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EXHIBIT 10.1
AGREEMENT FOR THE SALE AND PURCHASE OF PROPERTY
THIS AGREEMENT FOR THE SALE AND PURCHASE OF PROPERTY (the "Agreement"),
is made and entered into this 12th day of September, 1997, between MARKET PLACE
SHOPPING CENTER, L.P., a Georgia limited partnership ("Seller") and IRT PROPERTY
COMPANY, a Georgia corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
certain property more particularly described herein upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the sum of Ten and No/100 ($10.00) Dollars in hand
paid by Purchaser to Seller, and other good and valuable consideration, the
receipt, adequacy, and sufficiency of which are hereby acknowledged, the parties
hereto intending to be legally bound agree as follows:
1. Sale of Property. Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from Seller, upon the terms and conditions hereinafter set
forth, all of the right, title and interest of Seller in and to all property
described in Sections 1.1, 1.2, 1.3 and 1.4 below (collectively "the Property").
1.1 Real Property. All of those certain tracts or parcels of land
containing approximately 6.49 acres, and lying and being in Gwinnett
County, Georgia, and being described in Exhibit A attached hereto
(collectively the "Land"), together with all buildings now or hereafter
located on the Land, including, without limitation, those certain store
buildings containing approximately 75,526 square feet of leasable area;
all improvements, fixtures, and other items of real property now or
hereafter located upon the Land; all easements appurtenant to the Land
and other easements, grants of right, licenses, privileges or other
agreements for the benefit of, belonging to or appurtenant to the Land,
whether or not situate upon the Land, including without limitation,
sign rights and parking rights or agreements; all mineral, oil and gas
rights, riparian rights, water rights, sewer rights and other utility
rights allocated to the Land; all right, title and interest of the
owner of the Land in and to any roads, streets and ways, public or
private, in front of or adjoining all or any part of the Land and
serving the Land; and the reversionary interest in any parcel
encumbered by a ground lease; all whether or not specifically
referenced on Exhibit A attached hereto, and subject only to those
certain permitted title exceptions more particularly described in
Exhibit B attached hereto (the "Permitted Title Exceptions").
1.2 Tangible Personal Property. All tangible personal property used in
connection with the ownership, financing, occupation, operation, and
maintenance of the aforesaid buildings, improvements and fixtures,
located upon the Land which are now or at Closing owned by Seller (it
being agreed and understood that the tangible property to be conveyed
by Seller shall specifically exclude tangible property owned by
third-party tenants of building space located upon the Land), together
with all furniture, furnishings, fittings, signs, tools, equipment,
machinery, apparatus, building materials, supplies (consumable and
otherwise), carpeting, draperies, window treatments and other
decorations, and other personal property whether located upon or off
the Land and used in connection with the ownership, financing,
occupation, operation, and maintenance of the aforesaid buildings,
improvements and fixtures, located upon the Land and which are now or
at Closing owned by Seller, including without limitation, all boilers,
furnaces, heating, ventilating and air-conditioning systems, elevators,
escalators, building drawings, plans and specifications, building
materials and wall partitions, sprinkler
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systems, sewerage systems, electrical equipment, fire prevention and
extinguishing apparatus, engineering, maintenance and housekeeping
supplies and materials of all kinds whether used, unused or in stock
for future use in connection with the maintenance and operation of the
Property.
1.3 Intangible Personal Property. All of Seller's right, title and
interest in and to all intangible personal property not described in
Sections 1.1, 1.2 and 1.4 of this Agreement which is used in connection
with the ownership, financing, occupation, operation, and maintenance
of the aforesaid buildings, improvements, fixtures, and personal
property located upon the Land, including, without limitation, the
right to use the trade name "Market Place Shopping Center," and all of
Seller's right, title and interest in and to any and all other
tradenames, trademarks, service marks, logos, contract rights,
telephone numbers, escrow accounts, guaranties, warranties, permits,
licenses, approvals, certificates, soils reports, engineering studies,
bonds, deposits, instruments, documents of title, general intangibles
and business records, files, correspondence, tenant lists, tenant
prospect lists, brochures and advertising materials pertaining to the
aforesaid buildings, improvements, fixtures and personal property
located upon the Land, rights in and to the surrounding dedicated
streets, entitlement in and to any award made or to be made in lieu of
any of Seller's interests to be conveyed, including any award or
payment for any condemnation of the Land or any land in front of or
adjoining all or any part of the Land, and goodwill and all other
intangible property related to the Land or connected therewith and
appurtenances related to the Land. Purchaser acknowledges that Seller
makes no representation or warranty that Seller owns or has any right
to transfer any of the intangible property described in this Section
1.3; provided, however, Seller does hereby represent and warrant to
Purchaser that Seller has not previously transferred all or any portion
of its right, title and interest, if any, in and to such intangible
property to any other individual or entity.
1.4 Tenant Leases. The interest of the owner of the Land in and to all
leases, subleases, rental agreements and other occupancy agreements,
whether oral or written and whether or not of record, for the use or
occupancy of any portion of the Property, including without limitation
the leases described on Exhibit L attached hereto and made a part
hereof, together with all amendments to, modifications of, renewals and
extensions of said leases, subleases, rental agreements and other
occupancy agreements, all guaranties with respect thereto, all work
letter agreements, improvement agreements and other agreements with
lessee's or tenant's thereunder, all default notices, estoppel letters,
escalation notices and other correspondence in regard thereto, and all
accounting records in regard thereto (collectively hereinafter the
"Tenant Leases"), together with all prepaid rents, advance rentals and
lease security deposits with respect to the Tenant Leases.
Notwithstanding the foregoing, Seller shall be entitled to retain
copies of all such records and correspondence after Closing. The Tenant
Leases with Regal Theaters and Big B Drugs are sometimes hereinafter
referred to as the "Credit Tenant Leases" and the leases to all other
tenants are sometimes collectively hereinafter referred to as the
"Local Tenant Leases." The tenants or lessees under the Credit Tenant
Leases and the Local Tenant Leases are sometimes referred to herein as
the "Credit Tenants" and the "Local Tenants," respectively. The tenants
or lessees under the Tenant Leases are sometimes referred to herein as
the "Tenants."
2. Purchase Price. Subject to the adjustments and prorations hereinafter
described, the total purchase price for the Property shall be Seven
Million One Hundred Thousand and No/100 Dollars ($7,100,000.00) (the
"Purchase Price"). The Deposit (as defined in Section 12) deposited by
Purchaser
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in accordance with Section 12 of this Agreement shall be credited against the
Purchase Price due from Purchaser at Closing.
2.1 Method of Payment of Purchase Price. The Purchase
Price shall be paid by Purchaser to Seller on the Closing Date in cash, or by
federal wire transfer or other immediately available funds at Closing.
3. Inspection of Property. Purchaser shall have until forty-five (45)
days after the Effective Date (the "Inspection Period") to investigate and
inspect the Property and conduct any and all due diligence as Purchaser may deem
necessary. Seller shall cooperate with Purchaser to facilitate such
investigation and inspection, and in the event that Purchaser desires to meet
with any of the tenants on the Property, Purchaser shall first give Seller not
less than two (2) days advance notice (written or oral), and then a
representative of Seller shall have the opportunity to accompany Purchaser at
such meeting. Until Closing, Purchaser and any of its authorized representatives
and agents shall have access onto the Land for the determination of utility
availability, soil, environmental, engineering, and feasibility testing, and
other tests, inspections, and investigations deemed necessary by Purchaser in
its sole discretion, including without limitation, examination of all Tenant
Leases, Service Contracts (as defined in Section 6.22 hereof), tangible personal
property and intangible personal property. Purchaser agrees to indemnify and
hold Seller harmless from all liability for injury to person or property arising
out of the inspection and investigation of the Property by Purchaser or by any
of the representatives or agents of Purchaser, and Purchaser shall promptly
restore the Property in the event that Purchaser's inspections and
investigations result in any damage to the Property. At all reasonable times
prior to and after the Closing Date for a period of three (3) years, Seller
shall give Purchaser, and its counsel, accountants and representatives, full
access to all books and records with respect to ownership, management and
operation of the Property, shall permit them to copy the same and shall furnish
Purchaser with all such information concerning the same as Purchaser may
reasonably request. All such information shall be kept confidential by
Purchaser. Seller and Purchaser hereby agree, notwithstanding anything to the
contrary contained in this Agreement, that Purchaser shall have the
unconditional and absolute right to terminate this Agreement by delivery of
written notice to Seller given at any time before the close of the Inspection
Period, in which event the Deposit shall be paid to Purchaser and Purchaser
shall deliver to Seller all documents that Seller has previously provided to
Purchaser and copies of all reports that Purchaser has obtained with respect to
the Property. The indemnification provided in this Section 3 shall survive any
termination of this Agreement by Purchaser as provided above. If Purchaser shall
not terminate this Agreement prior to the expiration of the Inspection Period as
provided in this Section 3, the Deposit shall thereafter be non-refundable to
Purchaser, except in the event of a Seller default or as otherwise specifically
set forth herein and subject to performance by Seller of all of its obligations
under this Agreement.
3.1 Rejection of Service Contracts. During the Inspection
Period Purchaser shall review the Service Contracts, and in the event Purchaser
is unsatisfied with any of the Service Contracts for any reason, Purchaser shall
have the right to provide notice of rejection of such Service Contracts to
Seller prior to the end of the Inspection Period. Any Service Contracts which
are so rejected (the "Rejected Service Contracts") shall be terminated in the
manner set forth in Section 7.3.11 of this Agreement.
4. Title and Survey.
4.1 Title. Seller shall convey and transfer to Purchaser
such good, indefeasible and marketable title to the Property as will
enable Purchaser's title insurance company to issue its title policy in
the amount of the Purchase Price, subject only to the Permitted Title
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Exceptions, but without exception as to matters of survey or to
mechanics' or similar liens, and free and clear of any and all other
pledges, mortgages, liens, judgments, conditional sales agreements,
encumbrances, ground rents, leases, tenancies, parties in possession,
licenses, security interests, covenants, conditions, restrictions,
rights-of-way, easements, encroachments and any agreements, contracts,
rights, acts, charges or other matters of any nature affecting the
title, except to the extent the foregoing constitute Permitted Title
Exceptions. Purchaser shall have until forty-five (45) days after the
Effective Date ("Title Examination Period") by which to give notice to
Seller of any objections which Purchaser may have, including, without
limitation, objections to any matters which constitute Permitted Title
Exceptions. If Purchaser does give Seller notice of objection to any
survey or title exceptions or defects, then, for a period of fifteen
(15) days after such notice, Seller shall have the option but not the
obligation to remove and cure such defects or encumbrances; provided,
however, that Seller shall pay and satisfy any monetary lien which
encumbers all or any portion of the Property, and Seller shall remove,
cure or satisfy any such defects which arise on or after the effective
dates of the Survey and any title insurance commitment or certificate
of title Purchaser obtains during the Title Examination Period. If any
objection is not so satisfied by Seller, then regardless of whether or
not such objection constitutes a Permitted Title Exception, Purchaser
shall have the right to terminate this Agreement by notice to Seller in
which case the Deposit shall be returned to Purchaser. If Seller does
so cure or satisfy the objections, then this Agreement shall continue
in effect. Purchaser shall have the right at any time to waive any
objections that it may have made and thereby preserve this Agreement in
effect. Except as hereinafter specifically set forth, Seller agrees not
to further alter or encumber in any way Seller's title to the Property
after the date of this Agreement. Purchaser shall have the continuing
right to object to any survey or title matters first appearing after
the later of (i) the date Purchaser receives the Survey, or (ii) the
effective date of the certificate of title or title insurance
commitment Purchaser obtains with respect to the Property.
4.2 Survey. During the Inspection Period, Purchaser, at Seller's
expense, shall cause to be prepared an accurate as-built ALTA\ACSM Land
Title Survey of the Property, certified by a registered land surveyor
acceptable to Purchaser in its sole discretion, showing the boundaries
and the acreage, to the nearest 1,000th of an acre, net of roadways and
utility rights-of-way, of the Property, the location of all easements,
buildings, improvements, set back lines and encroachments, if any,
located thereon, together with a legal description of the Property (the
"Survey"). Once the Survey has been prepared, a legal description of
the Property prepared from the Survey shall be initialed by Purchaser
and Seller and attached hereto as Exhibit A-1. Subject to the
provisions of the last sentence of this Section 4.2, the legal
description in the Special Warranty Deed attached hereto as Exhibit M
to be delivered at Closing shall be the description so attached hereto
as Exhibit A-1. Seller and/or the surveyor shall execute any affidavit
reasonably required by the title insurance company providing the
owner's title insurance policy referred to in Section 7.4 to issue the
policy to Purchaser without any survey exception. At Seller's option,
the legal description on the Special Warranty Deed will be the one
attached as Exhibit A, and if Seller so elects, then it will also give
the Purchaser at Closing a quit-claim deed with the legal description
attached or to be attached hereto as Exhibit A-1.
5. Environmental Audit - Phase I. Purchaser shall have the right, at
Seller's expense, to cause to be prepared a Phase I environmental assessment
report on the Property. The report shall include (i) information relative to the
prior use history of the Property; (ii) an on-site inspection of the building
and grounds to identify the presence of asbestos, underground storage tanks, or
other hazardous materials; (iii) a neighborhood investigation and the
identification of nearby CERCLIS (Superfund
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sites); and (iv) an assessment regarding the likelihood of environmental
contamination and compliance with applicable environmental laws.
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6. Representations, Warranties, and Covenants of Seller. Seller hereby
represents, warrants, and covenants as follows:
6.1 Authority. Seller is a limited partnership duly organized and
validly existing under the laws of the State of Georgia . Seller owns
good, marketable and insurable fee simple title to the Property free
and clear of all liens, encumbrances, and other exceptions to title
except the Permitted Title Exceptions. Seller has complete and full
authority and power to (i) execute this Agreement and to convey to
Purchaser good, marketable and insurable fee simple title to the
Property, free and clear of all liens, encumbrances, and other
exceptions to title other than the Permitted Title Exceptions, (ii)
execute and deliver such other documents, instruments, agreements,
including, without limitation, affidavits and certificates necessary to
effectuate the transaction contemplated herein, and (iii) take all such
additional action necessary or appropriate to effect and facilitate the
consummation of the sale and purchase transaction contemplated herein.
6.2 Compliance by Seller. Neither the entering into of this Agreement
nor the consummation of the transaction contemplated hereby shall
constitute or result in a violation or breach by Seller of any
judgment, order, writ, injunction or decree issued against or imposed
upon it, or shall result in a violation of any applicable law, order,
rule or regulation of any governmental authority. Seller is not
involved as the debtor in any bankruptcy, reorganization or insolvency
proceedings. There are no actions, suits, proceedings or investigations
pending which would become a cloud on the title to the Property or any
portion thereof or which questions the validity or enforceability of
the transaction contemplated by this Agreement or any action taken
pursuant hereto in any court or before or by any federal, district,
county, or municipal department, commission, board, bureau, agency or
other governmental instrumentality. This Agreement is the valid and
legally binding obligation of Seller enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization and other similar laws affecting the rights
of creditors generally and general principles of equity.
6.3 Compliance of Property. To the best of Seller's knowledge, the
Property complies with all laws, ordinances, rules, regulations,
restrictions and requirements pertaining to the Property or which are
applicable to the use or manner of use, occupancy, ownership,
possession or operation of the Property. To the best of Seller's
knowledge, no portion of the Property violates any zoning, building,
fire, health, pollution, subdivision, environmental protection or waste
disposal ordinance, code, law or regulation applicable thereto. Seller
has received no notice of any suits, judgments, or violations which
remain uncured relating to the Property or any zoning, building, fire,
health, pollution, environmental protection, or waste disposal
ordinance, code, law or regulation relating to the Property. Seller has
received all certificates of occupancy, licenses, certificates and
permits (collectively, the "Permits") necessary for the construction,
maintenance, and operation of the Property which are required to be
issued by any applicable governmental or quasi-governmental agency or
authority or any board of fire underwriters or real estate board or
similar organization or institution. Seller hereby represents and
warrants that: (i) the Seller's current use and occupation of any
portion of the Property does not violate any of the Permits, (ii)
Seller has not received any notice of, and to the best of Seller's
knowledge there are not any additional Permits or amendments to
existing Permits that are required for the current use or operation of
the existing improvements on the Property, (iii) all of the Permits
necessary for the present maintenance and operation of the Property are
in full force and effect, and (iv) to the best of Seller's knowledge,
all of the Permits necessary for the present maintenance and operation
of the Property are transferable
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with the Property to the Purchaser without charge. Notwithstanding
anything contained in this Section 6.3 or elsewhere in this Agreement
to the contrary, "Permits" shall not include any permits, licenses or
certificates required to be obtained by any tenant of the Property with
respect to the operation of its business from its premises.
6.4 Litigation. Seller has no knowledge of, nor has Seller received
any notice of, any actual or threatened action, litigation, or
proceeding by any organization, entity, person, individual or
governmental agency (including governmental actions under condemnation
authority or proceedings similar thereto) against the Property or
Seller, nor has any such organization, entity, person, individual or
governmental agency communicated to Seller anything which Seller
believes to be a threat of any such action, litigation or proceeding.
6.5 Taxes. No improvements (site or area) have been constructed or
installed by any public authority, the cost of which may be assessed in
whole or in part against any part of the Property in the future. Seller
has not been notified of any possible future improvements that might
create an assessment against any part of the Property. The Property is
separately assessed for tax purposes and is not combined with any other
real property for such tax assessment purposes.
6.6 Restriction on Conveyance. Seller has not and will not sell,
encumber, convey, assign or contract to sell, encumber, convey or
assign all or any portion of the Property other than the Permitted
Title Exceptions, nor has Seller taken or shall cause to be taken any
action in conflict with this Agreement at any time during or prior to
the pendency of this Agreement. No rights-of-first refusal, options or
similar agreements to purchase all or any portion of the Property exist
in connection with the Property which would in any way interfere with
Purchaser's ability to purchase the Property as provided herein, or
which is in any way in contravention of the spirit and intent of this
Agreement.
6.7 Environmental Matters. To the best of Seller's knowledge: (i) no
toxic or hazardous substances, including without limitation, asbestos
and the group of organic compounds known as polychlorinated biphenyls,
have been generated, treated, stored or disposed of, or otherwise
deposited in or on the Land, (ii) there have been no substances or
conditions in or on the Land which may support a claim or cause of
action under RCRA, CERCLA, ▇▇▇▇, or any other federal, state or local
environmental statutes, regulations, ordinances or other environmental
regulatory requirements (collectively, "Environmental Laws"), and (iii)
there are no underground storage tanks or underground deposits of
hazardous waste or materials located on the Land. Seller has not used,
nor authorized, nor, to the best of Seller's knowledge, allowed the use
of the Property, and to the best of Seller's knowledge, the Property
has not been used by any space tenant or otherwise, in any manner other
than in full compliance with all Environmental Laws and, to the best of
Seller's knowledge, no portion of the Property has ever been used in
any manner other than in full compliance with all Environmental Laws.
6.8 No Flood Plains Warranty. No portion of the Land is located
within a one hundred (100) year flood plain.
6.9 No Wetlands Warranty. Seller has not received any notice that and
to the best of Seller's knowledge, no portion of the Land is located
within any wetlands as designated by any federal, state or local
governmental or quasi-governmental authority, agency or instrumentality
or the Army Corps of Engineers.
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6.10 Utilities. All water, storm and sanitary sewer, electricity,
telephone and other utilities serving the Property are installed,
operating and supplied directly to the individual tenant spaces in
accordance with plans and specifications and all utility company
criteria therefor, and the cost of all impact fees, connection charges,
reservation charges or their equivalent related to such utilities and
the Property have been fully paid. Seller has not received any
complaint or claim with respect to storm water flow from any owner of
adjacent property or otherwise. Seller covenants to pay all utility
bills for the Property through the date of Closing (it being agreed
that this covenant shall specifically survive Closing). To the extent
that such utility expense is later recouped through reimbursements by
the space tenants on the Property, the Purchaser shall pay the same to
Seller upon receipt of such amounts from tenants.
6.11 Condition of Improvements. To the best of Seller's knowledge, the
improvements located upon the Land are structurally sound and in good
structural condition and repair. Seller is not aware of any structural
maintenance or structural repairs which are currently needed or for
which Seller has deferred repairs or which would otherwise not be
easily detectable upon inspection. Seller has not received notice of
any unrepaired leaks or the necessity for maintenance or repairs from
any of the occupants of the buildings located upon the Land which
Seller has not repaired or otherwise taken necessary action.
6.12 Zoning. The Land is presently zoned "C-2" which permits the
operation of a retail shopping center and the business operations of
all of the Tenants of Market Place Shopping Center. Seller has received
no notice of any pending or contemplated changes from the current
zoning of the Land. Seller has no agreement currently in effect with
Gwinnett County, or with the State of Georgia, or any other entity,
public or private, which would be binding upon Purchaser and would
prevent or limit the use of the Land or the improvements located
thereon for any of the uses allowed by applicable zoning ordinances.
6.13 Status of Personal Property. All items of personal property
located upon the Property and used in connection with the operation of
the Property are owned by Seller (except for those owned by tenants),
free and clear of any security interests, conditional sales agreements
or title retention agreements.
6.14 No Outstanding Agreements. Except for the Permitted Title
Exceptions and the existing Tenant Leases, there are no service,
supply, utility, management, equipment lease, brokerage or other
contracts in force against the Property or binding upon Seller in any
manner affecting the Property which may not be terminated at no cost
upon thirty (30) days prior written notice.
6.15 Insurance. There are no outstanding or unfulfilled requirements
or recommendations of any insurance company insuring the Property or
board of fire underwriters regarding any repairs to or work to be
performed with respect to the Property. Seller has not received any
notice of discontinuance or non-renewal of insurance covering the
Property, nor any notice requiring or recommending any repairs or other
work be performed to the Property.
6.16 No Liens. No services, material, or work have been supplied in
connection with the Property at Seller's direction for which payment
has not been made in full. At Closing, there will be no mechanics',
materialmen's or laborers' liens against Seller's interest in the
Property; no claims for labor, services, profit or material furnished
for constructing, repairing or improving the Property which remain
unpaid and which could result in a lien against Seller's interest in
the Property; no past due or unpaid income, property, use or sales
taxes of Seller
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which constitute a lien against Seller's interest in the Property or
could with passage of time constitute such a lien; and no chattel
liens, conditional sales contracts or security interests against the
Property.
6.17 No Broker. No rental agents, brokers or finders have any rights
with regard to any of the lease agreements or other occupancy
agreements executed in connection with the Property or the rental
collected, or to be collected, thereunder. There are no leasing
commissions due or payable now or hereafter with respect to the
existing Tenant Leases or the Property.
6.18 Accuracy of Operating Statements. Seller has delivered to
Purchaser unaudited income and expense statements prepared on the cash
basis with respect to the Property (the "Operating Statements"), a copy
of said Operating Statements are attached hereto as Exhibit N and
incorporated herein by reference. The Operating Statements are true,
complete and correct in all material respects. The Operating Statements
are in accordance with the respective books and records of Seller, and
have been prepared in accordance with generally accepted accounting
principles, consistently applied, throughout the periods covered by
such statements and fairly represent the financial condition of the
Property as of their respective dates and the results of operations and
changes in financial position of the Property for the periods covered
by such statements. The Operating Statements contain no untrue
statements of any material facts nor omit any material fact required to
be stated to make the Operating Statements not misleading.
6.19 No Bankruptcy. Seller has not (a) commenced a voluntary case, or
had entered against it a petition, for relief under any federal
bankruptcy act or any similar petition, order or decree under any
federal or state law or statute relative to bankruptcy, insolvency or
other relief for debtors, (b) caused, suffered or consented to the
appointment of a receiver, trustee, administrator, conservator,
liquidator or similar official in any federal, state or foreign
judicial or non-judicial proceeding, to hold, administer and/or
liquidate all or substantially all of its assets, or (c) made an
assignment for the benefit of creditors.
6.20 No Employee Agreements or Contracts. No employment agreements or
employment contracts affecting the Property exist which have been
entered into by Seller.
6.21 Tenant Space and Tenant Leases.
(a) Attached as Exhibit L is a current rent roll for the Property
("Rent Roll") which contains a true, accurate, and complete list of all
of the Tenant Leases and which identifies as to each Tenant Lease, the
date of the Tenant Lease and of all amendments and assignments of each
Tenant Lease and certain additional information relating to each Tenant
Lease, all of which information is true, accurate and complete.
(b) Except as set forth in the Rent Roll, there have been no
agreements or understandings with any Tenant which provide for (i) any
cash inducement or payment to such Tenant other than for tenant upfit
or buildout; or (ii) any tenant buildout performed by landlord payable
after Closing; or (iii) free or partial rent for a period after
Closing.
(c) With respect to all Tenant Leases, Seller further represents,
warrants, and agrees, as follows:
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(i) That Seller is the sole owner of the landlord's
interest under the Tenant Leases and the guaranties, if any,
executed in connection with the Tenant Leases, and Seller is
the sole and exclusive entity entitled to receive the rents,
issues, profits, and security deposits, under the Tenant
Leases, and Seller has good right to sell, assign, transfer
and set over the same and to grant to and confer upon
Purchaser the rights, interests, powers, and authorities
herein granted and conferred.
(ii) That the Tenant Leases as set forth in the Rent Roll
are the only leases, licenses, subleases, or other occupancy
agreements, written or oral, affecting the Property and are in
full force and effect and have not been amended or modified in
any manner, by amendment, side letter agreement, or otherwise,
except as expressly set forth in the Rent Roll. No party other
than the Tenants identified in the Rent Roll have any right to
occupancy of any portion of the Property or the improvements
located thereon.
(iii) That the information set forth in the Rent Roll is
true, complete, and accurate in all respects.
(iv) That the Tenant Leases evidence bona fide, arm's-length
transactions.
(v) That any improvements required by the terms of the
Tenant Leases to be made by the Seller to the Property have
been completed, and any construction allowances, moving
expenses, or other rental concessions have been satisfied in
strict accordance with the terms and provisions of their
respective Tenant Leases, and such Tenants have accepted
possession of their premises located upon the Property.
(vi) That no rent under the Tenant Leases has been paid more
than thirty (30) days in advance of its due date and except as
shown on the Rent Roll, all rent to be paid by the tenants is
current.
(vii) That no Tenant is entitled to any free rent, abatement
of rent or similar concession, except as shown on the Rent
Roll.
(viii) That Seller has received no notice from, or on behalf
of, any Tenant which contests any tax, operating cost or other
escalation payments or occupancy charges, or any other amounts
payable under the Tenant Lease.
(ix) Except as specifically designated in the Rent Roll, no
Tenant Lease contains any renewal or purchase option or option
to lease additional space.
(x) That Seller has not received notice from any of the
Tenants in connection with the Tenant Leases asserting and to
the best of Seller's knowledge no Tenant has (1) a right to
off-set rent by reason of Seller's failure to perform its
obligations pursuant to any Tenant Lease, (2) a claim against
Seller for a breach or failure of Seller to perform its
obligations under any Tenant Lease, or (3) a right to ▇▇▇▇▇
rent.
(xi) That, except as set forth on the Rent Roll, Seller has
received no notice of and to the best knowledge of Seller,
there are no defaults under or with respect to the Tenant
Leases on the part of the landlord thereunder, no defaults on
the part of any
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Tenant and no conditions or facts which, with the passage of
time or the giving of notice, or both, would constitute such a
default.
(xii) Seller has not waived any default, which is continuing,
under any Tenant Lease, or granted any concession to any
Tenant (where such waiver or concession is still in effect),
and all documentation relating to such waivers or concessions
are referenced in the Rent Roll.
(xiii) That Seller has neither made nor permitted to be made
any assignment of any of its rights or interest under the
Tenant Leases, or the guaranties, if any, executed in
connection therewith, to any person or entity whomsoever.
(xiv) That all leasing commissions pertaining to the Property
have been paid in full, and no leasing commissions are
enforceable against Purchaser.
(xv) That, except as specifically designated in the Rent
Roll, no notices with respect to a continuing default, or
notices to extend, renew, or terminate the term of the Tenant
Leases have been received by the Seller and all
correspondence received by Seller from any Tenant, their
agents or representatives regarding any work remaining to be
performed by Seller, or continued alleged defaults by Seller
is designated in the Rent Roll.
At Closing, Seller shall renew and reaffirm the representations and
warranties contained in this Section 6.21 and as to an updated rent roll (the
"Closing Rent Roll") pursuant to a Certification of Rent Roll and Tenant Lease
Status, in the form attached hereto as Exhibit F.
6.22 Other Contracts. There are no management, real estate, leasing
or rental commission agreements, utility, supply, service or maintenance
agreements, equipment leases, or employment, union or other contracts
of any kind or description in existence relating to the Property,
except for the existing Tenant Leases, and as set forth on Exhibit O
attached hereto and made a part hereof (the "Service Contracts").
6.23 Other Representations, Warranties, and Covenants. All of the
representations, warranties, and covenants of Seller included in the exhibits
attached hereto are incorporated herein and shall have the same force and
effect as if such representations, warranties, and covenants had been set forth
in full as part of this Section 6 of the Agreement.
6.24 Access. To Seller's best knowledge, there are no facts or
conditions which will result in the termination or modification of the
present access to and from any portion of the Property to any utility
services or to existing highways and roads or the termination or
expiration of any conditional use permits, sign permits or similar
governmental permits, and/or approvals necessary for the operation of
the Property as it is currently operated. In addition, Seller has
received no notification of, and to Seller's best knowledge, there are
no, existing, proposed or contemplated plans to widen, modify or
realign any street or highway providing access to the Property, or
which may affect the existing common areas and/or the size, use or set
backs applicable to the Property or the improvements located thereon.
6.25 Storm Water Flow. Seller has not received any complaint or
claim with respect to storm water flow from any owner of adjacent
property or otherwise.
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6.26 The Reaffirmation at Closing; Survival. All of the foregoing
representations, warranties and covenants of Seller shall be reaffirmed
by Seller in writing at Closing. The representations, warranties and
covenants set forth above shall survive Closing hereunder for a period
of one (1) year from the Closing Date and shall not be merged with the
execution and delivery of the Special Warranty Deed and other closing
documents hereunder. Notwithstanding the foregoing, if, prior to the
expiration of the survival period provided above, Purchaser discovers
any reasonable facts or evidence from which Purchaser reasonably
concludes that there was a misrepresentation or breach of any of the
foregoing representations and warranties, Purchaser shall provide
Seller with notice of such facts or evidence and the representation or
warranty in question shall survive until complete settlement of any
question of misrepresentation or breach.
6.27 Indemnification. Seller agrees to defend, protect, indemnify, and
hold harmless Purchaser and its directors, officers, shareholders,
employees, successors and assigns, from and against any and all loss,
cost, claims, liabilities, damages and expenses, including, without
limitation, reasonable attorney's fees and costs of litigation, arising
as a result of any misrepresentation or breach of any of the
representations or warranties of Seller set forth in this Agreement.
6.28 Seller's Knowledge. As used in Section 6 and elsewhere in this
Agreement, all references to the knowledge of Seller including
"Seller's knowledge", "best knowledge of Seller", "to Seller's best
knowledge" or any variation thereof shall mean the knowledge of Seller
and its respective employees and of the following individuals: ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ (collectively, the
Knowledgeable Parties"), all of which Knowledgeable Parties are
familiar with the Property.
7. Closing. Purchaser and Seller agree that the sale and purchase of the
Property shall be consummated as follows:
7.1 Title Transfer. Seller agrees to convey good, marketable and
insurable fee simple title to the Property to Purchaser by Special
Warranty Deed, subject only to the Permitted Title Exceptions, on or
before the close of business on the Closing Date, and, effective on the
delivery of such Special Warranty Deed by Seller to Purchaser,
beneficial ownership and the risk of loss of the Property shall pass
from Seller to Purchaser.
7.2 Closing Date. This transaction shall close (the "Closing") on or
before fifteen (15) days after the end of the Inspection Period (the
"Closing Date"), provided that Purchaser has not elected to terminate
this Agreement in accordance with the terms hereof. The exact day, time
and place of Closing shall be selected by Purchaser by written notice
to Seller not less than three (3) days prior to the date so selected.
If no such selection is timely made, the Closing shall be held at 10:00
a.m. (EST) on the last day for the Closing Date at the offices of
Purchaser, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
7.3 Documents to be Delivered. At Closing, Seller shall deliver or
cause to be delivered to Purchaser the following items (all documents
being duly executed and acknowledged where so required):
7.3.1 Special Warranty Deed. Special warranty deed in favor
of Purchaser in form set forth as Exhibit M attached
hereto.
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7.3.2 Corporate/Partnership Documentation. All
documentation reasonably required by counsel for
Purchaser and the title insurance company selected by
Purchaser evidencing the authority of Seller to sell
the Property to Purchaser upon the terms and
conditions set forth in this Agreement.
7.3.3 Owners Affidavit Regarding Liens. An affidavit with
respect to liens and title matters in substantially the
form of Exhibit C attached hereto.
7.3.4 Non-foreign Affidavit. An Affidavit in the form
prescribed by Treasury Regulation ss.1.1445-2 indicating
the taxpayer identification number of Seller and
confirming that Seller is not a foreign person within
the purview of 26 U.S.C. ss.1445 and the regulations
issued thereunder.
7.3.5 Tenant Leases. Original executed counterparts of all
Tenant Leases to the extent same are in the
possession of Seller or its property manager and, if
not, then true, correct and complete copies of said
Tenant Leases certified as such by Seller.
7.3.6 Transfer and Assignment of Tenant Leases, Tenant
Deposits, and Tenant Lease Guaranties. An assignment
by Seller to Purchaser of all Tenant Leases or other
occupancy agreements now in effect in connection with
the Property in form set forth as Exhibit D attached
hereto.
7.3.7 Memorandum of Assignment of Tenant Leases and
Guaranties. A recordable memorandum of the Assignment
of Tenant Leases and Tenant Lease Guaranties in form
set forth in Exhibit E attached hereto.
7.3.8 Certification of Rent Roll and Tenant Lease Status. A
certification by Seller of the completeness and accuracy
of the Rent Roll in form set forth as Exhibit F attached
hereto.
7.3.9 ▇▇▇▇ of Sale and Assignment. A ▇▇▇▇ of Sale and
Assignment of personal property and intangible
personal property in form set forth as Exhibit G
attached hereto.
7.3.10 Assignment of Warranties and Guaranties. An
assignment of all warranties and guaranties presently
in effect in connection with the Property in form set
forth as Exhibit H attached hereto.
7.3.11 Termination of Management Agreements; Survival of
Service Contracts. An instrument or instruments in form
and substance reasonably satisfactory to Purchaser
terminating (i) all existing agreements with any party
with respect to management or leasing of the Property or
any part thereof; and (ii) any other Rejected Service
Contracts which Purchaser requests Seller to terminate
prior to the expiration of the Inspection Period as set
forth in Section 3.1 hereof; all such terminations shall
be without proration or contribution from Purchaser.
Copies of said cancellation notices shall be provided to
Purchaser.
7.3.12 Certified Operating Statements. All Operating
Statements for the Property for the three (3) years
prior to Closing or such shorter period of time as the
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Shopping Center has been open for business, certified
by Seller as to accuracy and completeness in all
material respects.
7.3.13 Books and Records. All books, records, maintenance
schedules and repair records and other papers in
Seller's possession or control relating to the
Property and the operations thereof and the
improvements located thereon, including, without
limitation, all architect's drawings, blue prints and
"as-built" plans and specifications for the Property;
provided, however, that Seller may retain copies of
any such documents or instruments for reference or to
support income tax returns.
7.3.14 Estoppel Certificates. Estoppel certificates in the
form set forth as Exhibit I attached hereto inuring to
the benefit of Seller from all Tenants; provided,
however, that, to the extent that executed estoppel
certificates are not obtained from the Local Tenants at
or prior to Closing, Purchaser shall accept estoppel
certificates executed by Seller on behalf of not more
than twenty percent (20%) of the Local Tenants of the
Shopping Center. All estoppel certificates from the
Local Tenants shall be in the form attached, and shall
be dated within thirty (30) days of the scheduled
Closing Date under this Agreement. The Credit Tenants
shall execute and deliver estoppel certificates in form
and substance satisfactory to Purchaser and such Credit
Tenants, and such estoppel certificates shall be dated
within thirty (30) days of the scheduled Closing Date
under this Agreement. It shall be a condition to
Purchaser's obligations under this Agreement that Seller
obtain and deliver to Purchaser the estoppel
certificates provided for in this Section which do not
indicate any defaults or discrepancies in the
information previously made available to Purchaser; and
if Seller shall fail to do so, Purchaser may cancel this
Agreement by giving written notice to Seller at or prior
to the Closing, whereupon the Deposit shall be promptly
refunded to Purchaser.
7.3.15 Tenant Notices. Letters executed by Seller and
addressed to each Tenant of the Property in form set
forth as Exhibit J attached hereto.
7.3.16 Certification Regarding Leasing and Brokerage Fees.
An affidavit in form set forth as Exhibit K attached
hereto that no brokerage or leasing agreements exist
or are in force which are binding upon Seller and
which in any manner affect or otherwise relate to the
Property, or which entitle any broker or leasing
agent to receive any commissions, fees, a percentage
of rents or any other sums in connection with any
sale, lease or loan affecting the Property.
7.3.17 Utility Bills. Copies of all utility bills relating
to the Property for the three (3) months prior to
Closing, including, without limitation, bills for
parking lot and lawn maintenance, trash collection,
sewage, water, electricity, telephone and insurance.
7.3.18 Keys. All keys to the Property and every lock thereon
in the possession of Seller with identification as to
the lock to which each such key relates.
7.3.19 Assignment of Roof Warranties (and related consents).
Individual assignment of roof warranties with respect to
the Property (together with the
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original warranties) and any consent of the applicable
roof contractor and manufacturer if required thereby.
7.3.20 Additional Documents. Such other documents and
instruments as may be required by any other provision of
this Agreement or as may reasonably be required to
fulfill the terms and intent of this Agreement,
including, without limitation, a Closing Statement, all
documentation required to be executed and filed with the
Internal Revenue Service, and a certificate dated as of
the date of Closing confirming that all of the
representations and warranties of Seller contained
herein and the exhibits attached hereto are true,
correct, and complete as of the date of Closing.
7.4 Costs and Prorations. Seller shall be responsible for the payment
of (i) the cost of transfer tax or documentary stamps or taxes, upon
the Special Warranty Deed and ▇▇▇▇ of Sale and Assignment, (ii) the
cost of any sales or income taxes related to the transaction
contemplated hereby, (iii) costs and expenses incurred (including
recording costs) in connection with Seller's cure of any title defects
or encumbrances subject, however, to the provisions of Section 4.1
hereof, (iv) all broker or agent commissions, fees or payments required
to be made in connection with the purchase and sale contemplated by
this Agreement, (v) its own attorney's fees, (vi) any costs, fees or
expenses assessed in connection with the transfer of any warranties and
guaranties from Seller to Purchaser, (vii) costs of the Survey obtained
pursuant to Section 4.2 hereof, (viii) costs of the Phase I
environmental assessment obtained pursuant to Section 5 hereof and (ix)
all other items specifically designated in this Agreement as Seller's
expenses. Purchaser shall be responsible for the payment of (a) its own
attorney fees, (b) title examination costs and premiums necessary for
the issuance of an ALTA Form B, 1992 Owner's Title Policy insuring the
Property in the amount of the Purchase Price, (c) the cost of a
physical condition survey of the Property, (d) recording costs except
for those incurred in connection with the cure of any title defects or
encumbrances by Seller, (e) all other items specifically designated in
this Agreement as Purchaser's expenses.
7.5 Taxes.
7.5.1 Ad Valorem Taxes and Assessments. All real estate taxes
(including ad valorem and non-ad valorem assessments) and
personal property taxes payable with respect to the Property
for the year in which the Closing Date occurs, accrued but to
be paid after the Closing Date, shall be prorated between
Seller and Purchaser as of the Closing Date on a calendar year
basis. If the actual amount of taxes and assessments is not
known on the Closing Date, the same shall be prorated on the
basis of the amount of taxes and assessments payable for the
year preceding Closing and shall be adjusted between the
parties when the actual amount of taxes and assessments
payable for the year of Closing is known to Purchaser and
Seller. To the extent that Seller's share of such taxes and
assessments is later recouped through reimbursement by the
Tenants on the Property, the Purchaser shall pay the same to
Seller promptly, but in no event later than the later to occur
of (i) ninety (90) days after the end of the calendar year in
which the Closing takes place or (ii) thirty (30) days after
Purchaser's receipt of same from Tenants. The provisions of
this Section 7.5 shall specifically survive Closing.
7.5.2 Sales Taxes. (Intentionally Omitted)
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7.6 Income and Expenses. All income and expenses of the Property
shall be prorated on a daily basis between Seller and Purchaser as of
the Closing Date. Seller shall make any and all payments of principal
and interest due under all liens or encumbrances on the Property on or
before the Closing Date as and when due, which liens or encumbrances
shall be satisfied, canceled and terminated at or prior to Closing.
Seller shall be responsible for all expenses of the Property
attributable to the period prior to the Closing Date. Seller shall be
entitled to all income from the Property attributable to the period
prior to the Closing Date. Seller agrees to pay in full on the Closing
Date its pro rata share of all expenses of the Property. Seller agrees
that all expenses, charges, bills, or trade accounts maintained or
incurred by Seller or its agents in connection with the management or
operation of the Property or otherwise accrued for the period prior to
the Closing Date shall be paid in full on the Closing Date; provided,
however, that all such expenses, charges, bills, or trade accounts
which have accrued but have not yet been billed shall be paid in full
by Seller at the time the bills are received. Seller shall have sole
responsibility for the payment of all sales taxes, excise taxes,
payroll taxes, withholding taxes or other taxes collected or payable by
Seller or its agents in connection with the management or operation of
the Property for or during the period preceding Closing. To the extent
Seller is required to pay an expense under this Section 7.6 which is
later reimbursed by any Tenants, Seller shall be entitled to receive
its proportionate share of such payment promptly, but in no event later
than the later to occur of (i) ninety (90) days after the end of the
calendar year in which Closing occurs, or (ii) thirty (30) days after
Purchaser's receipt of same from Tenants. Seller and Purchaser shall
indemnify each other against and shall hold each other harmless from
any costs, expenses, penalties or damages, including reasonable
attorneys' fees, which may result from any failure by the other to pay
or cause to be paid any of the items described in this Section 7.6,
which indemnity shall survive Closing.
Without limiting the generality of the foregoing, the following
items shall be adjusted or paid as follows as of the Closing Date:
7.6.1 Rents and Charges. All rents and charges actually
received under the Tenant Leases shall be prorated as of the
Closing Date. Rents and other charges received after Closing for
the calendar month in which the Closing Date occurs shall be
prorated upon receipt. Purchaser, for a period of four (4) full
calendar months following the Closing, shall continue to ▇▇▇▇
tenants of the Property on a monthly basis for amounts due and
payable to Seller from such tenants on the Closing Date. Except
as set forth in the previous sentence, Purchaser shall have no
duty or obligation to collect any rents or other sums which are
outstanding as of the Closing Date, and Seller agrees to
indemnify and save Purchaser harmless from and against any
claims, costs and expenses (including but not limited to
attorney's fees and costs of collection of such arrearages) which
Purchaser may or shall incur in connection with such collection,
provided that the reasonable approval of Seller is obtained prior
to incurring any claims, cost or expense. If Purchaser receives
any payment of outstanding rent, the payment shall first be
applied by Purchaser to amounts due from that tenant from and
after the Closing Date and the excess, if any, shall be applied
to the amounts receivable by Seller and shall be paid to Seller
(exclusive of sales tax on rents) within thirty (30) days
following Purchaser's receipt thereof. Seller agrees that no
lawsuit of any kind shall be brought or threatened by Seller
after the Closing Date to collect any outstanding rent without
the prior written consent of Purchaser, provided, however that
Seller shall be permitted to take reasonable other measures
towards collection of any outstanding rent due prior to Closing.
Any checks for rental payments or other charges received after
Closing by Seller or its agents shall be promptly endorsed to
Purchaser
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by the payee thereof and promptly transmitted to Purchaser.
Purchaser shall receive a credit against the Purchase Price at
Closing for all prepaid rents, advance rentals, security
deposits (including any interest earned thereon if required by
any Tenant Lease) and other deposits then outstanding with
respect to any of the Tenant Leases.
7.6.2 Post-Closing Adjustment Payment. In the event that on
the Closing Date there shall be any rental payments under any
Tenant Lease which, although relating to a period prior to the
Closing Date, do not become due and payable until after
Closing (such as year end common area, real estate tax or
insurance expense reimbursements or percentage rent or similar
charges), then Purchaser agrees to ▇▇▇▇ tenants on behalf of
Seller for a period of four (4) months from the date of the
initial billing to tenant, and rental payments received from
such tenant shall be applied as set forth in Section 7.6.1
above.
Seller agrees, on or before sixty (60) days after the
Closing Date, to provide to Purchaser calculations of common
area maintenance, real estate tax and insurance ▇▇▇▇▇▇▇▇ to
tenants for (i) the portion of calendar year 1997 from January
1, 1997 to the Closing Date; or (ii) the tenant's lease year
which includes the Closing Date, for the period up to the
Closing Date; whichever is applicable, along with ▇▇▇▇▇▇▇▇ to
tenants, to allow Purchaser to ▇▇▇▇ said tenants for such
charges. Seller shall pay Purchaser any credits due to tenants
from Seller for such periods at the time the ▇▇▇▇▇▇▇▇ are
submitted to Purchaser; the payments shall be for all credits
to any and all tenants and shall not be offset by any amounts
due from tenants to Seller.
Seller agrees to pay Purchaser any credits due Tenants
for periods prior to the Closing Date relating to
reconciliations of Additional Rent, Percentage Rent or other
charges or relating to Tenant audits of operating expense
reimbursements.
7.6.3 Insurance Expense. Purchaser shall be responsible for
obtaining separate policies for any and all casualty,
liability, and other insurance Purchaser desires to maintain
with respect to the Property. Seller shall be entitled to any
refund of any prepaid premiums on its own insurance policies.
Seller shall provide to Purchaser prior to Closing a
calculation of credits due tenants for reimbursements of
insurance premiums for the periods from the Closing Date to
the end of the current insurance premium year of Seller.
Purchaser shall receive a credit at Closing against the
Purchase Price for said credit due tenants for insurance.
7.6.4 Utility Charges. Water and utility charges and sanitary
sewer taxes, if any, shall not be prorated at Closing but
shall be transferred to new accounts in Purchaser's name or in
the name of Purchaser's designated agent as of Closing. Seller
shall have the sole responsibility for all such utility
charges through the transfer of such accounts on the Closing
Date, and Seller shall cause the outstanding charges for all
such utilities to be determined and all meters to be read on
the day prior to the Closing Date. Any deposits prepaid by
Seller for such utilities shall be refunded to Seller or
credited to Seller at Closing. To the extent any such charges
or taxes are paid on an annual basis they will be prorated at
Closing based on the latest estimates of such charges or taxes
and reprorated upon receipt of actual ▇▇▇▇▇▇▇▇. Any transfer
fees or additional deposits required in connection with the
transfer of the utilities to new accounts in Purchaser's name
shall be paid by Purchaser; it being agreed that any fees for
terminating the utility accounts in Seller's name shall be
paid by Seller.
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7.6.5 Other Expenses. Other operating expenses not covered
by any of the above subparagraphs.
All prorations and adjustments under this Section 7 shall be
made against the cash sum otherwise payable by Purchaser to Seller
pursuant to Section 2, unless an alternative means of payment is
expressly provided hereunder. The indemnities and obligations with
respect to post- Closing adjustments set forth in this Section 7 shall
expressly survive Closing.
8. Risk of Loss. If, after the date hereof and prior to Closing, all or
any portion of the Property is damaged by casualty, or Seller receives notice of
the commencement or threatened commencement of eminent domain against all or any
portion of the Property, Seller shall immediately notify Purchaser in writing,
and Purchaser shall elect prior to Closing, either to (i) terminate this
Agreement, in which event this Agreement shall be deemed null, void and of no
further force and effect whatsoever, or (ii) close the transaction contemplated
hereby in accordance with its terms, but, subject to such casualty settlement or
condemnation proceedings; in which event Seller shall promptly assign to
Purchaser Seller's rights in such settlement or proceedings and any payments or
awards resulting therefrom, and Purchaser shall receive a credit against the
Purchase Price payable at Closing equal to any deductible payable by Seller with
respect to such casualty loss. Notwithstanding the foregoing, in the event of a
casualty loss of less than $50,000.00 occurring after the expiration of the
Inspection Period, the rights and obligations of the parties shall be as
provided in subsection (ii) above; provided, however, that no casualty has
occurred at the Property which would permit a Tenant to terminate its lease. In
the event that such casualty or condemnation (or threat thereof) shall occur
within fifteen (15) days of the Closing Date, Purchaser shall have the right to
extend the date for Closing such that in no event shall Closing occur less than
fifteen (15) days following Purchaser's receipt of Seller's notice required
under this Section 8.
9. Seller's Covenants. Seller hereby covenants and agrees that between
the date hereof and the Closing Date:
9.1 Inspection of Property. Seller shall allow Purchaser and its
agents to inspect and audit the Property and any part thereof and all
books, records and accounts, wherever located, relating to the Property
or any of its operations, at such times and from time to time as
Purchaser may reasonably request.
9.2 Compliance with Laws, Leases, Contracts. Seller shall comply with
all laws, ordinances, regulations and orders relating to the Property
(except to the extent tenants under written leases are responsible for
such compliance) and with all the terms, conditions and provisions of
the Tenant Leases and with the requirements of all liens and
encumbrances, agreements and other contractual arrangements to which
the Property or Seller is subject and make all payments required to be
paid thereunder and suffer no default thereunder.
9.3 Standard of Operation and Maintenance. Seller shall operate,
manage and maintain the Property in the same manner as it has been
operated by Seller to the date hereof, and in accordance with such
reasonable requests as may be made by Purchaser.
9.4 Representations and Warranties. Seller shall not take (or fail to
take) any action which would make any of the warranties,
representations and covenants of Seller under this Agreement untrue or
inaccurate. Seller shall notify Purchaser promptly if prior to the
Closing Date Seller becomes aware of any fact, transaction, event or
occurrence which would make any
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of the warranties, representations and covenants of Seller under this
Agreement not true with the same force and effect as if made on or as
of the date hereof.
9.5 Personal Property Inventory. Seller shall not remove any of the
Property, including personal property, from the Property nor use any of
the personal property prior to the Closing Date except such use thereof
as is normal and customary in the operation and maintenance of the
Property. Seller warrants that supplies and maintenance items shall be
maintained at a customary level and will be available and conveyed to
Purchaser on the Closing Date.
9.6 Transfer of Permits. Seller shall execute all applications and
instruments required in connection with the transfer of all Permits, to
the extent transferable, in order to transfer the benefits and burdens
of each such Permit to the Purchaser and, if requested by Purchaser, to
cooperate (at no expense to Seller) with Purchaser's efforts to have
all Permits required for the operation of the Property issued to and in
the name of the Purchaser on the Closing Date. Seller shall use
reasonable efforts to preserve in force all existing Permits and to
renew all those expiring prior to the Closing Date on terms acceptable
to Purchaser. If any such Permit shall be suspended or revoked, Seller
shall promptly notify Purchaser and shall diligently take all measures
reasonably necessary to cause the reinstatement of such Permit without
any additional limitation or condition. Seller shall not seek or
acquiesce to any amendment to any Permit which would alter the existing
permissible uses of the Property or any part thereof.
9.7 Cash-Out of Leasing Commissions. On or before the Closing Date,
Seller shall, at Seller's sole expense, terminate and cash out all
leasing commissions payable under each Tenant Lease and all commission
agreements relating to the Tenant Leases and all other leasing and
management agreements relating to the Property so that, at Closing,
neither the Property nor any Tenant Lease shall be subject to any past,
present or future leasing commissions or any rights thereto by any
broker or leasing agent or any commission agreements or other leasing
and management agreements.
9.8 Compliance of Property. Seller shall assist Purchaser's efforts to
obtain satisfactory evidence that all of the Property meets and
complies with all applicable governmental laws, statutes, regulations,
rules and ordinances; provided, however, that Seller shall not be
responsible for hiring or paying for any consultants. Such evidence
shall include but shall not be limited to obtaining certificates of
completion, occupancy or compliance from the agencies administering
compliance with said requirements indicating that the Property fully
complies with said requirements. The foregoing evidence shall be
subject to the approval of Purchaser in all respects. In addition, said
items shall be directed to Purchaser specifically with knowledge on the
part of the party issuing same that Purchaser will be relying upon the
same, and shall be submitted to Purchaser as soon as it is reasonably
possible to do so. All materials submitted in advance of Closing shall
be updated, if necessary in Purchaser's judgment, for the Closing.
9.9 Cooperation with Purchaser's Audit/Accounting for CAM Charges.
Seller acknowledges that Purchaser may be required by the Securities
and Exchange Commission to file audited financial statements for one to
three years with regard to the Property. Seller shall (i) cooperate
with Purchaser, its counsel, accountants, agents, and representatives,
provide them with access to Seller's books and records with respect to
the ownership, management, maintenance, and operation of the Property
for the applicable period, and permit them to copy the same, (ii)
execute a form of "rep" letter and such other documents
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as are reasonably required by Purchaser or Purchaser's accountants in
connection with such audit, and (iii) furnish Purchaser with such
additional information concerning the same as Purchaser shall
reasonably request. Purchaser will pay the costs associated with any
such audit.
The terms of this Section 9.9 shall survive Closing.
9.10 Continued Operation of Property. Between the date hereof and
Closing, Seller shall continue to operate and maintain the Property in
good condition in accordance with Seller's current practices. Seller
agrees not to enter into any agreements which will survive the Closing
Date relating to the Property without Purchaser's prior written
consent, which consent may be granted or withheld in Purchaser's sole
discretion. In addition, Seller shall not permit the modification,
alteration, amendment, extension, renewal, termination or cancellation
of any Tenant Lease (except in accordance with the terms of such Tenant
Lease) without the prior written consent of Purchaser, which consent
may be granted or withheld in Purchaser's sole discretion.
9.11 Inducements. On or before the Closing Date all Inducements (as
hereinafter defined) relative to all Tenant Leases shall have been paid
in full or shall otherwise have lapsed or been satisfied in full such
that on the Closing Date the Tenant Leases shall require all Tenants
thereunder to pay rent and other charges required by their Tenant
Leases without reduction or abatement relative to an Inducement. As
used herein, the term Inducement shall mean free rent periods, reduced
rent periods, cash payments, Tenant buildout allowances, agreements to
perform Tenant finish or Tenant buildout at Landlord's expense, and any
other accommodations to a Tenant under a Tenant Lease of a similar
nature which reduces the rent or other charges otherwise payable under
a Tenant Lease. In the event any Inducement has not been satisfied,
paid in full or otherwise lapsed on the Closing Date, Purchaser shall
receive a credit against the Purchase Price payable at Closing.
10. Conditions to Closing. In addition to all conditions expressly set
forth in this Agreement, the obligation of the Purchaser to consummate the
Closing hereunder is further subject to the satisfaction at or prior to Closing
of the following conditions precedent:
10.1 (Intentionally Deleted)
10.2 Accuracy of Representations. All of the warranties,
representations and covenants of Seller contained in this Agreement
shall be true on the Closing Date with the same effect as if they had
been made on the Closing Date and shall be reaffirmed by Seller in
writing at Closing; Seller shall have performed all covenants to have
been performed and satisfied by Seller prior to the Closing Date.
10.3 Condition of Property. On the Closing Date, the Property shall be
in a state of repair at least as good as the state of repair thereof on
the date hereof, normal wear and tear alone excepted.
10.4 Closing Documents. Purchaser's receipt of original executed
counterparts (if applicable) of the instruments, agreements and
documents described in Section 7.3 and all other documents to be
provided by Seller in accordance with the terms of this Agreement.
10.5 Tenants and Leases.
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(a) All Tenant Leases existing as of the Effective Date shall be in
full force and effect and the tenants under the Tenant Leases as of the
Effective Date shall each be in occupancy of their respective premises
(except for new leases executed after the Effective Date or existing
Tenant Leases which provide for occupancy after the Closing Date).
(b) No Tenant existing as of the Effective Date has ceased
operations, terminated its lease with Seller, ceased making rental
payments or notified Seller of its intention to do any of the
foregoing.
(c) No Tenant has made an assignment for the benefit of creditors,
has applied, petitioned, or filed for the appointment of a custodian,
trustee, receiver or agent to take possession of any property or
chattels of such Tenant, is not generally paying its debts as such
debts become due, is "insolvent" as that term is defined in the United
States Bankruptcy Code, or has filed a petition with the United States
Bankruptcy Court under the United States Bankruptcy Code or commenced
any proceeding under any bankruptcy or reorganization statute or under
any arrangement, insolvency, readjustment of debt, dissolution or
liquidation statute of any jurisdiction.
10.6 Casualty. No casualty has occurred at the Property for which the
estimated cost of repairs exceeds $50,000.00, and no casualty has
occurred at the Property which would permit a Tenant to terminate its
lease.
10.7 Eminent Domain. No commencement or threatened commencement of
eminent domain against all or any portion of the Property as more
particularly described in Section 8.
10.8 Title Insurance. The willingness of the Title Company to issue,
upon the sole condition of the payment by Purchaser of an amount no
greater than its scheduled premium, a Title Policy insuring in the
amount of the Purchase Price title to the Property is vested in
Purchaser on the Closing Date subject only to the Permitted Title
Exceptions.
10.9 Purchaser's Waiver Right. Purchaser shall have the right at any
time to waive in writing any of the contingencies or conditions set
forth in this paragraph 10. If the conditions and/or contingencies
described in this paragraph 10 are not fully and completely satisfied
on the Closing Date, unless Purchaser elects to waive the unsatisfied
conditions and/or contingencies in writing, Purchaser shall have the
right to terminate this Agreement and receive a refund of the Deposit
by providing written notice of such termination at any time through and
including the Closing Date.
11. Miscellaneous. It is further agreed as follows:
11.1 Broker. Seller and Purchaser represent each to the other that no
broker's or real estate commissions are or shall be due with respect to
this transaction except to ▇▇▇▇▇▇▇-▇▇▇▇▇ Investment Group, LLC, whose
commission shall be paid by Seller, by reason of any agreement made or
which may be alleged to have been made by it. In no event shall
Purchaser be liable for any commission or fee due in connection with
this transaction, unless and to the extent a commission is owed to
another broker party due solely to the acts of Purchaser. Seller agrees
to indemnify, defend and save harmless Purchaser from and against any
cost and expense (including reasonable attorney's fees) incurred by
Purchaser as a result of the untruth of the foregoing representations
by Seller. Purchaser agrees to indemnify, defend and save
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harmless the Seller from and against any cost and expense (including
reasonable attorney's fees) incurred by Seller as a result of the
untruth of the foregoing representations by Purchaser.
11.2 Notices. All notices, demands, requests or communications
required or permitted to be given pursuant to this Agreement shall be
in writing and shall be deemed to have been properly given or served
and shall be effective upon being deposited in the United States mail,
postage prepaid and certified with return receipt requested, upon
delivery by an internationally recognized overnight delivery service,
or upon the date of receipt of a telecopy which is received any
business day on or before 5 p.m. (EST) in the location of receipt or on
the next day after receipt if received by telecopy after 5 p.m. (EST)
on any business day; provided, however, the time period in which a
response to any notice, demand or request must be given shall commence
on the next business day after such posting. Any such notice, demand,
request or communication if given to Seller shall be addressed as
follows:
To Seller: Market Place Shopping Center, L.P.
c/o Peachtree Corners, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and, if given to Purchaser, shall be addressed as follows:
To Purchaser: IRT Property Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
To Escrow Agent: Commonwealth Land Title Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may from time to time change the address to which
such notices or communications may be delivered or sent by giving the
other party written notice of such change. Notices on behalf of the
respective parties may be given by their attorneys and such notices
shall have the same effect as if in fact subscribed by the party on
whose behalf it is given.
11.3 Default and Remedies. If Purchaser fails or refuses to perform
its obligations under this Agreement, and such failure or refusal is
not cured within five (5) days after written notice from Seller, then
Seller may as its sole and exclusive remedy be entitled to terminate
this Agreement and receive the Deposit as liquidated damages. Purchaser
and Seller hereby
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acknowledge the difficulty of ascertaining Seller's actual damages in
such circumstance and agree that the liquidated damages shall not be a
penalty, but rather shall constitute full liquidated damages and that
such amount represents a good faith resolution of Seller's actual
damages. Seller hereby waives any right to ▇▇▇ Purchaser for damages or
to pursue any other right or remedy, either at law or in equity, in the
event of a breach of this Agreement by Purchaser. If Seller fails or
refuses to convey the Property in accordance with the terms of this
Agreement or otherwise perform its obligations hereunder, and such
failure or refusal is not cured within five (5) days after written
notice from Purchaser, then (a) Escrow Agent shall promptly refund the
▇▇▇▇▇▇▇ Money to Purchaser and (b) Purchaser shall have the right to
recover from Seller an amount equal to the Deposit as liquidated
damages, or compel specific performance of the terms of this Agreement.
11.4 Waiver. Failure of either Purchaser or Seller to exercise any
right given hereunder or to insist upon strict compliance with regard
to any term, condition or covenant specified herein, shall not
constitute a waiver of the right of Purchaser or Seller to exercise
such right or to demand strict compliance with any term, condition, or
covenant under this Agreement.
11.5 Counterparts. This Agreement may be executed in several
counterparts, each of which may be deemed an original, and all of such
counterparts together shall constitute one and the same Agreement.
11.6 Captions. All captions, headings, paragraph and subparagraph
numbers and letters are solely for reference purposes and shall not be
deemed to be supplementing, limiting, or otherwise varying the text of
this Agreement.
11.7 Severability. The invalidity or unenforceability of a particular
provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision were omitted.
11.8 Entire Agreement. Time is of the essence of this Agreement.
This Agreement constitutes the sole and entire agreement of the parties
and is binding upon and shall inure to the benefit of Seller and
Purchaser, their heirs, successors, legal representatives and assigns.
11.9 Amendments. No addition to, or modification of, any terms or
provisions of this Agreement shall be effective unless set forth in
writing and signed by both Purchaser and Seller.
11.10 Attorney's Fees. In the event either party to this Agreement
brings an action or proceeding for the breach, enforcement or
interpretation of this Agreement, the prevailing party in such action
or proceeding shall be entitled to recover as an element of its costs,
and not as damages, such reasonable attorney's fees as may be awarded
in the action or proceeding.
11.11 No Negotiation with other Persons. Upon Seller's execution of
this Agreement, Seller represents, warrants, and covenants that Seller
shall not hereafter execute any letter of understanding, letter of
intent or other agreement (binding or not binding) on behalf of Seller
with any other potential purchaser of or for the Property (or any
portion thereof) unless and until this Agreement has been terminated in
accordance with the terms of this Agreement.
11.12 Survival of Representations. Except as otherwise set forth
herein to the contrary, all representations, warranties, and covenants,
made or incorporated herein shall not be impaired
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by any investigation, inspection, or other act by Purchaser, and shall
specifically survive Closing and shall not be merged into the Special
Warranty Deed or any of the other instruments executed and delivered at
Closing.
11.13 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Georgia.
11.14 Effective Date. This Agreement shall be deemed effective (the
"Effective Date") as of the date hereinabove first written.
11.15 Exhibits. All exhibits attached hereto are by this reference
made a part hereof.
11.16 Representations and Warranties of Purchaser. As of the Closing
Date, the Purchaser shall be duly organized, or duly qualified and
authorized, validly existing and in good standing under the laws of the
State of Georgia. This Agreement has been, or at the time of Closing
shall be, duly authorized, executed and delivered by the Purchaser and
all consents required under the Purchaser's organizational documents
have been or at the time of Closing will have been obtained. All
documents that are to be executed by the Purchaser and delivered to the
Seller at Closing have been, or at the time of Closing shall be, duly
executed, authorized and delivered by the Purchaser.
11.17 Interpretation. All references to "days" means calendar days
unless expressly provided otherwise. If any notice period or due date
contained in this Agreement falls on a Saturday, Sunday or legal
holiday, then such notice or due date shall be deemed timely if given
on the first business day following such Saturday, Sunday or legal
holiday.
11.18 Further Assurances. Seller and Purchaser agree to execute and
deliver to each other such further documents or instruments as may be
reasonable and necessary in furtherance of the performance of the
terms, covenants and conditions of the within Agreement. This covenant
shall survive the Closing.
11.19 Assignability of Agreement. Purchaser's rights under this
Agreement shall be transferable and assignable by Purchaser, either in
full or in part, to any entity affiliated with, owned by or under
common control with Purchaser or to any partnership having Purchaser as
a general partner. In the event of any such permitted transfer or
assignment, Seller shall look solely to such transferee or assignee for
the performance of all obligations, covenants, conditions and
agreements imposed upon Purchaser pursuant to the terms of this
Agreement.
12. Deposit. Purchaser shall deposit with Commonwealth Land Title Insurance
Company ("Escrow Agent") the sum of Seventy-One Thousand and No/100 Dollars
($71,000.00) by check as ▇▇▇▇▇▇▇ money, payable within five (5) business days
after the Effective Date. Such sum, together with any interest earned thereon,
is hereinafter referred to as the "Deposit". If requested by Purchaser, the
Escrow Agent shall, if possible, invest such sum in an interest bearing
obligation of a national bank in the area in which the Property or Escrow Agent
is located. The Deposit shall be retained or refunded, as the case may be, in
accordance with the terms of this Agreement and shall be delivered to Seller and
applied as a credit against the Purchase Price at Closing. In performing any of
its duties hereunder, the Escrow Agent shall not incur any liability to anyone
for any damages, losses or expenses, except for willful default or breach of
trust, and it shall accordingly not incur any such liability with respect (i) to
any action taken or omitted in good faith upon advice of its counsel or (ii) to
any action taken or omitted in reliance upon any instrument, including any
written notice or instruction provided for in this
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Agreement, not only as to its due execution and the validity and effectiveness
of its provisions but also as to the truth and accuracy of any information
contained therein, which the Escrow Agent shall in good faith believe to be
genuine, to have been signed or presented by a proper person or persons and to
conform with the provisions of this Agreement. The Escrow Agent is hereby
specifically authorized to refuse to act except upon the written consent of
Seller and Purchaser. Seller and Purchaser hereby agree to indemnify and hold
harmless the Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and
counsel fees and disbursements, which may be imposed upon the Escrow Agent or
incurred by the Escrow Agent in connection with its acceptance or the
performance of its duties hereunder, including any litigation arising from this
Agreement or involving the subject matter hereof. In the event of a dispute
between Seller and Purchaser sufficient in the discretion of the Escrow Agent to
justify its doing so, the Escrow Agent shall be entitled to tender into the
registry or custody of any court of competent jurisdiction all money or property
in its hands under this Agreement, together with such legal pleadings as it
deems appropriate, and thereupon be discharged from all further duties and
liabilities under this Agreement. Any such legal action may be brought in such
court as the Escrow Agent shall determine to have jurisdiction thereof. Seller
and Purchaser shall bear all costs and expenses of any such legal proceedings.
Purchaser and Seller agree to make such changes to this Agreement as may
reasonably be required by Escrow Agent and also to execute and deliver to Escrow
Agent such documentation as Escrow Agent may reasonably require in connection
with its holding of the Deposit hereunder and serving in its capacity as Escrow
Agent, such as IRS and bank account forms and reports, and for such purposes the
Deposit shall be considered the property of Purchaser until such time as Escrow
Agent disburses the Deposit to any party other than Purchaser. The preceding
sentence shall not change in any way the other provisions in this Agreement
concerning Escrow Agent's holding and disbursing the Deposit. In the event that
Purchaser terminates this Agreement for any reason in accordance with the terms
of this Agreement, Escrow Agent is hereby directed by Purchaser and Seller to
promptly refund the Deposit to Purchaser.
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IN WITNESS WHEREOF, the duly authorized representatives of the
undersigned have executed this Agreement under seal the day and year hereinabove
first written.
SELLER:
-------
MARKET PLACE SHOPPING CENTER, L.P., a Georgia limited
partnership
By: Peachtree Corners, Inc., a Georgia corporation,
its General Partner
By:/s/▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title:Chairman
-----------------------------
PURCHASER:
----------
IRT PROPERTY COMPANY, a Georgia corporation
By:/s/▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name:▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title:Senior Vice President
-----------------------------
ESCROW AGENT:
-------------
COMMONWEALTH LAND TITLE INSURANCE COMPANY, a
Pennsylvania corporation
By:/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name:▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title:
-----------------------------
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FIRST AMENDMENT TO THE
AGREEMENT FOR THE AND PURCHASE OF PROPERTY
THIS FIRST AMENDMENT TO THE AGREEMENT FOR THE SALE AND PURCHASE OF PROPERTY
(the "First Amendment"), is made and entered into this 15 day of October 1996 by
and between MARKET PLACE SHOPPING CENTER, L.P., a Georgia limited partnership
("Seller"), ART PROPERTY COMPANY, a Georgia corporation ("Purchaser") and
COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania corporation ("Escrow
Agent").
WITNESSETH:
WHEREAS, Purchaser, Seller and Escrow Agent entered into that certain
Agreement for the Sale and Purchase of Property dated September 12, 1996
("Agreement") pursuant to which Seller agreed to sell and Purchaser agreed to
purchase the Property as more particularly described therein; and
WHEREAS, Purchase and Seller desire to amend the Agreement as more
particularly hereinafter set forth.
NOW, THEREFORE, for and in consideration of the Purchase Price, the mutual
covenants and agreements contained herein, the sum of Ten and No/100 Dollars
($10.00) and good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged by Purchaser, Seller and Escrow
Agent, Purchaser, Seller and Escrow Agent intending to be legally bound agree as
follows:
1. Inspection of Property. The first sentence of Section 3 of the Agreement
shall be deleted in its entirety and the following inserted in its place:
Purchaser shall have until one hundred and fifty-five (155) days after the
Effective Date (the "(Inspection Period") to investigate and inspect the
Property and conduct any and all due diligence as Purchaser may deem necessary.
2. Title and Survey. The second sentence of Section 4.1 shall be deleted in
its entirety and the following inserted in its place:
Purchaser shall have until one hundred and fifty-five (155) days after the
Effective Date ("Title Examination Period") by which to give notice to Seller of
any objections which Purchaser may have, including, without limitation,
objections to any matters which constitute Permitted Title Exceptions.
3. Parking Lot. Pursuant to the terms of Section 13 of the Agreement,
Purchaser elects, under subsection (iii) not to receive an assignment of the
Proposal and any contract associated therewith, and Purchaser shall receive a
credit against the Purchase Price in the amount of $62,190 payable at Closing.
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4. Closing Date: Notwithstanding anything to the contrary contained in
Section 7.2 of the Agreement, in the event Purchaser becomes satisfied with the
results of any and all due diligence conducted with respect to the Property at
any time prior to the expiration of the Inspection Period, Purchaser may notify
Seller in writing that it waives the right to terminate the Agreement and in
such event the parties hereto agree that the Closing Date shall be amended to
the date which is fifteen (15) days after Seller's receipt of written notice
from Purchaser.
5. Reaffirmation. Except as hereinabove modified, the terms and provisions
of the Agreement remain in full force and effect, the same being republished and
confirmed hereby.
6. Counterpart Execution. This First Amendment may be executed in several
counterparts, each of which shall be deemed an original, and with all of such
counterparts together constituting one and the same agreement.
7. Facsimile Signature. The parties hereto agree that this First Amendment
may be executed by facsimile signature.
8. Capitalized Terms. The capitalized terms used in this First Amendment
shall have the meaning attributed to them in the Agreement unless otherwise set
forth herein.
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IN WITNESS WHEREOF, the duly authorized representatives of the undersigned
have executed this First Amendment under seal the day and year first above
written.
SELLER:
MARKET PLACE SHOPPING CENTER, L.P., a Georgia
limited partnership
By: Peachtree Corners, Inc., a Georgia
corporation, its General Partner
By: /s/ B. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: B. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
(CORPORATE SEAL)
PURCHASER:
IRT PROPERTY COMPANY, a Georgia corporation
By: /s/ W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ III
-------------------------------
Title: Exec. V.P.
------------------------------
(CORPORATE SEAL)
ESCROW AGENT:
COMMONWEALTH LAND TITLE INSURANCE
COMPANY, a Pennsylvania corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title:
------------------------------
(CORPORATE SEAL)
30
SECOND AMENDMENT TO
AGREEMENT FOR THE SALE AND PURCHASE OF PROPERTY
THIS SECOND AMENDMENT TO AGREEMENT FOR THE SALE AND PURCHASE OF PROPERTY
(the "Second Amendment"), is made and entered into this 13 day of February,
1997, by and between MARKET PLACE SHOPPING CENTER, L.P., a Georgia limited
partnership ("Seller"), IRT PROPERTY COMPANY, a Georgia corporation
("Purchaser") and COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania
corporation ("Escrow Agent").
WITNESSETH:
WHEREAS, Purchaser, Seller and Escrow Agent entered into that certain
Agreement for the Sale and Purchase of Property dated September 12, 1996,
pursuant to which Seller agreed to sell and Purchaser agreed to purchase the
Property as more particularly described therein, and which Agreement was amended
and modified by that certain First Amendment to the Agreement for the Sale and
Purchase of Property dated October 15, 1996 (collectively said Agreement and
First Amendment are herein referred to as the "Agreement"); and
WHEREAS, Purchaser and Seller now desire to further amend the Agreement as
more particularly set forth herein.
NOW THEREFORE, for and in consideration of the Purchase Price, the mutual
covenants and agreements contained herein, the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged by Purchaser and Seller, Purchaser
and Seller, intending to be legally bound hereby, agree as follows:
1. Property. Section 1.1 of the Agreement, entitled Real Property, is
hereby amended to exclude from the purchase and sale that certain area outlined
on the partial site plan attached hereto as "Exhibit 1" and by this reference
incorporated herein (the "Excluded Parcel"). Prior to the Closing Date, Seller
shall at its expense cause the Excluded Parcel to be surveyed according to the
requirements set forth in Section 4.2 of the Agreement and shall further cause
new legal descriptions of the Excluded Parcel and the Property (without the
Excluded Parcel) to be prepared. The new legal description of the Property will
be substituted for Exhibit A-1 to the Agreement (to be added to the Agreement
pursuant to Section 4.2 thereof) and the new legal description of the Excluded
Parcel shall be added to the Agreement as Exhibit A-2 thereto. In addition, the
provisions of Section 4.2 of the Agreement are deemed amended to the extent
necessary to conform to the above agreements.
2. Purchase Price. The Purchase Price for the Property is hereby amended
and set at the sum of Six Million Eight Hundred Thousand and NO/100 Dollars
($6,800,000.00). It is agreed and understood that the above price adjustment
includes adjustments regarding both the exclusion of the Excluded Parcel and
various physical conditions, including the parking lot, and that the credit of
$62,190 referenced in Section 3 of the First Amendment to the Agreement is no
longer operative.
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3. Easement/Other Agreements. Seller and Purchaser agree that they shall
enter into an Agreement Regarding Easements, Covenants and Restrictions (the
"ECR"), to be reasonably negotiated by Seller and Purchaser, which ECR shall,
without limitation:
▇. ▇▇▇▇▇ to each of Seller and Purchaser, their customers, invitees,
agents, employees, representatives, successors and assigns:
1. The right of pedestrian and vehicular access to and across and
parking on the Property and the Excluded Parcel;
2. Such easements as are necessary for the proper use and
maintenance of utility services to the respective premises;
3. Such other rights as the parties may reasonably agree.
B. Provide for the maintenance of the common areas of the Property, and
the Excluded Parcel and an equitable sharing of the costs thereof.
C. Provide such restrictions on use as are required by the tenant leases
for the Property and the Excluded Parcel and as may be further agreed upon by
Purchaser and Seller.
The ECR shall be executed in recordable form, shall be recorded upon Closing and
shall run with the land comprising the Property and the Excluded Parcel.
In addition to the ECR, Purchaser and Seller shall enter into such other
agreements as may be reasonably necessary or appropriate in order to fully
define the rights and obligations of each party in connection with the continued
ownership, maintenance and operation of the Property and the Excluded Parcel
(i.e. party wall agreements, etc.).
4. Environmental Insurance. At Closing, Seller shall provide at its expense
and for the benefit of Purchaser and the Property a policy of insurance insuring
Purchaser, its successors and assigns, against liability for government-required
environmental clean-up costs, for personal injury or damage to property
(including liability for diminished value claims of adjoining property owners)
incurred in connection with the ownership and management of the Property. Such
insurance coverage shall be for a period of five (5) years from Closing, shall
be for a total amount of $2,000,000, with a deductible of not greater than
$50,000. Purchaser has obtained a preliminary quote for such insurance
estimating the premium therefor of $24,400. In the event such premium exceeds
$25,000, Seller shall not be required to contribute more than $25,000 for such
premium, and Purchaser shall elect either (a) to pay such premium in excess of
the amount paid by Seller, or (b) to terminate this Agreement and receive a
return of the Deposit.
5. Reaffirmation. Except as hereinabove modified, the terms and provisions
of the Agreement remain in full force and effect, the same being republished and
confirmed hereby.
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6. Counterpart Execution. This Second Amendment may be executed in several
counterparts, each of which shall be deemed an original, and with all such
counterpart together constituting one and the same agreement.
7. Facsimile Signature. The parties hereto agree that this Second Amendment
may be executed by facsimile signature.
8. Capitalized Terms. The capitalized used in this Second Amendment shall
have the meaning attributed to them in the Agreement unless otherwise set forth
herein.
IN WITNESS WHEREOF, the duly authorized representatives of the undersigned
have executed this Second Amendment under seal the day and year first above
written.
SELLER:
MARKET PLACE SHOPPING CENTER, L.P., a
Georgia limited partnership
By: Peachtree Corners, Inc., a Georgia
corporation, its General Partner
By: /s/ B. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: B. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: President
------------------------------
(CORPORATE SEAL)
PURCHASER:
IRT PROPERTY COMPANY, a Georgia corporation
By:/s/ W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ III
-----------------------------------
Title: Exec. V.P.
---------------------------------
(CORPORATE SEAL)
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ESCROW AGENT:
COMMONWEALTH LAND TITLE INSURANCE
COMPANY a Pennsylvania corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Tyler
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: AVP/ATLANTA NTS
------------------------------
(CORPORATE SEAL)
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