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PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 4th day of April, 1998, between
SILVERLAKE DEVELOPMENT CO., LTD., a Kentucky limited partnership ("Seller"), and
RRC ACQUISITIONS TWO, INC., a Florida corporation, its designees, successors and
assigns ("Buyer").
Background
Buyer wishes to purchase a shopping center in the City of Erlanger,
County of Kenton, Commonwealth of Kentucky, owned by Seller, known as Silverlake
Shopping Center (the "Shopping Center");
Seller wishes to sell the Shopping Center 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 J.
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 all service contracts, agreements or other instruments to be
assigned by Seller to Buyer at Closing.
1.8 Day means a calendar day, whether or not the term is capitalized.
1.9 Xxxxxxx Money Deposit means the deposit delivered by Buyer to Escrow Agent
prior to the Closing under Sections 2.2 and 3.1 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.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.6901 et seq.,
Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977,
33 USC ss.1251 et seq., Clean Air Act of 1966, as amended, 42 USC ss.7401 et
seq., Toxic Substances Control Act of 1976, 15 USC ss.2601 et seq., Hazardous
Materials Transportation Act, 49 USC App. ss.1801, Occupational Safety and
Health Act of 1970, as amended, 29 USC ss.651 et seq., Oil Pollution Act of
1990, 33 USC ss.2701 et seq., Emergency Planning and Community Right-to-Know Act
of 1986, 42 USC App. ss.11001 et seq., National Environmental Policy Act of
1969, 42 USC ss.4321 et seq., Safe Drinking Water Act of 1974, as amended by 42
USC ss.300(f) et seq., and any similar, implementing or successor law, any
amendment, rule, regulation, order or directive, issued thereunder.
1.12 Escrow Agent means Rogers, Towers, Xxxxxx, Xxxxx & Gay, Attorneys, whose
address is 0000 Xxxxxxxxxx Xxxx., Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000 (Fax
904/000-0000), 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 all buildings, structures or other improvements situated
on the Real Property.
1.17 Inspection Period means the period of time which expires at midnight on the
thirtieth (30th) day after the date on which Seller delivers to Buyer an
original of this Agreement executed by Seller. If such expiration date is a
weekend day or national holiday, the Inspection Period shall expire at midnight
on the next immediately succeeding business day.
1.18 Leases means all existing leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property, but excluding any
subleases or occupancy agreements to which Seller is not a party. 1.19 Master
Lease means the agreement executed by and between Cincinnati Southern Railway,
as owner, and the Cincinnati, New Orleans and Texas Pacific Railway Company, an
Ohio corporation, as lessee, dated as of January 1, 1987. 1.20 Materials means
certain information regarding the Property, including those items listed on
Exhibit B, attached hereto and incorporated by reference herein, together with
any additional information that may be provided or made available to Buyer,
including all plans, drawings, specifications, soil test reports, environmental
reports, surveys, and similar documentation, if any, 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. Materials shall exclude
appraisals, market studies, loan documents, financial statements, tax returns,
documents which are subject to the attorney-client privilege, documents which
relate to former tenants of the Property, documents which relate to the cost of
development of the Property and Seller's organizational documents.
1.21 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for taxes and assessments, if any, not payable on or before Closing;
(b) Rights of tenants under Leases;
(c) Easements, agreements, restrictions, covenants and legal highways of record
and all other matters set forth in the Title Insurance Commitment excluding only
those Title Objections" (hereinafter defined), if any (i) which are set forth in
a "Title Objection Notice" (hereinafter defined) timely delivered to Seller
pursuant to Section 7.1(a) hereof and (ii) which Buyer has not waived pursuant
to clause (i) of Section 7.1(a) hereof.
(d) Matters which would be disclosed by an accurate survey of the Property;
(e) Zoning, building code, subdivision and other governmental rules,
regulations, requirements and laws; and
(f) Liens, encumbrances and other interests created by, suffered by or arising
out of the acts of, Buyer or any person or entity claiming by or through Buyer.
1.22 Personal Property means all of Seller's right, title and interest in and to
(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, partitions, fire prevention
and extinguishing systems located in or on the Improvements, and (b) all
Materials, provided the same are now owned or are acquired by Seller prior to
the Closing. Personal Property does not include any property owned by tenants or
subtenants.
1.23 Property means collectively the Real Property, the Improvements and the
Personal Property.
1.24 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.
1.25 Purchase Price means the consideration agreed to be paid by Buyer to Seller
for the purchase of the Property as set forth in Section 2.1 (subject to
adjustments as provided herein).
1.26 Railroad Lease means the lease executed by and between the Cincinnati, New
Orleans and Texas Pacific Railway Company, an Ohio corporation, as lessor, and
Seller, as lessee, dated as of May 20, 1988 and recorded at lease Book 17, Page
412 of the Kenton County Clerk's records at Covington, Kentucky.
1.27 Real Property means (a) fee simple title to that portion of the Real
Property identified on Exhibit A as Parcel 1 and all easements, licenses,
privileges, rights of way and other appurtenances pertaining to or accruing to
the benefit of said Parcel 1, (b) a leasehold estate to that portion of the Real
Property identified on Exhibit A as Parcel 4, and (c) easement interests in that
portion of the Real Property identified on Exhibit A as Parcels 2, 3A and 3B.
1.28 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.
1.29 Rent Roll means the list of Leases, together with certain information
related thereto, attached hereto as Exhibit C.
1.30 Seller means the party identified as Seller on the initial page hereof.
1.31 Seller Financial Statements means the unaudited operating statements of the
Property prepared by Seller for the two (2) calendar years next preceding the
date of this Agreement and all monthly operating statements of the Property
prepared by Seller for calendar year 1998 through the date hereof.
1.32 Shopping Center means the Shopping Center identified on the initial page
hereof.
1.33 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 l, 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.
1.34 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 D, 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.
1.35 Title Defect means any exception in the Title Insurance Commitment or any
matter disclosed by the Survey, other than a Permitted Exception.
1.36 Title Insurance Policy 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 Chicago Title
Insurance Company or another title insurer acceptable to Buyer.
1.37 Title Insurance Commitment means a binder whereby the title insurer agrees
to issue the Title Insurance Policy to Buyer.
1.38 Transaction Documents means this Agreement, the deed conveying the
Property, the assignment and assumption of Leases and Contracts, the xxxx of
sale conveying the Personal Property, an assignment and assumption of the
Railroad Lease and all other documents required or appropriate in connection
with the transaction contemplated hereby.
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 $9,238,000.00. The
Purchase Price shall be payable by wire transfer of immediately available funds
at Closing.
(b) Adjustments to the Purchase Price. The Purchase Price shall
be adjusted as of the Closing Date by:
(1) prorating the Closing year's real and tangible personal
property taxes and assessments, if any, 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 immediately preceding year's assessment).
Notwithstanding the foregoing, the portion of the real estate taxes and
assessments with respect to the Shopping Center which is payable by The Kroger
Co., which is 59.7014% of the total real estate taxes, shall not be prorated,
and there shall be no offset against the Purchase Price on account thereof;
(2) prorating as of the Allocation Date cash receipts and
expenditures for the Shopping Center, the annual rent payable under the Railroad
Lease, and other items customarily prorated in transactions of this sort; and
(3) subtracting the amount of security deposits held by
Seller and
not applied to tenant obligations under the Leases, and, prepaid rents from
tenants under the Leases and credit balances, if any, of any tenants (but only
to the extent not prorated pursuant to clause (2) above). 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 incurred on or prior to the Allocation Date which (a) are discovered by
the Buyer after Closing, (b) are paid for by the Buyer and (c) were not
accounted for in previous prorations or adjustments. Buyer shall use reasonable
efforts to collect delinquencies, but shall not be required to institute legal
proceedings on account thereof. Should Buyer collect any delinquent rents or
other sums which cover periods prior to the Allocation Date and for which Seller
has not received proration or credit, Buyer shall remit same to Seller within
thirty (30) days after receipt, less any direct, reasonable, out-of-pocket costs
of collection paid to unrelated third parties. Buyer will not interfere in
Seller's efforts to collect sums due it for periods prior to the Closing and
Seller shall have the continuing right after Closing to pursue delinquent rents
from tenants. 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. Undesignated
funds received after Closing by either Buyer or Seller from tenants in the
Shopping Center shall be applied first to current rents and reimbursements
attributable to post-Allocation Date periods, and then to delinquent rents and
reimbursements for such tenant(s) attributable to pre-Allocation Date periods.
2.2 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the amount of
$25,000.00 shall be delivered to Escrow Agent within three (3) days after the
date on which Seller delivers to Buyer an original of this Agreement executed by
Seller. This Agreement may be terminated by Seller if the Seller does not
receive, within said three (3) day period, written confirmation from Escrow
Agent that the Xxxxxxx Money Deposit has been received by Escrow Agent by such
deadline. The Xxxxxxx 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 Xxxxxxx 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
transfer of the Property to Buyer;
(2) Cost of satisfying any liens on the Property existing
as of the
Allocation Date which are not Permitted Exceptions;
(3) Cost of the Title Insurance Policy and the costs, if
any, of curing any Title Defects which Seller elects, in its discretion, to
cure, and recording any curative title documents;
(4) All broker's commissions, finders' fees and similar
expenses
incurred by Seller in connection with the sale of the Property, including the
amount due to Power Realty Advisors, subject however to Buyer's indemnity given
in Section 5.3 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;
(2) Costs of the Phase 1 environmental site
assessment to be obtained by Buyer;
(3) Costs of the Survey;
(4) Cost of recording the deed;
(5) All broker's commissions, finder's fees and similar
expenses incurred by Buyer in connection with the purchase of the Property,
excluding those payable to Power Realty Advisors, and subject, however,
to Seller's indemnity given in Section 4.1(c) of this Agreement; and
(6) 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, underwrite the tenants and review their Leases,
and to otherwise conduct its due diligence review of the Property, and the
Materials. Buyer shall 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.
Buyer's obligation to indemnify shall expressly survive the Closing or the
termination of this Agreement and shall not be limited to the Xxxxxxx Money
Deposit. Prior to any entry on the Property by Buyer or any of its agents,
employees, consultants or contractors, Buyer shall provide to Seller evidence of
liability insurance, naming Seller as an additional insured, in form and
substance reasonably satisfactory to Seller. 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 Xxxxxxx Money Deposit. If Buyer elects to go
forward, the Xxxxxxx Money Deposit shall be increased by an additional deposit
of $100,000.00 (to be deposited with Escrow Agent no later than the first day
after 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 B attached hereto to the extent that they are in
Seller's possession. Buyer, through its officers, employees and other authorized
representatives, shall have the right to reasonable access to the Property,
Leases and Seller Financial Statements, at reasonable times during the
Inspection Period for the purpose of inspecting the Property, conducting
Hazardous Materials inspections and otherwise conducting its due diligence
review of the Property. Seller shall cooperate with and assist Buyer in making
such inspections and reviews provided that such cooperation shall be at no cost
to Seller. Buyer shall not interfere with the business of Seller or with any
tenants, and Buyer shall restore the Property to the same condition as it
existed immediately prior to the conducting of any such inspection, study or
investigation immediately upon completion of each such inspection, study or
investigation. Buyer shall not conduct any boring, drilling, cutting or other
intrusive tests without the prior written consent of Seller, which consent
Seller shall have no obligation to give. Buyer shall not permit any liens or
encumbrances to arise or exist against the Property in connection with or as a
result of its inspections, studies or investigations. A copy of any inspection,
study or investigation reports or test results shall be furnished by Buyer to
Seller promptly upon their completion. Buyer, for itself and its agents, agrees
not to enter into any contract with existing tenants prior to Closing. Buyer
shall have the right, with reasonable prior written notice to Seller, to have
due diligence interviews with tenants; provided, however, that Seller shall have
the opportunity to be present at all such interviews. At Seller's option, a
representative of Seller may accompany Buyer, its agents, employees and/or
representatives during any time at which any of them are on the Property. Except
as provided in this Agreement, Buyer shall not visit the Property nor make
contact with the tenants, contractors or consultants of the Property, except
that Buyer may make follow-up telephone calls to clarify issues raised during
site visits. The obligations of Buyer under this Section 3.1(b) shall survive
termination of this Agreement.
(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) with reasonable prior written
notice to Seller, for the purpose of reviewing and copying the same at its
expense.
(d) Seller has or will make the Materials available to Buyer. By
providing, and/or making available the Materials to Buyer, Seller, and its
partners, agents, attorneys, representatives, principals and affiliates are not
making, nor shall be deemed to have made, any representations or warranties,
implied or otherwise, as to the accuracy or completeness of the Materials and/or
any information or conclusions contained therein. Further, Seller, and its
partners, agents, attorneys, representatives, principals and affiliates are not
making, nor shall any of them be deemed to have made, any representations or
warranties as to the skill and care taken in the preparation of the Materials.
Seller, and its partners, agents, attorneys, representatives, principals and
affiliates are not responsible for conditions or consequences arising from
relevant facts that were concealed, withheld, or not disclosed by any third
party (including any consultant or any regulatory or governmental agency), or
any persons interviewed as part of the preparation of the Materials. Buyer also
acknowledges that the information referenced in the Materials may change over
time and that Buyer must satisfy itself as to whether or not the Materials are
accurate.
3.2 Hazardous Material. Prior to the end of the Inspection Period Buyer
may order a phase 1 environmental assessment of the Property. A copy of any
assessment report, if made, shall be furnished by Buyer to Seller promptly upon
its completion.
3.3 Time and Place of Closing. Unless otherwise agreed in writing by the
parties, the Closing shall take place at the offices of Seller's attorneys at
10:00 A.M. on the date which is the tenth (10th) day following the expiration of
the Inspection Period, provided that Buyer may designate an earlier date for
Closing if mutually agreeable to Seller.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
4.1 Warranties, Representations and Covenants. Seller warrants and
represents as follows as of the date of this Agreement and, unless Seller
notifies Buyer otherwise on or prior to Closing, as of the Closing and where
indicated covenants and agrees as follows:
(a) Organization; Authority. Seller is duly organized and validly
existing under the laws of 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.
(b) Authorization; Validity. The execution and delivery of this
Agreement by Seller and Seller's consummation of the transaction contemplated by
this Agreement have been duly and validly authorized. Assuming the valid
execution and delivery of this Agreement by Buyer, this Agreement constitutes a
legal, valid and binding agreement of Seller enforceable against it in
accordance with its terms, subject to the following qualifications: (1) the
effect of applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally; and (2) the
effect of the exercise of judicial discretion in accordance with general
principles of equity (whether applied by a court of law or of equity).
(c) 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 Power Realty Advisors ("Broker") and Seller agrees to indemnify Buyer
from any such claim arising by, through or under Seller.
(d) Sale Agreements. The Property is not subject to any
outstanding agreement(s) of sale, option(s) to purchase, or other right(s) of
third parties to acquire any ownership interest therein, except for Permitted
Exceptions and this Agreement.
(e) Litigation. There are no actions, suits or proceedings
pending against Seller with respect to which Seller has been served notice, or
to the best of Seller's knowledge, otherwise pending or threatened against
Seller which, if determined adversely to Seller, would (1) adversely affect its
ability to perform its obligations hereunder or (2) materially and adversely
affect the Property.
(f) Leases. To the best of Seller's knowledge, (1) Seller has
delivered or made available to Purchaser complete copies of all Leases and other
occupancy agreements affecting the Property to which Seller is a party, and (2)
the Rent Roll is true and complete in all material respects. Except as disclosed
in the Rent Roll: (a) Seller has received no written notice from any tenant
claiming that Seller is currently in default in its material obligations as
landlord under any Lease; (b) to the best of Seller's knowledge, no tenant is in
default in any material obligation under its Lease; and (c) no rent has been
paid by any tenant more than one month in advance. Notwithstanding the
foregoing, Seller does not represent or warrant that any particular Lease will
be in effect or free from default as of the Closing.
(g) Financial Statements. To the best of Seller's knowledge, 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. Seller covenants to furnish promptly to Buyer copies of the
Seller Financial Statements together with unaudited updated monthly reports of
cash flow for periods beginning after December 31, 1997. Buyer and its
independent certified accountants shall be given access to Seller's books and
records at any time prior to and for one (1) month following Closing upon
reasonable advance written notice in order that they may verify the Seller
Financial Statements for the period of January 1, 1997 through the date of
Closing. Seller agrees to execute and deliver to Buyer or its accountants the
Audit Representation Letter should Buyer's accountants audit such records of the
Shopping Center. Buyer and Seller agree that Seller is permitting such an audit
solely as an accommodation to Buyer in connection with Buyer' compliance with
regulations promulgated by the U.S. Security and Exchange Commission. Buyer
agrees that Buyer will not assert any claim against Seller as a result of any
such audit and/or Audit Representation Letter. Without limiting the generality
of the foregoing, Buyer shall not assert that Seller has breached any of its
representations or warranties under this Agreement as a result of such audit or
any information which is disclosed in connection with such audit.
(h) Contracts. Except for Leases, Contracts and Permitted
Exceptions, to the best of Seller's knowledge, there are no management, service,
maintenance, utility or other contracts or agreements affecting the Property,
oral or written, which extend beyond the Closing Date and which would bind Buyer
or encumber the Seller's interest in the Property for more than thirty (30) days
after Closing. To the best of Seller's knowledge, (1) 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; (2) no party to any Contract has asserted
any claim of default or offset against Seller with respect thereto; and (3) 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 material 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.
(i) Maintenance and Operation of Property. From and after the
date hereof and until the Closing, Seller covenants (1) to keep and maintain and
operate the Property substantially in the manner in which it is currently being
maintained and operated; (2) 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 (not to be
unreasonably withheld); (3) not to remove from the Improvements or the Real
Property any article included in the Personal Property outside the ordinary
course of business; and (4) to maintain such casualty and liability insurance on
the Property as it is presently being maintained.
(j) Permits and Zoning. To the best knowledge of Seller, there
are no material permits and licenses (collectively referred to as "Permits")
required to be issued to Seller by any governmental body, agency or department
having jurisdiction over the Property which materially affect the ownership or
the use thereof which have not been issued.
(k) Rent Roll; Tenant Estoppel Letters. To the best of Seller's
knowledge, the Rent Roll is true and correct in all material respects. Seller
agrees to use its best reasonable efforts (provided that Seller shall have no
obligation to incur any costs or expenses) to obtain current Tenant Estoppel
Letters during the Inspection Period acceptable to Buyer from all Tenants under
Leases, which Tenant Estoppel Letters shall confirm the matters reflected by the
Rent Roll as to the particular tenant.
(l) Condemnation. To the best of Seller's knowledge, neither the
whole nor any portion of the Property, including access thereto or any easement
benefiting 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 written notice nor has any actual
knowledge that any such proceeding is contemplated.
(m) Governmental Matters. Seller has received no written 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.
(n) Repairs. Seller has received no written notice of any
requirements of any lender, insurance companies, or governmental body or
agencies requiring any repairs or work to be done on the Property which have not
already been completed.
(o) Consents and Approvals; No Violation. To the best of Seller's
knowledge, (1) neither the execution, delivery or performance of this Agreement
nor compliance herewith (A) conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under (i) the
partnership documents of Seller, (ii) any law or any order, writ, injunction or
decree of any court or governmental authority, or (iii) any agreement or
instrument to which Seller is a party or by which it is bound or (B) results in
the creation or imposition of any lien, charge or encumbrance upon its property
pursuant to any such agreement or instrument; and (2) no authorization, consent,
or approval of any governmental authority (including courts) is required for the
execution and delivery by Seller of this Agreement or the performance of its
obligations hereunder.
(p) Environmental Matters. Except as set forth in the Materials
and any environmental reports delivered to Buyer, (I) Seller has not released
any Hazardous Materials onto or from the Property in violation of applicable
Environmental Laws and (2) to the best of Seller's knowledge, there has not been
any Release of Hazardous Materials onto or from the Property in violation of
applicable Environmental Laws.
(q) SELLER'S KNOWLEDGE AND EXPERIENCE. SELLER REPRESENTS AND
WARRANTS TO BUYER THAT SELLER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND
BUSINESS MATTERS THAT ENABLE SELLER TO FULLY EVALUATE THE MERITS AND RISKS OF
THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. FURTHER SELLER ACKNOWLEDGES THAT
IT IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO BUYER WITH RESPECT TO
THIS AGREEMENT.
4.2 Limitations. Notwithstanding anything to the contrary herein: (a)
whenever a representation or warranty contained in this Agreement or any of the
Transaction Documents is qualified by the phrase "to the best of Seller's
knowledge," or by words of similar import, the accuracy of such representation
shall be based solely on the actual (as opposed to constructive or imputed)
knowledge of the general partners of Seller without independent investigation or
inquiry and any liability resulting hereunder based upon such representations or
warranties shall be solely that of Seller and not, in any event, of such general
partners of Seller personally and (b) if, prior to the Closing, Buyer obtains
actual knowledge that any representation or warranty of Seller is inaccurate and
Buyer nonetheless proceeds with the Closing, Seller shall have no liability for
any such matter regarding which Buyer had actual knowledge prior to Closing.
Except as set forth in the next sentence, the representations and warranties of
Seller set forth in this Agreement shall survive the Closing for a period of six
(6) months, and no action or proceeding thereon shall be valid or enforceable,
at law or in equity, if a legal proceeding with respect to a particular breach
is not commenced within that time. The representations, warranties and covenants
set forth in the first two sentences of Section 4.1(g) shall not survive the
Closing.
4.3 "AS IS" SALE. EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES OF
SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER IS NOT MAKING, AND HAS NOT
AT ANY TIME MADE, DIRECTLY OR INDIRECTLY, ANY WARRANTIES OR REPRESENTATIONS OF
ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER
THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING,
TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS, THE
ACCURACY OR COMPLETENESS OF THE MATERIALS, DOCUMENTS OR ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO BUYER OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN. UPON
CLOSING SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS." BUYER HAS NOT RELIED UPON AND WILL
NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY
MADE BY OR ON BEHALF OF SELLER, BROKER OR ANY REPRESENTATIVE OF SELLER WITH
RESPECT TO THE PROPERTY, SAVE AND EXCEPT THOSE REPRESENTATIONS AND WARRANTIES OF
SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT. BUYER WILL CONDUCT SUCH
INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY TO SATISFY ITSELF AS
TO THE CONDITION OF THE PROPERTY AND WILL RELY SOLELY UPON SAME AND, EXCEPT TO
THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER WILL NOT RELY UPON ANY
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER, BROKER OR ANY REPRESENTATIVE OF
SELLER. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS.
BUYER, UPON CLOSING, HEREBY WAIVES, RELINQUISHES AND RELEASES SELLER, ITS
PARTNERS, BROKER AND THEIR RESPECTIVE DIRECT AND INDIRECT OFFICERS, DIRECTORS,
SHAREHOLDERS, MEMBERS, EMPLOYEES, AGENTS, ATTORNEYS, ACCOUNTANTS, CONSULTANTS,
REPRESENTATIVES AND AFFILIATES (COLLECTIVELY, "SELLER PARTIES") FROM AND AGAINST
ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN
TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS'
FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN,
WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER PARTIES (OR ANY OF
THEM) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY CONSTRUCTION DEFECTS,
PHYSICAL OR ENVIRONMENTAL CONDITIONS, THE VIOLATION OF ANY APPLICABLE LAWS AND
ANY AND ALL OTHER MATTERS REGARDING THE PROPERTY, EXCEPT THOSE MATTERS AS TO
WHICH SELLER HAS MADE EXPRESS REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT.
THE TERMS, CONDITIONS AND OBLIGATIONS OF THIS SECTION 4.3 SHALL EXPRESSLY
SURVIVE THE CLOSING AND NOT MERGE THEREIN.
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,
authority and financial ability 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
Power Realty Advisors, whose commission shall be paid by Seller; and Buyer
agrees to indemnify Seller from any other such claim arising by, through or
under Buyer.
5.4 BUYER'S KNOWLEDGE AND EXPERIENCE. BUYER REPRESENTS AND WARRANTS TO
SELLER THAT BUYER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS
THAT ENABLE BUYER TO FULLY EVALUATE THE MERITS AND RISKS OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT. FURTHER, BUYER ACKNOWLEDGES THAT IT IS NOT IN A
DISPARATE BARGAINING POSITION RELATIVE TO SELLER WITH RESPECT TO THIS AGREEMENT.
6. POSSESSION; RISK OF LOSS
6.1 Possession. Possession of the Property will be transferred to Buyer
at the conclusion of the Closing subject to Permitted Exceptions.
6.2 Risk of Loss. As used in this Section 6.2, "Material Damage" shall
mean damage which would require in excess of $100,000, as reasonably and in good
faith estimated by Seller, to repair to substantially its condition as of the
date hereof; and "Material Portion" shall mean a portion of the Property valued
in excess of $100,000, as reasonably estimated by Seller. 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 Damage to the Property has occurred 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) days after such notice from Seller, in which case Buyer shall receive a
return of its Xxxxxxx Money Deposit (provided that Buyer is not in default
hereunder); 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 (except for amounts which are (i) reimbursements to Seller
for costs incurred by Seller to preserve, protect or repair the Property or (ii)
attributable to rent loss for any period prior to Closing). 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. Not later than three (3) days
after Buyer receives an original of this Agreement executed by Seller, Seller
shall order the Title Insurance Commitment and Buyer's counsel shall order the
Survey. In the event that the Title Insurance Commitment or Survey discloses
and/or reflects the existence of one or more matters which, in the reasonable
determination of Purchaser, has/have a material adverse impact on the current
use and/or value of the Property (each, a "Title Objection"), then the Purchaser
may, by notice received by Seller prior to the end of the Inspection Period
specifically describing each Title Objection (the "Title Objection Notice"),
notify Seller of such Title Objection(s). The Title Objection Notice shall be
accompanied by a copy of the Title Insurance Commitment or Survey clearly
depicting each Title Objection. Purchaser shall be deemed to have accepted all
matters shown on the Title Insurance Commitment and/or Survey except for matters
which are included in the Title Objections. Seller shall have five (5) business
days following receipt of the Title Objection Notice to cure or agree in writing
to cure such Title Objections, but Seller shall have no obligation whatsoever to
cure such Title Objections or to incur any cost or expense in connection
therewith. In the event that Seller agrees in writing to cure any of the Title
Objections, Seller shall cure such Title Objections on or prior to the Closing
Date. In the event that Seller has not cured or agreed in writing to cure all of
the Title Objections within the five (5) business day period specified above,
Purchaser shall either: (1) waive the uncured Title Objections by written notice
to Seller and Escrow Agent and accept the Property and title thereto subject to
the uncured Title Objections without any adjustment of the Purchase Price, or
(2) terminate this Agreement. If Purchaser's waiver notice is not received by
Seller within ten (10) business days after Seller's receipt of the Title
Objection Notice, then it will conclusively be presumed that Purchaser elected
to terminate this Agreement.
(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 transaction
contemplated hereby have been duly authorized and that there are no mechanics'
liens on the Seller's interest in the Property (excluding liens arising due to
the acts of Buyer or any person or entity claiming by or through Buyer) or, to
the best of Seller's knowledge, parties in possession of the Property other than
tenants under Leases, subtenants and others claiming by or through 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 in all material respects, and
Seller shall not be in material 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
material default under any covenant, restriction, right-of-way or easement
affecting the Property.
(c) There shall have been no material adverse change in the
financial condition of The Kroger Co.
(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 and
loss due to casualty or eminent domain excepted.
(f) Buyer's receipt of Tenant Estoppel Letters from The Kroger
Co., Blockbuster, Xxxx Xxxxxx, Radio Shack and eighty percent (80%) of the other
tenants who have existing leases for any portion of the Property, without
material exceptions or changes to the forms approved by Buyer, the substance of
which Tenant Estoppel Certificates must be reasonably acceptable to Buyer in all
respects (Buyer acknowledges that Seller is not obligated to obtain the Tenant
Estoppel Certificates and shall have no liability or obligations in the event
that this condition (f) is not satisfied).
(g) Buyer's receipt of estoppel certificates with respect to the
Railroad Lease, and the Master Lease, substantially in the form attached hereto
as Exhibit E without material exceptions or changes, the substance of which must
be reasonably acceptable to Buyer in all respects (Buyer acknowledges that
Seller is not obligated to obtain such estoppel certificate and shall have no
liability or obligation in the event that this condition (g) is not satisfied).
(h) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) A limited warranty deed in proper form for recording, duly
executed and acknowledged by Seller in the form attached hereto as Exhibit F;
(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, including without limitation all
tenant files and correspondence related to existing tenants;
(3) An Assignment of Leases and Tenancies and in the form
attached
hereto as Exhibit G duly executed by Seller;
(4) An Assignment and Assumption of Lease in the form
attached
hereto as Exhibit H duly executed by Seller;
(5) A xxxx of sale with respect to the Personal Property
and
Materials in the form attached hereto as Exhibit I duly executed by Seller;
(6) A current rent roll;
(7) An owner's affidavit, non-foreign affidavits, non-tax
withholding certificates and such other documents in form and substance
satisfactory to Seller and the title insurance company, as may reasonably be
required by Buyer or its counsel in order to effectuate the provisions of this
Agreement and the transaction contemplated herein, provided that such delivery
shall impose no additional cost or liability on Seller;
(8) Resolutions of Seller authorizing the transactions
described
herein;
(9) All keys and other means of access to the Improvements
in the
possession of Seller or its agents;
(10) Materials; and
(11) Such other documents in form and substance
satisfactory to
Seller as Buyer may reasonably request to effect the transaction contemplated by
this Agreement, provided that such delivery shall impose no additional cost or
liability on Seller.
In the event that all of the foregoing provisions of this Section 8.1
are not satisfied and Buyer elects in writing to terminate this Agreement, then,
provided Buyer is not in default under this Agreement, the Xxxxxxx 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 3.
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 2.1 at Closing;
(2) An Assignment of Leases and Tenancies in the form
attached
hereto as Exhibit G duly executed by Buyer;
(3) An Assignment and Assumption of Lease in the form
attached
hereto as Exhibit H duly executed by Buyer; and
(4) Such other documents as Seller may reasonably request
to effect
the transaction 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
8.2 have not, and Seller elects in writing to terminate this Agreement, then,
provided Buyer is not in default under this Agreement, the Xxxxxxx 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 3.
8.3 Best Efforts. Each of the parties hereto agrees to use reasonable
best efforts to take or cause to be taken all actions necessary, proper or
advisable to consummate the transaction contemplated by this Agreement.
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 Closing, Buyer may, at Buyer's election (i) terminate this
Agreement and receive a return of the Xxxxxxx 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, without any reduction in the Purchase
Price.
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 for such breach (except as otherwise
provided in this Agreement) shall be to terminate this Agreement and retain
Buyer's Xxxxxxx Money Deposit and all interest thereon as agreed liquidated
damages for such breach, and upon payment in full to Seller of such amounts for
such breach (except as otherwise provided in this Agreement), the parties shall
have no further rights, claims, liabilities or obligations under this Agreement
(except as survive termination). Seller and Buyer agree that Seller's damages
resulting form Buyer's default are difficult if not impossible, to determine and
the Xxxxxxx Money is a fair estimate of those damages which has been agreed to
in an effort to cause the amount of said damages to be certain. In addition to
retaining the Xxxxxxx Money Deposit, Seller may recover from Buyer all amounts
due from Buyer pursuant to Sections 3.1 and 10.7 hereof.
9.3. Additional Remedies Available to Seller. Notwithstanding anything
in this Agreement to the contrary, in the event of Buyer's default or a
termination of this Agreement and in the event Buyer or any party related to or
affiliated with Buyer is asserting any claims or right to the Property that
would otherwise delay or prevent Seller from having clear, indefeasible and
marketable title to the Property, Seller shall have all remedies available at
law or in equity.
10. MISCELLANEOUS
10.1 Disclosure. Prior to Closing, neither party shall disclose the
transaction contemplated by this Agreement without the prior approval of the
other, except to its attorneys, accountants and other consultants, their lenders
and prospective lenders, or where disclosure is required by law.
10.2 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.
10.3 Entire Agreement. This Agreement, together with the exhibits
attached hereto, and the confidentiality agreement executed by the parties
hereto, dated as of ______________, 1998, constitute 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.
10.4 Notices. Any notice, communication, request, reply or advice
(collectively "Notice") provided for or permitted by this Agreement to be made
or accepted by either party must be in writing. Notice may, unless otherwise
provided herein, be given or served (i) by depositing the same in the United
States mail, postage paid, certified, and addressed to the party to be notified,
with return receipt requested, (ii) by delivering the same to such party, or an
agent of such party, in person or by commercial courier, (iii) by facsimile
provided that a hard copy is delivered for receipt on the following business
day, or (iv) by depositing the same into custody of a nationally recognized
overnight delivery service such as Federal Express, Airborne Express, UPS, Xxxxx
or Purolator. Notice deposited in the mail in the manner described in (i) above
shall be effective on the third business day after such deposit. Notice
delivered in the manner described in (ii) above is effective upon receipt;
Notice delivered in the manner described in (iii) above is effective when sent
via facsimile, provided that a hard xxx thereof is delivered for receipt on the
next following business day. Notice delivered in the manner described in (iv)
above is effective the day of expected delivery. All Notices shall be served at
the addresses set forth below:
As to Seller: Silverlake Development Co., Ltd.
Attention: Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
With copy to Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Suite 2100, Atrium Two
000 X. Xxxxxx Xxxxxx
XX Xxx 0000
Xxxxxxxxxx, Xxxx 00000-0000
Attn.: Xxxxxxx X. Xxxxxxxxx, Xx.
Facsimile: (000) 000-0000
As to Buyer:RRC Acquisitions Two, Inc.
Attention: Xxxxxx X. Xxxxxx
Xxxxx 000,000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to: Rogers, Towers, Xxxxxx, Xxxxx & Gay
Attention: Xxxxxxx X. Xxxxx, Esq.
0000 Xxxxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Any notice or demand so served shall constitute proper notice hereunder. A party
may change its notice address by notice given in the aforesaid manner.
10.5 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.
10.6 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.
10.7 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.
10.8 Time of Essence. Time is of the essence of this Agreement.
10.9 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 the Property is located. Each party waives its right to jurisdiction or
venue in any other location.
10.10 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 successors and permitted assigns. No third parties, including any
brokers or creditors, shall be beneficiaries hereof. Neither party shall assign
this Agreement without the prior written consent of the other party hereto;
provided, however, that Buyer may assign this Agreement to Regency Centers, L.P.
provided that: (a) Seller is notified of such assignment not less than ten (10)
days prior to Closing, (b) such assignment shall not release RRC Acquisitions
Two, Inc. from any of its obligations or liabilities under this Agreement and
(c) Regency Centers, L.P. assumes in writing all of the obligations and
liabilities of Buyer under this Agreement in a written instrument acceptable to
Seller.
10.11 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.
10.12 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.
10.13 Further Instruments, Etc. This Agreement may be executed in
counterparts and when so executed shall be deemed executed as one agreement.
Seller and Buyer shall execute any and all documents and perform any and all
acts reasonably necessary to fully implement this Agreement.
10.14 Limitations on Liability.
(a) In no event shall Seller, its direct or indirect general or
limited partners, owners or affiliates, any officer, director, general or
limited partner, employee or agent of any of the foregoing, or any affiliate,
controlling person or owner thereof have any liability, beyond its interest in
the Property, for any claim, cause of action or other liability arising out of
or relating to this Agreement or the Property, whether based on contract, common
law, statute, equity or otherwise.
(b) Except as provided in Section 10.10 regarding assignment of
this Agreement, in no event shall any officer, director, shareholder, employee,
agent, partner, owner or affiliate of Seller or any controlling person thereof
have any liability, beyond its interest in the Property, for any claim, cause of
action or other liability arising out of or related to this Agreement or the
Property, whether based on contract, common law, statute, equity or otherwise.
10.15 Like-Kind Exchange. Buyer acknowledges that Seller may, at its
option, seek to structure the sale of the Property as a like-kind exchange of
property within the meaning of Section 1031 of the Internal Revenue Code of 1986
(a "Like-Kind Exchange"). Buyer agrees to cooperate with Seller in effecting a
qualifying Like-Kind Exchange through a trust or other means as determined by
Seller, including the means set forth in this Section; and Buyer consents and
agrees to the following if requested by Seller and provided the same is in
furtherance of a Like-Kind Exchange: (i) Seller has the right to assign its
rights under this Agreement to a qualified intermediary without Buyer's consent,
and in such event, such qualified intermediary shall have the right to execute
and deliver the Closing Statement (which shall also be consented to by Seller)
and receive the Purchase Price from Buyer; (ii) any transactional matters and
accommodations in connection with a Like-Kind Exchange which are, in the opinion
of Seller's counsel, necessary and/or desirable to qualify the sale and purchase
transaction contemplated by this Agreement as a Like-Kind Exchange, provided,
however, that Buyer shall in no event be required to take title to any real
property (other than the Property) and Buyer and Buyer's counsel shall have
determined that such transactional matters and accommodations are without
material expense or obligation to Buyer and do not increase Buyer's liabilities
under this Agreement; and (iii) Seller shall still convey the Property to Buyer
(or a permitted assignee).
10.16 Survival. Except only those obligations which expressly survive
Closing, the rights and duties of the parties under this Agreement shall be
merged into the deed and shall not survive Closing.
10.17 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.
RRC ACQUISITIONS TWO, INC.,
a Florida corporation
By:
Name:
Title:
Date: , 1998
Tax Identification No: 00-0000000
"BUYER"
SILVERLAKE DEVELOPMENT CO., LTD.,
a Kentucky limited partnership
By:
Name: Xxxxxxx X. Xxxxxxxx
Title: general partner
Date: , 1998
Tax Identification No:
"SELLER"
04/16/98 - 0197196.01
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 Xxxxxxx Money Deposit in trust, to be disposed of in
accordance with the provisions of this joinder and the foregoing Agreement. The
Xxxxxxx 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 negligence or willful misconduct of Escrow Agent or
the failure of Escrow Agent to comply with applicable terms of the Agreement and
this joinder. If the escrow is involved in any controversy or litigation, Buyer
shall 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 or the failure of Escrow Agent to
comply with applicable terms of the Agreement and this joinder.
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 mutual agreement between
Buyer and Seller or by final appropriate legal proceedings or otherwise as it
may require; or (ii) file suit for declaratory relief and/or interpleader in
Kenton County, Kentucky 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
in Kenton County, Kentucky and tender of the Xxxxxxx 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 five (5) business days after a written request for approval
is received by the party whose approval is being requested and its counsel.
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 neither Buyer nor Seller shall have delivered any written objection
to the disbursement within five (5) business days after receipt of Escrow
Agent's notice by such party and its counsel. 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.
XXXXXX, TOWERS XXXXXX, XXXXX & GAY
By:
Its Authorized Agent
Date: , 1998
"ESCROW AGENT"
LIST OF EXHIBITS
Exhibit A Legal Description
Exhibit B List of Materials
Exhibit C Rent Roll
Exhibit D Form of Tenant Estoppel Letter
Exhibit E Form of Ground Lessor's Estoppel Letter
Exhibit F Form of Limited Warranty Deed
Exhibit G Form of Assignment of Leases and Tenancies
Exhibit H Form of Assignment and Assumption of Lease
Exhibit I Form of Xxxx of Sale
Exbibit J Audit Representation Letter
EXHIBIT A
Legal Description of Real Property
EXHIBIT B
List of Materials
Items Required from the Seller:
1) As Built Plans & Specs (arch. and engineering)
2) Site Plan (including suite numbers)
3) Legal Description
4) Copy of All Leases (and amendments)
5) Certificates of Occupancy - All current tenants
6) Schedule of Security Deposits
7) Most recent Rent Roll
8) Sales Reports (most recent 3 Years) for tenants reporting
9) Current Rent Xxxxxxxx (by category, base, CAM, etc.)
10) Current Delinquency Report (with explanations for balances > 1,000)
11) Tenant Activity Register for all Current Tenants (xxxxxxxx &
payments) 12) Tenant Estoppels 13) Property Operating Results - Most
recent 2 Years 14) Property Capital Expenditures - Most recent 2 Years
15) Real Estate and other tax bills - 2 Years 16) Year to Date
Financials 17) Existing Service Agreements and Warranties 18) Three
years loss history - reported claims 19) Most Recent Year Expense
Recovery Reconciliation 20) Breakdown of CAM Pools 21) Seller's Budget
for up-coming/current year 22) Utility Bills for last 12 months/deposits
23) Personal Property Inventory 24) Existing Title Insurance Policy 25)
Summary of Tenant Contacts (with address and telephone numbers)
With local (incl store#) & national addresses
26) Survey
EXHIBIT C
Rent Roll
- 2 -
EXHIBIT D
Form of Tenant Estoppel Letter
_____________, 1998
RRC Acquisitions Two, Inc.
Regency Centers, L.P.
000 X. Xxxxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Silverlake Development Co., Ltd.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Re: Silverlake Shopping Center, Erlanger Kentucky
Ladies and Gentlemen:
The undersigned ("Tenant") has been advised that RRC Acquisitions Two, Inc.
("RRC") or Regency Centers, L.P. ("Regency") may purchase the above Shopping
Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of Silverlake Development Co., Ltd.
("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 $_________ per 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. To the best
of Tenant's knowledge, 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 and sale of the above described Premises. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to RRC or to Regency or to any agent acting on its
behalf.
Very truly yours,
(Tenant)
EXHIBIT E
Form of Ground Lessor's Estoppel Letter
_________, 1998
Regency Centers, L.P., and
Regency Realty Corporation, and
RRC Acquisitions Two, Inc.
Xxxxx 000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 00000
RE: Silverlake Shopping Center
Ladies and Gentlemen:
The undersigned is the Lessor under a Lease executed by and among the
Cincinnati, New Orleans and Texas Pacific Railway Company, and Ohio corporation
("Lessor"), and Silverlake Development Co. Ltd., a Kentucky limited partnership,
("Lessee"), dated as of May 20, 1988, and recorded at Lease Book 17, Page 412,
of the Kenton County Clerk's records at Covington, Kentucky, as supplemented by
that certain agreement dated May 20, 1988 (the "Three Party Agreement"), between
Lessor, Lessee, and the Trustees for the Cincinnati Southern Railway (the
"Lease"). Lessor has been advised that in connection with the acquisition by RRC
Acquisitions Two, Inc., a Florida corporation, and/or Regency Centers, L.P., a
Delaware limited partnership ("Transferee") of Silverlake Shopping Center, of
which the leased premises is a part, that Transferee requests certain
certifications from Lessor concerning various matters under the Lease. Lessor
has been further advised that Regency Realty Corporation, a Florida corporation
("Regency"), is the sole general partner of Regency Centers, L.P.
The undersigned hereby certifies to Transferee and Regency as follows:
1. The Lease has not been supplemented or amended. According to Lessor's
records, the current lessee under the Lease is Silverlake Development Co. Ltd.
2. The Lease is in good standing and in full force and effect. There is
no default existing thereunder to the knowledge of Lessor.
3. All rents and other sums payable under the Lease to Lessor through
the date hereof have been paid. The current annual rental under the Lease is
$__________, and such rate continues through _______________.
4. There exists no offset, counterclaim or defense under the Lease in
favor of Lessor.
5. To the knowledge of Lessor, no default exists under the "Master
Lease" identified in the third recital paragraph of the Three Party Agreement,
and the Master Lease is in good standing and in full force and effect.
6. Lessor hereby consents to the assignment of the Lease to Transferee
or to any affiliate of Transferee. Upon notification from Lessee and Transferee
of the closing of Transferee's acquisition of the Shopping Center, Lessor will
recognize Transferee as the lessee under the Lease, and Transferee shall be
entitled to all rights and privileges as lessee thereunder.
7. In the event that Lessor assigns the Lease to Transferee, and
Transferee accepts all rights and liabilities under the Lease, Lessor hereby
releases Silverlake Development Co. Ltd. from all further liability under the
Lease as of the effective date of such assignment.
Very truly yours,
The Cincinnati, New Orleans and Texas Pacific
Railway Company, an Ohio corporation
By:
Its:
EXHIBIT F
Limited Warranty Deed
Silverlake Development Co., Ltd., a Kentucky limited partnership
("Grantor), for Nine Million Two Hundred Thirty-Eight Thousand and No/100
Dollars ($9,238,000.00) and other good and valuable consideration paid, receipt
of which is hereby acknowledged, grants, with limited warranty covenants,
Regency Centers, L.P., a Delaware limited partnership ("Grantee"), the following
real property:
Situated in the City of Xxxxxxxx, Xxxxxx County, Kentucky, and being
more particularly described in Exhibit A which is attached hereto and
incorporated herein by reference (the "Property").
Subject to those matters set forth in Exhibit B which is attached hereto
and incorporated herein by reference.
Prior Instrument Reference: Book 000, Xxxx 000, Xxxxxx Xxxxxx, Xxxxxxxx
Records.
IN WITNESS WHEREOF, Silverlake Development Co., Ltd. has caused this deed
to be executed as of the ___ day of _________________, 1998.
Signed and acknowledged SILVERLAKE DEVELOPMENT CO., LTD.,
in the presence of: a Kentucky limited partnership
_______________________________ By:___________________________________
Print Name:______________________ _____________________, General Partner
-------------------------------
Print Name:______________________
STATE OF OHIO
COUNTY OF XXXXXXXX, XX:
The foregoing instrument was acknowledged before me this ______
day of _________________, 1998, by ____________________, authorized general
partner as his free act and deed and the free act and deed of Silverlake
Development Co., Ltd., a Kentucky limited partnership.
-----------------------------------
Notary Public
CONSIDERATION CERTIFICATE
Being first duly sworn, the undersigned state that the
consideration set forth in the foregoing Deed is true and correct and is the
full consideration paid for the above described property.
STATE OF OHIO
COUNTY OF XXXXXXXX, XX:
The foregoing instrument was acknowledged before me this ______
day of _________________, 1998, by ____________________, authorized general
partner as his free act and deed and the free act and deed of Silverlake
Development Co., Ltd., a Kentucky limited partnership.
-----------------------------------
Notary Public
STATE OF ________________
COUNTY OF ______________, SS:
The foregoing instrument was acknowledged before me this ______
day of _________________, 1998, by ____________________, authorized general
partner as his free act and deed and the free act and deed of Regency Centers,
L.P., a Delaware limited partnership.
-----------------------------------
Notary Public
This instrument prepared by:
--------------------------
Xxxxxxx X. Xxxxxxxxx, Xx., Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Suite 2100
000 Xxxx Xxxxxx Xxxxxx
Xxx 0000
Xxxxxxxxxx, Xxxx 00000-0000
EXHIBIT B
(i) Liens for taxes and assessments, if any, not payable on or before the
date hereof;
(ii) Rights of tenants under existing leases and other occupancy agreements
permitting persons to lease or occupy all or a portion of the Property, but
excluding any subleases or occupancy agreements to which Grantor is not a
party.;
(iii) Easements, agreements, covenants, conditions, restrictions, and legal
highways of record.
(iv) Matters which would be disclosed by an accurate survey of the Property;
(v) Zoning, building code, subdivision and other governmental rules,
regulations, requirements and laws; and
(vi) Liens, encumbrances and other interests created by, suffered by or arising
out of the acts of, Grantee or any person or entity claiming by or through
Grantee.
EXHIBIT G
ASSIGNMENT OF LEASES AND TENANCIES
THIS ASSIGNMENT is made this _______ day of ___________, 1998, by and
between SILVERLAKE DEVELOPMENT CO., LTD. a Kentucky limited partnership whose
address is 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000 ("Assignor"), and REGENCY
CENTERS, L.P., a Delaware limited partnership, whose address is Xxxxx 000, 000
X. Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Assignee").
In consideration of Ten dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby transfers and assigns to Assignee all of the Assignor's right
title and interest in and to the leases and tenancies set forth in Schedule 1
attached hereto (the "Leases"), including without limitation the right to
receive rentals accruing thereunder after ____________, 1998 (the "Allocation
Date"), together with all security deposits, advance rentals and all other
deposits, and any interest, if any, which has accrued thereon for the benefit of
any tenant thereof (collectively "Deposits"), relating to the following
described land, lying and being in the County of Kenton, Commonwealth of
Kentucky, to wit:
See Exhibit "A" attached hereto (the "Property")
Except as expressly set forth herein or in the Purchase and Sale
Agreement with respect to the Property between Assignor and Assignee, dated as
of __________, 1998 (the "Purchase Agreement"), this Assignment is made by
Assignor without any representations or warranties of any kind. Without limiting
the generality of the immediately preceding sentence, this Assignment shall be
subject to the provisions of Section 4.3 and 10.14 of the Purchase Agreement,
which are incorporated herein by reference.
Assignee agrees to indemnify and hold Assignor harmless from any claim
or demand first arising under the Leases (or any of them), and accruing after
the Allocation Date. Assignor agrees to indemnify and hold Assignee harmless
from any claim or demand made against the Landlord under the Leases (or any of
them) first arising and accruing on or prior to the Allocation Date.
This Assignment shall be binding upon and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date set out above.
Witnesses: SILVERLAKE DEVELOPMENT CO., LTD.,
a Kentucky limited partnership
By:
As to Assignor Name:
general partner
"ASSIGNOR"
As to Assignor
REGENCY CENTERS, L.P.,
a Delaware limited partnership
By: REGENCY CENTERS, INC., a
Florida corporation, its General
Partner
By:
As to Assignee Name:
Its:
Date: , 1998
As to Assignee
Tax Identification No.
"ASSIGNEE"
STATE OF OHIO
COUNTY OF XXXXXXXX
The foregoing instrument was acknowledged before me this _______ day of
_______________, 1998, by _____________________________, the general partner of
SILVERLAKE DEVELOPMENT CO., LTD., a Kentucky limited partnership, who is
personally known to me or who has produced __________________________ as
identification.
Name:
Notary Public, State of
My Commission Expires:
My Commission Number is:
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this _______ day of
________________, 1998, by ____________________________, as ________________ of
REGENCY REALTY CORPORATION, a Florida corporation, the general partner of
REGENCY CENTERS, L.P., a Delaware limited partnership, on behalf of said limited
partnership, who is personally known to me or who has produced
______________________ as identification.
Name:
Notary Public, State of
My Commission Expires:
My Commission Number is:
SCHEDULE 1
Rent Roll
- 2 -
EXHIBIT "A"
Legal Description
EXHIBIT H
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS AGREEMENT is made this _______ day of ___________, 1998, by and
between SILVERLAKE DEVELOPMENT CO., LTD., a Kentucky limited partnership, whose
address is 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000 ("Assignor"), and REGENCY
CENTERS, L.P., a Delaware limited partnership, whose address is Xxxxx 000, 000
X. Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Assignee").
In consideration of Ten dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby transfers and assigns to Assignee all of the Assignor's right
title and interest in and to a Lease executed by and among the Cincinnati, New
Orleans and Texas Pacific Railway Company, an Ohio corporation ("Lessor"), and
Silverlake Development Co., Ltd., a Kentucky limited partnership, ("Lessee"),
dated as of May 20, 1988, and recorded at Lease Book 17, Page 412, of the Kenton
County Clerk's records at Covington, Kentucky, as supplemented by that certain
agreement dated May 20, 1988 (the "Three Party Agreement"), between Lessor,
Lessee, and the Trustees for the Cincinnati Southern Railway (the "Lease"),
TOGETHER WITH the estates and interests created by the Lease in and to the
following described lands, lying and being in the County of Kenton, Commonwealth
of Kentucky, to wit:
(See Exhibit "A" attached hereto)
Assignee hereby assumes the obligations of the lessee under the Lease
from and after _____________, 1998 (the "Allocation Date"), and Assignee agrees
to indemnify and hold Assignor harmless from any claim or demand first arising
under the Lease and accruing after the Allocation Date. Assignor agrees to
indemnify and hold Assignee harmless from any claim or demand made against the
Landlord under the Lease first arising and accruing on or prior to the
Allocation Date.
This Assignment shall be binding upon and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date set out above.
Witnesses: SILVERLAKE DEVELOPMENT CO., LTD.,
a Kentucky limited partnership
By:
As to Assignor Name:
general partner
"ASSIGNOR"
As to Assignor
REGENCY CENTERS, L.P.,
a Delaware limited partnership
By: REGENCY CENTERS, INC., a
Florida corporation, its General
Partner
By:
As to Assignee Name:
Its:
Date: , 1998
As to Assignee
Tax Identification No.
"ASSIGNEE"
STATE OF OHIO
COUNTY OF XXXXXXXX
The foregoing instrument was acknowledged before me this _____ day of
___________, 1998, by _________________________, the general partner of
SILVERLAKE DEVELOPMENT CO., LTD., a Kentucky limited partnership, who is
personally known to me or who has produced __________________________ as
identification.
Name:
Notary Public, State of
My Commission Expires:
STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this ___ day of
_______, 1998, by _____________________________, as _______________________ of
REGENCY REALTY CORPORATION, a Florida corporation, the general partner of
REGENCY CENTERS, L.P., a Delaware limited partnership, on behalf of said limited
partnership, who is personally known to me or who has produced
______________________ as identification.
Name:
Notary Public, State of
My Commission Expires:
My Commission Number is:
This instrument prepared by:
-----------------------
Xxxxxxx X. Xxxxxxxxx, Xx.
Vorys, Xxxxx, Xxxxxxx & Xxxxx LLP
Atrium Two, Suite 2100
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
- 2 -
EXHIBIT "A"
Legal Description
EXHIBIT I
XXXX OF SALE
FOR VALUE RECEIVED, this ______ day of ___________, 1998, the
undersigned, SILVERLAKE DEVELOPMENT CO., LTD., a Kentucky limited partnership,
whose address is 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000 ("Grantor"), does
hereby sell, transfer, and assign unto REGENCY CENTERS, L.P., a Delaware limited
partnership, whose address is Suite 200, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxxxxx
Xxxxxxx, 00000 ("Grantee"), all "Personal Property" and "Materials" (as defined
in the Purchase and Sale Agreement dated April ___, 1998, as amended, between
Grantor and Grantee, (the "Purchase Agreement")), as amended, of Grantor,
located on the lands described in Exhibit "A" attached hereto.
Except as expressly set forth herein or in the Purchase Agreement, this
Assignment is made by Grantor without any representations or warranties of any
kind. Without limiting the generality of the immediately preceding sentence,
this Assignment shall be subject to the provisions of Sections 4.3 and 10.14 of
the Purchase Agreement, which are incorporated herein by reference.
Grantor warrants that the Personal Property and Materials are free of
all encumbrances created by it and that Grantor will defend the title to such
Personal Property and Materials against the claims of all persons claiming by,
through or under Grantor, but not otherwise.
IN WITNESS WHEREOF, Grantor has executed these presents as of the day
and year first above written.
Witnesses: SILVERLAKE DEVELOPMENT CO., LTD.,
a Kentucky limited partnership
By:
Name:
general partner
Name:
- 3 -
EXHIBIT "A"
Lands Upon Which Personal Property or Materials, if Any, Are Located
EXHIBIT J
Audit Representation Letter
-------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
Xxxxx 0000
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
We are providing this letter in connection with your audit of the
Statement of Revenues and Certain Expenses for the twelve months ended
_________________, for the purpose of expressing an opinion as to whether the
financial statement presents fairly, in all material respects, the results of
its operations of _____________________ in conformity with generally accepted
accounting principles.
Certain representations in this letter are described as being limited to
matters that are material. Items are considered material, regardless of size, if
they involve an omission or misstatement of accounting information that, in the
light of surrounding circumstances, makes it probable that the judgment of a
reasonable person relying on the information would be changed or influenced by
the omission or misstatement.
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:
a. All financial records and related data relating to the subject
twelve months, which you have requested.
b. All agreements or amendments to agreements which would have a
material impact on the Statement of Revenues and Certain Expenses.
2. There have been no:
a. Known instances of fraud involving management or employees who
have significant roles in internal control.
b. Known instances of fraud involving others that could have a
material effect on the Statement of Revenue and Certain Expenses.
c. Known 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 or as a basis for recording a loss
contingency.
3. There are no:
a. Unasserted claims or assessments that our lawyers have advised
us are probable of assertion and would be required to be disclosed in accordance
with Statement of Financial Accounting Standards No. 5 Accounting for
Contingencies (SFAS No. 5).
b. Material gain or loss contingencies (including oral and
written guarantees) that would be 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 Revenues and Certain
Expenses.
d. Events that have occurred subsequent to _______________ and
through the date of this letter that would require adjustment to or disclosure
in the Statement of Revenues and Certain Expenses, except the proposed sale of
the subject property.
4. The Company has complied with all aspects of contractual agreements
that would have a material effect on the Statement of Revenues and Certain
Expenses in the event of noncompliance.
5. All related party transactions have been properly recorded or
disclosed in the Statement of Revenues and Certain Expenses.
Very truly yours,
"Seller/Manager"
Name
Title
04/16/98 - 0197196.01
