EXHIBIT 99.1
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CONTRACT OF SALE
THIS AGREEMENT made this _____ day of __________, 1997 between NORTH
RIVERS MARKET ASSOCIATES, a general partnership organized under the laws of
the State of Illinois, whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter, "Seller"), and KRC ACQUISITION CORP., a
Delaware corporation, whose address is 3333 New Hyde Park Road, ▇.▇. ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter, "Purchaser").
W I T N E S S E T H:
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WHEREAS, Seller represents it owns the shopping center commonly known
as North Rivers Market located in North Charleston, South Carolina, as
shown on the Plan (the "Shopping Center"); and Seller wishes to sell and
Purchaser wishes to purchase such Shopping Center;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. For this Agreement, the following expressions
shall have the meanings hereinafter set forth.
1.1 "Plan" means the drawing attached as Exhibit 1.
1.2 "Real Estate" means the land described on Exhibit 2 and
all of the buildings, building fixtures and equipment (including permanent
shopping center signs), and other improvements constructed thereon, The
parcels designated as Hechinger Parcel and Toys 'R Us Parcel, and the
outlots designated as First Union Bank, ▇▇ ▇▇▇▇▇▇▇▇'▇, A & W Cafeteria,
Tomato Rumbas, and First Federal of Charleston are expressly excluded.
1.3 "Space Lease(s)" means all tenant space lease(s),
license(s), concessions or other occupancy or use agreements, including all
modifications, addenda and supplements thereto and guarantees thereof,
applicable to any part of the Real Estate. All existing Space Leases as of
the date hereof are listed on Exhibit 3.
1.4 "Personal Property" means the furniture, furnishings,
tools, equipment, supplies (consumable and otherwise) and any other movable
property (if any) located at and used in connection with the operation of
the Shopping Center which are now or at Closing owned by Seller listed on
Exhibit 4; the files which are in the possession of Seller and are required
for the efficient operation of the Shopping Center, including sepias,
drawings, surveys, plans and specifications; and all licenses, permits,
certificates of occupancy (or local equivalent) in the possession of
Seller.
1.5 "Property" means collectively all of Seller's rights and
interest in the Real Estate, the Personal Property, the Space Leases and
all the other assets described in Article 2.
1.6 "Closing Date" means the date referred to in Section
14.1, and on which Closing occurs. "Closing" means the event whereby title
to the Property is actually conveyed by Seller to Purchaser or Purchaser's
designee.
1.7 "Permitted Exceptions" means those certain title
exceptions set forth in the first preliminary title commitment to be
received by Purchaser, which Purchaser, in Purchaser's sole and exclusive
judgment shall have approved pursuant to Article 7.
1.8 "Service Contracts" means all written or oral agreements
(including purchase orders) pursuant to which goods, services, supplies or
other items whatever are furnished on a continuing basis for the operation
of the Real Estate. A list of such existing Service Contracts as of the
date hereof is attached hereto as Exhibit 5.
1.9 "Inspection Period" means a period of time commencing on
the date Purchaser receives a fully signed counterpart of this Agreement,
and expiring at midnight on December 22, 1997.
1.10 "Escrow Agent" means First American Title Insurance
Company of New York.
1.11 "Deposit" means a deposit in the amount of Two Hundred
Fifty Thousand ($250,000.00) Dollars (plus any interest earned thereon).
1.12 "REAs" means, collectively, that certain: (i) Reciprocal
Easement and Operation Agreement (the "REOA") between North Rivers Market
Limited Partnership (Seller's predecessor in interest) and Toys 'R Us,
Inc., dated June 6, 1986 and recorded in Book C155, Page 668, and re-
recorded in Book B157, Page 521 in the Office of the Register Mense
Conveyance of Charleston County, South Carolina, which REOA was superseded
by a new Reciprocal Easement and Operation Agreement dated April 30, 1987
and recorded in Book A166, Page 550 (the "New REOA"), which New REOA was
amended by Agreement dated as of 1988; and (ii) Maintenance Agreement dated
June 13, 1986 between Northrivers Market Limited Partnership (Seller's
predecessor in interest) and Toys 'R Us, Inc.
2. SALE AND PURCHASE. Seller agrees to sell, convey, assign and
transfer to Purchaser, and Purchaser agrees to purchase and acquire from
Seller, all of Seller's right, title and interest in and to: (a) the Real
Estate, (b) the Personal Property (if any), (c) the Space Leases, (d) all
trade or assumed names and trade logos used in the operation of the
Shopping Center, (e) any land lying in the bed of any street, road or
avenue, opened or proposed, in front of or adjoining the Real Estate, (f)
any strips or gores adjoining the Real Estate, (g) all permits or licenses
in connection with the operation of the Shopping Center, (h) all
appurtenances and hereditaments appertaining to the Real Estate, (i) all
awards made or to be made to Seller for the Property or any part thereof by
reason of a taking by eminent domain or in lieu thereof, (j) any guarantees
or warranties relating to the Real Estate or Personal Property to extent
transferable, and (k) any unpaid award for damages to the Real Estate by
reason of change of grade of any street (Seller hereby agreeing to execute
and deliver to Purchaser, on the Closing Date or thereafter, all proper
instruments for collection of any such award) and (l) all rights of Seller
under the REAs.
3. PURCHASE PRICE. The "Purchase Price" for the Property is
FOURTEEN MILLION EIGHT HUNDRED EIGHTY-THREE THOUSAND SEVEN HUNDRED FORTY-
TWO ($14,883,742.00) DOLLARS , to be paid as follows:
3.1 Deposit. Within one (1) business day after Purchaser
receives a fully-executed copy of this Agreement, Purchaser shall place the
Deposit in escrow with Escrow Agent. In the event Purchaser elects to
cancel and terminate this Agreement pursuant to Section 5.4 or any other
provision of this Agreement, the Deposit shall be promptly returned to
Purchaser by Escrow Agent. Escrow Agent shall hold the Deposit in
accordance with Section 4 below. If Closing occurs, then the amount of the
Deposit, including all interest earned thereon, shall at Closing be paid to
Seller and said amount shall constitute a credit against the Purchase Price
.
3.2 Balance of Purchase Price. Subject to the conditions of
this Agreement, at Closing, Purchaser shall pay Seller the Purchase Price
(less any credit due Purchaser pursuant to Section 3.1; ); in federal funds
by wire transfer (and Seller shall furnish Purchaser with complete wire
transfer instructions prior to Closing).
3.3 Withholding. Notwithstanding the foregoing provisions or
anything to the contrary elsewhere in this Agreement, at Closing Purchaser
shall withhold seven (7%) percent of the Purchase Price and shall, promptly
post-Closing, forward such amount to the South Carolina Tax Commission,
along with a completed Form I-290. Notwithstanding the immediately
preceding sentence, if the Seller provides a properly completed, sworn
Affidavit, in form reasonably acceptable to Purchaser and complying with
all statutory requirements, (a) Purchaser shall withhold based on the
amount of gain recognized by the Seller, if the Seller states such amount
in the Affidavit; and/or (b) Purchaser shall withhold five (5%) percent of
the gain recognized by the Seller if the Seller certifies that it is a
corporation or an association or trust which is taxed as a corporation;
provided, however, Purchaser shall not be required to withhold any amounts
if the Seller properly certifies in the Affidavit that it is a resident or
deemed resident of the State of South Carolina, or is otherwise exempt
under Revenue Ruling 90-3 from the South Carolina Tax Commission's non-
resident withholding requirements on the sale of the Property.
4. DEPOSIT.
4.1 At all times in which the Deposit is being held by the
Escrow Agent, the Deposit shall be invested by Escrow Agent in the
following investments ("Approved Investments"): (i) an interest-bearing
account of Chase Manhattan Bank, (ii) United States Treasury obligations,
(iii) United States Treasury-backed repurchase agreements issued by a major
national money center banking institution reasonably acceptable to Seller;
or (iv) such other manner as may be reasonably agreed to by Seller and
Purchaser. The Deposit shall be disposed of by Escrow Agent only as
provided in this Agreement. If no Closing occurs, all interest or
dividends earned shall be paid to the party entitled to the escrowed
proceeds, which party shall pay any income taxes thereon. The parties
shall furnish the Escrow Agent with their respective tax identification
numbers. At the Closing all interest or dividends earned on the Deposit
shall be credited to Purchaser. All escrow fees, if any, charged by Escrow
Agent shall be equally shared by Seller and Purchaser.
4.2 Prior to Closing, Escrow Agent shall hold the Deposit as
set forth in Section 4.1 unless (i) Escrow Agent receives notice from
Purchaser timely terminating this Agreement pursuant to Section 5.4.1, in
which event Escrow Agent shall forthwith return the Deposit to Purchaser
without requirement of notifying Seller as provided in (ii) below, and
without regard to any objection of Seller; or (ii) with regard to all
situations other than in (i) above, unless either Seller or Purchaser makes
a written demand upon Escrow Agent for the Deposit accompanied by an
affidavit signed by the party making the demand stating sufficient facts to
show that said party is entitled to receive the Deposit pursuant to the
terms of this Agreement. Upon receipt of such demand, Escrow Agent shall
give ten (10) days written notice to the other party of such demand and of
Escrow Agent's intention to remit the Deposit to the party making the
demand on the stated date, together with a copy of the affidavit. If
Escrow Agent does not receive a written objection before the proposed date
for remitting the Deposit, Escrow Agent is hereby authorized to so remit.
If, however, Escrow Agent actually receives written objection from the
other party before the proposed date on which the Deposit is to be
remitted, Escrow Agent shall continue to hold the Deposit until otherwise
directed by joint written instructions from Seller and Purchaser or until a
final judgment of an appropriate court. In the event of such dispute,
Escrow Agent may deposit the Deposit with an appropriate court and, after
giving written notice of such action to the parties, Escrow Agent shall
have no further obligations with respect to the Deposit.
4.3 The parties acknowledge that Escrow Agent is acting as a
stakeholder at their request and for their convenience, that Escrow Agent
shall not be deemed to be the agent of either of the parties, and the
Escrow Agent shall not be liable to either of the parties for any act or
omission on its part unless taken or suffered in bad faith or in willful or
negligent disregard of this Agreement. Seller and Purchaser shall jointly
and severally indemnify and hold Escrow Agent harmless from and against all
costs, claims and expenses, including reasonable attorneys' fees, incurred
in connection with the faithful performance of Escrow Agent's duties
hereunder.
4.4 Escrow Agent acknowledges agreement to the provisions of
this Agreement applicable to it by signing on the signature page of this
Agreement.
4.5 If Closing does not take place because of Purchaser's
default under this Agreement, the Deposit shall be given and/or paid to
Seller as liquidated damages. The receipt of these damages shall be
Seller's sole and exclusive remedy and satisfaction for such default or any
other default; and upon such receipt, except for those matters which
expressly survive termination of this Agreement, this Agreement shall be
null and void and of no further force or effect whatsoever. If Closing
shall occur, the Deposit and all interest earned thereon shall be applied
to the Purchase Price. In all other events, the Deposit shall be returned
to Purchaser . If Closing does not occur as a result of the default of
Seller, then Purchaser shall, at its option and as its exclusive remedies
for such default,, have (i) the right to specific performance or
alternatively (ii) may elect, on notice to Seller and Escrow Agent, to
obtain the return of the Deposit including all interest thereon. Purchaser
may not recover damages against Seller due to such default, but must elect
one of the above two remedies. If Purchaser brings a specific performance
action or if either party brings an action to recover the Deposit, the
non-prevailing party shall (notwithstanding the "exclusive remedies"
language above set forth in this paragraph) pay the prevailing party's
reasonable legal fees, disbursements and court costs expended to obtain a
judgment.
5. MANAGEMENT AND CONDITIONS PRIOR TO CLOSING.
5.1 Until Closing, Seller shall at its own expense, comply
(in accordance with normal course of business in past practice) with all
its obligations under all Space Leases and Service Contracts and the REAs.
Seller shall maintain the Property in the same manner as prior hereto
pursuant to its normal course of business (such maintenance obligations not
including extraordinary capital expenditures or expenditures not incurred
in such normal course of business), subject to reasonable wear and tear and
further subject to destruction by casualty or other events beyond the
control of Seller. Seller shall maintain its current insurance (or
substantially equivalent coverage) until Closing or the earlier termination
of this Agreement.
5.1.1Seller also covenants and agrees that, prior to
Closing, it shall not take any of the following actions without the prior
written consent of Purchaser: (a) effect or permit any change in any of the
Space Leases or Service Contracts or the REAs; (b) renew or extend the term
of any Service Contract or Space Lease; (c) enter into any new Space Lease
or Service Contract or cancel or terminate the REAs or any Space Lease or
Service Contract; (d) enter into, extend or modify any other agreement
affecting the Property the term of which would extend beyond the Closing .
Purchaser's consent to any of the foregoing matters of which Purchaser
receives copies and a request to consent thereto not later than the fifth
(5th) business day prior to the expiration of the Inspection Period shall
not be unreasonably withheld (and shall be deemed given if not disapproved
in writing within five [5] business days of Purchaser's receipt of such
request therefor). If Purchaser consents to any new Space Lease or
modification or renewal of any existing Space Lease, then Purchaser shall
pay for all tenant improvements costs and leasing commissions incurred by
Seller in connection therewith.
5.2 Except as otherwise stated to the contrary in this
Agreement, Purchaser shall at Closing accept the Property in AS IS physical
condition as exists on the date hereof, subject to reasonable wear and tear
between now and Closing but subject also to the provisions of Section 5.1
and Section 5.4.
5.3 Seller agrees that: (a) on and after the date hereof,
Purchaser and its designated representatives shall have access to the
Property upon reasonable advance notice for the purpose of making
engineering, survey or other inspections and independent investigations;
and (b) Seller will provide Purchaser promptly and without charge to the
extent within its possession or control with respect to the Property, full
and accurate copies of Space Leases, Service Contracts, title information
or instruments, tenant, mortgagee (if any), REA and other correspondence
files (other than with partners) and bills, invoices and other similar
records of the Shopping Center. Purchaser shall at all times conduct its
due diligence review, inspections and examinations in a manner so as to not
cause damage, loss, cost or expense to Seller or the Property and so as to
not materially or unreasonably interfere with or disturb any tenant at the
Property. Without limitation of the foregoing, in no event shall Purchaser
make any intrusive physical testing (environmental, structural or
otherwise) at the Property (such as soil borings, water samplings or the
like) without Seller's express written consent. Purchaser agrees to give
Seller at least twenty-four (24) hours prior telephonic notice of any on-
site tenant visits. Seller shall have the right, at its option, to cause a
representative of Seller to be present at all inspections, reviews and
examinations conducted hereunder. Purchaser shall promptly deliver to
Seller true, accurate and complete copies of any written reports relating
to the Property prepared for or on behalf of Purchaser by any third party
and in the event of termination hereunder, shall on request return all
documents and other materials furnished by Seller hereunder. Purchaser
agrees to hold Seller harmless from any personal injury or property damage
caused by Purchaser or its designated representatives on the Property in
doing any testing, inspections or surveys. The provisions of this Section
5.3 shall survive Closing.
5.4 Purchaser shall have the Inspection Period within which
to inspect and examine the Real Estate and Personal Property and to review
and examine the Space Leases and Service Contracts and Landlord's
correspondence files regarding such Space Leases and Service Contracts.
5.4.1In the event that during the Inspection Period,
Purchaser, in its sole and exclusive judgment, determines not to purchase
the Property for any reason or for no reason, or if Purchaser is not
satisfied with the Space Leases or Service Contracts or the condition of
the Real Estate or Personal Property then, on or prior to the last day of
the Inspection Period, Purchaser shall have the right to cancel and
terminate this Agreement without liability to Purchaser by so sending
notice to Seller with a copy to Escrow Agent on or prior to such day.
5.4.2In the event Purchaser does not cancel and
terminate this Agreement prior to the end of the periods set forth in
Section 5.4.1, this Agreement shall remain in full force and effect .
5.4.3Prior to Closing or if Purchaser cancels and
terminates this Agreement pursuant to this Article 5, all non-public
information obtained by Purchaser from Seller during the Inspection Period
shall be kept confidential, except to the extent disclosure is required
pursuant to applicable law, regulation or court proceeding.
6. ADJUSTMENTS AND PRORATIONS.
6.1 As more particularly hereinafter described, with respect
to the Property, Seller shall be entitled to all income produced from the
operation of the Property which is allocable to the period prior to Closing
and shall be responsible for all expenses allocable to that period; and
Purchaser shall be entitled to all income and (solely with regard to
Service Contracts or other obligations accepted and expressly assumed by
Purchaser at Closing) responsible for all expenses allocable to the period
beginning at 12:01 A.M. on the day Closing occurs. At the Closing, all
items of income and expense with respect to the Property listed below shall
be prorated in accordance with the foregoing principles and the rules for
the specific items set forth hereafter:
6.1.1 Seller shall arrange for a billing under all those
Service Contracts for which fees are based on usage and with utility
companies for a billing for utilities, to include all utilities or service
used up to the day Closing occurs, and Seller shall pay the resultant
bills. In the event any of the Service Contracts set forth in Exhibit 5
cover periods beyond the Closing the same shall be prorated on a per diem
basis.
6.1.2Real estate taxes and personal property taxes on
the Property shall be prorated based upon the period (i.e., calendar or
other tax fiscal year) to which same are attributable, regardless of
whether or not any such taxes are then due and payable or are a lien.
Seller shall pay at or prior to Closing (or Purchaser shall receive credit
for) any unpaid taxes attributable to periods prior to the date of Closing
(whether or not then due and payable or a lien as aforesaid). Seller shall
receive credit for any previously paid or prepaid taxes attributable to
periods from and after the date of Closing. In the event that as of the
date Closing occurs the actual tax bills for the tax year or years in
question are not available and the amount of taxes to be prorated as
aforesaid cannot be ascertained, then rates, millages and assessed
valuation of the previous year, with known changes, shall be used; and
after the Closing occurs and when the actual amount of taxes for the year
or years in question shall be determinable, such taxes will be re-prorated
between the parties to reflect the actual amount of such taxes. In no
event shall Seller be charged with or be responsible for any increase in
the taxes on the Property resulting from the sale of the Property or from
any improvements made or leases entered into on or after the Closing Date.
6.1.3Rentals and other payments (other than "percentage
rent" and common area maintenance charges which are dealt with in Section
6.1.4 and Section 6.1.6) which are payable pursuant to Space Leases shall
be prorated on a per diem basis as and when collected. Purchaser shall not
be obligated to make any payment or give any credit to Seller on account of
or by reason of any rental or other payments which are unpaid as of the
date of Closing, but shall be required to utilize diligent efforts to
collect the same (but shall not be required to bring suit or terminate
leases) and shall turn over Seller's share of the same within fifteen (15)
days if, as and when received by Purchaser after the Closing (subject to
Section 6.3). Purchaser shall not be required to institute any action or
proceeding to collect any rent delinquencies.
6.1.4Percentage rent (i.e., that portion of the rent
payable to the landlord by the tenant under a Space Lease which is a
percentage of the amount of sales or of the dollar amount of sales), if
any, payable under each Space Lease shall be prorated with respect to the
lease year thereunder in which the Closing occurs on a per diem basis as
and when collected. Any percentage rent collected by Purchaser including
any percentage rent which is delinquent and pertaining to (i) an entire
lease year or accounting period of a tenant under a Space Lease which ends
on a date prior to the date of Closing, and (ii) that portion of a lease
year or accounting period of such tenant covering a period prior to the
date of Closing where such lease year or accounting period begins prior to
the date of Closing and ends thereafter shall in both cases (subject to
Section 6.3) be paid to Seller within thirty (30) days of receipt by
Purchaser. Purchaser shall not be required to institute any action or
proceeding to collect any delinquent percentage rent.
6.1.5Gas, water, electricity, heat, fuel, sewer and
other utilities charges to which Section 6.1.1 cannot be applied, and the
governmental licenses, permits and inspection fees relating to the Shopping
Center, shall be prorated on a per diem basis.
6.1.6Common area maintenance expenses and charges
including all expenses and charges payable by or to Seller under or in
connection with the REAs, shall be prorated. Seller shall be responsible
for all common area expenses and charges incurred prior to Closing, and
Purchaser shall be responsible for the same subsequent to Closing (but only
to the extent incurred under Service Contracts accepted and expressly
assumed by Purchaser at Closing). All common area expense payments made by
each tenant and such charges paid under its Space Lease for the entire
lease year during which the Closing occurs, and all common area maintenance
payments to Seller by other parties under the REAs, including in each case
end-of-year adjustments, if any, shall be prorated between Seller and
Purchaser in the following manner: Not later than three (3) days prior to
Closing, Seller shall deliver to Purchaser, with regard to each Shopping
Center tenant (or each other party to the REAs, hereafter an "REA Party")
required to pay common area charges ("CAM Charges") under its lease (or the
REAs), a detailed computation showing all CAM Charge expenses incurred by
Seller for the period from the beginning of each such tenant's (or REA
Party's)then current billing period for CAM Charges (e.g., calendar year,
lease year, etc.) through the Closing Date, any CAM monthly estimates or
charges theretofore collected by Seller relating to such tenant (or REA
Party) (hereinafter referred to as the "CAM Estimates"), and a ▇▇▇▇ for the
tenant's (or REA Party's) prorata share of CAM Charges (i.e., for CAM
charges through the Closing Date net of any such CAM Estimates), together
with all invoices and other evidence documenting such CAM Charges in detail
required by such tenant's lease (or the REAs). Purchaser, at its option,
may either:
(i) elect (but only if leases permit or tenants consent or Seller agrees)
to send any such bills to tenants (or REA Parties) promptly following
Closing, in which event such tenant (or REA Party) shall pay any amount
shown due directly to Seller, and Purchaser shall have no responsibility to
collect same; or
(ii) elect to incorporate any bills prepared by Seller into a single
post-closing (as and when appropriate for annual reconciliation or other
billing of CAM charges for any tenant [or REA Party]) ▇▇▇▇ for CAM Charges
to such tenant (or REA Party), in which event such single ▇▇▇▇, as and when
paid, shall be apportioned between Seller and Purchaser based on the ratio
of pre- and post-Closing CAM expenses (taking into account any CAM
Estimates retained by Seller at Closing); or
(iii)elect (but only if leases permit or tenants consent or Seller
agrees), post-Closing (as and when appropriate for annual reconciliation or
other billing of CAM Charges for any tenant (or REA Party)) to send two
bills to such tenant (or REA Party) (i.e., one for pre-Closing charges as
prepared by Seller and one for post-Closing charges), with such tenant (or
REA Party) to pay Seller directly for unpaid pre-Closing charges, if any.
Notwithstanding Purchaser's election above set
forth, any CAM Estimates for any tenant shall be retained by Seller up to
the amount of the pre-Closing CAM Charges payable by such tenant as
evidenced by such bills and computations delivered by Seller at Closing,
and any excess shall be paid or credited to Purchaser at Closing.
6.1.7All brokerage and leasing commissions or other
compensation due or accrued prior or subsequent to the date of Closing to
any broker, agent, or other person in connection with the Property for
brokerage or other services rendered to Seller or any predecessor of Seller
in connection with the management and/or leasing of the Property shall be
credited to Purchaser to the extent not paid by Seller prior to Closing (it
being agreed that payment of all of the foregoing shall be the sole
responsibility of Seller).
6.1.8All prepaid rentals, other prepaid payments,
refundable security deposits, electric, gas, sewer and water deposits
deposited with Seller by tenants, (including all accrued interest on all of
the foregoing, to the extent required by law or the lease) under any Space
Leases, license agreements or concession agreements relating to the
Property, shall be credited to Purchaser at the Closing
6.2 All prorations and payments to be made under the
foregoing provisions shall be made on the basis of a written statement or
statements delivered to Purchaser by Seller and approved by Purchaser. In
the event any prorations, apportionments or computation shall prove to be
incorrect for any reason, then either party shall be entitled to an
adjustment to correct the same, provided that it makes written demand on
the one from who it is entitled to such adjustment within six (6) months
after the erroneous payment or computation was made.
6.3 All accounts receivable flowing from the Property shall
be disposed of as follows:
6.3.1Purchaser and Seller agree to treat all base or
minimum rental payments received from a tenant as first applicable to base
or minimum rent which was owed by that tenant, if any, for the month in
which Closing occurs until the base or minimum rental amount due to Seller
for such period has been collected. In the event that there remains any
unpaid base or minimum rent for a period prior to the month of Closing, all
payments of base or minimum rent received from such tenant shall be applied
to sums owed Purchaser before any part thereof shall be treated as
belonging to Seller. In the event that there remains any unpaid tenant
receivable other than base or minimum rent (including without limitation
any tax, CAM, insurance or percentage rent payments) for any period prior
to the Closing, all payments received from any tenant in arrears shall be
applied to any sums owed Purchaser from such tenant (whether base or
minimum rent or any other amount) before any part thereof shall be treated
as belonging to Seller.
6.3.2In the event that any tenant of Seller or Purchaser
shall hereafter apply or shall have heretofore applied for relief under the
provisions of any bankruptcy or similar laws for the protection of debtors,
the provisions of Section 6.3.1 shall not apply, and the parties shall have
the right to seek collection of their respective accounts, their
entitlements being determined by the Closing and the other provisions of
this Agreement.
6.3.3Neither party shall have the right to enter into
any transactions that purport to compromise claims belonging to the other,
without the other party's prior written consent.
6.3.4If at the time of Closing any tenants (or REA
Parties) owe Seller any money, Seller shall have the right, subsequent to
the Closing, to collect such sums directly from the tenants including
bringing lawsuits against the tenants (or REA Parties) (at Seller's sole
expense) for such collection; provided, however, Seller agrees that any
such legal action or collection shall not include any disturbance of the
possession, use or occupancy of the tenants or any right to evict the
tenants, whether pursuant to the lease provisions or otherwise, and
Purchaser shall not be obligated to join in any lawsuit or in any other way
to participate or cooperate with Seller in its collection attempts, unless
required to by law for Seller to maintain its action, and in such event,
Purchaser will (at Seller's expense) join in such a lawsuit or action only
if the same does not include or require disturbance of the possession of
any tenants, as aforesaid.
7. TITLE AND SURVEY. It shall be a condition to Purchaser's
obligations to close the transactions hereunder that Purchaser shall
receive at Closing valid, marketable and insurable fee title to the Real
Estate subject only to the Space Leases and the Permitted Exceptions.
7.1 Promptly following the execution of this Agreement,
Seller shall obtain and deliver to Purchaser any survey of the Real Estate
in Seller's possession or control (the "Survey"); it being understood that
Purchaser may at its option obtain a new or updated survey; and Purchaser
shall apply to a title insurance company selected by Purchaser (the "Title
Company") for a binding, irrevocable commitment for an ALTA Form B Fee
Title Insurance Policy to be issued to Purchaser (the "Title Commitment")
in the amount of the Purchase Price effective as of the date of recording
of the deed (i.e., no "gap"), evidencing that Seller owns and can convey
valid and marketable fee title to the Real Estate, free and clear of all
encumbrances except the Space Leases and Permitted Exceptions.
7.2 Within ten (10) days after Purchaser's receipt of both
the Title Commitment and Survey (if obtained), but in no event later than
the end of the Inspection Period, Purchaser shall furnish Seller with a
schedule of (i) any liens, encumbrances or other title exceptions or state
of facts shown on the Title Commitment or Survey, which Purchaser, in its
sole and exclusive judgment, does not approve, does not agree to take
subject to or finds unsatisfactory and (ii) any title company requirements
which Purchaser, in its sole and exclusive judgment, contends Seller must
satisfy. In addition, if Purchaser has requested endorsements providing
coverage for (a) a perimeter metes and bounds description and contiguity
between the parcels which comprise the Real Estate (if comprised of
separate parcels) and between the Real Estate and public streets or (b)
access from the Real Estate to a public street, or (c) extended coverage
over the Title Company's general exceptions, or (d) zoning as provided in
ALTA Zoning Endorsement 3.1, or (e) affirmative insurance that easements
are not encroached upon by any structures on the Real Estate or that there
are no violations of any restrictive covenants or agreements and that no
future violation would cause any reversion of title, or (f) a survey
endorsement, and the title company has refused to grant such coverages,
Purchaser shall so inform Seller.
7.3 Seller shall have a period of thirty (30) days following
receipt of said schedule to remove, correct, cure or satisfy to Purchaser's
satisfaction, any survey or title exceptions or Title Company requirements
set forth on said schedule and to obtain from the Title Company the
endorsements set forth on said schedule. Seller shall not be required to
remove any title objections, provided that notwithstanding the foregoing if
any objection consists of a mortgage or other lien evidencing a tax or
judgment lien against Seller, or a mechanic's lien based on work performed
by or on behalf of Seller, Seller shall be required to remove same as
provided in Section 7.6. If Seller fails to remove at or prior to Closing
any such mortgage or other lien required to be removed as aforesaid,
Purchaser may, but shall not be obligated to, close title subject to such
mortgage or lien with an abatement of the Purchase Price in the amount
required to remove same. For purposes of this Article 7, a deed of trust
or similar instrument shall be deemed to be a mortgage.
7.4 In the event that Seller is unable or (subject to its
obligations above set forth) elects not, within said thirty (30) day
period, to remove, correct, cure or obtain endorsements as aforesaid
(hereinafter called "title correction"), Purchaser shall have the right at
its sole option either (a) to terminate this Agreement, in which event the
Deposit shall be returned to Purchaser and neither party shall, thereafter,
have any further liability hereunder, or (b) to accept such state of facts
and such title as is disclosed by the Survey and Title Commitment without
title correction thereby waiving any rights against Seller with respect
thereto, provided that there shall nevertheless be an abatement for
unremoved mortgages or other liens as above set forth. Said initial
election shall be made by Purchaser within ten (10) days following
Purchaser's receipt of written notification by Seller that Seller has not
been able to or will not obtain title correction.
7.5 In the event that Seller shall undertake title correction
as aforesaid, and shall be successful, this Agreement shall continue in
full force and effect and Purchaser shall close the transaction
contemplated hereby in accordance with the terms hereof. In the event that
Seller shall only be partially successful in obtaining title correction,
Purchaser shall have the same alternative rights as Purchaser would have in
the event Seller had declined to seek title correction (as set forth in the
preceding paragraph of this Section). Purchaser shall make its election
within ten (10) days after Purchaser's receipt of written notice from
Seller to Purchaser of the extent to which title has been corrected.
7.6 If any title objection consists of a mortgage or other
lien required to be removed as aforesaid, Seller shall be required to
remove the same by payment, by bonding, or causing the Title Company to
insure over the same or otherwise.
8. GENERAL DISCLAIMER. Except as specifically set forth in this
Agreement, the sale of the Property hereunder is and will be made on an "as
is" basis, without representations and warranties of any kind or nature,
express, implied or otherwise, including but not limited to any
representation or warranty concerning title to the Property, the physical
condition of the Property (including but not limited to the condition of
the soil or the Improvements), the environmental condition of the Property
(including but not limited to the presence or absence of hazardous
substances on or respecting the Property), the compliance of the Property
with applicable laws and regulations (including but not limited to zoning
and building codes or the status of development or use rights respecting
the Property), the financial condition of the Property or any other
representation or warranty respecting any income, expenses, charges, liens
or encumbrances rights or claims on, affecting or pertaining to the
Property or any part thereof. Purchaser acknowledges that Seller (i)
acquired its interest in the Property through foreclosure or deed-in-lieu
of foreclosure, (ii) did not develop the Property, and (iii) since its
acquisition has delegated the day-to-day management of the Property to a
property manager. Purchaser further acknowledges that, during the
Inspection Period, Purchaser will be given opportunity to examine, review
and inspect all matters which in Purchaser's judgment bear upon the
Property and its value and suitability for Purchaser's purposes. Except as
to matters specifically set forth in this Agreement, Purchaser will acquire
the Property solely on the basis of its own physical and financial
examinations, reviews and inspections and the title insurance protection
afforded by the policy of title insurance hereunder. Without limitation
thereon, Purchaser hereby waives any and all rights of contribution or
other rights or remedies against Seller under the Comprehensive
Environmental Response Compensation and Liability Act or any other
applicable environmental laws, rules or regulations, except for (i) matters
arising from acts of Seller, and/or (ii) matters for which Purchaser must
enforce rights against Seller to recover from (or have Seller recover from)
a third party which caused an environmental problem.
9. COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller covenants, represents and warrants to Purchaser the
following, all of which shall be required to be true and correct in all
material respects on and as of the Closing Date as a condition precedent to
Purchaser's obligations hereunder, and all of which shall survive the
Closing for a period of nine (9) months:
9.1 Seller has obtained all consents required to permit all
of the transactions contemplated by this Agreement (including but not
limited to the sale of the Property to Purchaser) and required under any
partnership agreement, shareholder agreement, covenant or other agreement
concerning it or to which it is a party or by any law or regulations, and,
to Seller's best knowledge, the sale of the Property does not require the
consent or approval of any public or private authority which has not
already been obtained by Seller.
9.2 Seller has not received written notice from any
governmental authority, mortgagee, tenant, insurer or other party (i) that
either the Real Estate or the use or operation of the Shopping Center is
currently in violation of any zoning, environmental or other land use
regulations; (ii) that Seller is currently in violation or with the passage
of time will be in violation of the requirements of any ordinance, law or
regulation or order of any government or any agency, body or subdivision
thereof (including, without limitation, the local building department)
affecting the Shopping Center, or that any investigation has been
commenced, or is contemplated, regarding any such possible violation; or
(iii) asserting that Seller is required to perform work at the Shopping
Center. Notwithstanding the foregoing, Seller shall have the right to
contest any violation if the same does not delay the Closing and if the
violation is cured or removed prior to the Closing.
9.3 There is no pending litigation brought by or against
Seller or affecting the Property (including, without limitation, the Real
Estate and the Space Leases) or the operation of the Shopping Center
(including without limitation any bankruptcy proceedings of existing Space
Lease tenants) except as set forth on Exhibit 6. If Seller is served with
process or receives notice that litigation may be commenced against it,
Seller shall promptly notify Purchaser.
9.4 The Space Leases described in Exhibit 3 comprise all the
Space Leases presently existing and each is in full force and effect; no
Space Lease has been modified or supplemented except (if at all) as set
forth on Exhibit 3; except as may be set forth in the Space Leases, no rent
has been paid more than one month in advance by any tenant. To Seller's
knowledge no tenant is entitled to any "free rent" period, defense, credit,
allowance or offset against rental; the information set forth in Exhibit 3
is true, correct and complete. To Seller's knowledge, there is no default
of either landlord or tenant under any of the Space Leases, and no state of
facts which with notice and/or the passage of time would ripen into a
default, except as set forth on Exhibit 3. To Seller's knowledge, there
are no persons or entities entitled to possession of the Property other
than those listed on Exhibit 3. No work or installations is required of
Seller except as specified (if at all) in the Space Leases, and in any case
Seller has fully completed all tenant improvements specified in any Space
Lease to be the responsibility of the landlord and has paid all tenant
construction allowances. There are no leasing commissions due nor will any
become due in connection with any Space Lease or the renewal thereof, and
no understanding or agreement exists in regard to payment of any leasing
commissions or fees for future Space Leases. Seller has no obligations
with respect to contributing for or paying dues or charges to a Shopping
Center merchant's association.
9.5 To Seller's knowledge, there are no unpaid installments
of general, special or betterment tax assessments on the Property.
9.6 To Seller's knowledge, there are not now and will not be
on the date of Closing any agreements or understandings relating to the
Property, except for the Permitted Exceptions, Space Leases and Service
Contracts; and no alterations, amendments or waivers pertaining to the
foregoing will be made by Seller except with Purchaser's written approval
prior to the date of Closing.
9.7 The list of and information with respect to Service
Contracts in Exhibit 5 is true and complete. To Seller's knowledge, there
is no material default by any party to any Service Contract. Seller has
received no written notice that any party to any Service Contract intends
to cancel or terminate such agreement.
9.8 Seller has no on-site employees in connection with the
management, operation or maintenance of the Property.
9.9 The persons or parties signing this Agreement on behalf
of Seller have the power and authority to enter into this Agreement, to
bind Seller to the provisions hereof and to comply with the obligations of
Seller hereunder.
9.10 Neither the execution and delivery of this Agreement nor
the consummation of the transactions herein contemplated will conflict
with, result in a breach of or constitute (with or without the giving of
notice or the passing of time, or both) a default under any Space Lease,
the REAs, or any other contract, agreement, instrument, license or
undertaking to which Seller is a party or by which any of its properties or
assets is or may be bound.
9.11 No tenant under a Space Lease (or REA Party) or other
person has any option, right of first refusal or other right to purchase
the Property or any part thereof or interest therein. In the event any
such option, right of first refusal or other right to purchase does exist
on the date hereof, it shall be a condition to Purchaser's obligations
hereunder that Seller shall at Closing deliver to Purchaser a written and
recordable instrument, signed by the holder thereof, irrevocably and
unconditionally waiving, canceling, terminating and annulling any such
option, right of first refusal or other right.
9.14 To Seller's knowledge, the REAs are in full force and
effect and have not been modified or supplemented except as set forth in a
recorded instrument. To Seller's knowledge, there is no material default
under the REAs of either Seller or any REA Parties, and no unperformed work
or installations or unpaid amounts is required of or due from Seller under
the REAs.
At Closing, Seller shall deliver to Purchaser a certificate
reconfirming all the foregoing representations as true, correct and
complete in all material respects as of the date of Closing. As used in
this Agreement, Seller's knowledge shall mean only the actual knowledge of
▇▇▇▇▇ ▇▇▇▇▇▇, after having Seller's third party property manager review the
representations and warranties contained herein, but otherwise without any
duty to investigate and with any imputed or constructive knowledge being
excluded. Seller represents that ▇▇▇▇▇ ▇▇▇▇▇▇ is the Seller's partnership
coordinator for the Property and is (and shall be prior to Closing) the
sole person at Seller with any significant knowledge concerning the
Property.
Any cause of action of a party for a breach of the foregoing
representations and warranties shall survive until the date which is nine
(9) months after the Closing (the "Survival Period"), at which time such
representations and warranties (and any cause of action resulting from a
breach thereof not then in litigation) shall terminate. Notwithstanding
the foregoing, if Purchaser shall have actual knowledge as of the Closing
Date that any of the representations or warranties of Seller contained
herein are false or inaccurate or that Seller is in breach of or default of
any of its obligations under this Agreement, and Purchaser nonetheless
closes the transactions hereunder and acquires the Property, then Seller
shall have no liability or obligation respecting such false or inaccurate
representations or warranties or other breach or default (and any cause of
action resulting therefrom shall terminate upon such Closing hereunder).
9.A COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser covenants, represents and warrants to Seller the following, all
of which shall be required to be true and correct in all material respects
on and as of the Closing Date as a condition precedent to Seller's
obligations hereunder.
9.A.1 Purchaser has obtained (and any permitted assignee of
Purchaser will by Closing have obtained) all consents required to permit
all of the transactions contemplated by this Agreement (including without
limitation sale of the Property to Purchaser) and required under any
partnership agreement, shareholder agreement, or other agreement concerning
it or to which it is a party.
9.A.2 The persons or parties signing this Agreement on behalf
of Purchaser have the power and authority to enter into this Agreement, to
bind Purchaser to the provisions hereof, and to comply with the obligations
of Purchaser hereunder.
9.A.3 Neither the execution and delivery of this Agreement nor
the consummation of the transactions herein contemplated will conflict
with, result in a breach of or constitute (with or without the giving of
notice of passing of time, or both) a default under any agreement to which
Purchaser is a party.
10. DAMAGE, DESTRUCTION.
10.1 Prior to Closing, in the event of any damage to or
destruction of all or part of the Real Estate (notice of which shall be
given to Purchaser by Seller as soon as practicable following its
occurrence), if damage is not repaired by Closing and if the cost of such
repair or replacement exceeds Two Hundred Fifty Thousand ($250,000.00)
Dollars, or the damage would take more than sixty (60) days to repair or
rebuild, then in any such case (i) Purchaser shall have the right to
terminate this Agreement by giving Seller written notice of its intention
to do so, such notice by Purchaser to Seller to be given not later than
five (5) days after Purchaser shall have received the notice from Seller of
such aforesaid occurrence, (in which event the Deposit shall forthwith be
returned to Purchaser, whereupon the Agreement shall be null and void and
of no further force or effect whatsoever); or (ii) if Purchaser elects not
to terminate this Agreement, this Agreement shall continue in full force
and effect except that at Closing Purchaser shall receive an abatement of
the Purchase Price in an amount equal to (x) the deductible on Seller's
insurance policy, plus (y) any insurance proceeds theretofore received by
Seller with respect to such casualty which have not been expended on
repairs; and Seller shall assign to Purchaser all rights to receive all
further casualty insurance proceeds, including without limitation loss of
rent insurance proceeds for periods from and after Closing. Seller agrees
to fully cooperate with Purchaser, at Purchaser's expense, so that
Purchaser may receive all such proceeds. The provisions of this Section
10.1 shall survive Closing.
11. EMINENT DOMAIN.
Seller represents it knows of no eminent domain proceedings
affecting or threatened against the Property. In the event that any
eminent domain proceedings affecting the Property (other than minor
proceedings which do not have any material adverse effect on the Property)
shall be threatened, contemplated, commenced or consummated prior to the
Closing (notice of which shall be given to Purchaser by Seller as soon as
practicable after receipt by Seller), Purchaser shall have the right to
terminate this Agreement, by written notice given to Seller within fifteen
(15) days after Seller has given Purchaser the aforesaid notice, (in which
event the Deposit shall forthwith be returned to Purchaser, whereupon the
Agreement shall be null and void and of no further force or effect
whatsoever). If this Agreement is not so terminated, Seller at Closing
shall assign to Purchaser its entire right, title and interest in and to
any award, and shall give Purchaser a credit for any award it receives
after the date of this Agreement and prior to Closing.
12. PURCHASER'S CONDITIONS TO CLOSING.
Purchaser's obligation to purchase the Property at Closing and
to pay the Purchase Price is expressly conditioned upon the following
(unless waived in writing signed by Purchaser), and if all these conditions
are not satisfied at the Closing, Purchaser may terminate this Agreement in
which event the Deposit shall forthwith be returned to Purchaser,
whereupon, except for those matters which expressly survive termination
hereunder, this Agreement shall be null and void and of no further force or
effect whatsoever:
12.1 Seller's warranties and representations set forth herein
shall be true and correct in all material respects (except as Purchaser may
have expressly, in writing, waived or accepted any variations) as of the
date of Closing and Seller shall have performed each and all of its
covenants and agreements hereunder within the time provided.
12.2 At Closing, Seller shall have delivered estoppel
certificates substantially in the form and substance of Exhibit 9 (or in
the form, if any, prescribed in the applicable Space Lease or, if the
tenant is a major or other national tenant, in the form normally and
customarily obtained from such tenant (provided that no statement in any
such form other than Exhibit 9 reveals or would constitute a breach of a
representation of Seller under this Agreement),dated not more than thirty
(30) days prior to the Closing Date, from all Space Tenants occupying
thousand (5,000) square feet or more, and from Space Tenants occupying in
the aggregate not less than eighty (80%) percent of all leased space in the
Shopping Center (including all over five thousand [5,000] square feet).
The estoppel certificates shall confirm the information set forth in
Exhibit 3 in all material respects. In the event the preceding condition
is not satisfied, then, Purchaser shall have the right to terminate this
Agreement and obtain the return of the Deposit; however, if Purchaser
elects not to terminate (or, in any event, with regard to any such Space
Tenant estoppel not delivered even if Purchaser would not have a right to
terminate), Seller shall, at Closing, furnish its own estoppel certificate
in lieu of missing tenant estoppel certificates. Seller's estoppel
certificates (which shall survive Closing) shall also be in form and
substance of Exhibit 9. Notwithstanding the foregoing, Seller shall not be
required to deliver its own estoppel containing an assertion Seller in good
faith believes to be untrue. If any such estoppel of Seller is not in the
form or substance of Exhibit 9, Purchaser shall have the right, at its
option, to accept such varied estoppel of Seller or to terminate this
Agreement and obtain the return of the Deposit. To the extent any
representation of Seller in this Agreement regarding a Space Lease is
expressly confirmed by any such Space Tenant estoppel, Seller shall be
released from all post-Closing liability regarding, and to the extent of,
such confirmed representations.
12.3 There shall have been no breach on the part of Seller of any
covenants set forth in Section 5.
12.A SELLER'S CONDITIONS TO CLOSING.
Seller's obligation to sell the Property at Closing is
expressly conditioned upon the following (unless waived in writing by
Seller):
12.A.1 Purchaser's warranties and representations set
forth herein shall be true and correct in all material respects.
12.A.2 Purchaser shall have performed all obligations
(including payment of Purchase Price and delivery of all required
documents) to be performed by it at Closing.
13. ASSIGNMENT
13.1 Purchaser shall have the right to assign this Agreement
and all of its rights under this Agreement to any person or entity which
controls, is controlled by or is under common control with Purchaser,
provided that upon such assignment any such assignee shall, in writing,
affirmatively assume all obligations of Purchaser hereunder. No such
assignment shall release Purchaser from any obligations hereunder.
13.2 Seller shall not assign its rights or its interest in and
to this Agreement (but such provision shall not be deemed to relate to
post-Closing actions); nor shall Seller be deemed to be discharged of any
of its duties hereunder as a result of any assignment or of any delegation
by Seller of any such duties.
14. THE CLOSING.
14.1 The Closing of the sale and purchase of the Property
shall be held at the offices of Purchaser's attorneys, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 9:00 A.M. on the Closing Date;
and, the Closing Date shall be a date which is five (5) business days after
expiration of both the Inspection Period; or upon such earlier date as
agreed upon by Seller and Purchaser.
14.2 At Closing, Purchaser shall pay the Purchase Price
adjusted in accordance with the relevant provisions of this Agreement; and
Purchaser shall execute and deliver such other instruments as Seller may
reasonably desire in connection with or to consummate the transactions
contemplated by this Agreement.
14.3 At Closing, Seller shall execute and/or deliver to
Purchaser the following:
14.3.1 A special warranty deed (or the equivalent
thereof) in proper recordable form, duly executed and acknowledged by
Seller, and conveying to Purchaser fee simple absolute ownership of the
Real Estate; and it shall be a condition to Purchaser's obligations that
same shall be free and clear of all liens, encumbrances and leases except
for the Space Leases and Permitted Exceptions.
14.3.2 A ▇▇▇▇ of sale for a consideration of $10.00
conveying the Personal Property (if any) from Seller to Purchaser free of
all liens, encumbrances and leases except for Permitted Exceptions.
14.3.3 An Assignment Agreement (in the form of
Exhibit 10) by which Seller assigns to Purchaser all of Seller's right,
title and interest, free and clear of all liens, encumbrances and claims,
in and to the Space Leases.
14.3.4 An Assignment (in the form of Exhibit 11) by
Seller to Purchaser of all of Seller's right, title and interest, free and
clear of all liens, encumbrances and claims, in and to (i) all Service
Contracts set forth in Exhibit 5 (if any) (to the extent, if any,
assignable), (ii) all trade or assumed names and any trade logos used in
the operation of the Shopping Center to the extent assignable, (iii) all
guarantees and warranties relating to the Property (to the extent, if any,
assignable), and (iv) all permits or licenses used in connection with the
operation of the Shopping Center to the extent assignable.
14.3.5 An Assignment Agreement (in the form of
Exhibit 12) by which Seller assigns to Purchaser of all the tenant security
deposits held by Seller under the Space Leases (if any).
14.3.6 The certificate reconfirming the
representations provided for in Article 9.
14.3.7 Notices to tenants (in form attached hereto
as Exhibit 13) advising them of the transfer of the Shopping Center to
Purchaser and directing payment of rent and other charges to Purchaser or
its designated representative.
14.3.8 Such affidavits; "mechanic's lien", "gap",
"parties in possession" or other Seller indemnities; evidence of authority;
releases of liens; or other instruments as the Title Company may reasonably
request to issue a title policy satisfactory to Purchaser in accordance
with Article 7 (provided the same do not materially increase the costs to,
or liability or obligations of, Seller in a manner not otherwise provided
for herein).
14.3.9 Such other instruments as Purchaser may
reasonably desire in connection with or to consummate the transactions
contemplated by this Agreement (provided the same do not materially
increase the costs to, or liability or obligations of, Seller in a manner
not otherwise provided for herein).
14.3.10 Possession of the Real Estate and
Personal Property, subject only to possessory rights of tenants under Space
Leases, with all keys; and to the extent in Seller's possession or control,
Seller shall also deliver original signed instruments of all Space Leases,
Service Contracts, permits, licenses, sepias, drawings, plans and
specifications (to the extent in the possession or control of Seller),
finance and accounting records, tenant correspondence, and other files
relevant to the Purchaser's future operation of the Shopping Center.
14.3.11 All estoppel certificates referred to in
Section 12.2 in the forms required and permitted in said Section. Seller
shall have no liability for failure to deliver any estoppel certificates,
provided Seller shall utilize commercially reasonable efforts to obtain
same from each tenant at the Property (such reasonable efforts obligations
not including any obligation to institute legal proceedings or to expend
moneys therefor); but if Seller fails to deliver the required number of
estoppels, Purchaser shall have the rights set forth in Section 12.2.
14.3.12 FIRPTA affidavit in form reasonably
satisfactory to Purchaser to the effect that Seller is not a "foreign
person." If Seller is a "foreign person" (as defined in IRC Section
1445(f)(3) and the regulations issued thereunder), or if Seller fails or
refuses to deliver the non-foreign affidavit required by this paragraph, or
if Purchaser receives notice that such affidavit is false, or Purchaser has
actual knowledge that such affidavit is false, Purchaser shall deduct and
withhold from the Purchase Price a tax equal to ten (10%) percent thereof,
as required by IRC Section 1445. If any such withholding is made by
Purchaser, Seller's obligation to deliver title hereunder shall not be
excused or otherwise affected. Purchaser shall remit such withheld amount
to the IRS and file the required form with the IRS, and if Seller claims
that the amount so withheld by Purchaser and remitted by Purchaser to the
IRS exceeds the amount required to be withheld under the IRC for any reason
whatsoever, Seller's remedies with respect to such claim shall be limited
solely to an action against the IRS for refund, and Seller hereby waives
any right of action against Purchaser on account of such withholding. The
provisions of this Section 14.3.12 shall survive the Closing hereunder.
14.3.13 An Affidavit of Value in form reasonably
acceptable to Seller and Purchaser sufficient to record the deed and/or
compute deed recording fee to be paid by Seller.
14.3.14 The Affidavit referred to in Section 3.3.
14.3.15 An estoppel certificate from each REA Party
substantially in the form of Exhibit 14. If Seller fails to deliver any
such REA estoppel despite its commercially reasonable efforts (such
reasonable efforts not to include any obligation to institute legal
proceedings or to expend moneys therefor), Seller shall have no liability,
and Purchaser's sole right shall be to waive same and close or to cancel
this Agreement and obtain the return of its Deposit.
14.3.16 Such notice to the other REA Parties respecting
the change in ownership as may be required by the REAs or as Purchaser may
otherwise request (which notice shall be signed by Purchaser on Seller's
request.
14.4 Each party shall pay its own legal fees and travel and
lodging expenses in connection with this transaction. Seller shall pay at
Closing any and all transfer, conveyance, deed, recording and/or
documentary stamp taxes or similar taxes or charges relating to, or with
respect to, the conveyance and transfer of the Property. Purchaser shall
pay all costs of any title policy or survey it desires to obtain and costs
of all due diligence it performs. As to any item of expense for which
Seller is responsible, if Seller does not at Closing pay same, Purchaser
may at its option pay same and deduct the amount thereof as a credit
against the Purchase Price.
15. BROKERS. Purchaser and Seller each represents and warrants
that it dealt with no broker or finder in connection with this transaction
other than Retail Properties ("Retail") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇").
Retail and ▇▇▇▇▇ shall be collectively referred to as the "Broker".
Purchaser shall pay the commission of Retail pursuant to a separate
agreement between Purchaser and Retail, and Seller shall pay the commission
of ▇▇▇▇▇ pursuant to a separate agreement between Seller and ▇▇▇▇▇.
Purchaser and Seller each agree to defend, indemnify and hold the other
harmless from and against any and all loss, liability and expense,
including reasonable attorney's fees, the indemnified party may incur
arising by reason of the above representations being false. The provisions
of this Article 15 shall survive Closing, or earlier termination of this
Agreement.
16. NOTICES. All notices, demands, requests, consents, approvals
or other communications (for the purpose of this Section collectively
called "Notices") required or permitted to be given hereunder or which are
given with respect to this Agreement shall be valid only if in writing and
sent by registered or certified United States mail, return receipt
requested, postage prepaid, or delivered by Federal Express or UPS courier
service, addressed as follows:
To Purchaser: ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
P. O. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
at the same address
Fax: ▇▇▇-▇▇▇-▇▇▇▇
To Seller: North Rivers Market Associates
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
1999 Ave. of the Stars
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
To Escrow Agent: First American Title Insurance Company
▇▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or such other address as such party shall hereafter have specified by
Notice given by the same means. Any Notice shall be deemed given when
delivered to the carrier delivering same, delivery charges prepaid, and
properly sealed and addressed. Any Notice may also be given by telecopier
to the following numbers: Seller ▇▇▇-▇▇▇-▇▇▇▇, Purchaser ▇▇▇-▇▇▇-▇▇▇▇, and
Escrow Agent ▇▇▇-▇▇▇-▇▇▇▇, Att: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., provided that a
"hard copy" of such notice is sent within one (1) business day after such
telecopier transmission in the manner above set forth; and in the case of
notice by telecopier (with confirmation sent as aforesaid), notice shall be
deemed given upon electronic confirmation of receipt.
17. GOVERNING LAW. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with, the laws
of the State in which the Shopping Center is located.
18. ENTIRE AGREEMENT. This Agreement (including the Exhibits
attached hereto) contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior or
contemporaneous understandings, if any, with respect thereto. This
Agreement may not be canceled, modified, changed or supplemented, nor may
any obligation hereunder be waived, except by written instrument signed by
the party to be charged or by its agent duly authorized in writing or
except as otherwise expressly provided herein. The parties do not intend
to confer any benefit hereunder on any person, firm or corporation other
than the parties hereto and their respective successors or assigns.
19. SURVIVAL. This Agreement, and all provisions hereof, shall
survive the Closing and continue in full force and effect thereafter
(except as such survival may be expressly limited herein).
19.A LIMITATION OF LIABILITY.
19.A.1 Notwithstanding anything to the contrary contained
herein, if the Closing of the transactions hereunder shall have occurred,
the aggregate liability of Seller arising pursuant to or in connection with
the representations, warranties, indemnifications, covenants or other
obligations (whether express or implied) of Seller under this Agreement (or
any document executed or delivered in connection herewith) shall not exceed
Five Hundred Thousand ($500,000.00) Dollars.
19.A.2 No constituent partner in or agent of Seller, nor
any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or
trust that is or becomes a constituent partner in Seller (including but not
limited to JMB Mortgage Partners, Ltd.-III, JMB Mortgage PARTNERS, Ltd.-IV
or JMB Realty Corporation) shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement
made or entered into under or pursuant to the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or
times, heretofore or hereafter, and Purchaser and its successors and
assigns shall look solely to Seller's assets for the payment of any claim
or for any performance, and Purchaser, on behalf of itself and its
successors and assigns, hereby waives any and all such personal liability.
Notwithstanding anything to the contrary contained in this Agreement,
neither the negative capital account of any constituent partner in Seller
(or in any other constituent partner of Seller), nor any obligation of any
constituent partner in Seller (or in any other constituent partner of
Seller) to restore a negative capital account or to contribute capital to
Seller (or to any other constituent partner of Seller), shall at any time
be deemed to be the property or an asset of Seller or any such other
constituent partner (and neither Purchaser nor any of its successors or
assigns shall have any right to collect, enforce or proceed against or with
respect to any such negative capital account of partner's obligation to
restore or contribute).
19.A.3 Notwithstanding the foregoing, (I) if Seller or its
successor-in-interest shall fail to retain reserves of at least Five
Hundred Thousand ($500,000.00) Dollars, at the time of Closing hereunder,
or (ii) if during the period commencing on the Closing Date and ending on
the date which is nine (9) months after the Closing Date (the "Survival
Period"), Seller or its successor-in-interest shall utilize such reserves
for any purpose other than the payment of claims, expenses, liabilities or
attorneys' fees of Seller or such successor-in-interest (including any
amounts incurred in connection with resolving or defending any claim of
liability hereunder) with respect to a breach or alleged breach of the
representations, warranties, indemnifications, covenants or other
obligations (whether express or implied) of Seller under this Agreement (or
any document executed or delivered in connection herewith) (collectively,
the "Specified Liabilities"), then subject to the terms and conditions of
this Agreement, Purchaser may, during the Survival Period, look to the
assets of JMB Realty Corporation, as the general partner of the general
partners of Seller for the payment of any Specified Liabilities (and by its
signature hereto in such capacity JMB Realty Corporation hereby agrees to
the provisions of this Section 19.A.3).
20. TITLES AND HEADINGS. Titles and headings of Articles and
Sections of this Agreement are for convenience of reference only and shall
not affect the construction of any provision of this Agreement.
21. ATTACHMENTS. Each of the Exhibits and Schedules referred to
herein and attached hereto is an integral part of this Agreement and is
hereby incorporated in this Agreement by this reference.
22. FURTHER ASSURANCES. Seller and Purchaser each agree to do such
further acts and things and to execute and deliver such additional
agreements and instruments as the other may reasonably require to
consummate, evidence or confirm the sale or any other agreement contained
herein in the manner contemplated hereby (provided the same do not impose
material costs, obligations or liabilities not otherwise provided for
herein).
23. MISCELLANEOUS. This Agreement shall extend to and be binding
upon the legal representatives, heirs, executors, administrators and,
subject to the provisions of this Agreement, the permitted assigns of the
parties hereto. All references to "Sections" and "Articles" shall be
deemed to be references to Sections and Articles of this Agreement unless
otherwise indicated or unless the context otherwise requires.
24. AUTHORITY. Each party warrants authority and due execution of
this Agreement.
25. POST-CLOSING INSPECTION. For a period of three (3) years
following Closing, Seller shall, upon request, give Purchaser access to
Seller's books and records with respect to the operation of the Property
for the calendar year in which Closing occurs and for the previous calendar
year for purposes of verifying collections and remittances and the
preparation by Purchaser of financial statements and reports with respect
to the Property. Such books and records shall be made available to
Purchaser at reasonable times and upon reasonable advance notice to Seller
and without any expense to Seller or charge to Purchaser. This Article 25
shall survive the Closing.
26. RULES OF CONSTRUCTION. The provisions of this Agreement shall
be construed, in all respects, without reference to any rule or canon
requiring or permitting the construction of provisions of documents against
the interest of the party responsible for the drafting of the same, it
being the intention and agreement of the parties that this Agreement be
conclusively deemed to be the joint product of both parties and their
counsel.
27. TIME OF THE ESSENCE. Time is of the essence of this Agreement;
provided that either party shall be entitled to an adjournment of the
Closing Date for not more than two (2) business days (provided such
adjournment does not cause Closing to occur later than December 31, 1997.
28. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, Seller, Purchaser and Escrow Agent have executed
this Agreement as of the day and year first above written.
SELLER:
WITNESSES:
NORTH RIVERS MARKET ASSOCIATES
By: JMB MORTGAGE PARTNERS, LTD.-IV
an Illinois general partnership
______________________________
By: JMB Realty Corporation
a Delaware corporation
By:
___________________________________
Name:
___________________________________
Title:
___________________________________
WITNESSES:
By: JMB MORTGATGE PARTNERS, LTD.-III
an Illinois limited partnership
General Partner
By: ___________________________________
JMB Realty Corporation
a Delaware corporation
General Partner
By:
___________________________________
Name:
___________________________________
Title:
___________________________________
PURCHASER:
WITNESSES:
KRC ACQUISTION CORP.
By:
___________________________________
Name:
___________________________________
Title:
___________________________________
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
OF NEW YORK
By:
___________________________________
Name:
___________________________________
Title:
___________________________________
SCHEDULE OF EXHIBITS
Exhibit 1 Plan
Exhibit 2 Description of Real Estate
Exhibit 3 Schedule of Space Leases
Exhibit 4 Schedule of Personal Property
Exhibit 5 Schedule of Service Contracts
Exhibit 6 Litigation
Exhibit 7 Intentionally Omitted
Exhibit 8 Intentionally Omitted
Exhibit 9 Form of Tenant Estoppel Certificate
Exhibit 10 Form of Assignment of Space Leases
Exhibit 11 Form of Assignment of Service Contracts,
Trade Names, Logos, Permits and Licenses
Exhibit 12 Form of Assignment of Security Deposits
Exhibit 13 Form of Notice to Space Lease Tenants
Exhibit 14 Form of REA Estoppel
EXHIBIT 1
THE PLAN
EXHIBIT 2
DESCRIPTION OF REAL ESTATE
EXHIBIT 3
SCHEDULE OF SPACE LEASES
EXHIBIT 4
SCHEDULE OF PERSONAL PROPERTY
EXHIBIT 5
SCHEDULE OF SERVICE CONTRACTS
EXHIBIT 6
LITIGATION
NONE
EXHIBIT 7
Intentionally omitted.
EXHIBIT 8
Intentionally Omitted.
EXHIBIT 9
TENANT'S ESTOPPEL CERTIFICATE
Re: Lease dated between , Landlord, and
, Tenant* , for premises in THE NORTH RIVERS MARKET SHOPPING
CENTER, North Charleston, South Carolina (collectively, the "Lease").
To Landlord, ("Purchaser"), any mortgagee,
and whomever else it may concern:
The undersigned Tenant under the Lease certifies that as of this date, the
status of the Lease is as follows:
(1) The Lease constitutes the entire and only agreement between the
Landlord and the Tenant with respect to the demised premises identified
therein; and
(2) The Lease is in full force and effect, and the Tenant does not have
nor is entitled to any credit, offset or claim against the obligation to
pay rent or other charges, either by reason of prepayment thereof,
Landlord's acts or omissions, or for any other reason otherwise; and
(3) (a) The commencement date of the Lease was and the
expiration date of the Lease is ___________________.
(b) There are no options remaining unexercised on the part of the
Tenant to renew the Lease except: .
(c) Monthly minimum rents, currently and future, are payable as set
forth in Schedule "A" at the end hereof; and
(d) Tenant is responsible for payment of any tax on rents.
(4) Tenant is open for business in the premises; and
(5) The Tenant has no right to cancel or terminate the Lease, no option
or right to purchase the premises or the shopping center property or any
part thereof; and no right of first refusal whatsoever; and
(6) The security deposit being held by the Landlord on the date hereof in
accordance with Lease is $_____; and
(7) All guaranteed minimum rent, common area maintenance charges, real
estate taxes, additional rent, and other sums payable by Tenant under the
Lease have been fully paid in accordance with the provisions of the Lease;
and
(8) Tenant has not been granted and is not entitled to any free rental or
any concession in or abatement of rent; and
(9) All work, if any, to be performed by Landlord has been heretofore
completed to the full satisfaction of Tenant; and
(10) No default exists under the Lease on the part of either Landlord or
Tenant; and
(11) No installment of Rent has been paid more than one (1) month in
advance; and
(12) (a) Tenant's annual gross sales volume for Tenant's most recently
ended fiscal year was $_____, and percentage rent payable, if any, was $
.
(b) Tenant's percentage rent rate is %, and Tenant's annual
gross sales breakpoint amount is $ .
(13) A true and complete copy of the Lease and all exhibits and amendments
thereto, if any, are attached hereto and made a part hereof.
(14) Tenant hereby consents to the construction of all additional
improvements within and upon the Shopping Center as shown generally on the
plan attached hereto.
This certificate shall be binding upon Tenant and its successors and
assigns (if any); and is given with the knowledge that it may be relied
upon by Purchaser (and/or its assignee and/or successors-in-interest as
owners of the Shopping Center, and its lending institution, if any).
Dated: _______________________
Witness: _______________________ Tenant: _________________________
By: (SEAL)
Guarantor (if any)
SCHEDULE "A"
(Set forth monthly rent payable for balance
of term plus option periods, if any)
From To Minimum Monthly Rent
EXHIBIT 10
ASSIGNMENT OF LEASES
THIS ASSIGNMENT, made this day of , 1997 by and
between , a __________ ("Assignor") and
, a corporation ("Assignee").
W I T N E S S E T H :
--------------------
Assignor is landlord under all those certain leases described on
Exhibit "A" attached hereto and made a part hereof ("Leases") relating to
the property described on Exhibit "B" attached hereto and made a part
hereof ("Premises").
Assignor desires to assign to Assignee, and Assignee desires to
accept the assignment from Assignor of all of Assignor's right, title and
interest in and to the Leases.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereto, intending to be legally
bound hereby, covenant and agree as follows:
1. Assignor hereby transfers, assigns and sets over unto Assignee
all of Assignor's right, title and interest in and to the Leases.
2. Assignee hereby accepts the foregoing assignment and assumes all
of Assignor's obligations as landlord under the Leases accruing on or after
the date hereof.
3. Subject to any relevant representations and warranties of
Assignor in the Contract of Sale covering the Premises dated _______
between Assignor as Seller and KRC ACQUISITION CORP. as Purchaser, as same
may have heretofore been amended, Assignee agrees to, and hereby does,
indemnify, save and hold Assignor harmless of, from and against any and all
loss, cost, expense, liability, damages, actions, causes of action, demands
or claims arising out of or in connection with the obligations of landlord
under the Leases accruing on or after the date hereof.
4. Assignor agrees to, and hereby does, indemnify, save and hold
Assignee harmless of, from and against any and all loss, cost, expense,
liability, damages, actions, causes of action, demands or claims arising
out of or in connection with the obligations of Assignor's landlord under
the Leases accruing prior to the date hereof.
5. This Agreement is given pursuant to that certain Contract of
Sale (the "Contract") dated ___ between Assignor and KRC Acquisition Corp.
(whose interest has been assigned to Assignor). The covenants, agreements
and limitations (including but not limited to the limitations of liability
provided in Section 19.A thereof) provided in the Agreement with respect to
the matters described hereunder are hereby incorporated herein by this
reference as if herein set out in full and shall inure to the benefit of
and shall be binding upon Seller and Purchaser and their respective
successors and assigns.
6. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original, and all of which, when taken
together, shall constitute one and the same instrument.
7. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed the day and year first above written.
ASSIGNOR:
By:
-----------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNEE:
By:
-----------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT 11
ASSIGNMENT
THIS ASSIGNMENT made this day of , 1997 by
, a ("Assignor) and , a
corporation ("Assignee").
W I T N E S S E T H
-------------------
Assignor is the Owner of fee title in the property described on
Exhibit "A" attached hereto and made a part hereof ("Premises").
Assignor desires to assign to Assignee, and Assignee desires to
accept the assignment from Assignor of all of Assignor's right, title and
interest in and to those certain service contracts relating to the Premises
described on Exhibit "B" attached hereto and made a part hereof ("Service
Contracts") and in and to those trade or assumed names, trade logos,
permits and licenses used in connection with the Premises.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereto, intending to be legally
bound hereby, covenant and agree as follows:
1. Assignor hereby grants, transfers and assigns to Assignee, its
successors and assigns, all of the right, title and interest of the
Assignor in and to the Service Contracts, all trade or assumed names
(including without limitation North Rivers Market) and any trade logos, all
guarantees and/or warranties relating to the Premises and/or any components
or systems thereof (to the extent, if any, assignable) and all permits and
licenses used in connection with the operation of the Premises (to the
extent, if any, assignable).
2. Assignee hereby accepts the foregoing assignment and assumes
all of Assignor's obligations under the assignable Service Contracts
accruing on or after the date hereof.
3. Subject to any relevant representations and warranties of
Assignor in the Contract of Sale covering the Premises dated ________
between Assignor as Seller and KRC ACQUISITION CORP. as Purchaser, as same
may have heretofore amended, Assignee agrees to, and hereby does,
indemnify, save and hold Assignor harmless of, from and against any and all
loss, cost, expense, liability, damages, actions, causes of action, demands
or claims arising out of or in connection with the obligations of vendee
under the Service Contracts accruing on or after the date hereof.
4. Assignor agrees to, and hereby does, indemnify, save and hold
Assignee harmless of, from and against any and all loss, cost, cost,
expense, liability, damages, actions, causes of action, demands or claims
arising out of or in connection with the obligations of Assignor as vendee
under the Service Contracts accruing prior to the date hereof.
5. This Agreement is given pursuant to that certain Contract of
Sale (the "Contract") dated __________ between Assignor and KRC Acquisition
Corp. (whose interest has been assigned to Assignor). The covenants,
agreements and limitations (including but not limited to the limitations of
liability provided in Section 19.A thereof) provided in the Agreement with
respect to the matters described hereunder are hereby incorporated herein
by this reference as if herein set out in full and shall inure to the
benefit of and shall be binding upon Seller and Purchaser and their
respective successors and assigns.
6. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original, and all of which, when taken
together, shall constitute one and the same instrument.
7. The provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be duly
executed the day and year first above written.
ASSIGNOR:
By:
-----------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNEE:
By:
-----------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT 12
ASSIGNMENT OF SECURITY DEPOSITS
THIS ASSIGNMENT, made this day of , 1997 by and
between , a __________ ("Assignor"), and
, a corporation ("Assignee").
W I T N E S S E T H :
--------------------
Assignor is landlord under all those certain leases described on
Exhibit "A" attached hereto and made a part hereof ("Leases") relating to
the property described on Exhibit "B" attached hereto and made a part
hereof.
Pursuant to the Leases, Assignor is holding certain security deposits
from the tenants together with any and all interest accrued thereon and not
heretofore paid to tenants (collectively, the "Security Deposits") as set
forth on Exhibit "C" attached hereto and made a part hereof.
Assignor and Assignee have executed an Assignment of Leases of even
date herewith pursuant to which Assignor has assigned to Assignee all of
Assignor's right, title and interest in and to the Leases.
Assignor desires to assign to Assignee, and Assignee desires to
accept the assignment of the Security Deposits.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions contained herein, the parties hereto, intending to be legally
bound hereby, agree and covenant as follows:
1. Assignor hereby assigns to Assignee all of Assignor's right,
title and interest in and to the Security Deposits.
2. Assignee hereby acknowledges receipt of the Security Deposits.
3. Assignee shall be responsible for the return of the Security
Deposits, with the interest from the date hereof (if any and if required
pursuant to the Leases).
4. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be duly executed the day and year first above written.
ASSIGNOR:
By:
-----------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNEE:
By:
-----------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT 13
(Seller's Letterhead)
, 199___
Tenant: (Fill in Tenant's name and address)
Tenant Code No: ___________
Re: Sale of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
Dear Sir or Madam:
Please be advised that your landlord has this day sold the above
referenced shopping center to
. Please send all sums pursuant to your lease to: Kimco
Realty Corporation, 3333 New Hyde Park Road, P. O. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
It is necessary when remitting payments to indicate the tenant code
number provided above for proper credit. Rent is due and payable on the
first day of each month in advance. This is the only notice you will
receive since Purchaser does not send monthly statements. Please also note
that, in the future, all formal notices which you may desire to give to
your new landlord should be addressed as follows: c/o Kimco Realty
Corporation, P.O. Box 5020, 3333 New Hyde ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (Telephone (5l6) ▇▇▇-▇▇▇▇).
Please note that you should contact your insurance broker and notify
them to send to Kimco Realty Corporation, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, a revised certificate of
insurance replacing the former owner as the additional named insured with
that of as the additional named insured and all
communications to your landlord should be sent to the ▇.▇. ▇▇▇ ▇▇▇▇
address. Please note the attached list of contact people should you have
any questions.
Very truly yours,
Seller: _____________________________
By: __________________________________
Name:
-----------------------------
Title:
-----------------------------
CONSENTED TO:
Purchaser:
By: ________________________________
Name:
--------------------------
Title:
--------------------------
KIMCO CONTACT PERSONS
North Rivers Market Shopping Center
Building Maintenance ____________________
Leasing/Renewals ____________________
Common Area Maintenance ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Percentage Rent ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Real Estate Taxes ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Rent Payments ▇▇▇▇ ▇'▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Sign Criteria/Building Plans ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇(516) 869-7138
Tenant Insurance ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Utilities ___________________
* as amended by the following (if applicable:
_____________________________________________________________
_____________________________________________________________________, and,
(if applicable) guaranteed by _____________________, dated
_____________________.