environmental or other law, ordinance, code, order or regulation is
or will be violated by the continued maintenance, operation or use as a
shopping center of any buildings, improvements or structures presently erected
on a Property or by the continued maintenance, operation or use of parking
areas.
(g) Subsequent to the execution of this Contract and until
the Closing, Seller, at its sole cost and expense, at its sole but reasonable
discretion will make all repairs and replacements, structural and
nonstructural, ordinary and extraordinary, required with respect to any portion
of a Property and will operate and maintain the Properties in the normal
manner. Subject to Article VI, Seller shall deliver the Properties at Closing
in substantially the same condition or better than existed at the end of the
Inspection Period.
(b) There is no action, suit or proceeding pending or, to the
knowledge of Seller, threatened against or materially affecting the Properties
or any portion thereof or any of the Tenant Leases or relating to or arising
out of the ownership or operation of the Properties, in any court or before or
by any federal, state, county or municipal department, commission, board,
bureau or agency or other governmental instrumentality.
(i) Prior to the Closing, Seller (i) will give to Purchaser,
its attorneys, accountants, engineers and other representatives, during normal
business hours and as often as may be reasonably requested, full access to any
and all parts of the Properties and to all books, records, tenant leases and
files in Seller's possession relating to the Properties, and (ii) will furnish
to Purchaser all information in Seller's possession concerning the Properties
which Purchaser, its attorneys, accountants, engineers or other representatives
shall reasonably request.
(j) There is no pending condemnation or similar proceeding or
assessment affecting the Properties, or any part thereof, nor to the best
knowledge and belief of Seller, is any such proceeding or assessment
contemplated or threatened by any governmental authority.
(k) The various items of Personal Property included with this
sale, if any, are (or at Closing will be) owned by Seller free and clear of all
liens.
(1) Seller has received no written notice of any default or
breach under any of the covenants, conditions, restrictions, rights-of-way or
easements affecting the Properties or any portion
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thereof which are to be performed or complied with by the owner of the
Properties and which are material to this Contract.
(m) To the best of Seller's knowledge, each Property has been
fully assessed by taxing authorities as a completed project. To the best of
Seller's knowledge, no portion of the Properties is affected by any special
assessments, whether or not a lien thereon, and no such assessment has been
proposed to Seller's knowledge. There is no proceeding pending for the
reduction of the assessed valuation of any portion of the Properties, and no
such proceeding will be instituted by Seller prior to the Closing without the
prior written consent of Purchaser.
(n) There is no agreement requiring Seller to make any
contribution, in the form of dues or otherwise, to a merchants' or tenants'
association or similar organization, or to any tenant, licensee or other
occupancy of any portion of the Properties for advertising or promotion of the
Properties.
(o) Except to the extent disclosed in any environmental audit
delivered by Seller to Purchaser or obtained by Purchaser, Seller has received
no written notice from any governmental agency having jurisdiction and, to the
best of Seller's knowledge, the Properties are free from the presence and/or
harmful effects of any asbestos, toxic, or hazardous substances as defined by
applicable federal, state, or local laws.
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
4.01. The obligation of Purchaser hereunder to purchase the Properties
from Seller is subject to the satisfaction, as of the Closing, of each of the
following conditions (any of which may be waived in whole or in part by
Purchaser at or prior to the Closing):
(a) Purchaser, at Purchaser's sole cost and expense, shall
cause title to be examined and a title company acceptable to Purchaser to issue
and deliver to Purchaser a preliminary title report and commitment for an
extended-coverage Owner's policy in the amount of the Purchase Price (the
"Title Report") accompanied by copies of all recorded documents relating to
liens, easements, rights-of-way, etc., affecting the Properties. Purchaser
shall give Seller written notice before the later of the expiration of the
Inspection Period or the Survey Date (as hereinafter defined) of any objections
to Seller's title as disclosed therein, provided that failure to object to a
lien shall not constitute a waiver of Seller's obligations to satisfy such
lien. Seller shall have the obligation to remove any liens or encumbrances
which are uncontested and may be removed solely by the payment of money. If
there are liens or encumbrances which cannot be removed in accordance with the
terms hereof, Purchaser shall have the option of terminating this Contract, in
which event it shall thereupon become null and void for all purposes, and the
Xxxxxxx Money shall be forthwith returned by Escrow Agent to Purchaser;
otherwise, said condition shall be deemed to be acceptable, and any objection
thereto shall be deemed to have been waived for all purposes. Seller shall not
cause or permit an adverse change in the condition of title after the date
hereof.
(b) Seller, at its sole cost and expense, shall obtain a
current ALTA as-built
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survey of each Property, prepared by a land surveyor licensed in the stab which
the Property located. The survey shall comply with ALTA requirements and shall
be staked on the ground, and the plat shall show the location of all
improvements, highways, streets, roads, railroads, rivers, creeks or other
water courses, fences, easements and rights-of-way on or adjacent to the
Property, if any, and shall contain the surveyor's certification that there are
no encroachments on the Property or onto adjacent lands from the Property and
shall set forth the number of acres comprising the Property. The various
parcels or tracts comprising the Property shall be contiguous. The plat shall
contain a certificate of the surveyor that the Property is not in a flood hazard
area, a flood zone, flood plain or a floodway, or shall locate same thereon.
All easements shall be located on the plat and referenced by recording data.
Purchaser will have until the later of the expiration of the
Inspection Period or five (5) business days following receipt of the survey
(the "Survey Date") to review and approve same. If the survey discloses (i) any
encroachments, (ii) any problems with access, ingress or egress, (iii) any
variations in boundary lines, (iv) the non-contiguity of any parcels of land
comprising the Property or (v) any easements, rights-of-way or other interests
in the Property, which are other than the Permitted Exceptions and which
adversely affects the Property, then Purchaser shall give Seller written notice
of such fact no later than the Survey Date. Seller may, if it so chooses,
promptly undertake to eliminate or modify all such unacceptable portions to the
reasonable satisfaction of Purchaser. If Seller chooses not or is unable to do
so within ten (10) days after receipt of written notice, Purchaser may
terminate this Contract, and the Contract shall thereupon be null and void for
all purposes, and the Xxxxxxx Money shall be forthwith returned by the Escrow
Agent to Purchaser. Purchaser's failure to give Seller such written notice
shall be deemed to be Purchaser's acceptance of the survey.
(c) Seller shall deliver to Purchaser (and Purchaser's
lender, if any) at least five (5) business days prior to Closing an estoppel
letter ("Estoppel Letter") from (i) the "Major Tenants" set forth on the
attached EXHIBIT "D", ALL in form reasonably satisfactory to Purchaser; and
(ii) all of the other Tenants (excluding Xxxxxx Xxxxxx with respect to Southwest
Plaza) (the "Other Tenants") substantially in the form set forth on the
attached EXHIBIT "E" confirming the status of the applicable Lease and any
amendments, the amount of rent at the last payment made, the amount of any
security deposit, that there have been no prepayments of rent, that the
Landlord is not in default under the Lease and the Tenant has no rights to set
off, and such other matters as Purchaser may reasonably request. If Seller,
through no fault of its own, is unable, after reasonable effort, to obtain the
Estoppel Letters, Seller shall not be deemed to have breached this Contract,
but Purchaser shall have the option of terminating this Contract and obtaining
a refund of all Xxxxxxx Money as its sole remedy. Notwithstanding anything
herein to the contrary, this condition shall be deemed satisfied if the
Estoppel Letters are timely signed and delivered by at least ninety percent
(90%) of the Other Tenants of each Property (based on square footage ratios
of the applicable Property, excluding space occupied by the Major Tenants and
excluding Xxxxxx Xxxxxx with respect to Southwest Plaza) and if Seller
certifies and warrants the correctness of the Estoppel Letters of the Other
Tenants who failed to sign Estoppel Letters.
(d) Seller shall have performed, observed and complied with
all of the covenants, agreements and conditions required by this Contract to be
performed, observed and complied with
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by it prior to or as of the Closing.
(e) All of the representations and warranties of Seller set
forth in this Contract and the matters set forth in the tenant estoppel letters
shall be true, to the best of Seller's knowledge, at and as of the Closing in
all material respects as though such representations and warranties and the
statements contained in this Contract and said letters were made at and as of
the Closing.
(f) Seller shall not have made an assignment for the benefit
of creditors or admitted in writing its inability to pay its debts as they
mature or been adjudicated as bankrupt or filed a petition in voluntary
bankruptcy or a petition or answer seeking reorganization or an arrangement
with creditors under the federal bankruptcy law or any other similar law or
statute of the United States or any state, and no such petition shall have been
filed against it.
(g) All instruments and documents required on Seller's part
to effectuate this Contract and the transactions contemplated herein shall be
satisfactory in all reasonable respects to Purchaser and its attorneys.
(h) Xxxxxx Xxxxxx shall have terminated its Lease at
Southwest Plaza.
ARTICLE V
CLOSING
5.01. The consummation of the sale and purchase of the Property
pursuant to this Contract (the "Closing") shall occur on (or, at Purchaser's
option, before) the Closing Date. If the Closing Date falls on a Saturday,
Sunday, or legal holiday it shall be extended to the next following business
day. The Closing shall take place at the offices of Purchaser. At the Closing,
Seller shall as to each Property:
(a) Deliver to Purchaser a duly executed limited warranty
deed, in recordable form, conveying good and marketable title in fee simple to
the Property, free and clear of any and all liens, encumbrances, conditions,
easements, assessments and restrictions except the Permitted Exceptions, any
other exceptions accepted by Purchaser, and subject to the rights of tenants in
possession as Tenants under the leases.
(b) Deliver to Purchaser the following:
(i) An assignment, duly executed and acknowledged by
Seller, in recordable form, assigning to Purchaser all of Seller's right, title
and interest in all Tenant Leases and the full amount of any unforfeited
security deposits as of the Closing Date;
(ii) To the extent such exists in Seller's possession,
any architectural drawings and renderings, building plans and specifications,
and any and all municipal, county, state or local permits or licenses held by
Seller in connection with the Property;
(iii) The tenant estoppel letters (to be delivered five
(5) business days prior
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to Closing);
(iv) An executed counterpart of each of the Tenant
Leases (including all amendments thereto and modifications thereof) or if the
original is unavailable, a certified true copy thereof;
(v) An assignment or assignments, duly executed and
acknowledged by Seller, assigning to Purchaser any subsisting assignable
guaranties and warranties issued in connection with the construction,
improvement, alterations and repair of the Property, together with the original
of each such guaranty and warranty to the extent in Seller's possession;
(vi) To the extent such exists in Seller's possession,
copies of all pertinent records and files relating to the operation and
maintenance of the Property;
(vii) Such affidavits or letters of indemnity as the
title insurance company which is to insure the title to the Property shall
reasonably require in order to issue, without extra charge, policies of title
insurance free of any exceptions for unfiled mechanics', materialmen's or
similar liens;
(viii) A certificate of Seller, dated the Closing Date,
certifying, as of the Closing Date, the aggregate rents then payable under all
of the Tenant Leases then in full force and effect and stating in detail the
respects, if any, in which the information set forth in Lease Exhibit has
changed or is incorrect as of the Closing Date;
(ix) Notices to tenants, in the form approved by
Purchaser, duly executed by Seller and the managing agent of the Property,
advising the tenants of the sale to Purchaser and any changes in management;
(x) An assignment of service contracts which
Purchaser has agreed to accept, permits, licenses, and intangibles including,
without limitation, Seller's right and interest in the name of the subject
Shopping Center;
(xi) An instrument assigning to Purchaser all rights
to funds, if any, then on deposit with any utility company;
(xii) A xxxx of sale transferring all personal
property;
(xiii) A FIRPTA affidavit in a form reasonably
satisfactory to Purchaser;
(xiv) Appropriate resolutions and other evidence
reasonably required by Purchaser and the title company to evidence Seller's
authority to execute and deliver the deed and other documents contemplated
hereby;
(xv) A certification by Seller that all representations
and warranties made by Seller in Article III of this Contract are true and
correct in all material respects on the Closing
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Date, except as may be approved by Purchaser and set forth in such certificate;
provided, however, that Purchaser's right to bring any claim against Seller as
a result of such representations and warranties will expire one (1) year after
the Closing; and
(xvi) All other documents reasonably necessary to
effectuate the transaction.
Upon compliance with the above, Purchaser shall pay the Purchase
Price by wire transfer via the Federal Reserve System (plus or minus the net
adjustments computed hereunder), payable to the order of Seller and/or such
other order as Seller shall have directed by written notice to Purchaser.
5.02. The following shall be adjusted between Seller and Purchaser and
shall be prorated on a per diem basis as of midnight of the day preceding the
Closing Date as to each Property:
(a) Real estate and personal property taxes shall be adjusted
between Seller and Purchaser on the basis of the fiscal year to which they are
applicable. Tax reimbursements from Tenants shall, upon receipt, be equitably
prorated and reimbursed to Seller. Purchaser shall make reasonable efforts to
collect promptly tax reimbursements from the Tenants.
If on the Closing Date, the Property or any part thereof shall
have been affected by or shall be subject to any special tax or assessment,
then, whether or not any such tax or assessment is then a lien on the Property
or any portion thereof or is payable to or on the Closing Date, all unpaid
installments of any such tax or assessment (including those which are to become
due and payable after the Closing shall be deemed to be due and payable prior
to Closing and shall not be apportioned between Seller and Purchaser, but shall
be paid and discharged by Seller at Closing). Provided, however, if such
special assessment is for future improvements Seller may, without liability for
default hereunder, elect not to pay same in which event Purchaser shall have
the option of terminating this Contract (and receiving a refund of the Xxxxxxx
Money) or paying such special assessment.
(b) Water rates and sewer charges or rentals (if not
metered).
(c) Utility charges (including, but not limited to, water
rates and sewer charges or rentals if metered) shall not be apportioned, but
Seller shall cause all utility meters to be read not more than two (2) days
before Closing Date, and Seller agrees to pay promptly after receipt all
utility bills and charges accruing up to and including the day preceding the
Closing Date. If utility deposits are assigned to Purchaser, Seller shall
receive a credit therefor.
(d) Rents and other fixed charges payable and collected under
the Tenant Leases. At the Closing, Seller shall furnish to Purchaser a complete
and correct schedule of all rents and other fixed charges which are then due
and payable but which have not been paid. All such unpaid rents and other
charges for the calendar month in which the Closing occurs and for the calendar
month prior to the calendar month in which the Closing occurs shall be, if
collected, received by Purchaser as trustee for Seller and shall be remitted by
Purchaser to Seller. Purchaser, however, shall have no obligation to Seller to
collect any such unpaid rents or other charges, and all rents and
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other charges collected shall be first applied to current rents and charges
due. Percentage rents, if any, shall be equitably prorated upon receipt based
upon the number of days during the applicable lease year which Seller owned the
Property and the number of days which Purchaser owned the Property. Insurance
reimbursements, CAM charges and the like which are paid after Closing and which
relate to periods prior to Closing shall be paid by Purchaser to Seller
promptly upon receipt by Purchaser. Purchaser shall reasonably cooperate with
Seller in its efforts, including litigation, to collect past-due rents
(including percentage rents, insurance and tax reimbursements, CAM charges and
the like) provided that, in Purchaser's reasonable discretion such cooperation
shall not jeopardize Purchaser's relationship with tenant(s) and further
provided that Purchaser shall not be obligated to incur any expenses in
connection herewith.
5.03. Seller shall give Purchaser a credit for the aggregate amount of
tenant security deposits held by Seller or otherwise outstanding under the
Tenant Leases.
5.04. Seller shall pay for its own attorneys' fees, survey costs, and
deed stamps, transfer or other similar taxes or fees for recording based in
whole or in part upon the consideration for or value of each Property, and
one-half of any escrow fees. Purchaser shall pay for the recording of the deed,
its own attorneys' fees, title examination, title insurance premiums, and
one-half of any escrow fees.
5.05. If the Seller is a "Foreign Person" (as defined in Section 1445
of the Internal Revenue Code, as amended, and the regulations promulgated
thereunder), or if Seller fails to deliver the FIRPTA affidavit hereinbefore
mentioned, or if Purchaser has actual knowledge that such affidavit is false,
Purchaser shall deduct and withhold from the Purchase Price an amount equal to
ten percent (10%) of the Purchase Price as required by the Internal Revenue
Code. Purchaser shall remit such amount to the Internal Revenue Service.
5.06. If applicable state law requires that any of Seller's proceeds
be withheld, then same shall be withheld according to law.
ARTICLE VI
DESTRUCTION OR DAMAGE PRIOR TO THE CLOSING DATE
6.01. Seller shall bear the risk of all loss, destruction or damage to
the Properties or any portion thereof from any and all causes whatsoever to and
including the Closing Date.
6.02. If at any time prior to the Closing Date any portion of the
Properties is destroyed or damaged as a result of fire or any other cause
whatsoever, Seller shall promptly give notice thereof to Purchaser. The rights
and obligations of the parties by reason of such destruction or damage shall be
as follows:
(a) If the "cost of repair and restoration" (which term is
hereinafter defined) necessitated by such destruction or damage shall be Fifty
Thousand Dollars ($50,000.00) or less (per Property), the obligations hereunder
of the parties shall not be affected by such destruction or damage, and
Purchaser shall accept title to the Property in its destroyed or damaged
condition provided that: (i) at the Closing, Seller shall assign to Purchaser
all of Seller's right, title and interest
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in and to the proceeds of any insurance carried by Seller and payable with
respect to such destruction or damage and shall pay to Purchaser the amount of
the "deductible" under the policy; and (ii) the Purchase Price shall be reduced
by the amount, if any, by which the cost of repair and restoration exceeds the
amount of such proceeds available (and the amount of the deductible) for repair
or restoration (less the actual cost of any repairs or restoration performed by
Seller prior to the Closing at Purchaser's request).
(b) If the cost of repair and restoration necessitated by
such destruction or damage shall exceed Fifty Thousand Dollars ($50,000.00) or
if such destruction or damage, even if less than Fifty Thousand Dollars
($50,000.00), results in the termination of a major or credit tenant lease, or
two or more non-credit tenant leases, Purchaser shall have the option either
(i) to accept title to the Property in its destroyed or damaged condition in
accordance with and subject to the provisions of Section 6.02(a)(i) above, or
(ii) to cancel this Contract by giving notice to that effect to Seller and to
the title company not later than ten (10) days after the cost of repair and
restoration is determined (as provided in Section 6.03), and upon the giving of
such notice by Purchaser, this Contract shall be null and void and the parties
shall have no further obligation or liability hereunder except that the Xxxxxxx
Money shall be returned to Purchaser.
6.03. As used in Section 6.02, the term "cost of repair and
restoration" shall mean that amount which is the average of (a) a bona fide
estimate of the actual cost of repair and restoration obtained by Seller within
ten (10) days after such destruction or damage from a reputable contractor
regularly doing business in or near the area in which the Property is located;
and (b) a bona fide estimate of the actual cost of repair and restoration
obtained by Purchaser within ten (10) days after such destruction or damage
from a reputable contractor regularly doing business in or near the area in
which the Property is located.
ARTICLE VII
INSPECTION PERIOD
7.01. During the Inspection Period Purchaser shall be permitted to
enter the Properties and to inspect and evaluate the Properties, to conduct
studies thereon, and to interview Tenants. If Purchaser determines for any
reason that a Property is not suitable for Purchaser's purposes Purchaser may
allow this Contract to terminate, however, such termination shall be as to all
Properties. If Purchaser desires to continue this Contract beyond the
Inspection Period it shall give written notice of same to Seller within the
next business day following the end of the Inspection Period. During the
Inspection Period Seller shall promptly provide Purchaser with information and
documentation (to the extent same is reasonably available) requested by
Purchaser to facilitate its evaluation of the Property. Notwithstanding
anything herein to the contrary, Purchaser may extend the Inspection Period for
an additional thirty (30) days for the sole purpose of resolving the
retenanting of the Xxxxxx Xxxxxx space at Southwest Plaza, provided that
Purchaser gives written notice of such extension prior to the expiration of the
initial Inspection Period. The said written notice shall be accompanied by
reasonable written evidence from Xxxxxx Xxxxxx of its intention to terminate
its leasehold pursuant to terms acceptable to Purchaser, which terms must be
set forth in such writing (such termination being conditioned on the Closing
unless also pursuant to terms acceptable to Seller).
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ARTICLE VIII
ESCROW DEPOSIT
8.01. As security for the obligations of Purchaser and subject to the
terms hereof, Purchaser shall cause a letter of credit in the amount of One
Hundred Thousand Dollars ($100,000.00) to be issued in favor of Escrow Agent
with an expiration date of thirty (30) days past the last possible Closing
Date, which letter of credit shall constitute the "Xxxxxxx Money" hereunder.
Said letter of credit will be issued by a national banking association and
payable upon presentation in the city where Escrow Agent is located and contain
no conditions for payment other than presentation. Upon the execution hereof
Purchaser shall deposit the Xxxxxxx Money with Escrow Agent. At Closing, or in
the event Purchaser has the right to and elects to terminate this Contract or
allows same to terminate as provided herein, Escrow Agent shall return the
Xxxxxxx Money upon receipt of notice of such termination. If this Contract has
not been terminated as aforesaid and if Purchaser then fails to consummate the
purchase of the Properties, the conditions of Purchaser's obligations set forth
in this Contract having been satisfied and Purchaser being in default, Escrow
Agent shall draw upon the Xxxxxxx Money and convert same to cash and
immediately disburse same to Seller and if there is a dispute as to entitlement
Escrow Agent shall deposit said One Hundred Thousand Dollars ($ 100,000.00)
into an FDIC insured interest bearing money market account and shall hold said
sum, in trust, pending resolution of the dispute and subject to the terms and
conditions set forth on the attached EXHIBIT "F". Notwithstanding anything in
this Contract to the contrary, if Escrow Agent receives notice of termination
from Purchaser or Purchaser's attorneys, Xxxxxxxx & Xxxxx, P.A., prior to the
end of the Inspection Period, Escrow Agent shall be and is hereby directed by
Seller to return the Xxxxxxx Money to Purchaser.
ARTICLE IX
BREACH BY SELLER
9.01. In the event Seller shall fail to perform fully and timely any
of its obligations hereunder or shall fail to consummate the sale of the
Properties for any reason, except Purchaser's default, Purchaser may: (a)
enforce specific performance of this Contract, including attorneys' fees, and
(b) pending any action contemplated herein, obtain a refund of the Xxxxxxx
Money and (c) seek and recover damages from Seller including attorneys' fees
and costs; subject, however to the limitation set forth in Section 5.01 (b)(xv)
hereof.
ARTICLE X
BREACH BY PURCHASER
10.01. In the event Purchaser shall fail to consummate the purchase of
the Properties, the conditions to Purchaser's obligations set forth in Article
IV having been satisfied and Purchaser being in default and Seller not being in
default herein, and Seller having complied with all conditions herein, Seller
shall have the right to receive the Xxxxxxx Money and accrued interest from
Escrow Agent, such sum being agreed upon as liquidated damages for the failure
of Purchaser to perform the duties, liabilities and obligations imposed upon it
by the terms and provisions of this Contract, and Seller agrees to accept and
take said cash payment as total damages and as Seller's sole remedy in such
event. It is agreed that Seller's damage would be difficult to ascertain and
the Xxxxxxx
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Money then on deposit with Escrow Agent constitutes a reasonable forecast
thereof and is intended 4, not as a penalty but as full liquidated damages.
ARTICLE XI
REAL ESTATE COMMISSIONS
11.01. Seller shall pay a real estate commission to Berkeley Capital
pursuant to separate agreement, which commission shall be due and payable at
Closing. Each party represents and warrants to the other that it has not dealt
with any other real estate brokers who may claim a fee or commission in
connection with the transactions contemplated hereby as a result of such
party's acts, and shall indemnify and hold the other harmless against any such
claim made by any other broker claiming by, through or under such party. This
provision shall survive the Closing.
ARTICLE XII
MISCELLANEOUS
12.01. This Contract may be assigned by Purchaser to an entity of which
Purchaser is a principal, shareholder, officer, partner, or member, provided
that Purchaser's assignee shall assume all Purchaser's liabilities, obligations
and duties hereunder. On delivery to Seller of an instrument in writing whereby
the assignee assumes all of the provisions of this Contract to be performed by
Purchaser, then, in such event, Purchaser shall be released and discharged of
all further liability hereunder.
12.02. Any notices, requests, or other communications required or
permitted to be given hereunder shall be in writing and shall be either (i)
delivered by hand, (ii) mailed by United States registered mail, return receipt
requested, postage prepaid, (iii) sent by a reputable, national overnight
delivery service (e.g., Federal Express, Airborne, etc.), or (iv) sent by
facsimile (with the original being sent by one of the other permitted means or
by regular United States mail) and addressed to each party at the applicable
address set forth herein. Any such notice, request, or other communication
shall be considered given or delivered, as the case may be, on the date of hand
delivery (if delivered by hand), on the third (3rd) day following deposit in
the United States mail (if sent by United States registered mail), on the next
business day following deposit with an overnight delivery service with
instructions to deliver on the next day or on the next business day (if sent by
overnight delivery service), or on the day sent by facsimile (if sent by
facsimile, provided the original is sent by one of the other permitted means as
provided in this paragraph or by regular United States mail). However, the time
period within which a response to any notice or request must be given, if any,
shall commence to run from the date of actual receipt of such notice, request,
or other communication by the addressee thereof Rejection or other refusal to
accept or inability to deliver because of a changed address of which no notice
was given shall be deemed to be receipt of the notice, request, or other
communication. By giving a least five (5) days prior written notice thereof,
any party hereto may, from time to time and at any time, change its mailing
address hereunder.
12
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Seller: c/o ISC Realty Corporation
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: J. Xxxxxxxxxxx Xxxxx
Telecopy: (000) 000-0000
with copy to: Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esquire
Telecopy: (000) 000-0000
Purchaser: c/x Xxxxx & Avant, Inc.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx X. XxXxxx
Telecopy: (000) 000-0000
with copy to: Xxxxxxxx & Xxxxx, P.A.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esquire
Telecopy: (000) 000-0000
Escrow Agent: First American Title Insurance Company
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esquire
Telecopy: (000) 000-0000
12.03. This Contract shall be construed under and in accordance with
the laws of the State of South Carolina.
12.04. This Contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
12.05. This Contract constitutes the sole and only agreement of the
parties hereto and supersedes any prior understanding or written or oral
agreements between the parties respecting the within subject matter.
12.06. All information furnished by Seller to Purchaser in the course
of its investigation of
13
14
the Properties shall be treated as confidential information and any documents
furnished to Purchaser shall be returned to Seller in the event this Contract
terminates.
SIGNED, SEALED AND DELIVERED as of the date first above set forth.
WITNESSES: XXXXX & AVANT PROPERTIES LIMITED
PARTNERSHIP
/s/ Xxxxx X. Xxxxxx By: E&A General Partner, LLC, general partner
---------------------------
/s/ By: /s/ Xxxx X. Xxxxxxx Xx. (SEAL)
--------------------------- ---------------------------------
Print Name: Xxxx X. Xxxxxxx Xx.
-------------------------------
Title: VP
------------------------------------
ATLANTIC INCOME PROPERTIES
/s/ By: ISC Realty Corporation, general partner
---------------------------
/s/ By: /s/ J. Xxxxxxxxxxx Xxxxx (SEAL)
--------------------------- ---------------------------------
Print Name: J. Xxxxxxxxxxx Xxxxx
-------------------------------
Title: President
------------------------------------
14
15
LEGAL DESCRIPTION COMMITMENT NO. 981039RI
ALL that certain tract or parcel of land, with all improvements thereon and
appurtenances thereunto belonging, lying, being and situated in the City of
Roanoke, Virginia, as more particularly shown on plat of survey made by X. X.
Xxxxxx & Son, Engineers & Surveyors, Ltd., dated August 25, 1988, revised
September 2, 1988, September 9, 1988, September 26, 1988 and September 28,
1988, and entitled "CLASS "A" ALTA/ACSM Land Title Survey For the Prudential
Insurance Company Of America, Showing An 8.07 Ac. Trust Being Composed Of Tract
"A" (5.69 AC.) & Tract "B" (0.49 AC.), May For Southwest Plaza Associated
Limited Partnership, M.B. 1, PG. 593, And Tract "1A" (1.89 AC.), Map For F-M
Associates, A Virginia General Partnership, M.B. 1, PG. 611" and with reference
to said plat (which is being recorded in the Clerk's Office of the Circuit
Court of the City of Roanoke, Virginia), said real estate being more
particularly described as follows:
BEGINNING at a point marked by an iron pin found at the intersection of the
easterly right-of-way line of Virginia Highway Xxxxx 000, Xxxxxxxx Xxxx and the
northerly right-of-way line of Grandin Road Extension, SW, said point being
shown as Number 1 on above referenced plat of survey; thence extending in a
northwardly direction along the easterly right-of-way line of Virginia Xxxxxxx
Xxxxx 000 N 40 (degrees) 30' W 326.70 feet to a point marked by an iron pin set,
said point being shown as Number 2; thence extending along a curve to the left
having a radius of 2974.79 feet and an arc distance of 147.50 feet to a point
marked by an iron pin found, said point being shown as Number 3; thence
extending along a curve to the left having a radius of 2974.79 feet and an arc
distance of 405.23 feet to a point marked by an iron pin set, said point being
shown as Number 4; thence extending along a curve to the right having a radius
of 25.00 feet and an arc distance of 53.986 feet to a point marked by an iron
pin set, said point being shown as Number 5; thence extending in an eastwardly
direction along the southerly right-of-way line of Woodmar Drive, S.W. N 72
(degrees) 22' 00" E 246.34 feet to a point marked by an iron pin set, said point
being shown as Number 6; thence extending in a southwardly direction S 30
(degrees) 49' 00" E 367.68 feet to a point marked by a P.K. Nail set, said point
being shown as Number 7; thence extending in an eastwardly direction N 60
(degrees) 11' E 158.65 feet to a point marked by an iron pin set, said point
being shown as Number 8; thence extending in a southwardly direction S 31
(degrees) 34' E 25.30 feet to a point marked by an iron pin set, said point
being shown as Number 9; thence extending in an eastwardly direction N 60
(degrees) 11' E 333.3 feet to a point marked by an iron pin set, said point
being shown as Number 10; thence extending in a southwardly direction S 29
(degrees) 45' E 397.8 feet to a point marked by a P.K. Nail set, said point
being shown as Number 11; thence extending in a westwardly direction
CONTINUED ON ATTACHED SHEET
SOUTHWEST PLAZA 1 OF 2
16
ATTACHED TO AND MADE A PART OF FIRST AMERICAN TITLE INSURANCE COMPANY
COMMITMENT NO. 981039RI
CONTINUATION
along the northerly right-of-way line of Grandin Road Extension, S.W. S 51
(degrees) 20' 30" W 218.68 feet to a point marked by an iron pin set, said point
being shown as Number 12; thence extending in a northwardly direction N 38
(degrees) 39' 30" W 5.00 feet to a point marked by an iron pin set, said point
being shown as Number 13; thence extending in a westwardly direction S 49
(degrees) 42' 30" W 198.71 feet to a point marked by an iron pin found, said
point being shown as Number 14; thence S 53 (degrees) 02' W 101.42 feet to a
point marked by an iron pin found, said point being shown as Number 15; thence N
79 (degrees) 16' 30" W 54.37 feet to a point marked by an iron pin found, which
point is the point and place of BEGINNING.
Together with the easement for ingress and egress as described in a deed dated
May 19, 1987, between F-M Associates and Southwest Plaza Associates Limited
Partnership recorded in the Clerk's Office of the Circuit Court of the City of
Roanoke, Virginia, in Deed Book 1563, page 1.
SOUTHWEST PLAZA 2 OF 2
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EXHIBIT "A"
ALL that piece, parcel, or tract of land, situate, lying and being in
Berkeley County, South Carolina, and being designated as "Sangaree Plaza," as
shown on a survey entitled "Asbuilt Survey Showing Sangaree Plaza, a 5.789 Ac.
Tract of Land Owned by Atlantic Income Properties, located near the
intersection of U.S. Hwy. 17-A and Sangaree Parkway, Berkeley County, South
Carolina," by Xxxxxx X. Xxxxxxxx S.C.P.L.S. 5933-B, dated December 4, 1992.
The property is more fully described as follows to wit:
To find the point of beginning, locate the intersection of the southern
right of way of U.S. Hwy. 17-A and the eastern right of way of Sangaree
Parkway, thence proceed N 77-50-37 E, a distance of 170' along the right of way
of Hwy. 17-A, to an iron pipe, the point of beginning, thence proceeding along
right xx xxx xx Xxx. 00-X N 7 50 37 E. a distance of 267.29' to an iron pipe,
thence turning and running S 12 12 00 E, a distance of 376.43' to a PK nail,
thence turning and running S 77 48 00 W, a distance of 10.00' to a point, thence
turning and running S 12 12 00 E, a distance of 100.00' to an iron pipe, thence
turning and running S 12 12 00 E, a distance of 101.34' to an iron pipe, thence
turning and running S 49 43 17 W, a distance of 44.92' to an iron pipe thence
turning and running S 11 53 45 E, a distance of 100.27' to an iron pipe, thence
turning and running N 76 15 35 W, a distance of 251.90' to an iron pipe,
thence turning a running N 83 07 07 W, a distance of 282.43' to an iron pipe,
thence turning and running along eastern right of way of Sangaree Parkway, an
arc distance of 329.92' of a counterclockwise curve, having a radius of
1386.21' a chord bearing of N 03 36 24 E and chord distance of 329.15' to a PK
nail, thence turning and running N 77 47 57 E, a distance of 186.66' to an iron
pipe, thence turning and running N 12 12 00 W, a distance of 180.16', to an
iron pipe, the point of beginning.
Said "Sangaree Plaza" as described contains 5.789 acres, more or less.
TOGETHER WITH the non-exclusive right of ingress and egress as provided in that
certain "Non-Exclusive Easement for Ingress and Egress Across a 37.5' proposed
Right-of-Way" to Xxxx X. Xxxxxxx, et al., from Farmington, Incorporated, d/b/a/
the Berkeley Company, dated October 26, 1979, and recorded in Book C130, page
000, XXX Xxxxxx xxx Xxxxxxxx Xxxxxx.
ALSO TOGETHER WITH rights of ingress and egress across an "ingress-egress
easement" as to: "Lot 4, 3.785 Ac."; "Lot 1, 1.095 Ac."; Xxx 0, 0.000 Xx."; xxx
xxxxxx Xxxxxxx Parcel - 4; 0.20 Ac." as shown on Plat entitled "Plat Showing
Sangaree Shopping Center. Said Tract Situate at Intersection of U.S. Highway
17-A and Sangaree Parkway in Second Goose Creek Tax District, Berkeley County,
S.C.", by Xxxx Xxxxxxx, dated May 17, 1982, and recorded
Page 1 of 2 pages
Sangaree 1 of 2
18
EXHIBIT "A"
in Plat Cabinet D, page 395, in said RMC Office. Said ingress and egress
easement across "Lot 4, 3.785 Ac." is not designated on the above referenced
Plat, however, the proposed location across Lot 4 is set forth and is provided
for in Paragraph 3 of that certain "Cancellation of Easement Agreement recorded
in Book C129, page 224; Declaration of Restrictions, Easements, Reciprocal
Easements and Covenants, Subordination of Mortgage," entered into among Xxxx X.
Xxxxxxx, Bi-Lo, Inc., G. Xxxxxx Xxxxxx, Trustee, and Europco Management Company
of America, dated December 11, 1980, and recorded in Book C135, page 57, RMC
Office aforesaid; and "Amendment to Agreement Recorded in Book C135, page 57"
entered into among Parkway Plaza Associates, Xxxx X. Xxxxxxx and Bi-Lo, Inc.,
dated August 13, 1986, and recorded in Book C213, page 184, RMC office
aforesaid.
ALSO TOGETHER WITH all rights and benefits declared, established and granted by
that Agreement dated December 11, 1980, and recorded December 12, 1980, in Book
C135, page 57, as amended by Amendment to Agreement dated August 13, 1986, and
recorded April 27, 1987, in Book C213, page 000, XXX Xxxxxx xxx Xxxxxxxx Xxxxxx.
ALSO TOGETHER WITH drainage easements and all other rights and benefits granted
by Farmington, Inc., d/b/a The Berkeley Company, to Atlantic Income Properties
Limited Partnership under Easement Agreement dated May 31, 1989, and recorded
May 31, 1989, in Book C258, page 000, XXX Xxxxxx xxx Xxxxxxxx Xxxxxx.
Page 2 of 2 pages
Sangare 2 of 2
19
Exhibit A
TRACT 1
BEGINNING at a set iron pin located in the westerly margin of the one hundred
fifty (150) foot right-of-way of U.S. Hwy. 321 By-Pass which iron pin is also
the southeasterly corner of that certain property conveyed to Lincoln Bank by
deed recorded in Book 707 at Page 262 in the Lincoln County Public Registry and
S. 15-00-55 E. conveyed to Xxxx-Xxxxxx Company by deed recorded in Book 683 at
Page 175 in said Registry, thence with the southerly and westerly boundaries of
said Lincoln Bank property (now or formerly), the following four (4) courses
and distances:
(1) S. 75-23-08 W. 112.20 feet to a set iron pin; (2) with the arc of a
circular curve to the right having a radius of 30.00 feet, an arc distance of
46.41 feet, and a chord bearing and distance of N. 60-17-32 W. 41.92 feet to a
set iron pin; (3) N. 15-58-12 W. 52.45 feet to a set iron pin; and (4) with the
arc of a circular curve to the left having a radius of 226.23 feet, an arc
distance of 102.29 feet, and a chord bearing and distance of N. 28-55-25 W.
101.42 feet to a set iron pin; thence S. 75-23-08 W. 34.46 feet to a set iron
pin in the northeast corner of that certain property conveyed to Xxxxxxxx Belk
Company by deed recorded in Book 683 at Page 178 in said Registry and by a
correction deed recorded in Book 711 at Page 264 in said Registry; thence with
the easterly boundary of said Xxxxxxx Xxxx property (now or formerly) the
following five (5) courses and distances:
(1) With the arc of circular curve to the right having a radius of 196.23 feet,
an arc distance of 101.54 feet, and a chord bearing and distance of S. 31-40-02
E. 100.42 feet to a set iron pin; (2) S. 75-23-08 W. 32.03 feet to a set iron
pin; (3) S. 16-00-01 E. 80.60 feet to a set iron pin; (4) with the arc of a
circular curve to the right having a radius off 255.50 feet, an arc distance of
75.49 feet, and a chord bearing and distance of S. 07-30-19 E. 75.22 feet to a
set iron pin; and (5) S. 00-57-35 W. 88.01 feet to a set iron pin in the
southeasterly corner of said Xxxxxxxx Belk property; thence along and with the
southerly boundary of said Xxxxxxxx Belk property the following three (3)
courses and distances:
(1) S. 75-23-08 W. 207.90 feet to a set iron pin; (2) N. 58-32-21 W. 49.98 feet
to a set iron pin; and (3) S. 75-23-08 W. 294.56 feet to a set iron pin in the
southwesterly corner of said Xxxxxxxx Belk property; thence S. 75-01-16 W.
53.25 feet to an existing concrete monument located in the easterly line of
property conveyed to the County of Lincoln by deed recorded in Book 607 at Page
691; thence with the easterly boundary of said Lincoln County property (now or
formerly) S. 13-37-39 E. 94.68 feet to a set iron pin in the northwesterly
corner of that certain property conveyed to WalMart Properties by deed recorded
in Book 683 at Page 166 in the Lincoln
Lincoln 1 of 5
20
County Public Registry; thence with the northerly line of said WalMart property
(now or formerly) the following five (5) courses and distances:
(1) N. 75-23-08 E 220.44 feet to a set iron pin; thence (2) S. 14-36-52 E. 60.00
feet to a set iron pin; (3) N. 75-23-08 E. 130.00 feet to a set iron pin; (4)
N. 41-56-44 E. 63.51 feet to a set iron pin; and (5) N. 75-23-08 E. 226.96 feet
to a set iron pin located in the westerly boundary of that certain property
conveyed to Xxxxx X. Xxxxx and Xxxxxx X. Xxxxx by deed recorded in Book 695 at
Page 115 in said Registry; thence with the western and northern lines of said
Green property (now or formerly) the following five (5) courses and distances:
(1) With the arc of a circular curve to the right having a radius of 675.00
feet, and arc distance of 58.47 feet, and a chord bearing and distance of N.
01-31-19 W. 58.45 feet to a set iron pin; (2) N. 00-57-35 E. 100.22 feet to a
set iron pin; (3) with the arc of a circular curve to the right having a radius
of 312.50 feet, an arc distance of 19.17 feet, and a chord bearing and distance
of N. 00-47-51 E. 19.17 feet to a point; (4) with the arc of a circular curve
to the right having a radius of 10.00 feet, an arc distance of 13.60 feet, and
a chord bearing and distance of N. 36-24-55 E. 12.58 feet to a set iron pin;
and (5) N. 75-23-08 E. 144.06 feet to a set iron pin located in the
northeasterly corner of said Green property and in the westerly margin of the
one hundred fifty (150) foot right-of-way of said X.X. Xxxxxxx #000 By-Pass;
thence with the westerly margin of said right-of-way N. 15-00-55 W. 60.00 feet
to a set iron pin which is the point or place of BEGINNING and containing 2.14
acres as shown on a survey of Lincoln Center prepared by E.S.P. Associates,
P.A., dated February 15, 1989 and last revised on April 5, 1989, said property
being subject to a 30-foot permanent access easement as described in that
certain instrument recorded in Book 683 at Page 180 in the Lincoln County
Public Registry.
TRACT 2
BEGINNING at a point marked by a set iron pin which is located in the westerly
margin of the one hundred fifty (150) foot right-of-way of U.S. Highway #321
By-Pass and in the southeasterly corner of the property conveyed to Xxxx-Xxxxxx
Company by a deed recorded in Book 683 at Page 175 of the Lincoln County Public
Registry; thence along the southerly and westerly boundaries of said
Xxxx-Xxxxxx property (now or formerly) the following three (3) courses and
distances:
(1) S. 75-23-08 W. 204.00 feet to a set iron pin in the southwesterly corner of
said Xxxx-Xxxxxx property; (2) with the arc of a circular curve to the right
having a radius of 185.45 feet, an arc distance of 43.99 feet, and a chord
bearing and distance of N.
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Lincoln 2 of 5
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21-10-25 W. 43.88 feet; and (3) N. 14-22-43 W. 309.05 feet to a set iron pin
located in the northwesterly corner of said Xxxx-Xxxxxx property and in the
southerly margin of the sixty (60) foot right-of-way of Xxxxxx Road (S.R. 1267);
thence with the southerly margin of said right-of-way N. 75-50-03 W. 351.19 feet
to a 1 inch iron pipe; thence S. 20-05-43 W. 715.59 feet to a 1/2 inch iron
pipe; thence s. 32-28-03 E. 319 feet to an existing concrete monument which also
marks the northwesternmost corner of Tract 1 described above; thence N. 75-01-16
E. 53.25 feet to a set iron pin in the southwesternmost corner of the property
conveyed to Xxxxxxxx Belk Company by deed recorded in Book 683 at Page 178 in
the Lincoln County Public Registry and by a correction deed recorded in Book 711
at Page 264 in said Registry; thence along and with the westerly and northerly
boundaries of said Xxxxxxxx-Xxxx property (now or formerly), the following six
(6) courses and distances:
(1) N. 14-36-52 W. 313.41 feet to a set iron pin in the northwesterly corner of
said Xxxxxxxx Belk property; (2) N. 75-23-08 E. 75.20 feet to a set iron pin;
(3) S. 54-40-35 E. 93.88 feet to a set iron pin; (4) N. 75-23-08 E. 158.64 feet
to a set iron pin; (5) N. 15-34-38 E. 67.61 feet to a set iron pin; (6) N.
75-23-09 E. 276.61 feet to a point located in the western line of that certain
parcel conveyed to Lincoln Bank by deed recorded in Book 707 at Page 262 in the
Lincoln County Public Registry; thence with the westerly and northerly
boundaries of said Lincoln Bank property (now or formerly) N. 16-53-33 W. 6.01
feet to a set iron pin in the northwesterly corner of said Lincoln Bank
property; and N. 75-23-08 E. 167.43 feet to a set iron pin located in the
westerly margin of the one hundred fifty (150) foot right-of-way of X.X. Xxxxxxx
#000 By-Pass; thence the westerly margin of said right-of-way N. 15-00-55 W.
64.00 feet to a set iron pin which marks the point or place of BEGINNING and
containing 7.62 acres as shown on survey of Lincoln Center prepared by E.S.P.
Associates, P.A. dated February 15, 1989 and last revised April 5, 1989.
TRACT 3
BEGINNING at a 1 inch iron pipe located in the southerly margin of the sixty
(60) foot right-of-way of Xxxxxx Road (SR 12670, which iron pipe also marks the
northernmost point of Tract 2 as described above, thence with the southerly
margin of said right-of-way N. 75-50-03 W. 96.45 feet to an existing iron pin in
the northeasterly corner of that certain property conveyed to Xxxxxxx X. Xxxxxxx
and wife, Xxxxxx X. Xxxxxxx, by deed recorded in Book 587 at Page 635 of the
Lincoln County Public Registry; thence with the easterly boundary of said
Xxxxxxx property (now or formerly) and with the easterly boundary of that
certain property conveyed to Xxxxxxx X. Xxxxxxx and J. Xxxxxxxx Xxxxxxx by deed
recorded in Book 331 at Page 521 in said Registry, S. 20-05-43 W. 632.18 feet to
a set iron pin located in the easterly boundary of the property conveyed to
- 3 -
Lincoln 3 of 5
22
the County of Lincoln by Deed recorded in Book 607 at Page 691 in the Lincoln
County Public Registry; thence with the easterly boundary of said County of
Lincoln property (now or formerly) S. 32-28-03 E. 120.82 feet to a 1/2 inch iron
pipe which marks the westernmost point of Tract 2 as described above; thence
with the northwesterly boundary of said Tract 2 N. 20-05-43 E. 715.59 feet to a
one inch iron pipe located in the southerly margin of the sixty (60) foot
right-of-way of Xxxxxx Road (SR 1267), the point or place of BEGINNING and
containing 1.48 acres as shown on survey prepared by E.S.P. Associates, P.A.
dated February 15, 1989 and last revised April 5, 1989.
TRACT 4
BEGINNING at an iron pin marking the southwest corner of the property conveyed
to WalMart Properties by deed recorded in Book 683 at Page 166 in the Lincoln
County Public Registry and running thence with the southerly line of said
Walmart property (now or formerly), N. 74-55-00 E. 40.01 feet to a point in the
northwesterly corner of that certain property conveyed to Xxxxxxx X. Xxxxxxx and
J. Xxxxxxxx Xxxxxxx be deed recorded in Book 331 at Page 521 in said Registry;
thence with the westerly line of said Xxxxxxx property (now or formerly) S.
13-37-39 E. 902.15 feet to a point in or near the center line of Mill Creek;
thence with said center line of Mill Creek in two calls as follow: (1) S.
88-33-03 W. 30.57 feet to a point; and (2) N. 86-23-04 W. 10.59 feet to a point
in the easterly line of the property of the County of Lincoln (now or formerly)
as described in deed Book 607 at Page 691 in the Lincoln County Public Registry;
thence with said easterly line of the Lincoln County property N. 13-37-39 W.
passing a double Poplar Tree at 35.75 feet, a total distance of 891.54 feet to
the point of BEGINNING, and containing 0.82 acres as shown on a survey prepared
by E.S.P. Associates of Lincoln Center dated February 15, 1989 and last revised
April 5, 1989, reference to which is hereby made.
The above tracts or panels of land are conveyed together with access rights
granted from the Department of Transportation under that certain Agreement
entitled "State Project 6485" recorded in Book 683 at Page 512, Lincoln County
Registry and also together with a 50 foot wide permanent non-exclusive easement
for the construction and maintenance of a highway access and service road
reflected on the above described survey adjacent to the southeast corner of the
property conveyed to the WalMart Properties by deed recorded in Book 683 at Page
166 in the Lincoln County Public Registry, said non-exclusive easement being
described as follows:
BEGINNING at an iron pin in the southeast corner of said WalMart property (nor
or formerly), and in the westerly margin of the one hundred fifth (150) foot
right of way of U.S. Highway No. 321 By-Pass and running thence with the
westerly edge of said right-of-
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Lincoln 4 of 5
23
way S. 15-00-55 E. 115.00 feet to a point; thence S. 74-55-00 W. 50.00 feet to
a point; thence N. 15-00-55 W. 115 feet to a point; thence N. 74-55-00 E. 50.00
feet to a point of BEGINNING; SAID EASEMENT ties into rights and duties imposed
by that certain document designated Easements With Covenants and Restrictions
Affecting Land as found recorded in Book 683 at Page 187 in the Lincoln County
Public Registry and as amended in Book 707 at Page 281 of said Registry, and the
PARCELS DESCRIBED ABOVE are conveyed together with and subject to the rights,
easements, covenants and restrictions as set forth in the instruments just
referred to.
The above tracts or parcels of land are conveyed (i) together with and subject
to that certain 20 feet utility easement running along the easterly boundary of
Tract 2 as described herein and along the westerly margin of the one hundred
fifty (150) foot right-of-way of said U.S. Highway #321 By-Pass, (ii) together
with and subject to that certain two foot street widening easement as reserved
in that certain Deed to Lincoln Bank recorded in Book 707 at Page 262 of said
Registry, (iii) together with that certain appurtenant 20 foot sanitary sewer
right-of-way granted by the County of Lincoln by instrument recorded in Book 687
at Page 682 in the Lincoln County Public Registry, (iv) together with and
subject to those certain easements, conditions and restrictions contained in
that certain Easements with Covenants and Restrictions Affecting Land recorded
in Book 683 at Page 187 of said Registry and amended by that certain Second
Amendment to Easements with Covenants and Restrictions Affecting Land recorded
in Book 707 at Page 281 of said Registry, and (v) together with and subject to
the easements and conditions contained in that certain Construction and
Operating Agreement, a memorandum of which is recorded in Book 707 at Page 284
of said Registry.
- 5 -
Lincoln 5 of 5
24
EXHIBIT "B"
Purchase Price Allocation
Lincoln Center $5,748,155.00
Sangaree Plaza $4,413,618.00
Southwest Plaza $5,688,227.00
25
EXHIBIT "C"
Lease Exhibit
26
1/27/98 LAT XXXXXX & ASSOCIATES, INC.
User: XXXXXX Commercial Rent Roll Page: 1
Property: SANGAREE PLAZA SHOPPING CENTER Report Date From: 1/01/98 to 1/31/98
XXXXXXXXX, XX 00000-0000
TERM PRORATED BASE RENT BASE RENT
SQ. FOOT ------------------ UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
-------------------------- ------------ --------- ------------------ --------- ---------- --------- --------- ---------
FEDERAL CREDIT UNION (ATM) 315-100 0 11/01/86 10/31/98 760.00 9,120.00 0.00 11/01/97 760.00
GENE DRY CLEANING 315-101 2,400 10/01/87 2/28/00 2,100.00 25,200.00 10.50 3/01/97 2,100.00
3/01/98 2,150.00
3/01/99 2,200.00
ALL TRANSPORTATION SERVICES 315-102 1,200 2/01/94 1/31/00 925.00 11,100.00 9.25 2/01/97 925.00
2/01/98 950.00
2/01/99 975.00
SANGAREE LIQUORS 315-103 1,200 10/01/89 4/30/99 1,025.00 12,300.00 10.25 5/01/97 1,025.00
5/01/98 1,125.00
*** VACANT *** 315-104 2,000 0.00 0.00 0.00 - 0.00
CERISE'S CARD & PARTY SHOP 315-105 2,000 11/01/95 1/31/99 1,333.33 15,999.95 8.00 11/01/97 3,333.33
CHEROKEE STATION 315-106 2,000 10/21/94 10/10/99 1,333.33 15,999.95 8.00 11/01/97 3,333.33
11/01/98 3,416.67
REVCO DRUG #2580 315-107 8,450 8/01/81 7/31/01 3,696.87 44,362.84 5.25 8/01/83 3,697.87
BI-LO STORE #123 315-108 37,696 8/10/80 5/31/13 24,130.45 289,641.40 7.69 5/01/93 24,136.45
ATLANTIC FAMILY DENTAL 315-109 2,000 5/01/94 4/30/98 2,166.67 26,000.04 13.00 5/01/93 2,166.67
------- ------ ------- ------- --------- ---------- ----- ------- ---------
TOTALS 56,946 37,478.65 449,743.80 7.90
Total Occupied Square Feet 56,968
Total Vacant Square Feet 2,000
------- ------ ------- ------- -------- ---------- ----- ------- ---------
GRAND TOTALS 56,942 37470.65 449,743.80 7.90
Total Occupied Square Feet 56,968
Total Vacant Square Feet 2,000
CAM AND INS
-- EXPENSE -- --REAL ESTATE TAX-- --- OTHER INCOME --- ----GROSS RENTS-----
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
-------------------------- ------------- --------- -------- -------- ------ -------- -------- ---------
FEDERAL CREDIT UNION (ATM) 0.00 0.00 0.00 0.00 0.00 0.00 0.00 740.00
GENE DRY CLEANING 114.00 0.58 136.00 0.53 0.00 0.00 11.61 2,322.00
ALL TRANSPORTATION SERVICES 58.00 0.58 53.00 0.53 0.00 0.00 10.36 1,036.00
SANGAREE LIQUORS 58.00 0.58 53.00 0.53 0.00 0.00 11.36 1,136.00
*** VACANT *** 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
CERISE'S CARD & PARTY SHOP 96.67 0.58 68.33 0.53 0.00 0.00 9.11 1,518.31
CHEROKEE STATION 96.67 0.58 68.33 0.53 0.00 0.00 9.11 1,518.31
REVCO DRUG #2580 70.42 0.10 0.00 0.00 0.00 0.00 6.35 3,767.28
BI-LO STORE #123 750.00 0.24 0.00 0.00 0.00 0.00 7.92 24,896.45
ATLANTIC FAMILY DENTAL 96.67 0.58 68.33 0.53 0.00 0.00 14.11 2,351,67
-------- ------ ------ ---- ---- ---- ----- ---------
TOTALS 1,342.41 0.27 476.95 0.10 0.00 0.00 0.00 39,298.07
-------- ------ ------ ---- ---- ---- ----- ---------
-------- ------ ------ ---- ---- ---- ----- ---------
GRAND TOTALS 1,342.41 0.27 476.95 0.10 0.00 0.00 0.00 39,298.07
27
1/27/98 LAT XXXXXX & ASSOCIATES, INC.
User: XXXXXX Commercial Rent Roll Page: 1
Property: SANGAREE PLAZA SHOPPING CENTER Report Date From: 1/01/98 to 1/31/98
XXXXXXXXX, XX 00000-0000
TERM PRORATED BASE RENT BASE RENT
SQ. FOOT ------------------ UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
-------------------------- ------------ --------- ------------------ --------- ---------- --------- --------- ---------
KEY EHY OF ROANOKE, INC. 25-1 5150 9/01/92 4/30/03 2,401.00 29,772.00 5.56
5/01/98 2,576.08
5/01/99 2,711.67
5/01/00 2,807.25
PARTNER'S INK 25-4 3590 1/01/90 12/31/99 2,019.38 24,232.56 6.75 1/01/98 2,019.38
1/01/99 2,094.36
WOOD'S SENTRY HARDWARE 25-7 11,145 7/01/87 6/30/03 4,642.00 55,703.95 4.91
*** VACANT *** 25-17 900 825.00 0.00 0.00
XXXXXX XXXXXX #44 25-15 30,450 12/01/87 3/04/08 1,9031.25 228,375.00 7.50 8/01/89 19,031.25
RENCO DISCOUNT DRUG #000 00-00 00,678 12/01/74 3/31/02 8,097.48 97,169.76 9.10 4/01/97 8,097.44
WINDSOR GIFTS, INC. 25-21 1,250 7/01/97 9/30/00 2,145.83 13,749.96 11.00 10/01/97 1,146.83
10/01/98 1,197.91
10/01/99 1,250.00
MENBER ONE FEDERAL C.O. 25-29 3,935 1/06/97 1/31/07 3,771.00 45,252.48 11.50 2/01/97 3,771.01
2/01/98 3,853.02
2/01/99 3,935.00
2/01/00 4,016.98
2/01/01 4,098.91
2/01/02 4,180.91
2/01/03 4,262.92
2/01/04 4,349.90
2/01/05 4,426.88
2/01/06 4,508.85
STATE FARM INSURANCE 25-31 1,560 5/01/97 4/30/02 590.50 71,914.00 7.65 5/01/97 994.50
5/01/98 1,072.50
5/01/99 1,150.50
5/01/00 1,226.50
5/01/01 1,306.50
*** VACANT *** 25-43 1,800 1,650.00 0.00 0.00 0.00
TRAVEL NETWORK 25-49 1,000 12/01/94 11/30/00 1,025.00 12,300.00 12.30 12/01/97 1,025.00
12/01/98 1,050.00
12/01/99 1,075.00
XXXXXX & XXXXX DRY CLEANING 25-31 1,20 9/01/94 10/31/00 1,150.00 13,800.00 11.50 11/01/97 1,150.00
11/01/98 1,200.00
CAM AND INS
-- EXPENSE -- --REAL ESTATE TAX-- --- OTHER INCOME --- ----GROSS RENTS-----
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
-------------------------- ------------- --------- -------- -------- ------ -------- -------- ---------
KEY EHY OF ROANOKE, INC. 178.97 0.40 110.83 0.38 0.00 0.00 6.35 2,830.80
PRINTER'S INK 197.44 0.66 118.47 0.63 0.00 0.00 8.06 2,405.29
WOOD'S SENTRY HARDWARE 623.98 0.86 515.61 0.63 0.00 0.00 5.18 4,895.57
**** VACANT *** 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
XXXXXX XXXXXX #44 1,244.00 0.49 1,725.00 0.68 0.00 0.00 8.67 22,000.25
RENCO DISCOUNT DRUG # SHOP 418.22 0.47 0.00 0.00 0.00 0.00 9.57 8,515.70
XXXXXX GIFTS, INC. 68.75 0.66 65.63 0.63 0.00 0.00 12.29 1,280.21
MEMBER ONE FEDERAL C.U. 196.75 0.60 219.70 0.67 0.00 0.00 12.77 4,187.89
STATE FARM INSURANCE 85.10 0.66 81.90 0.63 0.00 0.00 8.94 1,262.20
*** VACANT *** 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
TRAVEL NETWORK 54.59 0.66 52.50 0.63 0.00 0.00 13.59 1,132.49
XXXXXX & XXXXX DRY CLEANING 66.00 0.66 63.00 0.63 0.00 0.00 12.79 1,279.00
28
1/27/98 LAT XXXXXX & ASSOCIATES, INC.
User: XXXXXX Commercial Rent Roll Page: 2
Property: SOUTHWEST PLAZA Report Date From: 1/01/98 to 1/31/98
XXXXXXXXX, XX 00000-0000
TERM PRORATED BASE RENT BASE RENT
SQ. FOOT ------------------ UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
-------------------------- ------------ --------- ------------------ --------- ---------- --------- --------- ---------
MAILBOXES ETC., USA 25-55 1,200 7/01/90 7/31/98 1,100.00 13,200.00 11.00 9/01/97 1,100.00
FIVE-BORO BAGELS 25-57 1,400 3/15/94 2/28/99 1,225.00 14,700.00 10.50 3/01/97 1,225.00
3/01/98 1,254.17
COMMERCIAL CREDIT CORP. 25-60 1,400 8/12/96 8/31/01 1,283.33 15,399.96 11.00 9/01/96 1,263.33
9/01/98 1,312.50
9/01/99 1,341.67
9/01/00 1,370.83
CLASSIC DESIGNERS 25-63 3,200 6/15/98 11/30/98 2,666.67 32,000.04 10.00 12/01/95 2,646.67
FHY PEDDLER BICYCLE SHOP 25-67 1,200 1/01/01 12/31/97 700.00 8,400.00 7.00 8/01/96 700.00
CHINA GARDEN 26-69 3,600 5/01/88 4/30/05 2,446.00 29,352.00 9.15 5/01/98 2,550.00
5/01/99 2,665.00
5/01/00 2,760.00
5/01/01 2,865.00
5/01/02 2,970.00
FIRESTONE TIRE & RUBBER 25-72 3,250 1/01/76 12/31/00 1,787.50 23,450.00 6.60 9/01/09 1,787.50
B&W TELLER MACHINE 25-73 0 3/03/84 3/31/99 575.00 6,900.00 0.00 4/01/97 575.00
4/01/98 600.00
------- ------ ------- ------- --------- ---------- ----- ------- ---------
TOTALS 48,308 57,649.52 662,099.32 7.73
Total Occupied Square Feet 45,609
Total Vacant Square Feet 2,700
------- ------ ------- ------- -------- ---------- ----- ------- ---------
GRAND TOTALS 88,304 57,649.96 662,099.52 7.73
Total Occupied Square Feet 85,608
Total Vacant Square Feet 2,700
CAM AND INS
-- EXPENSE -- --REAL ESTATE TAX-- --- OTHER INCOME --- ----GROSS RENTS-----
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
-------------------------- ------------- --------- -------- -------- ------ -------- -------- ---------
MAILBOXES ETC., USA 66.0? 0.66 63.00 0.63 0.00 0.00 12.29 1,229.00
FIVE-BORO BAGELS 77.0? 0.66 73.50 0.63 0.00 0.00 11.79 1,375.50
COMMERCIAL CREDIT CORP. 77.00 0.66 73.50 0.63 0.00 0.00 12.29 1,433.83
CLASSIC DESIGNERS 176.00 0.?6 118.00 0.63 0.00 0.00 11.29 3,010.67
FHY PEDDLER BICYCLE SHOP 66.0? 0.?6 ?3.00 0.63 0.00 0.00 8.29 829.00
CHINA GARDEN 333.00 1.11 169.00 0.63 0.00 0.00 9.44 2,?33.00
FIRESTONE TIRE & RUBBER 0.00 0.00 0.00 0.00 0.00 0.00 6.60 1,787.50
B&W TELLER MACHINE 0.00 0.00 0.00 0.00 0.00 0.00 0.00 $ 75.00
-------- ------ ------ ---- ---- ---- ----- ---------
TOTALS 3,794.90 0.52 3,792.64 0.52 0.00 0.00 8.53 62,762.50
-------- ------ ------ ---- ---- ---- ---- ---------
-------- ------ ------ ---- ---- ---- ---- ---------
GRAND TOTALS 3,794.90 0.52 3,792.64 0.52 0.00 0.00 8.53 62,762.50
29
1/27/98 LAT XXXXXX & ASSOCIATES, INC.
User: XXXXXX Commercial Rent Roll Page: 1
Property: LINCOLN CENTER Report Date From: 1/01/98 to 1/31/98
XXXXXXXXX, XX 00000-0000
TERM PRORATED BASE RENT BASE RENT
SQ. FOOT ------------------ UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
-------------------------- ------------ --------- -------- -------- --------- ---------- --------- --------- ---------
WAL-MART #1209 145-201 132,200 12/23/87 0.00 0.00 0.00 0.00
CATO #755 145-203 4,000 3/02/89 2/31/99 4,000.00 __,000.00 0.00 2/01/95 4,000.00
____BARGER'S HALLMARK, INC. 145-211 2,040 1/10/95 3/31/00 2,603.33 31,239.96 11.00 4/03/97 2,603.33
SHOE SHOW #20 145-215 2,800 6/01/88 1/20/99 2,240.00 26,880.00 9.60 2/01/98 2,280.00
XXXX STORES 145-217 64,500 12/23/87 0.00 0.00 0.00 0.00
LINCOLNTON FAMILY
EYECARE, INC. 145-219 1,750 2/01/98 1/31/01 1,604.17 19,250.00 11.00 2/01/99 1,662.50
2/01/00 1,720.83
LITTLE CHINA RESTAURANT 145-221 2,840 2/01/97 1/31/02 2,224.67 26,696.04 9.40 2/01/97 2,224.67
2/01/98 2,386.67
2/01/99 2,485.00
2/01/00 2,603.33
2/01/01 2,731.67
BI-LO STORE #219 145-223 33,000 3/25/89 1/31/09 17,133.33 205,599.96 6.23 2/01/94 17,133.33
2/01/99 17,933.33
REVCO #806 145-225 2,450 2/26/89 2/29/01 4,929.17 59,150.04 7.00 9/01/89 4,929.17
LADIES WORKOUT EXPRESS 145-227 1,620 4/01/97 7/31/02 1,183.33 14,399.96 10.00 8/01/97 1,283.33
8/01/98 1,242.50
8/01/99 1,301.67
8/01/00 1,360.83
8/01/01 1,420.00
ROYAL RENTS #496
(GRP II MGN 145-229 1,600 3/01/89 2/28/00 1,466.67 17,500.04 11.00 3/01/97 1,466.67
3/01/98 1,533.33
3/01/99 1,600.00
GENERAL NUTRITION CENTER 145-231 1,600 3/23/91 3/31/99 1,404.47 17,600.01 11.00 4/01/97 1,466.67
4/01/98 1,533.33
___ IMAGE BEAUTY SALON 145-237 1,400 1/01/92 12/31/00 1,400.00 16,800.00 12.00 1/01/98 1,400.00
1/01/99 1,450.33
LITTLE CAESAR ENTERPRISES 145-239 1,400 3/18/89 12/30/98 1,312.50 15,750.00 11.25 12/01/97 1,312.50
XXXXXX JEWELERS 145-241 1,420 6/01/95 7/31/98 1,360.83 16,329.96 11.50 8/01/97 1,360.83
SUBWAY #3926 145-243 1,600 2/25/89 7/31/98 1,590.16 19,081.92 11.93 8/01/97 1,590.16
CAM AND INS
-- EXPENSE -- --REAL ESTATE TAX-- --- OTHER INCOME --- ----GROSS RENTS-----
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
-------------------------- ------------- --------- -------- -------- ------ -------- -------- ---------
WAL-MART #1209 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
CATO #755 210.00 0.42 280.00 0.56 0.00 0.00 0.98 4,650.00
___BARGER'S HALLMARK, INC. 132.53 0.56 158.57 0.67 0.00 0.00 12.23 2,896.63
SHOE SHOW #20 130.67 0.56 156.33 0.63 0.00 0.00 10.03 2,527.00
XXXX STORES 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
LINCOLNTON FAMILY
EYECARE, INC. 64.58 0.58 97.71 0.67 0.00 0.00 12.73 1,604.17
LITTLE CHINA RESTAURANT 137.27 0.58 158.57 0.67 0.00 0.00 10.65 2,520.12
BI-LO STORE #219 750.00 0.27 0.00 0.00 0.00 0.00 6.50 17,813.33
REVCO #806 268.00 0.38 1.00 0.00 0.00 0.00 7.38 5,197.17
LADIES WORKOUT EXPRESS 68.63 0.58 75.28 0.67 0.00 0.00 11.25 1,331.24
ROYAL RENTS #496
(GRP II MGN 91.63 0.71 61.00 0.51 0.00 0.00 12.23 1,629.34
GENERAL NUTRITION CENTER 74.61 0.56 81.33 0.62 0.00 0.00 12.23 1,630.67
___ IMAGE BEAUTY SALON 65.35 0.56 71.17 0.67 0.00 0.00 13.23 1,541.50
LITTLE CAESAR ENTERPRISES 65.33 0.56 71.27 0.67 0.00 0.00 12.68 3,456.00
XXXXXX JEWELERS 66.27 0.56 71.28 0.67 0.00 0.00 12.73 2,506.38
SUBWAY #3926 74.61 0.56 81.33 0.67 0.00 0.00 13.26 1,750.26
30
1/27/98 LAT XXXXXX & ASSOCIATES, INC.
User: XXXXXX Commercial Rent Roll Page: 2
Property: LINCOLN CENTER Report Date From: 1/01/98 to 1/31/98
XXXXXXXXX, XX 00000-0000
TERM PRORATED BASE RENT BASE RENT
SQ. FOOT ----------------- UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
-------------------------- ------------ -------- -------- ------- ---------- ---------- -------- --------- ---------
GALAXY 91980 345-245 1,420 07/01/91 10/30/99 1,420.00 17,040.00 12.00 11/01/97 1,420.00
11/01/98 1,479.12
LINCOLN MEDICAL CENTER 145-207 2,490 10/01/97 9/30/00 1,867.50 22,410.00 9.00 10/01/97 1,867.50
10/01/98 1,971.25
10/01/99 2,075.00
LINCOLN DRY CLEANER 145-251 1,420 10/01/01 3/31/01 1,124.17 13,090.04 9.50 4/01/96 1,124.17
4/01/98 1,183.33
4/01/99 1,242.50
4/01/00 1,301.60
XXXX ATLANTIC NYNEX MOBILE 000-000 0,420 12/01/95 11/30/98 1,065.00 12,780.00 9.00 12/01/97 1,065.00
OLSTEN STAFFING SERVICES, IN 145-254 1,420 10/15/91 10/14/99 1,105.23 13,262.75 9.34 11/01/97 1,205.21
11/01/98 1,260.05
AMERICAN GENERAL #33000560 145-255 1,200 5/01/89 4/30/01 1,025.00 12,300.00 10.25 5/01/95 1,025.00
5/01/98 1,050.00
5/01/99 1,100.00
5/01/00 1,150.00
BALLY NAIL SALON 145-257 1,280 11/01/96 10/31/99 906.67 10,080.04 8.50 11/01/97 906.67
11/01/98 960.00
-------------------------- ------------ -------- -------- -------- --------- ---------- --------- --------- ---------
TOTALS 275,470 53,101.31 637,215.72 2.31
Total Occupied Square Feet 275,470
Total Vacant Square Feet 0
-------------------------- ------------ -------- -------- -------- --------- ---------- --------- --------- ---------
GRAND TOTALS 275,470 53,101.31 637,215.72 2.31
Total Occupied Square Feet 275,470
Total Vacant Square Feet 0
CAM AND INS
--EXPENSE-- --REAL ESTATE TAX-- --OTHER INCOME-- --GROSS RENTS--
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
-------------------------- -------- -------- -------- -------- ------- -------- -------- ---------
GALAXY 91980 84.02 0.71 60.35 0.51 0.00 0.00 13.22 1,564.37
LINCOLN MEDICAL CENTER 120.35 0.58 139.02 0.67 0.00 0.00 10.25 2,126.87
LINCOLN DRY CLEANER 68.63 0.58 70.20 0.67 0.00 0.00 10.75 1,272.00
XXXX ATLANTIC NYNEX MOBILE 66.27 0.56 71.28 0.67 0.00 0.00 10.23 1,210.55
OLSTEN STAFFING SERVICES, IN 66.27 0.56 71.28 0.67 0.00 0.00 10.57 1,250.78
AMERICAN GREETING #33000560 56.00 0.56 61.00 0.67 0.00 0.00 11.48 1,148.00
BALLY NAIL SALON 75.73 0.71 57.40 0.51 0.00 0.00 9.72 1,036.00
-------- -------- -------- -------- ------- -------- ------- ---------
TOTALS 2,756.91 0.12 1,971.35 0.09 0.00 0.00 2.52 57,829.64
-------- -------- -------- -------- ------- -------- ------- ---------
GRAND TOTALS 2,756.91 0.12 1,971.35 0.09 0.00 0.00 2.52 57,829.64
00
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXXX
LEASE RENEWAL AGREEMENT
THIS LEASE RENEWAL AGREEMENT is made and entered into this 26th day of
AUGUST, 1997, by and between ATLANTIC INCOME PROPERTIES, L.P. ("Landlord"), and
AMERICAN GENERAL FINANCE, INC., D/B/A AMERICAN GENERAL FINANCE, INC. ("Tenant").
The Lease Premises are a part of LINCOLN Center, located in the City of
LINCOLNTON, County of LINCOLN, State of NORTH CAROLINA.
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
APRIL 6, 1989, and
WHEREAS, the parties hereto desire to amend and modify the Lease as
hereinafter set forth:
NOW THEREFORE, by mutual agreement of the parties and in consideration of
the premises and obligations hereinafter set forth, said Lease is hereby amended
and modified as follows:
Landlord and Tenant agree to renew/extend the term of said Lease for a
period of three years and zero months, from MAY 1, 1998 to APRIL 30, 2001.
Base Rent during this period shall follow the schedule below:
Year 1: $1,050.00 monthly; $12,600.00 annually;
Year 2: $1,100.00 monthly; $13,200.00 annually;
Year 3: $1,150.00 monthly; $13,800.00 annually;
The pro rata share of Tenant's triple net charges have been estimated as
follows:
Common Area Maintenance: $52.00 monthly; $624.00 annually
Real Estate Taxes: $67.00 monthly; $804.00 annually
Insurance: $ 6.00 monthly; $ 72.00 annually
If additional space becomes available within the Center which is adjacent
to the Tenant's existing space or on the side of the Center facing Xxxxxx Road,
the Tenant will be given a Right of First Refusal to lease the space. If the
Tenant and Landlord are able to reach a mutually satisfactory agreement, the
Tenant will be permitted to terminate its Lease at the existing location and
relocate within the Center provided that the Tenant is/was not in default of any
lease obligations during the initial term or any subsequent renewal option
periods thereof.
Except as hereby amended, all other terms and conditions of the original
Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease Renewal
Agreement to be duly executed this the day and year first above written.
LANDLORD: Atlantic Income Properties, L.P., A Limited
Partnership
WITNESS: By: ISC Realty Corporation
/s/ BY: /s/ Xxxxx Xxxxx
-------------------------- ----------------------------------------------
Xxxxx Xxxxx, Pres.,
Real Estate Finance
WITNESS: TENANT: American General Finance
/s/ Xxxxxxx X. Xxxx
-------------------------- BY: /s/ Xxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxx ----------------------------------------------
Xxxxx X. Xxxxxxxxx, Vice President
PRINT NAME:
---------------------------------------
32
STATE OF NORTH CAROLINA
COUNTY OF LINCOLN
LEASE RENEWAL AGREEMENT
THIS LEASE RENEWAL AGREEMENT is made and entered into this 8th day of
SEPTEMBER, 1997, by and between ATLANTIC INCOME PROPERTIES, L.P. ("Landlord"),
and XXXXX X. XXXXXXXXX D/B/A LINCOLN DRY CLEANER ("Tenant"). The Lease Premises
are a part of LINCOLN Center, located in the City of LINCOLNTON, County of
LINCOLNTON, State of NORTH CAROLINA.
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
AUGUST 27, 1989, and
WHEREAS, the parties hereto desire to amend and modify the Lease as
hereinafter set forth:
NOW THEREFORE, by mutual agreement of the parties and in consideration of
the premises and obligations hereinafter set forth, said Lease is hereby amended
and modified as follows:
Landlord and Tenant agree to renew/extend the term of said Lease for a
period of three years and zero months, from April 1, 1998 to March 31, 2001.
Base Rent during this period shall follow the schedule below;
Year 1: $1,183.33 monthly; $14,200 annually;
Year 2: $1,242.50 monthly; $14,910 annually;
Year 3: $1,301.66 monthly; $15,620 annually;
The pro rata share of Tenant's triple net charges have been estimated as
follows:
Common Area Maintenance: $61.53 monthly; $738.40 annually
Real Estate Taxes: $79.28 monthly; $951.40 annually
Insurance: $ 7.10 monthly; $ 85.20 annually
Tenant will continue to provide Landlord with a copy of the Monthly
Uniform Waste Manifest throughout this Lease Renewal Agreement.
Except as hereby amended, all other terms and conditions of the original
Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease Renewal
Agreement to be duly executed this the day and year first above written.
LANDLORD: Atlantic Income Properties, L.P., A Limited
Partnership
WITNESS: By: ISC Realty Corporation, Gen. Partner
/s/ BY: /s/ J. Xxxxxxxxxxx Xxxxx
------------------------ ----------------------------------------------
J. Xxxxxxxxxxx Xxxxx
ITS: President
----------------------------------------------
WITNESS: TENANT: Xxxxx X. Xxxxxxxxx d/b/a Lincoln Dry Cleaners
/s/ Xxxxxxx X. Xxxxxxxxx BY: /s/ Xxxxx X. Xxxxxxxxx
------------------------ ----------------------------------------------
PRINT NAME: Xxxxx X. Xxxxxxxxx
---------------------------------------
33
STATE OF VIRGINIA
COUNTY OF ROANOKE
LEASE RENEWAL AGREEMENT
THIS LEASE RENEWAL AGREEMENT is made and entered into this 6th day of
JANUARY, 1998, by and between ATLANTIC INCOME PROPERTIES, L.P. ("Landlord"), and
XXXXXX DRUG COMPANY, INC. D/B/A WOOD HARDWARE ("Tenant"). The Lease Premises are
a part of SOUTHWEST PLAZA Shopping Center, located in the City of ROANOKE,
County of Roanoke, State of VIRGINIA
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
MARCH 1, 1987, and
WHEREAS, the parties hereto desire to amend and modify the Lease as
hereinafter set forth:
NOW THEREFORE, by mutual agreement of the parties and in consideration of
the premises and obligations hereinafter set forth, said Lease is hereby amended
and modified as follows:
Landlord and Tenant agree to renew/extend the term of said Lease for a
period of FIVE (5) years and NO (0) months, from JULY 1, 1998 to APRIL 30, 2003.
Base Rent during this period shall follow the schedule below:
Year 1: $4,642.00 monthly; $55,703.95 annually;
Year 2: $4,642.00 monthly; $55,703.95 annually;
Year 3: $4,642.00 monthly; $55,703.95 annually;
Year 4: $4,642.00 monthly; $55,703.95 annually;
Year 5: $4,642.00 monthly; $55,703.95 annually;
The pro rata share of Tenant's triple net charges have been estimated as
follow:
Common Area Maintenance: $519.97 monthly; $6,239.75 annually
Real Estate Taxes: $595.61 monthly; $7,147.35 annually
Insurance: $104.00 monthly; $1,248.00 annually
Except as hereby amended, all other terms and conditions of the original
Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease Renewal
Agreement to be duly executed this the day and year first above written.
LANDLORD: ATLANTIC INCOME PROPERTIES, L.P.
WITNESS:
/s/ BY: /s/ Xxxxx Xxxxx
------------------------ ----------------------------------------------
ITS: President, ISC Realty Corp GP
---------------------------------------------
WITNESS: TENANT: XXXXXX DRUG COMPANY, INC.
/s/ Xxxx X. Teagell BY: /s/ Xxxxxxx X. Xxxx Pres.
------------------------ ----------------------------------------------
PRINT NAME: Xxxxxxx X. Xxxx
---------------------------------------
34
STATE OF VIRGINIA
CITY OF ROANOKE
LEASE RENEWAL AGREEMENT
THIS LEASE RENEWAL AGREEMENT is made and entered into this 4th day of
NOVEMBER, 1997, by and between ATLANTIC INCOME PROPERTIES, L.P. ("Landlord"),
and K.B.K. ENTERPRISES OF ROANOKE, INC., D/B/A FAMOUS ANTHONY'S ("Tenant"). The
Lease Premises are a part of SOUTHWEST PLAZA SHOPPING Center, located in the
City of ROANOKE, State of VIRGINIA
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
JULY 22, 1992, and
WHEREAS, the parties hereto desire to amend and modify the Lease as
hereinafter set forth:
NOW THEREFORE, by mutual agreement of the parties and in consideration of
the premises and obligations hereinafter set forth, said Lease is hereby amended
and modified as follows:
Landlord and Tenant agree to renew/extend the term of said Lease for a
period of FIVE (5) years and NO (0) months, from MAY 1, 1998 to APRIL 30, 2003.
Base Rent during this period shall follow the schedule below:
Year 1: $2,576.08 monthly; $30,913.00 annually;
Year 2: $2,711.67 monthly; $32,540.00 annually;
Year 3: $2,847.25 monthly; $34,167.00 annually;
Year 4: $2,847.25 monthly; $34,167.00 annually;
Year 5: $2,847.25 monthly; $34,167.00 annually;
The pro rata share of Tenant's triple net charges have been estimated as
follows:
Common Area Maintenance: $149.14 monthly; $1,789.70 annually
Real Estate Taxes: $170.83 monthly; $2,050.02 annually
Insurance: $ 29.83 monthly; $ 357.94 annually
Except as hereby amended, all other terms and conditions of the original
Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease Renewal
Agreement to be duly executed this the day and year first above written.
LANDLORD: Atlantic Income Properties, L.P., A Limited
Partnership
WITNESS: By: ISC Realty Corporation
/s/ BY: /s/ J. Xxxxxxxxxxx Xxxxx
------------------------ ----------------------------------------------
PRINT NAME: J. Xxxxxxxxxxx Xxxxx
---------------------------------------
WITNESS: TENANT: K.B.K. Enterprises of Roanoke, Inc.
d/b/a Famous Anthony's
/s/ BY: /s/ Xxxxxx X. Xxxxx
------------------------ ----------------------------------------------
PRINT NAME: Xxxxxx X. Xxxxx
---------------------------------------
35
STATE OF VIRGINIA
CITY OF ROANOKE
LEASE RENEWAL AGREEMENT
THIS LEASE RENEWAL AGREEMENT is made and entered into this 4th day of
NOVEMBER, 1997, by and between ATLANTIC INCOME PROPERTIES, L.P., A LIMITED
PARTNERSHIP ("Landlord"), and ZONG LE. TONG and YU XXX XXX D/B/A CHINA GARDEN
RESTAURANT ("Tenant"). The Lease Premises are a part of SOUTHWEST PLAZA SHOPPING
Center, located in the City of ROANOKE, County of ROANOKE, State of VIRGINIA
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
OCTOBER 31, 1998, and
WHEREAS, the parties hereto desire to amend and modify the Lease as
hereinafter set forth:
NOW THEREFORE, by mutual agreement of the parties and in consideration of
the premises and obligations hereinafter set forth, said Lease is hereby amended
and modified as follows:
Landlord and Tenant agree to renew/extend the term of said Lease for a
period of FIVE (5) years and NO (0) months, from MAY 1, 1998 to APRIL 30, 2003.
Base Rent during this period shall follow the schedule below;
Year 1: $2,550.00 monthly; $30,600.00 annually;
Year 2: $2,655.00 monthly; $31,860.00 annually;
Year 3: $2,760.00 monthly; $33,120.00 annually;
Year 4: $2,865.00 monthly; $34,380.00 annually;
Year 5: $2,970.00 monthly; $35,640.00 annually;
The pro rata share of Tenant's triple net charges have been estimated as
follows:
Common Area Maintenance: $300.00 monthly; $3,600.00 annually
Real Estate Taxes: $189.00 monthly; $2,268.00 annually
Insurance: $ 33.00 monthly; $ 396.00 annually
If Tenant shall receive a "B" sanitation grade by the local health
department, Tenant shall endeavor to correct any deficiencies noted by that
department in order to receive an "A" grade.
If at any time Tenant receive a "C" sanitation grade and said grade shall
not be raised to a "B" within sixty (60) days, Landlord may, at its sole
discretion, terminate this lease upon thirty (30) days' written notice.
Landlord agrees to not lease to another Chinese restaurant during Tenant's
initial lease term. However, this agreement will be null and void if at any time
Tenant is in default of the Lease Agreement.
Upon submission by Tenant of an Assignment or Sublease for consideration by
Landlord and Landlord's signature, Tenant shall simultaneously deliver to
Landlord the monetary sum of Five Hundred Dollars ($500.00) which shall be an
administrative charge for Landlord's review, investigation and consideration of
Tenant's request for assignment or subleasing. Such sum shall be refundable if
Landlord does not consent to such assignment or subleasing.
36
Except as hereby amended, all other terms and conditions of the original
Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this Lease Renewal
Agreement to be duly executed this the day and year first above written.
LANDLORD: Atlantic Income Properties, L.P., A Limited
Partnership
WITNESS: By: ISC Realty Corporation
/s/ BY: /s/ J. Xxxxxxxxxxx Xxxxx
------------------------ ----------------------------------------------
PRINT NAME: J. Xxxxxxxxxxx Xxxxx
---------------------------------------
WITNESS: TENANT: Zong Xx Xxxx d/b/a China Garden Restaurant
/s/ Xxxxx X. Garden BY: /s/ Zong Xx Xxxx
------------------------ ----------------------------------------------
Notary Public
My Commission Expires
August 31, 1999 PRINT NAME: Zong Xx Xxxx
---------------------------------------
37
EXHIBIT "D"
List of Major Tenants
1. Lincoln Center:
X. Xxxx;
B. Revco;
C. Bi-Lo;
D. Shoe Show;
2. Sangaree Plaza:
A. Bi-Lo; and
B. Revco.
3. Southwest Plaza:
X. Xxxxxx-Xxxxxx;
B. Revco;
X. Xxxxxxxxx Tire; and
X. Xxxx Hardware.
38
EXHIBIT "E"
Form of Estoppel Letter
Edens & Avant Properties Limited Partnership
Xxxxx 000
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
RE: Lease between ____________ as Landlord ("Landlord") (or its predecessor in
interest) and _____________ as Tenant ("Tenant"), which was executed
___________, with respect to ___________ (the "Premises") (the "Lease")
Gentlemen:
Tenant understands that Landlord intends to sell the property which is the
subject of the Lease to Xxxxx & Avant Properties Limited Partnership ("E&A") or
its assignee and in connection with such sale Tenant hereby certifies as
follows:
1. A complete and accurate copy of the Lease, as amended and/or assigned or
subjected to any sublease referenced above, is attached hereto as Exhibit
"A" and there are no other agreements or commitments between Tenant and
Landlord relating to the Premises other than as expressly set forth in the
attached Exhibit "A".
2. The demised premises contains ___________ net rentable square feet.
3. The Lease Commencement Date was __________________.
4. The Lease Termination Date is ____________________.
5. The Lease is in full force and effect.
6. Tenant has accepted possession of the Premises, which have been completed
in accordance with the requirements of the Lease.
7. There is no free rent or other rent concessions and no offsets or credits
against rentals or other monetary obligations under the Lease; there are no
outstanding claims or defenses to enforcement of the Lease; and all of
Landlord's obligations of an inducement nature have been fulfilled.
8. Tenant has the following option(s) to renew or extend the Lease term:
9. Tenant has the following option(s) to terminate the Lease prior to the
Termination Date:
39
10. Tenant has the following option(s) to acquire the Property: St;
11. Tenant has the following option(s) for first right of refusal or first
right of offer on additional space.
12. The monthly base rental is $________ ($________ /psf annually), and rent
has been paid through the date of _________, 1997 and not prepaid
thereafter. Scheduled increases in base rental are as follows: _________.
The base year for calculating operating expenses under the Lease is
__________, and the base year expense amount is $_____ per square foot per
annum. The base tax year is 199_ and the base tax amount is $_______.
13. No breaches or defaults exist under the Lease by Tenant or, to the best of
Tenant's knowledge, by Landlord, and no event has occurred which, after the
passage of time or the giving of notice, would constitute a breach or
default under the Lease or give Tenant any offset right or claims under the
Lease.
14. There are no commissions due and payable with regard to the Lease except:
15. There are not leasing commission agreements between Tenant and any
representative, except:
16. Tenant has paid a security deposit in the amount of $_________ pursuant to
the Lease. [If none, so indicate]
17. The person executing this certification is duly authorized to execute the
same on behalf of Tenant, and this certificate is and shall be binding on
the Tenant, its successors and assigns.
Tenant acknowledges that E&A or its assignee will rely on the statements
contained herein in purchasing the property which is the subject of the Lease.
This certification is for the benefit of E&A and its successors and assigns and
any lender of E&A or its successors or assigns.
TENANT:
Date: ________________ By: ______________________________
Print Name: ______________________
Title: ___________________________
40
EXHIBIT "F"
Escrow Conditions
1. In performing any of its duties hereunder, Escrow Agent shall not incur
any liability to anyone for any damages, losses, or expenses, including, without
limitation, (i) any action taken or omitted upon advice of its legal counsel
given with respect to any questions relating to the duties and responsibilities
of Escrow Agent under this agreement; or (ii) any action taken or omitted in
reliance upon any instrument, including any written notice or instruction
provided for in this agreement. Escrow Agent may rely upon any instrument,
pursuant to clause (ii) in the preceding sentence, as being duly executed,
valid, and effective, and as containing accurate information and genuine
signatures.
2. Notwithstanding anything in this agreement to the contrary, in the event
of a dispute between Seller and Purchaser arising prior to or at the time of the
delivery or other disposition of the Xxxxxxx Money by Escrow Agent pursuant
hereto, which dispute shall be sufficient, in the sole discretion of Escrow
Agent, to justify its doing so, Escrow Agent shall be entitled to tender the
Xxxxxxx Money into the registry or custody of any court of competent
jurisdiction, together with such legal pleadings as it may deem appropriate, and
thereupon Escrow Agent shall be discharged from all further duties and
liabilities under this agreement. Any such legal action may be brought in such
court as Escrow Agent shall determine to have jurisdiction thereof. Escrow
Agent's determination of whether a dispute exists between Seller and Purchaser
shall be binding and conclusive upon all parties hereto, notwithstanding any
contention that no dispute exists. All costs and expenses incurred by Escrow
Agent in taking any action pursuant to this paragraph shall be covered by and
paid pursuant to the indemnification of Escrow Agent contained in the following
paragraph.
3. Purchaser and Seller shall, and do hereby, jointly and severally
indemnify, defend, and hold Escrow Agent harmless from, against, and in respect
of: (i ) any and all demands, judgments, expenses, costs, losses, injuries, or
claims of any kind whatsoever whether existing on the date hereof or hereafter
arising, incurred by Escrow Agent by reason of, from, or in connection with this
agreement or any action taken or not taken by Escrow Agent under or in
connection with this agreement unless such act or failure to act constituted
gross negligence or willful misconduct on the part of Escrow Agent; and (ii) any
and all counsel fees, expenses, disbursements of counsel, amounts of judgments,
demands, assessments, costs, fines, or penalties, and amounts paid in compromise
or settlement, incurred or sustained by Escrow Agent by reason of, in connection
with, or as a result of any claim, demand, action, suit, investigation, or
proceeding (or any appeal thereof or relating thereto or other review thereof)
incident to the matters covered by the immediately preceding clause (i).
4. If Escrow Agent shall notify Seller and Purchaser of its desire to be
relieved of any further duties and liabilities hereunder, then Escrow Agent
shall deliver the Xxxxxxx Money to a successor escrow agent designated by Seller
and Purchaser. If Seller and Purchaser shall fail to agree upon and designate a
successor escrow agent within ten ( 10) days after having been requested by
Escrow Agent to do so, then Escrow Agent shall in its discretion designate the
successor escrow agent. The successor escrow agent designated by Seller and
Purchaser or by Escrow Agent, as the
41
case may be, shall be a bank or trust company having trust powers in good
standing and located in Columbia, South Carolina, and shall agree to be bound by
all the terms and conditions of this agreement. Immediately upon agreement by
the successor escrow agent to be bound by all the terms and conditions of this
agreement, the original Escrow Agent shall be relieved of any and all duties and
liabilities under or in connection with this agreement; provided, however, that
no successor escrow agent shall assume any liability for the acts or omissions
of its predecessor escrow agent(s) hereunder.
5. The agency created in Escrow Agent hereby is coupled with an interest of
Seller and Purchaser and shall be binding upon and enforceable against the
respective heirs, successors, legal representatives and assigns of Seller and
Purchaser. This escrow shall not be revoked or terminated by reason of the
death, incompetency, dissolution, or liquidation of Seller or Purchaser, but
shall continue to be binding upon and enforceable against the respective heirs,
successors, legal representatives and assigns of Seller and Purchaser in the
manner provided herein. In the event of the death, incompetency, dissolution, or
liquidation of Seller or Purchaser, Escrow Agent may rely and act upon any
notices permitted or required to be given hereunder from any person, firm,
partnership, or corporation believed by Escrow Agent in good faith to be the
heir, successor, legal representative or assign of such dissolved or liquidated
party.
6. The address for the receipt of notices and other communications by
Escrow Agent hereunder is as follows:
First American Title Insurance Company
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esquire
Telecopy: (000) 000-0000
