AGREEMENT OF PURCHASE AND SALE
BETWEEN
R.B.R.&S.T. LIMITED PARTNERSHIP,
a North Carolina limited partnership
as Seller
AND
DEVELOPMENT OPTIONS, INC., a Wyoming corporation
as Purchaser
dated November 12, 1997
List of Exhibits
Exhibit A: Description of Land
Exhibit B: Deposit Provisions
Exhibit C-1: Form of Tenant Estoppel
Exhibit C-2: Second Form of Tenant Estoppel
Exhibit D: The Rent Roll
Exhibit E: List of Pending Litigation
Exhibit T-1: Permitted Exceptions
Exhibit T-2: Mechanic's Liens and Other Title Matters
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
entered into by and between R.B.R.&S.T. LIMITED PARTNERSHIP, a North
Carolina limited partnership, ("Seller"), and DEVELOPMENT OPTIONS, INC., a
Wyoming Corporation ("Purchaser"), as of the "Effective Date" (as
hereinafter defined).
W I T N E S S E T H:
For and in consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
Article 1.
Property
Seller hereby agrees to sell, and Purchaser hereby agrees to purchase,
all of the following property: (a) an approximately 26.18 acre parcel or
tract of real property (the "Main Parcel") together with all and singular
easements, covenants, agreements, rights, privileges, tenements,
hereditaments and appurtenances thereunto now or hereafter belonging or
appertaining, together with an approximately 14 acre adjacent parcel or
tract of real property (collectively with the Main Parcel, the "Land")
subject to a ground lease in favor of Belk of Asheville Mall, Inc., all
located in the City of Asheville, Buncombe County, North Carolina, more
particularly described on Exhibit "A" attached to this Agreement; (b) the
enclosed regional shopping mall (the "Building") located on the Main Parcel,
and all other improvements of every kind located in, upon or over the Main
Parcel, generally known as "Asheville Mall" (collectively, the
"Improvements"); (c) all of Seller's right, title and interest in and to the
tenant leases relating to the Improvements, the ground leases pertaining to
the Land, all occupancy agreements, reciprocal easement agreements,
operating agreements, licenses or other agreements (collectively, the
"Leases") conveying or permitting occupancy or possession of any part of the
"Property", as hereafter defined, including without limitation, the tenant
leases referred to on the "Rent Roll" (as hereinafter defined) (the Land,
the Improvements, and the Leases are referred to herein collectively as the
"Real Property"); and (d) all of Seller's right, title and interest in all
fixtures, equipment, and other personal property of Seller which may be
located upon the Land and Improvements and which is used exclusively in the
operation of the business conducted thereon (both tangible and intangible,
including, without limitation, all rents, issues and profits of the
Property, all licenses, permits, parking rights, trade names (including the
right to use the name "Asheville Mall"), any service and maintenance
agreements applicable thereto owned by Seller and contained in or related
to the Improvements (collectively the "Personal Property") (the Real
Property and the Personal Property are sometimes referred to herein
collectively as the "Property").
Article 2.
Earnest Money Deposit and Purchase Price
2.1 Earnest Money Deposit. Purchaser shall deliver to Nelson
Mullins Riley & Scarborough, L.L.P. ("Escrow Agent") the sum of THREE
HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) simultaneously with
Purchaser's execution and delivery of this Agreement to Seller and Seller's
acceptance of such offer by execution hereof, which sum shall be held by
Escrow Agent (in a separate, interest bearing account) as earnest money and
shall be hereinafter referred to as the "Deposit". The Deposit shall be
non-refundable except as set forth on Exhibit "B", attached hereto but shall
be applicable to the Purchase Price, as hereinafter defined. Escrow Agent
shall hold, invest, and disburse the Deposit in accordance with Exhibit "B".
2.2 Purchase Price. The purchase price for the Property to be paid
by Purchaser to Seller at the closing and consummation of the purchase and
sale of the Property (the "Closing") as contemplated herein shall be SIXTY
FIVE MILLION DOLLARS ($65,000,000.00), and shall be hereinafter referred to
as the "Purchase Price." The Purchase Price, as adjusted to reflect a
credit in the amount of the Deposit paid hereunder and as further adjusted
to reflect the prorations between Purchaser and Seller described in Section
5 hereof, shall be paid by Purchaser to Seller at the Closing in immediately
available funds by bank wire transfer received by Seller prior to 2:00 P.M.
on the "Closing Date", as hereinafter defined.
Article 3.
Default by Purchaser or Seller
3.1 Purchaser's Default. If Seller shall have materially complied
with all of the covenants and conditions contained in this Agreement, and
Purchaser defaults in one or more of its obligations hereunder (including
failing to consummate the purchase and sale contemplated herein or breaching
any obligation, representation or warranty hereunder), then Seller shall be
entitled to elect one of the following remedies: (a) Seller shall have the
right to terminate this Agreement by written notice to Purchaser and to
retain the Deposit plus any interest earned thereon in which event neither
Purchaser nor Seller shall have any further rights or obligations with
respect to the other under this Agreement, except for the "Surviving
Covenants", as hereinafter defined; or (b) Seller shall have the right to
seek specific performance against Purchaser.
3.2 Seller's Default. In the event that Purchaser has complied with
all of the covenants and conditions contained herein and is ready, willing
and able to take title to the Property in accordance with this Agreement on
the Closing Date, and Seller defaults hereunder through breach of any
representation or warranty set forth herein or otherwise defaults in
performance of its obligations hereunder and fails to consummate this
Agreement, then Purchaser shall be entitled to elect one of the following
remedies: (a) Purchaser shall have the right to terminate this Agreement
by written notice to Seller, in which event neither Purchaser nor Seller
shall have any further rights or obligations with respect to the other under
this Agreement, except for the Surviving Covenants; or (b) Purchaser shall
have the right to seek specific performance against Seller but not the right
to seek damages. If the remedy of specific performance is not capable of
being achieved due to the nature of Seller's default, Purchaser's sole
remedy shall be termination. In the event of Seller's default hereunder,
the disbursement of the Deposit shall be governed by Exhibit "B".
Article 4.
Closing and Closing Deliveries
4.1 Closing. Seller and Purchaser agree to conduct the Closing of
the purchase and sale of the Property at 11:00 a.m. Eastern Time on January
6, 1998 (the "Closing Date") in the Charlotte, North Carolina office of
Nelson Mullins Riley & Scarborough, LLP, located at 100 N. Tryon Street,
Suite 3350, or at such other place as may be agreed upon by the parties
hereto.
4.2 Seller's Closing Deliveries. At the Closing, Seller shall
execute and deliver, or cause to be executed and delivered, to Purchaser,
in form and substance reasonably acceptable to Purchaser, the following:
(a) A special warranty deed (subject only to the "Permitted
Exceptions", as hereinafter defined);
(b) A bill of sale (the "Bill of Sale") conveying to Purchaser,
without warranty, the Personal Property which may be located upon the Land
and Improvements and which is used exclusively in the business operated
thereon;
(c) An assignment and assumption of the Leases (the "Assignment and
Assumption") dated as of the Closing Date, assigning all of the Seller's
right, title and interest in and to the Leases; and, to the extent
necessary, also assigning all of Seller's right, title and interest in and
to the service and maintenance contracts pertaining to the Property
(collectively, the "Contracts");
(d) Tenant notification agreements (the "Tenant Notices"), dated as
of the Closing Date, and complying with applicable statutes in order to
relieve Seller of liability for tenant security deposits, if any, notifying
the tenants that the Property has been sold to Purchaser and directing the
tenants thereafter to pay rentals to Purchaser (or Purchaser's designated
agent);
(e) To the extent in Seller's possession or under Seller's
reasonable control, the originals of the Contracts, the Leases, and all
tenant correspondence and other correspondence pertaining to the ongoing
operation of the Property, as-built plans and specifications, maintenance
and service contracts, and all licenses, permits and certificates of
occupancy for the Real Property or the Improvements;
(f) An updated Rent Roll, in the form of the Rent Roll attached
hereto, dated within five (5) days of the date of the Closing;
(g) To the extent in the possession of Seller or Seller's Property
manager, copies of all engineering and maintenance records for the Property;
(h) Such title affidavits as are reasonably required by the title
company insuring title to the Real Property on behalf of Purchaser (but not
an owner's affidavit covering the "Purchaser Created Liens," as hereinafter
defined, or indemnifying the title company for such Purchaser Created
Liens);
(i) Documentary evidence of authority of the Seller to consummate
the transaction contemplated hereunder;
(j) An executed original of a sale closing statement (the "Closing
Statement") in form and substance mutually agreeable to Seller and
Purchaser; and
(k) Written confirmation from the Seller that all representations
and warranties of the Seller set forth herein at Section 10.1 are and
continue to be true, accurate and complete as of the Closing Date, or if
not, the extent and nature of any material changes to such representations
and warranties. If there is a material, adverse change in the
representations and warranties of Seller, Purchaser shall have the right to
terminate this Agreement, without a return of the Deposit, except as set
forth in Exhibit "B".
4.3 No Default for Failure to Obtain Estoppels. During the
Inspection Period, Seller agrees to reasonably cooperate in good faith, with
Purchaser's attempt, at Purchaser's cost, to procure tenant estoppel
certificates executed by Belk, Dillard's, and Montgomery Ward, in the form
attached hereto as Exhibit "C-1", or otherwise in form and substance
reasonably satisfactory to Purchaser, together with an acceptable operating
estoppels from all parties to any reciprocal easement agreement or operating
agreement pertaining to the Real Property, together with additional tenant
estoppel certificates from fifty percent (50%), as measured by floor area,
of the remaining permanent tenants leasing space in the Building, in the
form attached hereto as Exhibit "C-2", or in a form reasonably acceptable
to Purchaser. Purchaser's failure to obtain the estoppels provided for
hereunder shall not constitute a breach of this Agreement by Seller so long
as Seller has reasonably cooperated in good faith with Purchaser, and
Purchaser shall have no rights hereunder to compel Seller to perform any
action with respect to estoppels. Nonetheless, if Purchaser is not
satisfied with the estoppels obtained, Purchaser shall have the right to
terminate this Agreement on or prior to the last day of the Inspection
Period as such right is more fully described in Section 6.1, hereof, without
a return of the Deposit, except as provided on Exhibit "B".
4.4 Purchaser's Closing Deliveries. At the Closing, Purchaser will
cause the Purchase Price to be delivered to Seller by the method herein
described, and will execute and deliver to Seller counterparts of the Tenant
Notices, the Assignment and Assumption, the Bill of Sale and the Closing
Statement.
4.5 Evidence of Authority; Miscellaneous. Both parties agree to
deliver to the Escrow Agent and each other such evidence or documents as may
be reasonably required by the Escrow Agent or either party hereto evidencing
the power and authority of Seller and Purchaser and the due authority of,
and execution and delivery by, any person or persons who are executing any
of the documents required hereunder in connection with the sale of the
Property.
Article 5.
Prorations of Rents, Taxes, Etc.
5.1 General Prorations. Real estate taxes for the year of Closing
and any tax bond or assessment which is a lien against the Real Property
shall be prorated as of 12:01 a.m. on January 1, 1998 (notwithstanding the
fact that the Closing Date is January 6, 1998) either using actual tax or
assessment figures or, if actual figures are not available, then using as
a basis for said proration the most recent assessed value of the Real
Property multiplied by the current tax or assessment rate, with a subsequent
cash adjustment to be made between Purchaser and Seller when actual tax or
assessment figures are available. Personal property taxes, annual permit
or inspection fees, sewer charges, other utility charges, and other expenses
and charges normal to the operation and maintenance of the Property shall
also be prorated as of 12:01 a.m. on January 1, 1998. Final readings on all
gas, water and electric meters shall be made as of the proration date, if
possible, for purposes of accurate proration. If final readings are not
possible, gas, water, electricity, and other utility charges will be
prorated based on the most recent period for which costs are available. Any
deposits made by Seller with utility companies shall be returned to Seller,
and Purchaser shall be responsible for all arrangements for the continuation
of utility services to the Property.
5.2 Rental Prorations. All "base" rental and percentage rental
payments pertaining to the Property (including base rents and percentage
rents pursuant to the Leases) shall be prorated on an accrual basis,
effective as of 12:01 a.m. on January 1, 1998 (notwithstanding the fact that
the Closing Date is January 6, 1998). With regard to those base rents or
percentage rents that Seller shall set forth on a list of delinquent
accounts provided to Purchaser just prior to Closing (the "Delinquent
Accounts Receivable), no proration will be made at the Closing. With regard
to such Delinquent Accounts Receivable, Purchaser and Seller acknowledge and
agree that Seller shall be transferring and assigning to Purchaser, at the
Closing, up to $25,000.00 of the most current of such Delinquent Accounts
Receivable (the "Transferred DAR"). Seller shall receive a credit at the
Closing for the total sum due pursuant to the Transferred DAR. Thereafter,
Purchaser shall make a good faith effort to collect all Delinquent Accounts
Receivable in the usual course of Purchaser's operation of the Property,
using commercially reasonable methods, with all sums collected pursuant to
the Transferred DAR being the sole property of Purchaser and all sums
collected pursuant to the other Delinquent Accounts Receivable being
promptly paid over to Seller subject to deduction by Purchaser for the
actual, out-of-pocket expenses incurred by Purchaser in making such
collections. All other sums collected by Purchaser in respect of the
Property which are the property of Seller shall be promptly paid over to
Seller subject to deduction by Purchaser for the actual, out-of-pocket
expenses incurred by Purchaser in making such collections (provided,
however, that funds received by Purchaser which are not specifically
designated by the payor as property of Seller shall be first applied to sums
due Purchaser accruing after the Closing Date). The obligations of
Purchaser under this Section shall survive the Closing.
5.3 Prorations for Tenant Deposits. The following shall apply to
proration of deposits made by tenants for common area maintenance charges,
taxes, insurance and other similar tenant assessments (collectively, the
"Tenant Expense Deposits"): Seller and Purchaser agree that the Tenant
Expense Deposits shall be part of the Personal Property transferred to
Purchaser at the Closing. Therefore, from and after the Closing Date,
Purchaser shall have the sole responsibility for proper application of the
Tenant Expense Deposits, the refund of any overpayment of Tenant Expense
Deposits and the collection of any deficiencies from tenants of the Real
Property. In addition, all tenant security deposits, if any, pertaining to
the Leases shall be assigned by Seller to Purchaser at the Closing and
Purchaser shall thereafter have sole responsibility for management and
accounting of such security deposits.
5.4 Final Adjustment. Purchaser and Seller acknowledge and agree
that all prorated items that are not subject to an exact determination shall
be estimated by the parties with prorations adjusted to actual sums within
twelve (12) months after the Closing Date. This obligation shall survive
the Closing.
5.5 Property Management Agreement. Purchaser and Seller acknowledge
and agree that any contract for the management of the Property currently in
force shall be terminated by Seller as of the Closing Date, with any fees
for such termination to be paid by Seller. After such termination, Seller
shall have no further responsibility with regard to supplying management
services for the Property and Purchaser shall be solely responsible for
procuring its own contract for management services for the Property.
Article 6.
Inspection Period, Survey and Title Matters
6.1 Inspection Period. Purchaser shall have from the Effective Date
of this Agreement until 5:00 p.m. Eastern Standard Time on December 19, 1997
(hereinafter referred to as the "Inspection Period") to complete such
environmental, title, economic and other due diligence investigations as
Purchaser shall deem necessary or appropriate with regard to the Property.
During the Inspection Period, Purchaser's agents and employees shall have
the reasonable right to enter upon the Real Property to conduct due
diligence in a manner reasonably acceptable to Seller, and to make
commercially reasonable inquiries of tenants, governmental authorities and
others with potentially relevant information about the Property; but in any
event, without disruption to the normal business of Seller. During the
Inspection Period, Purchaser shall be permitted to inspect and copy, in
Asheville, North Carolina, the Leases and the Contracts and other pertinent
information relating to the Property. On or before 5:00 p.m. Eastern
Standard Time on the last day of the Inspection Period, Purchaser shall have
the right to terminate this Agreement if Purchaser determines that it is not
satisfied with any of the results of any of its due diligence investigation.
The parties agree that for ease of administration of this Agreement, if
Purchaser elects such termination, Purchaser shall not be obligated to
provide any written notice of same to Seller. This Agreement shall
automatically terminate at 5:00 p.m. on the last day of the Inspection
Period, if Purchaser has not notified Seller otherwise. If Purchaser does
not elect to have this Agreement automatically terminate but desires to
proceed to Closing, Purchaser shall provide written notice of same to Seller
and Escrow Agent on or before 5:00 p.m. of the last day of the Inspection
Period (which notice shall also serve as a notice by Purchaser of
Purchaser's acknowledgment that it has waived its right to a return of the
Deposit if any of the representations made by Seller as set forth in Section
10.1(d), (e), (f), and (k) of this Agreement prove to be materially false).
6.2 Survey. Purchaser acknowledges that Seller has provided it with
a copy of the most recent survey of the Real Property in the possession of
Seller, which survey was performed in 1997 (the "Prior Survey"). In the
event Purchaser elects to have a new or updated as-built survey (the
"Survey") of the Real Property prepared, which shall be at Purchaser's own
expense, on or prior to the end of the Inspection Period, Purchaser shall
provide a copy of such Survey to Seller. In the event the legal description
conforming to the Survey does not match the legal description originally
attached to this Agreement as Exhibit "A", Seller agrees to execute and
deliver to Purchaser on the Closing Date, a quitclaim deed with a legal
description conforming to the Survey (if so requested by Purchaser), in
addition to the special warranty deed with the legal description set forth
on Exhibit "A". Seller makes no representation or warranty whatsoever with
regard to the accuracy or completeness of the Prior Survey and Purchaser
acknowledges and agrees that it shall be solely responsible for procuring
the Survey and ensuring that this Survey is satisfactory to Purchaser.
6.3 Title Matters.
(a) Purchaser shall have until the end of the Inspection
Period to examine title to and the Survey of the Real Property and to
furnish Seller with a written statement of objections to the title or
Survey, if any, other than the Permitted Exceptions, accompanied by copies
of Purchaser's title commitment or Survey disclosing such objections to
title and all documents listed therein as exceptions to title. Thereafter,
Purchaser shall have until the Closing Date in which to reexamine title to
the Property and in which to give Seller written notice of any additional
encumbrances, other than the Permitted Exceptions and those disclosed by the
earlier title examination, disclosed by such reexamination. Should
Purchaser fail to notify Seller of any such objections within the aforesaid
time periods, Purchaser shall be deemed to have waived all objections to the
title to the Property. Seller shall have the right, until the Closing Date,
to satisfy or cure all valid objections to title of which it was timely
notified by Purchaser, but not the obligation to satisfy or cure such title
objections; provided, however, that Seller, upon written notice to
Purchaser, may postpone the Closing by thirty (30) days in order that such
objections might be cured. Should Seller fail to satisfy or cure all such
valid objections by the Closing Date, as postponed, if appropriate, then
Purchaser shall have the right, at Purchaser's election, either to terminate
this Agreement (without return of the Deposit, except as provided on Exhibit
"B"), or to waive those title objections which Seller failed to satisfy or
cure and proceed to close the sale of the Property contemplated herein and
accept the Property subject to such objections with no reduction in the
Purchase Price. For purposes of this Agreement, the term "Permitted
Exceptions" shall mean taxes and assessments for the Property not yet due
and payable, the exceptions to title shown on Exhibit "T-1", attached
hereto, and such additional title exceptions as Purchaser shall approve or
waive hereunder.
(b) In the event that Purchaser should furnish to Seller such
written statement of objections and should Seller fail to convey title to
the Real Property subject only to the Permitted Exceptions and should
Purchaser not waive all title objections other than the Permitted
Exceptions, Purchaser's sole remedy shall be to terminate this Agreement
(without return of the Deposit, except as provided on Exhibit "B") in which
event this Agreement shall wholly cease and terminate, the parties hereto
shall have no further rights or obligations hereunder, except for the
Surviving Covenants, and the lien or right, if any, of the Purchaser against
or to the Property shall wholly cease. Except as specifically provided
herein, Seller shall not be required and is not obligated hereby to bring
any action or proceeding or otherwise to incur an expense to render the
title to the Property free of any liens and encumbrances, subject to the
Permitted Exceptions. The acceptance of a deed to the Real Property by
Purchaser shall be deemed to be a full performance of and discharge of every
agreement and obligation on the part of Seller to be performed pursuant to
the provisions of this Agreement, except those pursuant to any articles
hereof which are herein specifically stated to survive the Closing.
(c) Seller hereby covenants that it shall not voluntarily
transfer, sell, assign, encumber, hypothecate or otherwise dispose of any
or all of its right, title and interest in and to the Property or any
portion thereof granting to any person or entity any rights with respect to
the Property or any interest whatsoever therein without the consent of
Purchaser, which will not be unreasonably withheld, conditioned or delayed,
during the existence of this Agreement.
(d) Notwithstanding any other provision of this Section 6 to
the contrary, Seller shall satisfy, cure or cause to be released or bonded
off of the Property, at Seller's election, (i) all materialmen's and
mechanic's liens affecting the Property shown as mechanics or materialmen's
liens on Exhibit "T-2", attached hereto (but not liens attaching to the
Property which are caused or created by Purchaser either from work ordered
by Purchaser or due to Purchaser's disclosure of information to tenants or
others during the existence of this Agreement (collectively, the "Purchaser
Created Liens"); (ii) the additional items listed on Exhibit "T-2", and
(iii) the lien and interest of any other person or any other entity securing
a loan to Seller in respect of the Property.
Article 7.
Loss Due to Casualty or Condemnation
7.1 Loss due to Condemnation. In the event of a condemnation of all
or a "Substantial Portion" (as hereinafter defined) of the Real Property
which condemnation shall or would render a Substantial Portion of the Real
Property untenantable or would result in the Real Property not having
sufficient parking to materially comply with applicable law or the specific
requirement of any Lease, either party may, upon written notice to the other
given within ten (10) days of receipt of notice of such event, cancel this
Agreement, in which event this Agreement shall terminate, and neither party
shall have any rights or obligations hereunder except for the Surviving
Covenants. In the event that Purchaser or Seller does not elect to
terminate, or if the condemnation affects less than a Substantial Portion
of the Real Property or does not materially affect the parking area, then
this Agreement shall remain in full force and effect, and Seller shall
assign to Purchaser at Closing all monies received or collected by reason
of such condemnation prior to Closing. In such event, the transaction
hereby contemplated shall close in accordance with the terms and conditions
of this Agreement. For purposes of this Section, the term "Substantial
Portion" shall mean five percent (5%) or greater of the Real Property.
7.2 Loss due to Casualty. In the event of "Substantial Loss or
Damage" (as hereinafter defined) to the Real Property by fire or other
casualty (not resulting from acts or omissions of Purchaser), Purchaser or
Seller, upon written notice to the other given within ten (10) days of
receipt of notice of such event, may cancel this Agreement in which event
this Agreement shall terminate and neither party shall have any rights or
obligations hereunder except for the Surviving Covenants. In the event that
neither party elects to terminate, or if the casualty results in less than
Substantial Loss or Damage, then this Agreement shall remain in full force
and effect and Seller shall be entitled to all insurance proceeds received
or collected by reason of such damage or loss, whereupon the transaction
hereby contemplated shall close in accordance with the terms and conditions
of this Agreement except that there will be abatement of the Purchase Price
equal to the amount of the gross proceeds of insurance, plus Seller's
deductible, provided that such abatement will be reduced by the amount
expended by Seller (if any) for restoration of the Property following the
casualty, and provided, further, that such abatement will be further reduced
by the amount that the gross proceeds include any separate award for costs
(including preservation costs) and attorneys' fees, to the extent actually
incurred by Seller. For purposes of this Section 7.2, "Substantial Loss or
Damage" shall mean loss or damage to the parking and/or any portion of the
Building the cost for repair of which exceeds Two Million Dollars
($2,000,000.00) of the value of the Real Property.
Article 8.
Maintenance of the Property
Between the Effective Date of this Agreement and the Closing, Seller
shall maintain the Property in good condition and repair, reasonable wear
and tear excepted, and shall perform all work required to be done under the
terms of any Lease or agreement relating to the Property, in accordance with
its customary practices in operation of the Property; except that in the
event of a fire or other casualty, damage or loss, Seller shall have no duty
or obligation to repair said damage except as otherwise provided in
Section 7.2 of this Agreement.
Until the Closing Date, Seller shall not intentionally cause or
intentionally permit any new liens to attach to the Property except (i) the
Purchaser Created Liens, or (ii) the lien for taxes not yet due and payable,
or (iii) other liens in the ordinary course of business. In the event of
liens attaching to the Property pursuant to clause (iii) immediately above,
Seller agrees to satisfy such liens at or prior to Closing, provided they
do not constitute Purchaser Created Liens. Seller shall not lease any
portion of the Real Property or amend or terminate any existing Lease
without first obtaining Purchaser's written approval, which approval shall
not be unreasonably denied or delayed. Purchaser shall have three (3) days
from the date Seller provides Purchaser with the business terms of a new
lease, or modification or termination of any existing Lease, together with
any information reasonably requested by Purchaser regarding such matter, to
approve such lease, modification or termination. If Purchaser fails to
respond within said time period, Purchaser shall be deemed to have approved
such lease, modification or termination, as applicable.
Article 9.
No Brokers
Seller and Purchaser each represent and warrant to the other that
neither has employed, retained or consulted any broker, agent, or finder in
carrying on the negotiations in connection with this Agreement or the
purchase and sale referred to herein, and Seller and Purchaser shall each
indemnify and hold the other harmless from and against any and all claims,
demands, causes of action, debts, liabilities, judgments and damages
(including costs and reasonable attorneys' fees incurred in connection with
the enforcement of this indemnity) which may be asserted or recovered
against the indemnified party on account of any brokerage fee, commission
or other compensation arising by reason of the indemnitor's breach of this
representation and warranty. This Section 9 shall survive the Closing or
any termination of this Agreement.
Article 10.
Representations and Warranties
10.1 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser that the following matters are true and correct as of
the Effective Date hereof. None of the representations and warranties shall
survive the Closing.
(a) The Seller is not a party to, subject to or bound by any
agreement, contract, permit or other restriction of any nature, or any
judgment, order, statute, rule or regulation of any court, governmental
body, administrative agency or arbitrator, or any legal proceeding which
would prevent or be violated by, or under which there would be a default,
or which would result in creation of or claim of any lien, charge or
encumbrance upon any of the Property as a result of any of the items set
forth below (excepting therefrom any claims covered by Seller's general
liability insurance):
(i) the execution, delivery and performance of this Agreement; or
(ii) the transfer and assignment to Purchaser, in accordance with
this Agreement, of the Property.
(b) Seller is a North Carolina limited partnership, organized,
existing, and in good standing under the laws of the State of North
Carolina, and has all power and authority to conduct the business of the
Property and to enter into and perform its obligations hereunder under the
laws of the State of North Carolina.
(c) The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly
authorized by all necessary parties and no other proceedings on the part of
Seller are necessary in order to permit them to consummate the transaction
contemplated hereby. This Agreement has been duly executed and delivered
by Seller.
(d) The rent roll attached hereto as Exhibit "D" (the "Rent
Roll") is true, correct and complete in all material respects. At the
Closing, Seller shall deliver to Purchaser an updated Rent Roll which will
be true, correct and complete as of the Closing.
(e) The Land is currently zoned under the classification
"Regional Business" pursuant to the applicable zoning ordinance for the City
of Asheville. The zoning for the Land permits the current use of the Land
as a shopping center.
(f) To the best of Seller's knowledge, and except as may be set
forth in that certain Phase I Environmental Site Assessment - Asheville Mall
Property - S&ME Project Number 14-14-97-100 prepared for R.L. Coleman &
Company, dated August 13, 1997, a copy of which will be provided to
Purchaser, the Property has not been used by Seller as a land fill or as a
dump for the disposal of garbage, refuse, hazardous substances or toxic
wastes, nor are any storage tanks located on the Property, and Seller has
not received any notice of, and has no knowledge, information or belief of,
the use of the Land for the disposal of garbage, refuse, hazardous
substances or toxic wastes.
(g) To the best of Seller's knowledge, there is no permanent
condemnation proceeding pending with regard to all or any part of the
Property and Seller has received no notice of such proceeding commenced or
threatened by any governmental authority.
(h) Seller has not received notice of, nor does Seller have
knowledge of any litigation or any administrative, regulatory, or judicial
proceeding, pending against Seller or the Property, except as set forth on
Exhibit "E", which will be provided by Seller to Purchaser promptly
following the Effective Date hereof.
(i) Seller is not a "foreign person" as defined in the Federal
Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform
Act, as amended.
(j) Seller is not currently subject to any bankruptcy,
reorganization, insolvency or similar proceedings.
(k) In addition, Seller represents and warrants to Purchaser
that as of the Effective Date of this Agreement, Seller has fee simple title
to the Land subject only to those matters shown on Exhibits "T-1" and "T-2",
attached hereto.
Purchaser acknowledges that it has the skills, knowledge and expertise
to perform its own investigation of all aspects of the Property, that it has
been provided with the time to do so, that it has conducted its own
independent investigation to the fullest extent desired and that, other than
Seller's representation and warranties set forth herein or made pursuant
hereto, it is relying solely on its own investigation and analysis of the
Property in entering into this Agreement and closing the transaction
contemplated hereby. Purchaser acknowledges that its due diligence shall
include, without limitation, "Phase I" environmental assessments of the
Property performed by independent environmental consultants, electrical,
mechanical, roof and parking lot inspections, and all such other inspection
as Purchaser shall deem appropriate (all of which shall be conducted in a
manner so as not to interfere with the business conducted upon the Land and
the Improvements).
10.2 Representations and Warranties of Purchaser.
(a) The Purchaser is not a party to, subject to or bound by
any agreement, contract, permit or other restriction of any nature, or any
judgment, order, statute, rule or regulation of any court, governmental
body, administrative agency or arbitrator, or any legal proceeding which
would prevent or be violated by, or under which there would be a default as
a result of any of the items set forth below:
(i) the execution, delivery and performance of this Agreement;
or
(ii) the transfer and assignment to Purchaser, in accordance
with this Agreement, of the Property.
(b) Purchaser is a corporation, duly organized and validly
existing, and in good standing under the laws of the State of Wyoming, and
has all power and authority to enter into and perform its obligations
hereunder under the laws of the State of Wyoming and North Carolina, and has
been qualified to do business in the State of North Carolina.
(c) the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly
authorized by all necessary parties and no other proceedings on the part of
Purchaser are necessary in order to permit it to consummate the transaction
contemplated hereby. This Agreement has been duly executed and delivered
by Purchaser.
Article 11.
Indemnification
11.1 Purchaser's Indemnification. Purchaser on behalf of itself, its
successors and assigns does hereby agree to indemnify and hold Seller, its
successors and assigns, and any independent property manager which Seller
has hired to manage the Property, harmless from and against all costs,
charges and expenses arising from Purchaser's entry on the Property prior
to Closing in conducting due diligence or relating to the ownership,
management and operation of the Property from and after the Closing Date,
including costs (i) for any labor performed on, or materials furnished to
the Real Property subsequent to the Closing Date, (ii) for any leasing
commissions disclosed to Purchaser on the Rent Roll and due for renewals of
extensions of existing Leases subsequent to the Closing Date, (iii) for
compliance with any laws, requirements or regulations of, or taxes,
assessments, or other charges due to any governmental authority, but only
to the extent that any such liability is attributable exclusively to
Purchaser's period of ownership of the Property, or (iv) for any other
charges or expenses whatsoever pertaining to the Property or to the
ownership, title, possession, use or occupancy of the Property, but only to
the extent any such liability is attributable to Purchaser's period of
ownership of the Property.
11.2 Third Parties. Except as specifically limited herein, nothing
contained in this Section is in any way intended to limit the rights of
Seller or Purchaser to pursue any remedies as may exist at law or in equity
against any unrelated third parties with respect to any liabilities covered
by this Section 11.
The provisions of this Section 11 shall survive the Closing or earlier
termination of this Agreement.
Article 12.
Assignment
Purchaser shall not assign this Agreement without the prior written
consent of Seller, in Seller's sole discretion.
Article 13.
Notices
All notices hereunder or required by law shall be sent via United
States Mail, postage prepaid, certified mail, return receipt requested, or
via any nationally recognized commercial overnight carrier with provisions
for receipt, addressed to the parties hereto at their respective addresses
set forth below or as they have theretofore specified by written notice
delivered in accordance herewith:
PURCHASER: Development Options, Inc.
c/o CBL & Associates Properties, Inc.
One Park Place
6148 Lee Highway
Chattanooga, Tennessee 37421-2931
Attn: Mr. John Foy
with a copy to: Mary Ann Okrasinski, Esq.
CBL & Associates Properties, Inc.
One Park Place
6148 Lee Highway
Chattanooga, Tennessee 37421-2931
SELLER: R.B.R.&S.T. Limited Partnership
c/o Richard L. Coleman, Jr.
39 Hilltop Road
Asheville, North Carolina 28803
with a copy to: Nelson Mullins Riley & Scarborough, L.L.P.
First Union Plaza, Suite 1400
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: Wade H. Stribling, Esq.
ESCROW AGENT: Nelson Mullins Riley & Scarborough, L.L.P.
First Union Plaza, Suite 1400
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: Wade H. Stribling, Esq.
Delivery will be deemed complete upon confirmed receipt or refusal to accept
delivery.
Article 14.
Expenses of Closing
Seller shall pay its own attorney's fees, brokerage commissions
payable in respect of the Leases, if any, which are due and payable prior
to the Closing Date and were not disclosed on the Rent Roll, and the other
items and costs specifically provided for hereunder to be the responsibility
of Seller. Purchaser shall pay its due diligence expenses, including, but
not limited to, the cost of any environmental or engineering studies,
surveys, and title reports, it's own attorney's fees, and the title
insurance premium for the policy of title insurance for Purchaser and any
lender of Purchaser. The parties shall split equally the real estate
transfer tax, any recording fees, and other similar documentary fees and
charges incurred in connection with the transfer of the Property, except for
any fees charged in connection with Purchaser's financing for the Property
including intangibles tax or loan fees which shall be paid solely by
Purchaser.
Article 15.
Miscellaneous
15.1 Successors and Assigns. All the terms and conditions of this
Agreement are hereby made binding upon the executors, heirs, administrators,
successors and permitted assigns of the parties hereto.
15.2 Gender. Words of any gender used in this Agreement shall be
held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the
context requires otherwise.
15.3 Captions. The captions in this Agreement are inserted only for
the purpose of convenient reference and in no way define, limit or prescribe
the scope or intent of this Agreement or any part hereof.
15.4 Construction. No provision of this Agreement shall be construed
by any Court or other judicial authority against any party hereto by reason
of such party's being deemed to have drafted or structured such provisions.
15.5 Entire Agreement. This Agreement constitutes the entire
contract between the parties hereto and there are no other oral or written
promises, conditions, representations, understandings or terms of any kind
as conditions or inducements to the execution hereof and none have been
relied upon by either party.
15.6 Recording. The parties agree that this Agreement shall not be
recorded. If Purchaser causes this Agreement or any notice or memorandum
thereof to be recorded, this Agreement shall be null and void at the option
of the Seller.
15.7 No Continuance. Purchaser acknowledges that there shall be no
assignment, transfer or continuance of any of Seller's insurance coverage.
15.8 Time of Essence. Time is of the essence of this Agreement. If
the date for performance of any action under this Agreement shall fall on
a Saturday, Sunday or legal holiday, such action shall, and may, be
performed on the next succeeding business day which is not a Saturday,
Sunday or legal holiday.
15.9 Counterparts. This Agreement may be executed by both parties
in counterparts in which event each shall be deemed an original and all of
which together shall be deemed one and the same agreement.
15.10 Governing Law. This Agreement shall be construed, and the
rights and obligations of Seller and Purchaser hereunder, shall be
determined in accordance with the laws of the State of North Carolina.
15.11 Confidentiality. Purchaser and Seller agree that neither shall
make any public announcement or issue any press release or similar statement
with regard to the existence of this Agreement or any of the terms hereof,
without the written consent of the other party, in its sole discretion
(except as may be required by law, court order or stock exchange rules).
15.12 Surviving Covenants. Only the provisions specifically stated
herein to survive the Closing or earlier termination of this Agreement, as
the case may be (collectively, the "Surviving Covenants") shall survive the
Closing or any termination of this Agreement. All others shall merge with
the execution and delivery of the deed at Closing.
15.13 Further Assurances. The parties hereto hereby expressly agree
to perform such additional acts and deliver such additional documents as
shall be reasonably required by the other party, or its counsel, to
consummate the transaction herein contemplated.
15.14 Severability. If any term, covenant, or condition of this
Agreement or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement
or the application of such term, covenant, or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and each term, covenant or
condition of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
15.15 Attorneys' Fees. In the event a party hereto shall be required
to file suit to enforce its rights hereunder, the prevailing party in such
action shall be entitled to recovery of its reasonable attorneys' fees and
costs, as may be awarded by the court.
15.16 Effective Date. The Effective Date of this Agreement shall be
the later of the dates on which this Agreement is executed by Purchaser and
Seller.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement under seal as of the dates set
forth below.
EXECUTED BY PURCHASER this 12th day of November, 1997.
PURCHASER:
DEVELOPMENT OPTIONS, INC., a Wyoming corporation
John N. Foy
------------------------------
By: John N. Foy
------------------------------
Title: Executive Vice President
[SEAL]
EXECUTED BY SELLER this 12th day of November, 1997.
SELLER:
R.B.R.&S.T. LIMITED PARTNERSHIP,
a North Carolina limited Partnership
By: Asheville Mall, Inc., a North Carolina
corporation, its general partner
Richard L. Coleman Jr.
----------------------------------
By: Richard L. Coleman Jr.
----------------------------------
Title: President
[SEAL]
Receipt of an original counterpart of this Agreement executed by Seller and
Purchaser is acknowledged this 12th day of November, 1997.
Escrow Agent:
Nelson Mullins Riley & Scarborough, LLP
Wade Stribling
------------------------------
By: Wade Stribling
------------------------------
Title: Partner
EXHIBIT "B"
DEPOSIT PROVISIONS
Purchaser and Seller acknowledge that Purchaser is requiring a
substantial quantity of documentation, the production of which, is claimed
to be necessary to facilitate the Closing. In consideration thereof, and
in consideration of Seller holding the Property off the market during the
term of this Agreement, Purchaser shall pay to Escrow Agent simultaneously
with the execution of this Agreement the lump sum of $300,000.00, the
Deposit, to offset the cost to Seller in connection with the production and
reproduction of the documented items listed but not limited to those set
forth herein and including the cost of counsel. Escrow Agent shall place
the Deposit in an interest bearing account with a financial institution
having an office in Atlanta, Georgia. The interest earned on the Deposit
shall become a part of the Deposit and disbursed in the same manner as the
Deposit. Notwithstanding anything to the contrary contained in this
Agreement, the Deposit shall only be refundable to Purchaser if: (i) any of
the representations made by Seller as set forth in Section 10.1(d), (e),
(f), and (k) of this Agreement prove to be materially false (subject to
Purchaser's waiver of this right as set forth in Section 6.1), or (ii)
Seller shall breach this Agreement by (1) failing to consummate the sale of
the Property to Purchaser, (2) failing to materially comply with the
provisions of Section 8 of this Agreement, (3) failing to cure those title
matters which Seller has agreed, in writing, on and after the Effective Date
hereof, to cure, or (4) failing to materially comply with the provisions of
Section 6.3(d) of this Agreement. In any event, if Purchaser purchases the
Property, Purchaser shall receive a credit against the Purchase Price in the
amount of the Deposit.
In performing its duties hereunder, Escrow Agent shall not incur any
liability for any damages, losses or expenses, except for its gross
negligence or willful misconduct, and it shall accordingly not incur any
such liability with respect (a) to any action taken or omitted in good faith
upon advice of its counsel or (b) to any action taken or omitted in reliance
upon any instrument, including any written notice or instruction provided
for in this Agreement, not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and accuracy of
any information contained therein, that Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by a proper person,
and to conform to the provisions of this Agreement. The parties hereto
(other than Escrow Agent) agree to indemnify and hold harmless Escrow Agent
against any and all losses, claims, damages, liabilities and expenses,
including reasonable costs of investigation, legal fees and disbursements,
that may be imposed upon Escrow Agent or incurred by Escrow Agent in
connection with its acceptance or performance of its duties hereunder,
including, without limitation, any litigation arising out of this Agreement
or involving the subject matter hereof. If any dispute shall arise among
the parties sufficient in the sole discretion of Escrow Agent to justify its
doing so, Escrow Agent shall be entitled to tender into the registry or
custody of the Clerk of the Superior Court of Buncombe County, North
Carolina, or the Clerk for the United States District Court for the
corresponding district, any or all money, property or documents in its hands
relating to this Agreement, together with such legal pleadings and documents
as it shall deem appropriate, and thereupon be discharged from all further
duties and liabilities under this Agreement. The parties hereto (other than
Escrow Agent) shall bear all costs and expenses of any such legal
proceedings. Liability for the indemnities made in this Exhibit shall
survive the execution and delivery of this Agreement, the termination of
this Agreement prior to Closing (if applicable), and the Closing.
EXHIBIT "E"
LIST OF PENDING LITIGATION
EXHIBT "T-1"
PERMITTED ENCUMBRANCES
EXHIBIT "T-2"
Mechanic's and Materialmen's Liens:
Additional Matters: