1
REAL ESTATE PURCHASE AGREEMENT
This Real Estate Purchase Agreement ("Agreement") is entered into by PDI Orlando
III Limited Partnership, an Ohio limited partnership ("Seller"), and RRC
Acquisitions, Inc. ("Buyer"). The "Effective Date" of this Agreement will be the
date on which both Seller and Buyer have executed this Agreement. For the
parties' convenience in reviewing this Agreement, all defined terms used in this
Agreement will be highlighted by boldface print when first defined in this
Agreement.
Seller and Buyer hereby agree as follows:
ss.1. SALE OF THE PROPERTY. Upon the terms and subject to the
conditions set forth in this Agreement, Seller will sell to Buyer the
following described property. All references herein to the "Land",
"Improvements", "Personal Property", "Leases" and "Intangible Property" will
have the meanings attributed to such terms in this ss.1.
(a) Land. The approximately 8.9 acre tract of land located off of ▇.▇.
▇▇-▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, which tract is more particularly
described in Exhibit A, together with all rights and interests
appurtenant thereto, including without limitation, all water and
mineral rights, development rights, easements and rights-of-way.
(b) Improvements. All buildings and other improvements
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located on the Land, including, without limitation,
the shopping center buildings, which contain
approximately 107,159 square feet of rentable space,
and which are collectively known as the "Main Street
Square Shopping Center", together with all parking
areas and other site and accessory improvements
located on the Land and all systems, facilities and
fixtures located within such shopping center
buildings.
(c) Personal Property. All tools, machinery, appliances,
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fixtures (to the extent not part of the
Improvements), floor and window coverings,
furnishings, signs, equipment, inventory, supplies
and tangible personal property owned by Seller and
used in connection with the operation of and located
on the Real Property, as the same are more
particularly described in Exhibit B.
(d) Leases. All leases with any existing tenants of the Real Property
(together with any amendments, extensions, guaranties or
modifications to such leases), as the same are more particularly
described in the rent roll attached hereto as Exhibit C;
(e) Intangible Property. Any rights in and to those,
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contracts, agreements, utility arrangements,
warranties, guarantees, indemnities, claims,
licenses, applications, permits, construction
warranties, certificates of occupancy, plans and
specifications, and other similar items and
intangible rights used in connection with or relating
to the Land, Improvements, Personal Property and
Leases (including, without limitation, the
non-exclusive right to use the name "Main Street
Square"), as the same are more particularly described
in Exhibit D. Notwithstanding anything to the
contrary contained herein, the only contracts to be
assigned to and assumed by Buyer and, hence, included
within the definition of "Intangible Property" for
the purposes of this Agreement, will be those
contracts identified on attached Exhibit D, which
either: (i) are not cancelable upon 30 days or less
notice; or (ii) although cancelable upon 30 days or
less notice, are nonetheless specifically designated
by Buyer in a written notice to Seller as being
contracts which Buyer desires to have assigned to it
at closing (collectively, the "Surviving Contracts").
The Land and Improvements are hereinafter collectively referred to as the "Real
Property". The Real Property, Personal Property, Leases and Intangible Property
are hereinafter collectively referred to as the "Property".
ss.2. DEPOSIT. Within two business days after the Effective Date, Buyer
will deposit with the law firm of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A. ("Escrow
Agent") cash in the sum of $50,000 as a good faith deposit. Within two business
days after the date of Buyer's satisfaction of its inspection contingency under
ss.5, Buyer will deposit with Escrow Agent cash in an additional sum of
$100,000, which amount will also be held pursuant to the terms of this
Agreement. All amounts deposited with the Escrow Agent hereunder will be held in
an interest-bearing account, with all references herein to the "Deposit"
specifically including not only the initial principal sum of $50,000, but also
the additional principal sum of $100,000 (once paid to the Escrow Agent), and
all interest earned on such principal sums. The Deposit will be disbursed in the
following manner:
(a) If the closing occurs in the manner contemplated in this Agreement,
then the Deposit will be paid to Seller and applied as a credit
against the Purchase Price payable at closing;
(b) If this Agreement is terminated under ss.5 as a result of Buyer's
failure to satisfy or waive its inspection contingency under ss.5,
then the Deposit will be returned to Buyer;
(c) If the closing fails to occur as a result of Seller's
default hereunder, then the Deposit will be returned
to Buyer, without prejudice to Buyer's right to
pursue the remedy of specific performance to redress
such default; and
(d) If the closing fails to occur as a result of
Buyer's default hereunder, then the Deposit will be
paid to Seller as full and complete liquidated
damages to redress such default.
ss.3. PURCHASE PRICE. The purchase price for the Property will be
$5,395,348 ("Purchase Price"). The Purchase Price will be paid in cash at
closing by means of a federal funds wire transfer. The Purchase Price payable at
closing will be subject to such prorations, credits, allowances and other
adjustments as are provided for in this Agreement.
ss.4. ADDITIONAL PAYMENTS. In addition to the Purchase Price payable
to Seller at closing, Buyer will make the following additional payments
("Additional Payments") to Seller at the times and under the circumstances
set forth below.
(a)Vacant Space. Buyer will pay to Seller at closing an amount equal to
$15 for every rentable square foot of space in excess of 3,766 rentable
square feet, which is both vacant and unleased in the Real Property as
of the date of closing (if Park Dry Cleaners is still in possession of
its space on the date of closing, no such payment will be made with
respect to its space). The payment referred to in this subparagraph
will be paid in cash at closing by means of a federal funds wire
transfer.
(b)Dry Cleaner Space. Buyer and Seller acknowledge that Seller is
currently in the process of effecting an eviction of Park Dry Cleaners
from Suite 182 of the Real Property, consisting of 1,400 rentable
square feet. Upon the earlier of (i) Seller's successful completion of
such eviction action or (ii) Buyer's request that Seller dismiss such
eviction action because Buyer has reached an acceptable compromise for
Park Dry Cleaners' continued occupancy of the Real Property, an
Additional Payment will be due from Buyer to Seller in an amount equal
to $287,597.03, less the amount of any Additional Payments previously
made with respect to the subject space under subparagraph (a), above.
The above amount will not be reduced in any fashion by any credit for
any Additional Payment previously made pursuant to subparagraph (a),
above, because the number set forth in the immediately preceding
sentence has already been computed net of a credit for the applicable
Additional Payments made at closing under subparagraph (a), above.
Unless otherwise requested by Buyer, Seller will, at all times after
the date of closing and at its sole cost and expense, continue to
prosecute the eviction action against Park Dry Cleaners in a diligent
and expeditious fashion. Buyer will be required to cooperate with
Seller in such eviction action, although Buyer will not be required to
expend any funds in connection with such eviction action.
(c)Froggers. Buyer and Seller acknowledge that Seller is currently in the
process of negotiating with Froggers Restaurant for the lease of space
in the Real Property. Buyer hereby agrees that, to the extent the
conditions hereinafter set forth with respect to any lease to Froggers
Restaurant are satisfied within six months after the date of closing,
then an additional payment will be due from Buyer to Seller in an
amount equal to the Effective Gross Income produced under the Froggers
lease (in an amount up to, but not exceeding $11 per rentable square
foot, plus operating expense reimbursement recoveries), divided by a
capitalization rate of 12.5%, less an amount equal to the sum of: (A)
one-third of the first $150,000 of Buyer's cost of constructing tenant
improvements to the Froggers Restaurant space; plus (B) 100% of all
such tenant improvement costs in excess of $150,000.
For the purpose of this Agreement, "Effective Gross Income" means the
average annual Base Rent and Operating Expense Payments (as those terms
are hereinafter defined, but exclusive of any portion of any Operating
Expense Payments attributable to a 4% management fee), payable by the
applicable tenant over the initial term of any such lease, less an
amount equal to all free rent and other rent concessions made to the
tenant under the applicable lease (amortized ratably over each year of
the lease) and less a credit reserve of 5% of the average annual Base
Rent and Operating Expense Payments due under any such lease. The
amount of any payment otherwise required to be paid under this
subparagraph (c) will, however, be reduced by an amount equal to the
amount of any Additional Payment previously paid to Seller with respect
to the subject leased space under subparagraph (a).
The Additional Payments due to Seller from Buyer under this
subparagraph (c) will be paid within 30 days after the satisfaction of
all of the following conditions with respect to the Froggers Restaurant
lease:
(A)A lease, in form and content reasonably acceptable to Buyer, has
been executed with Froggers Restaurant (which lease must, in all
events be executed within six months after the date of closing);
and
(B)Froggers Restaurant has accepted its leased premises and opened
for business therein and begun paying rent.
The terms of any lease produced with respect to Froggers Restaurant must be
acceptable to both Seller and Buyer. Seller agrees that it will pay all leasing
commissions due on any lease for Froggers Restaurant. Buyer will be obligated to
pay the cost of all tenant improvements and other costs related to the Froggers
Restaurant lease (subject to Seller's contribution to the Froggers Restaurant
tenant improvement costs under subparagraph (b)(ii), above).
ss.5. INSPECTION CONTINGENCY. Buyer's obligations under this Agreement are
contingent upon Buyer determining, on or before March 25, 1997 ("Inspection
Period"), that the Property is acceptable to Buyer. Seller will permit Buyer and
Buyer's agents and contractors access to the Property and to all files, books
and records maintained by Seller with respect to the Property at all reasonable
times during the Inspection Period, so that Buyer can conduct all such tests,
studies and inspections of the Property and review all such files, books and
records as Buyer deems appropriate. All files, books and records maintained by
Seller with respect o the Property will be made available for inspection by
Buyer and Buyer's agents and contractors at Seller's offices at Suite 1350, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. During the Inspection Period, Buyer will
also be permitted to interview all tenants under the Leases, provided that it
provide advance notice to Seller of the times of any such interviews and permits
a representative of Seller a reasonable opportunity to be present during such
interviews.
Buyer agrees to indemnify and hold Seller harmless from any liability or loss
incurred by Seller as a result of Buyer's activities at the Property and to
promptly restore any damage caused to the Property as a result of such
activities. If Buyer fails to timely satisfy or waive its inspection contingency
under this ss.5 then, within ten days after the expiration of the Inspection
Period, Buyer will deliver to Seller copies of all written reports received by
Buyer with respect to the various tests, studies and inspections conducted by
Buyer or its agents or contractors with respect to the Property and will return
to Seller copies of all of Seller's files, books and records made by Buyer or
its agents or contractors during such Inspection Period.
In order to further facilitate Buyer's determination of the acceptability of the
Property, Seller will, within three business days after the Effective Date,
provide the following materials to Buyer:
(a) Copies of all Leases;
(b) Copies of all environmental reports in its possession with
respect to the Real Property;
(c) The most current survey of the Real Property; (d) The most recent
title policy for the Real Property; (e) Copies of financial operating
statements for the Property (that
is, income and expense statements) for the 1994, 1995 and 1996
calendar years;
(f) Copies of real estate tax bills for the Real Property for the
calendar years 1994, 1995 and 1996;
(g) Copies of any existing service contracts related to the Property;
(h) Copies of utilities bills relating to the operation of the Real
Property for the calendar year 1996;
(i) Copies of all certificates of occupancy in its possession with
respect to the Improvements;
(j) Copies of all plans and specifications related to the
Improvements including, where appropriate, civil, structural and
mechanical drawings;
(k) Copies of all expense recovery reconciliation's for the calendar
years 1995 and 1996;
(l) Seller's operating budget for the calendar year 1996;
(m) Evidence that all sales tax payments with respect to rents
payable for the Real Property are current.
If Buyer gives Seller written notice within the Inspection Period that the
results of its inspections are acceptable to Buyer, then Buyer will be obligated
to pay the additional $100,000 deposit to Escrow Agent at the time and in the
manner contemplated in ss.2 hereof and the parties will thereafter proceed to
close Buyer's purchase of the Property in the manner contemplated in this
Agreement. If Buyer gives Seller written notice within the Inspection Period
that the results of its inspections are unacceptable to Buyer, for any reason
whatsoever (as determined by Buyer in its sole discretion) or if Buyer fails to
give any written notice concerning the acceptability of its inspections to
Seller during the Inspection Period, then in either such event, the Deposit will
be returned to Buyer, this Agreement will thereupon automatically terminate and
the parties will be relieved of all further rights, liabilities and obligations
under this Agreement, except for Buyer's indemnification, restoration and other
obligations expressly placed upon it under this ss.5
ss.6. TITLE COMMITMENT. Within fifteen days after the Effective Date,
Seller will cause First American Title Insurance Company or some other
nationally-recognized title insurance company acceptable to Buyer ("Title
Company") to furnish to Buyer a commitment for an ALTA Form B Owner's Title
Insurance Policy in the face amount of the Purchase Price, together with legible
copies of all title exceptions noted in such title commitment ("Title
Commitment"). The Title Commitment will show that Seller has marketable fee
simple title to the Property, free and clear of all liens and encumbrances,
excepting only those liens and encumbrances which are approved by Buyer in the
manner hereinafter set forth in this ss.6. If Buyer wishes to obtain a survey of
the Real Property (other than any existing survey furnished to Buyer pursuant to
ss.5), it will be required to do so at its sole expense.
If the Title Commitment (or any survey obtained by Buyer) discloses any
exceptions to title which are unacceptable to Buyer, then Buyer will have seven
days after its receipt of such Title Commitment in which to deliver in writing
to Seller any objection which Buyer may have to any such title exceptions
("Title Notice"). Buyer will be deemed to have approved any title exceptions
appearing in the Title Commitment, which are not objected to in a timely
delivered Title Notice and, thereafter, such additional title exceptions will
also be treated as "Permitted Exceptions" for the purposes of this Agreement.
If Buyer objects to any such title exception by delivering a Title Notice to
Seller within the aforementioned seven-day period, then Seller, at its expense,
will use its reasonable efforts to satisfy the objections made by Buyer in its
Title Notice within five days after Seller's receipt of the Title Notice. If
Seller fails to satisfy all of such objections within the aforementioned
five-day period then Buyer will have the option of either: (a) terminating its
obligations with respect to the purchase of the Property by giving written
notice of termination to Seller within three days after the expiration of the
aforementioned five-day period, in which event, the Deposit will be returned to
Buyer and, thereafter, neither party will have any further rights, liabilities
or obligations hereunder with respect to the Property, except for Buyer's
indemnification, restoration and other obligations expressly placed upon it
under ss.5; or (b) waiving its objections under the Title Notice and proceeding
to close on the purchase of the Property. If Seller is successful in satisfying
any of Buyer's objections, then Seller will deliver to Buyer proof of such
satisfaction and will also deliver to Buyer the Title Company's related Title
Commitment endorsement.
ss.7. ESTOPPEL CERTIFICATES. Within 30 days after the Effective Date,
Landlord will use its best efforts to deliver to Tenant an estoppel certificate
("Estoppel Certificate"), executed by each tenant under the Leases and dated not
earlier than the Effective Date. Such Estoppel Certificates will address the
status of rent payments, tenant improvements, defaults and other matters
relating to the Leases, and will, except as otherwise agreed to by Buyer, be in
substantially the form and content attached hereto as Exhibit H. Buyer's
obligations under this Agreement will be expressly contingent upon Buyer
receiving executed Estoppel Certificates from the "Anchor Tenants" (as that term
is hereinafter defined) and from those other tenants occupying at least 90% of
the remaining rentable square footage contained within the Real Property. For
the purpose of this Agreement, "Anchor Tenants" will mean ▇▇▇▇ ▇▇▇▇▇ and
Walgreens.
ss.8. CLOSING PRORATIONS AND ADJUSTMENTS. If Seller's sale of the Property
to Buyer closes in the manner contemplated in this Agreement, then Buyer's and
Seller's respective economic rights and obligations with respect to the Property
will be determined in the manner described in this ss.8. Except as otherwise
expressly provided herein, all of the income and expense prorations contemplated
hereunder will be calculated, apportioned and prorated between Buyer and Seller
as of 11:59 p.m. on the day prior to the date of closing.
(a) Real Estate Taxes. Seller will pay or credit on the
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Purchase Price the amount of all delinquent real
estate taxes and installments of special insessments,
including penalties and interest thereon, that are a
lien on the Real Property as of the date of closing.
Seller will also credit on the Purchase Price all
unpaid real estate taxes and installments of special
assessments which are not yet due for years prior to
the closing and a portion of such taxes and
installments for the year of closing, prorated
through the date of closing. The proration of the
undetermined taxes and installments of special
assessments will be based upon a 365 day year and
upon the most recently available tax use, rate and
valuation for the Real Property. The proration of
taxes and installments of assessments hereunder will
be reprorated upon request by either party upon the
issuance of the actual tax ▇▇▇▇ for the year of
closing and will then be based upon the amount of
such taxes and installments of assessments which are
due on the earliest payment date specified by
applicable law. Any request for a reproration
hereunder must be made on or before December 31 of
the year of closing.
(b) Rents. All rents and other payments due from the tenants under the
Leases will be prorated in the manner hereinafter set forth in this
subparagraph (b).
(i)Base Rents. Seller will credit on the Purchase Price that
portion of all Base Rents (as that term is hereinafter
defined) payable for the calendar month of closing, which
are attributable to the period from and after the date of
closing. Seller will be entitled to retain any Base Rents
collected by it prior to or after the date of closing,
which are attributable either to the month of closing or
any months preceding the month of closing. If following the
date of closing, Buyer collects Base Rents which are
attributable to the period prior to the date of closing,
then, except as otherwise expressly provided herein, Buyer
will immediately pay such Base Rents to Seller. If
following the date of closing, Seller collects Base Rents
which are attributable to any month after the month of
closing, then Seller will immediately pay such Base Rents
to Buyer. Notwithstanding anything to the contrary
contained herein, any Base Rents collected by Buyer from
any tenant after the date of closing will first be applied
by Buyer toward the payment of Base Rents owed to Buyer by
such tenant for months after the month of closing, and
then, and only then, will any excess Base Rents collected
by Buyer be paid to Seller under this subparagraph (i). For
the purpose of this Agreement, "Base Rents" will mean any
fixed, minimum rent payable by tenants under the Leases
excluding, however, any Operating Expense Payments (as that
term is hereinafter defined).
(ii) Operating Expense Payments. Seller will credit on the
Purchase Price that portion of any Operating Expense
Payments (as that term is hereinafter defined) payable for
the calendar month of closing, which are attributable to
the period from and after the date of closing. Seller will
be entitled to any Operating Expense Payments which are
both paid periodically on an estimated basis by any tenants
under the Leases and are collected by it prior to or after
the date of closing and which are further attributable
either to the month of closing or any months preceding the
month of closing. If following the date of closing, Buyer
collects any Operating Expense Payments which are paid
periodically on an estimated basis by any tenants under the
Leases and which are attributable to the period prior to
the date of closing, then, except as otherwise expressly
provided herein, Buyer will immediately pay such Operating
Expense Payments to Seller. If, following the date of
closing, Seller collects any Operating Expense Payments,
which are paid periodically on an estimated basis by any
tenants under the Leases, and which are attributable to any
month after the month of closing, then Seller will
immediately pay such Operating Expenses Payments to Buyer.
Notwithstanding anything to the contrary contained herein,
any Operating Expenses Payments, which are paid
periodically on an estimated basis by any tenants under the
Leases, and which are collected by Buyer from any tenant
after the date of closing, will first be applied by Buyer
toward the payment of any Operating Expense Payments owed
to Buyer by such tenant for months after the month of
closing, and then, and only then, will any excess Operating
Expense Payments collected by Buyer be paid to Seller under
this subparagraph (ii). With respect to any Operating
Expense Payments, which are paid periodically on an
estimated basis by any tenants under the Leases, Buyer will
make a final reconciliation of the actual expenses incurred
in connection with the Real Property for any fiscal period
which includes the date of closing, at the time and in the
manner required under the terms of the Leases. Within 30
days after the completion of each such reconciliation,
Buyer will provide written notice to Seller of the amount
of such reconciliation and the portion of the actual
Operating Expense Payments of the subject tenant which are
attributable to the period prior to the date of closing
(with such determination being made strictly on the basis
of the number of days prior to the date of closing which
are included in the fiscal period for which such
reconciliation is being made). If Buyer collects Operating
Expense Payments from any tenant under any Lease which,
when added to all periodic, estimated Operating Expense
Payments collected from such tenant by Buyer after the date
of closing (but which are attributable to the fiscal period
for which such final reconciliation is being made), exceed
the amount of the Tenant's actual Operating Expense Payment
obligation for the portion of the subject fiscal period
falling after the date of closing, then Buyer will, within
30 days after its collection of such Operating Expense
Payments, pay to Seller the amount of such excess. If Buyer
is required as a result of any such final reconciliation to
make any refund to any tenants under the Leases for any
excess periodic Operating Expense Payments made by any such
tenants under the Leases, then Seller will pay to Buyer,
within 30 days after Seller's receipt of Buyer's
determination that any such refund is due, an amount equal
to that portion of the refund which is attributable to the
period prior to the date of closing (with such
determination being made strictly on the basis of the
number of days prior to the date of closing which are
included in the fiscal period for which such reconciliation
is being made).
Notwithstanding anything to the contrary contained herein,
to the extent any Lease requires any tenant to make any
Operating Expense Payments other than on an estimated,
periodic basis (for example, an obligation of a tenant to
reimburse the owner of the Real Property by way of an
annual lump sum payment for its allocable share of the
actual real estate taxes or insurance premiums paid by such
owner), and if any such Operating Expense Payment relates
to expenses which are attributable to periods both before
and after the date of closing, then: (i) if any such
Operating Expense Payment is payable to Seller prior to the
date of closing, Seller will credit on the Purchase Price
the portion of such Operating Expense Payment which is
attributable to the period from and after the date of
closing; and (ii) if such Operating Expense Payment is
payable after the date of closing, then Buyer will, within
30 days after its collection of any such Operating Expense
Payments, make a payment to Seller of an amount equal to
that portion of the Operating Expense Payment which is
attributable to the period prior to the date of closing.
For the purposes of this Agreement, "Operating Expense
Payments" will mean all payments made by the tenants under
the Leases which are stated to be applicable towards common
area maintenance charges, insurance premiums, real estate
taxes and similar expenses associated with the Real
Property.
(iii) Overage Rents. Overage Rents (as that term is
hereinafter defined) will be separately prorated under each
Lease on the basis of the fiscal period set forth in each
Lease for the payment of such Overage Rents. Any Overage
Rents received by Seller or Buyer before or after the date
of closing will be retained by the recipient of such
payments, pending a final reconciliation based upon the
actual Overage Rents owed for any fiscal period which
includes the date of closing. Buyer will make the final
reconciliation at the time and in the manner required under
the terms of each Lease. Within 30 days after the
completion of each such final reconciliation, Buyer will
provide written notice to Seller of the amount of such
final reconciliation and the portion of the actual Overage
Rents for the subject tenant which are attributable to the
period prior to the date of closing. If Buyer actually
collects Overage Rents from any tenant under any Lease,
which, when added to all estimated, periodic Overage Rents
collected from such tenant by Buyer after the date of
closing (but which are attributable to the fiscal period
for which such final reconciliation is being made), exceed
the amount of the Tenant's actual Overage Rent obligation
for the portion of the subject fiscal period falling after
the date of closing, then Buyer will, within 30 days after
its collection of such Overage Rents, pay to Seller the
amount of such excess.
(c) Utilities. Coincident with the closing of Buyer's purchase of
the Property, Seller will notify all utility companies servicing the
Real Property of the change in ownership and direct that all future
▇▇▇▇▇▇▇▇ be made to Buyer at the address of the Real Property (or
such other address as Buyer may direct). Seller will obtain final
meter readings for all utilities as of the date of closing and will
have final bills rendered directly to Seller. In the event that
final meter readings cannot be obtained due to the utility
companies' internal operating procedures. Seller will reimburse
Buyer for any payments to such utilities applicable to the period
prior to the closing date immediately upon receipt of written
evidence of such payments by Buyer.
(d) Security Deposits. Seller will pay to Buyer at
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closing (or credit on the Purchase Price payable at
closing) an amount equal to all security deposits
which, as of the date of closing, Seller is legally
required to ultimately refund to tenants under the
Leases. A listing of all such security deposits as
of the Effective Date is included in the rent roll
attached hereto as Exhibit C. The listing of such
security deposits will be updated by Seller as of the
date of closing.
(e) Accounts Receivable. All accounts receivable related
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to the Property, which are attributable to the period
prior to the date of the closing (including, without
limitation, those related to delinquent payments of
Base Rent, Overage Rents and Operating Expense
Payments by any former or existing tenant of the Real
Property), will remain the property of Seller and
Seller may pursue the collection of such accounts
receivable by all available legal means. All
accounts receivable related to the Property which are
attributable to the period from and after the date of
closing will be the property of Buyer. A listing of
all accounts receivable for existing tenants of the
Real Property as of the Effective Date is attached to
this Agreement as Exhibit F. The listing of such
accounts receivable will be updated by Seller as of
the date of closing. Buyer will at all times after
the date of closing continue to invoice any existing
tenant of the Real Property for all accounts
receivable attributable to any such tenant's
occupancy of the Real Property prior to the date of
closing and will fully cooperate with Seller in
Seller's efforts to collect all accounts receivable
which are the property of Seller hereunder.
(f) Payments under Surviving Contracts. Buyer will be
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entitled to a credit against the Purchase Price for
all sums, which are due and unpaid under the
Surviving Contracts as of the date of closing, and
which are attributable to the period prior to the
date of closing. Similarly, Seller will be entitled
to receive an additional payment at closing to the
extent it has paid any sum under any Surviving
Contract, which is attributable to the period from
and after the date of closing.
(g) Leasing Costs. Except as otherwise expressly
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provided herein, Buyer will be entitled to a credit
against the Purchase Price at closing for the amount
of all unpaid costs and expenses which were incurred
(or are to be incurred) in connection with any Leases
executed, modified or extended by Seller prior to the
Effective Date, including, without limitation, all
costs and expenses for tenant improvements (either
completed or to be completed) and brokerage
commissions (collectively "Leasing Costs").
Following its receipt of such Purchase Price credit,
Buyer will thereafter be solely responsible for the
payment of any such Leasing Costs. Notwithstanding
anything to the contrary contained herein, Buyer will
be liable for and will not be entitled to any credit
at closing for any Leasing Costs incurred after the
Effective Date, which are either: (i) identified in
Exhibit G; (ii) set forth as Buyer's obligations
underss.13; or (iii) otherwise hereinafter expressly
assumed in writing by Buyer.
(h) Miscellaneous Items of Income and Expense. All other
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items of income and expense related to the Property
will be prorated through the date of closing, with
Seller being entitled to receive or obligated to pay
(with any required payment being made at or prior to
closing), as the case may be, all such items of
income or expense attributable to the period prior to
the date of closing, and Buyer being entitled to
receive or obligated to pay, as the case may be, all
such items of income and expenses attributable to the
period from and after the date of closing.
(i) Items Not to be Prorated. No proration or credit
--------------------------
will be made or given hereunder for: (i) insurance
premiums; (ii) employee salaries, benefits, bonuses,
payroll taxes or other employee costs; and (iii) any
amount owing under any contracts related to the
operation of the Property, other than the Surviving
Contracts. Seller will, on or before the date of
closing, terminate all agreements and pay all accrued
costs related to such items.
For purposes of this ss.8, the determination of whether an item is "attributable
to" a particular period will, except as otherwise expressly provided herein, be
made in accordance with generally accepted accounting principles, consistently
applied.
ss.9. REPRESENTATIONS AND WARRANTIES OF SELLER. For the purpose of
inducing Buyer to enter into this Agreement and consummate its purchase of the
Property, Seller hereby represents and warrants to Buyer as to the following as
of the date of Seller's execution of this Agreement.
(a) No Proceedings. To the best of Seller's knowledge, there is no
action, suit, proceeding or investigation pending before any agency,
court or governmental authority which relate to the Seller or the
Property (including, without limitation, any eminent domain or
condemnation proceeding).
(b) Public Improvements. To the best of Seller's knowledge, Seller has
not, within a period of two years immediately preceding the
Effective Date, received written notice of any contemplated
improvement to the Property by any public authority, the cost of
which is to be assessed as a special tax or assessment against the
Property in the future.
(c) Creditor Problems. To the best of Seller's knowledge, there are no
attachments, executions, assignments for the benefit of creditors or
voluntary or involuntary proceedings in bankruptcy (or under any
other debtor relief laws) pending against Seller or the Property.
(d) Leases. Except as otherwise disclosed in the
------
accounts receivable report attached hereto as Exhibit
F or the list of lease defaults attached hereto as
Exhibit I, all of the Leases are, to the best of
Seller's knowledge, in full force and effect, without
any default on the part of either Seller or the
tenant thereunder. The terms and rates for all of
the Leases, as set forth in the rent roll attached
hereto as Exhibit C, are true and accurate.
(e) Authority. Seller is an Ohio limited partnership,
---------
properly organized under the laws of the State of
Ohio, and properly authorized to own property and do
business in the State of Florida. Seller is the
owner of the Property and has the right, power and
legal capacity to enter into this Agreement and to
convey the Property to Buyer pursuant to the terms
and provisions hereof and to perform its other
obligations hereunder. The parties and persons
executing this Agreement on behalf of Seller have
been duly authorized to execute this Agreement. The
execution of this Agreement by Seller, the
performance by Seller of its obligations hereunder,
and the sale, transfer, conveyance and assignments
contemplated hereunder do not require the consent of
any third party, nor do any of such acts violate the
terms and provisions of any agreement to which Seller
is a party.
(f) No Litigation. To the best of Seller's knowledge, there is no
pending litigation relating to the Property (other than collection
actions initiated by Seller against former tenants of the Real
Property).
(g) Environmental Matters. Except as otherwise disclosed
----------------------
in any environmental report made available to Buyer
by Seller pursuant to the requirements of this
Agreement or as otherwise referred to inss.29 of this
Agreement, no "Hazardous Material" (as that term is
hereinafter defined) has been generated, treated,
stored, recycled, transported, released, discharged,
emitted, disposed of or otherwise handled at, on or
under the Property by Seller, or, to the best of
Seller's knowledge, by any other party, in violation
of, and no enforcement action has been initiated or
noticed against Seller or, to the best of Seller's
knowledge, against any other party, pursuant to, any
applicable federal, state or local law relating to
the health, safety or environment, including, without
limitation, the Comprehensive Environmental Response
Compensation and Liability Act, the Resource
Conservation and Recovery Act, the Hazardous
Materials Transportation Act, the Clean Water Act or
the Toxic Substance Control Act. For the purposes of
this Agreement, the term "Hazardous Material" means
any pollutant, contaminant, toxic substance,
hazardous waste, hazardous material, hazardous
substance, oil, petroleum or petroleum by-product,
which is defined in or regulated pursuant to any of
the laws mentioned in the immediately preceding
sentence of this section. Notwithstanding anything
to the contrary contained herein, Seller's delivery
of any environmental reports to Buyer pursuant to the
requirements of this Agreement will not constitute
any representation or warranty by Seller regarding
the truth or accuracy of any such reports; it being
understood and agreed that Seller has provided such
reports solely to facilitate Buyer's review of the
Property.
EXCEPT FOR THOSE LIMITED REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE IN THIS
ss.9, BUYER ACKNOWLEDGES AND AGREES THAT IT IS PURCHASING PROPERTY IN ITS "AS
IS, WHERE IS," CONDITION. BUYER WILL RELY SOLELY UPON ITS OWN INSPECTIONS
(INCLUDING THOSE MADE FOR IT BY ITS AGENTS AND CONTRACTORS) WITH REGARD TO THE
CONDITION AND CHARACTER OF PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
ENVIRONMENTAL CONDITION OF THE REAL PROPERTY AND THE PHYSICAL CONDITION OF ALL
STRUCTURAL AND NONSTRUCTURAL COMPONENTS AND ELEMENTS OF THE IMPROVEMENTS. EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BUYER WILL PURCHASE AND ACQUIRE THE
PROPERTY WITHOUT ANY REPRESENTATION OR WARRANTY BY SELLER WHATSOEVER, EITHER
EXPRESS OR IMPLIED, AS TO THE CONDITION OR CHARACTER OF THE PROPERTY OR AS TO
ITS FITNESS FOR ANY PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY
DISCLAIMED BY SELLER.
ss.10. CONDITIONS TO CLOSING. Seller's obligation to sell the Property
to Buyer is subject to the satisfaction (or Seller's waiver), on or before
the date of closing, of all of the following conditions precedent:
(a) Buyer's performance of all of its obligations under this Agreement,
including, without limitation, its payment of the Purchase Price to
Seller in the manner set forth in ss.ss.3 and 12 hereof, and its
execution and delivery to Seller of all of those documents required
to be executed and delivered by it pursuant to ss.12; and
(b) The simultaneous closing of Buyer's purchase of the Companion
Property under the terms of the Companion Contract (as those terms
are hereinafter defined).
Buyer's obligation to purchase the Property from Seller is subject to the
satisfaction (or Buyer's waiver) on or before the date of closing, of all of the
following conditions precedent:
(a) The satisfaction or waiver of Buyer's inspection
contingency under ss.5;
(b) Seller's performance of all of its obligations under
this Agreement, including, without limitation, its
timely delivery of the Title Commitment to Buyer in
the manner set forth inss.6, its timely delivery of
the Estoppel Certificates in the manner set forth in
ss.7, and its execution and delivery of all of those
documents required to be executed and delivered by it
pursuant toss.12;
(c) All of Seller's representations and warranties under
ss.9 being materially true and correct as of the date
of closing; and
(d) The simultaneous closing of Buyer's purchase of the Companion
Property under the terms of the Companion Contract.
Notwithstanding anything to the contrary contained herein, it is hereby
acknowledged and agreed that the fact that any tenant (other than any Anchor
Tenant) is, as of the date of closing, delinquent in the payment of any amount
payable by it under any Lease will not constitute a default on the part of
Seller hereunder or a breach of any of its representations or warranties, nor
will any such failure, in and of itself, permit Buyer to terminate or defer its
obligation to purchase the Property at the time and in the manner contemplated
in this Agreement.
ss.11. DATE AND PLACE OF CLOSING. The closing will occur on or before
March 31, 1997, at such specific date, time and place in Orlando, Florida as are
mutually agreed to by Seller and Buyer. Possession of the Property (subject,
however, only to the rights of tenants under the Leases) will be delivered to
Buyer at closing. All references in this Agreement to the "closing", the
"closing date" or the "date of closing" will mean the closing of the transaction
contemplated in this Agreement at the time, place and manner contemplated by
this Agreement.
ss.12. CLOSING OBLIGATIONS/PROCEDURES. Seller's sale of the Property to
Buyer will be effected by the parties' taking the following described
obligatory actions at closing.
(a) Purchase Price Payment. Buyer will pay the Purchase Price, plus all
then due Additional Payments, to Seller by means of a federal funds
wire transfer. The amount of all such payments will be adjusted in
the manner contemplated in this Agreement with respect to closing
prorations, credits, allowances and other adjustments.
(b) Transfer of Real Property. Seller will execute and
--------------------------
deliver to Buyer a transferable and recordable
general warranty deed, pursuant to which Seller will
transfer to Buyer marketable fee simple title to the
Real Property, free and clear of all liens and
encumbrances, excepting only the Permitted
Exceptions. The general warranty deed will be in the
form attached hereto as Exhibit J. The general
warranty deed will expressly reserve for the benefit
of Seller, as the owner of Adjacent Land (as that
term is hereinafter defined), access and utility
easements over the Land, so as to facilitate the
development of the Adjacent Land, without materially,
adversely impacting the efficient operation of the
Real Property as a shopping center complex.
Similarly, the general warranty deed will convey for
the benefit of Buyer access and utility easements
over the Adjacent Land (and, if required under any of
the Leases, a parking easement), so as to facilitate
the development and operation of the Land, without
materially, adversely impacting the efficient
development and operation of the Adjacent Land as a
retail complex. The form, content and scope of such
easement reservations and grants will be agreed to by
Buyer and Seller during the Inspection Period.
(c) Assignment of Leases. Seller and Buyer will execute
---------------------
and deliver to each other an assignment and
assumption of Leases, pursuant to which Seller will
assign to Buyer all of Seller's rights, title and
interest in and to the Leases, and Buyer will assume
any and all obligations of Seller thereunder which
arise from and after the date of closing. Seller will
indemnify and hold Buyer harmless from and against
any and all obligations of Seller, which arose prior
to the date of closing. The assignment and assumption
of Leases will be in the form attached hereto as
Exhibit K.
(d) Assignment of Intangible Property. Seller and Buyer
-----------------------------------
will execute and deliver to each other an assignment
and assumption of Intangible Property, pursuant to
which Seller will assign to Buyer all of Seller's
rights, title and interest in and to the Intangible
Property and Buyer will assume any and all
obligations of Seller thereunder which will arise
from and after the date of closing. The assignment
and assumption of Intangible Property will be in the
form attached hereto as Exhibit L.
(e) Transfer of Personal Property. Seller will execute and deliver to
Buyer a transferable ▇▇▇▇ of sale, pursuant to which Seller will
transfer to Buyer marketable fee simple title to the Personal
Property, free and clear of all liens and encumbrances. The ▇▇▇▇ of
sale will be in the form attached hereto as Exhibit M.
(f) Closing Affidavits. Seller will execute and deliver
to Buyer:
(i) An affidavit stating that Seller is not a "foreign person"
within the meaning of ss.1445 of the Internal Revenue Code;
(ii) An affidavit with respect to off-record title matters,
which is sufficient to permit the Title Company to issue a
title policy for the Property in the form contemplated in ss.6
and subparagraph (i) of this ss.12; and (iii) An affidavit
affirming the continuing truth and accuracy of all
representations and warranties set forth in ss.9, or,
conversely, stating the manner, if any, in which such
representations and warranties need to be modified to reflect
post-Effective Date occurrences, which are not within Seller's
reasonable control.
(g) Corporate/Partnership Resolutions. Seller and Buyer
----------------------------------
will each execute and deliver to the other a
certificate of good standing affirming such party's
authority to do business in the state of its
organization and in the State of Florida, a
certified corporate or partnership resolution
affirming the authority of such party to enter into
the transaction contemplated in this Agreement and
further authorizing the individual officer executing
this Agreement and all closing documents on behalf of
such party to take such actions.
(h) Miscellaneous Closing Documents. Seller and Buyer will execute and
deliver to each other a closing statement and such other documents
as are reasonably requested by either Seller or Buyer to further
evidence or effect the sale of the Property to Buyer in the manner
contemplated in this Agreement.
(i) Title Policy. Seller will cause the Title Company to issue an
ALTA Form B owner's title insurance policy (or a marked-up title
commitment acceptable to Buyer) in favor of Buyer in the face amount
of the Purchase Price, insuring in Buyer marketable fee simple title
to the Real Property, free and clear of all liens and encumbrances,
excepting only the Permitted Exceptions. Notwithstanding anything to
the contrary contained herein, Seller will not be required to delete
the survey exception from the Title Policy, unless Buyer has first
obtained and delivered a qualifying survey to the Title Company
permitting such survey exception to be deleted in accordance with
the Title Company's standard practices and procedures.
(j) Original Leases, etc. Seller will deliver to Buyer the originals of
all Leases, Estoppel Certificates, Surviving Contracts and all
documents evidencing the Intangible Property.
(k) Closing Costs. Seller will pay the following costs
at closing:
(i) All premiums and other charges required to permit the Title
Company to issue the title insurance policy referred to in
subparagraph (l) above;
(ii) All documentary stamps required to be
affixed to the general warranty deed to
permit its recording; and
(iii) The real estate commission owed to
▇▇▇▇▇▇▇ Realty of Florida Inc. pursuant
to ss.14.
Buyer will pay the following costs at closing:
(i) All recording fees associated with the recordation of
the general warranty deed referred to in subparagraph
(b) above; and
(ii) All costs associated with Buyer's conduct of any inspections
pursuant to ss.5 and all costs of obtaining any survey of the
Real Property.
Seller and Buyer will each pay any attorney's fees incurred by such party
in connection with the transaction contemplated by this Agreement. Any
costs associated with the closing of this transaction which are not
otherwise specifically addressed in this Agreement will be paid by the
party who, in accordance with Central Florida custom and practice, is
normally required to pay such closing costs.
ss.13. INTERIM OPERATIONS. During the period from and after the Effective
Date and prior to the date of the closing, Seller will manage and maintain the
Property in accordance with its previously established practices. Seller will
not execute, modify or terminate any Lease, without first obtaining the prior
written consent of Buyer. Seller hereby acknowledges and agrees that Buyer will,
in all events, have a period of five business days in which to review and
approve or disapprove any lease or modification or termination thereof submitted
to it by Seller hereunder. If Buyer consents to Seller taking any such action
with respect to any Lease, and if the sale of the Property thereafter closes in
the manner contemplated in this Agreement, then, except as otherwise expressly
agreed in writing by Buyer and Seller, Buyer will be deemed to have assumed and
will pay for all costs incurred with respect to any such Lease, including
without limitation, all tenant improvement costs and leasing commissions related
thereto.
ss.14. BROKERAGE COMMISSIONS. Seller will at closing pay a commission to
▇▇▇▇▇▇▇ Realty of Florida Inc. pursuant to a separate agreement. Except as
otherwise expressly provided above, each of the parties hereto represents and
warrants to the other that it has not contacted or entered into any agreement
with any real estate broker, agent, finder or any other party in connection with
this transaction or taken any other action which could result in any fee being
due and payable to any real estate broker, finder, or other party with respect
to the transaction contemplated hereunder. Each party indemnifies and agrees to
hold the other party harmless from any loss, liability, damage, cost or expense
(including, without limitation, reasonable attorneys' fees) incurred by or
claimed against the other party by reason of a breach of this representation and
warranty. The provisions of this ss.14 will survive the closing.
ss.15. RISK OF LOSS. The risk of loss to the Real Property from the
occurrence of a casualty or a taking by any public authority under the power or
right of eminent domain (or by the threat thereof) will be borne by Seller until
the closing. If the Real Property or any part thereof is substantially damaged
or destroyed as a result of such casualty or is so taken before this transaction
closes, then Seller will promptly notify Buyer of the occurrence of such event
and Buyer will have the sole option of either: (a) proceeding with the closing
and receiving all insurance proceeds or condemnation awards payable as a result
of such casualty or taking, plus, with respect to any casualty, a payment from
Seller in an amount equal to the deductible amount of any insurance policy
covering any such casualty; or (b) terminating this Agreement. This Agreement
will terminate upon Buyer's delivery to Seller, within the time frame set forth
below, written notice of termination pursuant to clause (b), above. If this
Agreement is so terminated, then the Deposit will be returned to Buyer and,
thereafter, the parties will be relieved of any further rights, liabilities or
obligations under this Agreement, except for Buyer's indemnification and
restoration obligations under this ss.5. If Buyer fails to make the required
election pursuant to this ss.15 within ten days after its receipt of Seller's
written notice of the occurrence of any such casualty or taking, then Buyer will
be deemed to have elected to close the transaction pursuant to clause (a) of
this ss.15.
ss.16. DEFAULTS/REMEDIES. If Seller defaults in the performance of any of
its obligations hereunder and such default continues for a period of ten days
after written notice of the alleged existence of such default is given to
Seller, then Buyer may, as its sole and exclusive remedy, pursue the remedy of
specific performance to redress such default. If Buyer defaults on the
performance of any of its obligations hereunder and such default continues for a
period of ten days after written notice of the alleged existence of such default
is given to Buyer, then Seller will be entitled to receive the entire amount of
the Deposit as full and complete liquidated damages to redress such default; it
being expressly acknowledged by the parties hereto that Seller's damages in the
event of a default by Buyer hereunder are uncertain and difficult to ascertain,
and that the receipt of the Deposit constitutes a reasonable liquidation of such
damages and are intended not as a penalty, but as full liquidated damages.
Notwithstanding anything to the contrary contained herein, Seller will not be
deemed to be in default under this Agreement if any fact or circumstance occurs
after the Effective Date which renders any of Seller's representations and
warranties untrue or inaccurate, so long as any such fact or circumstance is not
within the reasonable control of Seller.
ss.17. ATTORNEY'S FEES. If any legal action is commenced by either Seller
or Buyer to enforce its rights hereunder, then all reasonable attorney's fees
and other expenses incurred by the prevailing party in such action will be
immediately due and payable to the prevailing party by the non-prevailing party.
ss.18. NOTICES. All notices required or permitted to be given under this
Agreement must be in writing and must be delivered to Seller or Buyer at its
address set forth below (or such other address as may hereafter be designated by
such party). Any such notice must be personally delivered or sent by registered
or certified mail, overnight courier or facsimile transmission. Any such notice
will be deemed effective when received (if sent by personal delivery, overnight
courier or facsimile transmission) or on the date which is three days after such
notice is deposited in the United States mail (if sent by registered or
certified mail). The parties' addresses for the delivery of all such notices are
as follows:
Seller's Address: PDI Orlando III Limited Partnership
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax #(▇▇▇)▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Buyer's Address: Regency Realty Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax # (▇▇▇)▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Rogers, Towers, ▇▇▇▇▇▇,
▇▇▇▇▇ & Gay
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ss.19. ESCROW AGENT. Escrow Agent agrees to accept, hold and disburse the
Deposit in accordance with the terms and conditions of this Agreement. In the
event of doubt as to Escrow Agent's duties or liabilities under this Agreement,
Escrow Agent may, in its sole discretion: (a) continue to hold the subject
matter of this escrow until the parties mutually agree to the disbursement
thereof or until a judgment of a court of competent jurisdiction determines the
rights of the parties therein; or (b) deposit the same with the Clerk of Circuit
Court of Orange County Florida and upon notifying all parties concerned of such
action, all liability on the part of Escrow Agent will fully terminate except to
the extent of an accounting for items theretofore delivered out of escrow. In
the event of any legal action involving Buyer and Seller wherein Escrow Agent is
made a party by virtue of acting as Escrow Agent hereunder, or in the event of
the commencement of any legal action wherein Escrow Agent interpleads the
subject matter of this escrow, Escrow Agent will be entitled to recover
reasonable attorney's fees and costs incurred, including, without limitation,
those incurred on appeal, if any, and in any administrative, mediation,
arbitration or bankruptcy proceedings, said fees and costs to be charged and
assessed as court costs in favor of the prevailing party and deducted from the
funds interpleaded. Buyer and Seller agree that the Escrow Agent will not be
liable to any party or person whatsoever for misdelivery of the Deposit, unless
such misdelivery is due to the willful breach of this Agreement or gross
negligence on the part of Escrow Agent, nor will Escrow Agent be liable for any
action taken by it, unless taken or suffered in willful disregard of its
obligations hereunder or with gross negligence. Additionally, Seller
acknowledges that in the event of any disagreement between Seller and Buyer
concerning the Deposit, the transaction under this Agreement or any other matter
related to the Property, Escrow Agent may continue to represent Buyer in
connection with such dispute, including negotiations, arbitration, mediation and
litigation, so long as Escrow Agent first delivers the Deposit to the Clerk of
Circuit Court of Orange County, Florida in the manner previously contemplated in
this ss.19.
ss.20. ASSIGNMENT OF AGREEMENT. Neither Buyer, nor Seller may
assign all or any part of this Agreement to any other party, without first
obtaining the written consent thereto of the other party; provided, however,
that Buyer may assign this Agreement to RRC Centers, Inc. without first
having to obtain any consent thereto from Seller.
ss.21. GOVERNING LAW. This Agreement will be construed in
accordance with the laws with the State of Florida.
ss.22. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof and may not be
modified or amended in any manner, except by a written instrument executed by
both parties to this Agreement.
ss.23. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed an original document. This document will not be binding
on the parties, until such time as a counterpart of this document has been
executed by each party and a copy thereof delivered to the other party to this
Agreement.
ss.24. RADON GAS NOTIFICATION. In accordance with the requirements of
Florida Statute ss.404.056
RADON GAS: Radon is a naturally occurring radioactive gas that, when
it is accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from the local county public
health center.
ss.25. REASONABLENESS OF CONSENT. Any consent or approval which is
required or permitted to be given hereunder by either Seller or Buyer will
not be unreasonably withheld or delayed by such party.
ss.26. TIME IS OF THE ESSENCE. Time is of the essence for all purposes of
this Agreement. Any time period specified herein which would otherwise end on a
weekend day or a legal holiday will, for the purpose of this Agreement, be
deemed to instead end on the next business day following such weekend day or
legal holiday.
ss.27. PURCHASE OF COMPANION PROPERTY. As of the Effective Date, Buyer and
PDI St. Lucie I Limited Partnership, an affiliate of Seller, have entered into a
separate Real Estate Purchase Agreement ("Companion Contract") relating to
Buyer's purchase of the East Port Plaza shopping center located in Port St.
Lucie, Florida ("Companion Property"). It is Seller's and Buyer's contemplation
that the closing of Buyer's purchase of the Property under this Agreement will
occur simultaneously with the closing of Buyer's purchase of the Companion
Property under the Companion Contract. It will be a condition precedent to each
of Seller's and Buyer's obligations under this Agreement that there occur a
simultaneous closing of the Companion Property under the terms of the Companion
Contract.
ss.28. RIGHT OF FIRST REFUSAL ON ADJACENT LAND. If at any time during the
five year period after the date of closing, Seller receives a bona fide written
offer from a third party ("Third Party Offer") to purchase all or any part of
the land which is described in attached Exhibit N ("Adjacent Land"), and if
Seller, in good faith, is willing to accept such Third Party Offer on the terms
and conditions specified in such Third Party Offer, then Seller will give
written notice to Buyer of the existence and terms of such Third Party Offer and
will thereafter afford Buyer a period of five days in which to elect to purchase
the portion of the Adjacent Land which is the subject of such Third Party Offer,
on the identical terms and conditions set forth in the Third Party Offer. If
Buyer gives Seller written notice within the aforementioned five-day period that
Buyer so elects to purchase the subject portion of the Adjacent Land, then Buyer
will proceed to purchase such portion of the Adjacent Land from Seller upon the
identical terms and conditions set forth in the Third Party Offer. If Buyer
declines to purchase the subject portion of the Adjacent Land or fails to
respond to Seller's notice within the aforementioned five day period, then, in
either such event, Seller will thereafter be free to sell the subject portion of
the Adjacent Land on the terms and conditions set forth in the Third Party
Offer; provided, however, that if the subject portion of the Adjacent Land is
not sold within 90 days after the outside date for closing specified in such
Third Party Offer on the terms and conditions specified in such Third Party
Offer, then Seller will be again obligated to offer the subject portion of the
Adjacent Land to Buyer as hereinabove provided. The right of first refusal
granted to Buyer hereunder will continue to apply throughout the five year term
set forth above to all portions of the Adjacent Land which are not sold to a
third party in accordance with the provisions of this ss.28.
To the extent any of the existing Leases of the Real Property impose any
restrictions on the manner in which the Adjacent Land is to be used or
developed, then Seller agrees that it will fully comply with such restrictions
and will require any of its successors-in-interest to also comply with such
restrictions. If requested by Buyer, Seller will place of public record a
document or documents, inform and content reasonably satisfactory to, Buyer
subjecting the Adjacent Land to such restrictions.
ss.29. PARK DRY CLEANER SPILL. Seller and Buyer acknowledge that there has
been a spill of Hazardous Materials from the space in the Real Property
currently occupied by Park Dry Cleaners ("Park Dry Cleaners' Spill") and that
Seller has made application to the Florida Department of Environmental
Protection's Drycleaning Solvent Clean-Up Program to cover the cost of the
required remediation of such spill. A Phase III environmental report prepared by
PSI and dated as of March 3, 1997, details the nature of such spill and projects
the cost of remediation of the resulting contamination as being $40,000. Buyer
acknowledges receipt of a copy of the aforementioned Phase III environmental
report. Seller and Buyer hereby agree that Buyer will assume responsibility for
effecting and paying for all required remediation in connection with the Park
Dry Cleaner Spill and will, in consideration of assuming such responsibility,
receive a credit against the Purchase Price at closing equal to $50,000
(representing 125% of the anticipated cost of remediation set forth in the
aforementioned Phase III environmental report). To the extent Buyer receives
reimbursement from the Florida DEP under the aforementioned program for any of
the costs of such remediation, Buyer will, within thirty days after its receipt
of such reimbursement, pay to Seller the lesser of: (a) the amount of such EPA
reimbursement, net of any costs incurred by Buyer in applying for and receiving
any such reimbursement; or (b) the amount of the Purchase Price credit given to
Buyer at closing in connection with the Park Dry Cleaner Spill. Notwithstanding
anything to the contrary contained herein, Buyer will not be responsible for and
Seller will indemnify and hold Buyer harmless from and against any
non-governmental third party claims made against Buyer in connection with the
Park Dry Clean Spill (but not any claims made in connection with the remediation
thereof). The amount of the Purchase Price credit to be given to Buyer hereunder
is subject to Buyer's review and approval of the remediation cost estimate
during the Inspection Period.
ss.30. AUDIT LETTER. Seller acknowledges that Buyer, as a publicly-traded
real estate investment trust, is required to have the financial operations of
the various properties owned by it audited by KPMG Peat Marwick, LLP and the
results thereof filed with the Securities and Exchange Commission. Seller agrees
that it will make all of its financial books and records associated with the
Property available for audit by KPMG Peat Marwick LLP at all reasonable times
after the Effective Date and prior to the date which is six months after the
date of closing Buyer will provide Seller with at least 15 days prior advance
notice concerning the conduct of any such audit by KPMG Peat Marwick LLP. In
addition, Seller hereby agrees that it will, at the request of Buyer and KPMG
Peat Marwick LLP, execute an Audit Representation Letter in substantially the
form and content attached hereto as Exhibit O and will deliver such executed
Audit Representation Letter to KPMG Peat Marwick LLP within 15 days after KPMG
Peat Marwick LLP's request for the same.
ss.31. DEFINED TERMS. For the purpose of this Agreement, the following
terms will have the meanings attributed to such terms in the noted sections
of this Agreement:
"Additional Payments" is defined in ss.4.
"Adjacent Land" is defined in ss.28.
"Agreement" is defined in the preamble.
"Attributable to" is defined in ss.8.
"Base Rents" is defined in ss.8.
"Buyer" is defined in the preamble.
"Companion Contract" is defined in ss.27.
"Companion Property" is defined in ss.27.
"Deposit" is defined in ss.2.
"Effective Date" is defined in the preamble.
"Effective Gross Income" is defined in ss.4.
"Escrow Agent" is defined in ss.2.
"Estoppel Certificates" is defined in ss.7.
"Hazardous Materials" is defined in ss.9.
"Improvements" is defined in ss.1.
"Inspection Period" is defined in ss.5.
"Intangible Property" is defined in ss.1.
"Land" is defined in ss.1.
"Lease" is defined in ss.1.
"Leasing Costs" is defined in ss.8.
"Operating Expense Payments" is defined in ss.8.
"Overage Rents" is defined in ss.8.
"Park Dry Cleaners Spill" is defined in ss.29.
"Permitted Exceptions" is defined in ss.6.
"Property" is defined in ss.1.
"Surviving Contracts" is defined in ss.1.
"Third Party Offer" is defined in ss.28.
"Title Company" is defined in ss.6.
"Title Commitment" is defined in ss.6.
"Title Notice" is defined in ss.6.
ss.32. EXHIBITS. All of the following exhibits, which are attached to
this Agreement as of the Effective Date, are incorporated herein by this
reference:
Exhibit A - Legal Description and Site Plan of Land Exhibit B - List of
Personal Property Exhibit C - Rent Roll Exhibit D - List of Intangible
Property Exhibit E - Intentionally Omitted Exhibit F - List of Accounts
Receivable Exhibit G - List of Leasing Costs To Be Assumed by Buyer
Exhibit H - Form of Estoppel Certificate Exhibit I - List of Lease
Defaults Exhibit J - Form of General Warranty Deed Exhibit K - Form of
Assignment and Assumption of Leases Exhibit L - Form of Assignment and
Assumption of Intangible Property Exhibit M - Form of ▇▇▇▇ of Sale Exhibit
N - Legal Description of Adjacent Land Exhibit O - Form of Audit Letter
Any of the above exhibits which are not attached to this Agreement as of the
Effective Date will be negotiated promptly and in good faith by Seller and Buyer
and will be attached to this Agreement and incorporated therein by this
reference on or before the expiration of the Inspection Period.
Seller and Buyer have executed this Agreement as of the date set forth opposite
their respective names below.
SELLER:
PDI ORLANDO III LIMITED PARTNERSHIP
By ▇▇▇▇▇▇▇ Development Inc.
Date of Execution:_______________
By__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
BUYER:
RRC ACQUISITIONS, INC.
Date of Execution:_______________
By___________________________________
(Name) (Title)
ESCROW AGENT:
(Executing this Agreement solely
for the purpose of acknowledging
its rights and obligations under
ss.18.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
Date of Execution:_______________
By____________________________________
(Name) (Title)
EXHIBIT A
LEGAL DESCRIPTION OF LAND
See attached Schedule A-1.
EXHIBIT B
LIST OF PERSONAL PROPERTY
None.
EXHIBIT C
RENT ROLL
See attached Schedule C-1.
EXHIBIT D
LIST OF INTANGIBLE PROPERTY
Any rights in and to those contracts, agreements, utility arrangements,
warranties, guarantees, indemnities, claims, licenses, applications, permits,
construction warranties, certificates of occupancy, plans and specifications and
other similar items and intangible rights used in connection with or relating to
the Land, Improvements, Personal Property and Leases (including, without
limitation, the non-exclusive right to use the name "Main Street Square"), and
expressly including those operating contracts which are attached hereto as
Schedule D-1 and which are referred to in the Agreement as "Surviving
Contracts".
EXHIBIT E
LIST OF PERMITTED EXCEPTIONS
Intentionally Omitted.
EXHIBIT F
LIST OF ACCOUNTS RECEIVABLE
Attached as Schedule F-1 hereto is an "Aged Delinquent and Prepaid Balances"
report prepared as of 3/14/97, which itemizes all existing accounts receivable
from tenants under the Leases.
EXHIBIT G
LIST OF LEASING COSTS
The following are those Leasing Costs which may be incurred after the date of
closing and which will be the obligation of Buyer under ss.7(g) of the
Agreement:
None.
EXHIBIT H
FORM OF ESTOPPEL CERTIFICATE
See attached Schedule H-1.
EXHIBIT I
The only defaults which exist under the Leases are those referred to in the list
of accounts receivable attached to the Agreement as Exhibit F and the default by
HGMR Enterprises, Inc. which is the subject of the Complaint filed by Seller in
the Circuit Court for Seminole County, Florida, a copy of which complaint is
attached hereto as Schedule 1.
EXHIBIT J
FORM OF GENERAL WARRANTY DEED
See attached Schedule J-1.
EXHIBIT K
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES
See attached Schedule K-1.
EXHIBIT L
FORM OF ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY
See attached Schedule L-1.
EXHIBIT M
FORM OF ▇▇▇▇ OF SALE
See attached Schedule M-1.
EXHIBIT N
LEGAL DESCRIPTION OF ADJACENT LAND
See attached Schedule N-1.
EXHIBIT O
FORM OF AUDIT LETTER
See attached Schedule O-1.