AGREEMENT OF SALE
AGREEMENT made this 24th day of December, 1996, by and
between MARK CENTERS LIMITED PARTNERSHIP, a Delaware limited
partnership (hereinafter called "Seller"), and RONNIE W. CROMER,
WILLIAM B. RUSH, EARL H. BERGEN, Jr., RODNEY S. GRIFFIN AND
WILLIAM W. RISER, Jr. (hereinafter collectively called "Buyer").
WITNESSETH:
1. Sale and Premises.
(a) Seller hereby agrees to sell and convey to Buyer,
and Buyer hereby agrees to purchase from Seller, upon the terms
and conditions hereinafter set forth:
(i) all that certain lot or piece of ground
situate in the City of Newberry, County of Newberry, State of
South Carolina, commonly known as Newberry Plaza Shopping Center,
which is more fully described by meets and bounds on Exhibit "A"
to be attached hereto and the buildings and improvements situate
thereon (the "Premises"); and
(ii) the fixtures, furnishings, equipment and
other items of personal property owned by Seller and located on,
and used in connection with the operation of, the Premises which
are listed on Exhibit A-1, to be attached hereto (the "Personal
Property").
(b) Promptly after the execution of this Agreement,
Buyer may obtain, at its sole cost and expense, from a surveyor
reasonably acceptable to Seller, a physical survey of the
Premises, a plan thereof (the "Survey Plan") and a metes and
bounds description of the Premises prepared from the Survey Plan.
The Survey Plan and the metes and bounds description prepared
therefrom shall be submitted by Buyer to Seller at least thirty
(30) days prior to the date fixed for settlement hereunder. If
the Survey Plan and the metes and bounds description prepared
therefrom does not include any real property not described on
Exhibit A to be attached hereto, the Deed (as defined in
Paragraph 4 below) shall describe the Premises in accordance with
the Survey Plan.
(c) The seller shall deliver to the Buyer with the
executed agreement all Exhibits alluded to herein.
2. Purchase Price. The purchase price to be paid by
Buyer to Seller for the Premises and the Personal Property is the
sum of One Million Three Hundred Thousand Dollars ($1,300,000.00)
(the "Purchase Price"). The Purchase Price shall be paid as
follows:
(a) The sum of One Hundred Thousand Dollars
($100,000.00) (the "Deposit") upon the execution of this
Agreement by the delivery to Seller of Buyer's plain check,
subject to collection, payable to the order of Mark Centers
Limited Partnership or its designee (the "Escrowee"). The
Escrowee shall immediately present Buyer's check for collection
and then, pending consummation of this transaction, hold the
Deposit in escrow in an interest bearing account. At settlement
the deposit shall be paid to the Seller and all interest accrued
thereon shall be paid to Buyer. The Escrowee shall not be liable
to Buyer or to Seller for any act or omission not committed or
occurring in bad faith. In the event of a dispute between Buyer
and Seller as to the payment of the Deposit, or any interest
accrued thereon, the Escrowee shall be entitled to pay the
Deposit, and all interest accrued thereon, into the applicable
Court of record in Newberry County, South Carolina and to
interplead both parties, whereupon the Escrowee shall be released
from any further liability or obligation to either party hereto.
(b) The sum of One Million Two Hundred Thousand
Dollars ($1,200,000.00) at settlement by wire or debit and credit
transfer of immediate United States federal funds to Seller's
account at a bank designated by Seller.
3. Settlement.
(a) Settlement shall be held on the day which is sixty
(60) days from the date of this Agreement, provided that if such
sixtieth (60th) day is a weekend or holiday, then settlement
shall be held on the next day which is not a weekend or holiday,
commencing at 10:00 a.m. at the offices of the Eugene C.
Griffith, Jr. or other mutually agreeable location Newberry
County, South Carolina.
(b) Buyer shall have the right, at its sole option, to
cause settlement to be held on such date prior to the date
specified in subparagraph (a) of this Paragraph 3, as Buyer shall
hereinafter designate by at least (30) days' prior written notice
to Seller.
4. Condition of Title; Commitment to Insure.
(a) Fee simple title to the Premises shall be conveyed to
Buyer at the completion of settlement by a deed (the "Deed")
containing Seller's special warranty as against grantor's acts
only, excluding from such warranty the Permitted Encumbrances.
Title to the Personal Property shall be conveyed by Seller to
Buyer at the completion of settlement by a bill of sale ("Bill of
Sale") containing Seller's special warranty, excluding from such
warranty the Permitted Encumbrances. Title to the Premises shall
be such as will be insured as good and marketable (at Buyer's
sole cost and expense) by a title insurance company selected by
Buyer and acceptable to Seller (the "Title Company") at regular
rates pursuant to the standard stipulations and conditions of the
current ALTA Policy of Owner's Title Insurance, free and clear of
all encumbrances, except for Permitted Encumbrances. The term
"Permitted Encumbrances" shall mean the lien of the Existing
Leases (as defined in Paragraph 5 below), any lien against
Buyer's interest under this Agreement, and the additional title
objections set forth on Exhibit "B" to be attached hereto. Title
to the Personal Property shall also be subject to the Permitted
Encumbrances.
(b) Buyer's Remedy. If title to the Premises is
not, at settlement, insurable as set forth in subparagraph (a) of
this Paragraph 4, Buyer may elect, as its sole right and remedy,
either (I) to take such title to the Premises as Seller can
convey, with abatement of the Purchase Price only to the extent
of monetary liens of a definite, fixed and ascertainable amount
not in excess of the Purchase Price, or (ii) to receive on
written demand the return of the Deposit, and all interest
accrued thereon, and the ordinary costs of obtaining a title
report from the title Insurance Company; and upon such payments,
this Agreement shall be and become null and void, neither party
shall have any further rights or obligations hereunder, and all
executed counterparts of this Agreement shall be returned to
Seller for cancellation.
(c) Commitment to Insure. Within twenty (20) days
after the date of this Agreement, Buyer, At Buyer's sole cost and
expense, shall order a commitment to insure with respect to the
Premises for the Title Insurance Company, such commitment to
certify that fee simple title to the Premises is vested in
Seller, and to commit to insure title to the Premises.
5. Possession, Assignment of Agreements and Leases.
(a) Possession of the Premises and the Personal Property is
to be given by Seller to Buyer at the completion of settlement by
delivery of the Deed and the bill of Sale and by assignment of
the presently existing leases for the Premises listed on Exhibit
C to be attached hereto, subject to the rights of any brokers to
be paid leasing brokerage commissions out of the rentals paid
after settlement. Seller shall, prior to settlement, have the
right to enter into new leases for portions of the Premises now
vacant and for portions of the Premises which may, pursuant to
notice given by any tenant, by reason of any tenant's default, or
by reason of the expiration of the term of an existing lease be
or become vacant; but rentals under such new leases shall not be
at rates less than the prevailing rental rates for comparable
space. All such new leases and the presently existing leases
listed on Exhibit C to be attached hereto are herein called the
"Existing Leases". Seller represents that, at the time of
settlement, Seller shall have accepted no prepayment of rent
under any of the Existing Leases (except for the current month
and except for prepayments heretofore agreed to or received),
that Seller shall not have terminated any of the Existing Leases
by agreement with the tenant (except by reason of a default by
the tenant thereunder or except for notices given to indicate the
landlord's intention not to permit the term of the lease to
continue or be renewed for an additional term) and the copies of
the Existing Leases now in effect initialed by Buyer and by
Seller's agent contemporaneously with the execution of this
Agreement are true, correct and complete copies thereof. Buyer
acknowledges that it has examined all copies of the Existing
Leases now in effect, and that the provisions thereof conform to
the data set out on Exhibit "C" hereto. The termination of any
of the Existing Leases prior to settlement by reason of the
expiration of its term or by reason of the tenant's default shall
not excuse Buyer from its obligation to complete settlement and
to pay the full Purchase Price.
(b) Seller shall also assign to Buyer at the
completion of settlement, if assignable, the existing agreements
listed on Exhibit D to be attached hereto (hereinafter
collectively called the "Existing Agreements"). Buyer
acknowledges that is has examined all copies of the Existing
Agreements now in effect and that the provisions thereof conform
to the data set forth on Exhibit "D" hereto. The termination of
any of the Existing Agreements prior to settlement by reason of
the expiration of its term or by reason of a default thereunder
shall not excuse Buyer from its obligation to complete settlement
and to pay the full Purchase Price.
(c) At settlement, Buyer shall execute and acknowledge
an agreement (the "Assumption Agreement") wherein Buyer shall
assume all of the obligations of Seller under the Existing Leases
(including, without limitation, the obligations for the return of
any security deposits and the payment of brokerage commissions)
and the Existing Agreements, and shall agree to indemnify, defend
and save Seller harmless of and from all claims, liability, costs
and expenses arising after settlement which may be asserted
against Seller or which Seller may incur or suffer, arising out
of or with respect to the Existing Leases or the Existing
Agreements, or resulting from a default or breach by Buyer under
any of it's obligations under this Agreement which survive
settlement hereunder. The Assumption Agreement shall also
provide that Buyer shall not agree to any extension or renewal of
any of the Existing Leases, but shall, instead, provide for any
extensions of existing tenancies by means of new leases which
will contain no reference to Seller.
(d) Seller agrees to use its reasonable efforts to
cause all tenants under Existing Leases that cover space in
excess of 7,500 square feet to deliver to Buyer at settlement a
written statement ("Tenant Estoppel Certificate") setting forth
that to the best of such tenant's knowledge the landlord is not
then in default under its lease, that such tenant has no claims
against landlord which would entitle it to set-off the amount of
the claim against rent due under the lease, and stating the
expiration date of the lease and the current minimum rent payable
under the lease. Buyer's obligation under this Agreement shall
not be relieved if Seller is unable to obtain any Tenant Estoppel
Certificate, after using its reasonable efforts to obtain it. If
any such tenant does have a claim which would entitle it to set-
off the amount of claim against rent due under the lease and the
amount of such claim is ascertainable, Seller shall have the
right, as its option, to give Buyer a credit against the cash
portion of the Purchase Price payable hereunder in the amount of
the claim; and in such event Buyer shall complete settlement and
take subject to such claim.
6. Apportionments.
(a) (i) Real estate taxes (on the basis of the actual
fiscal years for which such taxes are assessed), minimum water
and sewer rentals, sums paid to or paid or payable by Seller
under the Existing Agreements, prepaid fees for licenses and
permits to remain in effect for Buyer's benefit after settlement,
prepaid premiums under fire and extended coverage insurance
policies assigned to Buyer, and rentals and other sums paid to
and received by Seller under the Existing Leases shall be
apportioned at settlement pro rata between Buyer and Seller on a
per diem basis as of the date of settlement.
(ii) Any payments received by Buyer after the date
of settlement from a tenant under any of the Existing Leases on
account of rentals which are applicable to periods prior to
settlement and on account of sums which are attributable to
expenses incurred by the lessor for periods of time prior to
settlement, shall be apportioned by Buyer upon receipt and the
portion thereof attributable to periods or expenses prior to
settlement shall immediately be paid by Buyer to Seller. If, at
settlement, any tenants are in arrears in the payment of rents or
other sums, which were payable prior to settlement, all payments
by such tenants after settlement will be deemed as being
applicable, first, as against such arrearages to the extent of
one month, then as against current rental due and, finally, as
against any other such arrearages.
(iii) Any payments received by Buyer after the
date of settlement under any of the Existing Agreements on
account of payments which are applicable to periods prior to
settlement shall be apportioned by Buyer upon receipt and the
portion thereof attributable to periods prior to settlement shall
immediately by paid by Buyer to Seller.
(iv) Until such time as Seller shall have
received in full all sums which are potentially payable to it on
account of any of the Existing Leases or the Existing Agreements
as provided in subparagraphs (ii) and (iii) above, of this
subparagraph (a), Buyer shall provide to Seller after settlement
a monthly accounting of all sums received by Buyer under any of
the Existing Leases or Existing Agreements pursuant to which
Seller might be entitled to payments as provided in said
subparagraph.
(v) If, on the date of settlement, bills for
the real estate taxes imposed upon the Premises for the tax
fiscal years in which settlement occurs have been issued but
shall not have been paid at the time of settlement. If such
bills shall not have been issued on the date of settlement, the
amount of the taxes shall be reasonably ascertained based upon
the then current assessment and anticipated tax rate, and the
portions of such taxes to be borne by Buyer and Seller shall be
deposited in escrow with the Title Insurance Company, to be
disbursed by the Title Insurance Company, promptly after the real
estate tax bills have been issued, for the payment of such bills.
If the actual taxes are greater than the amounts estimated,
Seller and Buyer shall each pay to the Title Insurance Company on
demand its pro rata share of such excess.
(vi) If the Premises are not separately assessed
for real estate tax purposes as of the date of settlement, the
real estate tax assessment attributable to the Premises shall be
deemed that portion of the total assessment of the buildings on
the larger parcel with which the Premises are assessed, which
bears the same ratio to such total assessment of buildings as the
ground floor area of buildings on the Premises bears to the total
ground floor area in buildings on such larger parcel and that
portion of the assessment of the land constituting the larger
parcel with which the Premises are assessed which bears the same
ratio to such total assessment as the land area in the Premises
bears to the total land area in the larger parcel.
(vii) If the apportionment of any percentage
rents, "escalation" payments relating to operating expenses or
other payments received by Buyer after the date of settlement
from a tenant under any of the Existing Leases on account of
periods prior to settlement and on account of sums which are
attributable to expenses incurred by the lessor for periods at
time prior to settlement, cannot be precisely determined at the
time of settlement, Seller shall reasonably estimate the
apportionment of such sums, and such estimated sums shall be
apportioned at settlement pro-rata between Buyer and Seller on a
per diem basis as of the date of settlement. A Post settlement
adjustment shall be made, if necessary, between Buyer and Seller
for such apportioned items within thirty (30) days after the sums
can be precisely determined.
(viii) Notwithstanding the provisions of
this subparagraph 6(a) to the contrary, the apportionment of
"percentage rent", and the amounts due Buyer to Seller,
respectively, under each of the Existing Leases, shall be made
and paid on or before the thirtieth day following the date when
the last amount due on account of such percentage rents shall
have been paid by the tenants under their respective Existing
Leases with respect to the percentage rent lease year (as defined
in each of the Existing Leases) in which the settlement date
falls. The amount to be apportioned shall be the total of the
amounts collected by both Buyer and Seller as percentage rent for
such percentage rent lease year. Seller's portion thereof shall
be an amount which bears the same ratio to the total percentage
rent for the applicable percentage rent lease year as the number
of days up to and including the date of settlement in such
percentage rent lease year shall bear to the full number of days
in each percentage rent lease year; and Buyer shall be entitled
to the remaining portion.
(b) At settlement, Seller shall cause its agent to
deliver to Buyer, without consideration, a check in the amount of
all security deposits, and accrued interest, then held by or for
Seller under the Existing Leases. Provided however that the
obligations of Seller under this subparagraph (b) shall be
conditioned upon Buyer providing to Seller proof reasonably
satisfactory to Seller that Buyer will cause the security
deposits to be maintained after settlement in accordance with the
requirements of applicable law.
(c) Seller shall use diligent efforts to obtain
readings of the water and electric meters on the Premises to a
date no sooner than ten (10) days prior to the date of
settlement. At or prior to settlement, Seller shall pay all
charges based upon such meter readings. However, if after
diligent efforts Seller is unable to obtain readings of any
meters prior to settlement, settlement shall be completed without
such readings and upon the obtaining thereof after settlement,
Seller shall pay the charges incurred prior to settlement as
reasonably determined by Seller based upon such readings.
(d) At settlement, Buyer shall pay to Seller an equal
amount to the cost to Seller for all oil, other fuel and building
maintenance supplies, appliances and equipment left at the
Premises.
7. Transfer Taxes. The realty transfer taxes imposed
upon the Deed or upon this transaction shall be paid by Buyer.
8. Municipal Improvements Relating to the Premises.
Seller represents and warrants that there are, at
present, no outstanding unpaid assessment notices against the
Premises and that all municipal improvements for the cost for
which the Premises can be assessed which were completed between
the date of Seller's acquisition of title to the Premises and the
date hereof have been paid in full. Buyer shall pay all
assessments against the Premises or any part thereof for
improvements or other work, construction of which shall be
commenced or completed after the date hereof (including any
fines, interest or penalties thereon due to the non-payment
thereof), and shall indemnify, defend and exonerate and save
Seller harmless from any claims therefor or any liability, loss,
cost or expenses arising therefrom. Buyer shall have the same
obligations to Seller with respect to any such assessment made
after the date of settlement to the extent that the assessing
entity claims that Seller shall have personal liability therefor.
9. Municipal Notices.
Seller represents and warrants that, at present, it has
no knowledge of any outstanding written notice from any public
authority concerning the existence of any presently uncorrected
violation of any ordinance, public regulation or statute. Buyer
shall be responsible to comply with any such notices concerning
the existence of an uncorrected violation of an ordinance, public
regulation or statute issued by any public authority after the
date hereof (including any fines, interest or penalties thereon
due to non-compliance therewith), and shall indemnify, defend and
exonerate and save Seller harmless from any claims therefor or
any liability, loss, cost or expense arising therefrom, and, if
such compliance must occur prior to the date of settlement to
protect the Premises, or to prevent the imposition of any fine or
penalty, Seller may effect such compliance, and the reasonable
cost thereof shall be deemed added to the Purchase Price. Buyer
shall have the same obligations to Seller with respect to any
such assessment made after the date of settlement to the extent
that the assessing entity claims that Seller shall have personal
liability therefor.
10. Agreement Not To Be Recorded.
This Agreement shall not be filed of record by or on
behalf of Buyer in any office or place of public record and, if
Buyer shall fail to comply with the terms hereof by recording or
attempting to record the same, such act shall not operate to bind
or cloud the title to the Premises. Seller shall, nevertheless,
have the right forthwith to institute appropriate legal
proceedings to have the same removed from record. If Buyer or
any agent, broker or counsel acting for Buyer shall cause or
permit this Agreement or a copy thereof to be filed in an office
or place of public record, Seller, at its option, and in addition
to Seller's other rights and remedies, may treat such act as
default of this Agreement on the part of the Buyer. However, the
filing of this Agreement in any suit or other proceedings in
which such document is relevant or material shall be deemed to be
a violation of this Paragraph.
11. Buyer's Default.
(a) If Buyer defaults hereunder at or prior to
settlement by failing to complete settlement in accordance with
the terms of this Agreement or in any other respect, then on the
date specified for settlement (or sooner in the event of an
anticipatory breach) the Deposit, and all interest accrued
thereon, shall be paid to Seller by the Escrowee (and Buyer
hereby agrees to direct the Escrowee to make such payment) and
the Deposit, and all interest accrued thereon, shall be retained
by Seller either as liquidated damages or on account of the
Purchase Price, as Seller may elect. If Seller shall elect to
retain the Deposit, and all interest accrued thereon, as
liquidated damages, the retention of the Deposit and all interest
accrued thereon shall be Seller's only remedy in the event of
Buyer's default at or prior to settlement, and Seller in such
event hereby waives any right, unless settlement is completed, to
recover the balance of the Purchase Price. If Seller shall
retain the Deposit, and all interest accrued thereon as
liquidated damages, this Agreement shall be and become null and
void and all copies will be surrendered to Seller for
cancellation. Nothing in this Paragraph shall limit Seller's
rights against Buyer and Buyer's liability to Seller by reason of
a default by Buyer under this Agreement which survive settlement,
and of its obligations under the Assumption Agreement and its
obligation under Paragraph 21 below.
(b) The term "Permitted Event" shall mean the
occurrence of the following at the date of settlement: Buyer
shall be ready, willing and able to complete settlement in
accordance with the Agreement; Buyer, or its authorized
representative, shall have appeared at the place designated for
settlement and shall have tendered the Purchase Price; and
Seller, notwithstanding the foregoing, shall have failed to
complete settlement in accordance with the Agreement or is
otherwise in default under this Agreement. Except upon the
occurrence of the Permitted Event, Buyer agrees that Buyer shall
not (and hereby waives any right to) ever file or assert any lis
pendens against the Premise nor commence or maintain an action
against Seller for specific performance under this Agreement nor
for a declaratory judgement as to Buyer's rights under this
Agreement. Except as expressly provided above, nothing herein
shall be deemed to limit or impair any of Buyer's rights and
remedies at law, in equity or by statute.
12. Notices.
All notices given by either party to the other shall be
in writing and shall be sent by United States Postal Service
registered or certified mail, postage prepaid, return receipt
requested, addressed to the other at the following addresses:
As to Seller:
Mark Centers Limited Partnership
600 Third Avenue
Kingston, PA 18704-1679
Attn: Steven Pomerantz, Esquire
As to Buyer:
Plaza Management Group
Post Office Box 37
Newberry, SC 29108
Attn: Ronnie W. Cromer
With a copy to:
Eugene C. Grifith, Jr., Esquire
Post Office Box 37
Newberry, SC 29108
or to such other address as the respective parties may hereafter
designate by notice in writing in the specified manner above.
Any notice may be given on behalf of any party by its counsel.
Notices given in the manner aforesaid shall be deemed
sufficiently served or given for all purposes hereunder at the
time such notices, demands or requests shall be deposited in any
Post Office, or branch Post Office regularly maintained by the
United States Government.
13. Fire or Other Casualty.
(a) (i) Seller agrees to maintain in effect until the
date of settlement the fire and extended coverage insurance
policies now in effect on the Premises.
(ii) Such policies shall, to the extent permitted
by the insurers, be assigned by Seller to Buyer at settlement,
the prepaid premiums shall be apportioned between Buyer and
Seller on a per diem basis as of the date of settlement and
Buyer's portion thereof shall be deemed added to the Purchase
Price and shall be paid as provided in subparagraph 2(a) above.
(b) In the event that the Premises or the Personal
Property shall be damaged or destroyed by fire or other casualty
between the date of this Agreement and the completion of
settlement, Seller shall have the right to accelerate the date
for settlement by giving Buyer at least ten (10) days' prior
written notice of such accelerated date, the obligation of Buyer
to complete settlement hereunder shall in no way be voided or
impaired, and Buyer shall be required to accept the Premises and
the Personal Property in their then damaged condition without
abatement of the Purchase Price. In the event of any such damage
or destruction after the date of this Agreement, the proceeds of
all fire and extended coverage insurance policies attributable to
the Premises or Personal Property received by Seller prior to the
date of settlement and not used by Seller for the repair of the
Premises and the Personal Property (the Buyer hereby authorizes
Seller to use the proceeds for such purpose) shall be disbursed
to Buyer after settlement (subject to such reasonable protective
provisions as Seller shall impose) to reimburse Buyer for the
reasonable cost of repairing and restoring the Premises; and all
unpaid claims under such policies attributable to the Premises
and Personal Property shall be assigned by Seller to Buyer on the
date of settlement and there shall be no reduction in the
Purchase Price by reason of such unpaid claim.
(c) Notwithstanding any of the preceding provisions of
this Paragraph 13 to the contrary, in the event the buildings on
the Premises shall be substantially destroyed by fire or other
insured casualty prior to the date of settlement, Seller shall
have the right to terminate this Agreement by written notice to
Buyer, unless Buyer shall agree to complete settlement within
fifteen (15) days after the occurrence of such destruction. In
the event of such termination, the Deposit shall be returned by
Seller to Buyer, neither party shall have any further rights or
obligations hereunder except for any default by Buyer which may
have occurred prior thereto, and this Agreement shall be null and
void.
14. Preparation of Deed.
The Deed and Bill of Sale shall be prepared and
recorded at the expense of Buyer. At least thirty (30) days
prior to the date fixed for settlement, Buyer shall submit to
Seller the Deed, the Bill of Sale and a title report issued by
the Title Insurance Company showing the existence or non-
existence of any alleged defects in or objections to the title to
the Premises, which do not constitute encumbrances to which Buyer
is obligated to accept title to the Premises pursuant to the
provisions of Paragraph 4 above. Buyer shall be deemed to have
waived its right to object to any encumbrance existing at the
time of settlement, unless Buyer shall have given to Seller
written notice of the existence thereof of at least thirty (30)
days prior to the time fixed for settlement, or unless such
encumbrances was not a matter of record on the date occurring
thirty (30) days prior to the time fixed for settlement. Also,
Seller shall have the right, at its sole option, to defer the
date of settlement specified in Paragraph 3 above, for a period
not exceeding thirty (30) days, to give to Seller an opportunity
of removing any encumbrance.
15. Waiver of Tender of Deed and Purchase Monies.
The tender of an executed Deed by Seller and the tender
by Buyer of the portion of the Purchase Price payable at
settlement are hereby mutually waived, but nothing herein
contained shall be construed as a waiver of Seller's obligation
to deliver the Deed and/or of the concurrent obligation of Buyer
to pay the portion of the Purchase Price payable at settlement.
16. Time of the Essence.
Time, wherever specified herein for the performance by
Seller or Buyer of any of their respective obligations hereunder
is hereby made and declared to be of the essence of this
Agreement.
17. Personalty Included.
This sale includes and there shall remain upon the
Premises, at settlement, in addition to the building and other
improvements located thereon, the Personal Property listed on
Exhibit A-1 to be attached hereto. This sale does not include,
and Seller shall remove from the Premises prior to settlement,
any personal property not listed on Exhibit A-1 to be attached
hereto. Any personalty not so removed shall be considered
abandoned and title to such property shall transfer to the Buyer.
18. Assignability.
Buyer may not assign or suffer an assignment of this
Agreement and its rights hereunder, without the prior written
consent of Seller. Subject to the foregoing, this Agreement
shall extend to, and shall bind, the respective heirs, executors,
personal representatives, successors and assigns of Seller and
Buyer.
19. Buyer's Right of Entry; As Is Transfer.
(a) Buyer, and Buyer's agents and representatives,
shall have the right, from time to time, for a period of forty-
five (45) days after the date of this Agreement (the "Inspection
Period"), during usual business hours, to enter upon the Premises
for the purpose of inspection, preparation of plans, making of
test borings, taking of measurements, making of surveys, for
review of title to the Premises, and generally for the reasonable
ascertainment of the condition of the Premises; provided,
however, that Buyer shall (i) give Seller prior written notice of
the time and place of such entry and permit a representative of
Seller to accompany Buyer; (ii) restore any holes caused by such
test borings; (iii) indemnify, defend and save Seller harmless of
and from any and all liabilities which Seller may suffer by
reason of such entry prior to settlement; and (iv) not
communicate with any tenant without Seller's written consent.
Buyer shall have the right, to be exercised by written notice
received by Seller prior to the end of the Inspection Period, to
terminate this Agreement as a result of Buyer's due diligence
review or failure to secure reasonable financing for its purchase
not to exceed eighty percent of the purchase price. If Buyer so
terminates this Agreement, Escrowee shall return the Deposit to
Buyer and neither Buyer and neither party shall have any further
liability under this Agreement. Buyer's failure to timely
terminate this Agreement prior to the end of the Inspection
Period shall constitute a waiver of Buyer's termination right.
(b) Nothing contained in this Agreement shall be
deemed or construed in any way as constituting the consent or
request of Seller, express or implied by inference or otherwise,
to any party for the performance of any labor or the furnishing
of any materials to the Premises or any part thereof, nor as
giving Buyer any right, power or authority to contract for or
permit the rendering of any services or the furnishing of any
materials that would give rise to the filing of any liens against
the Premises or any part thereof. Prior to permitting any party
to enter the Premises prior to settlement for the purpose of
performing any service or supplying any materials for which such
party could claim a mechanic's lien against the Premises or any
part thereof, Buyer shall procure from such party a release of
mechanic's liens in form satisfactory to Seller.
(c) Buyer acknowledges that Buyer has investigated the
environmental condition of the Premises and that Buyer is aware
that soil and ground water under and adjoining the Premises have
been contaminated by a release of petroleum products. Buyer has
reviewed the Order entered on August 23, 1996 by the Court of
Common Pleas for the Eighth Judicial Circuit in the matter of
Mark Centers Limited Partnership v. Gate Petroleum Company.
Buyer accepts the environmental condition of the Premises in its
"as in" condition and agrees that Buyer hereby waives, releases,
remises acquits and forever discharges Seller and its partners,
and their respective directors, trustees, officers, shareholders,
employees, and agents, and their respective heirs, successors,
personal representatives and assigns, of and from any and all
suits, causes of action, legal or administrative proceedings,
claims, demands, actual damages, punitive damages, losses, costs,
liabilities, interest, attorneys' fees and expenses of whatever
kind and nature, in law or in equity, known or unknown, which
Buyer ever had, now has, hereafter can, shall or may have or
acquire or possess or arising out of or in any way connected with
directly or indirectly out of, or in any way connected with,
based upon, arising out of (i) Seller's use maintenance,
ownership and operation of the Premises prior to settlement, or
(ii) the condition, status, quality, nature, contamination or
environmental state of the Premises.
20. Condemnation.
If any part or parts of the Premises shall be taken by
exercise of the power of eminent domain after the date hereof,
this Agreement shall continue in full force and effect and there
shall be no abatement of the Purchase Price. Seller shall be
relieved, however, of its duty to convey title to the portion so
taken, but Seller shall, at settlement, assign to Buyer all
rights and claims to any awards arising therefrom as well as any
money theretofore received by Seller on account thereof, net of
any expenses to Seller, including reasonable attorney's fees of
collecting the same. With respect to any such taking after the
date hereof, Seller shall furnish Buyer with a copy of the
declaration of taking property after Seller's receipt thereof.
21. Brokers.
Buyer represents and warrants to Seller that Buyer has
dealt with no broker or other intermediary in connection with
this transaction or the Premises. In the event that any broker
or other intermediary claims to have dealt with Buyer in
connection with this transaction or the Premises, to have
introduced the Premises to Buyer for sale, or to have been the
inducing cause to the sale, Buyer shall indemnify, defend and
save Seller harmless of and from any claim for commission or
compensation by such broker or other intermediary.
22. Condition of Premises.
(a) The entire agreement between the Seller and Buyer
with respect to the Premises and the Personal Property and the
sale thereof is expressly set forth in this Agreement, and the
parties are not bound by any agreement, understandings,
provisions, conditions, representations or warranties other than
as are expressly set forth and stipulated herein. Without in any
manner limiting the generality of the foregoing, Buyer
acknowledges that it and its representatives have or will have
fully inspected the Premises, the Personal Property, and the
Existing Leases, Buyer is or will be fully familiar with the
physical and financial condition thereof, and that the Premises,
the Personal Property, and the Existing Leases will be purchased
by Buyer in an "as is" and "where is" condition as a result of
such inspection and investigations and not in reliance on any
agreement, understanding, condition, warranty or representation
made by Seller or any agent or employee of Seller (except as
expressly elsewhere provided in this Agreement) as to the
condition thereof, as to any permitted use thereof, or as to the
income or expense in connection therewith, or as to any other
matter in connection therewith; and Buyer further acknowledges
that neither Seller nor any party acting on behalf of Seller has
made or shall be deemed to have made any such agreement,
condition, representation or warranty.
(b) Buyer shall accept the Premises and the Personal
Property at the time of settlement in the same condition as the
same are of the date of this Agreement as such condition shall
have changed by reason of wear and tear, damage by fire or other
casualty and vandalism. Without limiting the generality of the
foregoing, Buyer specifically acknowledges that the fact that any
portion of the Premises or the Personal Property or any equipment
or machinery therein or any part thereof may not be in working
order of condition at settlement by reason of wear and tear or
damage by fire or other casualty or vandalism, or by reason of
its present condition, shall not relieve buyer of its obligation
to complete settlement hereunder. Not withstanding that Seller
has no obligation to make any repairs required by reason of wear
and tear, fire or other casualty, or vandalism, Seller may make
such repairs prior to settlement required to protect the Premises
and the Personal Property, and the reasonable cost thereof shall
be added to the Purchase Price and shall be payable as provided
in subparagraph 2(a) above.
(c) Seller has no obligation to deliver the Premises
in a "broom clean" condition, and Seller may leave in the
Premises at the time of settlement all items of personal property
and equipment, partitions and debris as are now presently
therein.
(d) Between the date of the execution of this
Agreement and the date of settlement, Seller shall perform all
repairs to the Premises and the Personal Property required to
maintain them in the same condition as they are as of the date
of this Agreement, as said condition shall be changed by wear and
tear, damage by fire or other casualty, or vandalism.
23. Captions or Headings.
The captions or headings of the Paragraphs of this
Agreement are for convenience only, and shall not control or
affect the meaning or construction of any of the terms or
provisions of this Agreement.
24. Changes; Survival of Settlement.
(a) No change, alteration, amendment, modification or
waiver of any of the terms or provisions hereof shall be valid,
unless the same shall be in writing and signed by the parties
hereto.
(b) Acceptance by Buyer of the executed Deed at
settlement shall constitute an acknowledgement by Buyer of full
performance by Seller of all Seller's obligations hereunder.
Such if Buyer's obligations hereunder as shall possibly imply
performance or observance after settlement shall survive
settlement, notwithstanding any presumption to the contrary;
without in any manner limiting the generality of the foregoing
provisions of this sentence, the obligations of Buyer under
Paragraphs 6,8,9 and 19 above shall survive settlement.
(c) The warranties and representations of Seller shall
not survive settlement hereunder.
25. Applicable Law.
This Agreement shall be governed and construed
according to the laws of the State of South Carolina.
26. Addendums to Agreement.
(a) Seller shall prior to its execution of this
agreement provide to the Buyer all Exhibits: A, A-1, B, C, D
which are attached hereto.
IN WITNESS WHEREOF, the parties hereto, intending
legally to be bound hereby, have executed this Agreement as of
the day and year first above written.
SELLER:
MARK CENTERS LIMITED PARTNERSHIP, a
Delaware limited partnership, by
its general partner
By: MARK CENTERS TRUST, a Maryland
Business Trust
By: /s/ David S. Zook
Name: David S. Zook
Title: Executive Vice President
BUYER:
/s/ William W. Riser, Jr.
William W. Riser, Jr.
/s/ Ronnie W. Cromer
Ronnie W. Cromer
/s/ Earl H. Bergen, Jr.
Earl H. Bergen, Jr.
/s/ William B. Rush
William B. Rush
/s/ Rodney S. Griffin
Rodney S. Griffin
EXHIBIT "A"
(Legal Description)
ALL that certain plot, piece or parcel of land, with the
buildings and improvements thereon erected, situate, lying and
being in Newberry, South Carolina, bounded and described as
follows:
Beginning at an iron pipe marker at the Northeast
intersection of Wilson Road (U.S. Highway No. 76) and Pomaria
Road (S.C. Highway No. 219) and proceeding along the eastern
right-of-way of Wilson Road in a direction of N32 -41'-27"W for a
total distance of 705.69 feet to an iron pipe marker; thence
turning and proceeding along the property of the Trustees of Net
Realty Holding Trust (Hardees Hamburgers)in a direction of
N27 -08'-41"E for a distance of 170.45 feet to an iron pipe
marker; thence turning and continuing along the property of the
Trustees of Net Realty Holding Trust in a direction of N32 -17'-
37"W for a distance of 175.01 feet to an iron pipe marker; thence
turning and proceeding along the eastern right-of-way of
Winnsboro Road (S.C. Highway No. 34) in a direction of N27 -27'-
27"E for a distance of 693.65 feet to an iron pipe marker; thence
turning and proceeding along the property of Edith Larkin
Matthews for the following courses and distances - S87 -22'-27"E
for a distance of 66.25 feet to a point, S88 25'-26" E for a
distance of 102.73 feet to a point, S89 -08'-37"E for a distance
of 50.71 feet to a point, S89 -15'-07"E for a distance of 44.87
feet to a point; thence turning and continuing along the property
of Edith Larkins Matthews the following courses and distances -
S14 -00'-57"E for a distance of 755.52 feet to a point, S10 -41'-
22"E for a distance of 817.92 feet to an iron pipe marker; thence
turning and proceeding along the northern right-of-way of Pomaria
Road the following courses and distances - N82 -45'-04"W for a
distance of 211.37 feet to a point, N86 -05'-55"W for a distance
of 54.83 feet to a point, N87 -07'-18"W for a distance of 44.77
feet to a point, S89 -39'-55"W for a distance of 112.28 feet to a
point, S86 -00'-21"W for a distance of 85.56 feet to a point;
thence turning and proceeding at the intersection of Pomaria Road
and Wilson Road in a direction of N63 -20'-33"W for a distance of
17.21 feet to an iron pipe marker; this being the point of
beginning.
EXHIBIT "B"
Permitted Title Objections
OWNERS FORM
CHICAGO TITLE INSURANCE COMPANY
SCHEDULE B
Policy Number: 41 326 106 000001
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss of damage (and the
Company will not pay costs, attorneys' fees or expenses) which
arise by reason of:
General Exceptions:
Special Exceptions: The mortgage, if any, referred to in Item 4
of Schedule A.
1. Restrictions of record in Deed Book 116 at Page 21 which is
a corrective deed recorded to correct deed recorded in Deed Book
113 at Page 121 in the Office of the Clerk of Court for Newberry
County. This policy insures, however, that the same have not
been violated and a future violation will not result in the
forfeiture or reversion of title.
2. Deed of Mutual Restrictions, Covenants, and Easements
between Newberry Associates and A.S.C. of Newberry, Inc. of
record in Miscellaneous Book 25, Page 37 in the Office of the
Clerk of Court for Newberry County. This policy insures,
however, that these restrictions have not been violated and a
future violation will not result in forfeiture or reversion of
title.
3. Easements and rights of way as shown on Plat recorded in
Plat Book AD at Page 28 in the Office of the Clerk of Court for
Newberry County.
5. Easements and rights of way as shown on Plat recorded in
Plat Book AG at page 59 on the Office of the Clerk of Court for
Newberry County.
7. Lease from A.S.C. of Newberry, Inc. to Gate Petroleum Co.
recorded in Miscellaneous Book 23 at Page 98 in the office of the
Clerk of Court for Newberry County.
8. Lease from ASC of Newberry, Inc. to National Features Ltd.
d/b/a HUB THEATRE recorded in the Office of the Clerk of Court
for Newberry County.
EXHIBIT "C"
Existing Leases
Lease dated August 18, 1970, as amended, by and between Mark
Centers Limited Partnership, as Landlord, and The Great Atlantic
& Pacific Tea Company, Inc., as Tenant.
Lease dated August 21, 1991, as amended, by and between Mark
Centers Limited Partnership, as Lessor, and Scott M. McLaughlin,
as Lessee.
Lease dated May 18, 1988, as amended, by and between Mark Centers
Limited Partnership, as Lessor, and Dwight O. Clark, as Lessee.
Lease dated December 16, 1991, as amended, by and between Mark
Centers Limited Partnership, as Lessor, and William W.&John J.
Riser, as Lessee.
Lease dated November 22, 1993, by and between Mark Centers
Limited Partnership, as Lessor, and Dolgencorp, Inc., as Lessee.
Lease dated July 7, 1994, as amended, by and between Mark Centers
Limited Partnership, as Lessor, and Midland Theatre, Inc., as
Lessee.
Lease dated September 8, 1993, by and between Mark Centers
Limited Partnership, as Lessor, and Gladys Stallworth, as Lessee.
Lease dated October 6, 1993, by and between Mark Centers Limited
Partnership, as Lessor, and Flagstar Enterprises, Inc., as
Lessee.
Lease dated September 8, 1988, as amended, by and between Mark
Centers Limited Partnership, as Lessor, and Ronnie Cromer, as
Lessee.
Lease dated April 24, 1989, by and between Mark Centers Limited
Partnership, as Lessor, and Mickey Rayhorn, as Lessee.
Lease dated August 30, 1996, by and between Mark Centers Limited
Partnership, as Lessor, and Jeanette H. Renwick, as Tenant.
Lease dated December 22, 1994, by and between Mark Centers
Limited Partnership, as Lessor, and Mi-Soon Park, as Lessee.