PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the ____ day of October, 1997, between
BLOOMINGDALE ASSOCIATES, LTD., a Florida limited partnership ("Seller"), and RRC
ACQUISITIONS, INC., a Florida corporation, its designees, successors and assigns
("Buyer").
Background
Buyer wishes to purchase a shopping center in the City of ▇▇▇▇▇▇▇,
County of Hillsborough State of Florida, owned by Seller, known as Bloomingdale
Square (the "Shopping Center");
Seller wishes to sell the Shopping Center, together with certain
associated property, to Buyer;
In consideration of the mutual agreements herein, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller
agrees to sell and Buyer agrees to purchase the Property (as hereinafter
defined) on the following terms and conditions:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Agreement means this instrument 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 the party identified as Buyer on the initial page
hereof.
1.5 Closing means generally the execution and delivery of those
documents and funds necessary to effect the sale of the Property by Seller to
Buyer.
1.6 Closing Date means the date on which the Closing occurs.
1.7 Contracts means service contracts and similar agreements affecting
the Shopping Center (excluding Leases) which are freely terminable by the owner
of the Shopping Center upon not more than thirty (30) days' written notice.
1.8 Day means a calendar day, whether or not the term is capitalized.
1.9 ▇▇▇▇▇▇▇ Money Deposit means the deposit delivered by Buyer to
Escrow Agent prior to the Closing under Section of this Agreement, together with
the earnings thereon, if any.
1.10 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, (c) from
any abatement, removal, remedial, corrective, or other response action in
connection with a Hazardous Material, Environmental Law or other order of a
governmental authority or (d) from any actual or alleged damage, injury, threat,
or harm to health, safety, natural resources, or the environment.
1.11 Environmental Law means any current legal requirement in effect at
the Closing Date pertaining to (a) the protection of health, safety, and the
indoor or outdoor environment, (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 ss.ss.300(f) et seq., and any
similar, implementing or successor law, any amendment, rule, regulation, order
or directive, issued thereunder.
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1.12 Escrow Agent means Rogers, Towers, ▇▇▇▇▇▇, ▇▇▇▇▇ & Gay, Attorneys,
whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Fax 904/▇▇▇-▇▇▇▇), or any successor Escrow Agent.
1.13 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
1.14 Hazardous Material means any asbestos, petroleum, petroleum
product, drycleaning solvent or chemical, biological 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.
1.15 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, threatened
Release, abatement, removal, remediation, handling or corrective or response
action to any Hazardous Material.
1.16 Improvements means any buildings, structures or other improvements
situated on the Real Property.
1.17 Inspection Period means the period of time which expires at the
end of business on the forty-fifth (45th) day after the date of execution by the
last of Buyer or Seller to execute this Agreement and transmit a copy of the
fully executed Agreement to the other. If such expiration date is a weekend or
national holiday, the Inspection Period shall expire at the end of business on
the next immediately succeeding business day.
1.18 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.19 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 Seller with respect to
the Property, Improvements and any proposed improvements to the Property, which
Seller may lawfully transfer to Buyer except that, as to financial and other
records, Materials shall include only photostatic copies.
1.20 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem taxes not payable on or before Closing;
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(b) Rights of tenants under Leases; and
(c) Other matters determined by Buyer to be acceptable.
1.21 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 Seller prior to the Closing.
1.22 Property means collectively the Real Property, the Improvements
and the Personal Property.
1.23 Prorated means the allocation of items of expense or income
between Buyer and Seller based upon that percentage of the time period as to
which such item of expense or income relates which has expired as of the date at
which the proration is to be made.
1.24 Purchase Price means the consideration agreed to be paid by Buyer
to Seller for the purchase of the Property as set forth in Section (subject to
adjustments as provided herein).
1.25 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.
1.26 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.
1.27 Rent Roll means the list of Leases attached hereto as Exhibit ,
identifying with particularity 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.
1.28 Seller means the party identified as Seller on the initial page
hereof.
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1.29 Seller Financial Statements means the unaudited balance sheets and
statements of income, cash flows and changes in financial positions prepared by
Seller for the Property, 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 prepared by Seller for the Property, which shall be consistent with past
practice, for any period beginning after the latest of such calendar years, and
ending prior to Closing.
1.30 Shopping Center means the Shopping Center identified on the
initial page hereof.
1.31 Survey means a map of a stake survey of the Real Property 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, Seller, the Title
Insurance company providing Title Insurance to Buyer, and Buyer's lender, and
dated as of the date the Survey was made.
1.32 Tenant Estoppel Letter means a letter or other certificate from a
tenant certifying as to certain matters regarding such tenant's Lease, in
substantially the same form as 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
acceptable to Buyer.
1.33 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.34 Title Insurance means an ALTA Form B Owners Policy of Title
Insurance for the full Purchase Price insuring marketable title in Buyer in fee
simple, subject only to the Permitted Exceptions, issued by a title insurer
acceptable to Buyer.
1.35 Title Insurance Commitment means a binder whereby the title
insurer agrees to issue the Title Insurance to Buyer.
1.36 Transaction Documents means this Agreement, the deed conveying the
Property, the assignment of leases, the ▇▇▇▇ of sale conveying the Personal
Property and all other documents required or appropriate in connection with the
transactions contemplated hereby.
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2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The total Purchase Price for the
Property (subject to adjustment as provided herein) shall be $17,997,000, of
which $17,697,000 shall be allocated to the main shopping center and $300,000 to
the outlot.
The Purchase Price shall be payable in cash at Closing.
(b) Adjustments at Closing. Notwithstanding anything to the
contrary contained in this Agreement or applicable law, the provisions of this
Section shall survive the Closing. All income and obligations attributable to
periods ending on or before the Allocation Date shall be allocated to Seller,
and all income and obligations attributable to periods ending after the
Allocation Date (including the Closing Date) shall be allocated to Buyer.
Without limitation upon the foregoing the following items shall be adjusted or
prorated between Seller and Buyer as set forth below:
(1) The Closing year's real and tangible personal property taxes
shall be prorated between Seller and Buyer as of the Allocation Date (if the
amount of the current year's property taxes are not available, such taxes will
be prorated based upon the prior year's assessment);
(2) Except as provided in subparagraph below, all
income and operating expenses of the Property, including, without limitation,
public utility charges, maintenance, management, and other service charges,
costs and expenses associated with leases entered into between the date of this
Agreement and the Closing Date, and all other normal operating charges shall be
prorated at the Closing effective as of the Allocation Date based upon the best
available information.
(3) Seller will credit Buyer with any prepaid rents and
reimbursements, or unforfeited security deposits with respect to the Leases, but
only to the extent that the same were actually paid by tenants as reflected by
Tenant Estoppel Letters, or if a Tenant Estoppel Letter is not received from a
particular tenant, by the Lease. If the Seller's records disagree with those of
a particular tenant, Seller and Buyer shall negotiate in good faith during the
Inspection Period to resolve the disagreement.
(4) Any rents, percentage rents or tenant reimbursements
payable by tenants after the Allocation Date but applicable to periods on or
prior to the Allocation Date shall be remitted to Seller by Buyer within thirty
(30) days after receipt, less any expenses of the Property found to be
attributable to pre-Allocation Date periods but discovered by Buyer after
Closing. Buyer shall have no obligation to
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collect delinquencies, but should Buyer collect any delinquent rents or other
sums which cover periods prior to the Allocation Date and for which Seller has
received no proration or credit, Buyer shall remit same to Seller within thirty
(30) days after receipt. Buyer will not interfere in Seller's efforts to collect
sums due it prior to the Closing. Seller will remit to Buyer promptly after
receipt any rents, percentage rents or tenant reimbursements received by Seller
after Closing which are attributable to periods occurring after the Allocation
Date. Receipts after Closing of either Buyer or Seller from tenants who do not
designate the period to which they are to be applied 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.
2.2 ▇▇▇▇▇▇▇ Money Deposit. An ▇▇▇▇▇▇▇ Money Deposit in the amount of
$12,500 shall be delivered to Escrow Agent within three (3) days after the date
of execution by the last of Buyer or Seller to execute and transmit a copy of
this Agreement to the other. This Agreement may be terminated by Seller if the
▇▇▇▇▇▇▇ Money Deposit is not received by Escrow Agent by such deadline. The
▇▇▇▇▇▇▇ Money Deposit paid by Buyer shall be deposited by Escrow Agent in an
interest bearing account at First Union National Bank, and shall be held and
disbursed by Escrow Agent as specifically provided in this Agreement. The
▇▇▇▇▇▇▇ Money Deposit shall be applied to the Purchase Price at the Closing.
2.3 Closing Costs.
(a) Seller shall pay:
(1) Documentary stamp and other transfer taxes imposed upon
the transactions contemplated hereby;
(2) Cost of satisfying any liens on the Property;
(3) Cost of title insurance and the costs, if any, of curing title
defects and recording any curative title documents;
(4) All broker's commissions, finders' fees and similar expenses
incurred by either party in connection with the sale of the Property, subject
however to Buyer's indemnity given in Section of this Agreement; and
(5) Seller's attorneys' fees relating to the sale of
the Property.
(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
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(2) Costs of the Phase 1 environmental site assessment to be
obtained by Buyer;
(3) Cost of the Survey;
(4) Cost of recording the deed; and
(5) 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 and all books, records and accounts of Seller related
thereto. Buyer hereby agrees to indemnify and hold Seller 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, such indemnification obligations to survive the termination, breach
or Closing of this Agreement, as the case may be. 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 Seller given within the Inspection Period. If such notice is not timely
given, this Agreement and all rights, duties and obligations of Buyer and Seller
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 be increased by an
additional deposit of $87,500 (to be deposited with Escrow Agent no later than
three (3) business days following the end of the Inspection Period), and shall
not be refundable except upon the terms otherwise set forth herein.
(b) Seller will promptly furnish or make available to Buyer
the documents enumerated on Exhibit 3.1 attached hereto, to the extent such
documents exist and are within Seller's possession or that of Seller's property
manager. Subject to subparagraph (d) below, Buyer, through its officers,
employees and other authorized representatives, shall have the right to
reasonable access to the Property and all records of Seller related thereto,
including without limitation all Leases and Seller Financial Statements, at
reasonable times during the Inspection Period for the purpose of inspecting the
Property, taking soil and ground water samples, conducting Hazardous Materials
inspections, reviewing the books and records of Seller concerning the Property
and otherwise conducting its due diligence review of the Property. Seller shall
cooperate with and assist Buyer in making such inspections and reviews. Seller
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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 Seller if such
contract would be binding upon Seller should this transaction fail to close.
Buyer shall have the right to have due diligence interviews and other
discussions or negotiations with tenants, provided Buyer furnishes Seller
reasonable notice of the time and place of any such interview or discussion and
affords Seller an opportunity to be present.
(c) Buyer, through its officers or other authorized
representatives, shall have the right to reasonable access to all Materials
(other than privileged or confidential materials) for the purpose of reviewing
and copying the same.
(d) Buyer shall not have the right, without first obtaining
Seller's prior written consent, to ▇▇▇▇▇▇ or penetrate the roof, walls,
foundation, or structural component of any of the Improvements or paved areas.
Buyer shall give Seller reasonable notice of all inspections and other
activities of Buyer or its representatives, agents or contractors that will take
place on the Property and afford Seller the opportunity to be present during all
or any part of such inspections and other activities on the Property. All
interior inspections shall be made only (x) with the prior consent of Seller,
(y) on business days and (z) during such hours that will not, in Seller's
opinion, interfere with or disturb the quiet enjoyment of the Property by
tenants. Any inspections of any space leased by a tenant shall be made only with
advance notice to and consent of such tenant and with the opportunity having
been given to Seller to be present. The costs and expenses of Buyer's
investigations shall be borne solely by Buyer and Buyer shall deliver to Seller
a copy of each such test, report and inspection conducted or obtained by Buyer
with respect to the Property. Buyer shall immediately repair and restore any
damage to the Property resulting from the performance of any of Buyer's
activities on the Property. Buyer shall not have the right to perform or cause
to be performed on the Property any investigation, inspection, testing, or
on-site visitation unless and until Buyer delivers to Seller evidence that Buyer
and all persons acting for and on behalf of Buyer in performing any
investigation, inspection, testing and on-site work are covered by comprehensive
general liability insurance, having Seller as a named insured and liability
limits that are acceptable to Seller.
(e) Buyer agrees that all information pertaining to the
Property that Buyer obtains from Seller or in connection with the performance of
its rights under this Agreement shall be held in confidence and not disclosed to
any persons other than Buyer's agents, attorneys and representatives. Buyer
further agrees that, until the Closing, neither the Buyer nor its agents will
disclose the contents of such information or the terms of this Agreement except
to financial institutions who may provide financing to Buyer for the Property.
If this Agreement is terminated for any reason,
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Buyer shall promptly return to Seller all materials in Buyer's or any agent of
Buyer's possession furnished by Seller, or resulting from testing performed by
Buyer, relating to the Property and all such information and the terms of this
Agreement shall continue to be held in confidence by Buyer and its agents. The
provisions of this paragraph shall survive the termination of this Agreement.
3.2 Hazardous Material. Seller will promptly furnish or make available
to Buyer the environmental assessments of the Property in its possession. In
addition, Buyer may order additional environmental assessments of the Property,
provided, however, that Buyer shall not have the right, without first obtaining
Seller's prior consent, to perform or have performed any so-called "Phase Two"
environmental investigation of the Property. A copy of any assessment report, if
made, shall be furnished by Buyer to Seller promptly upon its completion. If an
assessment report discloses the existence of any Hazardous Material or any other
matters concerning the environmental condition of the Property or its environs,
Buyer may notify Seller in writing, within ten (10) business days after receipt
of the assessment report but not later than the end of the Inspection Period,
that it elects to terminate this Agreement, whereupon this Agreement shall
terminate and Escrow Agent shall return to Buyer its ▇▇▇▇▇▇▇ Money Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties,
the Closing shall take place at the offices of Escrow Agent at 10:00 A.M. on the
date which is the fifteenth (15th) day following the expiration of the
Inspection Period, provided that Buyer may designate an earlier date for
Closing.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller 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:
4.1 Organization; Authority. Seller is duly organized and validly
existing as a limited partnership, duly authorized to transact business in the
state of its organization and the state in which the Shopping Center is located,
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 have been duly authorized to do so on behalf of Seller.
Seller is not a "foreign person" under Sections 1445 or 897 of the Internal
Revenue Code nor is this transaction subject to any withholding under any state
or federal law.
4.2 Authorization; Validity. The execution and delivery of this
Agreement by Seller and Seller's consummation of the transactions contemplated
by this Agreement have been duly and validly authorized. This Agreement
constitutes a legal, valid and binding agreement of Seller enforceable against
it in accordance with its terms.
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4.3 Title. Seller will transfer to Buyer, and Buyer will acquire
hereunder, good, marketable and insurable title to, and the entire right, title
and interest in the Property, free and clear of all liens, encumbrances,
liabilities, agreements, leases, judgments, claims, rights, easements,
restrictions and other matters affecting title, except the Permitted Exceptions
and the Leases. At Closing, the issuance of the Title Insurance and the deliver
of the closing documents contemplated by Section shall terminate this
representation and warranty, but shall not limit the representations and
warranties, if any, contained in the closing documents.
4.4 Commissions. Seller has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Seller, Buyer or the Property for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transaction provided herein
except for ▇.▇. ▇▇▇▇▇ Co. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, and Seller agrees to
indemnify Buyer from any such claim arising by, through or under Seller.
4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except for Permitted Exceptions and this Agreement.
4.6 Litigation. There is no litigation or proceeding pending, or to the
best of Seller's knowledge, threatened against Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll, and any Leases or modifications
entered into between the date of this Agreement and the Closing Date with the
consent of Buyer. 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, to
the best knowledge of Seller, true, correct and complete copies thereof, subject
to the matters set forth on the Rent Roll. Between the date hereof and the close
of business on the date which is the fortieth (40th) day of the Inspection
Period, Seller may terminate or modify existing Leases or enter into new Leases
without the consent of Buyer, provided Seller furnishes Buyer a copy of any
proposed modification, termination or new Lease and consults with Buyer
concerning same. Thereafter, Seller will not terminate or modify existing Leases
or enter into any new Leases without the consent of Buyer. All of the Property's
tenant leases are in good standing and to the best of Seller's knowledge 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. No tenant under any
Lease has or will be promised any inducement, concession or consideration by
Seller other than as expressly stated in such Lease, and except as stated
therein there are and will be no side agreements between Seller and any tenant.
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4.8 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 Seller 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. All are in
conformity with generally accepted accounting principles applied on a consistent
basis. 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. Seller 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 Seller's books and
records at any time prior to and for six (6) months following Closing upon
reasonable advance notice in order that they may verify the financial statements
prior to Closing. Seller agrees to execute and deliver or to cause its property
manager to execute and deliver to Buyer or its accountants the Audit
Representation Letter should Buyer's accountants audit the records of the
Shopping Center.
4.9 Contracts. There are no contracts or agreements affecting the
Property, oral or written, which will extend beyond the Closing Date other than
the Contracts. All Contracts are in full force and effect in accordance with
their respective terms, and all obligations of Seller under the Contracts
required to be performed to date have been performed in all material respects;
to Seller's knowledge, no party to any Contract has asserted any claim of
default or offset against Seller with respect thereto and no event has occurred
or failed to occur, which would in any way affect the validity or enforceability
of any such Contract; 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, Seller covenants to fulfill all of its obligations
under all Contracts, and covenants not to terminate or modify any such Contracts
or enter into any new contractual obligations relating to the Property without
the consent of Buyer (not to be unreasonably withheld) except such obligations
as are freely terminable without penalty by Seller upon not more than thirty
(30) days' written notice.
4.10 Maintenance and Operation of Property. From and after the date
hereof and until the Closing, Seller covenants to keep and maintain and operate
the Property substantially in the manner in which it is currently being
maintained and operated and covenants 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, which
consent shall not be unreasonably withheld. In connection therewith, Seller
covenants 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. Seller covenants not to remove from
the Improvements or the Real Property any article included in the Personal
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Property. Seller covenants to maintain such casualty and liability insurance
on the Property as it is presently being maintained.
4.11 Permits and Zoning. To the best knowledge of Seller, the Property
is properly zoned for its present use, and there are no outstanding assessments,
impact fees or other charges related to the Property.
4.12 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and
correct in all material respects. Seller agrees to use reasonable efforts to
obtain current Tenant Estoppel Letters from all Tenants under Leases, which
Tenant Estoppel Letters shall confirm the matters reflected by the Rent Roll as
to the particular tenant.
4.13 Condemnation. Neither the whole nor any portion of the Property,
including access thereto or any easement benefitting the Property, is 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
is there now pending any condemnation, expropriation, requisition or similar
proceeding against the Property or any portion thereof. Seller has received no
notice nor has any knowledge that any such proceeding is contemplated.
4.14 Governmental Matters. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing to Buyer and Seller has
received no notices from any such governmental authorities or agencies of
uncured violations at the Property of building, fire, air pollution or zoning
codes, rules, ordinances or regulations, environmental and hazardous substances
laws, or other rules, ordinances or regulations relating to the Property. Seller
shall be responsible for the remittance of all sales tax for periods occurring
prior to the Allocation Date directly to the appropriate state department of
revenue.
4.15 Repairs. Seller has received no notice of any requirements or
recommendations by any lender, insurance companies, or governmental body or
agencies requiring or recommending any repairs or work to be done on the
Property which have not already been completed.
4.16 Consents and Approvals. Seller has obtained all consents and
permissions necessary to carry out and perform its obligations under this
Agreement.
4.17 Environmental Matters. Seller represents and warrants as of the
date hereof and as of the Closing that Seller has not, and to Seller's knowledge
and subject to the matters reflected in that certain Phase I Environmental
Report dated December, 1987, conducted by Environmental Science and Engineering,
Inc., the Phase II Environmental Site Assessment dated June, 1994, conducted by
Fugro Environmental,
- 13 -
and the September 26 1996, Phase II Soil and Groundwater Sampling conducted by
▇▇▇▇▇▇▇-▇▇▇▇▇▇, copies of each of which shall be promptly furnished to Buyer by
Seller, no other person has, caused any Release, threatened Release, or disposal
of any Hazardous Material at the Property in any material quantity.
4.18 Disclaimer of Certain Warranties. NOTHING IN THIS ARTICLE 4, NOR
ANY OTHER PROVISION OF THIS AGREEMENT, IS INTENDED OR SHALL BE CONSTRUED TO
CONSTITUTE A REPRESENTATION OR WARRANTY BY SELLER WITH RESPECT TO (I) THE FAIR
MARKET VALUE OF THE PROPERTY, OR (II) THE ACCURACY OF ANY PROJECTIONS OR
ESTIMATES OF FUTURE INCOME OR EXPENSES FROM THE OPERATION OF THE PROPERTY.
4.19 Disclaimer of Additional Warranties. BUYER ACKNOWLEDGES THAT THE
CONVEYANCE OF THE PROPERTY IS SPECIFICALLY MADE "AS-IS" AND "WHERE-IS", WITHOUT
ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED (EXCEPT FOR ANY EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND THE EXHIBITS
ATTACHED HERETO AND THE CLOSING DOCUMENTS), INCLUDING, WITHOUT LIMITATION,
IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR
ANY OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE UNIFORM
COMMERCIAL CODE OR OTHERWISE.
BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT
AND THE EXHIBITS ATTACHED HERETO AND IN THE CLOSING DOCUMENTS, NEITHER SELLER
NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
OF, AS TO, CONCERNING, OR WITH RESPECT TO, (i) THE VALUE, NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (ii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND
USES THAT MAY BE CONDUCTED THEREON, (iii) THE COMPLIANCE OF OR BY THE PROPERTY
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY, (iv) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (v) ANY OTHER MATTER
WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT NEITHER SELLER NOR ANY OF
ITS AGENTS HAVE MADE, AND, EXCEPT AS STATED IN THIS AGREEMENT AND IN THE CLOSING
DOCUMENTS, SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES
REGARDING COMPLIANCE OF THE PROPERTY WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING WITHOUT LIMITATION, THOSE PERTAINING TO SOLID
- 14 -
WASTE, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40
C.F.R. PART 261, OR THE DISPOSAL OR EXISTENCE, IN OR ON THE PROPERTY, OF ANY
HAZARDOUS SUBSTANCES, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE
COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, AND THE REGULATIONS
PROMULGATED THEREUNDER. BUYER SHALL RELY SOLELY ON ITS OWN INVESTIGATION OF THE
PROPERTY AND NOT ON ANY STATEMENTS, REPRESENTATIONS, WARRANTIES OR INFORMATION
MADE OR PROVIDED OR TO BE PROVIDED BY SELLER OR ITS AGENTS OR CONTRACTORS EXCEPT
IN THIS AGREEMENT AND/OR IN THE CLOSING DOCUMENTS.
4.20 No Untrue Statement. To the best knowledge of Seller, neither this
Agreement nor any exhibit nor any written statement or Transaction Document
furnished or to be furnished by Seller to Buyer in connection with the
transactions contemplated by this Agreement contains or will contain any untrue
statement of material fact or omits or will omit any material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading.
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.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement and the other Transaction Documents have been duly and validly
authorized by the Board of Directors 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 Seller) constitutes a legal, valid and binding
agreement of Buyer enforceable against it in accordance with its terms.
5.3 Commissions. Buyer has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Buyer or Seller for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transaction provided herein except ▇.▇.
▇▇▇▇▇ Co. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, whose commission shall be paid by Seller;
and Buyer agrees to indemnify Seller from any other such claim arising by,
through or under Buyer.
- 15 -
5.4 Independent Representation. Each party is represented by legal
counsel of its own selection in connection with the negotiation and execution of
this Agreement and the closing of the acquisition of the Property and such legal
counsel is not and has not been directly or indirectly identified, suggested or
selected by the other party. With respect to this Agreement, neither party is in
a significant disparate bargaining position.
6. POSSESSION; RISK OF LOSS
6.1 Possession. Possession of the Property will be transferred to Buyer
at the conclusion of the Closing.
6.2 Risk of Loss. All risk of loss to the Property shall remain upon
Seller until the conclusion of the Closing. If, before the possession of the
Property has been transferred to Buyer, 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, Seller 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 Seller given
within ten (10) business days after such notice from Seller, in which case Buyer
shall receive a return of its ▇▇▇▇▇▇▇ Money Deposit; or
(b) proceed with the purchase of the Property, in which event
Seller shall assign to Buyer all Seller's right, title and interest in all
amounts due or collected by Seller under the insurance policies or as
condemnation awards. In such event, the Purchase Price shall be reduced by the
amount of any insurance deductible to the extent it reduced the insurance
proceeds payable.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance and Survey. Concurrently with the
execution of this Agreement, Seller has provided or caused to be provided to
Buyer the Title Insurance Commitment and a copy of the existing Survey, and
Buyer hereby acknowledges receipt of the same. Buyer may order an update and
recertification of the Survey as it may deem appropriate. Buyer will have
through the last day of the Inspection Period to notify Seller 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 (other than liens
- 16 -
removable by the payment of money) or the updated Survey which is not timely
specified in Buyer's written notice to Seller of Title Defects shall be deemed a
Permitted Exception. Seller shall notify Buyer in writing within five (5) days
of Buyer's notice if Seller intends to cure any Title Defect or other objection.
If Seller elects to cure, Seller shall use diligent efforts to cure the Title
Defects and/or objections by the Closing Date (as it may be extended). If Seller
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 Property, terminate this Agreement and receive a return of the
▇▇▇▇▇▇▇ Money Deposit; or (ii) waive such Title Defects and/or objections and
close the purchase of the Property subject to them.
(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 Seller, Seller shall on request deliver
to Buyer an affidavit stating, if true, that such judgments, bankruptcies or the
returns are not against Seller. Seller further agrees 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 mechanics'
liens on the Property or parties in possession of the Property other than
tenants under Leases and Seller.
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) Seller's warranties and representations under this
Agreement shall be true and correct as of the Closing Date, and Seller shall not
be in default hereunder.
(b) All obligations of Seller contained in this Agreement,
shall have been fully performed in all material respects and Seller shall not be
in default under any covenant, restriction, right-of-way or easement affecting
the Property.
(c) None of the following tenants leasing space in the
Shopping Center shall have become a Bankrupt Tenant:
Wal-Mart Blockbuster
Publix KayBee Toys
Eckerd
- 17 -
For purposes of this Agreement, the term "Bankrupt Tenant" shall mean any tenant
(a) that (i) makes a general assignment for the benefit of creditors; (ii) files
a voluntary bankruptcy petition; (iii) becomes the subject of an order for
relief or is declared insolvent in any federal or state bankruptcy or insolvency
proceedings; (iv) files a petition or answer seeking for the tenant a
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law; (v) files an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against the
tenant in a proceeding of the type described in subclauses (i) through (iv) of
this clause (a); or (vi) seeks, consents to or acquiesces in the appointment of
a trustee, receiver, or liquidator of the tenant or of all or any substantial
part of the tenant's properties; or (b) against which a proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law has been commenced and one hundred twenty (120)
days have expired without dismissal thereof or with respect to which, without
the tenant's consent or acquiescence, a trustee, receiver or liquidator of the
tenant or of all or any substantial part of the tenant's properties has been
appointed and ninety (90) days have expired without the appointment having been
vacated or stayed, or ninety (90) days have expired after the date of expiration
of a stay, if the appointment has not previously been vacated.
(d) A Title Insurance Commitment in the full amount of the
Purchase Price shall have been issued and "marked down" through Closing, subject
only to Permitted Exceptions.
(e) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear
excepted.
(f) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) A special warranty deed in proper form for recording, duly
executed and acknowledged so as to convey to Buyer the fee simple title to the
Property, subject only to the Permitted Exceptions;
(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 Seller;
(3) A blanket assignment (the "Assignment") to Buyer of
all Leases
and the Contracts, together with such permits and licenses (to the extent
assignable) as may affect the Property, including an indemnity against breach of
such instruments by Seller prior to the Closing Date, which indemnity shall be
reciprocated by Buyer for breaches occurring from and after the Closing Date;
- 18 -
(4) A ▇▇▇▇ of sale with respect to the Personal
Property and Materials;
(5) Notices of sale to tenants of the Shopping Center
in form
mutually agreeable to Seller and Buyer, duly executed by Seller;
(6) 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;
(7) All Tenant Estoppel Letters obtained by Seller,
which must
include Wal-Mart, Blockbuster, Publix, KayBee Toys and Eckerd, 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 and distributed to the tenants by Seller, the substance of
which Tenant Estoppel Letters must confirm the Rent Roll;
(8) A general assignment of all assignable existing
warranties
relating to the Property;
(9) A mechanics lien and possessory affidavit,
non-foreign affidavit,
non-tax withholding certificates and such other documents as may reasonably be
required by Buyer or its counsel in order to effectuate the provisions of this
Agreement and the transactions contemplated herein;
(10) 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 Seller's custody or control;
(11) Certificates of Seller and its constituent entities as may be
reasonably required by the title insurance company which affect the
authorization of the transactions described herein;
(12) All keys and other means of access to the
Improvements in the
possession of Seller or its agents;
(13) Materials; and
(14) 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 ▇▇▇▇▇▇▇
- 19 -
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 .
8.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement are subject to satisfaction or waiver by Seller 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 Seller at or prior to the
Closing the following, which shall be reasonably satisfactory to Seller:
(1) Delivery and/or payment of the balance of the Purchase
Price in accordance with Section at Closing;
(2) Notices of sale to tenants of the Shopping Center
in form
mutually agreeable to Seller and Buyer, duly executed by Buyer;
(3) An original counterpart of the Assignment,
executed by
Buyer; and
(4) Such other documents as Seller may reasonably
request to
effect the transactions contemplated by this Agreement.
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 Seller elects in writing to terminate this Agreement,
then the ▇▇▇▇▇▇▇ Money Deposit shall be promptly delivered to Seller 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. PRE-CLOSING BREACH; REMEDIES
9.1 Breach by Seller. In the event of a breach of Seller's covenants or
warranties herein and failure by Seller to cure such breach within the time
provided for
- 20 -
Closing, Buyer may, at Buyer's election (i) 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)
enforce this Agreement by suit for specific performance; or (iii) waive such
breach and close the purchase contemplated hereby, notwithstanding 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, Seller'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 Seller of such amounts, the parties shall
have no further rights, claims, liabilities or obligations under this Agreement
(except as survive termination). The limitation on Seller's remedies contained
in this Section does not apply to (i) defaults or breaches by Buyer in respect
of any obligation or agreement contained herein (or in any other document or
agreement executed in connection with the Closing) that survives Closing, or
(ii) any action taken by Buyer to interfere with the delivery of the ▇▇▇▇▇▇▇
Money Deposit to Seller if Seller is entitled to the delivery of the ▇▇▇▇▇▇▇
Money Deposit under this Agreement.
10. INTENTIONALLY OMITTED
11. MISCELLANEOUS
11.1 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.
11.2 Radon Gas. Radon is a naturally occurring radioactive gas which,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon which
exceed federal and state guidelines have been found in buildings in the state in
which the Property is located. Additional information regarding radon and radon
testing may be obtained from the county public health unit.
11.3 Entire Agreement. 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
Seller.
11.4 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
- 21 -
overnight courier service or facsimile (followed promptly by hard copy) at the
addresses set forth below:
As to Seller: Bloomingdale Associates, Ltd.
c/o Sarofim Realty Advisors Co.
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Bloomingdale Associates, Ltd.
c/o ▇. ▇. ▇▇▇▇▇ Co.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
Bloomingdale Associates, Ltd.
c/o ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
With copies to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
------------------ -----------
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
--------------------------------------------
3400 Renaissance Tower
--------------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
As to Buyer: RRC Acquisitions, Inc.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
- 22 -
With a copy to: Rogers, Towers, ▇▇▇▇▇▇, ▇▇▇▇▇ & Gay
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.
11.5 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.
11.6 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.
11.7 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.
11.8 Time of Essence. Time is of the essence of this Agreement.
11.9 Governing Law. This Agreement shall be governed by the laws of the
state in which the Property is located, 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 the county in
which Escrow Agent's principal place of business is located. Each party waives
its right to jurisdiction or venue in any other location.
11.10 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
- 23 -
successors and assigns. No third parties, including any brokers or creditors,
shall be beneficiaries hereof.
11.11 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.
11.12 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.
11.13 Further Instruments, Etc. Seller 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.
11.14 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.15 No Recording. Neither this Agreement nor any notice, memorandum
or other notice or document relating hereto shall be recorded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses:
RRC ACQUISITIONS, INC.,
a Florida corporation
Name:
By:
Its:
Name:
Date: October ______, 1997
Tax Identification No. ▇▇-▇▇▇▇▇▇▇
"BUYER"
- 24 -
Witnesses:
BLOOMINGDALE ASSOCIATES, LTD.,
a Florida limited partnership
By Its General Partner:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Company, Ltd.,
a Florida limited partnership
By Its General Partners:
RAB Holdings, Inc., a Florida
Name: corporation
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
As to RAB Holdings, Inc. President
and
WRC Holdings, Inc., a Texas
Name: corporation
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
As to WRC Holdings, Inc. President
Tax Identification No:
"SELLER"
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JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of agreeing to
comply with the terms hereof insofar as they apply to Escrow Agent. Escrow Agent
shall receive and hold the ▇▇▇▇▇▇▇ Money Deposit in trust, to be disposed of in
accordance with the provisions of this joinder and the foregoing Agreement. The
▇▇▇▇▇▇▇ Money Deposit shall be invested by Escrow Agent in an interest bearing
account at First Union National Bank.
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 Seller (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 or Escrow Agent is uncertain 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 Seller 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 Seller 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 Seller 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 Seller and
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neither Buyer nor Seller shall have delivered any written objection to the
disbursement within 14 days after receipt of Escrow Agent's notice. No notice by
Buyer or Seller 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. Continuing Counsel. Seller acknowledges that Escrow Agent is counsel
to Buyer herein and Seller agrees that in the event of a dispute hereunder or
otherwise between Seller and Buyer, Escrow Agent may continue to represent Buyer
notwithstanding that it is acting and will continue to act as Escrow Agent
hereunder, it being acknowledged by all parties that Escrow Agent's duties
hereunder are ministerial in nature.
5. Tax Identification. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
ROGERS, TOWERS, ▇▇▇▇▇▇, ▇▇▇▇▇ & GAY
By:
Its Authorized Agent
Date: , 199_
"ESCROW AGENT"
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EXHIBIT
Audit Representation Letter
--------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
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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.
Very truly yours,
"Seller/Manager"
Name
Title
EXHIBIT
Legal Description of Real Property
A parcel of land lying in the East 1/2 of Section 11, Township 30 South, Range
20 East, Hillsborough County, Florida, said parcel being more particularly
described as follows:
From the Northeast corner of said Section 11, run thence S.89o 51'40"W., 30.00
feet along the North boundary of said Section 11; thence S.00o 00'04"E., 35.00
feet to the point of intersection of the South right-of-way of Bloomingdale Road
and the West right-of-way of ▇▇▇▇ Shoals Road to Point of Beginning "A"; thence
along the aforesaid West right-of-way line of ▇▇▇▇ Shoals Road, S.00o 00'04"E.,
423.71 feet to Point of Beginning "B"; thence continue along said West
right-of-way line, S.00o 00'04"E., 731.29 feet; thence leaving said West
right-of-way line, S.89o 59'56"W., 1285.52 feet; thence N.00o 11'06"W., 1151.90
feet to the aforesaid South right-of-way line of Bloomingdale Road; thence along
said South right-of-way line, N.89o 51'40"E., 830.51 feet; leaving said South
right-of-way line, S.00o 00'04"E., 205.00 feet; thence N.89o 51'40"E., 250.00
feet; thence S.00o 00'04"E., 18.71 feet; thence N.89o 51'40"E., 11.29 feet;
thence S.00o 00'04"E., 200 feet; thence N.89o 51'40"E., 220.00 feet to Point of
Beginning "B".
Containing 30.831 acres, more or less.
ALSO from Point of Beginning "A", along the aforesaid South right-of-way line of
▇▇▇▇ Shoals Road S.00o 00'04"E., 15.00 feet; thence leaving said South
right-of-way line, S.89o 51'40"W., 208.71 feet; thence N.00o 00'04"W., 15.00
feet to the South right-of-way line of Bloomingdale Road; thence along said
South right-of-way line, N.89o 51'40"E., 208.71 feet to Point of Beginning "A".
Containing 0.072 acres, more or less.
Having a combined acreage of 30.903 acres, more or less.
EXHIBIT
Rent Roll
EXHIBIT
Form of Estoppel Letter
_____________________, 199_
RRC Acquisitions, Inc.
Regency Centers, Inc.
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RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised you may purchase the above
Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of ___________________________,
Landlord, in the above Shopping Center, and is currently in
possession and paying rent on 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.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
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____________________________________(Tenant)
Mailing Address:
____________________________ By:________________________________________
Its:_________________________________
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EXHIBIT 3.1
DOCUMENT REQUEST LIST
Items To Be Provided By Seller (to the extent they are in existence and in
Seller's possession or in the possession of Seller's property manager):
1) Property Specifications (Zoning)
2) As Built Plans & Specs (arch. and engineering)
3) Site Plan (including suite numbers)
4) Legal Description
5) Parking Information - Space count
6) Copy of All Leases (and amendments) & Lease Briefs
7) Certificates of Occupancy - All current tenants
8) Schedule of Security Deposits
9) Most recent Rent Roll (with suite #'s, rent escalations,
and option period
info)
10) Sales Reports (most recent 3 Years) for tenants reporting 11)
Current Rent ▇▇▇▇▇▇▇▇ (by category, base, CAM, etc.) 12) Current
Delinquency Report (with explanations for balances > $1,000) 13) Tenant
Activity Register for all Current Tenants (▇▇▇▇▇▇▇▇ & payments) 14)
Tenant Estoppels 15) Property Operating Results - Most recent 3 Years
16) Property Capital Expenditures - Most recent 3 Years 17) Audited
Financial Statements - 3 Years 18) Real Estate and other tax bills - 3
Years 19) Year to Date Financials & YTD detail general Ledger 20)
Existing Service Agreements and Warranties 21) Three years loss history
- reported claims 22) Most Recent Year Expense Recovery Reconciliation
23) Breakdown of CAM Pools 24) Proof Sales Tax Payments are Current 25)
Seller's Budget for up-coming/current year 26) Utility Bills for last
12 mths/deposits 27) Personal Property Inventory 28) Existing Title
Insurance Policy 29) Available Inspection Reports (environmental, roof,
structural, etc.) 30) Summary of Tenant Contacts (with address and
telephone numbers)
With local (incld store#) & national addresses
31) Survey
32) Tax plat map
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