Exhibit 10 (c)
REINSTATEMENT AGREEMENT
THIS REINSTATEMENT AGREEMENT (the "Reinstatement") is made and entered
into by and between Realmark Property Investors Limited Partnership-VIA
("Seller") and Platinum Partners ("Buyer").
WHEREAS, Seller and Buyer entered into a Real Estate Purchase Agreement
dated as of March 1, 2002 (the "Agreement"); and
WHEREAS, Seller and Buyer also entered into several letter agreements
and/or granted extensions with respect to the Agreement at various times
thereafter; and
WHEREAS, subsequently, the Buyer terminated said Agreement pursuant to
its rights of termination under the Agreement; and
WHEREAS, Seller and Buyer wish to reinstate the Agreement on certain
modified terms and conditions.
NOW, THEREFORE, Seller and Purchaser, intended to be bound, and for
mutual and valuable consideration, hereby agree as follows:
1. The Agreement dated March 1, 2002 is hereby reinstated effective
immediately upon execution by Seller and Buyer of this Reinstatement, but
subject to the terms and conditions set forth hereinbelow.
2. The Purchase Price set forth in Section 1(a) of the Agreement is
amended to Three Million Four Hundred Twenty-Five Thousand Dollars
($3,425,000.00). In addition, Buyer agrees to deposit the Xxxxxxx Money called
for under the Agreement with the Escrow Agent in the sum of Twenty-Five Thousand
Dollars ($25,000.00) within two (2) business days after execution of this
Reinstatement. Buyer agrees to deposit the additional Xxxxxxx Money of Sixty
Thousand Dollars ($60,000.00) called for by Section 1(a) of the Agreement unless
Buyer has terminated this Agreement, immediately upon expiration of Buyer's
additional Due Diligence Period which will expire February 26, 2003; Buyer shall
have the rights set forth in the first sentence of subsection (iv) of Section 3
of the Agreement on or before the last day of the additional Due Diligence
Period. The cash due at closing is hereby amended to the difference between the
amended Purchase Price and the amounts on deposit at the time of closing with
the total amount of cash at closing and amounts on deposit of $3,425,000.00 due
in good funds on the Closing Date.
3. The Closing Date is amended to March 26, 2003.
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4. Section 3(a) is amended to provide that Buyer shall have until
February 26, 2003 to complete further due diligence on the Property. Buyer has
waived any further environmental inspection of the Property, with the exception
of an additional mold inspection which will be conducted on or before February
26, 2003. Buyer will conduct any other physical due diligence on or before
February 11, 2003, except for any review of the HVAC, roof, electrical, and mold
inspection as set forth above, all of which shall be completed by February 26,
2003.
5. Buyer agrees to apply promptly for, in good faith, and to use due
diligence, in obtaining a financing commitment in an amount equal to
approximately Eighty Percent (80%) of the total capitalization estimated by
Borrower of Five Million Seven Hundred Thousand Dollars ($5,700,000.00) in order
to complete the acquisition as projected by Buyer which is otherwise on terms
acceptable to Buyer. In the event that the Buyer is unable to obtain such a
commitment by February 26, 2003, Buyer may extend its financing contingency
until March 17, 2003. If said commitment is not obtained by March 17, 2003, then
and in that event, Buyer shall have the right to either (i) terminate the
Agreement upon written notice to Seller given on or before March 17, 2003 and
receive back the xxxxxxx money deposit and the parties shall have no further
rights, obligations, or liabilities under the Agreement, or (ii) extend its
financing contingency for an additional period of thirty (30) days until April
17, 2003, upon written notice to Seller given on or prior to March 17, 2003, and
which said notice shall be accompanied by an acknowledgement that $25,000.00 of
the total Xxxxxxx Money Deposit shall thereafter be nonrefundable and released
to the Seller (although Buyer shall receive a credit against the Purchase Price
if the transaction closes for said amount). Notwithstanding the foregoing, all
of Buyer's Xxxxxxx Money Deposits shall be made by February 26, 2003. Except for
the nonrefundable Xxxxxxx Money Deposit released to Seller if Buyer extends its
financing contingency beyond March 17, 2003, all remaining Xxxxxxx Money
Deposits shall also be nonrefundable after March 17, 2003, except for Buyer's
inability to obtain a financing commitment within the time frame set forth
above, in which event Buyer may terminate this Agreement by delivering written
notice thereof to Seller, and the remaining $60,000.00 of Xxxxxxx Money shall be
immediately delivered to Buyer by the Escrow Agent and the parties shall have no
further rights, obligations, or liabilities under this Agreement. In the event
that Buyer requires the extended time for obtaining a financing commitment, the
Closing Date shall be extended to a date which is 30 days beyond the obtaining
of such commitment or May 8, 2003, whichever is earlier, time being of the
essence.
6. Buyer agrees to complete any further review of title and any survey
of the Property on or before February 26, 2003, and shall make comments and/or
objections to said title and survey on or before March 5, 2003.
7. Section 10 of the Agreement is amended to provide that the
commission payable by Xxxxxxxxxx Investments to Xxxxx Xxxxx is reduced from
$30,000.00 to $15,000.00.
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8. All other terms and provisions of the Agreement are otherwise hereby
reinstated, confirmed, and ratified.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date of acceptance of same by Seller.
PLATINUM PARTNERS
Date: January 29, 2003 By: /s/ Platinum Partners
-------------------------
REALMARK PROPERTY INVESTORS
LIMITED PARTNERSHIP-VIA
Date: January 29, 2003 By: /s/ Xxxxxx X. Xxxxxx
-------------------------
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AGREEMENT OF LEASE ASSIGNMENT AND PURCHASE
between
Real Xxxx Inducon Columbia, L.L.C.
a New York limited liability company
"Seller"
and
KIRCO ACQUISITION LLC
a Michigan Limited Liability Company
"Purchaser"
Date: February 9, 2003
TABLE OF CONTENTS
PAGE
----
1. Agreement of Sale and Purchase.......................................................................2
2. Purchase Price.......................................................................................2
3. Condition of Title...................................................................................4
4. Evidence of Title....................................................................................5
5. Title Objections.....................................................................................5
6. Representations and Covenants of Seller..............................................................6
7. Purchaser's Contingencies...........................................................................13
8. Waiver of Conditions by Purchaser...................................................................18
9. Default by Tenants..................................................................................18
10. Estoppel Certificates...............................................................................18
11. Place and Time of Closing...........................................................................19
12. Closing Documents...................................................................................19
13. Default.............................................................................................20
14. No Assumption of Liabilities........................................................................21
15. Real Estate Brokerage Commission....................................................................22
16. Possession..........................................................................................22
17. Taxes, Prorated Items and Closing Costs.............................................................22
18. Casualty............................................................................................25
19. Condemnation........................................................................................26
20. Use of Words........................................................................................26
21. Notice ...........................................................................................26
22. Governing Law.......................................................................................27
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23. Assignment..........................................................................................27
24. Entire Agreement....................................................................................27
26. Binding Effect......................................................................................27
27. Counterparts........................................................................................27
SIGNATURE PAGE (SELLER)......................................................................................28
SIGNATURE PAGE (PURCHASER)...................................................................................28
EXHIBITS: ...................................................................................................29
A. Real Estate
B. Personal Property
C. Licenses and Permits
D. Rent Roll
E. Contracts
F. Surveyor's Certificate
G. Assignment and Assumption of Leases
H. Assignment and Assumption of Contracts
I. Ground Lease
ii
AGREEMENT OF LEASE ASSIGNMENT AND PURCHASE
------------------------------------------
This Agreement of Lease Assignment and Purchase ("Agreement"), made and
entered into on February 9, 2003, by and between Inducon Columbia, LLC, a
New York limited liability company whose address is 0000 Xxxxx Xxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000 ("Seller"), and KIRCO ACQUISITION LLC, a Michigan
limited liability company, whose address is 000 X. Xxx Xxxxxx Xx., Xxxxx 000,
Xxxx, Xxxxxxxx 00000 ("Purchaser"), is based upon the following:
A. Seller is the owner of the following property (collectively, the
"Property"):
(i) That certain leasehold containing an approximate 9.40 acre
parcel of land located in the foreign trade zone at 101 and 000
Xxxxx Xxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxxxxx 00000 as is more
particularly described on Exhibit A, attached hereto and made a part
hereof, together with a flex office warehouse space in three (3)
buildings containing approximately 90,981 net rentable square feet
commonly known as "Inducon Columbia" located thereon, and all other
leasehold interests in buildings, fixtures and structures thereon
and all improvements, riparian rights, rights of way, roadways,
easements, rights, privileges, and appurtenances thereto
(collectively, the "Real Estate");
(ii) All of the personal property described on Exhibit B, attached
hereto and made a part hereof, and all other equipment, machinery,
furniture and other personal property owned by Seller and located on
or about the Real Estate (collectively, the "Personal Property");
(iii) All of the licenses, permits, approvals, and consents
described on Exhibit C, attached hereto and made a part hereof
(collectively, the "Licenses and Permits");
(iv) All of the leases, licenses, and occupancy agreements
(collectively, the "Leases") of the Real Estate with the tenants
(the "Tenants") listed in the rent roll (the "Rent Roll"), attached
hereto and made a part hereof as Exhibit D; and
(v) All of the interest of the Seller and/or the owner of the Real
Estate in all operating agreements, management agreements, service
contracts, and other agreements described on Exhibit E, attached
hereto and made a part hereof (collectively, the "Contracts").
(vi) All of Seller's rights to purchase additional property which
adjoins the Real Estate.
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B. Seller and Purchaser desire to enter into this Agreement for the
purchase and sale of the Property.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements and subject to the terms and conditions contained herein, the parties
hereto hereby agree as follows:
1. Agreement of Sale and Purchase. Seller agrees to assign and sell to
Purchaser and Purchaser agrees to accept the lease assignment and to purchase
from Seller the Property, upon the terms and conditions hereinafter set forth.
2. Purchase Price. The purchase price for the Property shall be the sum
of Three Million One Hundred Fifty Thousand Dollars ($3,150,000.00) ("Purchase
Price"), payable as follows:
(a) Within ten (10) business days of Purchaser's receipt of a
fully-executed counterpart of this Agreement from Seller (the
"Effective Date"), Purchaser shall deliver to, First American Title
Insurance Company c/o First American Title of the Carolinas LLC (the
"Title Company" or the "Escrow Agent") the sum of FiftyThousand Dollars
($50,000.00) as an xxxxxxx money deposit hereunder (together with any
additional amounts paid by Purchaser to the Title Company pursuant to
the terms hereof, the "Xxxxxxx Money"). The Escrow Agent hereby
acknowledges receipt of the Xxxxxxx Money and agrees to hold the same
in escrow until the closing or sooner termination of this Agreement and
shall pay over and apply the proceeds thereof in accordance with the
terms of this Agreement. If, for any reason, the closing does not occur
and either party makes a written demand upon the Escrow Agent for
payment of the Xxxxxxx Money, the Escrow Agent shall give written
notice to the other party of such demand. If the Escrow Agent does not
receive a written objection from the other party to the proposed
payment within five (5) business days after the giving of such notice,
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the Escrow Agent is hereby authorized to make such payment. If the
Escrow Agent does receive such written objection within such five (5)
day period, or if for any reason the Escrow Agent in good faith shall
elect not to make such payment, the Escrow Agent shall continue to hold
the Xxxxxxx Money until otherwise directed by written instructions from
the parties to this Agreement or until a final judgment (beyond any
applicable appeal period) by a Court of competent jurisdiction is
rendered in disposing of such Xxxxxxx Money.
The Escrow Agent shall be liable as a depository only and its duties
hereunder are limited to the safekeeping of the Xxxxxxx Money and the
delivery of same in accordance with the terms of this Agreement. The
Escrow Agent will not be liable for any act or omission done in good
faith, or for any claim, demand, loss or damage made or suffered by any
party to this Agreement, excepting such as may arise through or be
caused by the Escrow Agent's negligence or willful misconduct. Without
limiting the other rights and remedies of Purchaser hereunder or at law
or in equity and subject to the foregoing escrow provisions, the
Xxxxxxx Money shall be immediately refunded to Purchaser upon the
written request of Purchaser after a default hereunder by Seller. The
Title Company shall invest the Xxxxxxx Money in an interest bearing
account at the direction of and for the account of the Purchaser. All
interest earned on the Xxxxxxx Money shall be paid by the Title Company
to Purchaser except in the case of Purchaser's default or to the Seller
as described below as part of the price paid at closing. If the
transaction contemplated hereby is consummated, the Xxxxxxx Money shall
be applied toward the cash portion of the Purchase Price to be paid by
the Purchaser at closing.
(b) At the closing, Seller shall assume the existing mortgage
loan (the "Existing Indebtedness) of approximately $2,031,900.00 (after
the January, 2003 payment is made) as part of the consideration for
purchase of the Real Estate.
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(c) The balance of the Purchase Price, subject to closing
adjustments and prorations as provided herein, shall be paid by
Purchaser to Seller at closing by means of good federal wire funds
transfer.
3. Condition of Title. Seller shall convey to Purchaser good and
marketable title to all of the Property free and clear of all liens, conditions,
easements, restrictions, mortgages, security interests, leases, exceptions, or
other encumbrances whatsoever; provided, however Seller may convey the Real
Estate subject to:
(a) The fee interest in the property owned by the Landlord
under the groundlease.
(b) The existing indebtedness in undefaulted condition.
(c) The Leases, and such easements and restrictions of record
(the "Existing Exceptions") that do not interfere with Purchaser's
proposed use of the Real Estate (the determination of which shall be
made by Purchaser, in its sole reasonable discretion, following its
receipt of the survey, title commitment and other documents described
in paragraph 4 below); and
(d) Such taxes and assessments as may be a lien upon the Real
Estate but not due and payable as of the Closing Date, and taxes and
assessments which may be assessed or accrue subsequent to the Closing
Date, (collectively, the "Permitted Exceptions").
Leasehold Title to the Real Estate shall be insured in the aforesaid condition,
at closing, by the Title Company. Seller shall provide the Title Company with
such information and shall execute such documents as may be required in order
for the Title Company to provide Purchaser with an "insured closing" through the
date of recordation of the Special Warranty Assignment referenced in paragraph
12 below.
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4. Evidence of Title.
(a) Sellers shall furnish Purchaser with copies of its latest
title policy or commitment together with copies of all title exceptions
it has in its possession or available to it within ten (10) days of the
effective date hereof. Thereafter, Purchaser shall update the title and
order its title insurance commitment. Purchaser and Seller will share
equally the cost of such commitment fee and all of the title premiums.
(b) Seller shall furnish Purchaser with a copy of its latest
"as built" ALTA survey and a certificate of "no change" within ten (10)
days from the effective date hereof. Purchaser will thereafter order
the ALTA survey update and Seller and Purchaser will share equally in
the cost thereof.
(c) The legal description of the Real Estate determined by the
Survey shall be used in connection with all of the documents to be
executed and delivered in connection with the Closing. If the legal
description determined by the Survey is not identical to the legal
description set forth in the Commitment for Title Insurance described
in paragraph 4(a) above, Purchaser shall cause the Commitment for Title
Insurance to be revised so that the legal description used therein is
identical to that determined by the Survey.
(d) Seller acknowledges that Purchaser will cause a Uniform
Commercial Code ("UCC") search to be performed prior to closing with
respect to the Property, Seller and the individuals constituting
Seller. Seller and Purchaser agree to split the cost of such search at
or near closing and to provide at closing any and all fully-executed
UCC-3 Termination Statements terminating any Financing Statements
affecting the Property except that for that related to the existing
indebtedness.
5. Title Objections. If objection to the title is made by Purchaser
that the title is not in the condition required hereunder (but Purchaser shall
not object to the existing indebtedness in current condition), Seller shall have
ten (10) days from the date it is notified in writing of the particular defects
5
claimed to cure such defects to Purchaser's satisfaction, and if Seller is
unable to cure such defects within the aforesaid ten (10) day period, Purchaser
shall have the right, at its option, to (i) waive the defects and proceed with
the closing of this transaction, (ii) terminate this Agreement and receive an
immediate refund of the Deposit in which event neither party hereto shall have
any further liability or obligation hereunder, or (iii) remove any existing
encumbrances upon the Property which Seller is required to remove under this
Agreement by payment out of the cash payment portion of the Purchase Price, at
the time of Closing, of such sums as are required to discharge such encumbrances
or, if Purchaser elects, such encumbrances can be assumed with abatement of the
Purchase Price. Except in the case of mortgages, judgments or liens which shall
be paid out of the purchase price at closing Seller may at its option use its
best efforts to cure any such defects to Purchaser's satisfaction. If Seller
cures such defects to the reasonable satisfaction of Purchaser within the time
specified above, Purchaser agrees to complete the transaction contemplated
hereunder on the later of the Closing Date or the date thirty (30) days after
Seller notifies Purchaser in writing that it has cured such defects, subject,
however, to any and all other conditions of closing set forth in this Agreement.
If Seller does not cure such defect or defects, Purchaser may terminate this
Agreement and receive back its Xxxxxxx Money.
6. Representations and Covenants of Seller. Seller hereby warrants,
represents and covenants to Purchaser that:
(a) Seller owns good, marketable, insurable and unencumbered
leasehold fee simple title to the Real Estate, free and clear of all
liens, conditions, easements, restrictions, mortgages, security
interests, leases, exceptions, and other encumbrances whatsoever except
the existing indebtedness, the Leases, and has not entered into (and
will not enter into) any agreements, oral or written, which would limit
or restrict Seller's right to execute this Agreement or perform its
obligations hereunder or prevent possession by Purchaser of all or any
part of the Property, and Seller is subject to no decree or judgment of
any court that would be so limiting or restrictive;
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(b) There is no application or proceeding pending in any
governmental agency or office which may change the zoning of the Real
Estate or otherwise affect the ability of Purchaser to use and operate
the Real Estate as a office warehouse.
(c) From and after the date hereof, Seller shall not (i)
burden or encumber the Property in any manner whatsoever (whether by
mortgage, security interest, lien, easements, restrictions, or
amendments to the ground lease, or otherwise), (ii) increase the amount
of the Existing Indebtedness or (iii) modify, amend, or change any of
the terms and conditions of the Existing Indebtedness, the Contracts or
the Permitted Exceptions, without in each case the prior written
consent of Purchaser; not withstanding the foregoing, it is understood
and agreed that Seller may continue to lease and/or renew the third
party space leases on the Real Estate provided that Purchasers shall be
notified thereof and given five (5) business days to approve or
disapprove them. Purchasers agree not to unreasonably disapprove such
new third party space leases.
(d) The Property shall be maintained, repaired and replaced by
Seller so that it is delivered by Seller to Purchaser on the Closing
Date in substantially the same condition as exists as of the date of
this Agreement, subject to ordinary wear and tear.
(d1) To the best of Seller's knowledge, all mechanical,
plumbing, electrical, elevators, HVAC, and other systems, fixtures and
equipment are in working order.
(e) No work has taken place or will take place on the Real
Estate in the one hundred twenty (120) day period prior to the Closing
Date which would create in any party a right to a lien against the Real
Estate, or if any such work has taken or will take place, that all
parties involved in such work have been or will be paid in full by
Seller, and Seller has received or will receive appropriate waivers of
lien from all of such parties;
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(f) Seller is a duly organized and validly existing limited
liability company under New York law. Seller has the full right and
power to sell, transfer and convey the Property to Purchaser, and this
Agreement and all instruments executed or to be executed in connection
herewith are, or when executed will be, valid and enforceable against
Seller in accordance with its and their respective terms and
conditions;
(g) The groundlease between Seller and Landlord (the
"groundlease") is not in default and is in full force and effect and
the Seller will provide Buyer with a satisfactory estoppel certificate
at closing.
(h) To the Seller's best knowledge, there are no threatened or
pending condemnation, zoning or any other proceedings or litigation
with respect to the Property, and Seller has not received any written
notice from or been otherwise advised that any governmental authority
has determined or threatens to determine that there are any violations
of any statutes, ordinances or regulations relating to the Property,
and there are no said violations (notwithstanding the foregoing,
Sellers advise Purchaser that some time ago, Sellers learned that the
airport authority had plans and/or considered extending the Airport
Exit for Interstate 26 through the Real Estate. Sellers further advise
that they have not heard discussion of such road extension recently);
(i) To the Seller's best knowledge, there are no assessments
which have been levied, threatened or are pending against the Real
Estate, and Seller has no knowledge of any intended assessments nor any
improvements which have been ordered to be made which have not
heretofore been completed, assessed and paid for;
(j) To the Seller's best knowledge, there are no claims,
demands, damages, actions, causes of action or claims of third parties
which would be a charge or encumbrance against the Property (or
Purchaser as the new owner thereof);
(k) Except for the Permitted Exceptions, the Contracts, and
the Leases there are no leases, agreements, management contracts,
8
license agreements, service agreements, contracts, or arrangements,
oral or written, relating to, affecting or binding on the Property (or
Purchaser as the new owner thereof);
(l) To the best knowledge of the Seller without further
investigation, the Real Estate may be developed, used and occupied as a
flex office warehouse space and the operation of the same in the
foregoing manner will not be prohibited or unduly limited by any
restrictive covenant, ordinance or zoning regulations;
(m) To the best knowledge of the Seller without further
investigation, the Real Estate is serviced by adequate water, sanitary
sewer, storm sewer, electric, telephone and gas utility lines, and the
Real Estate abuts against a public road;
(n) To the best of Seller's knowledge without further
investigation, the Licenses and Permits constitute all of the licenses,
permits, approvals and consents necessary or desirable for the
continued operation of the Property as a office warehouse, and Seller
shall maintain all of the Licenses and Permits in full force and effect
until the Closing Date;
(o) To the Seller's best knowledge without further
investigation, no Hazardous Substance (as hereinafter defined) has been
generated, treated, stored (except in accordance with law), disposed
of, released, or otherwise deposited in, under or on, or is located in,
under or on, the Real Estate nor has (i) any activity ever been
undertaken on the Real Estate which would cause the Real Estate or any
portion thereof to become a hazardous waste treatment, storage or
disposal facility within the meaning of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq., as amended ("RCRA"), or
(ii) there ever been a release or threatened release of any Hazardous
Substance in, on, at or from the Real Estate. As used herein, (x) the
term "Law" means any applicable federal, state, or local law, rule,
regulation, statute, code, ordinance or order, (y) the term "Hazardous
9
Substance" means asbestos, polychlorinated biphenyls, petroleum,
petroleum products, radon gas and any other material, waste, vapor or
substance which is now or hereafter identified as a hazardous or toxic
material, waste, vapor, or substance under any Law, and (z) the terms
"release" and "threatened release" shall have the meaning ascribed to
such terms in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as amended
("CERCLA");
(p) To the Seller's best knowledge without further
investigation, no Hazardous Substance has been generated, treated,
stored, disposed of, released, or otherwise deposited in, under or on,
or is located in, under or on, any parcel of land within one-quarter
mile of the Real Estate, nor has (i) any activity ever been undertaken
on any parcel of land within one-quarter mile of the Real Estate which
would cause any such land or any portion thereof to become a hazardous
waste treatment, storage, or disposal facility within the meaning of
RCRA, or (ii) there ever been a release or threatened release of any
Hazardous Substance in, on, or from any such land;
(q) To the Seller's best knowledge without further
investigation, the Real Estate is in full compliance with all Laws
(including, without limitation, those relating to environmental
matters, building codes, and Occupational Safety and Health Act
requirements and the Americans with Disabilities Act) and with respect
thereto Seller has obtained all permits, licenses, approvals, and
consents, if any, required under all Laws relating to environmental
matters and the same are valid and in full force and effect and (i) the
ground water and surface water located in, at, under or on the Real
Estate do not contain any Hazardous Substance, (ii) there are no and
never have been any aboveground or underground storage tanks located
at, in or on the Real Estate, (iii) neither the Real Estate nor any
portion thereof constitutes a "wetland" under any Law, and (iv) Seller
has not received any notice or communication of any possible violation
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of any Law (including, without limitation, those relating to
environmental matters, building codes, and Occupational Safety and
Health Act requirements) with respect to the Property, and Seller
neither knows of nor suspects any such violation;
(r) Seller agrees that after the removal of the due diligence
and financing contingencies, that Seller will not thereafter actively
market the Real Estate for sale or joint-venture or apply for any
financing nor will it solicit, entertain, negotiate, or accept any
offers to purchase the Real Estate.
(s) Subject to paragraph 6(c) above, from the date hereof
through the Closing Date, Seller shall operate the Property consistent
with its past practices (including, without limitation, timely paying
all bills, charges, payments under the Existing Indebtedness, and other
expenses of the Property or the business conducted thereon);
(t) Seller shall cooperate with Purchaser in connection with
the transferring of the Property from Seller to Purchaser so that the
business operation conducted thereon will continue in a smooth and
uninterrupted manner;
(v) The Leases (true and correct copies of which have been
delivered to Purchaser) constitute all of the terms, conditions,
agreements or understandings pursuant to which the Real Estate is used,
licensed, or leased;
(w) The Rent Roll attached hereto and made a part hereof as
Exhibit D is true, correct, and complete in all material respects;
(x) To the Seller's best knowledge, none of the parties to the
Permitted Exceptions, the Contracts, or the Leases, is in default of
any of its obligations thereunder, and no condition or state of facts
exists which, with the passage of time or the giving of notice, or
both, would constitute a default by any party under any of the
Permitted Exceptions, the Contracts, or the Leases;
(y) Seller has not received any rent, fees, or other charges
due under any of the Leases more than thirty (30) days in advance of
their due date;
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(z) Seller does not employ any employees, whether at the Real
Estate or otherwise in connection or relation to the Property, its
Leases, or Contracts; except the Managing Agent. The parties agree that
there is no obligation on the part of the Purchaser to hire the said
Managing Agent.
(aa) To the Seller's best knowledge, all information, data,
statements, drawings and other matters relating to the Property which
were delivered or communicated by or on behalf of Seller to Purchaser,
including, without limitation, documents, agreements, contracts, plans
and specifications, financial statements, revenues, expenses, surveys,
title insurance policies and notice and other communications are all
true, complete, and accurate in all material respects, and Seller has
not failed to disclose in writing to Purchaser any material fact or
matter affecting or pertaining to the condition of the physical
premises and financial operations of the Property or its business
operations. It is understood, however, that such data is no guarantee
of future performance, and that Purchaser will review the leases,
income, expenses and operations data provided by Seller as part of its
due diligence.
Each and every warranty, representation and covenant shall be true as of the
date of this Agreement and as of the Closing Date. Seller hereby agrees to
execute for Purchaser a sworn affidavit restating and updating through closing
the warranties, representations and covenants set forth above, and acknowledging
that the same shall survive the closing six (6) months of the transaction
contemplated hereunder. It is understood and agreed that in all respects in this
Agreement Seller's knowledge shall be limited to that of Xxxxxx X. Xxxxxx and
Xxxxx Xxxxxxxx. Seller acknowledges that Purchaser is relying on the foregoing
representations, warranties and covenants of Seller in entering into this
Agreement and that such representations, warranties and covenants of Seller are
a material inducement to Purchaser entering into this Agreement and to proceed
with the transaction contemplated hereunder. Seller hereby further agrees to
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indemnify and hold Purchaser harmless from and against any and all losses,
costs, liabilities or damages whatsoever that Purchaser may incur by virtue of
any misrepresentation or breach of any warranty or covenant set forth above.
Such indemnification obligation shall also survive closing six (6) months, and
shall be confirmed in the sworn affidavit referenced above. Notwithstanding the
foregoing, it is understood and agreed that such indemnity shall be limited to
the sum of $100,000.00 (except in the case of fraud).
7. Purchaser's Contingencies. This Agreement, and all of the
obligations of Purchaser hereunder are expressly conditioned upon and subject to
Purchaser being satisfied, in its sole and absolute discretion (i) with the
physical condition of all aspects of the Property, (ii) that the Property can be
used and developed for Purchaser's intended purposes, and in a manner and at the
cost contemplated by Purchaser, (iii) with the terms and conditions of all of
the Leases, (iv) the terms and conditions of all the Contracts, and (v) with any
and all other aspects of the property.
(a) Due Diligence. Purchaser, or its designees, will have a period of
sixty (60) days from the date of the last party's execution of this Agreement
(the "Due Diligence Period"), to enter the Property to make inspections,
engineering tests, surveys, and other such tests, examinations and inspections
as Purchaser may desire as long as such test, examinations, etc., do not
unreasonably interfere with the operations or any current use of the Property.
Seller shall cooperate in all reasonable respects with Purchaser in connection
with such tests and inspections. All entry upon the Property and any and all
contact with any employees of Seller by Purchaser shall be upon prior notice to
Seller and, at Seller's option, accompanied by an agent of Seller. Requests for
entry upon the property or to contact any employees of Seller shall be initiated
only through Xxxxx Xxxxxxxxxx or Xxxxxx X. Xxxxxx and shall be conducted in
strict conformance with the restrictions in this Agreement.
Purchaser agrees to complete a lease audit, financial inspection, and
physical review within the first forty five (45) days of the due diligence. All
13
third party reports must be ordered within said first forty five (45) day period
and evidence of such orders supplied to Seller. Notwithstanding the foregoing,
Purchaser shall have the continuing right to terminate this Agreement and
receive back all of its Xxxxxxx Money for any reason throughout the entire Due
Diligence Period.
If the Closing of the Property does not occur, Buyer shall restore the
Property materially to the same condition as prior to entry by Purchaser.
(i) During the Due Diligence Period, Buyer may inspect the
Property. At the signing of this Agreement or within two (2) days thereafter,
Seller shall provide or make available at designated locations, those
operational and information items which related to the Property as follows:
1. Current Rent Roll - (Dated within 30 days of
execution)
2. Operating Statements for the last three (3) calendar
years
3. Operating Statement for the current calendar year to
date (as of the end of the month previous to
execution)
4. Breakdown of the Property's payroll account including
a list of on-site personnel, for the last calendar
year and for the current calendar year to date
5. Copy of current ad valorem tax bills and a condensed
list of utility bills for the Property, for the last
full calendar year if in Seller's possession
6. ALTA as-built survey, as per Paragraph 4G
7. Copies of all third-party contracts (e.g., termite,
landscape maintenance, etc.) in effect or which will
be in effect at or after the closing date
8. Copies of all notices of zoning, building, safety,
health code or other violations relating to the
property in Seller's possession
14
9. Copy of the latest insurance declaration covering the
Property (the same by be within a master policy)
10. Make available to Buyer all credit information in
Seller's possession for all tenants currently leasing
offices/warehouses on the Property
11. Make available originals or copies of all tenant
leases for the Property in connection with each unit,
and all credit reports and other information
concerning the leases or the tenants which are
currently in Seller's files
12. A list of all equipment leases and/or any financing
documents for personal property, equipment, etc.,
affecting the office/warehouse complex
13. Copies of the first mortgage documents including the
Note, Mortgage and other relevant documents
14. Building plans, blue prints and drawings and other
related information concerning the Property in
Seller's possession (or available to it)
15. The title insurance commitments and policies described
in Paragraph 4a hereof
16. All soil tests and all environmental tests, and
architectural and engineering
studies and tests which the Seller has at the
project site or at any of its offices
17. Present and five (5) prior years rent rolls in
Seller's possession
18. Audited financial statements or if the same are not
available, then satisfactory non-audited substitutes
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therefore describing expenses, assets and liabilities
of the Property in accordance with generally accepted
accounting principals for the years 2000, 2001, and
2002 and the first month of 2003.
All of the foregoing with either be at the Property location or
submitted to Purchaser by Seller within two (2) days after execution of this
Agreement by both parties.
All Due Diligence materials must be maintained by Purchaser or its
attorneys or agents on a confidential basis and returned to Seller if Purchaser
terminates this Agreement. Purchaser agrees that it will not use the Due
Diligence materials for any purpose other than to determine whether to acquire
the Property and agrees that it will not make contact with Seller's tenants
unless closing occurs. In addition, Purchaser agrees that it will under no
circumstances make any offer, or use the Due Diligence materials, to acquire the
interest of any partner(s) of the selling entities or the current fee owner or
its affiliates for a period of two (2) years after the date of this Contract.
Purchaser and/or its agents will not, under any circumstances, disclose to any
of Seller's employees that it is contemplating acquisition of the Property
without Seller's written consent prior to closing. Buyer will make no contact
with any of Seller's employees before or after Due Diligence without Seller's
express written consent; except for contacts with Seller's employees allowed
hereunder and except for contracts within three (3) days of closing in
connection with takeover and closing arrangements. All reports desired by
Purchaser during its Due Diligence Period shall be ordered by Purchaser at
Purchaser's expense (except as otherwise addressed in this Agreement), but
Purchaser agrees that it will supply copies to Seller of each and every report
if Purchaser does not close on its acquisition of the Property.
(ii) During the Due Diligence Period, Buyer will conduct a
review of all the economics and feasibility of acquiring and operating the
Property, including any inspection of all zoning and other government permits
and regulations and all other matters and documents relating to the operation of
the Property, including the items supplied by Seller hereunder.
In the event Purchaser is satisfied with its investigations relating to
the foregoing material, Purchaser shall notify Seller, on or before the sixtieth
16
(60th) day after the Effective Date, that it has elected to proceed with this
transaction. If Purchaser fails to notify Seller in writing on or before the
date which is sixty (60) days after the Effective Date, that Purchaser has
determined to proceed with this transaction, this Agreement shall automatically
terminate and be of no further force or effect, in which case Purchaser shall
have the right to a return of the Deposit and neither party shall have any
further liability hereunder. Provided Seller makes all of the deliveries of
documents, contracts, etc., or makes the same available at the site to Purchaser
within two (2) business days of the date hereof, the inspection will begin as of
the effective date hereof. Notwithstanding the foregoing, in the event that the
Seller fails to deliver any of the documents required to be delivered by it
hereunder or fails to make some available on or before such time as it is
required to be delivered or made available hereunder, the foregoing sixty (60)
day time period shall be extended one day for each day that any such document is
delivered late.
(b) This Agreement and all of the obligations of Purchaser hereunder
are expressly conditioned upon and subject to Purchaser obtaining in writing all
the consents and approvals which may be necessary for the consummation by
Purchaser of this transaction including, but not limited to, the approval of the
credit worthiness and managerial ability of the Purchaser in order to assume the
existing indebtedness. Seller and Purchaser agree to use their best efforts to
obtain all of the foregoing consents and approvals prior to the Closing Date.
Purchaser and Seller agree to cooperate in seeking approval for Purchaser to
assume the existing indebtedness and share the cost of such application and
related data, reports, etc. The parties also agree to split the assumption fee
(if any). If any of the foregoing consents and/or approvals have not been
obtained on or before the date which is sixty (60) days after the Effective
Date, then Purchaser or Seller may terminate this Agreement by giving written
notice to that effect to Seller within five (5) days after such date, in which
case neither party shall have any further liability hereunder, except that the
Xxxxxxx Money shall be immediately returned to Purchaser.
17
8. Waiver of Conditions by Purchaser. Purchaser reserves the right, at
its sole option, to at any time waive any condition precedent to the closing of
this transaction as set forth in this Agreement. Any such waiver must be in
writing and be signed by Purchaser. In the event Purchaser decides to waive
assumption approval by the holder of the existing indebtedness, Purchaser shall
be required to pay any and all prepayment penalty or costs or defeasance costs.
9. Default by Tenants. If between the Effective Date and the closing
date, one or more tenants aggregating 5,000 or more square feet of space at the
Property (not counting the space of RealMark Leasing) vacate the premises or
otherwise materially default under their leases, then Purchaser may terminate
the Agreement as its only remedy. Said 5,000 square feet shall be reduced,
however, by new leases or expansions for additional leased space.
10. Estoppel Certificates. Seller shall deliver to Purchaser not later
than thirty (30) days before closing, estoppel certificates in form and
substance reasonably satisfactory to Purchaser from all of the parties, other
than Seller, to all of the Contracts, the personal property financing Agreements
and the Leases. Prior to delivering such estoppel certificates to such parties
for execution, Seller shall obtain Purchaser's approval of the form of the
requested estoppel certificate. Notwithstanding the foregoing, in the event that
the Seller fails to deliver any of the documents required to be delivered by it
hereunder on or before such time as it is required to be delivered hereunder,
the Purchaser shall have the right, at its election, to either postpone closing
one day for each day that any such document is delivered late (not to exceed
thirty (30) days); or terminate this Agreement and receive a refund of the
Deposit. In the event Seller fails to deliver all of the estoppels as described
above within the time allowed (or the extended time allowed), Seller shall still
be deemed in compliance with this paragraph however, if it presents estoppels
for 85% of the tenants (based upon square footage) including all major tenants
(tenants over 4400 square feet are "major tenants").
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11. Place and Time of Closing. If title can be conveyed in the
condition required hereunder, and if all of the conditions precedent to the
closing are either satisfied or waived, the closing of this transaction shall
take place at the offices of Purchaser's attorney on a date designated by
Purchaser by at least fifteen (15) days' notice to Seller, but not later than
ninety (90) days after the Effective Date (the "Closing Date"), or thirty (30)
days after all Purchaser contingencies have been met or otherwise mutually
agreed upon by the parties. Time is of the essence as the same relates to the
closing process.
12. Closing Documents. At the closing, the following documents will be
executed and delivered:
(a) A special warranty assignment from Seller to Purchaser,
covering the Real Estate, in the form required hereunder provided the
title company will insure the leasehold without exception except as set
forth in paragraph 3(a)-(d) inclusive hereof ("permitted exceptions")
or additional premium together with consent and approval of such
assignment by groundlease Landlord (and Buyer will assume the said
leasehold as described in said assignment);
(b) A Xxxx of Sale, from Seller to Purchaser with a general
warranty of title, with respect to all of the Personal Property;
(c) A satisfactory estoppel certificate from ground Landlord
and the execution of any required assumption documents reasonably
requested by the mortgage holder.
(d) Certificates of title for all vehicles or other
certificated personal property constituting the Personal Property, if
any, duly transferring title thereto from Seller to Purchaser in the
condition required hereunder to Purchaser;
(e) An Assignment and Assumption of Leases in the form of
Exhibit G, attached hereto and made a part hereof;
(f) An assignment of all Licenses and Permits in form and
substance reasonably satisfactory to Purchaser;
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(g) An Assignment and Assumption of Contracts in the form of
Exhibit H, attached hereto and made a part hereof with respect to all
of the Contracts;
(h) Originals (or copies if originals are not available) of
all (i) the Leases, (ii) Licenses and Permits, (iii) Contracts, (iv)
all lease files, keys, warranties and guaranties;
(i) A Closing Statement with all notices of assessments, if
any, attached;
(j) Letters signed by Seller addressed to all parties to the
Leases advising such parties of the sale of the Property and directing
such parties to make all future payment thereunder to Purchaser;
(k) An updated Rent Roll of the Property, certified by Seller
to be true, correct and complete in all material respects;
(l) An Assignment assigning to Purchaser all of Seller's
right, title, and interest in and to the name, "Inducon Columbia"
together with whatever title it has with respect to such name; (Seller
certifies that it is not aware of any dispute over the title to the
name).
(m) The affidavit described in paragraph 6 above;
(n) A non-foreign affidavit or a qualifying statement
sufficient in form and substance to relieve Purchaser of any and all
obligations to deduct, withhold or pay any amount of tax pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a statement from Seller authorizing Purchaser to deduct and
withhold taxes as required by Section 1445 of the Code; and
(o) Any and all other documentation reasonably required by
Purchaser, its attorneys, the Landlord, the mortgage holder and/or the
Title Company, to close the transaction contemplated hereunder and to
cause the title policy described in paragraph 4 above to be issued and
delivered to Purchaser.
13. Default.
(a) In the event of default by Purchaser hereunder, Seller may declare
a forfeiture hereunder and retain the Deposit, as liquidated
20
damages, the same to be Seller's sole and exclusive remedy. In the event of
default by Seller hereunder, Purchaser may, at its option, demand, and be
entitled to, an immediate refund of the Deposit, in full termination of this
Agreement, and/or exercise any other rights available to it at law or in equity
(including, without limitation, the right to specifically enforce the terms
hereof), but with a $100,000.00 cap on any money damages if Purchaser elects to
seek money damages, except as set out in paragraph 6 hereof.
(b) If there is any breach of any representation, warranty or covenant
made by Seller in paragraph 6 above, provided, however, that if the substance of
any "best knowledge" representation or warranty proves to be inaccurate, and
Seller did not have knowledge of such inaccuracy on the date of this Agreement,
then the substantive inaccuracy shall not be considered a breach of such
representation or warranty by Seller hereunder, but Purchaser shall still have
the right to terminate this Agreement by delivering written notice to that
effect to Seller, after which neither party shall have any further liability
hereunder (except as otherwise provided herein), except that the Deposit shall
immediately be returned to Purchaser. Notwithstanding the foregoing, Seller
shall have the option to correct the misrepresentations made in good faith or
any breach of warranty or covenant before or at closing. In the event Seller
shall fail to cure such misrepresentation or breach of warranty to Purchaser's
reasonable satisfaction, the Purchaser may terminate this agreement and receive
back its xxxxxxx money.
14. No Assumption of Liabilities. Except with respect to the Leases and
the Contracts to be assumed by Purchaser pursuant to the express terms of this
Agreement, Purchaser shall not assume any obligations, liabilities, claims,
demands, judgments, causes of action, indebtedness (except the existing
indebtedness) or accounts payable of Seller of any kind, nature or description
whatsoever, whether the same are accrued, absolute or contingent, known or
unknown, direct or indirect. Seller hereby agrees to indemnify and hold
Purchaser harmless from and against any and all obligations, liabilities,
claims, demands, judgments, causes of action, indebtedness or accounts payable
21
of Seller which are not being assumed by Purchaser, as provided in this
paragraph. Likewise, Purchaser agrees to indemnify and hold Seller harmless from
and against any and all obligations liabilities, claims, demands, causes of
action, or indebtedness arising after the closing and out of Purchaser's use and
operation of the Real Estate.
15. Real Estate Brokerage Commission.
(a) Seller represents to Purchaser that Seller has entered
into an agreement to pay a commission in connection with this transaction,
subject to certain terms and conditions, to Xxxxxxxxxx Investment Company and
Colliers Xxxxxx (hereinafter collectively called "Broker"). Seller will
indemnify and save and hold Purchaser harmless from any claims of Broker for any
commission, finder's fee, or other compensation in connection with the
transaction contemplated by this Agreement.
(b) Each party hereto represents to the to the other that,
except as set forth above with respect to Broker, such respective party has not
authorized any broker or finder to act on its behalf in connection with the sale
and purchaser hereunder. Each party hereo agrees to indemnify, defend, and hold
harmless the other party from and against any and all claims, losses, damages,
costs, or expenses (included but not limited to, reasonable attorneys' fees) of
any kind or character arising out of or resulting from any agreement,
arrangement, or understanding (except as set forth above with respect to Broker)
alleged to have been made by such party with any broker or finder in connection
with this Agreement or the transaction contemplated hereby.
16. Possession. Seller shall deliver and Purchaser shall accept
possession of the Property on the date of closing, subject to the rights of no
other persons whatsoever, except rights of persons under the Leases. The Real
Estate shall be vacated by Seller on or before the date of closing.
17. Taxes, Prorated Items and Closing Costs. (a) For purposes of the
prorations and adjustments described in this paragraph 17, Purchaser shall be
22
deemed to own the Property on the Closing Date and, accordingly, be charged with
all expenses and receive all income accruing on or with respect to the Closing
Date.
(b) All taxes and assessments, including all unpaid assessments payable
in installments (for the current calendar year only), which are due and have
become a lien upon the Property as of the date of closing or which have been
confirmed by any public authority at the date of closing, shall be paid in full
by Seller. Current taxes, to the extent not reimbursed to Seller by Tenants,
shall be prorated and adjusted as of the Closing Date in accordance with the
calendar year basis of the municipality or taxing unit in which the Property is
located.
(c) All fees charged by the Title Company in connection with the
holding of the Deposit in escrow, if any, shall be shared equally by Seller and
Purchaser.
(d) Any fees or costs for assumption of the existing indebtedness shall
be shared equally by Buyer and Seller.
(e) The parties agree that the escrows and reserve accounts held by the
Lender of the existing indebtedness for tenant improvements, leasing commissions
and capital expenses ("reserves") shall be prorated at closing as follows: the
first $50,000.00 of the reserves shall be credited to the Purchaser and
thereafter one half of the balance of the reserves shall be credited to the
Seller at closing. The balance of the said reserves shall then be the property
of Purchaser at closing. It is further understood that the Lender's escrow for
real estate taxes and insurance ("escrows") shall also be credited to the Seller
at closing.
(f) The state transfer tax that will be payable upon the transfer of
title from Seller to Purchaser shall be Seller's obligation.
(g) Purchaser and Seller shall be responsible for their own attorney's
fees incurred in connection with the preparation and negotiation of this
Agreement and the transaction contemplated hereby.
(h) Any fees or costs which may be charged by the ground lease Landlord
shall be paid on a 50/50 basis up to $5,000.00 with Seller paying any additional
balance.
23
(i) All rent, fees, charges and other income due under the Leases, and
any and all other income, profits, or revenue accruing to Seller or the Property
with respect to the Property (the "Income"), and received by Seller on or before
the Closing Date, shall be prorated as of the Closing Date. Accordingly, at
closing Purchaser shall receive a credit equal to the amount of all Income
received by Seller with respect to the period on and after the Closing Date. Any
Income due and owing or accruing prior to the Closing Date but not received by
Seller as of the Closing Date shall not be prorated or adjusted, but rather such
Income shall periodically be prorated and adjusted as of the Closing Date by
Purchaser if and when Purchaser receives such Income. Purchaser agrees to use
its reasonable efforts to collect all such Income. After closing, Seller shall
not initially have the right to pursue, collect or seek any Income from any of
Seller's tenants. If, after closing Seller receives any such rental Income,
Seller shall promptly deliver the same to Purchaser for proration in accordance
with this Agreement. Upon receipt of any rent by Purchaser after closing,
Purchaser shall first apply said rent to any rents due for the month of closing
and prorate the same with Seller. Thereafter Purchaser shall prorate the same to
itself if there is any outstanding rent due or forward it to Seller if the
tenants are current with Purchaser. Notwithstanding the foregoing, it is
understood and agreed that after sixty (60) days from closing, and Seller is
still owed under the Leases, Seller may thereafter pursue said tenants for their
back rent. In addition to the foregoing, if any Tenant at the Real Estate is
paying percentage rent at the time of closing or at any time within one year
thereafter, and if a portion of the sales on which such percentage rent is based
were generated prior to the Closing Date, then for each such Tenant, the
percentage rent paid by such Tenant shall be prorated and adjusted when such
percentage rent is received by Purchaser with Purchaser being entitled to an
amount equal to such percentage rent multiplied by a fraction, the numerator of
which is the number of days the Purchaser owned the Property during the period
in which such percentage rent is measured and the denominator of which is 365.
24
(j) All costs and expenses of Seller with respect to the Property, to
the extent not reimbursed by Tenants (the "Expenses"), shall be prorated as of
the Closing Date. To the extent the Expenses can accurately be prorated on the
Closing Date (e.g., interest on the Existing Indebtedness) such Expenses shall
be prorated at closing. To the extent such Expenses cannot accurately be
prorated on the Closing Date (e.g., utility charges), such Expenses shall be
prorated and adjusted by Purchaser and agreed to by Seller as of the Closing
Date when the actual bills covering the period in which the Closing Date occurs
are received by Purchaser or Seller. Seller shall pay its share of such Expenses
promptly upon receipt of a statement from Purchaser. Purchaser shall have the
right to offset against any Income due Seller its share of such Expenses.
18. Casualty. Seller shall give Purchaser prompt written notice of any
fire or other casualty affecting the Property, which notice shall include a
description thereof in reasonable detail, Seller's reasonable estimate of the
cost of repair, and a description of any affect thereof upon any existing
tenancies. If such reasonable estimate is less than $100,000 and tenants of the
Property aggregating more than 5,000 square feet of space do not have the right
to terminate their leases as a result of such casualty, then the transaction
contemplated hereunder shall proceed in accordance with the terms hereof and
Seller shall, at closing, pay to Purchaser the amount of such reasonable
estimate (which shall be evidenced by written bids offering to repair such
casualty). If, however, such reasonable estimate is $100,000 or greater, or
tenants aggregating 5,000 or more square feet of space at the Property have the
right to terminate their leases as a result of such casualty, then Purchaser
shall, at its option, either (i) terminate this Agreement by written notice
thereof to Seller within thirty (30) days after Purchaser's receipt of Seller's
notice of such casualty, in which case the Deposit shall be returned to
Purchaser and neither party shall have any further obligation hereunder or (ii)
proceed with the transaction contemplated hereunder and receive from Seller at
25
closing payment of the deductible and an assignment of all insurance proceeds
relating to such damage or destruction.
19. Condemnation. If any material condemnation or eminent domain
proceeding is commenced or threatened against the Property, Seller shall,
promptly after obtaining knowledge thereof, give Purchaser written notice
thereof in reasonable detail. In such event, Purchaser shall, at its option,
either (i) terminate this Agreement by written notice thereof to Seller within
thirty (30) days after Purchaser's receipt of Seller's notice of such
proceeding, in which case the Deposit shall be returned to Purchaser and neither
party shall have any further obligation hereunder or (ii) proceed with the
transaction contemplated hereunder and receive from Seller at closing an
assignment of all awards and damages relating to such proceedings.
20. Use of Words. The pronouns and relative words herein used shall be
read interchangeably in masculine, feminine or neuter, singular or plural, as
the respective case may be.
21. Notice. Any notice, request or certificate required or permitted to
be delivered hereunder shall be given in writing and shall be deemed to have
been delivered (i) when delivered personally, (ii) two (2) business days after
being deposited in the United States mail, by certified mail, return receipt
requested, postage pre-paid, and properly addressed, or (iii) one business day
after being sent by a reputable overnight delivery service (e.g. Federal
Express). For the purposes hereof, the addresses of the parties, until further
notice, shall be as follows:
SELLER: Real Xxxx Inducon Columbia, L.L.C.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Amigone, Sanchez, Mattrey & Xxxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
PURCHASER: Kirco Acquisition, LLC
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
26
With a copy to: Xxxxx X. Xxxxx, XX, Esq.
Horack, Talley, Xxxxx & Lowndes PA
2600 One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
22. Governing Law. This Agreement shall be interpreted under and
governed by the laws of the State of South Carolina.
23. Assignment. Seller hereby acknowledges that Purchaser shall have
the right to assign this Agreement and its rights hereunder prior to closing.
Seller hereby expressly acknowledges that this Agreement and all the rights and
benefits accruing hereunder may be assigned by Purchaser or any assignee of
Purchaser, in whole or in part, to any person(s), firm(s) or entity(ies)
whatsoever provided such assignee is controlled by the Buyer. Any assignee(s)
shall be subject to the same terms and conditions as are outlined herein.
24. Entire Agreement. This Agreement may be changed or modified only by
the written agreement of all of the parties hereto, and the same constitutes the
entire agreement between the parties hereto relating to the subject matter
hereof. All prior agreements or undertakings, including, without limitation, the
Letter of Intent, and all negotiations are hereby merged herein.
25. Binding Effect. The terms and conditions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, representatives, successors and assigns.
26. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original although not fully executed, but all of
which when taken together, shall constitute but one agreement. The signature
page(s) of any counterpart may be detached from a counterpart without impairing
the legal effect of the signature(s) thereon and attached to any other
counterpart identical thereto except for the signature page(s) attached to it.
27
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement
as of the effective date hereof. The "effective date" shall be the later of the
two execution dates below. WITNESSES:
"SELLER"
Real Xxxx Inducon Columbia, L.L.C.
a New York limited liability company
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
its authorized member/manager
Date of execution
by the Seller: February 9, 2003
"PURCHASER"
KIRCO ACQUISITION LLC, a
Michigan limited liability company
By: /s/ Kirco Acquisition, LLC
---------------------------------
Its:
-------------------------------------
Date of execution
by the Purchaser: February 9, 2003
28
EXHIBITS:
A. Real Estate. To be mutually agreed upon within thirty (30) days of
the Effective Date.
B. Personal Property. To be mutually agreed upon within thirty (30)
days of the Effective Date.
C. Licenses and Permits. To be mutually agreed upon within thirty (30)
days of the Effective Date.
D. Rent Roll. To be mutually agreed upon within thirty (30) days of the
Effective Date.
E. Contracts. To be mutually agreed upon within thirty (30) days of the
Effective Date.
F. Surveyor's Certificate. To be mutually agreed upon within thirty
(30) days of the Effective Date.
G. Assignment and Assumption of Leases. To be mutually agreed upon
within thirty (30) days of the Effective Date.
H. Assignment and Assumption of Contracts. To be mutually agreed upon
within thirty (30) days of the Effective Date.
I. Ground Lease. A fully executed copy of the Ground Lease and any
amendments.
29
