AGREEMENT OF PURCHASE AND SALE
RRC ACQUISITIONS, INC., a Florida corporation, hereinafter referred to as
"Purchaser," agrees to purchase, and RREEF MA-II CAMBRIDGE SQUARE, INC., a
Delaware corporation, hereinafter referred to as "Seller," agrees to sell, that
certain improved real property, hereinafter referred to as the "Property,"
legally described on Exhibit A attached hereto and made a part hereof, commonly
known as Cambridge Square Shopping Center, situated in the City of Atlanta,
DeKalb County, Georgia, consisting of an approximately 68,500 square foot
shopping center on approximately 9.46 acres of land, together with all rights,
privileges, easements and appurtenances thereto.
1. Purchase Price. The purchase price for the Property is Three Million Six
Hundred Thousand Dollars ($3,600,000.00), payable in cash or by wire transfer of
funds at Closing.
2. Deposit. Within two (2) working days after the full execution hereof,
Purchaser agrees to deposit the amount of Twenty Thousand Dollars ($20,000.00)
(the "Initial Deposit") with Slutzky, Wolfe & Bailey, 2255 Cumberland Parkway,
Building 1300, Atlanta, Georgia 30339, ("Escrow Holder") authorized agent for
Chicago Title Insurance Company ("CTIC"), as earnest money to secure Purchaser's
performance hereunder. If Purchaser notifies Seller pursuant to Paragraph 3
hereof that all matters are acceptable to it prior to the end of the Review
Period (as hereinafter defined), then within two (2) working days after the
expiration of the Review Period, Purchaser will deposit an additional Eighty
Thousand Dollars ($80,000.00) with the Escrow Holder (the "Second Deposit";
hereinafter, the Initial Deposit and the Second Deposit are collectively
referred to as the "Deposit"). If Purchaser fails to make the Initial Deposit by
the required date, this Agreement will terminate without liability on the part
of Seller or Purchaser. If Purchaser makes the Initial Deposit, but fails to
make the Second Deposit by the required date, this Agreement will terminate
without further liability on the part of Seller or Purchaser, (except for
Purchaser's obligations pursuant to Paragraph 8.17 hereof), and the Initial
Deposit will be paid to Seller as liquidated damages. If Purchaser makes both
the Initial Deposit and the Second Deposit, but the transaction fails to close
for any reason other than a default on the part of Seller or a failure of a
condition precedent to Purchaser's obligations to close, this Agreement will
terminate without liability on the part of Seller or Purchaser, (except for
Purchaser's obligations pursuant to Paragraph 8.17 hereof), and the Deposit will
be paid to Seller as liquidated damages. Escrow Holder will invest the Deposit
as the installments are received in federally insured accounts or paper as
directed by Purchaser. All interest payable with respect to the Deposit will be
added to and become a part of the Deposit and will be payable to the party
entitled to the Deposit hereunder. Prior to the expiration of the Review Period,
Escrow Holder will return the Deposit to Purchaser at its sole demand, which
demand must include a notice that Purchaser is terminating this Agreement
pursuant to the provisions of Paragraph 3 hereof. Otherwise, the Escrow Holder
will return the Deposit only upon a written joint order from Seller and
Purchaser. Escrow Holder will not be liable for any action with respect to the
Deposit taken in good faith, any such liability hereby being waived by Purchaser
and Seller. Without limiting the generality of the foregoing, Purchaser and
Seller authorize and direct Escrow Holder to accept, comply
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with, and obey any and all writs, orders, judgments or decrees entered or issued
by any court with or without jurisdiction. In the case Escrow Holder obeys or
complies with any such writ, order, judgment or decree of any court, it will not
be liable to any of the parties hereto or any other person by reason of such
compliance. In case Escrow Holder is made a party defendant to any suit or
proceedings regarding the Deposit, Purchaser and Seller, jointly and severally,
agree to pay to Escrow Holder, upon demand, all costs, attorneys' fees, and
expenses incurred with respect thereto. Seller and Purchaser hereby grant Escrow
Holder a lien on the Deposit for any and all such costs, fees and expenses. If
said costs, fees and expenses are not paid, Escrow Holder will have the right to
reimburse itself out of the Deposit. The party at fault will reimburse the other
party for all of the fees and expenses of the Escrow Holder deducted from the
Deposit upon demand of the other party.
3. Review of the Property. Within ten (10) days after full execution
hereof, Seller will:
3.1 subject to the provisions of Paragraph 8.17 hereof, provide
Purchaser and its agents or consultants with access to the Property to inspect
each and every part thereof to determine its present condition and to conduct
such physical and environmental studies (including a mechanical and roof study)
as it deems appropriate.
3.2 deliver to Purchaser, all to the extent in the possession of
Seller, a copy of any existing leases, service contracts, maintenance and all
other contracts pertaining to the operation of the Property, copies of surveys
and tax bills, and any notice of any statute or code, regulatory or insurance
violation pertaining to the Property received by Seller or its agents since
January 1, 1994 and any documents pertaining to the resolution thereof.
3.3 to the extent in Seller's possession, provide Purchaser with any
recent reports prepared by third party consultants regarding hazardous waste or
substances and the physical condition of the Property.
Purchaser will have forty-five (45) days from the date that this Agreement is
fully executed ("Review Period") to determine in its sole discretion whether all
matters relating to the Property, including, without limitation, the title
thereto, the physical condition thereof, the terms of the leases thereon and the
fiscal feasibility of the purchase thereof, are acceptable to Purchaser.
Purchaser will notify Seller prior to the expiration of the Review period
whether all matters are acceptable to it. If Purchaser notifies Seller that all
matters are not acceptable to it, this Agreement will terminate without
liability on the part of Seller or Purchaser, other than Purchaser's indemnity
contained in Paragraph 8.17 hereof, and the Deposit will be returned to
Purchaser. If Purchaser notifies Seller that all matters are acceptable to it,
Purchaser will make the Second Deposit as provided in Paragraph 2. In the event
that Purchaser does not timely so notify Seller, Purchaser will be deemed to
have concluded that the condition of the Property is not acceptable and to have
elected to terminate the transaction, in which event the Deposit will be
returned to Purchaser and this Agreement will be terminated without further
liability on the part of Seller or Purchaser, other than Purchaser's indemnity
contained in Paragraph 8.17 hereof.
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The Review Period will be extended one day for each day beyond thirty-five (35)
days after full execution hereof that Seller delays in delivering the materials
required by clauses (i), (ii) and (iii) of Paragraph 5 hereof. In the event this
Agreement is terminated or deemed terminated pursuant to the provisions of this
Paragraph, Purchaser agrees (which agreement survives termination) to deliver to
Seller a copy of any third party reports prepared at Purchaser's direction with
respect to the physical condition of the Property.
4. Tenant Estoppels. It is a condition precedent to Purchaser's objections
hereunder that Seller obtain fully executed Tenant Estoppel Certificates in the
form of Exhibit B attached hereto and made a part hereof from (i) Winn-Dixie,
Inc., Big "B" Drug Stores, Los Bravos Mexican Restaurant, McDonalds Corporation,
SOM Video Wonderland and Cambridge Cleaners and (ii) 80% of all remaining
tenants of the Property (computed on the basis of net rentable square feet)
("Other Tenants") and (iii) Tenant Estoppel Certificates executed by Seller on
behalf of all Other Tenants who do not furnish Tenant Estoppel Certificates
within ten (10) days prior to the Closing hereunder. In the event that (a)
Seller does not deliver to Purchaser fully executed Tenant Estoppel Certificates
as aforesaid within the time period set forth herein, (b) any Tenant Estoppel
Certificate delivered to Purchaser indicates a default by the Landlord under the
Lease, which default is not cured by Seller on or prior to Closing or (c) any
information contained on any Tenant Estoppel Certificate delivered to Purchaser
materially differs from the information set forth in the leases of the Property
previously delivered to Purchaser pursuant to the terms of Paragraph 3.2 hereof,
(A) Purchaser will have the right to terminate this Agreement upon notice to
Seller given at any time on or prior to Closing and, in such event, the Deposit
will be returned to Purchaser and this Agreement will terminate without further
liability on the part of Seller or Purchaser, other than Purchaser's indemnity
contained in Paragraph 8.17 hereof, or (B) if Purchaser has not terminated this
Agreement as aforesaid, the purchase and sale will close without regard to the
provisions of this Paragraph 4.
5. Title and Survey. Upon its execution of this Agreement, Seller will
order and promptly upon receipt thereof deliver to Purchaser, (i) a title
commitment on the Property issued by the Escrow Holder as agent for CTIC, (ii)
copies of all documents relating to title exceptions referred to therein, and
(iii) a current survey meeting the minimum 1992 standard detail requirements for
an Urban ALTA/ASCM Land Title Survey, including Items 1-11 of Table A thereof,
except Item 5 and Item 6 (except to the extent such matters are customarily
shown in surveys in the Atlanta, Georgia metropolitan area). After receiving
said preliminary title report, documents, and survey, Purchaser will have
fifteen (15) working days in which to notify Seller in writing of any objection
Purchaser may have to any exceptions reported in the title report or matter
shown on the survey. Seller will use reasonable efforts to cure any reasonable
title or survey objections either by removing same or by insurance over such
objected-to exception or survey matter, subject to the provisions set forth
below. The commitment will be for an ALTA standard form 1992 owners title
insurance policy, subject to the standard and general ALTA exceptions and
exclusions, in an amount equal to the purchase price. If, prior to Closing,
Seller is unable to remove or provide insurance over any exceptions to title or
survey matters objected to, and Purchaser is unwilling to take title subject
thereto, Purchaser may terminate this
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Agreement. However, if such objected-to exceptions to title or survey matters
are not removed or insured over by the date of Closing, Purchaser may elect to
discharge any tax, mortgage, financing or mechanic's lien of any amount or any
other unpermitted liens, encumbrances, or restrictions which can be discharged
by the payment of $10,000 in the aggregate or less and to deduct from the
purchase price the amount necessary to do so. Seller agrees to furnish the
Escrow Holder with customary affidavits at Closing, enabling the Escrow Holder
to waive the general exceptions. If the Closing is not consummated for any
reason other than Seller's default, Purchaser will be responsible for any title
insurer cancellation charges.
6. Representations and Warranties.
6.1 Representations and Warranties of Seller. As used in this
Paragraph 6.1, the phrase "to the best knowledge of Seller" means, and is
limited to, the actual knowledge of John Turney and Faye Phillips, Seller's
executive and management personnel having ongoing management responsibility with
respect to the Property. Seller hereby warrants and represents to Purchaser that
John Turney and Faye Phillips are the individuals currently working on behalf of
Seller who are most likely to have the information requested by Purchaser and:
6.1.1 Status of Seller and Closing Documents. Subject to
Paragraph 8.15, that this Agreement has been, and all the documents to be
delivered by Seller to Purchaser at Closing will be, duly authorized, executed,
and delivered by Seller, will be sufficient to convey title, and this Agreement
does not, and will not at Closing, violate any provisions of any agreement to
which Seller or the Property is subject. Seller will pay, or credit Purchaser at
Closing in an amount equal to, all broker's commissions and tenant improvement
costs required to be paid by landlord upon renewal of the following leases if
notice of renewal is received by Seller prior to Closing from Big "B" Drug
Stores. In addition, if not sooner paid by Landlord to Winn-Dixie, Inc., Seller
will credit Purchaser at Closing the amount of approximately $80,000,
representing reimbursement due Winn-Dixie, Inc. for store and storefront
renovations. Without limiting the generality of anything contained in this
Agreement, Purchaser agrees to pay all amounts due on account of the credits
given by Seller and to defend, indemnify and hold Seller harmless from its
failure to do so as and when required by the terms of the Leases with respect to
which the credits are given.
6.1.2 Non-Foreign Status. Seller is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
as amended, and that Seller will furnish to Purchaser, prior to Closing, an
affidavit in form satisfactory to Purchaser confirming the same.
6.1.3 No Default. The execution and delivery of this
Agreement, and consummation of the transaction described in this Agreement, will
not constitute a default under any contract, lease, or agreement to which Seller
is a party.
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6.1.4 No Suits. To the best knowledge of Seller, there is no
action, suit or proceeding pending against or materially adversely affecting the
Property or any portion thereof, or relating to or arising out of the ownership,
management or operation of the Property, in any court or before or by and
federal, state, or municipal department, commission, board, bureau or agency or
other governmental instrumentality.
6.1.5 Environmental Condition. Each of the following
representations is wholly qualified by (a) any matters disclosed in any
materials delivered to Purchaser by Seller pursuant to Paragraph 3.3 above or
otherwise, (b) any matters disclosed in any environmental reports or studies
obtained by Purchaser, and (c) any other matters known to Purchaser. Subject to
the foregoing, Seller represents (but does not warrant), to the best knowledge
of Seller:
(i) Seller has not released, generated or handled
hazardous materials during Seller's ownership of the Property in violation
of any applicable laws, nor has Seller knowingly permitted the release,
generation or handling of hazardous materials on the Property or the
incorporation thereof in any buildings or improvements thereon in
violation of any applicable laws; and
(ii) Seller has not received any summons, citation,
directive, letter or other communication, written or oral, from the United
States or Georgia Environmental Protection Agency with respect to the
Property.
6.1.6 Georgia Income TaxSeller is exempt from payment of
Georgia income taxes under Georgia Code Section 48-7-25.
6.2 Representations and Warranties of Purchaser. Purchaser hereby
warrants and represents to Seller that this Agreement has been, and all the
documents to be delivered by Purchaser to Seller will be, duly authorized,
executed, and are or will be legal, valid, and binding obligations of Purchaser,
are or will be enforceable in accordance with their respective terms, and do
not, and will not at Closing, violate any provisions of any agreement to which
Purchaser is subject and that Solomon Brothers, Prudential Securities and
Robinson Humphry are Purchaser's (or its parent corporation's) sole investment
advisors with respect to Purchaser's decision to purchase the Property.
6.3 Continuation. The continued accuracy in all respects of the
aforesaid representations and warranties will be a condition precedent to the
parties' obligation to close. If any of said representations and warranties are
not correct at the time the same is made or as of the Closing, Seller or
Purchaser, as its sole remedy, may elect in its discretion to terminate this
Agreement and there will be no further liability on the part of either party to
the other, except for the obligations of Purchaser pursuant to Paragraph 8.17
hereof.
6.4 Condition of Property. Except as expressly set forth in this Agreement,
Seller has not made and does not hereby make any representations, warranties or
other statements as to
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the condition of the Property and Purchaser acknowledges that at Closing it is
purchasing the Property on an "as is" basis and without relying on any
representations and warranties of any kind whatsoever, express or implied, from
Seller, its agents or brokers as to any matters concerning the Property.
7. Closing.
7.1 Closing of Sale. The purchase and sale contemplated herein will
close (herein referred to as the "Closing") at the office of the Escrow Holder,
or as otherwise mutually agreed, not later than thirty (30) days after the
expiration of the Review Period provided for in Paragraph 3, or at such other
time agreed to by Purchaser and Seller. At Closing, Seller will deliver to
Purchaser a statutory special warranty deed ("Deed") and the other closing
documents required hereunder and a policy of title insurance or later dated
marked up commitment for title insurance with only such exceptions as are
permitted pursuant to the provisions of Paragraph 5 hereof and Purchaser will
cause payment of the purchase price to be made to Seller by wire transfer. The
sale (payment of purchase price and delivery of deed) will be closed through
escrow with the Escrow Holder in accordance with the general provisions of the
usual form of escrow agreement used in similar transactions by the Escrow Holder
with special provisions inserted as may be required to conform with this
Agreement.
7.2 Proration, Adjustments. Taxes, rental, and other income, and
operating or other expenses of the Property, will be prorated as of 12:00
Midnight prior to the date of Closing. Any taxes or other expenses of the
Property for the period prior to Closing which are payable by tenants of the
Property, but are not collected or delinquent as of the Closing, will reduce the
credit to Purchaser for such items. Seller will also give Purchaser a credit
against the purchase price for all security deposits held pursuant to the leases
and all interest due thereon and will assign to Purchaser any other deposits
held from tenants. Seller will be entitled to a credit for uncollected, but
non-delinquent base rent, capital reimbursements or other income due from
tenants, but will not be entitled to credit for delinquent sums at the Closing.
Delinquent sums will be considered any sums overdue more than thirty (30) days.
Delinquent amounts subsequently paid to Purchaser will be paid by Purchaser to
Seller promptly upon receipt; provided that amounts received from tenants by
Purchaser will be first applied to current charges, and the balance will be
applied to make up delinquencies on a "last-in, first out" basis (i.e., most
recent delinquencies relative to receipt of payment are paid first). In the
event Seller receives payment of rent and other tenant reimbursements
post-Closing for periods post-Closing, Seller will promptly remit such rent and
other tenant reimbursement to Purchaser. Upon reconciliation in 1997 of 1996
expenses payable by tenants (whether or not against estimates paid by such
tenants during 1996), Purchaser agrees to remit to Seller Seller's share of any
amounts thereof collected by Purchaser from tenants who were tenants both before
and after the date of Closing, prorated as of 12:00 Midnight prior to the date
of Closing. After the Closing, Seller will have no further obligations with
respect to any leases or other agreements affecting the Property, including,
without limitation, tenant improvement work, leasing commissions and free rent.
Purchaser will deliver the purchase price to Seller in good funds by 11:00 a.m.
local time on the
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day of Closing. If Seller does not receive the funds by such time, prorations
will be made as of Midnight on the day Seller does receive the funds. At
Closing, Seller and Purchaser will exchange mutual indemnities in form and
substance satisfactory to each in their reasonable discretion, whereby Seller
agrees to defend, indemnify and hold Purchaser harmless from all defaults of
Seller under the leases of the Property first accruing pre-Closing and Purchaser
agrees to defend, indemnify and hold Seller harmless from all defaults of
Purchaser under the leases of the Property first accruing at or post-Closing.
7.3 Proration of Utility Charges. To the extent Seller, as opposed
to tenants, is responsible for payment of utility charges, Seller will attempt
to have utility meters read as of the Closing Date. To the extent that this is
not possible and to the extent that any other obligation for continuing services
is incurred, and statements are rendered for such services covering periods both
before and after the Closing Date, the amount will be adjusted between the
parties as of the Closing Date on a time-elapsed basis. Seller will forward any
such statements which it receives to Purchaser and Purchaser will pay the same.
Seller will remit to Purchaser its proportionate share immediately upon demand.
7.4 Closing Costs. Seller will pay (i) one-half of all escrow and/or
closing fees of Escrow Holder, (ii) all recordation or transfer taxes, (iii) the
cost of the title commitment and policy, (iv) all recording fees to clear
Seller's title and, (v) the cost of the survey. Purchaser will pay (i) one-half
of all escrow and/or closing fees of Escrow Holder, (ii) the cost of any
endorsements to the title policy required by Purchaser, (iii) all deed recording
fees, and (iv) all costs of Purchaser's physical inspections of the Property
(environmental, engineering and other) and other due diligence activities.
Except as otherwise provided in Paragraph 8.9, each party will be responsible
for its own attorneys' and other professional fees. Any other closing costs will
be apportioned according to local custom.
7.5 Possession. Possession of the Property will be delivered to the
Purchaser on the date of Closing and Seller will thereupon deliver to Purchaser
the originals of all leases for tenants of the Property, all correspondence with
tenants and any tenant ledger cards, supplies and advertising materials,
booklets, keys, or other items used in connection with operation of the
Property.
7.6 Closing Documents. As part of the Closing, Seller will deliver
to Purchaser: (a) the Deed; (b) an affidavit in customary form that Seller is
not a "foreign person" within the meaning of Section 1445(e) of the Internal
Revenue Code of 1986; (c) such affidavits as are customarily required by Escrow
Holder in connection with issuance of the owner's title insurance policy; (d)
assignment of leases; (e) an assignment of contracts; (f) an assignment of
warranties; (g) the mutual indemnities described in Paragraph 7.2 hereof; and
(h) a bill of sale conveying all personal property of Seller, if any, located at
the Property and used in connection with the maintenance or operation thereof;
(i) an Audit Representation Letter in the form of Exhibit C attached hereto and
made a part hereof; (j) a Broker Lien Waiver as required by Georgia law; and
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(k) whatever documentation is necessary to establish that Seller is exempt from
Georgia income tax withholding.
8. Miscellaneous.
8.1 Modifications. This Agreement may be amended only in writing and
supersedes any and all agreements between the parties hereto regarding the
Property which are prior in time to this Agreement.
8.2 Casualty and Condemnation. If the improvements on the Property
are destroyed or damaged to the extent that repairs cost in excess of $100,000
or in the event such destruction or damage is of such a degree as to permit any
tenant of the Property to terminate its lease, or if condemnation proceedings
are commenced against the Property between the date hereof and the Closing,
Purchaser may terminate this Agreement. If Purchaser elects to accept the
Property in its then condition, all proceeds of insurance (plus the applicable
deductible) or condemnation awards payable to Seller by reason of such damage or
condemnation will be paid or assigned to Purchaser. In the event of any other
damage to the Property, which damage Seller is unwilling to repair prior to
Closing, Purchaser will accept the Property in its then condition, in which case
Purchaser will be entitled to a reduction in the purchase price to the extent of
the cost of repairing such damage, as certified by an independent contractor
selected by the parties. In the event of any damage where Purchaser does not
have the right to terminate or elects not to terminate and Seller elects to
repair such damage, the date of Closing will be delayed for the number of days
required to repair the damage.
8.3 Time of Essence. Time is of the essence of this Agreement.
8.4 Notices. All tenders and any notice required or permitted to be
given under this Agreement must be in writing and will be deemed to have been
given as of: (a) the date of personal delivery; (b) two days after deposit in
the United States mail, registered or certified mail, postage prepaid, return
receipt requested, if a response is required to such tender or notice;
otherwise, upon deposit; (iii) the date of receipt if successfully sent by
facsimile transmission during business days between 8:00 a.m. and 6:00 p.m. in
the time zone of the recipient; or, (iv) when delivered by a private contract
carrier, as the case may be and addressed as follows:
If to Purchaser: RRC Acquisitions, Inc.
121 West Forsythe Street, Suite 200
Jacksonville, Florida 32202
Facsimile Number: (904) 634-3428
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with a copy to: Ulmer, Murchison, Ashby & Taylor
200 West Forsythe Street, Suite 1600
P.O. Box 479
Jacksonville, Florida 32201
Attn: William E. Scheu
Facsimile Number: (904) 354-9100
If to Seller: The RREEF Funds
------------
875 North Michigan Avenue
Suite 4114
Chicago, Illinois 60610
Attn: John Turney
Facsimile Number: (312) 266-9346
with a copy to: D'Ancona & Pflaum
30 North LaSalle Street
Suite 2900
Chicago, Illinois 60602
Attn: Michael D. Miselman
Facsimile Number: (312) 580-0923
If to Escrow Holder: Slutzky, Wolfe & Bailey
2255 Cumberland Parkway
Building 1300
Atlanta, Georgia 30339
Attn: Bernard L. Wolfe, Esq.
Facsimile Number: (770) 438-9657
Either party may by notice to the other designate a different address. Any
notice sent by registered or certified mail will be deemed effective two days
after deposit thereof, as aforesaid.
8.5 Successors and Assigns. This Agreement is be binding upon and
inures to the benefit of the heirs, successors, and assigns of the parties
hereto, provided Purchaser may not assign its rights or obligations hereunder
without the prior written consent of Seller. Notwithstanding the foregoing, but
provided the sale to an assignee hereinafter referred to does not cause this
transaction to be a prohibited transaction as described in paragraph 8.16,
Purchaser has the right to assign this Agreement and Purchaser's rights and
obligations hereunder to any entity owned or controlled by or under common
control with Purchaser or any principal of Purchaser.
8.6 Governing Law. The performance and interpretation of this
Agreement will be controlled by the law of the State in which the Property is
located.
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8.7 Continuation Until Closing. Between the date of execution of
this Agreement and the Closing, Seller will keep and perform all of the
obligations to be performed by landlord under any leases or applicable laws.
Seller will not permit or consent to any new leases, amendments, or subleases
without first submitting them to Purchaser for Purchaser's approval, which
approval will not be unreasonably withheld. Purchaser will have five (5) working
days to notify Seller of its approval of such leases, amendments, or subleases,
and in the event that Purchaser does not so notify Seller, the leases,
amendments or subleases, as the case may be, will be deemed approved. Seller
will maintain or cause the tenants to maintain the Property and personal
property in condition at least as good as at the time of this Agreement and will
otherwise operate the Property in the same manner as before the making of this
Agreement, the same as though Seller were retaining the Property.
8.8 Brokers. Seller and Purchaser each (a) represents and warrants
to the other that it has not dealt with any broker or finder in connection with
the transaction contemplated by this Agreement other than the parties, if any,
to be paid a commission as specified in Paragraph 8.11, and (b) agrees to
defend, indemnify and hold the other harmless from and against any losses,
damages, costs, or expenses (including attorneys' fees) incurred by such other
party due to a breach of the foregoing warranty by the indemnifying party.
8.9 Attorneys' Fees. If any action is brought by either party
against the other party, the party in whose favor final judgment is entered will
be entitled to recover court costs incurred and reasonable attorneys' fees, at
trial, upon appeal and on any petition for review.
8.10 Remedies for Non-Performance. If Seller defaults hereunder,
Purchaser may terminate this Agreement or enforce specific performance of this
Agreement. If said sale is not consummated because of a default under this
Agreement solely on the part of Purchaser, the Deposit will be paid to and
retained by Seller as liquidated damages. The parties have agreed that, in the
event of such a default by Purchaser, Seller's damages would be extremely
difficult or impracticable to determine. Therefore, by placing their initials
below, the parties acknowledge that the Deposit has been agreed upon, after
negotiation, as the parties' reasonable estimation of Seller's damages, Seller's
exclusive remedy against Purchaser, at law or in equity in the event of such a
default under this Agreement solely on the part of Purchaser and as full
liquidated damages pursuant to Official Code of Georgia Annotated ss. 13-6-7.
Purchaser covenants not to bring any action or suit challenging the amount of
liquidated damages provided hereunder in the event of such default. This
provision expressly survives termination of this Agreement.
INITIALS: SELLER _________ PURCHASER ________
8.11 Broker's Commission. Seller will be responsible for brokerage
commissions payable to Ben Carter Properties, the listing broker. Regency Realty
Group, Inc., the cooperating broker, will be paid whatever commission is due it
from the commission Seller pays to the listing broker.
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8.12 Continuation and Survival of Covenants. All representations and
warranties by the respective parties contained in this Agreement or made in
writing pursuant to this Agreement are intended to and will be true and correct
as of the Closing. None of Seller's representations and warranties contained
herein, nor any claims, damages or injury for the breach thereof, will survive
the date of Closing.
8.13 Merger of Prior Agreements. This Agreement constitutes the
entire agreement between the parties with respect to the purchase and sale of
the Property and supersedes all prior agreements and understandings between the
parties hereto relating to the subject matter of this Agreement.
8.14 Invalidity of Provisions. In the event any provisions of this
Agreement are declared invalid or are unenforceable for any reason, such
provisions will be deleted from such document and will not invalidate any other
provision.
8.15 Seller's Investment Approval. INTENTIONALLY DELETED.
8.16 ERISA. Within ten (10) days after full execution of this
Agreement, Purchaser will furnish to Seller all information regarding Purchaser,
its affiliates and the shareholders or partners of each of them (collectively,
the "Purchaser Related Parties") as Seller requests in order to enable Seller to
determine to Seller's sole satisfaction that the transaction contemplated hereby
will not constitute a sale to a "party-in-interest" within the meaning of
Section 3(14) of the Employee Retirement Security Act of 1974, as amended
("ERISA"), with respect to any investor in Seller. Purchaser agrees not to
assign this Agreement to any person on entity Seller believes in good faith to
be a "party-in-interest". Any such attempted assignment will be null and void.
8.17 Entry and Indemnity. In connection with any entry by Purchaser,
or its agents, employees or contractors onto the Property, Purchaser agrees to
give Seller reasonable advance notice of such entry and agrees to conduct such
entry and any inspections in connection therewith so as to minimize, to the
greatest extent possible, interference with Seller's business and the business
of Seller's tenants and otherwise in a manner reasonably acceptable to Seller.
Without limiting the foregoing, prior to any entry to perform any on-site
testing, Purchaser agrees to give Seller written notice thereof, including the
identity of the company or persons who will perform such testing and the
proposed scope of the testing. Seller will approve or disapprove the proposed
testing within three (3) business days after receipt of such notice. If
Purchaser or its agents, employees or contractors take any sample from the
Property in connection with any such approved testing, Purchaser will provide to
Seller a portion of such sample being tested to allow Seller, if it so chooses,
to perform its own testing. Purchaser will offer the opportunity for Seller or
its representative to be present to observe any testing or other inspection
performed on the Property. Purchaser will promptly deliver to Seller copies of
any reports relating to any testing or other inspection of the Property
performed by Purchaser or its agents, employees or contractors. Purchaser will
maintain, and agrees to assure that its
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11
contractors maintain, public liability and property damage insurance in amounts
and in form and substance adequate to insure against all liability of Purchaser,
its agents, employees or contractors, arising out of any entry or inspections of
the Property pursuant to the provisions hereof, and Purchaser will provide
Seller with evidence of such insurance coverage upon request by Seller.
Purchaser agrees to indemnify, defend and hold Seller harmless from and against
any costs, damages, liabilities, losses, expenses, liens or claims (including,
without limitation, reasonable attorneys' fees) arising out of or relating to
any entry on the Property by Purchaser, its agents, employees or contractors in
the course of performing the inspections, testings or inquiries provided for in
this Agreement, including without limitation damage to the Property or release
of hazardous substances or materials onto the Property. The foregoing indemnity
will survive beyond the Closing, or if the sale is not consummated, beyond the
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates set forth below.
SELLER:
RREEF MA-II Cambridge Square, Inc., a
Delaware corporation
By: ________________________
John Turney, an authorized
representative
Dated:__________________________
PURCHASER:
RRC Acquisition, Inc., a Florida
corporation
By:_____________________________
Name: _______________________
Its:___________________________
Dated:__________________________
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12
EXHIBIT A
TRACT I
All that tract or parcel of property lying and being in Land Lots 301, 302, 305
and 306 of the 18th District of DeKalb County, Georgia, and being more
particularly described as follows:
TO FIND THE POINT OF BEGINNING commence at a point at the intersection of the
northeastern side of Johnson Ferry Road (Johnson Ferry Road having a 100 foot
right-of-way) with the southwestern side of Ashford-Dunwoody Road
(Ashford-Dunwoody Road having an 80 foot right-of-way); thence in a
northwesterly direction along the northern right-of-way line of Johnson Ferry
Road and following the curvature thereof a distance of 271.7 feet to an iron pin
and the POINT OF BEGINNING; thence in a westerly direction along the northern
right-of-way line of Johnson Ferry Road and following the curvature thereof a
distance of 328.0 feet to a point; continuing thence along said right-of-way
south 84 degrees 48 minutes 40 seconds west a distance of 480.00 feet to a
point; thence leaving said right-of-way north 04 degrees 14 minutes 0 seconds
east 486.26 feet to a marker; thence north 84 degrees 53 minutes 0 seconds east
a distance of 533.0 feet to a point; thence north 67 degrees 0 minutes 0 seconds
east a distance of 215.0 feet to an iron pin on the southwestern side of
Ashford-Dunwoody Road; thence in a southeasterly direction along the southwest
side of Ashford-Dunwoody Road south 22 degrees 45 minutes 0 seconds east a
distance of 459.9 feet to an iron pin; thence leaving said right-of-way south 84
degrees 53 minutes west a distance of 150.0 feet to a point; thence south 05
degrees 07 minutes east a distance of 138.7 feet to the POINT OF BEGINNING.
TRACT II
All that tract or parcel of property lying and being in Land Lots 301 and 306 of
the 18th District of DeKalb County, Georgia, and being more particularly
described as follows:
BEGINNING at a point in the northeasterly line of the Johnson Ferry Road (100
foot right-of-way) said point being distant 50.68 feet, northwesterly, from its
intersection with the southwesterly line of Ashford-Dunwoody Road (80 foot
right-of-way) if said right-of-way lines were projected to an intersection;
thence, Northwesterly, along the northeasterly line of Johnson Ferry Road on a
curve to the left, having a radius of 1050.00 feet an arc distance of 221.02
feet, to a point; thence north 05 degrees 07 minutes west a distance of 138.70
feet to a point; thence north 84 degrees 53 minutes east a distance of 150.00
feet to a point in the southwesterly right-of-way line of Ashford-Dunwoody Road;
thence, south 22 degrees 56 minutes east a distance of 30.65 feet to a point of
curvature; thence still along the southwesterly line of Ashford-Dunwoody Road,
on a curve to the left, having a radius of 1530.3 feet, an arc distance of
176.10 feet to a point; thence, southwesterly on a curve to the right, having a
radius of 50.00 feet an arc distance of 22.08 feet to the POINT OF BEGINNING.
Excepting therefrom that part thereof described as follows:
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All that tract or parcel of land lying and being in Land Lot 301 of the 18th
District of DeKalb County, Georgia, and more particularly described as follows:
BEGINNING at an iron pin placed at the northerly right of way of Johnson Ferry
Road, a 100- foot right of way, in a location such that said iron pin is 59.51
feet perpendicular from the centerline of Ashford-Dunwoody Road, run thence
along a curve on said right of way of Johnson Ferry Road an arc distance of
220.83 feet, said curve having a chord bearing of north 77 degrees 53 minutes 00
seconds west for 220.62 feet and a radius of 1450.00 feet, to an iron pin found;
thence north 6 degrees 47 minutes 00 seconds west a distance of 138.70 feet to
an iron pin placed; thence north 83 degrees 13 minutes 00 seconds east a
distance of 150.00 feet to an iron pin placed on the southwesterly right of way
of Ashford-Dunwoody Road, an 80-foot right of way; thence along said right of
way south 24 degrees 36 minutes 00 seconds east a distance of 30.65 feet to a
nail placed in asphalt; thence along said right of way along a curve an arc
distance of 176.03 feet, said curve having a chord bearing of south 27 degrees
53 minutes 48 seconds east for 176.00 feet and a radius of 2741.40 feet to an
iron pin placed; thence along a curve an arc distance of 22.08 feet, said curve
having a chord bearing south 33 degrees 07 minutes 30 seconds west for 21.90
feet and a radius of 50.00 feet, to the POINT OF BEGINNING.
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EXHIBIT B
ESTOPPEL LETTER
RRC Acquisitions, Inc.
c/o The RREEF Funds
875 N. Michigan Avenue
Suite 4114
Chicago, IL 60611
Re: Cambridge Shopping Center Store:
Atlanta, Georgia Tenant:
Ladies and Gentlemen:
The undersigned (Tenant) has been advised you may purchase the above
Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of ___________________, Landlord, in the above
Shopping Center, and is currently in possession and paying rent on the premises
known as Store No. ______ [or Address: ______________________________], and
containing approximately ___________ square feet, under the terms of the lease
dated _________________________, which has (not) been amended by amendment dated
___________________ (the "Lease"). There are no other written or oral agreements
between Tenant and Landlord. Tenant neither expects nor has been promised any
inducement, concession or consideration for entering into the Lease, except as
stated therein, and there are no side agreements or understandings between
Landlord and Tenant.
2. The term of the Lease commenced on ____________, expiring on
___________, with options to extend of ______________ (____) years
each.
3. As of _______________, monthly minimum rental is $_______________ a
month.
4. Tenant is required to pay its pro rata share of Common Expenses and
its pro rata share of the Center's real property taxes and insurance
cost. Current additional monthly payments for expense reimbursement
total $_________ per month for common area maintenance, property
insurance and real estate taxes.
5. Tenant has given [no security deposit] [a security deposit of
$__________].
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6. No payments by Tenant under the Lease have been made for more than
one (1) month in advance, and minimum rents and other charges under
the Lease are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the Tenant's
premises and development of the Shopping Center, including without
limitation, parking requirements, have been performed by Landlord.
8. Tenant knows of no default by either Landlord or Tenant under the
Lease, and knows of no situations which, with notice or the passage
of time, or both, would constitute a default. Tenant has no rights
to off-set or defense against Landlord as of the date hereof.
9. The undersigned has not entered into any sublease, assignment or any
other agreement transferring any of its interest in the Lease or the
Premises except as follows:__________________________________.
10. Tenant has not generated, used, stored, spilled, disposed of, or
released any hazardous substances at, on or in the Premises. "Hazardous
Substances" means any flammable, explosive, toxic, carcinogenic, mutagenic, or
corrosive substance or waste, including dry cleaning solvents and volatile
petroleum products and derivatives. To the best of Tenant's knowledge, no
asbestos or polychlorinated biphenyl ("PCB") is located at, on or in the
Premises. The term "Hazardous Substances" does not include those materials which
are technically within the definition set forth above but which are contained in
pre-packaged office supplies, cleaning materials or personal grooming items or
other items which are sold for consumer or commercial use and typically used in
other similar buildings or space.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above
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described Premises from Landlord. The undersigned agrees that it will, upon
receipt of written notice from Landlord, commence to pay all rents to you or to
any Agent acting on your behalf.
Very truly yours,
----------------------------------------
________________________________(Tenant)
Mailing Address:
_____________________________ By:____________________________________
Its:______________________________
- -----------------------------
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EXHIBIT C
AUDIT REPRESENTATION LETTER
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