CONTRACT FOR PURCHASE
OF REAL PROPERTY
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THIS CONTRACT ("Contract"), is made and entered into by and between
MORNINGSIDE ASSOCIATES ("Purchaser"), a Georgia general partnership, and
CARROLLTON CROSSROADS ASSOCIATES ("Seller"), a Illinois joint venture, comprised
of First Capital Institutional Real Estate, Ltd. - IV, an Illinois limited
partnership and First Capital Insured Real Estate Limited Partnership, an
Illinois limited partnership, and shall be effective as of the date on which the
last party hereto has executed this Contract (the "Effective Date").
W I T N E S S E T H:
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In consideration of the mutual covenants herein contained, Seller does
hereby agree to sell, and Purchaser does hereby agree to purchase, that certain
tract or parcel of real property located in Carroll County, Georgia, being
commonly known as "Carrollton Crossroads Shopping Center," located on
approximately 35.619 acres, having approximately 303,805 square feet of
buildings and being further described on Exhibit "A" attached hereto and
incorporated herein, together with all improvements thereon owned by Seller and
all easements and appurtenances thereto belonging, all tenant leases and all
fixtures, equipment and supplies and items of personal property owned by Seller
and used in the operation of Carrollton Crossroads Shopping Center, but
expressly excluding (i) personal property owned by any tenants occupying the
property under one of the tenant leases referenced above or by the property
manager of Seller, and (ii) all rights with respect to any refund of taxes
applicable to any period prior to Closing (as hereinafter defined)
(collectively, the "Property"), on the following terms and conditions:
1. Earnest Money.
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Purchaser shall pay to Old Republic National Title Insurance Company
("Escrow Agent") pursuant to a separate "escrow letter", the form of which shall
be agreed upon by Seller and Purchaser, the sum of $100,000.00 as earnest money
within three (3) business days from the execution of this Contract by each party
hereto (the "Original Earnest Money"). In the event Purchaser does not elect to
terminate this Contract pursuant to subparagraph 8(c), Purchaser shall deposit
with Escrow Agent an additional $100,000.00 ("Additional Earnest Money") on or
before the end of the Inspection Period (as hereinafter defined) (the Original
Earnest Money and the Additional Earnest Money shall hereafter be collectively
referred to as the "Earnest Money"). Escrow Agent shall hold and disburse the
Earnest Money as provided in this Contract and invest same in an interest-
bearing account, as directed by Purchaser. All interest earned on the Earnest
Money shall be deemed part of the Earnest Money and shall belong to Purchaser,
subject to Paragraph 12.
2. Purchase Price.
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The purchase price (the "Purchase Price") for the Property shall be
$18,100,000.00. Upon consummation of the Closing (as hereinafter defined), the
Earnest Money shall be paid to Seller and the balance of the $18,100,000.00
Purchase Price, plus or minus the credits, adjustments, and prorations set forth
in this Contract, shall be paid by Purchaser to Seller by wire transferred
current federal funds.
3. Closing.
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(a) The purchase and sale hereunder shall be closed on that date which
is thirty (30) days after the expiration of the Inspection Period at the offices
of Glass, McCullough, Sherrill & Harrold, LLP, 3414 Peachtree Road, N.E., Suite
450, Atlanta, Georgia 30326-1162, at 10:00 o'clock a.m. or on such earlier date
as designated by Purchaser ("Closing"). Notwithstanding the foregoing, Purchaser
may, at its sole option, elect to extend the date of Closing for an additional
thirty (30) days upon notice to Seller delivered prior to the original date set
for Closing, together with the payment to Escrow Agent of an additional
$100,000.00 Earnest Money deposit, which shall be held and disbursed in
accordance with Paragraph 1 above. At Closing, Seller shall pay State of Georgia
transfer taxes on the limited warranty deed. Purchaser shall pay its title
examination costs, title insurance premiums, surveyor's fees, the cost of
recording the limited warranty deed, its appraisal fees and engineering fees.
Seller and Purchaser shall each pay their respective attorneys' fees and escrow
fees shall be divided and paid equally by Seller and Purchaser. Ad valorem
taxes, rents, and all other items of income and expense in connection with the
operation of the Property, including, but not limited to, common area
maintenance charges, insurance premiums and utility charges shall be prorated
between Seller and Purchaser as of 12:00 midnight of the day immediately
preceding the day of Closing and shall be, as applicable, deducted from or added
to the Purchase Price payable to Seller at Closing. In the event that at the
time of Closing, the Property is subject to or affected by any special or
general assessments, then in such event, any amounts which are due and payable
on or before Closing shall be paid in full at Closing by Seller. Subject to the
foregoing, ad valorem taxes will be prorated at Closing on the basis of the most
recent tax bills, or, if available, based on the current year's valuation or
assessment and the last known millage rate, but if the actual taxes for the year
of Closing are more or less than the amount prorated, then, upon demand, such
taxes shall be re-prorated to reflect the actual amount of taxes due for the
calendar year in which the Closing occurs. Notwithstanding anything to the
contrary set forth in this subparagraph 3(a), Seller reserves the rights to (i)
meet with governmental officials and to contest any reassessment governing or
affecting Seller's obligation with respect to ad valorem property taxes paid by
or on behalf of Seller, and (ii) to contest any assessment of the Property or
any portion thereof and to attempt to obtain a refund for any taxes previously
paid. Seller shall retain all rights with respect to any refund of ad valorem
taxes applicable to any period prior to the date of Closing. In
addition to the prorations set forth above, should Seller receive any refund of
taxes, Seller agrees to re-prorate such taxes if any tenant at the Property
becomes entitled to a refund or additional rent credit for any period during
which Seller owned the Property pursuant to the terms of its lease. Purchaser
agrees to pay to Seller, upon receipt, any rents, percentage rent or other
payments by tenants under the tenant leases that are due to Seller for the
period prior to Closing but are received by Purchaser after Closing; provided
that, such tenant is current in the payment of its rent, percentage rent and
other charges and not otherwise in default of its lease. Purchaser shall
cooperate with Seller and shall use reasonable diligence to collect any
delinquent rent, percentage rent or other charges due by tenants under the
tenant leases for the period prior to Closing, but Purchaser shall not be
required to institute any action or proceeding to collect same or incur any
other cost or expense in connection therewith. Seller, at Seller's expense and
after notice to Purchaser, shall be entitled to institute an action against any
tenant for the recovery of delinquent rent, percentage rent or other charges due
to Seller. Purchaser shall receive at Closing a credit for Purchaser's pro rata
portion of the rents payable for the month of Closing, but which are received by
Seller prior to Closing. Percentage rent shall be prorated between Purchaser and
Seller upon receipt in the ratio of the number of months each owned the Property
to the total number of months for the percentage rent or overage year for each
tenant. Any percentage rent which is collected by Purchaser which pertains to
that portion of the lease year or the accounting period of a tenant for the
period prior to the Closing and ends thereafter shall be paid to Seller in the
month of receipt by Purchaser. Seller's portion shall be computed by multiplying
the annual percentage rent paid by tenant for its lease year or annual
accounting period that begins prior to the Closing and ends thereafter by a
fraction, the numerator of which fraction shall be the number of days from the
beginning of tenant's lease year or annual accounting period to the Closing and
the denominator of which fraction shall be the actual number of days in such
lease year or accounting period. Purchaser shall receive a credit at Closing in
an amount equal to all security deposits and escrow deposits, last month's rent
payments collected in advance, together with a list of same certified to by
Seller. Purchaser shall indemnify and hold Seller harmless from and against any
claim made or asserted by any tenant with respect to such credited sum. With
respect to tenant improvement costs and leasing commissions incurred by Seller
with respect to new leases or any modification, expansion, extension or renewal
of existing leases, at the Property entered into after the Effective Date but
prior to the Closing in compliance with the provisions of subparagraph 5(c) of
this Contract, such costs and commissions will be prorated between Seller and
Purchaser over the term of such lease with Seller being responsible for that
portion of such costs and commissions which is equal to the ratio of base rent
payments received from such tenant through the Closing to the total base rent
payable over the term of such lease, renewal, expansion, extension or
modification. Notwithstanding the preceding sentence, from and after the
Effective Date, Seller agrees not to renew, extend, expand or modify any
existing lease affecting the Property in effect as of the Effective Date, unless
such lease has a lease expiration date prior to February 1, 1997. In the event
the expiration of any such lease has an expiration date prior to February 1,
1997, Seller's extension, expansion, renewal or modification
thereof shall be governed by subparagraph 5(c). To the extent practicable,
Seller shall obtain final utility meter readings as of the day prior to Closing,
and Purchaser shall receive a credit at Closing for any of such bills unpaid as
of the date of Closing, prorated for the month of Closing, if applicable. Seller
shall deliver possession of the Property to Purchaser immediately upon Closing.
(b) At the Closing each party hereto shall execute and deliver all
documents necessary to effect and complete the Closing, including, but not
limited to, the following documents to be executed and delivered by Seller to
Purchaser:
(i) A limited warranty deed from Seller conveying good and
marketable fee-simple title to the Property, free and clear of all liens,
restrictions and encumbrances, other than the Permitted Title Exceptions
(as hereinafter defined). The legal description of the Property contained
in the limited warranty deed shall be that set forth on Exhibit A;
(ii) An owner's affidavit, which affidavit shall be in form and
substance satisfactory to said title insurance company and sufficient to
cause said title insurance company to issue an owner's title insurance
policy without exception for standard exceptions, including, but not
limited to, matters filed in the county property records prior to
recordation of the limited warranty deed, un-filed mechanics' liens and
broker liens arising under O.C.G.A. Sections 44-14-600, et. seq. and
stating that the Property is free from all claims to possession of the
Property except those claims arising under the leases set forth in the Rent
Roll (hereinafter defined);
(iii) An affidavit, in form and substance satisfactory to
Purchaser, stating Seller's U.S. taxpayer identification number, that
Seller and all persons holding beneficial interests in the Property are
"United States Persons," as defined by Internal Revenue Code (the "Code")
Section 1445 (f) (3) and Section 7701(g), and that the purchase of the
Property by Purchaser pursuant to this Agreement is not subject to the
withholding requirements of Section 1445 (a) of the Code;
(iv) Instruments reasonably satisfactory to Purchaser
reflecting the proper authority of Seller to consummate the transactions
contemplated by this Contract;
(v) An affidavit of gain and withholding in conformance with
the requirements of O.C.G.A. Section 48-7-128;
(vi) An assignment of leases ("Assignment of Leases") from
Seller conveying all right, title and interest of landlord in and to the
leases for those tenants set forth on the Rent Roll (as hereinafter
defined), excluding all those tenant leases which
shall terminate prior to Closing and including all those tenant leases
entered into by Seller (subject to Purchaser's approval to the extent
required under this Contract) from and after the date hereof, up to and
including the date of Closing;
(vii) An Indemnification Agreement providing that Seller shall
indemnify and hold Purchaser harmless with respect to any liability or
claims for personal injury and/or property damage, asserted by parties
other than Purchaser arising from events occurring on or about the Property
prior to Closing;
(viii) A bill of sale from Seller conveying all right, title and
interest of Seller in and to all equipment, personal property, and fixtures
owned by Seller and used in the operation of the Property;
(ix) A general assignment of all right, title and interest, if
any, of Seller in and to the name "Carrollton Crossroads Shopping Center";
all warranties and guaranties presently in effect with respect to the
Property, which are assignable; the service contracts set forth on Exhibit
"B" attached hereto and incorporated herein, and Seller shall indemnify and
hold Purchaser harmless with respect to all claims for Seller's non-
payment, if any, occurring under such contracts for the period prior to
Closing and Purchaser shall indemnify Seller with respect to all claims for
Purchaser's non-payment, if any, occurring under such contracts for the
period subsequent to Closing; all utility deposits, if any, to the extent
the same are assignable and so long as Seller receives a credit from
Purchaser for such deposits; all certificates of occupancy, operating
permits and approvals given or made by governmental authorities with
respect to the Property, if any, in the possession of Seller to the extent
assignable; and all building plans and specifications with regard to the
Property in the possession of Seller (the "Assignment of Contracts");
(x) An assignment of all right, title and interest of Seller
in and to all warranties, if any, presently in effect with respect to any
work performed in the construction, renovation or repair of the
improvements on the Property to the extent assignable, including, but not
limited to, the contracts set forth on Exhibit "D" attached hereto and
incorporated herein;
(xi) Subject to matters disclosed, if any, in the Tenant
Estoppel Certificates (as hereinafter defined), a certification by Seller,
updated to the date of Closing, as to the truth and accuracy of the
representations and warranties set forth in subparagraph 5(b) through (i)
and with respect to the information set forth on the Rent Roll, updated to
and including the date of Closing and an agreement by Seller to indemnify
and hold Purchaser harmless from and against any and all liabilities,
losses, costs, damages or expenses (including, but not limited to
reasonable attorney's fees)
arising from or in connection with the untruth or inaccuracy set forth in
such certification, provided however, that the indemnification to be
provided pursuant to this subparagraph 3(b)(xi) shall terminate upon the
earlier of: (i) six (6) months from and after Closing (provided, that
should Purchaser commence a legal action or proceeding against Seller prior
thereto, the indemnification obligations of Seller shall survive with
respect to the specific matters asserted in such action or proceeding), or
(ii) receipt by Purchaser, following Closing, of Tenant Estoppel
Certificates (as hereinafter defined) confirming the accuracy and truth of
the information set forth in the representations and warranties set forth
in Paragraph 5 and in the Rent Roll;
(xii) Notification to tenants and other person designated by
Purchaser of the change of ownership of the Property;
(xiii) A separate certification and Georgia Broker Lien Waiver
Affidavit from each of Seller, Equity Properties and Management Limited
Partnership ("Agent") and Broker (as hereinafter defined) that all leasing
commissions, brokerage fees, sales commissions or similar payments with
respect to the sale contemplated by this Contract and any tenant lease
affecting the Property as of the date of Closing, including, but not
limited to, any renewals or expansions with regard to such leases
(hereinafter referred to collectively as the "Leasing Commissions") have
been paid in full, except for the Equity Lease Commission, if any, payable
in accordance with subparagraph 5(c);
(xiv) A closing statement prepared by Seller setting forth the
prorations and disbursements to be made at Closing, which closing statement
shall be subject to verification and the reasonable approval of Purchaser
(the "Closing Statement"); and
(xv) Seller's federal tax identification number to enable
Purchaser to perform the duties and obligations of "reporting person" with
respect to the transaction contemplated by the Contract for purposes of 26
C.F.R. Section 1.6045-4(e)(5) relating to the requirements for information
reporting on a real estate transaction closed on or after January 1, 1991.
Seller also agrees to execute a transferor identification agreement with
respect to the transaction as contemplated by the Contract.
(xvi) Such other documents as may be reasonable and necessary to
consummate and close the purchase and sale contemplated herein pursuant to
the terms and provisions of this Contract, which documents shall be subject
to the reasonable approval of Seller and Purchaser.
At Closing, subject to the terms of this Contract, Purchaser shall deliver
(i) the Purchase Price, subject to the terms and provisions of Paragraph 2 of
this Contract; (ii) a counterpart of the following documents executed by
Purchaser: the Closing Statement, the Assignment of Leases and the Assignment of
Contracts; (iii) designation agreement accepting designation as the reporting
person with respect to the transaction as contemplated by the Contract; and (iv)
instruments reflecting the proper authority of Purchaser to consummate the
transactions contemplated by this Contract; and (vi) such other documents as may
be reasonable and necessary to consummate and close the purchase and sale
contemplated herein pursuant to the terms and provisions of this Contract, which
documents shall be subject to the reasonable approval of Seller and Purchaser.
4. Seller's Delivery of Documents.
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Unless delivered prior to or at the execution of this Contract, Seller
shall deliver or make available to Purchaser for Purchaser's review and
photocopying copies of the following documents and instruments as soon as
practical after the execution hereof, but in any event not more than ten (10)
days after the Effective Date and such other documents or information, from time
to time, reasonably requested by Purchaser:
(i) True, accurate and complete copies of all leases pertaining
to, or affecting, the Property, together with all modifications,
guaranties, and amendments (with any originals thereof under the control of
or in the possession of Seller to be delivered to Purchaser at Closing).
(ii) All Property reports, notices to and from tenants at the
Property, in the possession or control of Seller or Agent and tenant ledger
cards or similar documents showing payment history of all tenants at the
Property during 1995 and 1996 (year to date), if any, under the control of
or in the possession of Seller.
(iii) Any and all original municipal, county and state permits
or licenses necessary for the use or occupancy of the buildings on the
Property, if any, in Seller's possession or under Seller's control,
including without limitation, a copy of the final Certificate of Occupancy,
or its equivalent;
(iv) Copies of 1995 and 1996 (year to date) bills, invoices and
receipts related to the operation of the Property in Seller's possession
and control, including, but not limited to those related to parking lot and
lawn maintenance, electricity consumption, trash collection, sewage, water
and gas consumption, real estate taxes, assessments, payroll, building and
Property repairs, replacement improvements, additions and renovations;
(v) Any surveys, environmental reports, and title insurance
policies, and any engineering reports prepared by any party other than
Seller or its affiliates, if any, related to the Property in Seller's
possession or under Sellers' control;
(vi) With respect to any tenant lease affecting the Property,
all tenant notices and Seller's budgets and worksheets related to 1996 and
1997 real estate tax, insurance and common area maintenance tenant expense
"pass-throughs";
(vii) Copies of any and all service, management, supply,
maintenance, trash removal, utility and other similar contracts and
agreements which relate to or affect the Property;
(viii) Copies of all warranties and guaranties in effect and in
Seller's possession or control with respect to the Property or any
equipment on the Property;
(ix) A list of the names of all persons or entities to whom
Seller may be obligated to pay any leasing commission, brokerage fee or
similar payment in respect to any of the tenant leases affecting the
Property, or any portion thereof, (other than Agent) whether the same are
due prior to Closing or are to become due after Closing, together with
copies of any and all agreements related to same;
(x) A list of all employees and their positions, salaries,
wages and benefits, duties and responsibilities, performing work solely
with respect to the Property;
(xi) Operating statements for the Property for the years 1994,
1995 and 1996 (year to date) and sales reports for all tenants of the
Property since January 1, 1994.
The obligations of Seller under this Paragraph 4 shall not survive
Closing.
5. Warranties and Representations.
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Seller does hereby warrant and represent that:
(a) Title. That Seller owns good and marketable fee-simple title to
the Property free and clear of all liens, restrictions and encumbrances, except
for those matters set forth on Exhibit "C" attached hereto and incorporated
herein (the "Existing Title Exceptions") and the tenancies set forth on the Rent
Roll;
(b) Actions. That there is no action, suit or proceeding pending, or
to the knowledge of Seller, threatened in writing against Seller, Agent or the
Property or the operation thereof, either directly or indirectly;
(c) Tenancies. That the rent roll, attached hereto and incorporated
herein as Exhibit "E" ("Rent Roll"), accurately sets forth all tenants and/or
occupants presently, with the rights to, or in possession of, the Property and
that all the information set forth therein is true and correct and the leases
for the tenant's described therein are in full force and effect; that Seller
shall take no action by act or omission, that would result in a default by
Seller under or a termination of any of said leases or occupancy agreements;
that each of such occupants and tenants have accepted possession of its
respective demised premises, and has commenced payment of rent in accordance
with the terms of its respective lease or occupancy agreement; that, to the
knowledge of Seller, that there are in existence no promissory notes or other
documents or instruments evidencing an obligation on the part of any tenant or
occupant in the Property to pay rentals or other sums due under any of said
tenant leases or occupancy agreements; that, to the knowledge of Seller, there
are no monetary defaults of any nature and no non-monetary defaults of a
material nature on the part of the tenant or landlord under any of the tenant
leases or occupancy agreements affecting the Property; that there are no rentals
prepaid by more than thirty (30) days, security deposits, rent concessions or
other concessions in connection with any of said tenant leases or occupancy
agreements, except as specifically set forth on the Rent Roll; that, to the
knowledge of Seller, all alterations, installations, decorations and other work
required to be performed by the landlord, as of the Effective Date and re-
acknowledged as of the date of Closing, under the provision of any tenant lease
or occupancy agreement have been completed and fully paid; that Seller has not
and will not collect any of the rents of other sums arising or accruing under
any of said tenant leases, occupancy agreements or any new leases entered into
by Seller, more than thirty (30) days in advance of the time when they shall
become due; that there are no proceedings pending before any court or agency to
which Seller or the Property is a party affecting any of the tenant leases or
occupancy agreements; that Seller has not given or suffered any assignment,
pledge, or encumbrance in respect to any of the tenant leases or occupancy
agreements or its interests thereunder; that Seller has received no written
notice, from any tenant or occupant listed on the Rent Roll alleging that any
provision in its lease violates any other lease or any restrictive covenant or
governmental requirement affecting the Property; that any allowances required to
be paid by Seller on or prior to Closing to any tenant set forth on the Rent
Roll (as updated) shall be paid by Seller in full on or before the date of
Closing; that, except for the tenants listed on the Rent Roll, the Property is
not subject to any lease, and that, from and after the expiration of the
Inspection Period and so long as this Contract remains in force, Seller will
not, without the prior written consent of Purchaser, such consent not to be
unreasonably withheld, lease or convey all or any portion of the Property, or
enter into any agreement granting to any person any right in respect to the
Property, or any portion thereof, or alter, amend or modify the terms of said
existing tenant leases or occupancy
agreements in any manner or respect whatsoever; that prior to the expiration of
the Inspection Period, Seller shall be permitted to lease portions of the
Property or alter, amend, or modify the terms of existing tenant leases;
provided that, Purchaser shall have a minimum of five (5) business days from
actual receipt (notwithstanding the second sentence of Paragraph 13) of such new
lease, amendment or modification to review same and the Inspection Period shall
be extended, if necessary, to give Purchaser such full five (5) business day
period to examine same and so as to permit Purchaser to cancel this Contract in
the event Purchaser is dissatisfied with such lease, amendment or modification,
in Purchaser's sole discretion, with failure to so notify Seller of Purchaser's
election being deemed to be acceptance of such lease, amendment or modification;
that all leases relative to the tenants listed on the Rent Roll are assignable
by Seller without the consent of any other party; that there exists as of the
Effective Date, and at Closing will exist, no unpaid broker's or leasing
commissions (including commissions of Agent) and no agreements for Leasing
Commissions under any tenant leases or occupancy agreements related to or
affecting the Property, except as set forth in subparagraph 3(a) above and
further except Purchaser shall be required to pay to Agent a leasing commission
(the "Equity Lease Commission") with respect to the execution of any new lease,
the renewal of the term of any existing lease, or the expansion or relocation of
the leased premises under any existing lease, so long as (i) such new lease,
lease expansion, renewal or relocation is entered into by Purchaser within the
first ninety (90) days after the Closing, (ii) such agreement is not entered
into pursuant to the exercise of an option or right granted to such tenant under
the terms of any lease existing as of the Closing and (iii) the applicable
tenant has either delivered to Purchaser and Seller or Agent a "lease
application" prior to Closing (each such applicable transaction being referred
to herein as a "Commission Transaction"). The Equity Lease Commission on any
Commission Transaction shall be calculated as follows:
Commission Equity Lease Commission
Transaction: Per Square Foot:
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New Leases $5.00
Renewals $2.50
Expansion/Relocation $3.75
(d) Contracts. That, except as specifically set forth on Exhibit "B"
attached hereto and incorporated herein, there are no service, supply, utility,
management or other agreements which in any manner affect or otherwise relate to
the Property ("Service Agreements"), and that true, correct and complete copies
of each of the contracts or agreements set forth in the attached Exhibit "B" are
attached hereto (with any originals thereof under the control of or in the
possession of Seller to be delivered to Purchaser at Closing); that Seller shall
not enter into any new Service Agreements or modify any existing Service
Agreement, without the consent of Purchaser, which consent shall not be
unreasonably withheld;
(e) Improvements. Except as disclosed to Purchaser on attached Exhibit
"F" (which is incorporated herein by this reference), Seller has not received
any written notice from any governmental department or authority that the
Property and the use of the Property does not comply with any code, ordinance,
law, rule and regulation of any governmental authorities having jurisdiction
over, and with all private restrictions, if any, affecting the Property; that
Seller has received no written notice from any governmental department or
authority of any alleged violation related to or affecting the Property of any
of codes, ordinances, laws, rules, regulations or private restrictions and
Seller shall promptly deliver any such written notice, whether received prior to
or after Closing, to Purchaser; that Seller has not received any written notice
from any governmental department or authority that the Property is not properly
zoned for its present use or is not in compliance with all applicable zoning
ordinances, restrictions, easements, limitations or conditions of any sort
whatsoever affecting the use of the Property not referred to herein; that Seller
has not received any written notice from any insurance company of any defects or
any inadequacies in connection with the Property or the operation of same; that
Seller has not received any written notice from any governmental entity that the
Property is not in compliance with applicable governmental laws and authorities
because any necessary certificate of occupancy or its equivalent has not been
issued and/or such certificates are not currently in effect with respect to all
improvements located on the Property; that Seller has not received any written
notice that the current use of the Property is not in conformity with all such
certificates of occupancy; that Seller has not done, and that Seller will not
between now and the date of Closing take any action which would cancel,
terminate, reduce or interfere with the validity, effectiveness or good standing
of any existing warranties or guaranties on the structures, improvements and
equipment constituting the Property; and that Seller will provide to Purchaser
copies of any written notices received regarding the matters set forth in this
subparagraph prior to Closing;
(f) Operation Prior to Closing. That, at all times prior to Closing,
Seller shall continue to conduct business with respect to the Property in
conformity with Seller's prior business practices at the Property; that,
following the expiration of the Inspection Period, Seller shall not, without the
prior consent of Purchaser, which consent shall not be unreasonably withheld,
enter into any lease, lease amendments, contract, Service Contract, without the
consent of Purchaser, which consent shall not be unreasonably withheld; and,
that following the date hereof and continuing until the expiration or
termination of this Contract, Seller shall not make any change in or
acceleration of its normal and ordinary course of business at the Property, make
any material change in its normal and customary advertising, promotional or
maintenance practices at the Property; and that Seller will take, or cause to be
taken, all commercially reasonable actions necessary to cause each of the
foregoing warranties and representations to remain true and correct in all
respects from the date hereof to the date of Closing and will refrain from
taking any action which would cause any of such warranties and representations
to become
incorrect or untrue at any time during such period, unless this Contract
contemplates the taking of such action and the consequent modification of
certain warranties or representations.
(g) Seller's Authority and Tax Status. That Seller has full right,
power and authority to enter into this Contract and consummate the transactions
contemplated hereby and will deliver satisfactory evidence of such in accordance
with this Contract. That Seller and all persons or entities having beneficial
interests in the Property are "United States Persons," as defined in Internal
Revenue Code (the "Code") Section 1445(f)(3) and Section 7701(g), and that the
purchase of the Property by Purchaser as contemplated herein will not be subject
to the withholding requirements of either Section 1445(a) of the Code;
(h) No Default. The execution and performance of this Contract and the
consummation of the transactions contemplated hereby will not result in any
breach or violation of any of the terms or provisions of, or constitute a
material default under any indenture, mortgage, note or other agreement or
instrument to which either the Seller or by which the Seller is bound; and any
note or obligation to pay any sums secured by a mortgage, deed to secure debt,
or other encumbrance on the Property shall be satisfied at Closing by Seller at
Seller's sole cost without penalty or cost to Purchaser and any such mortgage,
deed to secure debt or other encumbrance shall be marked satisfied of record as
of Closing; and
(i) Parking Lot. That Seller has paid the full contract price with
regard to that certain Construction Service Agreement between Wendell Ethridge
(d/b/a Wendell Ethridge Construction) ("Ethridge") and Agent, dated October 15,
1996, and to the knowledge of Seller, all work performed by Ethridge pursuant to
such contract has been satisfactorily completed.
For purposes of the foregoing warranties and representations, when any
statement is made to "Seller's knowledge" or to the "knowledge of Seller", such
phrase shall mean the actual knowledge of Jeff Aronoff, Asset Manager of Agent
and Vicki Bone, Regional Director of Property Management for Agent, and shall
exclude the knowledge of any other person or entity. The foregoing warranties
and representations shall not be affected by any investigation or verification
by any party hereto or by anyone on behalf of any party hereto and (i) except as
otherwise provided in the limited warranty deed delivered to Purchaser pursuant
to subparagraph 3(a)(i) of this Contract, the representations and warranties set
forth in subsection (a) above shall not survive Closing; and (ii) the remaining
representations and warranties set forth above shall not merge into the Contract
at Closing, but shall survive the Closing (subject to the limitations set forth
in subparagraph 3(b)(xi)) for a period of six (6) months; provided that, if
Purchaser shall have commenced a legal action or proceeding against Seller
during such six (6) month period, the applicable representations and/or warranty
shall survive with respect to the specific matters asserted in such action or
proceeding. The foregoing warranties shall be reaffirmed in writing by Seller at
and as of the Closing, subject to the limitations set forth herein.
ACKNOWLEDGING PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY, EXCEPT AS
OTHERWISE SET FORTH IN THIS CONTRACT, PURCHASER AGREES TO TAKE THE PROPERTY "AS
IS" WITH ALL FAULTS AND CONDITIONS THEREON. EXCEPT AS OTHERWISE SET FORTH IN
THIS CONTRACT, ANY INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS
("DISCLOSURES") PROVIDED OR MADE TO PURCHASER OR ITS CONSTITUENTS BY SELLER, ITS
AGENTS OR EMPLOYEES CONCERNING THE ENVIRONMENTAL CONDITION OF THE PROPERTY SHALL
NOT BE REPRESENTATIONS OR WARRANTIES. EXCEPT AS OTHERWISE SET FORTH IN THIS
CONTRACT, PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT RATHER, PURCHASER
SHALL RELY ON ITS OWN INSPECTION OF THE PROPERTY. EXCEPT AS OTHERWISE SET FORTH
IN THIS CONTRACT, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE,
DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE ENVIRONMENTAL CONDITION
OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B)
THE FUTURE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON
OR (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS,
RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR
BODY, AND EXCEPT AS OTHERWISE SET FORTH IN THIS CONTRACT SELLER SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE
U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED AND REGULATIONS PROMULGATED
THEREUNDER. EXCEPT AS OTHERWISE SET FORTH IN THIS CONTRACT, PURCHASER, ITS
SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE NOT TO MAKE ANY CLAIM OR
BRING ANY COST RECOVERY ACTION OR CLAIM FOR CONTRIBUTION OR OTHER ACTION OR
CLAIM AGAINST SELLER OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
ATTORNEYS, OR ASSIGNS (COLLECTIVELY, "SELLER AND ITS AFFILIATES") BASED ON (A)
ANY FEDERAL, STATE, OR LOCAL ENVIRONMENTAL LAW OR REGULATION, INCLUDING CERCLA
OR ANY STATE EQUIVALENT, OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED,
(B) ANY DISCHARGE, DISPOSAL, RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY
HAZARDOUS MATERIAL WHATSOEVER, ON, AT, TO, OR FROM THE PROPERTY, OR (C) ANY
ENVIRONMENTAL CONDITIONS WHATSOEVER ON, UNDER, OR IN THE VICINITY OF THE
PROPERTY.
6. Title Objections.
----------------
(a) To and including that day which is thirty (30) days following the
Effective Date (the "Initial Examination Period"), Purchaser may examine title
to the Property and obtain a commitment for title insurance (the "Title
Commitment") and notify Seller of any encumbrances, exceptions or matters
appearing on the Title Commitment rendering title unmarketable as of the date
thereof, other than the Existing Title Exceptions, and Purchaser shall
provide a copy of the Title Commitment to Seller within a reasonable period of
time after receipt thereof by Purchaser. Following the Effective Date, Seller
agrees not to further voluntarily encumber the Property without the prior
written consent of Purchaser, which consent shall not be unreasonably withheld.
For purposes of this Contract, the marketability of title to the Property shall
be determined under Georgia law, as supplemented by the title standards of the
State Bar of Georgia. If Purchaser fails to notify Seller of any objections,
other than the Existing Title Exceptions, to the marketability of title
disclosed by the Title Commitment prior to the end of the Initial Examination
Period, Purchaser shall be deemed to have accepted the state of title as of the
date of this Contract, subject to subparagraph 6(b) hereof. Notwithstanding the
preceding sentence, Seller agrees to pay, discharge and cause to be canceled of
record prior to Closing any security deed, mortgage or related loan documents
entered into by Seller (or otherwise satisfy Purchaser's title insurance company
so that such title insurance company will eliminate same as an exception to
Purchaser's Owner's Title Insurance Policy). Seller also agrees to cause
Purchaser's title insurance company to insure or endorse over any judgments for
monetary damages or material or mechanic liens, but only to the extent that such
title insurance company is willing to insure or endorse over any and all such
judgments and liens based solely on Seller's entering into a title indemnity
agreement with such title company where Seller's liability thereunder is
expressly limited to no more than $100,000 in the aggregate, escrowed with such
title company. If Seller does not correct any of Purchaser's objections within
fifteen (15) business days from receipt of such notice and in the manner set
forth above or notify Purchaser, within such time period, that such objections
will be cured at the Closing and so cure same by or at Closing, then, at the
option of Purchaser, evidenced by written notice to Seller given within five (5)
days after the expiration of said period or failure to cure, Purchaser shall:
(i) waive Purchaser's objection and purchase the Property (or
such portion thereof or interest therein as Seller is able to convey),
without any reduction in the Purchase Price;
(ii) decline to purchase the Property and receive the return of
the Earnest Money, as Purchaser's sole and exclusive remedy hereunder; or
(iii) seek specific performance in order to require Seller to
completely fulfill its obligations under this Contract; provided, that,
such action is brought within forty-five (45) days from the expiration date
by which such failure, default, or breach should have been cured.
(b) After the Initial Examination Period but prior to the Closing,
Purchaser may from time to time make additional examinations of Seller's title
to the Property and notify Seller of any objections to the marketability of
Seller's title arising from and after the effective date of the Title
Commitment. If Seller fails to cure any of such objections of Purchaser, then at
the
option of the Purchaser, Purchaser shall have its choice of the elections
provided in subparagraph 6(a) with respect to the initial examination; provided,
however, if any such subsequent objection to the marketability of Seller's title
arose or was created in breach of Seller's agreements under subparagraph 6(a)
hereof, then Purchaser may seek specific performance of this Contract against
Seller.
(c) As used in this Contract, the term "Permitted Title Exceptions" shall
refer to the Existing Title Exceptions and to those title objections or
exceptions affecting the marketability of title to the Property and which (i)
were not objected to by Purchaser within the time provided in subparagraph 6(a)
hereof, or (ii) were waived by Purchaser pursuant to subparagraph 6(a)(i)
hereof, or (iii) were waived by Purchaser pursuant to subparagraph 6(b) hereof.
7. Survey.
------
Until the end of the Initial Examination Period, Purchaser, at
Purchaser's expense, shall have the right to have boundary and topographical
surveys of the Property prepared by a surveyor satisfactory to Purchaser and to
the specifications and requirements of Purchaser (the "Survey") and to object to
any matter affecting the Property disclosed by the Survey by providing notice of
such objections and a copy of the Survey to Seller. If Purchaser notifies Seller
of any objections based on the Survey, Seller shall be permitted to correct any
such objections within ten (10) days of receipt of such notice. If Seller does
not correct such objections within ten (10) days of receipt of such notice or
warrant and covenant to Purchaser [within said ten (10) day period] that such
objections will be cured at the Closing and so cure same at Closing, then, at
the option of Purchaser, evidenced by written notice to Seller given within five
(5) days after the expiration of said period or failure, Purchaser shall:
(i) waive Purchaser's objection and purchase the Property (or
such portion thereof or interest therein as Seller is about to convey),
without any reduction in the Purchase Price;
(ii) decline to purchase the Property; or
(iii) seek specific performance in order to require Seller to
completely fulfill its obligations under this Contract; provided, that,
such action is brought within forty-five (45) days from the expiration date
by which such failure, default or breach should have been cured.
In the event that such survey discloses a legal description of the Property
which differs from that described in Exhibit A hereto, Seller shall at the
request of Purchaser, execute, seal, and deliver at Closing a quitclaim deed in
recordable form conveying the Property as
described by said survey. From and after the Effective Date, Seller covenants
and agrees not to voluntarily cause an encroachment upon the Property or upon
any adjoining property.
8. Inspection.
----------
(a) During the term of this Contract, Purchaser and its agents,
engineers, surveyors, appraisers, engineers and other representatives shall have
the right, during normal business hours and with twenty-four (24) hours
telephonic notice to Seller via Jeff Aronoff at (312) 466-3694 (after first
giving notice within business hours), to enter upon the Property to inspect,
examine, survey, obtain engineering inspections, soil samples and borings,
appraise, and otherwise do that which, in the opinion of Purchaser, is necessary
to determine the boundaries, acreage and condition of the Property for the uses
intended by Purchaser. Provided however, Purchaser must obtain the consent of
Seller via Jeff Aronoff at the above number prior to obtaining soil samples and
borings, which consent shall not be unreasonably withheld. Purchaser agrees to
use commercially reasonable efforts to minimize any disturbance to the tenants
at the Property caused by its presence. Purchaser shall indemnify and hold
Seller harmless from any loss, cost, damage or claim caused by Purchaser's
foregoing tests, surveys and inspections.
(b) Seller agrees to make all of Seller's books, files and records
(other than Seller's confidential analyses and forecasts) relating in any way to
the Property available for examination by Purchaser and Purchaser's agents and
representatives, who shall have the right to make copies of such books, files
and records and to extract therefrom such information as they may desire.
(c) Seller acknowledges that, as of the date hereof, Purchaser has not
completed Purchaser's inspection of the Property and the books and records
pertaining thereto, the title encumbrances affecting the Property and certain
other matters pertaining to the Property, and, accordingly, does hereby grant to
Purchaser the right to terminate this Contract for any reason whatsoever, at any
time on or before forty-five (45) days after the Effective Date, as the same may
be extended pursuant to subparagraph 5(c) (the "Inspection Period"), by
delivering written notice of such termination to Seller and Escrow Agent. In the
event of such termination, Escrow Agent shall immediately return the Earnest
Money to Purchaser, less $100.00 which shall be paid to Seller in consideration
of Seller's entering into this Contract and shall make this Contract binding on
Seller even if certain provisions hereof are not binding on Purchaser or are to
be performed within the Purchaser's control or discretion, whereupon no party
hereto shall have any further rights, liabilities or obligations hereunder.
Seller and Purchaser hereby expressly acknowledge and agree that nothing
contained in this subparagraph 8(c) shall limit, restrict or otherwise affect
Seller's warranties, representations and covenants contained elsewhere in this
Contract, or any of the rights or remedies provided to Purchaser in this
Contract.
9. Casualty and Condemnation.
-------------------------
(a) If the Property, or any portion thereof, is damaged, destroyed
or rendered inoperable by casualty prior to the Closing, then, at the option of
Purchaser, (i) this Contract shall terminate and the Earnest Money shall
immediately be returned to Purchaser, and whereupon no party hereto shall have
any further rights, liabilities or obligations hereunder, or (ii) this Contract
shall remain in full force and effect, and Seller, at the time of Closing
hereunder, shall transfer and assign to Purchaser all of Seller's right, title
and interest in and to any insurance proceeds received or to be received by
reason of such damage or destruction, said option to be exercisable by Purchaser
by delivering to Seller written notice of such exercise on or before the
fifteenth (15th) day following the date on which Purchaser receives from Seller
written notice of such damage or destruction, but in no event later than the
date of Closing hereunder. If Purchaser fails to exercise said option within
said fifteen (15) day period, then, Purchaser shall be deemed to have elected
the alternative set forth in subparagraph 9(a)(ii), above. Notwithstanding the
preceding provisions of this subparagraph 9(a), if the repair costs of such
casualty damage is less than the $500,000.00, this Contract shall remain in full
force and effect, and Purchaser shall be obligated to proceed, subject to the
other terms of this Contract, with the purchase of the Property, without a
reduction of the Purchase Price; provided, Purchaser is reimbursed by Seller at
Closing for the full amount necessary to repair and replace such damage.
(b) If, at any time prior to the Closing hereunder, any action or
proceeding is filed or threatened, under which the Property, or any portion
thereof, may be taken pursuant to any law, ordinance or regulation or by
condemnation or the right of eminent domain, then, at the option of Purchaser
(i) this Contract shall terminate and the Earnest Money shall immediately be
returned to Purchaser, and no party hereto shall have any further rights,
liabilities or obligations hereunder, or (ii) this Contract shall remain in full
force and effect, and Seller, at the time of Closing hereunder, shall transfer
and assign to Purchaser all of Seller's right, title and interest in and to any
proceeds received or which may be received by reason of such taking, or a sale
in lieu thereof, said option to be exercisable by Purchaser by delivering to
Seller written notice of such exercise on or before the fifteenth (15th) day
following the date on which Purchaser receives from Seller written notice that
such suit has been filed or is threatened, but in no event later than the date
of Closing hereunder. If Purchaser fails to exercise said option within said
fifteen (15) day period, then, Purchaser shall be deemed to have elected the
alternative set forth in subparagraph 9(b)(ii), above.
10. Conditions to Closing.
---------------------
(a) Notwithstanding anything contained herein to the contrary, the
obligations of Purchaser hereunder are expressly made subject to the following:
(i) The truth and accuracy, as of the date of this Contract and
as of the date of Closing hereunder, of each and every warranty or
representation made herein by Seller and the fulfillment by Seller of each
and every covenant and agreement of Seller pursuant to or arising under
this Contract; and
(ii) The delivery by Seller to Purchaser, on or before the date
of Closing, of the documents described in subparagraphs 3(b)(i) through
(xiii), all properly completed and executed in form acceptable to
Purchaser; and
(iii) As of the Closing, Buyer must be able to obtain an Owner's
Policy of Title Insurance, ALTA Form 1990, issued by Old Republic National
Title Insurance Company, insuring Purchaser's interest in the Property in
the full amount of the Purchase Price, subject only to the Permitted
Exceptions, obtainable by Purchaser pursuant to the Title Commitment at no
greater than standard rates, without the "standard" exceptions and without
any requirement for any indemnification or other non-standard undertaking
on the part of Purchaser or any other person or entity; and
(iv) The delivery by Seller to Purchaser, on or before five (5)
days prior to the date of Closing, of Tenant Estoppel Certificates
executed and delivered by each of the tenants of the Property substantially
in the form of Exhibit "G" attached hereto and incorporated herein ("Tenant
Estoppel Certificate"); said Tenant Estoppel Certificates shall be dated
within thirty (30) days prior to the date of Closing, but in no event prior
to the first (1st) day of the month of Closing hereunder; in the event a
tenant lease is guaranteed, the "Guarantor" portion of such Tenant Estoppel
Certificate shall be signed by such guarantor, reaffirming that its
guaranty remains in full force and effect. For purposes of this
subparagraph, a Tenant Estoppel Certificate or Landlord Estoppel
Certificate (hereinafter defined) may be deemed unacceptable by Purchaser
if the tenant is unable to affirmatively certify the representations set
forth in the Tenant Estoppel Certificate or if such certificate sets forth
the existence of a default under any tenant lease by either the tenant
(other than a default by a tenant which is solely limited to the non-
payment of rent not caused in whole or in part by any act or omission by
Landlord) or the landlord or alleges the non-performance by the landlord of
any obligation to the tenant under its lease, or if such certificate is not
in conformity with the information set forth in the Rent Roll; provided,
that, the inability to confirm the statements set forth in Section 6 of
Exhibit "G" shall not render such Tenant Estoppel Certificate unacceptable.
Subject to Seller obtaining Tenant Estoppel Certificates from the Major
Tenants (as hereinafter defined), if Seller is unable to obtain Tenant
Estoppel Certificates from one hundred percent (100%) of the remaining
tenants and guarantors (exclusive of the Major Tenants) which satisfy the
requirements of this subparagraph, but is able to obtain Tenant Estoppel
Certificates from tenants representing eighty percent (80%) of the rentable
and occupied square footage at the Property, in addition to Tenant Estoppel
Certificates from the Major Tenants, then Seller shall deliver a landlord
estoppel certificate ("Landlord Estoppel Certificate") in form and
substance reasonably satisfactory to Purchaser confirming the accuracy of
the information set forth in the Rent Roll and addressing the matters set
forth in said Exhibit "G" with respect to such remaining tenants as well as
for the Major Tenants for which Tenant Estoppel Certificates have not been
provided (subject to Purchaser's waiver of such Major Tenant, Tenant
Estoppel Certificate requirement, in Purchaser's sole and absolute
discretion), in which event the Tenant Estoppel Certificate requirement of
such tenant or occupant shall be deemed to have been satisfied; provided
however, that notwithstanding anything stated in the foregoing to the
contrary, it shall be a condition of Closing (subject to Purchaser's waiver
of such requirement in its sole and absolute discretion) that Seller
deliver a Tenant Estoppel Certificate executed by each of the following
major tenants: Wal-Mart, J.C. Penney, Kroger, Goody's, Cato Fashions,
Famous Footwear, Its Fashions, Maurices, Valentionos and Sun Trust Bank
(the "Major Tenants"). If Seller delivers a Landlord Estoppel Certificate
with respect to any tenant or guarantor which it is permitted to do so for
under this subsection, Seller shall indemnify and hold Purchaser harmless
from an inaccuracy stated therein or any breach under such lease by
landlord or tenant, which indemnification shall survive the Closing until
the earlier of (i) six (6) months after the Closing, except that such
indemnification obligations shall survive with respect to the subject
matter of any legal action or proceeding brought by Purchaser against
Seller for such inaccuracy or breach within six (6) months from the date of
Closing, or (ii) as otherwise provided in the following sentence. If a
Tenant Estoppel Certificate is delivered to Purchaser after the Closing
meeting the requirements of this subsection or should Purchaser enter into
a written lease modification executed by Seller and such tenant, the
Landlord Estoppel Certificate delivered with respect to such tenant shall
automatically be deemed null and void and Purchaser shall return the same
to Seller. Seller shall complete the information on the Tenant Estoppel
Certificates (i.e., name, address, premises description, etc.) and
circulate same to all the tenants at the Property. Seller shall be
permitted after Closing to continue to deal with any such tenant or
guarantor who has not delivered a Tenant Estoppel Certificate to attempt to
obtain such a certificate from such tenant, and Purchaser shall reasonably
cooperate with Seller in such attempt, at no cost to Purchaser.
The foregoing conditions (a)(i) through (iv) set forth immediately above
must be met without exception, reservation, or allegation or claim of default or
incomplete performance of an obligation to be performed, and are imposed solely
for the benefit of Purchaser, and Purchaser shall have the right to waive any of
said conditions by written notice of said waiver to Seller.
11. Brokerage.
---------
Purchaser and Seller each represent and warrant to the other that they
have dealt with no brokers other than Ben Carter Associates ("Broker"). Seller
shall pay Broker a real estate commission with regard to the sale contemplated
herein, in the event such sale closes, pursuant to a separate commission
agreement, and Seller does hereby indemnify and agree to hold Purchaser harmless
from and against any and all causes, claims, demands, losses, liabilities, fees,
commissions, settlements, judgments, damages, expenses and fees (including
attorneys' fees and court costs) in connection with any claim for commissions,
fees, compensation or other charges relating in any way to this transaction, or
the consummation thereof, which may be made by any person, firm or entity,
including, but not limited to, Broker, as the result of any of Seller's acts or
the acts of Seller's representatives. Purchaser does hereby indemnify and agree
to hold Seller harmless from and against any and all causes, claims, demands,
losses, liabilities, fees, commissions, settlements, judgments, damages,
expenses and fees (including attorneys' fees and court costs) in connection with
any claim for commissions, fees, compensation or other charges relating in any
way to this transaction, or the consummation thereof, which may be made by any
person, firm, or entity (other than Broker) as the result of any of Purchaser's
acts or the acts of Purchaser's representatives.
12. Application of Earnest Money and Remedies.
-----------------------------------------
(a) Upon the Closing of the purchase and sale hereunder, the Earnest
Money shall be paid by Escrow Agent to Seller and applied to and credited
against the Purchase Price.
(b) If the purchase and sale contemplated under this Contract is not
closed (i) by reason of Seller's default hereunder, or (ii) because any warranty
or representation made herein by Seller proves untrue and is not waived by
Purchaser, then, Purchaser shall be entitled to elect either (w) to decline the
Property and receive the return of the Earnest Money as Purchaser's sole and
exclusive remedy hereunder, or (x) seek specific performance of this Contract by
Seller; provided, that, such action is commenced within the later of forty-five
(45) days from: (y) the date originally set for Closing, or (z) if the Closing
is extended pursuant to subparagraph 3(a), such date of Closing, as so extended.
(c) If the purchase and sale contemplated under this Contract is not
closed by reason of Purchaser's default hereunder, then, as full liquidated
damages for such default by
Purchaser, Escrow Agent shall immediately pay the Earnest Money to Seller
pursuant to the procedures set forth in the escrow letter entered into by the
parties under Paragraph 1 of the Contract, whereupon no party hereto shall have
any further rights, liabilities or obligations under this Contract, it being
specifically understood and agreed that payment of the Earnest Money to Seller,
as liquidated damages, shall be Seller's sole and exclusive remedy hereunder,
Seller hereby specifically waiving and relinquishing any and all other remedies
at law or in equity. The retention of the Earnest Money by Seller is the
parties' best estimate of the damages suffered by Seller as a result of
Purchaser's breach of this Contract and is not a penalty.
(d) Subject to the limitation set forth in subparagraph 10(a)(iv) with
regard to Landlord Estoppel Certificates, if the purchase and sale contemplated
under this Contract is closed, Purchaser shall have the right to avail itself of
any and all remedies in law or equity under the laws of the State of Georgia for
any breach or default by Seller of this Contract; provided, that, with respect
to any inaccurate representation or warranty given Seller in subparagraph 5(b)
through (i), such action for inaccurate representation or warranty must be
commenced within six (6) months after the date of Closing.
13. Notices.
-------
All notices and elections permitted or required to be made under this
Contract shall be in writing, signed by the party giving such notice or election
and shall be delivered personally, or sent by courier service (such as Federal
Express) or registered or certified mail to the other party hereto. The earlier
of the date of personal delivery or the date of mailing or delivery to a courier
service shall be the date of such notice or election. It is hereby expressly
understood and agreed that in the event any date on which notice is required to
be made hereunder falls on a Saturday, Sunday or federal holiday, then the date
on which such notice or election is required to be given or made hereunder shall
for all purposes, be deemed to be the next business day.
The address of Purchaser is:
Buford Highway
Atlanta, Georgia 30340
Attention: Jack N. Halpern, President
With a copy to:
Chester G. Rosenberg
Glass, McCullough, Sherrill & Harrold, LLP
Peachtree Road, N.E.
Suite 450
Atlanta, Georgia 30326-1162
The address of Seller is:
c/o Equity Properties and Development Limited Partnership
Suite 1000
Two North Riverside Plaza
Chicago, Illinois 60606
Attention: George C. Touras, General Counsel
With a copy to:
Rosenberg & Liebentritt, P.C.
Suite 1515
Two North Riverside Plaza
Chicago, Illinois 60606
Attention: Ira Chaplik
14. Miscellaneous.
-------------
This Contract shall be binding upon and shall inure to the benefit of
Seller and Purchaser, their respective successors, successors-in-title, legal
representatives and heirs, and with respect to assigns, to the extent permitted
hereunder. This Contract shall be construed and enforced in accordance with the
laws of the State of Georgia. If any provision hereof is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of any other provision hereof. This Contract contains the
entire agreement of the parties hereto concerning the subject matter hereof, and
no representations, inducements, promises or agreements, oral or otherwise, not
expressly set forth herein shall be of any force or effect. This Contract may
not be modified except by written modification, executed by all parties hereto.
Purchaser shall have the right to assign this Contract, or any interest herein,
to any affiliate, or pursuant to Paragraph 15 of this Contract without the prior
written consent of Seller. In the event of any such assignment and the
assumption by such assignee of Purchaser's obligations under this Contract,
Seller shall thereafter look solely to such assignee for the performance of all
obligations imposed upon Purchaser under this Contract; provided, however, that
Seller can look to Purchaser for any claims connected to the indemnification
provided by Purchaser under subparagraph 8(a) of this Contract. Notwithstanding
anything to the contrary contained in this Contract, and without in any manner
whatsoever affecting Purchaser's rights hereunder, in the event Seller fails to
perform any covenant or obligation of Seller hereunder within the time permitted
or required for such performance, Purchaser may, in its sole discretion
and upon written notice to Seller, extend the time for performance by Purchaser
of any or all of its covenants or obligations hereunder, including, without
limitation, the date by which Purchaser is required or permitted to give any
notice to Seller; provided, however, that no such extension shall exceed the
number of days that Seller has delayed performance of its covenants and
obligations hereunder. All titles or captions of the paragraphs set forth in
this Contract are inserted only as a matter of convenience and for reference and
in no way define, limit, extend or describe the scope of this Contract, or the
intent of any provision hereof. Time is of the essence of this Contract. Neither
party hereto shall disclose the terms and conditions of this Contract to any
other party without the written consent of the other, except to those parties
acting in a fiduciary capacity (i.e., legal representatives, financial
institutions, authorized agents, partners, shareholders directors, officers,
etc.).
15. Like-Kind Exchange.
------------------
Seller acknowledges that Purchaser may transfer the Property or assign
this Contract to a third-party as part of a "like-kind exchange" pursuant to (S)
1031 of the Internal Revenue Code of 1986, as amended, and that Purchaser shall
have the right to designate such third-party and Seller shall execute and
deliver the limited warranty deed and other Closing documents described herein
to said third-party at Purchaser's election, and all representations and
warranties of Seller shall thereafter inure to the benefit of such third party.
Purchaser shall be responsible for any additional costs and expenses, if any
(including, without limitation, reasonable attorney's fees), incurred by Seller
as a result of the transfer of the Property to a third party pursuant to this
Paragraph. Notwithstanding anything to the contrary herein contained,
Purchaser's obligations under this Contract shall in no way be affected by the
inability of Purchaser to close on any additional properties which may be a part
of such "like-kind exchange." Purchaser shall have the right at any time to
assign this Contract to a third party upon written notice to Seller as required
to accomplish a 1031 exchange. If such an assignment is made, the transactions
contemplated by this Contract shall be (at Purchaser's election) consummated in
the name of such assignee, who shall succeed to all of the rights, obligations
and liabilities of Purchaser hereunder.
IN WITNESS WHEREOF, the undersigned have caused this Contract to be
executed under seal as of the day and year first above written.
PURCHASER:
MORNINGSIDE ASSOCIATES, a Georgia general
partnership, by its sole general partners
By: HALPERN ENTERPRISES, INC., Partner
Date: By:
----------------- -------------------------------
JACK N. HALPERN, President
(CORPORATE SEAL)
By:
--------------------------------
Jack N. Halpern, Partner
By:
--------------------------------
Carolyn H. Oppenheimer, Partner
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SELLER:
CARROLLTON CROSSROADS ASSOCIATES,
an Illinois joint venture
Date:___________________ By: First Capital Institutional Real Estate,
Ltd. -IV, an Illinois limited
partnership, a general partner
By: First Capital Insured Real Estate
Limited Partnership, a Illinois LP, a
general partner
By: First Capital Financial Corporation, a
Florida corporation, their sole general
partner
By:_________________________________________
Its:________________________________________