PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 30th day of May, 1997, between THE
COMMUNITY CENTER FUND III L.P., a Delaware limited partnership ("Community"),
and MIDLAND HYDE PARK PARTNERS, L.P., a Missouri limited partnership
("Midland"), and REGENCY RETAIL CENTERS OF OHIO, INC., an Ohio corporation
("Buyer").
Background
Community and Midland are the only partners of Hyde Park Partners, an Ohio
general partnership ("Hyde Park"). Community owns a sixty-five percent (65%)
Percentage Interest in Hyde Park, and Midland owns a thirty-five percent (35%)
Percentage Interest in Hyde Park. Hyde Park owns a shopping center in
Cincinnati, Ohio, commonly known as and which will be referred to herein as
"Hyde Park Plaza," or the "Shopping Center." The Shopping Center contains
approximately 374,537 square feet of leasable store area on approximately 29.5
acres of land.
Buyer intends to acquire all of the interest of Community and
substantially all of the interest of Midland in Hyde Park. Buyer and Midland
will then convert Hyde Park into an Ohio limited partnership. Midland will
thereupon exchange all of its remaining interest as a general partner of Hyde
Park (except a one percent [1.0%] general partnership interest) for limited
partnership units in such limited partnership; and Buyer will become the
managing general partner of such limited partnership.
NOW, THEREFORE, in consideration of the mutual agreements herein, and
other good and valuable consideration, the receipt of which is hereby
acknowledged, Community, Midland and Buyer agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Agreement means this agreement as it may be amended from time to time.
1.2 Allocation Date means the close of business on the day immediately
prior to the Closing Date.
1.3 Audit Representation Letter means the form of Audit Representation
Letter attached hereto as Exhibit .
1.4 Buyer means Regency Retail Centers of Ohio, Inc., an Ohio corporation.
1.5 Buy-Sell Agreement means the Buy-Sell Agreement to be executed by
Midland and the Limited Partnership at Closing in the form attached as Exhibit .
1.6 Closing means generally the execution and delivery of those documents
and funds necessary to effect the transactions contemplated hereby.
1.7 Closing Date means June 3, 1997.
1.8 Contracts means all service contracts and agreements affecting or
pursuant to which persons furnish services to or for the benefit of the Property
or enumerated on Exhibit 1.8 attached hereto.
1.9 Day means a calendar day, whether or not the term is capitalized.
1.10 ▇▇▇▇▇▇▇ Money Deposit means the deposit delivered by Buyer to Escrow
Agent under Section of this Agreement, together with all interest earned
thereon, if any.
1.11 Environmental Claim means any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Material or actual or alleged Hazardous Material Activity, or (c) from
any abatement, removal, remedial, corrective, or other response action in
connection with a Hazardous Material which does not comply with or violates any
Environmental Law or other order of a governmental authority which has exercised
jurisdiction in connection with an Environmental Claim.
1.12 Environmental Law means any current legal requirement in effect at
the Closing Date pertaining to (a) the protection of the indoor or outdoor
environment and health and safety therein, (b) the conservation, management,
protection or use of natural resources and wildlife, (c) the protection or use
of source water and groundwater, (d) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage, disposal,
Release, threatened Release, abatement, removal, remediation or handling of, or
exposure to, any Hazardous Material or (e) pollution (including any Release to
air, land, surface water, and groundwater); and includes, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42
USC ss.ss.9601 et seq., Solid Waste Disposal Act, as amended by the Resource
Conservation Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
USC ss.ss.6901 et seq., Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 USC ss.ss.1251 et seq., Clean Air Act of 1966, as
amended, 42 USC ss.ss.7401 et seq., Toxic Substances Control Act of 1976, 15 USC
ss.ss.2601 et seq., Hazardous Materials Transportation Act, 49 USC App.
ss.ss.1801, Occupational Safety and Health Act of 1970, as amended, 29 USC
ss.ss.651 et seq., Oil Pollution Act of 1990, 33 USC ss.ss.2701 et seq.,
Emergency Planning and Community Right- to-Know Act of 1986, 42 USC App.
ss.ss.11001 et seq., National Environmental Policy Act of 1969, 42 USC
ss.ss.4321 et seq., Safe Drinking Water Act of 1974, as amended by 42 USC
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ss.ss.300(f) et seq., and any similar, implementing or successor law, any
amendment, rule, regulation, order or directive, issued thereunder.
1.13 Escrow Agent means First American Title Insurance Company,
Jacksonville office, whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax 904/▇▇▇- ▇▇▇▇) or any successor Escrow Agent.
1.14 General Partnership means Hyde Park Partners, an Ohio general
partnership organized pursuant to the Partnership Agreement, prior to its
reorganization as a limited partnership pursuant to the Limited Partnership
Agreement. The term "Hyde Park" when used herein refers to the General
Partnership.
1.15 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
1.16 Hazardous Material means any petroleum, petroleum product,
drycleaning solvent or chemical, biological, infectious or medical waste,
"sharps" or any other hazardous or toxic substance as defined in or regulated by
any Environmental Law in effect at the pertinent date or dates, provided that
the term "Hazardous Material" does not include those materials which are
technically within the definition set forth above but which are contained in
pre-packaged office supplies, cleaning materials or personal grooming items or
other items which are sold for consumer or commercial use and typically used in
other similar buildings or space.
1.17 Hazardous Material Activity means any activity, event, or occurrence
at or prior to the Closing Date involving a Hazardous Material, including,
without limitation, the manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release or threatened Release of
Hazardous Material, in each case in violation of Environmental Law, or the
abatement, removal, remediation, handling or corrective or response action to
any Hazardous Material Activity.
1.18 Improvements means all buildings, structures and other improvements
situated on the Real Property.
1.19 Inspection Period means the period of time which expires at midnight
on the day preceding the Closing Date.
1.20 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.21 Limited Partnership means Hyde Park Partners, L.P., an Ohio limited
partnership, as organized pursuant to the Limited Partnership Agreement upon
Closing.
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1.22 Limited Partnership Agreement means the Amended and Restated
Agreement of Limited Partnership of Hyde Park Partners, L.P., an Ohio limited
partnership, formerly Hyde Park Partners, an Ohio general partnership, a copy of
which is attached hereto as Exhibit .
1.23 Materials means all plans, drawings, specifications, soil test
reports, environmental reports, market studies, surveys, and similar
documentation, if any, owned by or in the possession of and lawfully
transferable by Hyde Park with respect to the Property, Improvements and any
proposed improvements to the Property, except that, as to financial and other
records, Materials shall include only photostatic copies.
1.24 Partnership Agreement means the Partnership Agreement of Hyde Park
Partners, an Ohio general partnership, dated as of March 3, 1992, as amended by
First Amendment dated as of December 23, 1994. The term "Partnership Agreement"
shall not include any amendment of the Partnership Agreement executed at or
after Closing or the Limited Partnership Agreement.
1.25 Partnership Interests mean (i) all of the right, title and interest
of Community in Hyde Park, such interest being a sixty-five percent (65%)
Percentage Interest, as defined in the Partnership Agreement, and (ii) all of
Midland's Percentage Interest in Hyde Park, as defined in the Partnership
Agreement.
1.26 Permitted Exceptions, when referring to the Property, means only the
following interests, liens and encumbrances:
(a) Liens for ad valorem taxes not payable on or before Closing;
(b) Mortgage dated December 29, 1994, from Hyde Park to Principal
Mutual Life Insurance Company, securing two notes dated December 29, 1994, one
in the face amount of $20,445,500, and the other in the face amount of
$4,304,500 (the "Principal Mortgage"), the outstanding principal balance thereof
being $24,750,000;
(c) Rights of tenants under Leases;
(d) All matters listed on Schedule B - Section II of the First
American Title Insurance Company Commitment for Title Insurance, which bears an
effective date of April 28, 1997 (Commitment No. 63-3421), except for items 1,
2, 3, 4, 5, 6 and 7;
(e) Other matters determined by Buyer to be acceptable.
When referring to the Partnership Interests, Permitted Exceptions shall mean
only those matters which are determined by Buyer during the Inspection Period to
be acceptable.
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1.27 Personal Property means all (a) sprinkler, plumbing, heating,
air-conditioning, electric power or lighting, incinerating, ventilating and
cooling systems, with each of their respective appurtenant furnaces, boilers,
engines, motors, dynamos, radiators, pipes, wiring and other apparatus,
equipment and fixtures, elevators, partitions, fire prevention and extinguishing
systems located in or on the Improvements, (b) all Materials, and (c) all other
personal property used in connection with the Improvements, provided the same
are now owned or are acquired by Hyde Park prior to the Closing.
1.28 Principal means Principal Mutual Life Insurance Company, an Iowa
Corporation.
1.29 Property means collectively the Real Property, the Improvements and
the Personal Property.
1.30 Purchase Price means the consideration agreed to be paid by Buyer to
Community and Midland, as the case may be, for the purchase and exchange of
their respective Partnership Interests, as set forth in Section , which total in
the aggregate $16,538,726, after certain credits and charges are made in
accordance with the Closing Statement.
1.31 Real Property means the lands more particularly described on Exhibit
, together with all easements, licenses, privileges, rights of way and other
appurtenances pertaining to or accruing to the benefit of such lands.
1.32 Release means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing into
the indoor or outdoor environment, including, without limitation, the
abandonment or discarding of barrels, drums, containers, tanks, and other
receptacles containing or previously containing any Hazardous Material at or
prior to the Closing Date, in violation of Environmental Law or which is likely
to lead to an Environmental Claim.
1.33 Rent Roll means the schedule setting forth information with respect
to the Leases attached hereto as Exhibit , including the space leased by each
tenant, the term (including extension options), square footage and applicable
rent, common area maintenance, tax and other reimbursements, security deposits
and similar data.
1.34 Hyde Park means both Community and Midland, acting in their
individual capacities as to their respective Partnership Interests.
1.35 Seller Financial Statements means the audited balance sheets and
statements of income, cash flows and changes in financial positions of Hyde Park
as of and for the two (2) calendar years next preceding the date of this
Agreement and all monthly reports of income, expense and cash flow of Hyde Park
and the Property, audited where audits have been made and in any event
consistent with the accounting principles utilized by Hyde Park
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in its regular annual financial reporting, for any period beginning after the
latest of such calendar years, and ending prior to Closing.
1.36 Shopping Center means Hyde Park Plaza in its entirety, as identified
on the initial page hereof.
1.37 Survey means a map of a stake survey of the Property and Improvements
which shall comply with Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys, jointly established and adopted by ALTA and ACSM in 1992, and
includes items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof, which
meets the accuracy standards (as adopted by ALTA and ACSM and in effect on the
date of the Survey) of an urban survey, which is dated not earlier than thirty
(30) days prior to the Closing, and which is certified to Buyer, Hyde Park, the
Title Insurance company providing Title Insurance to Buyer, and to Principal,
and dated as of the date the Survey was made.
1.38 Tenant Estoppel Letter means a letter or other certificate from a
tenant of the Shopping Center, addressed to Buyer and Hyde Park, certifying as
to certain matters regarding such tenant's Lease, in substantially the same form
as that attached hereto as Exhibit , or in the case of national or regional
"credit" tenants identified as such on the Rent Roll, the form customarily used
by such tenant provided the information disclosed is consistent with the Rent
Roll and otherwise reasonably acceptable to Buyer.
1.39 Title Defect means (i) as to the Property, any exception in the Title
Insurance Commitment or any matter disclosed by the Survey, other than a
Permitted Exception; and (ii) as to the Partnership Interests, any lien,
encumbrance, tax or assessment thereon or interest or estate therein other than
that of Community or Midland, as to their respective Partnership Interests.
1.40 Title Insurance means an ALTA Form B Owners Policy of Title Insurance
in the amount of $42,000,000, insuring marketable title to the Property in Hyde
Park, in fee simple, as of the Closing Date, subject only to the Permitted
Exceptions, issued by First American Title Insurance Company.
1.41 Title Insurance Commitment means a binder whereby the title insurer
agrees to issue the Title Insurance to Buyer.
2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The Purchase Price for the Partnership
Interest of Community to be acquired by Buyer is $15,597,978, payable in cash at
Closing. The Purchase Price for the portion of the Partnership Interest of
Midland to be acquired by Buyer is $763,889. The number of general and limited
partnership units of Midland in
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the Limited Partnership to be issued to Midland in exchange for its remaining
general Partnership Interest in the General Partnership will be computed by
dividing $176,859 by the average closing price of the common stock of Regency
Realty Corporation, a Florida corporation ("Regency"), over the twenty trading
days immediately preceding Closing on the New York Stock Exchange (or the
exchange or quotation system on which the common stock of Regency is then listed
for trading).
(b) Pre-Closing Allocations, Distributions and Contributions.
Community and Midland shall cause to be prorated on a daily basis, as of the
actual Allocation Date, all cash receipts and expenditures of Hyde Park,
interest on the Principal Mortgage, ad valorem real and personal property taxes
and other items of income and expense which would customarily be prorated were
this a conveyance of the Property, as of midnight on the Allocation Date. Any
surplus of receipts over expenses (including taxes for the current year not yet
paid, prorated on a daily basis) for the period ending on the Allocation Date
shall be distributed to Community and Midland, and any deficiency in same, shall
be contributed to Hyde Park by Community and Midland, as provided in the
Partnership Agreement, on the Closing Date. Any errors in these apportionments
discovered by any party to this Agreement after Closing or if Closing is
postponed to a later date than May 30, 1997, the apportionments computed as of
an Allocation Date of May 29, 1997, will be corrected and reapportioned by cash
adjustments to be made by the parties promptly following Closing or after such
discovery, as the case may be.
The adjustment/credit to Buyer for pro-rated second half 1996 real estate
taxes due in July, 1997, will be $307,799.70 less $162,469 payable in respect of
such taxes by Kroger ($45,591), ▇▇▇▇▇▇ & ▇▇▇▇▇ ($20,623), Best Fabric ($17,852),
Michael's ($32,811), Walgreens ($26,286), U.S. Post Office ($4,986), Provident
Bank ($10,342), and Radio Shack ($3,978). Buyer will ▇▇▇▇ these tenants and all
other tenants for reimbursement of these taxes and/or tax increases and further
adjust with Community and Midland based on actual collections as provided herein
within 180 days after Closing.
The adjustment/credit for prorated first half 1997 real estate taxes due
in 1998 will be $232,897 less $110,089 credit to Community and Midland. The
credit to Community and Midland for first half 1997 real estate taxes takes into
account the fact that 23% of these taxes are not recoverable from tenants and
applies a 5% collection allowance and a 10% discount rate. Such
adjustment/credit shall be adjusted by a net $824 per day from an anticipated
Allocation Date of May 29, 1997, to the actual Allocation Date, promptly after
Closing. Buyer will ▇▇▇▇ tenants for these first half 1997 taxes and any tax
increases and will further adjust with Community and Midland to the actual
Allocation Date based on actual taxes and collections after receipt of the 1997
tax bills in January, 1998, and on the same basis (i.e., recoverability,
collection allowances and discount rate to the extent applicable), one year
after closing.
Midland will have the right to rebill tenants and to contact tenants to
request payment of 1996 taxes actually paid rather than the estimate used in
November, 1996
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▇▇▇▇▇▇▇▇, and to negotiate payment plans with respect to such unreimbursed 1996
taxes but will not have the right to evict tenants, commence litigation against
tenants or jeopardize Buyer's landlord/tenant relationships with such tenants.
Buyer agrees to use reasonable efforts to collect such unreimbursed taxes (short
of litigation) and cooperate with Midland and permit Midland to inspect and/or
copy its billing and collection records with respect to such taxes. Such
deficiencies will not be included in Buyer's accounts receivable records nor
monitored by Buyer.
(c) Post-Closing Receipts and Expenses for Prior Periods. Community
and Midland shall reimburse the Limited Partnership for expenses of the Property
which are discovered after Closing, but which are properly allocable to periods
ending on or prior to the Allocation Date. The Limited Partnership shall pay to
Community and Midland any rents, percentage rents or tenant reimbursements
(including without limitation reimbursements for 1996 and 1997 taxes to the
extent not included in the tenant reimbursements previously received by Seller
or retained by Seller at Closing), payable after the Allocation Date but which
are properly allocable to periods on or prior to the Allocation Date, as
stipulated in the agreement attached hereto as Exhibit , as post- Closing
contributions and/or distributions under the pre-Closing Partnership Agreement,
within thirty (30) days after receipt by the Limited Partnership. The Limited
Partnership shall have no obligation to collect delinquencies, but should it
collect any delinquent rents or other sums which cover periods prior to the
Allocation Date and to which Community and/or Midland shall be entitled but for
which they shall have received no distribution or other credit, the Limited
Partnership shall remit same to Community and Midland in accordance with the
aforesaid agreed upon stipulation within thirty (30) days after receipt, less
any costs of collection. The Limited Partnership shall retain any rents,
percentage rents or tenant reimbursements received after Closing which are
attributable to periods occurring after the Allocation Date. Undesignated
receipts after Closing from tenants in the Shopping Center shall be applied
first to then current rents and reimbursements for such tenant(s), then to
delinquent rents and reimbursements attributable to post-Allocation Date
periods, and then to pre-Allocation Date periods.
(d) Partnership Agreements of Hyde Park and of Acquiring Partnership.
At Closing, Buyer and Midland shall execute the Limited Partnership Agreement.
(e) Compliance with Principal Mortgage. Subject to all other terms
and conditions hereof, the parties agree to structure this transaction in such
fashion as will cause it to qualify for the consent of Principal to the
transaction under subsection (B) of the first full paragraph on page 7 of the
Principal Mortgage, which subsection (B) is a subsection of Section 1.1(l) of
the Principal Mortgage (the "Principal Consent"). Buyer shall provide the
guaranty contemplated by said subparagraph (B), in the form attached hereto as
Exhibit . Hyde Park shall keep the Principal Mortgage in good standing, without
default, during the pendency of this Agreement, provided that Hyde Park's
obligations under this Section (e) shall be limited to its interest in and cash
flow from the Shopping Center.
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2.2 ▇▇▇▇▇▇▇ Money Deposit. An ▇▇▇▇▇▇▇ Money Deposit in the amount of
$100,000 shall be delivered to Escrow Agent within three (3) business days after
full execution of this Agreement by the parties. The Escrow Agent shall invest
the ▇▇▇▇▇▇▇ Money Deposit in an interest bearing account at First Union National
Bank of Florida. This Agreement may be terminated by either Community or Midland
if the ▇▇▇▇▇▇▇ Money Deposit is not received by Escrow Agent by such deadline.
The ▇▇▇▇▇▇▇ Money Deposit shall be apportioned sixty-five percent (65%) to
Community and thirty-five percent (35%) to Midland, and any distribution of the
▇▇▇▇▇▇▇ Money Deposit shall be so apportioned. The ▇▇▇▇▇▇▇ Money Deposit shall
be returned to Buyer at Closing.
2.3 Closing Disbursements.
(a) The Purchase Price has been computed by including certain
charges and credits which will be reflected in the Closing Statement. As
reflected by the Closing Statement, Seller has credited to Buyer (whereupon the
Buyer will disburse) the following:
(1) July installment of 1996 ad valorem taxes;
(2) Premium for environmental indemnity policy;
(3) Funding of security deposit account;
(4) Transaction fee due Principal;
(5) Disposition fee due Midland Development Group, Inc.;
(6) 1997 taxes;
(b) Community and Midland, in proportion to their respective
interests in Hyde Park as of the date hereof (that is, 65% and 35%,
respectively), shall continue to be responsible for and shall disburse directly:
(1) Documentary stamp and other transfer taxes imposed upon the
transactions contemplated hereby, if any; and
(2) Costs, if any, of curing those title defects Hyde Park
determines to cure, and recording any curative title documents.
(c) Community and Midland shall pay separately the costs and fees
of their respective counsel.
(d) In addition to those matters for which it is responsible under
Section above, Buyer shall be responsible for:
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(1) Cost of Buyer's due diligence inspection;
(2) Cost of a Phase 1 environmental site assessment to be
obtained by Buyer;
(3) Cost of Title Insurance;
(4) Cost of a Survey of the Property;
(5) A brokerage commission to Coldwell Banker in the amount
of $262,500;
(6) Cost of filing the Limited Partnership Agreement;
(7) Cost of organizing the Limited Partnership; and
(8) Buyer's attorneys' fees.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, review the economic data, underwrite the
tenants and review their Leases, and to otherwise conduct its due diligence
review of the Property, the Partnership Interests, and all books, records and
accounts of Hyde Park and each of Community and Midland related thereto. Buyer
hereby agrees to indemnify and hold Hyde Park harmless from any damages,
liabilities or claims for property damage or personal injury arising out of such
inspection and investigation by Buyer or its agents or independent contractors.
Within the Inspection Period, Buyer may, in its sole discretion and for any
reason or no reason, elect to go forward with this Agreement to Closing, which
election shall be made by notice to Hyde Park given within the Inspection
Period. If such notice is not timely given, this Agreement and all rights,
duties and obligations of Buyer and Hyde Park hereunder, except any which
expressly survive termination, shall terminate and Escrow Agent shall forthwith
return to Buyer the ▇▇▇▇▇▇▇ Money Deposit. If Buyer so elects to go forward, the
▇▇▇▇▇▇▇ Money Deposit shall not be refundable except upon the terms otherwise
set forth herein.
(b) Buyer, through its officers, employees and other authorized
representatives, shall have the right to reasonable access to the Property and
to all records of Hyde Park related thereto or to the Shopping Center, including
without limitation all Leases, Seller Financial Statements and books and records
of Hyde Park, at reasonable times during the Inspection Period for the purpose
of inspecting the Property, taking (with the consent of Hyde Park) soil borings,
conducting Hazardous Materials inspections in order
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to obtain the assessments contemplated by Section below, reviewing the books and
records of Hyde Park and otherwise conducting its due diligence review of the
Property. Buyer and its representatives shall provide to Hyde Park certificates
of insurance evidencing coverage of the activities to be conducted by Buyer
hereunder, prior to entry upon the Property. Hyde Park shall cooperate with and
assist Buyer in making such inspections and reviews. Hyde Park shall give Buyer
any authorizations which may be required by Buyer in order to gain access to
records or other information pertaining to the Property or the use thereof
maintained by any governmental or quasi-governmental authority or organization.
Buyer, for itself and its agents, agrees not to enter into any contract with
existing tenants without the written consent of Hyde Park if such contract would
be binding upon Hyde Park should this transaction fail to close. Buyer shall
have the right to have due diligence interviews and other discussions or
negotiations with tenants.
(c) Buyer, through its officers or other authorized representatives,
shall have the right to reasonable access to all Materials (other than
privileged or confidential litigation materials) for the purpose of reviewing
and copying the same.
3.2 Hazardous Material. Buyer may order environmental assessments of the
Property, and a copy of any assessment report, if made, shall be furnished by
Buyer to Hyde Park promptly upon its completion, provided that Buyer will not
take any soil borings or conduct any "Phase II" assessment of the Property
without Hyde Park's prior consent. If any assessment report discloses the
existence of any Hazardous Material or any other matters concerning the
environmental condition of the Property or its environs, which is in violation
of Environmental Law or which is likely to lead to an Environmental Claim, Buyer
may notify Hyde Park in writing, within the Inspection Period, that it elects to
terminate this Agreement, whereupon this Agreement shall terminate and Escrow
Agent shall return to Buyer the ▇▇▇▇▇▇▇ Money Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties, the
Closing shall take place on the Closing Date pursuant to escrow arrangements
reasonably satisfactory to Buyer and Hyde Park. The Closing Date may be
postponed by either party if necessary to qualify the transaction for the
Principal Consent under subsection (B) of the first full paragraph on page 7 of
the Principal Mortgage, but not later than thirty (30) days following the end of
the Inspection Period. The parties shall cooperate with each other so as to
expedite the granting of the Principal Consent.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF HYDE PARK
A. Midland, as the managing partner of Hyde Park, and individually,
warrants and represents as follows as of the date of this Agreement and as of
the Closing, and where indicated covenants and agrees as follows:
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i. Warranties, Representations Made as Managing Partner of Hyde Park:
4.1 Organization; Authority. Hyde Park is duly organized as a general
partnership and is validly existing and in good standing under the laws of the
state of Ohio. Hyde Park is not a "foreign person" under Sections 1445 or 897 of
the Internal Revenue Code nor is this transaction subject to any withholding at
Closing under any state or federal law.
4.2 Partnership Agreement. The Partnership Agreement has not been amended
or modified in any respect.
4.3 Title. Hyde Park is the owner of the Property.
4.4 Sale Agreements. Hyde Park has not entered into nor does Midland have
any knowledge of any outstanding agreement(s) of sale, option(s), or other
right(s) granted to third parties to acquire the Property.
4.5 Litigation. There is no litigation or proceeding pending, or to the
best of Midland's knowledge, threatened against Hyde Park or the Property,
except for (a) claims adequately covered by insurance, which claims will be
enumerated and disclosed to Buyer promptly upon execution hereof, (b) litigation
with tenants as shown on the Rent Roll, and (c) those matters set forth on
Exhibit attached hereto.
4.6 Leases. There are no Leases affecting the Property, oral or written,
except as listed on the Rent Roll, and any Leases or modifications which may be
entered into between the date of this Agreement and the Closing Date with the
consent of Buyer after notice and copies thereof being furnished to Buyer,
together with evidence of creditworthiness and business experience. The consent
of Buyer shall be given or withheld within five (5) days after receipt of the
foregoing. Buyer's failure to respond shall be deemed the withholding of Buyer's
Consent. Copies of the Leases, which have been delivered to Buyer or shall be
delivered to Buyer within five (5) days from the date hereof, are, true, correct
and complete copies thereof. Between the date hereof and the Closing Date,
Midland will not permit Hyde Park to terminate or modify existing Leases or
enter into any new Leases without the consent of Buyer, as provided above. All
of the Property's tenant leases are in good standing and no defaults exist
thereunder except as noted on the Rent Roll. No rent or reimbursement has been
paid more than one (1) month in advance and no security deposit has been paid,
except as stated on the Rent Roll. No tenants under the Leases are entitled to
interest on any security deposits, except as disclosed in the Rent Roll. No
tenant under any Lease has or will be promised any inducement, concession or
consideration by Hyde Park or by any person acting on behalf of Hyde Park (to
the knowledge of Midland), other than as expressly stated in such Lease, and
except as stated in such Lease, there are and will be no side agreements between
Hyde Park and any tenant. Limited Partnership shall be responsible for the
remaining finish work for Bath & Body
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Works up to $32,000. Any excess costs above $32,000 shall be reimbursed by
Seller upon demand of Limited Partnership.
4.7 Financial Statements. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
in accordance with the books and records of Hyde Park and presents fairly in all
material respects the financial condition, results of operations and cash flows
for the Property as of and for the periods to which they relate. There has been
no material adverse change in the operations of the Property or its prospects
since the date of the most recent Seller Financial Statements. Midland covenants
to furnish promptly to Buyer copies of the Seller Financial Statements together
with unaudited updated monthly reports of cash flow for interim periods
beginning after December 31, 1996. Buyer and its independent certified
accountants shall be given access to Hyde Park's pre-Closing books and records
in order that they may verify the financial statements prior to Closing. Midland
shall furnish to Buyer printed copies of the Seller Financial Statements
certified by Midland to Buyer as accurate, and electronic disk counterparts
thereof, covering calendar years 1995 and 1996, and if deemed necessary by
Buyer, Midland agrees to execute and deliver to Buyer on behalf of Hyde Park the
Audit Representation Letter covering January 1, 1997, through the Closing Date,
should Buyer's accountants elect to audit the records of the Shopping Center for
such period.
4.8 Contracts. Except for Leases and Permitted Exceptions, and the
Contracts listed in Exhibit 1.8 attached hereto, there are no employment,
management, service, maintenance, utility or other contracts or agreements
affecting the Property, oral or written, or binding upon Hyde Park. Hyde Park
has no employee benefit or deferred compensation plan presently in effect or
contemplated, or for which it has any unfunded or contingent obligations. All
Contracts are in full force and effect in accordance with their respective
terms, and all obligations of Hyde Park under the Contracts required to be
performed to date have been performed in all material respects; no party to any
Contract has asserted in writing any claim of default or offset against Hyde
Park with respect thereto; and the copies of the Contracts delivered to Buyer
prior to the date hereof are true, correct and complete copies thereof. Between
the date hereof and the Closing, Midland will cause Hyde Park to fulfill all of
its obligations under all Contracts, and not to terminate or modify any such
Contracts or enter into any new contractual obligations relating to the Property
without the consent of Buyer except such obligations as are freely terminable
without penalty by Hyde Park upon not more than thirty (30) days' written
notice.
4.9 Maintenance and Operation of Property. From and after the date hereof
and until the Closing, Midland will cause Hyde Park to keep and maintain and
operate the Property substantially in the manner in which it is currently being
maintained and operated and not to cause or permit any waste of the Property nor
undertake any action with respect to the operation thereof outside the ordinary
course of business without Buyer's prior written consent. In connection
therewith, Midland will cause Hyde Park to make all necessary repairs and
replacements until the Closing so that the Property shall be of substantially
the same quality and condition at the time of Closing as on the date hereof.
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Casualty and liability insurance on the Property shall continue to be maintained
as it is presently being maintained. Midland and Community at their expense will
cause repairs to be made to the Thriftway Store roof, either by Thriftway or by
Midland and/or Community, sufficient to put the roof warranty in effect or
reinstate it. Midland and Community also agree at their cost and expense (i) to
do the work necessary to put the roofs (including, without limitation, the
canopy roofs) on the Improvements into warrantable condition or to cause such
work to be done by others (Thriftway, the original roof contractors, etc.) and
(ii) if the contractor and/or manufacturer, as applicable, agrees to do so, to
transfer existing roof warranties to the Limited Partnership. As to the canopy
roofs, although Midland and Community will do the work required to put the
canopy roofs in warrantable condition as set forth above, they do not guarantee
that the contractor and/or manufacturer, as applicable, will issue a guaranty of
the canopy roofs to either Hyde Park or the Limited Partnership, although they
will request that they do so. These obligations with respect to the roofs on the
Improvements will survive closing.
4.10 Principal Mortgage. The outstanding principal balance under the
Principal Mortgage is $24,750,000, and no default exists thereunder. Interest
has been paid through April 30, 1997. Midland shall cause Hyde Park to keep the
Principal Mortgage current and in good standing throughout the pendency of this
Agreement and shall use commercially reasonable efforts obtain the consent of
Principal to the transaction contemplated hereby prior to the Closing Date.
4.11 Permits and Zoning. There are no material permits and licenses
(collectively referred to as "Permits") required to be issued to Hyde Park or to
any managing agent of the Shopping Center by any governmental body, agency or
department having jurisdiction over the Property which materially affect the
ownership or the use thereof which have not been issued.
4.12 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and correct
in all material respects. Midland agrees to use commercially reasonable efforts
to obtain current Tenant Estoppel Letters acceptable to Buyer from all Tenants
under Leases, which Tenant Estoppel Letters shall confirm the matters reflected
by the Rent Roll as to the particular tenant and shall otherwise be reasonably
acceptable to Buyer in all respects.
4.13 Condemnation. Neither the whole nor any portion of the Property,
including access thereto or any easement benefitting the Property, is currently
subject to temporary requisition of use by any governmental authority or has
been condemned, or taken in any proceeding similar to a condemnation proceeding,
nor has Midland received written notice of any pending condemnation,
expropriation, requisition or similar proceeding against the Property or any
portion thereof. Midland has no knowledge that any such proceeding is
contemplated.
4.14 Governmental Matters. Midland has received no notices from any such
governmental authorities or agencies of uncured violations at the Property of
building, fire,
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air pollution or zoning codes, rules, ordinances or regulations, environmental
and hazardous substances laws, or other rules, ordinances or regulations
relating to the Property. All taxes imposed on rents and other receipts of the
Property which are payable by Hyde Park or for which Hyde Park has liability as
a withholding agent or in a similar capacity, if any, for periods occurring
prior to the Allocation Date have been paid or will be remitted by Midland or
the managing agent of the Shopping Center directly to the appropriate state
department of revenue.
4.15 Repairs. Midland has received no notice from any governmental body or
insurance rating bureau requiring or recommending any repairs or work to be done
on the Property which have not already been completed.
4.16 Environmental Matters.
(a) Midland represents and warrants as of the date hereof and as of
the Closing that except for matters disclosed in the Materials:
(1) Neither Hyde Park nor any other person has caused any
Release, threatened Release, or disposal of any Hazardous Material at the
Property in any quantity reasonably likely to violate an Environmental Law or
give rise to an Environmental Claim; and
(2) The Property does not now contain and to the best of
Midland's knowledge has not contained any: (a) underground storage tank, (b)
material amounts of asbestos-containing building material, (c) landfills or
dumps, (d) drycleaning plant or other facility using drycleaning solvents; or
(e) hazardous waste management facility as defined pursuant to the Resource
Conservation and Recovery Act ("RCRA") or any comparable state law.
(b) Midland shall provide to Buyer at Closing a policy of
environmental indemnity insurance (the "Environmental Policy") issued by an
insurer acceptable to Buyer, providing coverages, amounts and a policy term as
set forth in Exhibit .
(c) Neither Hyde Park nor Community shall have any liability for the
representations and warranties of Midland given under this Section 4(A)(i)
provided that if the Limited Partnership makes a claim under the Environmental
Policy within three (3) years after the Closing Date, Community and Midland
shall reimburse the Limited Partnership for the deductible amount under the
Environmental Policy. Community shall pay the first $25,000 of the premium under
the Environmental Policy. The balance of the premium shall be paid 65% by
Community and 35% by Midland. Distributions and Guaranteed Payments payable to
Midland under the Limited Partnership Agreement may be offset by any sum payable
to the Limited Partnership hereunder which obligation shall survive Closing.
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ii. Warranties, Representations and Covenants of Midland, Individually.
Midland hereby represents, warrants and where indicates covenants, as follows:
4.17 Organization; Authority. Midland is a limited partnership duly
organized, validly existing and in good standing under laws of Missouri and has
full power and authority to enter into and perform this Agreement in accordance
with its terms, and the persons executing this Agreement on behalf of Midland
have been duly authorized to do so.
4.18 Authorization; Validity. The execution, delivery and performance of
this Agreement have been duly and validly authorized by the partners of Midland.
This Agreement has been duly and validly executed and delivered by Midland and
(assuming the valid execution and delivery of this Agreement by Buyer)
constitutes a legal, valid and binding agreement of Midland enforceable against
it in accordance with its terms.
4.19 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Midland nor the consummation by Midland of the
transactions contemplated hereby will (a) require Midland to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority; (b) conflict with or breach any provision
of the organizational documents of Midland; (c) violate or breach any provision
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Midland or Hyde Park is a party,
or by which Hyde Park, the Property or any of Hyde Park's material assets may be
bound (including without limitation the Principal Mortgage, subject to receipt
of the Principal Consent); or (d) violate any order, writ, injunction, decree,
judgment, statute, law or ruling of any court or governmental authority
applicable to Midland, the Property or any of Midland's material assets.
4.20 Commissions. Midland has not dealt with or has any knowledge of any
broker or other party who has or may have any claim against Buyer, Community,
Midland or Hyde Park for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transactions provided herein except
Coldwell Banker, whose commission shall be paid as provided in Section hereof.
Midland agrees to indemnify other parties from any other such claim arising by,
through or under Midland.
4.21 Midland's Partnership Interest. Midland is the owner of its
Partnership Interest free and clear of any other interest, lien or encumbrance.
Midland's Partnership Interest is not subject to any outstanding agreement(s) of
sale, option(s) or other rights of third parties to acquire any interest therein
(except for certain rights granted to Community in the Partnership Agreement,
which rights are waived by Community in Section 4(C) below).
- 16 -
B. Warranties, Representations and Covenants of Community, Individually.
Community shall have no liability for any breach of the warranties,
representations and covenants set forth in Sections through , except for the
obligations set forth in Section 4.16(c). Community hereby represents, warrants
and where indicates covenants, as follows:
4.22 Organization; Authority. Community is a limited partnership duly
organized, validly existing and in good standing under laws of Delaware and has
full power and authority to enter into and perform this Agreement in accordance
with its terms, and the persons executing this Agreement on behalf of Community
have been duly authorized to do so.
4.23 Authorization; Validity. The execution, delivery and performance of
this Agreement have been duly and validly authorized by the partners of
Community. This Agreement has been duly and validly executed and delivered by
Community and (assuming the valid execution and delivery of this Agreement by
Buyer) constitutes a legal, valid and binding agreement of Community enforceable
against it in accordance with its terms.
4.24 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Community nor the consummation by Community of the
transactions contemplated hereby will (a) require Community to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority; (b) conflict with or breach any provision
of the organizational documents of Community; (c) violate or breach any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit, lease, contract, agreement
or other instrument, commitment or obligation to which Community is a party, or
by which Community's material assets may be bound, subject to receipt of the
Principal Consent; or (d) violate any order, writ, injunction, decree, judgment,
statute, law or ruling of any court or governmental authority applicable to
Community, the Property or any of Community's material assets.
4.25 Commissions. Community has not dealt with or has any knowledge of any
broker or other party who has or may have any claim against Buyer, Community,
Midland or Hyde Park for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transactions provided herein except
Coldwell Banker, whose commission shall be paid as provided in Section hereof.
Community agrees to indemnify other parties from any other such claim arising
by, through or under Community.
4.26 Community's Partnership Interest. Community is the owner of its
Partnership Interest free and clear of any other interest, lien or encumbrance.
Community's Partnership Interest is not subject to any outstanding agreement(s)
of sale, option(s) or other rights of third parties to acquire any interest
therein (except for certain rights granted to Midland in the Partnership
Agreement, which rights are waived in Section 4(C) below).
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C. Consents and Waivers. Each of Midland and Community hereby consents to
the transactions provided for in this Agreement and waives any right of first
refusal or other preemptive right it may have with respect thereto. These
consents and waivers shall not apply to any transaction not involving the
Shopping Center and the Partnership Interests of both Community and Midland.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement and
as of the Closing and where indicated covenants and agrees as follows:
5.1 Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under laws of Florida and has full power
and authority to enter into and perform this Agreement in accordance with its
terms, and the persons executing this Agreement and other Transaction Documents
on behalf of Buyer have been duly authorized to do so. Buyer is now and at
Closing will be a wholly owned subsidiary of Regency Realty Corporation, a
Florida corporation, whose common shares are traded on the New York Stock
Exchange ("Regency").
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement and the other Transaction Documents have been duly and validly
authorized by all required corporate action of Buyer. This Agreement has been
duly and validly executed and delivered by Buyer and (assuming the valid
execution and delivery of this Agreement by Hyde Park) constitutes a legal,
valid and binding agreement of Buyer enforceable against it in accordance with
its terms.
5.3 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Buyer nor the consummation by Buyer of the
transactions contemplated hereby will (a) require Buyer to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority; (b) conflict with or breach any provision
of the organizational documents of Buyer; (c) violate or breach any provision
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Buyer is a party, or by which
Buyer, the Property or any of Buyer's material assets may be bound; or (d)
violate any order, writ, injunction, decree, judgment, statute, law or ruling of
any court or governmental authority applicable to Buyer, the Property or any of
Buyer's material assets.
5.4 Commissions. Buyer has not dealt with and has no knowledge of any
broker or other party who has or may have any claim against Buyer, Community,
Midland or Hyde Park for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transactions provided herein except
Coldwell Banker, whose
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commission shall be paid as provided in Section . Buyer agrees to indemnify
Community, Midland and Hyde Park from any other such claim arising by, through
or under Buyer.
6. RISK OF LOSS
All risk of loss to the Property shall remain upon Hyde Park until the
conclusion of the Closing. If, before Closing any material portion of the
Property is damaged by fire or other casualty and will not be restored by the
Closing Date or if any material portion of the Property is taken by eminent
domain or there is a material obstruction of access to the Improvements by
virtue of a taking by eminent domain, Hyde Park shall, within ten (10) days of
such damage or taking, notify Buyer thereof and Buyer shall have the option to:
(a) terminate this Agreement upon notice to Hyde Park given within
ten (10) business days after such notice from Hyde Park, in which case Buyer
shall receive a return of its ▇▇▇▇▇▇▇ Money Deposit; or
(b) proceed with the purchase, in which event the Limited
Partnership shall continue to be entitled to all amounts due or collected under
the insurance policies or as condemnation awards, and such shall be retained by
the Limited Partnership after Closing. In such event, the insurance deductibles,
if any, shall be treated as a pre-Closing contribution to be made to Hyde Park,
allocated between Community and Midland as contemplated by above.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance and Survey. Promptly after execution hereof,
Buyer shall order a Title Insurance Commitment from First American Title
Insurance Company and a Survey from a reputable surveyor familiar with the
Property (Hyde Park agreeing to furnish to Buyer copies of any existing surveys
and title information in its possession promptly after execution of this
Agreement). Buyer shall deliver copies of the Commitment and the Survey to Hyde
Park promptly after receipt thereof. Buyer will have ten (10) days from receipt
of the Title Commitment (including legible copies of all recorded exceptions
noted therein) and Survey to notify Hyde Park in writing of any Title Defects,
encroachments or other matters not acceptable to Buyer which are not permitted
by this Agreement. Any Title Defect or other objection disclosed by the Title
Insurance Commitment or the Survey which is not timely specified in Buyer's
written notice to Hyde Park of Title Defects shall be deemed a Permitted
Exception. Hyde Park shall notify Buyer in writing within five (5) days of
Buyer's notice if Hyde Park intends to cure any Title Defect or other objection.
If Hyde Park elects to cure, Hyde Park shall use diligent efforts to cure the
Title Defects and/or objections by the Closing Date (as it may be extended). If
Hyde Park elects not to cure or if such Title Defects and/or objections are not
cured, Buyer shall have the right, in lieu of any other remedies, to: (i) refuse
to purchase the Partnership
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Interests, terminate this Agreement and receive a return of the ▇▇▇▇▇▇▇ Money
Deposit; or (ii) waive such Title Defects and/or objections and close the
transactions contemplated hereby without any adjustment of the Purchase Price on
account of such Title Defects.
(b) Miscellaneous Title Matters. If a search of the title discloses
judgments, bankruptcies or other returns against other persons having names the
same as or similar to that of Hyde Park, Hyde Park shall on request deliver to
Buyer an affidavit stating, if true, that such judgments, bankruptcies or the
returns are not against Hyde Park. Buyer and Hyde Park further agree to execute
and deliver to the Title Insurance agent at Closing such documentation, if any,
as the Title Insurance underwriter shall reasonably require to evidence that the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized and that there are no
inchoate or unperfected liens on the Property or parties in possession of the
Property other than tenants under Leases and Hyde Park.
8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The obligations of Buyer
under this Agreement are subject to satisfaction or waiver by Buyer of each of
the following conditions or requirements on or before the Closing Date:
(a) Hyde Park's warranties and representations under this Agreement
and those of Community and Midland shall be true and correct in all material
respects as of the Closing Date, and Hyde Park shall not be in default
hereunder.
(b) All obligations of Hyde Park contained in this Agreement, shall
have been fully performed in all material respects and Hyde Park shall not be in
default under any covenant, restriction, right-of-way or easement affecting the
Property.
(c) There shall have been no material adverse change in the
Property, its operations or future prospects or the Leases. Kroger, Thriftway,
Walgreen, Michael's, ▇▇▇▇▇▇ & ▇▇▇▇▇, The Gap, Famous Footware, Just for Feet,
Best Fabric, Ryan's Hallmark, Tuesday Morning, ▇▇▇▇▇▇'▇ Town and Country,
Complete PetMart, Amazing Toy, Blockbuster Video, PNC Bank, Starbucks Coffee,
Lechters, Moto Photo, ▇▇▇▇▇▇▇▇'▇ Bagels, Radio Shack, PKA's, H&R Block, U.S.
Post Office, Goodyear, Play It Again Sports, Added Dimensions, Little Caesar's,
Kinko's, Futon Factory, Cooker Bar & Grill, McDonald's and Provident Bank, and
no less than eighty percent (80%) of the other tenants in the Property shall be
open for business at the Shopping Center and paying rent on a current basis.
(d) A Title Insurance Commitment in the full amount of the Purchase
Price shall have been issued by First American Title Insurance Company or other
national title insurance company reasonably acceptable to Buyer, and "marked
down" through Closing, insuring the Limited Partnership, subject only to
Permitted Exceptions.
- 20 -
(e) The physical and environmental condition of the Property shall
not have changed in any material respect from the date of this Agreement,
ordinary wear and tear excepted.
(f) Midland shall have executed the Limited Partnership Agreement
and the Buy-Sell Agreement, governing post-Closing affairs of the Limited
Partnership.
(g) There shall have been delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) Assignment and assumption agreements, duly executed and
acknowledged, so as to convey to Buyer the Partnership Interest of Community in
the form attached hereto as Exhibit ;
(2) Originals, if available, or if not, true copies of the
Leases and of the contracts, agreements, permits and licenses, and such
Materials as may be in the possession or control of Hyde Park;
(3) The Survey;
(4) A current rent roll for all Leases in effect showing no
changes from the rent roll attached to this Agreement other than those set forth
in the Leases or approved in writing by Buyer;
(5) All Tenant Estoppel Letters obtained by Hyde Park, which
must include Kroger, Thriftway, Walgreen, Michael's, ▇▇▇▇▇▇ & ▇▇▇▇▇, The Gap,
Famous Footware, Just for Feet, Best Fabric, Ryan's Hallmark, Tuesday Morning,
▇▇▇▇▇▇'▇ Town and Country, Complete PetMart, Amazing Toy, Blockbuster Video, PNC
Bank, Starbucks Coffee, Lechters, Moto Photo, ▇▇▇▇▇▇▇▇'▇ Bagels, Radio Shack,
PKA's, H&R Block, U.S. Post Office, Goodyear, Play It Again Sports, Added
Dimensions, Little Caesar's, Kinko's, Futon Factory, Cooker Bar & Grill,
McDonald's and Provident Bank, and eighty percent (80%) of the other tenants who
have signed leases for any portion of the Property, without any material
exceptions, covenants, or changes to the form approved by Buyer or described in
Section and distributed to the tenants by Hyde Park, the substance of which
Tenant Estoppel Letters must be acceptable to Buyer in all respects provided
that no Tenant Estoppel Letter shall be required from Hit or Miss;
(6) The Principal Consent, and an estoppel letter from Principal
to Buyer and Hyde Park confirming that the principal balance of the Principal
Mortgage is $24,750,000, and further confirming the non-default status and good
standing of the Principal Mortgage.
(7) An owner's affidavit, non-foreign affidavits, non-tax
withholding certificates;
- 21 -
(8) The originals or copies of any real and tangible personal
property tax bills for the Property for the tax year of Closing and the previous
year, and, if requested, the originals or copies of any current water, sewer and
utility bills which are in Hyde Park's custody or control;
(9) Evidence of Community and Midland authorization of the
transactions described herein;
(10) All keys and other means of access to the Improvements in the
possession of Hyde Park or its agents;
(11) Materials; and
(12) Such other documents as Buyer may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this Section
are not satisfied and Buyer elects in writing to terminate this Agreement, then
the ▇▇▇▇▇▇▇ Money Deposit shall be promptly delivered to Buyer by Escrow Agent
and, upon the making of such delivery, neither party shall have any further
claim against the other by reasons of this Agreement, except as provided in
Article 9.
8.2 Conditions Precedent to Hyde Park's Obligations. The obligations of
Hyde Park under this Agreement are subject to satisfaction or waiver by Hyde
Park of each of the following conditions or requirements on or before the
Closing date:
(a) Buyer's warranties and representations under this Agreement
shall be true and correct as of the Closing Date, and Buyer shall not be in
default hereunder.
(b) All of the obligations of Buyer contained in this Agreement
shall have been fully performed by or on the date of Closing in compliance with
the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Hyde Park at or prior to the
Closing the following, which shall be reasonably satisfactory to Hyde Park:
(1) The Purchase Price to Community, in accordance with Section
at Closing;
(2) Such other documents as Hyde Park may reasonably request
to effect the transactions contemplated by this Agreement.
(d) The Buyer shall have executed the Limited Partnership Agreement
and shall have caused the Limited Partnership to execute the Buy-Sell Agreement.
- 22 -
(e) Buyer shall have executed the guaranty contemplated by
subparagraph (B) on page 7 of the Principal Mortgage in the form attached hereto
as Exhibit .
(f) Buyer shall have executed the assumption contemplated by (i)(1)
above.
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
have not, and Hyde Park elects in writing to terminate this Agreement, then the
▇▇▇▇▇▇▇ Money Deposit shall be promptly delivered to Hyde Park by Escrow Agent
and, upon the making of such delivery, neither party shall have any further
claim against the other by reasons of this Agreement, except as provided in
Article 9.
8.3 Commercially Reasonable Efforts. Each of the parties hereto agrees to
use commercially reasonable efforts to take or cause to be taken all actions
necessary, proper or advisable to consummate the transactions contemplated by
this Agreement. In the event that the Principal Consent has not been received,
despite Hyde Park's commercially reasonable efforts to secure it (which shall
not include an obligation of Hyde Park to make any payments or provide any
consideration not required in connection with the granting of the Principal
Consent by the Principal Mortgage), Hyde Park may terminate this Agreement, in
which case the ▇▇▇▇▇▇▇ Money Deposit shall be promptly delivered to Buyer by
Escrow Agent, and Hyde Park shall pay to Buyer the lesser of (i) $50,000 or (ii)
an amount equal to the costs and expenses incurred by Buyer in performing its
due diligence hereunder, including without limitation the fees and expenses of
Buyer's counsel, the surveyor and other professionals.
9. PRE-CLOSING BREACH; REMEDIES
9.1 Breach by Hyde Park. In the event of a breach of Hyde Park's covenants
or warranties herein and failure by Hyde Park to cure such breach within the
time provided for Closing, Buyer's sole remedy shall, at Buyer's election, be
(i) to terminate this Agreement and receive a return of the ▇▇▇▇▇▇▇ Money
Deposit, and the parties shall have no further rights or obligations under this
Agreement (except as survive termination); (ii) to enforce this Agreement by
suit for specific performance; or (iii) to waive such breach and close the
purchase contemplated hereby, notwithstanding such breach and without any
adjustment of the Purchase Price by reason of such breach.
9.2 Breach by Buyer. In the event of a breach of Buyer's covenants or
warranties herein and failure of Buyer to cure such breach within the time
provided for Closing, Hyde Park's sole remedy shall be to terminate this
Agreement and retain Buyer's ▇▇▇▇▇▇▇ Money Deposit as agreed liquidated damages
for such breach, and upon payment in full to Hyde Park of such amounts, the
parties shall have no further rights, claims, liabilities or obligations under
this Agreement (except as survive termination).
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10. MISCELLANEOUS
10.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement without the prior approval of the other, except
to its attorneys, accountants and other consultants, their lenders and
prospective lenders, or where disclosure is required by law.
10.2 Entire Agreement; Counterparts. This Agreement, together with the
Exhibits attached hereto, constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and may not be modified,
amended or otherwise changed in any manner except by a writing executed by Buyer
and Hyde Park. This Agreement may be executed in counterparts and when so
executed shall be fully binding upon and enforceable against Buyer, Community
and Midland in accordance with its terms.
10.3 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement shall be served by personal delivery, certified or overnight
mail, reputable overnight courier service or facsimile (followed promptly by
hard copy) at the addresses set forth below:
As to Hyde Park: The ▇'▇▇▇▇▇▇ Group
Community Attention: ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Midland Midland Development Group, Inc.
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: The ▇▇▇▇▇▇ Partnership
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The ▇▇▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
- 24 -
As to Buyer: Regency Retail Centers of Ohio, Inc.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Rogers, Towers, ▇▇▇▇▇▇, ▇▇▇▇▇ & Gay, P.A.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice or demand so served shall constitute proper notice hereunder upon
delivery to the United States Postal Service or to such overnight courier. A
party may change its notice address by notice given in the aforesaid manner.
10.4 Headings. The titles and headings of the various sections hereof are
intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
10.5 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
10.6 Attorneys' Fees. In the event of any litigation between the parties
hereto to enforce any of the provisions of this Agreement or any right of either
party hereto, the unsuccessful party to such litigation agrees to pay to the
successful party all costs and expenses, including reasonable attorneys' fees,
whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions herein shall include
indemnification for reasonable attorneys' fees and costs, whether or not suit be
brought and including fees and costs on appeal.
10.7 Time of Essence. Time is of the essence of this Agreement.
10.8 Governing Law. This Agreement shall be governed by the laws of Ohio
and the parties hereto agree that any litigation between the parties hereto
relating to this Agreement shall take place (unless otherwise required by law)
in a court located in Cincinnati, Ohio. Each party waives its right to
jurisdiction or venue in any other location.
- 25 -
10.9 Successors and Assigns. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. No third parties, including any
brokers or creditors, shall be beneficiaries hereof. Neither this Agreement nor
the rights of any party under this Agreement may be assigned without the consent
of the other parties to this Agreement. Nothing in this Agreement is intended to
place any limitation or restriction whatsoever on shares or interests in Regency
and Buyer may assign this Agreement to (i) any wholly-owned subsidiary of
Regency or (ii) any partnership in which Regency or a wholly-owned subsidiary of
Regency is the sole general partner.
10.10 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
10.11 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
10.12 Further Instruments, Etc. Hyde Park and Buyer shall, at or after
Closing, execute any and all documents and perform any and all acts reasonably
necessary to fully implement this Agreement.
10.13 Survival. The representations, warranties and obligations of Hyde
Park, and of each entity comprising Hyde Park, and those of Buyer, shall survive
the Closing for a period of one (1) year, except that a written claim made
during such one (1) year shall survive until final resolution of the claim, and
except for a claim or offset made by Buyer or its affiliate under Section
4.16(c) (which shall survive the Closing for a period of three (3) years, or
under Sections or 4.26 hereof, which shall survive indefinitely.
10.14 No Recording. Neither this Agreement nor any notice, memorandum or
other notice or document relating hereto shall be recorded.
- 26 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Witnesses:
REGENCY RETAIL CENTERS OF OHIO,
____________________________ INC., an Ohio corporation
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:____________________________
____________________________ Its:________________________
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: ______________________, 1997
Name (Please Print)
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
"BUYER"
THE COMMUNITY CENTER FUND III L.P.,
a Delaware limited partnership
By Its General Partner:
____________________________ CRA Corp.
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:_____________________________
____________________________ Its:_________________________
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: ___________________, 1997
Tax Identification No:____________________
"COMMUNITY"
- 27 -
MIDLAND HYDE PARK PARTNERS, L.P.,
a Missouri limited partnership
By Its General Partner:
____________________________ Hyde Park Equities, Inc.
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:___________________________
____________________________ Its:_______________________
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: __________________, 1997
Tax Identification No:__________
"MIDLAND"
- 28 -
JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of acknowledging and
agreeing to comply with the terms hereof insofar as they apply to Escrow Agent.
Escrow Agent shall receive and hold the ▇▇▇▇▇▇▇ Money Deposit and other sums
delivered to it hereunder in trust, in an interest bearing account at a national
bank having offices in Jacksonville, ▇▇▇▇▇ County, Florida, to be disposed of in
accordance with the provisions of this joinder and Section of the foregoing
Agreement.
2. Indemnity. Escrow Agent shall not be liable to either party except for
claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Hyde Park (or their respective agents), the party at fault shall pay,
and hold the other party harmless against, such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow Agent
with respect to the escrow, the parties hereto expressly agree that Escrow Agent
shall have the absolute right to do either or both of the following: (i)
withhold and stop all proceedings in performance of this escrow and await
settlement of the controversy by final appropriate legal proceedings or
otherwise as it may require; or (ii) file suit for declaratory relief and/or
interpleader and obtain an order from the court requiring the parties to
interplead and litigate in such court their several claims and rights between
themselves. Upon the filing of any such declaratory relief or interpleader suit
and tender of the ▇▇▇▇▇▇▇ Money Deposit to the court, Escrow Agent shall
thereupon be fully released and discharged from any and all obligations to
further perform the duties or obligations imposed upon it. Buyer and Hyde Park
agree to respond promptly in writing to any request by Escrow Agent for
clarification, consent or instructions. Any action proposed to be taken by
Escrow Agent for which approval of Buyer and/or Hyde Park is requested shall be
considered approved if Escrow Agent does not receive written notice of
disapproval within fourteen (14) days after a written request for approval is
received by the party whose approval is being requested. Escrow Agent shall not
be required to take any action for which approval of Buyer and/or Hyde Park has
been sought unless such approval has been received. No disbursements shall be
made, other than as provided in Sections and of the foregoing Agreement, or to a
court in an interpleader action, unless Escrow Agent shall have given written
notice of the proposed disbursement to Buyer and Hyde Park and neither Buyer nor
Hyde Park shall have delivered any written objection to the disbursement within
14 days after receipt of Escrow Agent's notice. No notice by Buyer or Hyde Park
to Escrow Agent of disapproval of a proposed action shall affect the right of
Escrow Agent to take any action as to which such approval is not required.
4. Tax Identification. Hyde Park and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
Its Authorized Agent
Date: May ______, 1997
"ESCROW AGENT"
EXHIBIT
Audit Representation Letter
--------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We are writing at your request to confirm our understanding that your
audit of the Statement of Revenue and Certain Expenses for the twelve months
ended ________________, was made for the purpose of expressing an opinion as to
whether the statement presents fairly, in all material respects, the results of
its operations in conformity with generally accepted accounting principles. In
connection with your audit we confirm, to the best of our knowledge and belief,
the following representations made to you during your audit:
1. We have made available to you all financial records and related data
for the period under audit.
2. There have been no undisclosed:
a. Irregularities involving any member of management or employees who
have significant roles in the internal control structure.
b. Irregularities involving other persons that could have a
material effect on the Statement of Revenue and Certain Expenses.
c. Violations or possible violations of laws or regulations, the
effects of which should be considered for disclosure in the Statement of Revenue
and Certain Expenses.
3. There are no undisclosed:
a. Unasserted claims or assessments that our lawyers have advised us are
probable of assertion and must be disclosed in accordance with Statement of
Financial Accounting Standards No. 5 (SFAS No. 5).
b. Material gain or loss contingencies (including oral and written
guarantees) that are required to be accrued or disclosed by SFAS No. 5.
c. Material transactions that have not been properly recorded in the
accounting records underlying the Statement of Revenue and Certain Expenses.
d. Material undisclosed related party transactions and related
amounts receivable or payable, including sales, purchases, loans, transfers,
leasing arrangements, and guarantees.
e. Events that have occurred subsequent to the balance sheet date
that would require adjustment to or disclosure in the Statement of Revenue and
Certain Expenses.
4. All aspects of contractual agreements that would have a material effect
on the Statement of Revenue and Certain Expenses have been complied with.
Further, we acknowledge that we are responsible for the fair presentation
of the Statements of Revenue and Certain Expenses prepared in conformity with
generally accepted accounting principles.
This letter relates only to the Statement of Revenue and Certain Expenses
described above.
Very truly yours,
MIDLAND HYDE PARK PARTNERS, L.P.,
a Missouri limited partnership
By Its General Partner:
____________________________ Hyde Park Equities, Inc.
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:__________________________
____________________________ Its:___________________
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
EXHIBIT
Buy-Sell Agreement
EXHIBIT 1.8
Service Contracts and Agreements
EXHIBIT
Amended and Restated Agreement of Limited Partnership
of Hyde Park Partners, L.P., an Ohio limited partnership, formerly
Hyde Park Partners, an Ohio general partnership
EXHIBIT
Legal Description of Real Property
EXHIBIT
Rent Roll
EXHIBIT
Form of Estoppel Letter
_____________________, 199_
RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised that Regency Centers, Inc., or
an affiliate, may acquire an interest in Hyde Park Partners, the owner of the
above Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of Hyde Park Partners, Landlord, in the
above Shopping Center, and is currently in possession and paying rent on
premises known as Store No. _______________ [or Address: _____________________
_____________________________________________], and containing approximately
_____________ square feet, under the terms of the lease dated
______________________, which has (not) been amended by amendment dated
________________________ (the "Lease"). There are no other written or oral
agreements between Tenant and Landlord. Tenant neither expects nor has been
promised any inducement, concession or consideration for entering into the
Lease, except as stated therein, and there are no side agreements or
understandings between Landlord and Tenant.
2. The term of the Lease commenced on ____________________, expiring on
___________________, with options to extend of ________________
(____) years each.
3. As of ____________________, monthly minimum rental is $____________
a month.
4. Tenant is required to pay its pro rata share of Common Area Expenses
and its pro rata share of the Center's real property taxes and
insurance cost. Current additional monthly payments for expense
reimbursement total $____________ per month for common area
maintenance, property insurance and real estate taxes.
5. Tenant has given [no security deposit] [a security deposit of
$--------------].
6. No payments by Tenant under the Lease have been made for more than
one (1) month in advance, and minimum rents and other charges under
the Lease are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the Tenant's
premises and development of the Shopping Center, including without
limitation, parking requirements, have been performed by Landlord.
8. The Lease contains no first right of refusal, option to expand,
option to terminate, or exclusive business rights, except as
follows:
9. Tenant knows of no default by either Landlord or Tenant under the
Lease, and knows of no situations which, with notice or the passage
of time, or both, would constitute a default. Tenant has no rights
to off-set or defense against Landlord as of the date hereof.
10. The undersigned has not entered into any sublease, assignment or any
other agreement transferring any of its interest in the Lease or the
Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or
released any hazardous substances at, on or in the Premises. "Hazardous
Substances" means any flammable, explosive, toxic, carcinogenic, mutagenic, or
corrosive substance or waste, including volatile petroleum products and
derivatives and drycleaning solvents. To the best of Tenant's knowledge, no
asbestos or polychlorinated biphenyl ("PCB") is located at, on or in the
Premises. The term "Hazardous Substances" does not include those materials which
are technically within the definition set forth above but which are contained in
pre-packaged office supplies, cleaning materials or personal grooming items or
other items which are sold for consumer or commercial use and typically used in
other similar buildings or space.
Very truly yours,
-------------------------------------------
____________________________________(Tenant)
Mailing Address:
____________________________ By:________________________________________
Its:_________________________________
----------------------------
EXHIBIT
Agreement Concerning
Post-Closing Receipts and Expenses
EXHIBIT
Form of Guaranty
EXHIBIT
Litigation Matters
EXHIBIT
Environmental Indemnity Insurance Policy
EXHIBIT
Assignment and Assumption Agreements
Conveying to Buyer the Partnership Interest of Community