PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 9th day of July, 1997, between MIAMI
GARDENS ASSOCIATES, a New Jersey general partnership ("Seller"), and RRC
ACQUISITIONS, INC., a Florida corporation, its designees, successors and assigns
("Buyer").
Background
Buyer wishes to purchase a shopping center in the City of Miami, County
of Dade, State of Florida, owned by Seller, known as the Garden Square 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 .
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 Section of this Agreement, together with
the earnings thereon, if any, and together with the additional deposit of
$100,000, and the earnings thereon, if made, pursuant to Section of this
Agreement.
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 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 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC
1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic
Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801, Occupational Safety and Health Act of
1970, as amended, 29 USC ss.ss.651 et seq., Oil Pollution Act of 1990, 33 USC
ss.ss.2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986,
42 USC App. ss.ss.11001 et seq., National Environmental Policy Act of 1969, 42
USC ss.ss.4321 et seq., Safe Drinking Water Act of 1974, as amended by 42 USC
ss.ss.300(f) et seq., and any similar, implementing or successor law, any
amendment, rule, regulation, order or directive, issued thereunder.
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.
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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 petroleum, petroleum product,
drycleaning solvent or chemical, biological or medical waste, "sharps" or any
other hazardous or toxic substance as defined in or regulated by any
Environmental Law in effect at the pertinent date or dates.
1.15 Hazardous Material Activity means any activity, event, or
occurrence at or prior to the Closing Date involving a Hazardous Material,
including, without limitation, the manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation, handling or corrective or response
action to any Hazardous Material.
1.16 Improvements means any buildings, structures or other improvements
situated on the Real Property.
1.17 Inspection Period means the period of time which expires at the
end of business on the thirtieth (30th) day after the date of execution by the
last of Buyer or Seller to execute this Agreement and transmit a copy of the
fully executed Agreement to the other. If such expiration date is a weekend or
national holiday, the Inspection Period shall expire at the end of business on
the next immediately succeeding business day.
1.18 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property, including all
addenda and amendments thereto.
1.19 Materials means all plans, drawings, specifications, soil test
reports, environmental reports, market studies, surveys, and similar
documentation, if any, owned by or in the possession of Seller with respect to
the Property, Improvements and any proposed improvements to the Property, which
Seller may lawfully transfer to Buyer except that, as to financial and other
records, Materials shall include only photostatic copies.
1.20 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem taxes not payable on or before Closing;
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(b) Mortgage dated as of December 21, 1995, from Seller to
Life Investors Insurance Company of America, recorded in Official Records Book
17039, Page 3446 of the public records of Dade County, Florida;
(c) Rights of tenants under Leases; and
(d) Other matters determined by Buyer to be acceptable.
1.21 Personal Property means all (a) sprinkler, plumbing, heating,
air-conditioning, electric power or lighting, incinerating, ventilating and
cooling systems, with each of their respective appurtenant furnaces, boilers,
engines, motors, dynamos, radiators, pipes, wiring and other apparatus,
equipment and fixtures, elevators, partitions, fire prevention and extinguishing
systems located in or on the Improvements, (b) all Materials, and (c) all other
personal property used in connection with the Improvements, provided the same
are now owned or are acquired by Seller prior to the Closing.
1.22 Property means collectively the Real Property, the Improvements
and the Personal Property.
1.23 Prorated means the allocation of items of expense or income
between Buyer and Seller based upon that percentage of the time period as to
which such item of expense or income relates which has expired as of the date at
which the proration is to be made.
1.24 Purchase Price means the consideration agreed to be paid by Buyer
to Seller for the purchase of the Property as set forth in Section (subject to
adjustments as provided herein).
1.25 Real Property means the lands more particularly described on
Exhibit , together with all easements, licenses, privileges, rights of way and
other appurtenances pertaining to or accruing to the benefit of such lands.
1.26 Release means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing into
the indoor or outdoor environment, including, without limitation, the
abandonment or discarding of barrels, drums, containers, tanks, and other
receptacles containing or previously containing any Hazardous Material at or
prior to the Closing Date.
1.27 Rent Roll means the list of Leases attached hereto as Exhibit ,
identifying with particularity the space leased by each tenant, the term
(including extension options), square footage and applicable rent, common area
maintenance, tax and other reimbursements, security deposits and similar data.
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1.28 Seller means the party identified as Seller on the initial page
hereof.
1.29 Seller Financial Statements means the unaudited balance sheets and
statements of income, cash flows and changes in financial positions for the
Property prepared by Seller's managing agent (Xxxxxx Property Management Co.),
as of and for the two (2) calendar years next preceding the date of this
Agreement and all monthly reports of income, expense and cash flow prepared by
said managing agent for the Property, which shall be consistent with past
practice, for any period beginning after the latest of such calendar years, and
ending prior to Closing.
1.30 Shopping Center means the Shopping Center identified on the
initial page hereof.
1.31 Survey means a map of a stake survey of the Real Property which
shall comply with Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, jointly established and adopted by ALTA and ACSM in 1992, and includes
items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof, which meets the
accuracy standards (as adopted by ALTA and ACSM and in effect on the date of the
Survey) of an urban survey, which is dated not earlier than thirty (30) days
prior to the Closing, and which is certified to Buyer, Seller, the Title
Insurance company providing Title Insurance to Buyer, and Buyer's lender, and
dated as of the date the Survey was made.
1.32 Surviving Mortgage means the Mortgage described in Section of this
Agreement.
1.33 Tenant Estoppel Letter means a letter or other certificate from a
tenant certifying as to certain matters regarding such tenant's Lease, in
substantially the same form as attached hereto as Exhibit , or in the case of
national or regional "credit" tenants identified as such on the Rent Roll, the
form customarily used by such tenant provided the information disclosed is
acceptable to Buyer.
1.34 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.35 Title Insurance means an ALTA Form B Owners Policy of Title
Insurance for the full Purchase Price insuring marketable title in Buyer in fee
simple, subject only to the Permitted Exceptions, issued by a title insurer
acceptable to Buyer.
1.36 Title Insurance Commitment means a binder whereby the title
insurer agrees to issue the Title Insurance to Buyer.
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1.37 Transaction Documents means this Agreement, the deed conveying the
Property, the assignment of leases, the xxxx of sale conveying the Personal
Property and all other documents required or appropriate in connection with the
transactions 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 $9,425,000. The
Purchase Price shall be payable by taking title subject to the Surviving
Mortgage, the principal balance of which will be subtracted from the Purchase
Price payable at Closing, and the balance of the Purchase Price shall be payable
in cash 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 as of the Allocation Date (if the amount of the current year's
property taxes are not available, such taxes will be prorated based upon the
prior year's fully discounted payment);
(2) prorating as of the Allocation Date cash receipts and
expenditures for the Shopping Center and other items customarily prorated in
transactions of this sort;
(3) subtracting the amount of security deposits, prepaid rents
from tenants under the Leases, and credit balances, if any, of any tenants. 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 but
discovered by Buyer after Closing. Buyer shall have no obligation to collect
delinquencies, but should Buyer collect any delinquent rents or other sums which
cover periods prior to the Allocation Date and for which Seller have received no
proration or credit, Buyer shall remit same to Seller within thirty (30) days
after receipt, less any costs of collection. Buyer will not interfere in
Seller's efforts to collect sums due it prior to the Closing. Seller will remit
to Buyer promptly after receipt any rents, percentage rents or tenant
reimbursements received by Seller after Closing which are attributable to
periods occurring after the Allocation Date. Undesignated receipts after Closing
of either Buyer or Seller from tenants in the Shopping Center shall be applied
first to then current rents and reimbursements for
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such tenant(s), then to delinquent rents and reimbursements attributable to
postAllocation Date periods, and then to pre-Allocation Date periods.
(4) If there is no Blockbuster Video expansion/relocation
proposal accepted by Buyer under Section below, the price shall also be adjusted
by Buyer paying to Seller an additional $25,000, provided Seller has leased
under Approved Leases no less than 2100 square feet of presently vacant space by
leasing at least two (2) of spaces B11 (1050 square feet), B12 (1050 square
feet), B16 (1050 square feet), or A5 (1200 square feet), (the "Earnout Space").
To be entitled to additional consideration, there must be no Blockbuster
expansion and relocation accepted by Buyer, and such Approved Lease must be
produced by Seller prior to the end of the Inspection Period and executed by
Seller as landlord and the prospective tenant on or prior to Closing. An
Approved Lease is one which provides for base rent plus tenant reimbursements
and has an initial term of no less than three (3) and no more than ten (10)
years with a third party tenant who is a bonafide third party unaffiliated with
Seller who is creditworthy in Buyer's reasonable judgment and who is experienced
in Buyer's reasonable judgment in the operation of the type of business proposed
to be conducted at the leased premises. In addition, an Approved Lease must be
written on the Shopping Center's standard form lease, without material
modification (or other form approved by Buyer), and must provide for rents, cost
sharing and concessions which are "market" for the Miami area, provided that in
no event shall the annual base rental payable under the proposed lease be less
than $16.00 per square foot of store area, exclusive of tenant reimbursements.
The minimum level of business experience which will be acceptable to Buyer for
any proposed tenant shall be that the proposed store operator shall have been
the principal operator of the business proposed to be conducted or a
substantially similar business in the South Florida region successfully for no
less than three (3) years. The minimum expectation of creditworthiness of
Landlord shall be that the prospective tenant has net worth and unrestricted
liquid assets sufficient to perform its obligations under the lease without
regard to the income derived from or the assets of the proposed store, for one
(1) full year of the lease term. In the event Seller obtains a proposed tenant
and proposed lease for one (1) or more spaces in the Earnout Space and submits
said proposed tenant and proposed lease to Buyer for its approval, Buyer shall
have a period of five (5) business days after the receipt of the proposed lease
and any related materials within which to respond to Seller in writing. If the
response is in the negative, said response must be supplied to Seller in writing
within said five (5) business days, along with a detailed list which defines and
sets forth in clear and understandable terms the reasons for turning down or
negating said potential tenant or potential lease. In the event Buyer does not
respond or take any action in regard to the written request or notice of a
potential tenant or potential lease (when and if said lease and supporting
financial and operating expense information are enclosed in the package) within
said five (5) business day period, said potential tenant and potential lease
shall be conclusively deemed to have been approved by Buyer as of the end of
such five (5)
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business day period, and shall become an Approved Lease which Buyer shall be
obligated to execute and perform if the transaction closes. All costs to be
incurred by the landlord in connection with the execution and delivery of the
lease, concessions and buildout, including without limitation leasing
commissions, tenant improvements and post-Closing free rent, if any, shall be
paid by Seller prior to Closing or if not paid, credited against the cash
portion of the Purchase Price due Seller. Notwithstanding any other provision
hereof, the maximum aggregate additional consideration for the aggregate Earnout
Space is $25,000. The additional consideration contemplated hereby applies only
to the Earnout Space and not to any other space in the Shopping Center and is
not payable if Buyer approves the proposal for the Blockbuster expansion and
relocation transaction as contemplated by Section below.
2.2 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the amount of
$100,000 shall be delivered to Escrow Agent within three (3) days after the date
of execution by the last of Buyer or Seller to execute and transmit a copy of
this Agreement to the other. This Agreement may be terminated by Seller if the
Xxxxxxx Money Deposit is not 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 of Florida, 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 and Escrow.
(a) Seller shall pay:
(1) Documentary stamp and other transfer taxes imposed upon
the transactions contemplated hereby;
(2) Cost of the Survey;
(3) Cost of satisfying any liens on the Property, other
than the Surviving Mortgage;
(4) Costs, if any, of curing title defects and recording any
curative title documents;
(5) The costs and charges in excess of $2,500 which are
imposed by the holder of the Surviving Mortgage with respect to its consent and
release, other than the one percent (1.0%) "transfer fee" (which shall be paid
by Buyer);
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(6) Seller's attorneys' fees relating to the saleof the
Property; and
(7) Brokerage commission to Newfort Realty Inc., in an
amount equal to two percent (2.0%) of the Purchase Price.
(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Cost of title insurance;
(3) Costs of the Phase 1 environmental site assessment to
be obtained by Buyer;
(4) Cost of recording the deed;
(5) Mortgage transfer fee not to exceed one percent (1.0%)
of the outstanding principal balance on the Surviving Mortgage together with
the first $2,500 of other costs and charges imposed by the holder of the
Surviving Mortgage with respect to its consent and release;
(6) Brokerage commission to BlackRock Realty Advisors, Inc.,
if and when the transaction closes, in the amount of $70,000; and
(7) Buyer's attorneys' fees.
(c) Seller has heretofore entered into an Option and Lease
Agreement dated October 25, 1996, with Bellsouth Mobility, Inc. ("Bellsouth"),
concerning the leasing of approximately 260 feet of building space and 150
square feet of exterior space adjacent to the building space (the "Bellsouth
Option"). The option is exercisable by Bellsouth through October 10, 1997, and
is subject to extension through April 10, 1998. In addition, as reflected by
Section 17 of the Bellsouth Option, Bellsouth and Seller contemplate shared use
of Bellsouth's antenna structure by Sprint Spectrum, Inc. ("Sprint"). At
Closing, an additional $180,000 will be deposited by Buyer with Escrow Agent in
an interest bearing account. The escrowed sums and earnings thereon shall be
disbursed to Buyer if Bellsouth does not exercise its option under the Bellsouth
Option by April 10, 1998. If the option is timely exercised by Bellsouth, an
amount equal to the "gross lease value" of (i) the Bellsouth lease (to which the
option was converted in accordance with the Bellsouth Option) shall remain in
escrow together with the "gross lease value" of the Sprint lease, if any, up to
a maximum aggregate escrow of $180,000 (plus the earnings thereon). Any balance
of escrowed sums, including the earnings on the escrow, after the computation
and setting aside of
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the "gross lease values" for Bellsouth and Sprint, shall be disbursed to Buyer.
The escrowed "gross lease value" attributable to the exercised Bellsouth
Option/lease shall be disbursed to Seller upon the expiration of sixty (60) days
after Bellsouth has commenced operating its communications facilities at the
leased site, provided Bellsouth has not by that date indicated to Buyer that
there is material interference at the site under Section 12 of the Bellsouth
Option or cancelled under Section 35 of the Bellsouth Option. The escrowed
"gross lease value" of the Sprint lease, if any, less the costs of any
improvements incurred or to be incurred by Buyer with respect to the Sprint
lease, if any, shall be disbursed to Seller on the later of (i) the date of
disbursement of the "gross lease value" of the Bellsouth Option/lease or (ii)
the date Sprint commences operating its communication facilities at the Shopping
Center under the Sprint lease and any cancellation rights for reasons
determinable by its initial operations (such as, by way of example, frequency
compatibility) it may have thereunder shall have expired. Any remaining balance
of escrowed funds after such disbursements to Bellsouth and Sprint shall be
disbursed to Buyer. At Closing Seller shall remit to Buyer all deposits and
money paid to Seller by Bellsouth under the Bellsouth Option, but Buyer shall
return Seller's prorated share of such deposit(s) to Seller upon Bellsouth's
exercise of the option. For purposes hereof the term "gross lease value" of a
particular lease shall be the total of base or minimum guaranteed rent payable
under the particular lease for the first five years of the term of such lease
(or such proportionately lesser number if the term is shorter than five [5]
years), but in no event shall the aggregate of additional amounts payable to
Seller under this Section exceed $180,000.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, review the economic data, underwrite the
tenants and review their Leases, to review and approve the terms and conditions
of the Surviving Mortgage, and to otherwise conduct its due diligence review of
the Property and all books, records and accounts of Seller related thereto.
Buyer hereby agrees to indemnify and hold Seller harmless from any damages,
liabilities or claims for property damage or personal injury arising out of such
inspection and investigation by Buyer or its agents or independent contractors,
which indemnity shall survive the Closing or earlier termination hereof. 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 so elects to go forward, the Xxxxxxx Money
Deposit shall be increased by an additional
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deposit of $100,000 (to be deposited with Escrow Agent no later than three (3)
business days following the end of the Inspection Period), and shall not be
refundable except upon the terms otherwise set forth herein.
(b) Buyer, through its officers, employees and other
authorized representatives, shall have the right to reasonable access to the
Property and all records of Seller related thereto, including without limitation
all Leases and Seller Financial Statements, at reasonable times during the
Inspection Period for the purpose of inspecting the Property, taking soil
borings, conducting Hazardous Materials inspections, reviewing the books and
records of Seller concerning the Property and otherwise conducting its due
diligence review of the Property. Seller shall cooperate with and assist Buyer
in making such inspections and reviews. Seller shall give Buyer any
authorizations which may be required by Buyer in order to gain access to records
or other information pertaining to the Property or the use thereof maintained by
any governmental or quasi-governmental authority or organization. Buyer, for
itself and its agents, agrees not to enter into any contract with existing
tenants without the written consent of Seller if such contract would be binding
upon Seller should this transaction fail to close. Buyer shall have the right to
have due diligence interviews and other discussions or negotiations with
tenants.
(c) Buyer, through its officers or other authorized
representatives, shall have the right to reasonable access to all Materials
(other than privileged or confidential litigation materials) for the purpose of
reviewing and copying the same.
(d) Blockbuster Video is a current tenant in the Shopping
Center and is considering an expansion of its current premises into spaces B18
and B17 (the "Blockbuster Expansion Space"). Such an expansion will require the
current tenants in the Blockbuster Expansion Space to relocate to other space in
the Shopping Center. Seller may present to the Buyer no less than five (5)
business days prior to the end of the Inspection Period (the "Blockbuster Drop
Dead Date") a written proposal for the expansion of Blockbuster Video into the
Blockbuster Expansion Space, such proposal to be executed by Blockbuster Video
and each of the tenants to be relocated. Such proposal shall contain all
material terms and conditions, economic and otherwise, for such expansion and
relocation. Buyer may accept or reject the proposal, but if it rejects the
proposal and if Buyer determines by the end of the Inspection Period, to go
forward to Closing, Buyer shall have no right to extend the Closing Date under
Section below. If Buyer accepts the proposal for the Blockbuster
expansion and relocation the proposal shall be binding upon Buyer should the
Closing of its acquisition of the Shopping Center occur in accordance with
the terms of the proposal to the extent, if any, the proposal is binding.
Should Seller fail to deliver the aforesaid proposal, so executed, to
Buyer by the end of the Blockbuster Drop Dead Date, Seller's right to submit
such proposal shall lapse.
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3.2 Hazardous Material. Prior to the end of the Inspection Period Buyer
may order environmental assessments of the Property. A copy of any assessment
report, if made, shall be furnished by Buyer to Seller promptly upon its
completion. If an assessment report discloses the existence of any Hazardous
Material or any other matters that pose an environmental threat to the Property
or its environs, Buyer may, prior to Closing, notify Seller in writing, within
ten (10) business days after receipt of the assessment report (but not after
Closing), that it elects to terminate this Agreement, whereupon this Agreement
shall terminate and Escrow Agent shall return to Buyer its Xxxxxxx Money
Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties,
the Closing shall take place at the offices of Escrow Agent at 10:00 A.M. on the
date which is the tenth (10th) business day following the expiration of the
Inspection Period, provided that Buyer may designate an earlier date for
Closing. If there is no Blockbuster proposal, and if Seller by the end of the
Inspection Period has not leased a minimum of 1050 square feet of the Earnout
Space in accordance with the standards expressed in Section of this Agreement,
the Closing may be extended by either Buyer (subject to the limitations of
Section above) or Seller, until the earlier of thirty (30) days following the
original Closing Date, or ten (10) days following Seller's delivery of an
executed Approved Lease for at least 1050 square feet of the Earnout Space. If
by the extended Closing Date Seller has still not delivered an executed Approved
Lease for at least 1050 square feet of the Earnout Space, the Closing may be
further postponed by either Buyer (subject to the limitations of Section
above) or Seller, until ten (10) business days following the execution and
delivery of such Approved Lease, provided that either party may thereafter
cancel this Agreement at any time upon fifteen (15) days notice. If such an
Approved Lease is nevertheless executed and delivered during such fifteen (15)
day notice period, the cancellation shall be deemed withdrawn and the Closing
shall occur ten (10) days following the delivery of such executed Approved Lease
to Buyer. Notwithstanding the foregoing, Buyer may waive such leasing condition
at any time, whereupon the Closing Date shall occur ten (10) business days
following such waiver, but in any event no earlier than the originally scheduled
Closing Date. The additional consideration payable under Section of this
Agreement is not payable with respect to any Approved Lease entered into after
the initially scheduled Closing Date despite the postponement of the Closing
under this section.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as follows as of the date of this
Agreement and where indicated covenants and agrees as follows:
4.1 Organization; Authority. Seller is duly organized, validly existing
and in good standing under the laws of the state of its organization and the
state in which the
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Shopping Center is located, and has full power and authority to enter into and
perform this Agreement in accordance with its terms, and the persons executing
this Agreement and other Transaction Documents have been duly authorized to do
so on behalf of Seller. Seller is not a "foreign person" under Sections 1445 or
897 of the Internal Revenue Code nor is this transaction subject to any
withholding under any state or federal law.
4.2 Authorization; Validity. The execution and delivery of this
Agreement by Seller and Seller's consummation of the transactions contemplated
by this Agreement have been duly and validly authorized. This Agreement
constitutes a legal, valid and binding agreement of Seller enforceable against
it in accordance with its terms.
4.3 Title. Seller is the owner in fee simple of all of the Property,
subject only to matters set forth in a Loan Policy issued by Chicago Title
Insurance Company, bearing number 10-1740-02-000091, having an effective date of
December 26, 1995, the Leases, and matters of record subsequent thereto.
4.4 Commissions. Seller has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Seller, Buyer or the Property for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transaction provided herein
except for BlackRock Realty Advisors, Inc., whose commission shall be paid by
Buyer, and Newfort Realty, Inc., whose commission shall be paid by Seller.
Seller agrees to indemnify Buyer from any other such claim arising by, through
or under Seller.
4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except for Permitted Exceptions and this Agreement.
4.6 Litigation. There is no litigation or proceeding pending, or to the
best of Seller's knowledge, threatened against Seller relating to the Property,
except an action by Hair Discovery involving an alleged exclusive. Seller shall
indemnify and hold Buyer harmless from any loss or damage suffered or incurred
by Buyer arising from such litigation, including without limitation attorneys
fees and costs at all levels and, in the case of Hair Discovery, all lost
rentals and other sums due under the Hair Discovery lease.
4.7 Leases. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll, and any Leases or modifications
entered into between the date of this Agreement and the Closing Date with the
consent of Buyer. Copies of the Leases, which have been delivered to Buyer or
shall be delivered to Buyer within five (5) days from the date hereof, are, to
the best knowledge of Seller, true, correct and complete copies thereof, subject
to the matters set forth on the Rent
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Roll. Between the date hereof and the Closing Date, Seller will not terminate or
modify existing Leases or enter into any new Leases without the consent of Buyer
(not to be unreasonably withheld or delayed), except as otherwise permitted in
this Agreement. To the best of Seller's knowledge no material defaults by
tenants exist under the Leases, except as noted on the Rent Roll, in Section
above and except for Gardens Square Italian Restaurant, Inc. ("Sal's
Restaurant") under its lease executed June 13, 1996. Should this transaction
close, Buyer will take the risk of the Sal's Restaurant default, and shall be
entitled to the benefits of any guarantees and deposits made by Sal's Restaurant
and/or Xxxxxxxxx Xxxxxxxx (the lease guarantor), in connection with the Sal's
Restaurant lease. Buyer acknowledges that if Sal's Restaurant complies with the
requirements of Section 4 of Rider 1 to the Sal's Restaurant lease that the
tenant will be entitled to a construction contribution from the landlord of
$19,000, which contribution obligation Buyer agrees to honor without
reimbursement by Seller or credit against the Purchase Price, subject to the
terms and conditions of such lease. No rent or reimbursement has been paid more
than one (1) month in advance and no security deposit has been paid, except as
stated on the Rent Roll or in the Leases. No tenants under the Leases are
entitled to interest on any security deposits. No tenant under any Lease has or
will be promised any inducement, concession or consideration by Seller other
than as expressly stated in such Lease, and except as stated therein there are
and will be no side agreements between Seller and any tenant.
4.8 Financial Statements. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
by Seller's managing agent in accordance with the books and records of the
Shopping Center, and presents fairly in all material respects the financial
condition, results of operations and cash flows for the Shopping Center as of
and for the periods to which they relate. Seller is unaware of any material
adverse change in the operations of the Property or its prospects since the date
of the most recent Seller Financial Statements. Seller covenants to furnish
promptly to Buyer copies of the Seller Financial Statements together with
unaudited updated monthly reports of cash flow for interim periods beginning
after December 31, 1996. Buyer and its independent certified accountants shall
be given access to the Shopping Center's books and records at any time prior to
and for six (6) months following Closing upon reasonable advance notice in order
that they may verify the financial statements prior to Closing. Seller agrees to
cause its managing agent to execute and deliver to Buyer or its accountants the
Audit Representation Letter should Buyer's accountants audit the records of the
Shopping Center.
4.9 Contracts. Except for the Surviving Mortgage, Leases and matters
described in Section above, 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 Property, at Buyer's option, more than thirty (30) days after a
notice of termination. To Seller's
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knowledge, all such 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;
no party to any Contract has asserted any claim of default or offset against
Seller with respect thereto; and the copies of the Contracts delivered to Buyer
prior to the date hereof are true, correct and complete copies thereof. Between
the date hereof and the Closing, Seller covenants to fulfill all of its
obligations under all Contracts, and covenants not to terminate or modify any
such Contracts or enter into any new contractual obligations relating to the
Property without the consent of Buyer (not to be unreasonably withheld) except
such obligations as are freely terminable without penalty by Seller upon not
more than thirty (30) days' written notice.
4.10 Maintenance and Operation of Property. From and after the date
hereof and until the Closing, Seller covenants to keep and maintain and operate
the Property substantially in the manner in which it is currently being
maintained and operated and covenants not to cause or permit any waste of the
Property nor undertake any activity with respect to the operation thereof
outside the ordinary course of business which would have a material effect on
Buyer or the Property without Buyer's prior written consent. Seller shall be
permitted to defend the civil action brought against it by Hair Discovery, Inc.,
and shall indemnify and hold Buyer harmless from any loss or cost arising
therefrom, as provided above. In connection therewith, Seller covenants to make
all necessary repairs and replacements until the Closing so that the Property
shall be of substantially the same quality and condition at the time of Closing
as on the date hereof. Seller covenants not to remove from the Improvements or
the Real Property any article included in the Personal Property. Seller
covenants to maintain such casualty and liability insurance on the Property as
it is presently being maintained.
4.11 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and
correct in all material respects. Seller agrees to use reasonable efforts to
obtain current Tenant Estoppel Letters acceptable to Buyer from all Tenants
under the Leases.
4.12 Condemnation. To Seller's knowledge neither the whole nor any
portion of the Property, including access thereto or any easement benefitting
the Property, is subject to temporary requisition of use by any governmental
authority or has been condemned, or taken in any proceeding similar to a
condemnation proceeding, nor is there now pending any condemnation,
expropriation, requisition or similar proceeding against the Property or any
portion thereof. Seller has received no notice nor has any knowledge that any
such proceeding is contemplated.
4.13 Governmental Matters. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing or herein (eg. Section hereof).
Except for those
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matters enumerated in Exhibit hereof, Seller has received no notices from any
such governmental authorities or agencies of uncured violations at the Property
of building, fire, air pollution or zoning codes, rules, ordinances or
regulations, environmental and hazardous substances laws, or other rules,
ordinances or regulations relating to the Property. Seller shall indemnify and
hold Buyer harmless from any loss, damage or expense arising from the matters
set forth in Exhibit , and sums may be escrowed at Closing to cover any such
matters. Seller shall be responsible for the remittance of all sales tax for
periods occurring prior to the Allocation Date directly to the appropriate state
department of revenue.
4.14 Repairs. Seller has received no notice of any requirements by 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, except for those matters enumerated in Exhibit hereof.
4.15 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) to Seller's knowledge require Seller
to file or register with, notify, or obtain any permit, authorization, consent,
or approval of, any governmental or regulatory authority; (b) conflict with or
breach any provision of the organizational documents of Seller; (c) violate or
breach any provision of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, any note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation to which Seller is a
party, or by which Seller, the Property or any of Seller's material assets may
be bound; or (d) violate any order, writ, injunction, decree, judgment, statute,
law or ruling of any court or governmental authority applicable to Seller, the
Property or any of Seller's material assets. Notwithstanding the foregoing
Seller represents that the surviving Mortgage contains a due-on-sale clause and
that a conveyance of the Property subject to the Surviving Mortgage will require
the consent of the holder of the Surviving Mortgage.
4.16 Environmental Matters. Seller represents and warrants as of the
date hereof and as of the Closing that Seller has not, and to the best of its
knowledge no other person has caused any Release or disposal of any Hazardous
Material at the Property in any material quantity.
4.17 Surviving Mortgage. To Seller's knowledge, the Surviving Mortgage
is presently held by Life Investors Insurance Company of America and is in good
standing with no defaults existing thereunder. The principal balance outstanding
as of June 1, 1997, will be approximately $6,670,539.77, and the monthly payment
of principal and interest is $52,213.51. Seller has deposits with the holder of
the Surviving Mortgage totalling approximately $111,841.97 for taxes and
insurance. Such
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deposits will be assigned at Closing, Buyer to reimburse Seller therefor. The
transfer of the Property to Buyer will require the consent of the holder of the
Surviving Mortgage. Prior to the end of the Inspection Period, Seller shall use
reasonable efforts to cause the holder of the Surviving Mortgage to execute and
deliver to Buyer an estoppel letter and consent consenting to this transaction
and certifying as to the foregoing matters in form and substance satisfactory to
Buyer. Seller will maintain the Surviving Mortgage in good standing, without
default, until Closing. Seller shall continue to maintain the Surviving Mortgage
in good standing and shall use reasonable efforts to obtain updated estoppel(s)
as Buyer shall request covering any period that the Closing is postponed under
Section of this Agreement or otherwise.
4.18 No Untrue Statement. Neither this Agreement nor any exhibit nor
any written statement or Transaction Document furnished or to be furnished by
Seller to Buyer in connection with the transactions contemplated by this
Agreement contains or will contain any untrue statement of material fact.
4.19 Reaffirmation at Closing. Seller shall reaffirm the foregoing
representations and warranties at Closing, effective as of Closing, noting
however any material changes (the same to be acceptable to Buyer).
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement
and as of the Closing and where indicated covenants and agrees as follows:
5.1 Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under laws of Florida and has full power
and authority to enter into and perform this Agreement in accordance with its
terms, and the persons executing this Agreement and other Transaction Documents
on behalf of Buyer have been duly authorized to do so.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement and the other Transaction Documents have been duly and validly
authorized by the Board of Directors of Buyer. This Agreement has been duly and
validly executed and delivered by Buyer and (assuming the valid execution and
delivery of this Agreement by Seller) constitutes a legal, valid and binding
agreement of Buyer enforceable against it in accordance with its terms.
5.3 Commissions. Buyer has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Buyer or Seller for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transaction provided herein except
BlackRock Realty Advisors, Inc., whose commission shall be paid by Buyer and
Newfort Realty, Inc., whose
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commission shall be paid by Seller. Buyer agrees to indemnify Seller from any
other such claim arising by, through or under Buyer.
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 the rights of tenants under the
Leases and to the rights of Bellsouth under the Bellsouth Option.
6.2 Risk of Loss. All risk of loss to the Property shall remain upon
Seller until the conclusion of the Closing. If, before the possession of the
Property has been transferred to Buyer, any material portion of the Property is
damaged by fire or other casualty and will not be restored by the Closing Date
or if any material portion of the Property is taken by eminent domain or there
is a material obstruction of access to the Improvements by virtue of a taking by
eminent domain, Seller shall, within ten (10) days of such damage or taking,
notify Buyer thereof and Buyer shall have the option to:
(a) terminate this Agreement upon notice to Seller given
within ten (10) business days after such notice from Seller, in which case Buyer
shall receive a return of its Xxxxxxx Money Deposit; or
(b) proceed with the purchase of the Property, in which event
Seller shall assign to Buyer all Seller's right, title and interest in all
amounts due or collected by Seller under the insurance policies or as
condemnation awards. In such event, the Purchase Price shall be reduced by the
amount of any insurance deductible to the extent it reduced the insurance
proceeds payable.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance and Survey. Buyer's counsel shall order
the Title Insurance Commitment and Survey (Seller agreeing to furnish to Buyer
copies of any existing surveys and title information in its possession) promptly
after execution of this Agreement). Buyer shall use Chicago Title Insurance
Company for the title insurance and Xxxxxx & Associates, Inc., Land Development
Consultants, the surveyor who prepared Seller's existing survey, for the survey.
Buyer will have ten (10) days from receipt of the Title Commitment (including
legible copies of all recorded exceptions noted therein) and Survey, but not
later than the end of the Inspection Period, to notify Seller in writing of any
Title Defects, encroachments or other matters not acceptable to Buyer which are
not permitted by this Agreement. Any Title Defect or other objection disclosed
by the Title Insurance Commitment (other than liens removable by the
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payment of money) or the Survey which is not timely specified in Buyer's written
notice to Seller of Title Defects shall be deemed a Permitted Exception. Seller
shall notify Buyer in writing within five (5) days of Buyer's notice if Seller
intends to cure any Title Defect or other objection. If Seller elects to cure,
Seller shall use diligent efforts to cure the Title Defects and/or objections by
the Closing Date (as it may be extended). If Seller elects not to cure or if
such Title Defects and/or objections are not cured, Buyer shall have the right,
in lieu of any other remedies, to: (i) refuse to purchase the Property,
terminate this Agreement and receive a return of the Xxxxxxx Money Deposit; or
(ii) waive such Title Defects and/or objections and close the purchase of the
Property subject to them.
(b) Miscellaneous Title Matters. If a search of the title
discloses judgments, bankruptcies or other returns against other persons having
names the same as or similar to that of Seller, Seller shall on request deliver
to Buyer an affidavit stating, if true, that such judgments, bankruptcies or the
returns are not against Seller. Seller further agrees to execute and deliver to
the Title Insurance agent at Closing such documentation, if any, as the Title
Insurance underwriter shall reasonably require to evidence that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and that there are no mechanics'
liens on the Property or parties in possession of the Property other than
tenants under Leases and Seller.
8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The obligations of
Buyer under this Agreement are subject to satisfaction or waiver by Buyer of
each of the following conditions or requirements on or before the Closing Date:
(a) Seller's warranties and representations under this
Agreement shall be recertified as true and correct as of the Closing Date
(noting any changes as provided in Section above), and Seller shall not be in
default hereunder.
(b) All obligations of Seller contained in this Agreement,
shall have been fully performed in all material respects and Seller shall not be
in default under any covenant, restriction, right-of-way or easement affecting
the Property.
(c) There shall have been no material adverse change in the
Property, its operations or future prospects, the Leases or the financial
condition of tenants leasing space in the Shopping Center.
(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.
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(e) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear
excepted.
(f) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) A special warranty deed in proper form for recording, duly executed and
acknowledged so as to convey to Buyer the fee simple title to the Property,
subject only to the Permitted Exceptions;
(2) An Approved Lease(s) for not less than one (1) store in the Earnout
Space;
(3) 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;
(4) A blanket assignment to Buyer of all Leases, including the Approved
Lease(s) for stores in the Earnout Space, and the Contracts, permits and
licenses (to the extent assignable) as they affect the Property, including
reciprocal indemnities against breach of such instruments by Seller prior to the
Closing Date and by Buyer after the Closing Date;
(5) A xxxx of sale with respect to the Personal
Property and Materials;
(6) A title certificate, properly endorsed by Seller, as to any items of
Property for which title certificates exist;
(7) A current rent roll for all Leases in effect showing no material
changes from the Rent Roll attached to this Agreement other than those set forth
in the Leases or approved as Approved Leases in writing by Buyer;
(8) All Tenant Estoppel Letters obtained by Seller, which must include
Publix, Eckerd, Hair Cuttery, Dryclean USA, Lady of America, Subway, Blockbuster
Video and Lakes Preschool, and eighty percent (80%) by number of the other
tenants who have signed leases for any portion of the Property, without any
material exceptions, covenants, or changes to the form approved by Buyer and
distributed to the tenants by Seller, the substance of which Tenant Estoppel
Letters must be acceptable to Buyer in all respects (Seller agreeing to use
reasonable efforts to obtain Tenant Estoppel Letters from all tenants, including
specifically Allstate Insurance);
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(9) An affidavit from Seller certifying to Seller's knowledge about the
same information contained in the Buyer's form of Tenant Estoppel Letter for all
tenants who do not execute and deliver a Tenant Estoppel Letter;
(10) The estoppel letter and consent from the holder of the Surviving
Mortgage in form and substance and without conditions unless such are reasonably
acceptable to Buyer and reflect that the transfer fee will be no greater than
one percent (1.0%) of the outstanding principal balance of the Surviving
Mortgage (it being acknowledged by Seller that Buyer shall not be required to
undertake any personal obligation under the Surviving Mortgage or the loan
documents thereby secured;
(11) A general assignment of all assignable existing warranties relating to
the Property;
(12) An owner's affidavit, non-foreign affidavits, non-tax withholding
certificates and such other documents as may reasonably be required by Buyer or
its counsel in order to effectuate the provisions of this Agreement and the
transactions contemplated herein;
(13) Copies of any current water, sewer and utility bills which are in
Seller's custody or control;
(14) Resolutions of Seller authorizing the transactions described herein;
(15) All keys and other means of access to the Improvements in the
possession of Seller or its agents;
(16) Materials; and
(17) Such other documents as Buyer may reasonably request to effect the
transactions contemplated by this Agreement.
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.
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(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) Seller shall have obtained the consent of the holder of
the Surviving Mortgage to this Agreement and to the transfer of the Property to
Buyer, and to a release in favor of Seller, its partners and their respective
principals of post-Closing personal liability under the Surviving Mortgage and
other loan documents, including without limitation the Recourse Obligations, as
defined therein. It is acknowledged by Buyer that because of the substantial
prepayment premium required under the Surviving Mortgage should it be prepaid,
Seller shall not be required to satisfy the Surviving Mortgage at Closing or
close this transaction should the holder of the Surviving Mortgage not consent
to the transfer contemplated by this Agreement, subject to the Surviving
Mortgage.
(d) Buyer shall have delivered to Seller at or prior to the
Closing the following, which shall be reasonably satisfactory to Seller:
(1) Delivery and/or payment of the balance of the Purchase
Price in accordance with Section at Closing;
(2) Such other documents as Seller may reasonably
request to effect the transactions contemplated by this Agreement.
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 transactions 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 as its sole remedy may, at Buyer's election either
(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 expressly 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. Buyer shall have no remedy at
law for damages arising from a pre-Closing breach by Seller.
9.2 Breach by Buyer. In the event of a breach of Buyer's covenants or
warranties herein and failure of Buyer to cure such breach within the time
provided for Closing, Seller's sole remedy shall be to terminate this Agreement
and retain Buyer's
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Xxxxxxx Money Deposit as agreed liquidated damages for such breach, and upon
payment in full to Seller of such amounts, the parties shall have no further
rights, claims, liabilities or obligations under this Agreement (except for
Buyer's indemnity in Section , which shall survive termination).
10. AS-IS PURCHASE; POST CLOSING INDEMNITIES AND COVENANTS
10.1 As-Is Acquisition. Buyer acknowledges that, except as expressly
represented and warranted by Seller in this Agreement, there have been no
representations or warranties, express or implied, upon which Buyer is relying
which have been made by Seller or upon Seller's behalf relating in any way to
the Property, including, without limitation, the condition of the Property, any
restrictions related to or approvals required for the development of the
Property, or the suitability of the Property for any purposes whatsoever, and
that subject to any and all conditions to Buyer's obligations described in this
Agreement and to Seller's representations and warranties expressed in this
Agreement, Buyer is acquiring the Property "as is," subject to all faults of
every kind and nature whatsoever whether latent or patent and whether now or
hereafter existing. Seller shall not be responsible for any work or improvement
necessary to cause the Property to meet any applicable law, ordinance,
regulation or code or to be suitable for any particular use or for any other
work except that which is covered by an express warranty or representation made
herein by Seller.
10.2 Seller's Indemnity. Should this transaction close, Seller, subject
to the limitations set forth herein, shall indemnify, defend and hold harmless
Buyer from all claims, demands, liabilities, damages, penalties, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, which may be imposed upon, asserted against or incurred or paid
by Buyer by reason of, or on account of, any breach by Seller of Seller's
warranties, representations and covenants. Seller's warranties, representations
and covenants, and the foregoing indemnity, shall survive the Closing with
respect to any and all claims made by Buyer by written notice to Seller, within
one (1) year after the date of Closing. If any such claim is made and, except in
cases of emergency, before Buyer voluntarily expends substantial funds or
voluntarily incurs any substantial liability, Buyer shall provide a reasonable
opportunity to Seller (not to exceed thirty [30] days) within which to cure or
if any such claim is not susceptible to cure within thirty (30) days, to
commence curing (and diligently pursue thereafter) the matters raised by such
claim(s), during which cure period the one (1) year survival period shall be
correspondingly extended with respect to such claim(s).
10.3 Buyer's Indemnity. Should this transaction close, Buyer shall
indemnify, defend and hold harmless Seller from all claims, demands,
liabilities, damages, penalties, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, which may be imposed
upon, asserted against or incurred or paid by Seller by reason of, or on account
of, any breach by Buyer of Buyer's warranties,
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representations and covenants. Buyer's warranties, representations and
covenants, and the foregoing indemnity, shall survive the Closing with respect
to any and all claims made by Seller by written notice to Buyer within one (1)
year after the date of Closing. If any such claim is made, and, except in cases
of emergency, before Seller voluntarily expends substantial funds or voluntarily
incurs any substantial liability, Seller shall provide a reasonable opportunity
to Buyer (not to exceed thirty [30] days) within which to cure or if any such
claim is not susceptible to cure within thirty (30) days, to commence curing
(and diligently pursue thereafter) the matters raised by such claim(s), during
which cure period the one (1) year survival period shall be correspondingly
extended with respect to such claim(s).
11. MISCELLANEOUS
11.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement without the prior approval of the other, except
to its attorneys, accountants and other consultants, their lenders and
prospective lenders, or where disclosure is required by law.
11.2 Radon Gas. Radon is a naturally occurring radioactive gas which,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon which
exceed federal and state guidelines have been found in buildings in the state in
which the Property is located. Additional information regarding radon and radon
testing may be obtained from the county public health unit.
11.3 Entire Agreement. This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and may not be modified, amended or
otherwise changed in any manner except by a writing executed by Buyer and
Seller.
11.4 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement shall be served by personal delivery, certified or overnight
mail, reputable overnight courier service or facsimile (followed promptly by
hard copy) at the addresses set forth below:
As to Seller: Miami Gardens Associates
c/o Xxxxxxx X. XxXxxx
000 Xxxxx Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
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With a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
Attention: Xxxx X. Xxxxxxx, P.A.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
As to Buyer: RRC Acquisitions, 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 upon
delivery to the United States Postal Service or to such overnight courier. A
party may change its notice address by notice given in the aforesaid manner.
11.5 Headings. The titles and headings of the various sections hereof
are intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
11.6 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.7 Attorneys' Fees. In the event of any litigation between the
parties hereto to enforce any of the provisions of this Agreement or any right
of either party hereto, the unsuccessful party to such litigation agrees to pay
to the successful party all costs and expenses, including reasonable attorneys'
fees, whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions herein shall include
indemnification for reasonable attorneys' fees and costs, whether or not suit be
brought and including fees and costs on appeal.
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11.8 Time of Essence. Time is of the essence of this Agreement.
11.9 Governing Law. This Agreement shall be governed by the laws of the
state in which the Property is located, and the parties hereto agree that any
litigation between the parties hereto relating to this Agreement shall take
place (unless otherwise required by law) in a court located in the county in
which the Property is located. Each party waives its right to jurisdiction or
venue in any other location.
11.10 Successors and Assigns. The terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Any assignment shall not relieve
Buyer of its obligations hereunder. No third parties, including any brokers or
creditors, shall be beneficiaries hereof.
11.11 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
11.12 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
11.13 Counterparts; 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.
11.14 Section 1031 Exchange. Buyer acknowledges that Seller may effect
a like-kind exchange under Section 1031 of the Internal Revenue Code of 1986, as
amended (the "Code"). Accordingly, Buyer agrees that it will cooperate with
Seller to effect a tax-free exchange in accordance with the provisions of
Section 1031 of the Code and the regulations promulgated with respect thereto.
Seller shall be solely responsible for any additional fees, costs or expenses
incurred in connection with the like-kind exchange contemplated by this
paragraph. In no event shall Seller's ability or inability to effect a like-kind
exchange, as contemplated hereby, in any way relieve Seller from its obligations
and liabilities under this Agreement. Seller hereby agrees to indemnify and hold
harmless Buyer from any liability, losses or damages incurred by Buyer in
connection with or arising out of the Section 1031 like-kind exchange, including
but not limited to any tax liability.
- 26 -
11.15 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.16 No Recording. Neither this Agreement nor any notice, memorandum
or other notice or document relating hereto shall be recorded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses:
RRC ACQUISITIONS, INC.,
____________________________ a Florida corporation
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: , 1997
Tax Identification No. 00-0000000
"BUYER"
MIAMI GARDENS ASSOCIATES, a New Jersey
general partnership
By: Garden Square Associates, L.P., a
Delaware limited partnership, doing
business in Florida as Garden Square
Associates of Delaware, Ltd., as the
authorized managing general partner of
Miami Gardens Associates
By: Englewood Gardens, Inc., a Florida
corporation, sole general partner
By:
Xxxx X. Xxxxxxx, President
Date: , 1997
Tax Identification No:
"SELLER"
- 27 -
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 of Florida.
2. Indemnity. Escrow Agent shall not be liable to either party except
for claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow
Agent or Escrow Agent is uncertain with respect to the escrow, the parties
hereto expressly agree that Escrow Agent shall have the absolute right to do
either or both of the following: (i) withhold and stop all proceedings in
performance of this escrow and await settlement of the controversy by final
appropriate legal proceedings or by the mutual agreement of the parties; or (ii)
file suit for declaratory relief and/or interpleader and obtain an order from
the court requiring the parties to interplead and litigate in such court their
several claims and rights between themselves. Upon the filing of any such
declaratory relief or interpleader suit and tender of the 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. 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 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
- 28 -
notwithstanding that it is acting and will continue to act as Escrow Agent
hereunder, it being acknowledged by all parties that Escrow Agent's duties
hereunder are ministerial in nature.
5. Tax Identification. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
ROGERS, TOWERS, XXXXXX, XXXXX & GAY
By:
Its Authorized Agent
Date: , 1997
"ESCROW AGENT"
- 29 -
EXHIBIT
Audit Representation Letter
--------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
Xxxxx 0000
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
We are writing at your request to confirm our understanding that your
audit of the Statement of Revenue and Certain Expenses for the twelve months
ended ________________, was made for the purpose of expressing an opinion as to
whether the statement presents fairly, in all material respects, the results of
its operations in conformity with generally accepted accounting principles. In
connection with your audit we confirm, to the best of our knowledge and belief,
the following representations made to you during your audit:
1. We have made available to you all financial records and related data
for the period under audit.
2. There have been no undisclosed:
a. Irregularities involving any member of management or
employees who have significant roles in the internal control structure.
b. Irregularities involving other persons that could have a
material effect on the Statement of Revenue and Certain Expenses.
c. Violations or possible violations of laws or regulations,
the effects of which should be considered for disclosure in the Statement of
Revenue and Certain Expenses.
3. There are no undisclosed:
a. Unasserted claims or assessments that our lawyers have
advised us are probable of assertion and must be disclosed in accordance with
Statement of Financial Accounting Standards No. 5 (SFAS No. 5).
b. Material gain or loss contingencies (including oral and
written guarantees) that are required to be accrued or disclosed by SFAS No. 5.
c. Material transactions that have not been properly recorded
in the accounting records underlying the Statement of Revenue and Certain
Expenses.
d. Material undisclosed related party transactions and related
amounts receivable or payable, including sales, purchases, loans, transfers,
leasing arrangements, and guarantees.
e. Events that have occurred subsequent to the balance sheet
date that would require adjustment to or disclosure in the Statement of Revenue
and Certain Expenses.
4. All aspects of contractual agreements that would have a material
effect on the Statement of Revenue and Certain Expenses have been complied with.
Further, we acknowledge that we are responsible for the fair
presentation of the Statements of Revenue and Certain Expenses prepared in
conformity with generally accepted accounting principles.
Very truly yours,
"Seller/Manager"
Name
Title
EXHIBIT
Legal Description of Real Property
1. A portion of Tract "A" of "XXXXXX XXXX PLAT", according to the Plat
thereof as recorded in Plat Book 138, Page 85, of the Public Records of
Dade County, Florida, being more particularly described as follows:
Commence at the Southwest corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx
40 East; thence North 89 degrees 38 minutes 39 seconds East, along the
south line of said Section 3, 700.53 feet; thence North 02 degrees 35
minutes 29 seconds West, along a line 700 feet East of and parallel
with the west line of said Section 3, 55.04 feet to the POINT OF
BEGINNING of the hereinafter described parcel of land; said point being
the Southeast corner of said Tract "A" of the said Plat of "XXXXXX XXXX
PLAT"; thence South 89 degrees 38 minutes 39 seconds West, along a line
55 feet North of and parallel with said south line of said Section 3,
said line being the north right-of-way line of Miami Gardens Drive
(N.W. 186th Street) as shown on the said Plat of "XXXXXX XXXX PLAT",
180.00 feet thence North 00 degrees 21 minutes 21 seconds West, 30.00
feet; thence South 89 degrees 38 minutes 39 seconds West, 30.00 feet;
thence South 00 degrees 21 minutes 21 seconds East, 30.00 feet; thence
South 89 degrees 38 minutes 39 seconds West, along a line 55 feet North
of and parallel with said south line of said Section 3, said line being
the north right-of-way line of Miami Gardens Drive (N.W. 186th Street)
as shown on the said Plat of "XXXXXX XXXX PLAT", 300.50 feet; thence
North 02 degrees 35 minutes 29 seconds West, along a line 189.89 feet
East of and parallel with the west line of said Section 3, 224.00 feet;
thence South 89 degrees 38 minutes 39 seconds West, along a line 278.83
feet North of and parallel with the south line of said Section 3,
150.00 feet; thence North 02 degrees 35 minutes 29 seconds West, along
a line 40 feet East of and parallel with the west line of said Section
3, and said line being the east right-of-way line of X.X. 00xx Xxxxxx
as shown on the said Plat of "XXXXXX XXXX PLAT", 436.30 feet; thence
North 89 degrees 38 minutes 29 seconds East, along a line 55 feet North
of and parallel with the south line of Tract 43 of "FLORIDA FRUIT LANDS
COMPANY'S SUBDIVISION NO. 1", according to the Plat thereof as recorded
in Plat Book 2, Page 17, of the Public Records of Dade County, Florida,
said line also being the north line of Tract "A" of said Plat of
"XXXXXX XXXX PLAT", 660.50 feet; thence South 02 degrees 35 minutes 29
seconds East, along a line 700 feet East of and parallel with the west
line of said Section 3, 660.33 feet to the POINT OF BEGINNING.
Said lands lying in Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 40 East, Dade
County, Florida.
2. TOGETHER WITH a perpetual, non-exclusive easement for pedestrian and
vehicular ingress and egress and parking over and upon the following
described parcel as contained in the certain cross access easement
filed May 17, 1990, in Official Records Book 14550, Page 2602:
The West 149.89 feet of the South 223.83 feet of Tract "A" of "XXXXXX
XXXX PLAT" according to the Plat thereof recorded in Plat Book 138,
Page 85, of the Public Records of Dade County, Florida, being more
particularly described as follows:
Commence at the Southeast corner of said Tract "A", thence run South 89
degrees 38 minutes 39 seconds West along the south line of said Tract
"A", also being the north right-of-way line of Miami Gardens Drive, for
a distance of 510.50 feet to the POINT OF BEGINNING, thence continue
South 89 degrees 38 minutes 39 seconds West for a distance of 125.96
feet to a point of curvature of a circular curve concave to the
Northeast; thence run Northwesterly along the arc of said circular
curve, having a radius of 25.00 feet through a central angle of 87
degrees 45 minutes 52 seconds, for an arc distance of 38.29 feet to a
point of tangency; thence run North 02 degrees 35 minutes 29 seconds
West along the west line of said Tract "A", also being the east
right-of-way line of X.X. 00xx Xxxxxx, a distance of 199.96 feet to a
point; thence run North 89 degrees 38 minutes 39 seconds East along the
north line of the South 223.83 feet of said Tract "A", a distance of
150.00 feet to a point; thence run South 02 degrees 35 minutes 29
seconds East along the east line of the West 149.89 feet of said Tract
"A" for a distance of 224.00 feet to the POINT OF BEGINNING.
3. TOGETHER with a perpetual, non-exclusive easement for the purpose of
automobile and pedestrian ingress and egress and automobile parking
created at Paragraph 1 of the Reciprocal Shopping Center Easement
Agreement by and between Miami Gardens Associates, a New Jersey
partnership, and XxXxxxxx'x Corporation, a Delaware corporation, dated
October 3, 1994, recorded in Official Records Book 16560, Page 1778, of
the Public Records of Dade County, Florida.
LESS THE FOLLOWING LANDS:
(Out-Parcel "B" Miami Gardens Shopping Center)
A portion of Tract "A" of "XXXXXX XXXX PLAT", according to the Plat
Book 138, Page 85, of the Public Records of Dade County, Florida being
more particularly described as follows:
COMMENCE at the Southwest corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx
40 East; thence North 89 degrees 38 minutes 39 seconds East along the
south line of said Section 3, 700.53; thence North 02 degree 35 minutes
29 seconds West, 55.04 feet to a point on the south line of said Tract
"A", said point being the Southeast Corner of said Tract "A", thence
South 89 degrees 38 minutes 39 seconds West along the south line of
said Tract "A", 44.04 feet to the POINT OF BEGINNING of the hereinafter
described parcel of land; thence continue South 89 degrees 38 minutes
39 seconds West along said south line of said Tract "A", 135.96 feet;
thence North 00 degrees 21 minutes 21 seconds West, 30.00 feet; thence
South 89 degrees 38 minutes 39 seconds West, 26.01 feet; thence North
00 degrees 21 minutes 21 seconds West 120.00 feet; thence North 89
degrees 38 minutes 39 seconds East, 136.88 feet to a point of curvature
of a circular curve to the right concave Southwesterly; thence
Easterly, Southeasterly and Southerly along the arc of said curve,
having a radius of 20.00 feet and a central angle of 87 degrees 45
minutes 52 seconds, for an arc distance of 30.64 feet to a point of
tangency; thence South 02 degrees 35 minutes 29 seconds East, 130.88
feet to the POINT OF BEGINNING.
Said lands lying in Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxx
Xxxxxx, Xxxxxxx.
EXHIBIT
Rent Roll
EXHIBIT
Form of Estoppel Letter
_____________________, 199_
RRC Acquisitions, Inc.
Regency Centers, Inc.
000 X. Xxxxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised you may purchase the above
Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of ____________________________, Landlord,
in the above Shopping Center, and is currently in possession and paying rent on
premises known as Store No. _______________ [or Address:
________________________________________________________], and containing
approximately _____________ square feet, under the terms of the lease dated
______________________, which has (not) been amended by amendment dated
________________________ (the "Lease"). There are no other written or oral
agreements between Tenant and Landlord. Tenant neither expects nor has been
promised any inducement, concession or consideration for entering into the
Lease, except as stated therein, and there are no side agreements or
understandings between Landlord and Tenant.
2. The term of the Lease commenced on ____________________,
expiring on ___________________, with options to extend of
________________ (____) years each.
3. As of ____________________, monthly minimum rental is
$_______________ a month.
4. Tenant is required to pay its pro rata share of Common Area
Expenses and its pro rata share of the Center's real property
taxes and insurance cost. Current additional monthly payments
for expense reimbursement total $____________ per month for
common area maintenance, property insurance and real estate
taxes.
5. Tenant has given [no security deposit] [a security deposit of
$--------------].
6. No payments by Tenant under the Lease have been made for more
than one (1) month in advance, and minimum rents and other
charges under the Lease are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the
Tenant's premises and development of the Shopping Center,
including without limitation, parking requirements, have been
performed by Landlord.
8. The Lease contains no first right of refusal, option to
expand, option to terminate, or exclusive business rights,
except as follows:
9. Tenant knows of no default by either Landlord or Tenant under
the Lease, and knows of no situations which, with notice or
the passage of time, or both, would constitute a default.
Tenant has no rights to off-set or defense against Landlord as
of the date hereof.
10. The undersigned has not entered into any sublease, assignment
or any other agreement transferring any of its interest in the
Lease or the Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or
released any hazardous substances at, on or in the Premises.
"Hazardous Substances" means any flammable, explosive, toxic,
carcinogenic, mutagenic, or corrosive substance or waste, including
volatile petroleum products and derivatives and drycleaning solvents.
To the best of Tenant's knowledge, no asbestos or polychlorinated
biphenyl ("PCB") is located at, on or in the Premises. The term
"Hazardous Substances" does not include those materials which are
technically within the definition set forth above but which are
contained in pre-packaged office supplies, cleaning materials or
personal grooming items or other items which are sold for consumer or
commercial use and typically used in other similar buildings or space.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
------------------------------------------
__________________________________(Tenant)
Mailing Address:
____________________________ By:________________________________________
Its:_________________________________
----------------------------
EXHIBIT
Notices of Violations
Three minor Metropolitan Dade County code violations, two pertaining to
signage and one pertaining to an entrance ramp.
