PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 6th day of February, 1997, between
CHARLOTTE CAPITAL PARTNERS, a North Carolina general partnership ("Seller"), and
RRC ACQUISITIONS, INC., a Florida corporation, its designees, successors and
assigns ("Buyer").
Background
Buyer wishes to purchase a shopping center in the City of Charlotte,
County of Mecklenburg, State of North Carolina, owned by Seller, known as Carmel
Commons (the "Shopping Center");
Seller wishes to sell the Shopping Center to Buyer;
In consideration of the mutual agreements herein, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller
agrees to sell and Buyer agrees to purchase the Property (as hereinafter
defined) on the following terms and conditions:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Agreement means this instrument as it may be amended from
time to time.
1.2 Allocation Date means the close of business on the day
immediately prior to the Closing Date.
1.3 Audit Representation Letter means the form of Audit Representation
Letter attached hereto as Exhibit .
1.4 Buyer means the party identified as Buyer on the initial
page hereof.
1.5 Closing means generally the execution and delivery of those
documents and funds necessary to effect the sale of the Property by Seller to
Buyer.
1.6 Closing Date means the date on which the Closing occurs.
1.7 Contracts means all service contracts, agreements or
other instruments to be assigned by Seller to Buyer at Closing.
1.8 Day means a business day, whether or not the term is
capitalized.
1.9 Xxxxxxx Money Deposit means the deposit delivered by Buyer to
Escrow Agent prior to the Closing under Section of this Agreement, together with
the earnings thereon, if any.
1.10 Environmental Claim means any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Material or actual or alleged Hazardous Material Activity, (c) from
any abatement, removal, remedial, corrective, or other response action in
connection with a Hazardous Material, Environmental Law or other order of a
governmental authority or (d) from any actual or alleged damage, injury, threat,
or harm to health, safety, natural resources, or the environment.
1.11 Environmental Law means any current legal requirement in effect at
the Closing Date pertaining to (a) the protection of health, safety, and the
indoor or outdoor environment, (b) the conservation, management, protection or
use of natural resources and wildlife, (c) the protection or use of source water
and groundwater, (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation or handling of, or exposure to, any
Hazardous Material or (e) pollution (including any Release to air, land, surface
water, and groundwater); and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq.,
Solid Waste Disposal Act, as amended by the Resource Conservation Act of 1976
and Hazardous and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC
1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic
Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801, Occupational Safety and Health Act of
1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC App.
11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq.,
Safe Drinking Water Act of 1974, as amended by 42 USC 300(f) et seq., and any
similar, implementing or successor law, any amendment, rule, regulation, order
or directive, issued thereunder.
1.12 Escrow Agent means Chicago Title Insurance Company (Attn:
Xxxx X. Xxxxxxx), whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000 (Phone 704/000-0000; Fax 704/000-0000), or
any successor Escrow Agent.
1.13 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
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1.14 Hazardous Material means any petroleum, petroleum product,
drycleaning solvent or chemical, biological or medical waste, "sharps" or any
other hazardous or toxic substance as defined in or regulated by any
Environmental Law in effect at the pertinent date or dates.
1.15 Hazardous Material Activity means any activity, event, or
occurrence at or prior to the Closing Date involving a Hazardous Material,
including, without limitation, the manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation, handling or corrective or response
action to any Hazardous Material.
1.16 Improvements means any buildings, structures or other
improvements situated on the Real Property.
1.17 Inspection Period means the period of time which expires at the
end of business on Friday, March 7, 1997. If such expiration date is a weekend
or national holiday, the Inspection Period shall expire at the end of business
on the next immediately succeeding business day.
1.18 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.19 Materials means all plans, drawings, specifications, soil test
reports, environmental reports, market studies, surveys, and similar
documentation, if any, owned by or in the possession of Seller with respect to
the Property, Improvements and any proposed improvements to the Property, which
Seller may lawfully transfer to Buyer except that, as to financial and other
records, Materials shall include only photostatic copies.
1.20 Permitted Exceptions means only the following interests,
liens and encumbrances:
(a) Liens for ad valorem taxes not payable on or before
Closing;
(b) Rights of tenants under Leases; and
(c) All other easements, restrictions conditions,
rights-of-way and other matters set forth in Seller's
existing title insurance policy, a copy of which has
been furnished to Buyer, determined by Buyer during
the Inspection Period to be acceptable.
1.21 Personal Property means all (a) sprinkler, plumbing,
heating, air-conditioning, electric power or lighting,
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incinerating, ventilating and cooling systems, with each of their respective
appurtenant furnaces, boilers, engines, motors, dynamos, radiators, pipes,
wiring and other apparatus, equipment and fixtures, elevators, partitions, fire
prevention and extinguishing systems located in or on the Improvements, (b) all
Materials, and (c) all other personal property used in connection with the
Improvements, provided the same are now owned or are acquired by Seller prior to
the Closing.
1.22 Property means collectively the Real Property, the Improvements
and the Personal Property. The Property does not include the land and
improvements (the "Boston Market Parcel") which are the subject of a lease dated
January 9, 1995, between Seller and Platinum Properties LLC, a North Carolina
limited liability company ("Platinum"), as amended (the "Boston Market Lease"),
the description of which is excluded from the Real Property in Exhibit ;
provided that if Seller is unable to convey the Property to Buyer excluding the
Boston Market Parcel because of platting and conveyancing requirements imposed
by law because of applicable subdivision laws, the Property shall include the
Boston Market Parcel, subject to the terms of the Boston Market Lease, in which
event the Boston Market Parcel shall be included within the meaning of the term
"Property", except that (i) all costs of closing the conveyance of the Boston
Market Parcel to Buyer, and thereafter from Buyer to Seller, shall be borne by
Seller, (ii) Seller shall immediately sublease the Boston Market Parcel from
Buyer, subject to the Boston Market Lease, fully net to Buyer, (iii) Seller
shall perform each and every objection of the Landlord under the Boston Market
Lease and hold Buyer harmless therefrom, (iv) Seller shall indemnify and hold
Buyer harmless from any and all cost, damage, liability, loss or claim with
respect to the Boston Market Lease and/or the Boston Market Parcel, including
the addition of Buyer as a named insured on Seller's public liability insurance
policy as it applies to the Boston Market Parcel, and (v) the net proceeds of
sale to Platinum under and pursuant to the Boston Market Lease shall be paid to
Seller. The terms and conditions of such sublease, which shall cover the
foregoing matters, are subject to the approval of Buyer and Seller in all
respects, and shall be agreed upon during the Inspection Period. If the parties
cannot reach an agreement concerning the terms and conditions of the said
sublease within the Inspection Period, either party may terminate this Agreement
by notice to the other given within the Inspection Period. Seller agrees to use
its best efforts to accomplish such platting and the conveyance of the Boston
Market Parcel to Platinum prior to closing.
1.23 Prorated means the allocation of items of expense or income
between Buyer and Seller based upon that percentage of the time period as to
which such item of expense or income relates which has expired as of the date at
which the proration is to be made.
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1.24 Purchase Price means the consideration agreed to be paid by Buyer
to Seller for the purchase of the Property as set forth in Section (subject to
adjustments as provided herein).
1.25 Real Property means the lands more particularly described on
Exhibit , together with all easements, licenses, privileges, rights of way and
other appurtenances pertaining to or accruing to the benefit of such lands. The
outparcels occupied by Exxon, Quincy's and the Bank are included in the
purchase. The Boston Market Parcel is excluded.
1.26 Release means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing into
the indoor or outdoor environment, including, without limitation, the
abandonment or discarding of barrels, drums, containers, tanks, and other
receptacles containing or previously containing any Hazardous Material at or
prior to the Closing Date.
1.27 Rent Roll means the list of Leases attached hereto as Exhibit ,
identifying with particularity the space leased by each tenant, the term
(including extensions), square footage and applicable rent, common area
maintenance, tax and other reimbursements, security deposits and similar data.
1.28 Seller means the party identified as Seller on the
initial page hereof.
1.29 Seller Financial Statements means the unaudited balance sheets and
statements of income, cash flows and changes in financial positions of Seller
for the Property, as of and for the two (2) calendar years next preceding the
date of this Agreement and all monthly reports of income, expense and cash flow
prepared by Seller for the Property, which shall be consistent with past
practice, for any period beginning after the latest of such calendar years, and
ending prior to Closing.
1.30 Shopping Center means the Shopping Center identified on
the initial page hereof.
1.31 Survey means a map of a stake survey of the Real Property which
shall comply with Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, jointly established and adopted by ALTA and ACSM in 1992, and includes
items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof, which meets the
accuracy standards (as adopted by ALTA and ACSM and in effect on the date of the
Survey) of an urban survey, which is dated not earlier than thirty (30) days
prior to the Closing, and which is certified to Buyer, Seller, the Title
Insurance company providing Title Insurance to Buyer, and Buyer's lender, and
dated as of the date the Survey was made.
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1.32 Tenant Estoppel Letter means a letter or other certificate from a
tenant certifying as to certain matters regarding such tenant's Lease, in
substantially the same form as attached hereto as Exhibit , or in the case of
national or regional "credit" tenants identified as such on the Rent Roll, the
form customarily used by such tenant provided the information disclosed is
acceptable to Buyer. If the lease for a particular tenant requires a particular
form of estoppel certificate, or obligates the tenant to provide only certain
information, the Tenant Estoppel Letter to be obtained by Seller from such
Tenant shall be limited to such form or information, as the case may be, but
Seller shall nevertheless endeavor to obtain a Tenant Estoppel Letter in the
form of that attached as Exhibit .
1.33 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.34 Title Insurance means an ALTA Form B Owners Policy of Title
Insurance for the full Purchase Price insuring marketable title in Buyer in fee
simple, subject only to the Permitted Exceptions, issued by a title insurer
acceptable to Buyer.
1.35 Title Insurance Commitment means a binder whereby the title
insurer agrees to issue the Title Insurance to Buyer.
1.36 Transaction Documents means this Agreement, the deed conveying the
Property, the assignment of leases, the xxxx of sale conveying the Personal
Property and all other documents required or appropriate in connection with the
transactions contemplated hereby.
2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The total Purchase Price
for the Property (subject to adjustment as provided herein) shall
be $12,100,000. The Purchase Price shall be payable in cash at
Closing.
(b) Adjustments to the Purchase Price. The Purchase
Price shall be adjusted as of the Closing Date by:
(1) prorating the Closing year's real and tangible
personal property taxes as of the Allocation Date (if the amount of the current
year's property taxes are not available, such taxes will be prorated based upon
the prior year's assessment);
(2) prorating as of the Allocation Date cash
receipts and expenditures for the Shopping Center and other items
customarily prorated in transactions of this sort; and
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(3) subtracting the amount of security deposits,
prepaid rents from tenants under the Leases, and credit balances, if any, of any
tenants. Any rents, percentage rents or tenant reimbursements payable after the
Allocation Date but applicable to periods on or prior to the Allocation Date
shall be remitted to Seller by Buyer within thirty (30) days after receipt.
Buyer shall have no obligation to collect delinquencies, but should Buyer
collect any delinquent rents or other sums which cover periods prior to the
Allocation Date and for which Seller have received no proration or credit, Buyer
shall remit same to Seller within thirty (30) days after receipt, less any costs
of collection. Buyer will not interfere in Seller's efforts to collect sums due
it prior to the Closing. Seller will remit to Buyer promptly after receipt any
rents, percentage rents or tenant reimbursements received by Seller after
Closing which are attributable to periods occurring after the Allocation Date.
Undesignated receipts after Closing of either Buyer or Seller from tenants in
the Shopping Center shall be applied first to then current rents and
reimbursements for such tenant(s), then to delinquent rents and reimbursements
attributable to post-Allocation Date periods, and then to pre-Allocation Date
periods.
2.2 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the amount of
$50,000 shall be delivered to Escrow Agent within three (3) days after the date
of execution by the last of Buyer or Seller to execute and transmit a copy of
this Agreement to the other. This Agreement may be terminated by Seller if the
Xxxxxxx Money Deposit is not received by Escrow Agent by such deadline. The
Xxxxxxx Money Deposit paid by Buyer shall be held as specifically provided in
this Agreement and shall be applied to the Purchase Price at the Closing.
2.3 Closing Costs.
(a) Seller shall pay:
(1) Documentary stamp and other transfer taxes
imposed upon the conveyance;
(2) Cost of satisfying any liens on the Property;
(3) Cost of curing title defects and recording any
curative title documents;
(4) The broker's commission of Xxxxxx X. Xxxxxx/Lat
Xxxxxx & Associates, Inc., if and when this transaction closes, but not
otherwise, in an amount equal to two and one-half percent (2.5%) of the Purchase
Price; and
(5) Seller's attorneys' fees relating to the sale
of the Property.
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(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Costs of the Phase 1 environmental site
assessment to be obtained by Buyer;
(3) Cost of title insurance and Survey;
(4) Cost of recording the deed; and
(5) Buyer's attorneys' fees.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, review the economic data, underwrite the
tenants and review their leases, and to otherwise conduct its due diligence
review of the Property and all books, records and accounts of Seller related
thereto. Buyer hereby agrees to indemnify and hold Seller harmless from any
damages, liabilities or claims for property damage or personal injury arising
out of such inspection and investigation by Buyer or its agents or independent
contractors. Within the Inspection Period, Buyer may, in its sole discretion and
for any reason or no reason, elect to go forward with this Agreement to closing,
which election shall be made by notice to Seller given within the Inspection
Period. If such notice is not timely given, this Agreement and all rights,
duties and obligations of Buyer and Seller hereunder, except any which expressly
survive termination, shall terminate and Escrow Agent shall forthwith return to
Buyer the Xxxxxxx Money Deposit. If Buyer so elects to go forward, the Xxxxxxx
Money Deposit shall not be refundable except upon the terms otherwise set forth
herein.
(b) Buyer, through its officers, employees and other
authorized representatives, shall have the right to reasonable access to the
Property and all records of Seller related thereto, including without limitation
all Leases and Seller Financial Statements, at reasonable times during the
Inspection Period for the purpose of inspecting the Property, taking soil
borings, conducting Hazardous Materials inspections, reviewing the books and
records of Seller concerning the Property and otherwise conducting its due
diligence review of the Property. Seller shall cooperate with and assist Buyer
in making such inspections and reviews. Seller shall give Buyer any
authorizations which may be required by Buyer in order to gain access to records
or other information pertaining to the Property or the use thereof maintained by
any governmental or quasi-governmental authority or organization. Buyer, for
itself and its agents, agrees not to enter into any
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contract with existing tenants without the written consent of Seller if such
contract would be binding upon Seller should this transaction fail to close.
Buyer shall have the right to have due diligence interviews and other
discussions or negotiations with tenants, provided Buyer informs Seller of the
time and place of any such interview or discussion and affords Seller an
opportunity to be present.
(c) Buyer, through its officers or other authorized
representatives, shall have the right to reasonable access to all Materials
(other than privileged or confidential litigation materials) for the purpose of
reviewing and copying the same.
3.2 Hazardous Material. Prior to the end of the Inspection Period Buyer
may order a "Phase 1" assessment of the Property, and a copy of any assessment
report, if made, shall be furnished by Buyer to Seller promptly upon its
completion. If the assessment report discloses the existence of any Hazardous
Material or any other matters concerning the environmental condition of the
Property or its environs, Buyer may notify Seller in writing, within ten (10)
business days after receipt of the assessment report that it elects to terminate
this Agreement, whereupon this Agreement shall terminate and Escrow Agent shall
return to Buyer its Xxxxxxx Money Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties,
the Closing shall take place at the offices of Escrow Agent at 10:00 A.M. on
Friday, March 14, 1997, provided that Buyer may designate an earlier date for
Closing.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as follows as of the date of this
Agreement and as of the Closing and where indicated covenants and agrees as
follows:
4.1 Organization; Authority. Seller is duly organized, validly existing
and in good standing under the laws of the state of its organization and the
state in which the Shopping Center is located, and has full power and authority
to enter into and perform this Agreement in accordance with its terms, and the
persons executing this Agreement and other Transaction Documents have been duly
authorized to do so on behalf of Seller. Seller is not a "foreign person" under
Sections 1445 or 897 of the Internal Revenue Code nor is this transaction
subject to any withholding under any state or federal law.
4.2 Authorization; Validity. The execution and delivery of
this Agreement by Seller and Seller's consummation of the
transactions contemplated by this Agreement have been duly and
validly authorized. This Agreement constitutes a legal, valid and
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binding agreement of Seller enforceable against it in accordance
with its terms.
4.3 Title. Seller is the owner in fee simple of all of the
Property, subject only to the Permitted Exceptions.
4.4 Commissions. Seller has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Seller, Buyer or the Property for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transaction provided herein
except for Xxxxxx X. Xxxxxx and Lat Xxxxxx & Associates, Inc., the commission of
whom shall be paid by Seller. Seller agrees to indemnify Buyer from any other
brokerage claim arising by, through or under Seller.
4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except for Permitted Exceptions and this Agreement, and
except for an option to purchase in favor of Platinum Properties LLC, a North
Carolina limited liability company contained in a Ground Lease dated January 9,
1995, between Seller and Platinum Properties LLC, as amended by Amendment to
Lease dated March 16, 1995, as regards the Boston Market Parcel, which parcel,
as stated above, is excluded from this transaction.
4.6 Litigation. There is no litigation or proceeding
pending, or to the best of Seller's knowledge, threatened against
Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll attached hereto and certified as true
by Lat Xxxxxx & Associates, Inc. And any Leases or modifications entered into
between the date of this Agreement and the Closing Date shall be entered into
only with the consent of Buyer. Copies of the Leases, which have been delivered
to Buyer or shall be delivered to Buyer within five (5) days from the date
hereof, are, to the best knowledge of Seller, true, correct and complete copies
thereof, subject to the matters set forth on the Rent Roll. Between the date
hereof and the Closing Date, Seller will not terminate or modify existing Leases
or enter into any new Leases without the consent of Buyer. All of the Property's
tenant leases are in good standing and to the best of Seller's knowledge no
defaults exist thereunder except as noted on the Rent Roll. No rent or
reimbursement has been paid more than one (1) month in advance and no security
deposit has been paid, except as stated on the Rent Roll. No tenants under the
Leases are entitled to interest on any security deposits. No tenant under any
Lease has or will be promised any inducement, concession or consideration by
Seller other than as expressly stated in such Lease, and except as stated
therein there are and will be no side agreements between Seller and any tenant.
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4.8 Financial Statements. To the best of Seller's knowledge, each of
the Seller Financial Statements delivered or to be delivered to Buyer hereunder
has or will have been prepared in accordance with the books and records of
Seller and presents fairly in all material respects the financial condition,
results of operations and cash flows for the Property as of and for the periods
to which they relate. There has been no material adverse change in the
operations of the Property or its prospects since the date of the most recent
Seller Financial Statements. Seller covenants to furnish promptly to Buyer
copies of the Seller Financial Statements together with unaudited updated
monthly reports of cash flow for interim periods beginning after December 31,
1996. Buyer and its independent certified accountants shall be given access to
Seller's books and records at any time prior to and for six (6) months following
Closing upon reasonable advance notice in order that they may verify the
financial statements prior to Closing. Seller agrees to execute and deliver to
Buyer or its accountants the Audit Representation Letter should Buyer's
accountants audit the records of the Shopping Center.
4.9 Contracts. To the best of Seller's knowledge, except for Leases and
Permitted Exceptions, there are no management, service, maintenance, utility or
other contracts or agreements affecting the Property, oral or written, which
extend beyond the Closing Date and which would bind Buyer or encumber the
Property, at Buyer's option, more than thirty (30) days after Closing. All such
Contracts are in full force and effect in accordance with their respective
terms, and all obligations of Seller under the Contracts required to be
performed to date have been performed in all material respects; no party to any
Contract has asserted any claim of default or offset against Seller with respect
thereto and no event has occurred or failed to occur, which would in any way
affect the validity or enforceability of any such Contract; and the copies of
the Contracts delivered to Buyer prior to the date hereof are true, correct and
complete copies thereof. Between the date hereof and the Closing, Seller
covenants to fulfill all of its obligations under all Contracts, and covenants
not to terminate or modify any such Contracts or enter into any new contractual
obligations relating to the Property without the consent of Buyer (not to be
unreasonably withheld) except such obligations as are freely terminable without
penalty by Seller upon not more than thirty (30) days' written notice.
4.10 Maintenance and Operation of Property. From and after the date
hereof and until the Closing, Seller covenants to keep and maintain and operate
the Property substantially in the manner in which it is currently being
maintained and operated and covenants not to cause or permit any waste of the
Property nor undertake any action with respect to the operation thereof outside
the ordinary course of business without Buyer's prior written consent. In
connection therewith, Seller covenants to make all necessary repairs and
replacements until the Closing so that the Property
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shall be of substantially the same quality and condition at the time of Closing
as on the date hereof. Seller covenants not to remove from the Improvements or
the Real Property any article included in the Personal Property. Seller
covenants to maintain such casualty and liability insurance on the Property as
it is presently being maintained.
4.11 Permits and Zoning. To the best knowledge of Seller, there are no
material permits and licenses (collectively referred to as "Permits") required
to be issued to Seller by any governmental body, agency or department having
jurisdiction over the Property which materially affect the ownership or the use
thereof which have not been issued. The use of the Property is consistent with
the land use designation and zoning for the Property. There are no outstanding
assessments, impact fees or other charges related to the Property.
4.12 Rent Roll; Tenant Estoppel Letters. To the best knowledge of
Seller, the Rent Roll is true and correct in all material respects, to be
certified by Lat Xxxxxx & Associates, Inc., in the form of certificate attached
hereto as Exhibit . Seller agrees to use its best reasonable efforts to obtain
current Tenant Estoppel Letters acceptable to Buyer from all Tenants under
Leases, which Tenant Estoppel Letters shall confirm the matters reflected by the
Rent Roll as to the particular tenant and shall be otherwise acceptable to Buyer
in all material respects.
4.13 Condemnation. To the best of Seller's knowledge, neither the whole
nor any portion of the Property, including access thereto or any easement
benefitting the Property, is subject to temporary requisition of use by any
governmental authority or has been condemned, or taken in any proceeding similar
to a condemnation proceeding, nor is there now pending any condemnation,
expropriation, requisition or similar proceeding against the Property or any
portion thereof. Seller has received no notice nor has any knowledge that any
such proceeding is contemplated.
4.14 Governmental Matters. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing to Buyer and Seller has
received no notices from any such governmental authorities or agencies of
uncured violations at the Property of building, fire, air pollution or zoning
codes, rules, ordinances or regulations, environmental and hazardous substances
laws, or other rules, ordinances or regulations relating to the Property.
4.15 Repairs. Seller has received no notice of any
requirements or recommendations by any lender, insurance companies,
or governmental body or agencies requiring or recommending any
repairs or work to be done on the Property (other than repairs made
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in the ordinary course of business) which have not already been
completed.
4.16 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) require Seller to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority; (b) conflict with or breach any provision
of the organizational documents of Seller; (c) violate or breach any provision
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Seller is a party, or by which
Seller, the Property or any of Seller's material assets may be bound; or (d)
violate any order, writ, injunction, decree, judgment, statute, law or ruling of
any court or governmental authority applicable to Seller, the Property or any of
Seller's material assets.
4.17 Environmental Matters.
(a) Seller represents and warrants as of the date hereof
and as of the Closing that:
(1) Except as stated below, Seller has not, and has
no knowledge that any other person has, caused any Release, threatened Release,
or disposal of any Hazardous Material at the Property in any material quantity;
and
(2) Except as stated below, to Seller's knowledge,
the Property does not now contain and to the best of Seller's knowledge has not
contained any: (a) underground storage tank, (b) material amounts of
asbestos-containing building material, (c) landfills or dumps, (d) drycleaning
plant or other facility using drycleaning solvents; or (e) hazardous waste
management facility as defined pursuant to the Resource Conservation and
Recovery Act ("RCRA") or any comparable state law. The Property is not a site on
or nominated for the National Priority List promulgated pursuant to
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA")
or any state remedial priority list promulgated or published pursuant to any
comparable state law.
(3) There is located on the Property (i) an Exxon
gasoline service station and (ii) a dry cleaning facility. Seller makes no
representations as to either facility, leaving it to the due diligence of Buyer
during the Inspection Period to determine whether and to the extent any
contamination exists with respect to such facilities.
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(b) It has delivered to Buyer copies of environmental
assessment reports for the Property dated _________________, prepared by
______________________, receipt of which Buyer acknowledges. Seller knows of the
existence of, and has reviewed, no other environmental assessment reports which
concern the Property or any portion thereof.
(c) During the Inspection Period Buyer may cause additional
environmental assessments to be performed. Should an environmental condition be
discovered and disclosed to Buyer prior to Closing, Buyer's remedy shall be to
terminate the Agreement, in which event the Xxxxxxx Money Deposit shall be
returned to Buyer, or Buyer may waive such condition and proceed to Closing.
Buyer shall have no other remedy with respect to such pre-closing discovery, if
any, of environmental conditions.
(d) Seller shall indemnify, hold harmless, and hereby waives
any claim for contribution against Buyer for any damages to the extent they
arise from the inaccuracy or breach of any representation or warranty by Seller
in this section of this Agreement. This indemnity shall survive Closing for a
period of two (2) years and shall be in addition to the post-closing indemnities
contained in Section .
4.18 No Untrue Statement. Neither this Agreement nor any exhibit nor
any written statement or Transaction Document furnished or to be furnished by
Seller to Buyer in connection with the transactions contemplated by this
Agreement contains or will contain any untrue statement of material fact or
omits or will omit any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
4.19 As-Is Acquisition. Buyer acknowledges that, except as expressly
represented and warranted by Seller in this Agreement, there have been no
representations or warranties, express or implied, upon which Buyer is relying
which have been made by Seller or upon Seller's behalf relating in any way to
the Property, including, without limitation, the condition of the Property, any
restrictions related to or approvals required for the development of the
Property, or the suitability of the Property for any purposes whatsoever, and
that subject to any and all conditions to Buyer's obligations described in this
Agreement and to Seller's representations and warranties expressed in this
Agreement, Buyer is acquiring the Property "as is," subject to all faults of
every kind and nature whatsoever whether latent or patent and whether now or
hereafter existing. Seller shall not be responsible for any work or improvement
necessary to cause the Property to meet any applicable law, ordinance,
regulation or code or to be suitable for any particular use or for any other
work except that which is covered by an express warranty or representation made
herein by Seller.
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5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement
and as of the Closing and where indicated covenants and agrees as follows:
5.1 Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under laws of Florida and has full power
and authority to enter into and perform this Agreement in accordance with its
terms, and the persons executing this Agreement and other Transaction Documents
on behalf of Buyer have been duly authorized to do so.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement and the other Transaction Documents have been duly and validly
authorized by the Board of Directors of Buyer. This Agreement has been duly and
validly executed and delivered by Buyer and (assuming the valid execution and
delivery of this Agreement by Seller) constitutes a legal, valid and binding
agreement of Buyer enforceable against it in accordance with its terms.
5.3 Commissions. Buyer has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Buyer or Seller for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transaction provided herein except
Xxxxxx X. Xxxxxx/Lat Xxxxxx & Associates, Inc., whose commission shall be paid
by Seller as provided above; and Buyer agrees to indemnify Seller from any other
such claim arising by, through or under Buyer.
6. POSSESSION; RISK OF LOSS
6.1 Possession. Possession of the Property will be
transferred to Buyer at the conclusion of the Closing.
6.2 Risk of Loss. All risk of loss to the Property shall remain upon
Seller until the conclusion of the Closing. If, before the possession of the
Property has been transferred to Buyer, any material portion of the Property is
damaged by fire or other casualty and will not be restored by the Closing Date
or if any material portion of the Property is taken by eminent domain or there
is a material obstruction of access to the Improvements by virtue of a taking by
eminent domain, Seller shall, within ten (10) days of such damage or taking,
notify Buyer thereof and Buyer shall have the option to:
(a) terminate this Agreement upon notice to Seller given
within ten (10) business days after such notice from Seller, in which case Buyer
shall receive a return of its Xxxxxxx Money Deposit; or
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(b) proceed with the purchase of the Property, in which event
Seller shall assign to Buyer all Seller's right, title and interest in all
amounts due or collected by Seller under the insurance policies or as
condemnation awards. In such event, the Purchase Price shall be reduced by the
amount of any insurance deductible to the extent it reduced the insurance
proceeds payable.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance. Prior to the end of the Inspection Period
Buyer shall order the Title Insurance Commitment from Chicago Title Insurance
Company and the Survey from a reputable surveyor familiar with the Property
(Seller agreeing to furnish to Buyer copies of any existing surveys and title
information in its possession promptly after execution of this Agreement). Buyer
will have ten (10) days from receipt of the Title Commitment (including legible
copies of all recorded exceptions noted therein) and Survey to notify Seller in
writing of any Title Defects, encroachments or other matters not acceptable to
Buyer which are not permitted by this Agreement. Any Title Defect or other
objection disclosed by the Title Insurance Commitment (other than liens
removable by the payment of money) or the Survey which is not timely specified
in Buyer's written notice to Seller of Title Defects shall be deemed a Permitted
Exception. Seller shall notify Buyer in writing within five (5) days of Buyer's
notice if Seller intends to cure any Title Defect or other objection. If Seller
elects to cure, Seller shall use diligent efforts to cure the Title Defects
and/or objections by the Closing Date (as it may be extended). If Seller elects
not to cure or if such Title Defects and/or objections are not cured, Buyer
shall have the right, in lieu of any other remedies, to: (i) refuse to purchase
the Property, terminate this Agreement and receive a return of the Xxxxxxx Money
Deposit; or (ii) waive such Title Defects and/or objections and close the
purchase of the Property subject to them.
(b) Miscellaneous Title Matters. If a search of the title
discloses judgments, bankruptcies or other returns against other persons having
names the same as or similar to that of Seller, Seller shall on request deliver
to Buyer an affidavit stating, if true, that such judgments, bankruptcies or the
returns are not against Seller. Seller further agrees to execute and deliver to
the Title Insurance agent at Closing such documentation, if any, as the Title
Insurance underwriter shall reasonably require to evidence that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and that there are no mechanics'
liens on the Property or parties in possession of the Property other than
tenants under Leases and Seller.
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8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The
obligations of Buyer under this Agreement are subject to
satisfaction or waiver by Buyer of each of the following conditions
or requirements on or before the Closing Date:
(a) Seller's warranties and representations under this
Agreement shall be true and correct as of the Closing Date, and
Seller shall not be in default hereunder.
(b) All obligations of Seller contained in this Agreement,
shall have been fully performed in all material respects and Seller shall not be
in default under any covenant, restriction, right-of-way or easement affecting
the Property.
(c) No tenant occupying more than 5,000 square feet nor an
aggregate of any three tenants, regardless of size, has vacated the Property,
filed any proceeding (or been the subject of the filing of any proceeding) under
the National Bankruptcy Act, terminated its lease or otherwise defaulted under
its lease.
(d) A Title Insurance Commitment in the full amount of the
Purchase Price shall have been issued and "marked down" through Closing, subject
only to Permitted Exceptions, and the Survey shall have been obtained by Buyer.
(e) The physical and environmental condition of the
Property shall be unchanged from the date of this Agreement,
ordinary wear and tear excepted.
(f) Seller shall have delivered to Buyer the following
in form reasonably satisfactory to Buyer:
(1) A special warranty deed in the form approved by
the North Carolina Bar Association, executed in the proper form for recording,
duly executed and acknowledged so as to convey to Buyer the fee simple title to
the Property, subject only to the Permitted Exceptions;
(2) Originals, if available, or if not, true copies
of the Leases and of the contracts, agreements, permits and
licenses, and such Materials as may be in the possession or control
of Seller;
(3) A blanket assignment to Buyer of all Leases and
the contracts, agreements, permits and licenses (to the extent assignable) as
they affect the Property, including an indemnity against breach of such
instruments by Seller prior to the Closing Date, and an indemnity from Buyer for
breach of such instruments by Buyer after the Closing Date;
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(4) A xxxx of sale with respect to the Personal
Property and Materials;
(5) A title certificate, properly endorsed by
Seller, as to any items of Property for which title certificates
exist;
(6) Intentionally omitted;
(7) A current rent roll for all Leases in effect
showing no changes from the rent roll attached to this Agreement other than
those set forth in the Leases or approved in writing by Buyer;
(8) All Tenant Estoppel Letters obtained by Seller,
which must include Fresh Market, Eckerd, Piece Goods, Blockbuster, Party City
and Xxxxx X. Cheese, Midtown South, The Great Wall of China, Exxon, Quincy's,
Southern National Bank and eighty percent (80%) of the other tenants who have
signed leases for any portion of the Property, without any material exceptions,
covenants, or changes to the form of Tenant Estoppel Letter (except as noted in
Section above) and distributed to the tenants by Seller, the substance of which
Tenant Estoppel Letters must be acceptable to Buyer in all respects, and the
certificate of Seller as landlord, or of Lat Xxxxxx & Associates, Inc, as
property manager on behalf of Landlord, for all of the remaining tenants
certifying as to the substance of the form of Tenant Estoppel Letter, excluding
paragraphs 10 and 11 thereof;
(9) A general assignment of all assignable existing
warranties relating to the Property (the costs of the transfers of
such, if any, to be borne by Buyer);
(10) An owner's affidavit, non-foreign affidavits,
non-tax withholding certificates and such other documents as may reasonably be
required by Buyer or its counsel in order to effectuate the provisions of this
Agreement and the transactions contemplated herein;
(11) The originals or copies of any real and
tangible personal property tax bills for the Property for the tax year of
Closing and the previous year, and, if requested, the originals or copies of any
current water, sewer and utility bills which are in Seller's custody or control;
(12) Resolutions of Seller authorizing the
transactions described herein;
(13) All keys and other means of access to the
Improvements in the possession of Seller or its agents;
(14) Materials; and
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(15) Such other documents as Buyer may reasonably
request to effect the transactions contemplated by this Agreement.
(g) Simultaneous closing of acquisition by Buyer from
Wake Capital Partnership of Oakley Plaza Shopping Center in
Buncombe County, North Carolina, pursuant to Purchase and Sale
Agreement of even date herewith.
In the event that all of the foregoing provisions of this Section are
not satisfied and Buyer elects in writing to terminate this Agreement, then the
Xxxxxxx Money Deposit shall be promptly delivered to Buyer by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
against the other by reasons of this Agreement, except as provided in Article 9.
Upon Closing, all conditions precedent shall be deemed satisfied or waived,
unless otherwise agreed by Seller and Buyer.
8.2 Conditions Precedent to Seller's Obligations. The
obligations of Seller under this Agreement are subject to
satisfaction or waiver by Seller of each of the following
conditions or requirements on or before the Closing date:
(a) Buyer's warranties and representations under this
Agreement shall be true and correct as of the Closing Date, and
Buyer shall not be in default hereunder.
(b) All of the obligations of Buyer contained in this
Agreement shall have been fully performed by or on the date of Closing in
compliance with the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Seller at or prior to the
Closing the following, which shall be reasonably satisfactory to Seller:
(1) Delivery and/or payment of the balance of the
Purchase Price in accordance with Section at Closing;
(2) Such other documents as Seller may reasonably
request to effect the transactions contemplated by this Agreement.
(d) Simultaneous closing of acquisition by Buyer from
Wake Capital Partnership of Oakley Plaza Shopping Center in
Buncombe County, North Carolina, pursuant to Purchase and Sale
Agreement of even date herewith.
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
have not, and Seller elects in writing to terminate this Agreement, then the
Xxxxxxx Money Deposit shall be promptly delivered to Seller by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
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against the other by reasons of this Agreement, except as provided in Article 9.
Upon Closing, all conditions precedent shall be deemed satisfied or waived,
unless otherwise agreed by Seller and Buyer.
8.3 Best Efforts. Each of the parties hereto agrees to use
reasonable best efforts to take or cause to be taken all actions
necessary, proper or advisable to consummate the transactions
contemplated by this Agreement.
9. PRE-CLOSING BREACH; REMEDIES
9.1 Breach by Seller. In the event of a breach of Seller's covenants or
warranties herein and failure by Seller to cure such breach within the time
provided for Closing, Buyer may, at Buyer's election (i) terminate this
Agreement and receive a return of the Xxxxxxx Money Deposit, and the parties
shall have no further rights or obligations under this Agreement (except as
survive termination); (ii) enforce this Agreement by suit for specific
performance; or (iii) waive such breach and close the purchase contemplated
hereby, notwithstanding such breach.
9.2 Breach by Buyer. In the event of a breach of Buyer's covenants or
warranties herein and failure of Buyer to cure such breach within the time
provided for Closing, Seller's sole remedy shall be to terminate this Agreement
and retain Buyer's Xxxxxxx Money Deposit as agreed liquidated damages for such
breach, and upon payment in full to Seller of such amounts, the parties shall
have no further rights, claims, liabilities or obligations under this Agreement
(except as survive termination).
10. POST CLOSING INDEMNITIES AND COVENANTS
10.1 Seller's Indemnity. Should this transaction close, Seller, subject
to the limitations set forth herein, shall indemnify, defend and hold harmless
Buyer from all claims, demands, liabilities, damages, penalties, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, which may be imposed upon, asserted against or incurred or paid
by Buyer by reason of, or on account of, any material breach by Seller of
Seller's warranties, representations and covenants. Seller's warranties,
representations and covenants, and the foregoing indemnity, shall survive the
Closing for a period of six (6) months only following the Closing Date, after
which six-month period all indemnities, representations, warranties, covenants,
or other obligations of Seller contained or referenced in this Agreement (other
than title warranties and the environmental indemnity set forth in Section ),
shall be deemed to have terminated, and shall be null and void and of no further
force and effect. Any claim for indemnification under the provisions of Section
must be made in writing within six (6) months following the Closing Date.
- 20 -
10.2 Buyer's Indemnity. Should this transaction close, Buyer shall
indemnify, defend and hold harmless Seller from all claims, demands,
liabilities, damages, penalties, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, which may be imposed
upon, asserted against or incurred or paid by Seller by reason of, or on account
of, any breach by Buyer of Buyer's warranties, representations and covenants.
Buyer's warranties, representations and covenants, and the foregoing indemnity,
shall survive the Closing, after which six-month period all indemnities,
representations, warranties, covenants, or other obligations of Buyer contained
or referenced in this Agreement shall be deemed to have terminated, and shall be
null and void and of no further force and effect. Any claim for indemnification
under the provisions of Section must be made in writing within six (6) months
following the Closing Date.
11. MISCELLANEOUS
11.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement without the prior approval of the other, except
to its attorneys, accountants and other consultants, their lenders and
prospective lenders, or where disclosure is required by law.
11.2 Entire Agreement. This Agreement, together with the Exhibits
attached hereto, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and may not be modified, amended or
otherwise changed in any manner except by a writing executed by Buyer and
Seller.
11.3 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement shall be served by personal delivery, certified or overnight
mail, reputable overnight courier service or facsimile (followed promptly by
hard copy) at the addresses set forth below:
As to Seller: Charlotte Capital Partners
c/o Lat Xxxxxx & Associates, Inc.
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxx Xxxxxxx & Xxxxxxxxx, P.L.L.C.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
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As to Buyer: RRC Acquisitions, Inc.
Xxxxx 000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Rogers, Towers, Xxxxxx, Xxxxx & Gay
0000 Xxxxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any notice or demand so served shall constitute proper notice hereunder upon
delivery to the United States Postal Service or to such overnight courier. A
party may change its notice address by notice given in the aforesaid manner.
11.4 Headings. The titles and headings of the various sections hereof
are intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
11.5 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.6 Attorneys' Fees. In the event of any litigation between the
parties hereto to enforce any of the provisions of this Agreement or any right
of either party hereto, the unsuccessful party to such litigation agrees to pay
to the successful party all costs and expenses, including reasonable attorneys'
fees, whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions herein shall include
indemnification for reasonable attorneys' fees and costs, whether or not suit be
brought and including fees and costs on appeal.
11.7 Time of Essence. Time is of the essence of this
Agreement.
11.8 Governing Law. This Agreement shall be governed by the
laws of North Carolina and the parties hereto agree that any
litigation between the parties hereto relating to this Agreement
shall take place (unless otherwise required by law) in a court
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located in Mecklenburg County, State of North Carolina. Each party
waives its right to jurisdiction or venue in any other location.
11.9 Successors and Assigns. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No third parties, including any brokers or
creditors, shall be beneficiaries hereof.
11.10 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
11.11 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
11.12 Further Instruments, Etc. Seller and Buyer shall,
at or after Closing, execute any and all documents and perform any
and all acts reasonably necessary to fully implement this
Agreement.
11.13 Survival. Subject to the time limitations set forth
in Section , the obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.14 No Recording. Neither this Agreement nor any
notice, memorandum or other notice or document relating hereto
shall be recorded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
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Witnesses:
RRC ACQUISITIONS, INC.,
_______________________ a Florida corporation
[ - - - - - - - - - - - - ]
Name (Please Print)
By:___________________________
Its:_______________________
----------------------------
[ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: February ____, 1997
Name (Please Print)
Tax Identification No.
00-0000000
"BUYER"
CHARLOTTE CAPITAL PARTNERS,
a North Carolina general
___________________________ partnership
[ - - - - - - - - - - - - ]
Name (Please Print)
By:___________________________
Its Authorized Partner
----------------------------
[ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: February ____ 1997
Name (Please Print)
Tax Identification No.
-----------------
"SELLER"
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JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of acknowledging
receipt of the initial Xxxxxxx Money Deposit and agrees to comply with the terms
hereof insofar as they apply to Escrow Agent. Escrow Agent shall receive and
hold the Xxxxxxx Money Deposit in trust, to be disposed of in accordance with
the provisions of this joinder and Section of the foregoing Agreement.
2. Indemnity. Escrow Agent shall not be liable to either party except
for claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow
Agent with respect to the escrow, the parties hereto expressly agree that Escrow
Agent shall have the absolute right to do either or both of the following: (i)
withhold and stop all proceedings in performance of this escrow and await
settlement of the controversy by final appropriate legal proceedings or
otherwise as it may require; or (ii) file suit for declaratory relief and/or
interpleader and obtain an order from the court requiring the parties to
interplead and litigate in such court their several claims and rights between
themselves. Upon the filing of any such declaratory relief or interpleader suit
and tender of the Xxxxxxx Money Deposit to the court, Escrow Agent shall
thereupon be fully released and discharged from any and all obligations to
further perform the duties or obligations imposed upon it. Buyer and Seller
agree to respond promptly in writing to any request by Escrow Agent for
clarification, consent or instructions. Any action proposed to be taken by
Escrow Agent for which approval of Buyer and/or Seller is requested shall be
considered approved if Escrow Agent does not receive written notice of
disapproval within fourteen (14) days after a written request for approval is
received by the party whose approval is being requested. Escrow Agent shall not
be required to take any action for which approval of Buyer and/or Seller has
been sought unless such approval has been received. No disbursements shall be
made, other than as provided in Sections and of the foregoing Agreement, or to a
court in an interpleader action, unless Escrow Agent shall have given written
notice of the proposed disbursement to Buyer and Seller and neither Buyer nor
Seller shall have delivered any
written objection to the disbursement within 14 days after receipt of Escrow
Agent's notice. No notice by Buyer or Seller to Escrow Agent of disapproval of a
proposed action shall affect the right of Escrow Agent to take any action as to
which such approval is not required.
4. Continuing Counsel. Seller acknowledges that Escrow Agent is counsel
to Buyer herein and Seller agrees that in the event of a dispute hereunder or
otherwise between Seller and Buyer, Escrow Agent may continue to represent Buyer
notwithstanding that it is acting and will continue to act as Escrow Agent
hereunder, it being acknowledged by all parties that Escrow Agent's duties
hereunder are ministerial in nature.
5. Tax Identification. Seller and Buyer shall provide to
Escrow Agent appropriate Federal tax identification numbers.
CHICAGO TITLE INSURANCE COMPANY
By:_____________________________
Its Authorized Agent
Date:___________________, 1997
"ESCROW AGENT"
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EXHIBIT
Audit Representation Letter
-----------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
Xxxxx 0000
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
We are writing at your request to confirm our understanding that your
audit of the Statement of Revenue and Certain Expenses for the twelve months
ended ________________, was made for the purpose of expressing an opinion as to
whether the statement presents fairly, in all material respects, the results of
its operations in conformity with generally accepted accounting principles. In
connection with your audit we confirm, to the best of our knowledge and belief,
the following representations made to you during your audit:
1. We have made available to you all financial records and
related data for the period under audit.
2. There have been no undisclosed:
a. Irregularities involving any member of management or
employees who have significant roles in the internal control
structure.
b. Irregularities involving other persons that could
have a material effect on the Statement of Revenue and Certain
Expenses.
c. Violations or possible violations of laws or
regulations, the effects of which should be considered for
disclosure in the Statement of Revenue and Certain Expenses.
3. There are no undisclosed:
a. Unasserted claims or assessments that our lawyers
have advised us are probable of assertion and must be disclosed in
accordance with Statement of Financial Accounting Standards No. 5
(SFAS No. 5).
b. Material gain or loss contingencies (including oral
and written guarantees) that are required to be accrued or
disclosed by SFAS No. 5.
c. Material transactions that have not been properly
recorded in the accounting records underlying the Statement of
Revenue and Certain Expenses.
d. Material undisclosed related party transactions and related
amounts receivable or payable, including sales, purchases, loans, transfers,
leasing arrangements, and guarantees.
e. Events that have occurred subsequent to the balance
sheet date that would require adjustment to or disclosure in the
Statement of Revenue and Certain Expenses.
4. All aspects of contractual agreements that would have a material
effect on the Statement of Revenue and Certain Expenses have been complied with.
Further, we acknowledge that we are responsible for the fair
presentation of the Statements of Revenue and Certain Expenses prepared in
conformity with generally accepted accounting principles.
Very truly yours,
"Seller/Manager"
Name
Title
- 2 -
EXHIBIT
Legal Description of Real Property
All that tract or parcel of land lying and being in Charlotte, Meckenburg
County, North Carolina, and being more particularly described as follows:
BEGINNING at the point formed by the intersection of the centerline of North
Carolina Xxxxxxx 000 (Xxxxxxxx-Xxxxxxxxx Xx.) (100 foot right-of-way) and the
centerline of Carmel Road (100 foot right-of-way), run thence North 89 degrees
50 minutes 43 seconds West a distance of 1529.55 feet, as measured along said
centerline of North Carolina Highway 151, to a point; run thence North 89
degrees 48 minutes 38 seconds West, and continuing along said centerline of
North Carolina Highway 151, a distance of 71.98 feet to the point formed by the
intersection of said centerline of North Carolina Highway 151 and the centerline
of Carmel Commons Boulevard (size of right-of-way varies); thence South 00
degrees 11 minutes 22 seconds West along said centerline of Carmel Commons
Boulevard a distance of 312.72 feet to a nail; thence in a Southwesterly
direction, and continuing along said centerline of Carmel Commons Boulevard,
along the arc of a curve to the right (said curve having a chord bearing South
10 degrees 53 minutes 55 seconds West, a chord distance of 92.90 feet, and a
radius of 250.00 feet) an arc distance of 93.44 feet to a nail; thence South 21
degrees 36 minutes 22 seconds West, and continuing along said centerline of
Carmel Commons Boulevard, a distance of 147.09 feet to a nail; thence in a
Southwesterly, Southerly and Southeasterly direction, and continuing along said
centerline of Carmel Commons Boulevard, along the arc of a curve to the left
(said curve having a chord bearing South 30 degrees 00 minutes 45 seconds East,
a chord distance of 391.95 feet, and a radius of 250.00 feet) an arc distance of
450.46 feet to a nail; thence South 81 degrees 37 minutes 53 seconds East, and
continuing along said centerline of Carmel Commons Boulevard, a distance of
186.00 feet to a nail; thence in a Southeasterly direction, and continuing along
said centerline of Carmel Commons Boulevard, along the arc of a curve to the
right (said curve having a chord bearing South 68 degrees 44 minutes 43 seconds
East, a chord distance of 133.81 feet, and a radius of 300.00 feet) an arc
distance of 134.94 feet to a nail; thence North 25 degrees 31 minutes 16 seconds
East a distance of 259.48 feet to an iron; thence North 00 degrees 09 minutes 17
seconds East a distance of 120.00 feet to a nail; thence South 89 degrees 50
minutes 43 seconds East a distance of 332.04 feet to an iron; thence South 00
degrees 04 minutes 30 seconds West a distance of 245.56 feet to an iron; thence
South 89 degrees 50 minutes 43 seconds East a distance of 491.07 feet to a point
in said centerline of Carmel Road; thence Northeasterly along said centerline of
Carmel Road and along the arc of a curve to thrd bearing North 10 degrees 13
minutes 09 seconds East, a chord distance of 249.41 feet, and a radius of
1055.02 feet) an arc distance of 249.99 feet; thence Northeasterly along said
centerline
of Carmel Road and along the arc of a curve to the right (said curve having a
chord bearing North 22 degrees 09 minutes 47 seconds East, a chord distance of
189.63 feet, and a radius of 1055.02 feet) an arc distance of 189.89 feet to a
point; thence North 27 degrees 19 minutes 10 seconds East, and continuing along
said centerline of Carmel Road, a distance of 476.78 feet to the TRUE POINT OF
BEGINNING; being improved property containing 28.325 acres as more particularly
shown on that certain survey entitled "A Boundary Survey for First Capital
Institutional Real Estate, Ltd., and Carmel Park, Ltd.," dated May 19, 1980,
last revised May 24, 1983, prepared by Carolina Surveyors, Inc., P.A.,
Xxxxxxxxxx, North Carolina Registered Land Surveyor No. L643.
LESS AND EXCEPT THE FOLLOWING DESCRIBED PARCEL:
BEING all of that certain tract or parcel of land located in the City of
Charlotte, County of Mecklenburg and State of North Carolina, more particularly
described as follows:
Commencing at a P.K. Nail located at the intersection of the centerline of the
right-of-way of N.C. Xxxxxxx Xx. 00 a/k/a Pineville-Xxxxxxxx Road (a 100-foot
right-of-way) and the center- line of the right-of-way of Carmel Commons
Boulevard (a variable width right-of-way); thence South 50o 51'10" East 78.48
feet to a point in the intersection of the easterly margin of the right-of-way
of Carmel Commons Boulevard with the southerly margin of the right-of-way of
N.C. Xxxxxxx Xx. 00; thence with said southerly margin of the right-of-way of
N.C. Xxxxxxx Xx. 00 the following three courses and distances: (1) South 89o
48'38" East 12.00 feet to a point; (2) South 89o 50'43" East 177.06 feet to a
point; and (3) South 89o 50'43" East 24.00 feet to a set steel rod being the
point and place of BEGINNING; thence leaving the southerly margin of said
right-of-way South 00o 05'50" East 220.95 feet to a set steel road; thence South
89o 50'41" East 191.48 feet to a point; thence North 00o 09'17" East 220.95 feet
to a point in the southern margin of the right-of-way of N.C. Xxxxxxx Xx. 00;
thence within the margin of said right-of-way North 89o 50'43" West 192.45 feet
to the point and place of BEGINNING, all as shown on that Lease Exhibit Map
Showing Proposed Quincy's Lease Lines by DSAtlantic, dated February 14, 1995,
revised February 22, 1995, reference to which is hereby made for a more
particularly description.
The Beginning Point was derived in part from that certain Boundary and
Topographic Survey prepared for Platinum Rotisserie Corporation by DSA Design
Group, dated March 24, 1994, bearing sheet number D-1
of 5.
- 2 -
EXHIBIT
Rent Roll
EXHIBIT
Form of Tenant Estoppel Letter
__________________, 199___
RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised you may purchase the above
Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of __________________,
Landlord, in the above Shopping Center, and is currently in
possession and paying rent on premises known as Store No.
_______________ [or Address: ____________________________________
----------------------------------------------------------------],
and containing approximately _____________ square feet, under the terms of the
lease dated ______________________, which has (not) been amended by amendment
dated ________________________ (the "Lease"). There are no other written or oral
agreements between Tenant and Landlord. Tenant neither expects nor has been
promised any inducement, concession or consideration for entering into the
Lease, except as stated therein, and there are no side agreements or
understandings between Landlord and Tenant.
2. The term of the Lease commenced on ____________________,
expiring on _______________, with options to extend of _________
(____) years each.
3. As of ____________________, monthly minimum rental is
$_______________ a month.
4. Tenant is required to pay its pro rata share of Common Area Expenses
and its pro rata share of the Center's real property taxes and insurance cost.
Current additional monthly payments for expense reimbursement total
$____________ per month for common area maintenance, property insurance and real
estate taxes.
5. Tenant has given [no security deposit] [a security
deposit of $______________].
6. No payments by Tenant under the Lease have been made for more than
one (1) month in advance, and minimum rents and other charges under the Lease
are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the Tenant's premises
and development of the Shopping Center, including without limitation, parking
requirements, have been performed by Landlord.
8. The Lease contains no first right of refusal, option to
expand, option to terminate, or exclusive business rights, except
as follows:
9. Tenant knows of no default by either Landlord or Tenant under the
Lease, and knows of no situations which, with notice or the passage of time, or
both, would constitute a default. Tenant has no rights to off-set or defense
against Landlord as of the date hereof.
10. The undersigned has not entered into any sublease,
assignment or any other agreement transferring any of its interest
in the Lease or the Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or
released any hazardous substances at, on or in the Premises. "Hazardous
Substances" means any flammable, explosive, toxic, carcinogenic, mutagenic, or
corrosive substance or waste, including volatile petroleum products and
derivatives and drycleaning solvents. To the best of Tenant's knowledge, no
asbestos or polychlorinated biphenyl ("PCB") is located at, on or in the
Premises. The term "Hazardous Substances" does not include those materials which
are technically within the definition set forth above but which are contained in
pre-packaged office supplies, cleaning materials or personal grooming items or
other items which are sold for consumer or commercial use and typically used in
other similar buildings or space.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
-------------------------------
________________________(Tenant)
Mailing Address:
-------------------------------
By:____________________________
Its:___________________________
-------------------------------
- 2 -
EXHIBIT
Form of Manager's Certificate
Certification of Leases
THIS CERTIFICATION OF LEASES ("Certification") is made this
____ day of ____________, 19___, by LAT XXXXXX & ASSOCIATES, INC.
("Lat Xxxxxx"), in favor of ____________________________________
("Seller") and RRC ACQUISITIONS, INC. ("Buyer").
WHEREAS, Seller and Buyer have entered into that certain Purchase and
Sale Agreement for the sale and purchase of that certain real property and
improvements known as Carmel Commons, located in Charlotte, North Carolina (the
"Property");
WHEREAS, Lat Xxxxxx is the property manager of the Property;
and
WHEREAS, Seller and Buyer have requested that Lat Xxxxxx provide this
Certification in connection with the sale of the Property and Lat Xxxxxx has
agreed to provide the same;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lat Xxxxxx hereby certifies the
following to Seller and Buyer as of the date hereof:
1. The lease agreements, and amendments and modifications thereto,
attached to this Certification (collectively, "Leases") are all the leases
affecting the Property. The Rent Roll attached hereto is true and accurate in
all material respect, and the Leases are in full force and effect. There are no
modifications and amendments to any of such Leases except as stated in the Rent
Roll.
2. Seller as landlord under the Leases is not in default under the
Leases and none of the tenants under the Leases is in default thereunder, except
as set forth on the Rent Roll.
IN WITNESS WHEREOF, Lat Xxxxxx has executed this Certification as of
the day and year first above written.
LAT XXXXXX & ASSOCIATES, INC.
By:____________________________
Name:__________________________
Title:_________________________
xxx\reg\carmel\xxx.xxx
