CONTRIBUTION AGREEMENT
THIS AGREEMENT is made as of the 3rd day of November, 1997, between
XXXX-XXXXXX FERRY/SOUTHSIDE ASSOCIATES, L.P., a Georgia limited partnership
("Seller"), and RRC ACQUISITIONS, INC., a Florida corporation, its designees,
successors and assigns ("Buyer").
Background
Seller owns a shopping center in Marietta, Xxxx County, Georgia, known
as "Xxxx Spectrum Shopping Center". The Shopping Center contains approximately
_________ square feet of leasable store area on approximately ______ acres of
land. Buyer intends to acquire or to form a limited partnership (the "Acquiring
Partnership") to acquire the Shopping Center, and Seller is willing to
contribute the Shopping Center to the Acquiring Partnership in exchange for cash
and partnership units in the Acquiring Partnership, as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements herein, and
other good and valuable consideration, the receipt of which is hereby
acknowledged, Seller agrees to contribute the Property to the Acquiring
Partnership and Buyer agrees to cause the Acquiring Partnership to acquire the
Property, on and subject to 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 agreement as it may be amended in writing 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 RRC Acquisitions, Inc., its designees, successors and
assigns, including without limitation Acquiring Partnership.
1.5 Closing means generally the execution and delivery of those
documents and funds necessary to effect the sale or exchange of the Shopping
Center.
1.6 Closing Date means the date which is the eleventh (11th) business
day following the end of the Inspection Period.
1.7 Contracts means all service contracts and agreements affecting or
pursuant to which persons furnish services to or for the benefit of the Property
or enumerated on Exhibit attached hereto.
1.8 Day means a calendar day, whether or not the term is capitalized.
1.9 Xxxxxxx Money Deposit means the deposits delivered by Buyer to
Escrow Agent under Sections and 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 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 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC App.
11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq.,
Safe Drinking Water Act of 1974, as amended by 42 USC 300(f) et seq., and any
similar, implementing or successor law, any amendment, rule, regulation, order
or directive, issued thereunder.
-2-
1.12 Escrow Agent means Chicago Title Insurance Company, whose address
is 0000-X Xxxxxxxxx-Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (Attn: Xx.
Xxxxx Xxxxxxxxx) (Fax 404/000-0000), 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 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 and other
improvements situated on the Real Property.
1.17 Inspection Period means the period of time which expires at
midnight on the forty-fifth (45th) day following the full execution hereof by
Seller and Buyer and delivery of an executed counterpart to Escrow Agent.
1.18 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.19 Materials means all right, title and interest of Seller, if any,
in and to 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 Nationwide means Nationwide Life Insurance Company.
1.21 Partnership Agreement means generally the form of Agreement of
Limited Partnership for the Acquiring Partnership attached hereto as Exhibit ,
the specific terms of which are to be negotiated by Seller and Buyer during the
Inspection Period.
1.22 Partnership Units means units representing limited partnership
interests in the Acquiring Partnership.
-3-
1.23 Permitted Exceptions, when referring to the Property, means only
the following interests, liens and encumbrances:
(a) Liens for ad valorem taxes not payable on or before Closing;
(b) Deed to Secure Debt dated April 9, 1992 from Seller to
Nationwide, securing a note of even date therewith in the face amount of
$9,000,000.00, (the "Surviving Mortgage"), recorded in Deed Book 6582, Page 0001
of the Xxxx County, Georgia, Records.
(c) Rights of tenants under Leases; and
(d) Other matters determined by Buyer to be acceptable.
1.24 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.
1.25 Property means collectively the Real Property, the Improvements
and the Personal Property.
1.26 Purchase Price means the consideration agreed to be paid by Buyer
for the acquisition of the Shopping Center, either in the form of cash or
partnership units in the Acquiring Partnership, as set forth in Section .
1.27 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.
1.28 Redemption Agreement means generally the form of Redemption
Agreement for the Partnership Units attached hereto as Exhibit , the specific
terms of which are to be negotiated by Seller and Buyer during the Inspection
Period.
1.29 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.
-4-
1.30 Rent Roll means the list of Leases attached hereto as Exhibit ,
identifying with particularity the space leased by each tenant, the term
(including extension options), square footage and applicable rent, common area
maintenance, tax and other reimbursements, security deposits and similar data.
1.31 Seller means Xxxx-Xxxxxx Ferry/Southside Associates, L.P., a
Georgia limited partnership.
1.32 Seller Financial Statements means the profit and loss statements
of Seller concerning the Property as of and for the two (2) calendar years next
preceding the date of this Agreement and all monthly reports of income and
expense for the Property, audited if audits have been made, and in any event
consistent with the accounting principles utilized by Seller in its regular
annual financial reporting, for each month beginning after the latest of such
calendar years, and ending prior to Closing.
1.33 Shopping Center means Xxxx Spectrum Shopping Center in its
entirety, as identified on the initial page hereof.
1.34 Survey means a map of a stake survey of the Property and
Improvements which shall comply with Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys, jointly established and adopted by ALTA and ACSM
in 1992, and includes items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A"
thereof, which meets the accuracy standards (as adopted by ALTA and ACSM and in
effect on the date of the Survey) of an urban survey, which is dated not earlier
than thirty (30) days prior to the Closing, and which is certified to Buyer and
the Title Insurance company providing Title Insurance to Buyer and dated as of
the date the Survey was made.
1.35 Tenant Estoppel Letter means a letter or other certificate from a
tenant of the Shopping Center, addressed to Buyer, certifying as to certain
matters regarding such tenant's Lease, in substantially the same form as that
attached hereto as Exhibit , or in the case of national or regional "credit"
tenants identified as such on the Rent Roll, the form customarily used by such
tenant provided the information disclosed is acceptable to Buyer.
1.36 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.37 Title Insurance means an ALTA Form B Owners Policy of Title
Insurance in the amount of the Purchase Price, insuring marketable title to the
Property in Buyer or Acquiring Partnership, as the case may be, in fee simple,
as of the Closing Date, subject only to the Permitted Exceptions, issued by
Chicago Title Insurance Company.
1.38 Title Insurance Commitment means a binder whereby the title
insurer agrees to issue the Title Insurance to Buyer.
-5-
2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The Purchase Price for the
Property is $13,415,139, less the principal balance of the Surviving Mortgage,
payable by exchanging for the Property Partnership Units in the Acquiring
Partnership having an aggregate value equal to the Purchase Price, adjusted by
the allocations and adjustments provided herein. The number of Partnership Units
to be issued to Seller shall be established by dividing such adjusted Purchase
Price by the average closing price of a share of the common stock of Regency
Realty Corporation, a Florida corporation ("Regency"), over the twenty trading
days immediately preceding Closing on the New York Stock Exchange (or the
exchange or quotation system on which the common stock of Regency is then listed
for trading).
(b) Closing Allocations. There shall be prorated as of the
Allocation Date, all cash receipts and expenditures of the Property for the
month in which the Closing occurs, interest on the Surviving Mortgage, ad
valorem real and personal property taxes and other items of income and expense
which would customarily be prorated, all as of midnight on the Allocation Date.
Any escrow deposits held by the holder of the Surviving Mortgage shall be
credited to Seller and transferred to Buyer at Closing.
(c) Post-Closing Receipts and Expenses. Seller shall reimburse
Buyer for expenses of the Property which are billed or discovered after Closing
and paid by Buyer, but which cover periods ending on or prior to the Allocation
Date, and Buyer shall pay to Seller any rents, percentage rents or tenant
reimbursements paid to Seller after the Allocation Date but which are applicable
to periods on or prior to the Allocation Date within thirty (30) days after
receipt or billing by Buyer. Seller shall have no obligation to collect
delinquencies, but should it collect any delinquent rents or other sums which
cover periods prior to the Allocation Date and to which Seller shall be entitled
but for which it shall have received no distribution or other credit, Buyer
shall remit same to Seller within thirty (30) days after receipt, less any costs
of collection. Buyer shall retain any rents, percentage rents or tenant
reimbursements received after Closing which are attributable to periods
occurring after the Allocation Date. Undesignated receipts after Closing from
tenants in the Shopping Center shall be applied first to then current rents and
reimbursements for such tenant(s), then to delinquent rents and reimbursements
attributable to post-Allocation Date periods, and then to pre-Allocation Date
periods.
(d) Partnership Agreement of Acquiring Partnership. During the
Inspection Period Buyer and Seller shall agree upon the final provisions of the
Partnership Agreement and the Redemption Agreement. It is intended that Buyer
(or its affiliate) shall be the general partner and that Seller shall be the
sole limited partner of the Acquiring Partnership. Buyer (or its affiliate)
shall have full, exclusive and
-6-
complete authority and discretion to manage and control the business of
Acquiring Partnership and shall make all decisions affecting the business of
such Acquiring Partnership. Under the terms of the Redemption Agreement Seller,
as the limited partner of Acquiring Partnership, shall have the right at any
time beginning on the first anniversary of the Closing to require the Acquiring
Partnership to acquire all of its Partnership Units in the Acquiring Partnership
in exchange for common stock of Regency on the basis of one Regency share for
each unit exchanged (the "Put Price"), provided that such shares shall have such
restrictions as are agreed upon in the Redemption Agreement. If such exercise
results in a fractional share, the Acquiring Partnership shall pay cash in lieu
thereof in an amount equal to such fraction multiplied times the average closing
price of the shares during the twenty (20) business days preceding the date of
Seller's notice. The Acquiring Partnership may elect to pay the Put Price in
cash instead of shares with respect to all or any portion of the units to be
exchanged. The Redemption Agreement will also contain provisions (i) dealing
with the general partner's obligation to retain for a period not less than ten
(10) years after Closing, secured debt encumbering the Property initially not
less than the outstanding balance of the Surviving Mortgage, amortizing
thereafter at the same rate as the Surviving Mortgage (as if there were no
balloon), and (ii) restricting the Acquiring Partnership from disposing of the
Property (other than by a "section 1031 exchange" or similar transaction) for a
period not less than ten (10) years after Closing, provided in the case of
either (i) or (ii) Seller retains no less than fifty percent (50%) in the
aggregate of the Partnership Units in the Acquiring Partnership which are
originally issued to Seller at Closing.
(e) Compliance with Surviving Mortgage. Seller shall keep the
Surviving Mortgage in good standing, without default, during the pendency of
this Agreement.
2.2 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the amount of
$10,000 shall be delivered to Escrow Agent within three (3) business days after
full execution of this Agreement by the parties. The Escrow Agent shall invest
the Xxxxxxx Money Deposit in an interest bearing account at First Union National
Bank. 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 shall
be returned to Buyer at Closing or in the case of a cash purchase, credited
against the Purchase Price and delivered to Seller.
2.3 Closing Costs.
(a) Seller shall pay:
(1) Transfer taxes imposed upon the transactions contemplated
hereby, if any;
-7-
(2) Costs, if any, of curing title defects and recording any
curative title documents;
(3) That portion of the transfer fee, if any, and out of pocket
costs and expenses of Nationwide, such as attorneys fees, charged to the
borrower by Nationwide in connection with this transaction not paid by Buyer as
provided below; and
(4) Costs and fees of their respective counsel.
(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Costs of a Phase 1 environmental site assessment to be
obtained by Buyer;
(3) Cost of a Survey of the Property;
(4) Cost of title insurance and the cost of recording the deed
and the partnership certificate of the Acquiring Partnership;
(5) Cost of creating the Acquiring Partnership;
(6) $45,000 of the aggregate of the transfer fee, if any, and out
of pocket costs, such as attorneys fees, charged to the borrower by Nationwide
in connection with this transaction;
(7) Brokerage commissions to Xxx Xxxxxx Associates in
connection with this transaction, up to a maximum of one and one-half percent
(1.5%)of the Purchase Price; and
(8) Buyer's attorneys' fees.
2.4 Lease to Seller. At Closing Seller and Buyer will execute a lease
on Buyer's standard form lease pursuant to which Buyer will lease to Seller
certain storage space at the rear of the Shopping Center currently being used by
Seller. The term of such lease will be five (5) years, subject to early
termination (i) by Seller on thirty (30) days prior written notice; and (ii) by
Buyer (A) if Buyer determines in good faith that it needs the leased premises
for expansion space in the Shopping Center for an existing or new tenant into
space contiguous to the leased premises, upon ninety (90) days prior written
notice (Buyer agreeing to give Seller prompt notice of the commencement of
substantive negotiations concerning such expansion); or (B) after the completion
of the second lease year, upon one (1) year(s) prior written notice with or
without cause. While there will be no rent or passthroughs payable by the Seller
as tenant under the
-8-
lease, the other usual provisions of Buyer's form lease will apply, to be
negotiated during the Inspection Period.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, review the economic data, underwrite the
tenants and review their Leases, and to otherwise conduct its due diligence
review of the Property and all books, records and accounts of Seller related
thereto. Buyer hereby agrees to indemnify and hold Seller harmless from any
damages, liabilities or claims for property damage or personal injury arising
out of such inspection and investigation by Buyer or its agents or independent
contractors. 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, Buyer shall,
prior to the close of business on the first (1st) business day following the
expiration of the Inspection Period, increase the Xxxxxxx Money Deposit by an
additional $140,000, which shall become a part of the Xxxxxxx Money Deposit for
all purposes, none of which shall be refundable except upon the terms otherwise
set forth herein.
(b) Buyer, through its officers, employees and other
authorized representatives, shall have the right to reasonable access to the
Property and to all records of Seller related thereto, including without
limitation all Leases, Seller Financial Statements and books and records of
Seller, 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 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 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.
-9-
3.2 Hazardous Material. Buyer may order environmental assessments of
the Property, and a copy of any assessment report, if made, shall be furnished
by Buyer to Seller promptly upon its completion, if requested by Seller. If any
assessment report discloses the existence of any Hazardous Material or any other
matters concerning the environmental condition of the Property or its environs,
Buyer may notify Seller in writing, within the Inspection Period, that it elects
to terminate this Agreement, whereupon this Agreement shall terminate and Escrow
Agent shall return to Buyer the Xxxxxxx Money Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties,
the Closing shall take place on the Closing Date at the offices of Escrow Agent
at 10:00 A.M.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as follows as of the date of this
Agreement and as of the Closing, and where indicated covenants and agrees as
follows:
4.1 Organization; Authority. Seller is duly organized as a Georgia
limited partnership and is validly existing and in good standing under the laws
of the state of Georgia. 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, delivery and performance of
this Agreement have been duly and validly authorized by the directors and/or
partners of Seller. This Agreement has been duly and validly executed and
delivered by Seller and (assuming the valid execution and delivery of this
Agreement by Buyer) 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 the Permitted Exceptions.
4.4 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.
4.5 Litigation. There is no litigation or proceeding pending, or to the
best of Seller's knowledge, threatened against Seller or the Property, except
that which is in Seller's ordinary course of business and relates to tenants or
insured liability claims.
4.6 Leases. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll, and any Leases or modifications
which may be entered into between the date of this Agreement and the Closing
Date with the consent
-10-
of Buyer, not to be unreasonably withheld, conditioned or delayed. Copies of the
Leases, which have been delivered to Buyer or shall be delivered to Buyer within
three (3) days from the date hereof, are, true, correct and complete copies
thereof, subject to the matters set forth on the Rent Roll. Except as
contemplated by Section above, 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, conditioned or
delayed. All of the Property's tenant leases are in good standing and no
defaults exist thereunder except as noted on the Rent Roll. No rent or
reimbursement has been paid more than one (1) month in advance and no security
deposit has been paid, except as stated on the Rent Roll. No tenants under the
Leases are entitled to interest on any security deposits. No tenant under any
Lease has or will be promised any inducement, concession or consideration by
Seller or by any person acting on behalf of Seller (to the knowledge of 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.
4.7 Financial Statements. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
in accordance with the books and records of Seller and presents fairly in all
material respects the financial condition, results of operations and cash flows
for the Property as of and for the periods to which they relate. There has been
no material adverse change in the operations of the Property or its prospects
since the date of the most recent Seller Financial Statements. Seller covenants
to furnish promptly to Buyer copies of the Seller Financial Statements together
with unaudited updated monthly reports for interim periods beginning after
December 31, 1996. Buyer and its independent certified accountants shall be
given access to Seller's pre-Closing books and records until six (6) months
following Closing in order that they may verify the financial statements. If
deemed necessary by Buyer, Seller agrees to execute and deliver to Buyer the
Audit Representation Letter should Buyer's accountants audit the records of the
Shopping Center.
4.8 Contracts. Except for Leases and Permitted Exceptions, and the
Contracts listed in Exhibit attached hereto, there are no management, service,
maintenance, utility or other contracts or agreements affecting the Property,
oral or written. 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;
no party to any Contract has asserted any claim of default or offset against
Seller with respect thereto and no event has occurred or failed to occur, which
would in any way affect the validity or enforceability of any such Contract; and
the copies of the Contracts delivered to Buyer prior to the date hereof are
true, correct and complete copies thereof. Between the date hereof and the
Closing, Seller will fulfill all of its obligations under all Contracts, and
will not 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, conditioned or delayed.
-11-
4.9 Maintenance and Operation of Property. From and after the date
hereof and until the Closing, Seller will keep and maintain and operate the
Property substantially in the manner in which it is currently being maintained
and operated and not to cause or permit any waste of the Property nor undertake
any action with respect to the operation thereof outside the ordinary course of
business without Buyer's prior written consent. In connection therewith, Seller
will 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. Casualty and liability insurance on the Property
shall continue to be maintained as it is presently being maintained.
4.10 Surviving Mortgage. The outstanding principal balance under the
Surviving Mortgage is $____________ as of the date hereof, and no default exists
thereunder. Interest has been paid through September 30, 1997. Seller shall keep
the Surviving Mortgage current and in good standing throughout the pendency of
this Agreement and if necessary shall obtain the consent of Nationwide to the
transaction contemplated hereby prior to the end of the Inspection Period. The
transfer required by the Surviving Mortgage does not exceed one percent (1.0%)
of the outstanding principal balance secured by the Surviving Mortgage.
4.11 Permits and Zoning. There are no material permits and licenses
(collectively referred to as "Permits") required to be issued to Seller or to
any managing agent of the Shopping Center by any governmental body, agency or
department having jurisdiction over the Property which materially affect the
ownership or the use thereof which have not been issued. The Shopping Center is
properly zoned for its present uses. There are no outstanding assessments,
impact fees or similar charges related to the Property.
4.12 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and
correct in all respects. Seller agrees to use reasonable efforts to obtain
current Tenant Estoppel Letters acceptable to Buyer from all Tenants under
Leases, which Tenant Estoppel Letters shall confirm the matters reflected by the
Rent Roll as to the particular tenant and shall be otherwise acceptable to Buyer
in all respects.
4.13 Condemnation. Neither the whole nor any portion of the Property,
including access thereto or any easement benefitting the Property, is subject to
temporary requisition of use by any governmental authority or has been
condemned, or taken in any proceeding similar to a condemnation proceeding, nor
is there now pending any condemnation, expropriation, requisition or similar
proceeding against the Property or any portion thereof. Seller has received no
notice nor has any knowledge that any such proceeding is contemplated.
4.14 Governmental Matters. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing to Buyer. Seller has received
no notices from any
-12-
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. All sales tax for periods
occurring prior to the Allocation Date shall be remitted by Seller or the
managing agent of the Shopping Center directly to the appropriate state
department of revenue.
4.15 Repairs. Seller has received no notice of any requirements or
recommendations by any lender, insurance companies, governmental body or
agencies, or rating bureaus requiring or recommending any repairs or work to be
done on the Property which have not already been completed.
4.16 Environmental Matters.
(a) Seller represents and warrants as of the date hereof that:
(1) Seller has not, and has no actual knowledge of any other
person who has, caused any Release, threatened Release, or disposal of any
Hazardous Material at the Property in any material quantity;
(2) To the best of Seller's knowledge, (i) the Property does not
now contain and to the best of Seller's knowledge has not contained any: (a)
underground storage tank, (b) material amounts of asbestos-containing building
material, (c) landfills or dumps, (d) drycleaning plant or other facility using
drycleaning solvents, except as reflected on the Rent Roll; or (e) hazardous
waste management facility as defined pursuant to the Resource Conservation and
Recovery Act ("RCRA") or any comparable state law, and (ii) the Property is not
a site on or nominated for the National Priority List promulgated pursuant to
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA")
or any state remedial priority list promulgated or published pursuant to any
comparable state law; and
(3) There are to the best of Seller's knowledge no conditions or
circumstances at the Property which pose a risk to the environment or the
health or safety of persons.
(b) Seller shall indemnify, hold harmless, and hereby waives
any claim for contribution against Buyer for any damages to the extent they
arise from the inaccuracy or breach of any representation or warranty by Seller
in this Section of this Agreement. This indemnity shall survive Closing for a
180 day period and shall be in addition to any other indemnities contained in
this Agreement.
4.17 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) require Seller to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority;
-13-
(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 or the Property may be bound
(including without limitation the Surviving Mortgage, provided that the holder
of the Surviving Mortgage consents to the transaction contemplated hereby); or
(d) violate any order, writ, injunction, decree, judgment, statute, law or
ruling of any court or governmental authority applicable to Seller or the
Property.
4.18 Commissions. Seller has not dealt with nor has 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 transactions provided herein except Xxx Xxxxxx Associates,
whose commission shall be paid by Buyer. Seller agrees to indemnify Buyer from
any other such claim arising by, through or under Seller.
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 on behalf of Buyer have been
duly authorized to do so. Buyer is a wholly owned subsidiary of Regency Realty
Corporation, a Florida corporation ("Regency"), whose common shares are traded
on the New York Stock Exchange. The authorized capital stock of Regency consists
of (i) 150,000,000 shares of Common Stock, (ii) 10,000,000 shares of special
Common Stock, $0.01 par value, and (iii) 10,000,000 shares of preferred stock,
$0.01 par value. As of October 23, 1997, there were 23,256,433 shares of Common
Stock issued and outstanding, and 2,500,000 shares of Special Common Stock in
the form of Class B Non-voting Common Stock, par value $0.01 issued and
outstanding. The Class B Common Stock is held by a single investor and is
convertible in stages beginning in December, 1998, into a total of 2,975,468
shares of Common Stock.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement have been duly and validly authorized by the 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.
-14-
5.3 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Buyer nor the consummation by Buyer of the
transactions contemplated hereby will (a) require Buyer to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority other than the New York Stock Exchange if
the transaction closes as an exchange for units in Acquiring Partnership; (b)
conflict with or breach any provision of the organizational documents of Buyer;
(c) violate or breach any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
any note, bond, mortgage, indenture, deed of trust, license, franchise, permit,
lease, contract, agreement or other instrument, commitment or obligation to
which Buyer is a party, or by which Buyer may be bound; or (d) violate any
order, writ, injunction, decree, judgment, statute, law or ruling of any court
or governmental authority applicable to Buyer.
5.4 Commissions. Buyer has not dealt with nor has Buyer 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 transactions provided herein except Xxx Xxxxxx
Associates, whose commission shall be paid by Buyer. Buyer agrees to indemnify
Seller from any other such claim arising by, through or under Buyer.
6. RISK OF LOSS
All risk of loss to the Property shall remain upon Seller until the
conclusion of the Closing. If, before Closing any material portion of the
Property is damaged by fire or other casualty to the extent that the cost to
repair such damage would exceed $100,000 and cannot 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, or if any casualty or taking would permit a tenant to
modify or terminate its obligations under its lease (including without
limitation rent abatement or reduction), then 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, in which event Buyer shall be
entitled to all amounts due or collected under the insurance policies or as
condemnation awards. In such event, the insurance deductibles, if any, shall be
paid to Buyer at Closing.
Should a casualty occur prior to Closing, the cost to repair for which is
$100,000 or less, and if such casualty would not permit any tenant to modify or
terminate its lease
-15-
as aforesaid, the transaction shall proceed to Closing, the proceeds of
insurance shall be paid to Buyer and the Purchase Price shall be reduced by any
deductible in effect.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance and Survey. Promptly after execution
hereof, Buyer shall order a Title Insurance Commitment from Chicago Title
Insurance Company and a Survey from a reputable surveyor familiar with the
Property (Seller agreeing to furnish to Buyer copies of any existing surveys and
title information in its possession promptly after execution of this Agreement).
Buyer will have ten (10) days from receipt of the Title Commitment (including
legible copies of all recorded exceptions noted therein) and Survey to notify
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 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 close the
transaction, terminate this Agreement and receive a return of the Xxxxxxx Money
Deposit; or (ii) waive such Title Defects and/or objections and close the
transaction notwithstanding 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:
-16-
(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 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 the Leases. A&P, Thrift Drug, Outback Steakhouse,
Blockbuster Video, and no less than eighty percent (80%) of the other tenants by
number in the Property shall be open for business at the Shopping Center and
paying rent on a current basis.
(d) A Title Insurance Commitment in the full amount of the
Purchase Price shall have been issued and "marked down" through Closing,
insuring Seller, subject only to Permitted Exceptions.
(e) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear
excepted.
(f) If applicable, Seller shall have executed the partnership
agreement of the Acquiring Partnership.
(g) Seller shall have delivered to Buyer or Acquiring
Partnership the following in form reasonably satisfactory to Buyer:
(1) A limited warranty deed and xxxx of sale to the Property;
(2) An assignment of the Leases containing the
customary
reciprocal indemnities;
(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 current rent roll for all Leases in effect
showing no changes
from the rent roll attached to this Agreement other than those set forth in the
Leases or approved in writing by Buyer;
(5) All Tenant Estoppel Letters obtained by Seller,
which must
include A&P, Thrift Drug, Outback Steakhouse, Blockbuster Video, and no less
than eighty percent (80%) of the other tenants by number 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
-17-
which Tenant Estoppel Letters must be acceptable to Buyer in all respects,
provided that Buyer shall not unreasonably withhold such acceptance(s);
(6) The consent of Nationwide to this transaction and
an estoppel
letter from Nationwide to Buyer confirming the principal balance and outstanding
accrued but unpaid interest under the Surviving Mortgage and any deposits held
by Nationwide thereunder, and further confirming the non-default status and good
standing of the Surviving Mortgage;
(7) 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;
(8) The originals or copies of any real and tangible
personal
property tax bills for the Property for the tax year of Closing and the previous
year, and, if requested, the originals or copies of any current water, sewer and
utility bills which are in Seller's custody or control;
(9) Appropriate authorizing affidavits or other
certifications of Seller
and/or its partners authorizing the transactions described herein;
(10) All keys and other means of access to the
Improvements in the
possession of Seller or its agents;
(11) Materials; and
(12) Such other documents as Buyer may reasonably
request to
effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this
Section are not satisfied and Buyer elects in writing to terminate this
Agreement, then the 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 .
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 in all material
respects, and Buyer shall not be in default hereunder.
-18-
(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) The Purchase Price, in accordance with Section ;
(2) Such other documents as Seller may reasonably
request to
effect the transactions contemplated by this Agreement.
(d) Nationwide shall have delivered its consent to this
transaction, as contemplated above.
(e) If applicable, Buyer or its designee shall have executed
the partnership agreement of the Acquiring Partnership.
In the event that all conditions precedent to Buyer's
obligation to purchase shall have been satisfied but the foregoing provisions of
this Section have not, and Seller elects in writing to terminate this Agreement,
then the 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 .
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 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 brought within ninety (90) days after the originally scheduled
Closing Date; or (iii) waive such breach and close the purchase contemplated
hereby, notwithstanding such breach.
9.2 Breach by Buyer. In the event of a breach of Buyer's covenants or
warranties herein and failure of Buyer to cure such breach within the time
provided for Closing, Seller's sole remedy shall be to terminate this Agreement
and retain Buyer's Xxxxxxx Money Deposit as agreed liquidated damages for such
breach, and upon
-19-
payment in full to Seller of such amounts, the parties shall have no further
rights, claims, liabilities or obligations under this Agreement (except as
survive termination).
10. MISCELLANEOUS
10.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement without the prior approval of the other, except
to its attorneys, accountants and other consultants, their lenders and
prospective lenders, or where disclosure is required by law.
10.2 Entire Agreement. 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.
10.3 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement shall be served by personal delivery, certified or overnight
mail, reputable overnight courier service or facsimile (followed promptly by
hard copy) at the addresses set forth below:
As to Seller: Xxxx-Xxxxxx Ferry/Southside Associates, L.P.
Attention: Xxxxx Xxxxxx
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Facsimile: 770/952-5922
With a copy to: Fine and Block
Attention: A.J. Block, Jr., Esq.
0000 Xxxxx Xxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: 404/261-6960
As to Buyer: RRC Acquisitions, Inc.
Attention: Xxxxxx X. Xxxxxx
Xxxxx 000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: 904/634-3428
With a copy to: Rogers, Towers, Xxxxxx, Xxxxx & Gay, P.A.
Attention: Xxxxxxx X. Xxxxx, Esq.
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: 904/396-0663
-20-
Any notice or demand so served shall constitute proper notice hereunder upon
delivery to the United States Postal Service or to such overnight courier. A
party may change its notice address by notice given in the aforesaid manner.
10.4 Headings. The titles and headings of the various sections hereof
are intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
10.5 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
10.6 Attorneys' Fees. In the event of any litigation between the
parties hereto to enforce any of the provisions of this Agreement or any right
of either party hereto, the unsuccessful party to such litigation agrees to pay
to the successful party all costs and expenses, including reasonable attorneys'
fees, whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions herein shall include
indemnification for reasonable attorneys' fees and costs, whether or not suit be
brought and including fees and costs on appeal.
10.7 Time of Essence. Time is of the essence of this Agreement.
10.8 Governing Law. This Agreement shall be governed by the laws of
Georgia 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 Xxxx County, Georgia. Each party waives its right to
jurisdiction or venue in any other location.
10.9 Successors and Assigns. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No third parties, including any brokers or
creditors, shall be beneficiaries hereof.
10.10 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
10.11 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context
-21-
otherwise requires. The terms "herein," "hereof," "hereunder," and other words
of a similar nature mean and refer to this Agreement as a whole and not merely
to the specified section or clause in which the respective word appears unless
expressly so stated.
10.12 Further Instruments, Etc. Seller and Buyer shall, at or after
Closing, execute any and all documents and perform any and all acts reasonably
necessary to fully implement this Agreement.
10.13 Survival. The representations and warranties of Seller and Buyer
shall survive the Closing for one hundred eighty (180) days. The post-Closing
obligations of Seller and Buyer intended to be performed after the Closing shall
survive the Closing and shall be performed as required by this Agreement.
10.14 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)
Unofficial Witness
By:
Its:
[ - - - - - - - - - - - - - - ]
Name (Please Print) Date: November 3, 1997
Official Witness
Tax Identification No. 00-0000000
"BUYER"
-22-
XXXX-XXXXXX FERRY/SOUTHSIDE
ASSOCIATES, L.P., a Georgia limited
partnership
By Its General Partner:
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ] a
Name (Please Print)
Unofficial Witness
By:
Its:
[ - - - - - - - - - - - - - - ]
Name (Please Print) Date: ______________________, 1997
Official Witness
Tax Identification No.
"SELLER"
JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent agrees to receive and hold the Xxxxxxx Money
Deposit in trust, as provided in the foregoing Agreement, in an interest bearing
account at a national bank acceptable to the parties, to be disposed of in
accordance with the provisions of this joinder and Section of the foregoing
Agreement.
2. Indemnity. Escrow Agent shall not be liable to either party except
for claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
-23-
3. Conflicting Demands. If conflicting demands are made upon Escrow
Agent with respect to the escrow, the parties hereto expressly agree that Escrow
Agent shall have the absolute right to do either or both of the following: (i)
withhold and stop all proceedings in performance of this escrow and await
settlement of the controversy by final appropriate legal proceedings or
otherwise as it may require; or (ii) file suit for declaratory relief and/or
interpleader and obtain an order from the court requiring the parties to
interplead and litigate in such court their several claims and rights between
themselves. Upon the filing of any such declaratory relief or interpleader suit
and tender of the 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 fourteen (14) days after a written request for approval is
received by the party whose approval is being requested. Escrow Agent shall not
be required to take any action for which approval of Buyer and/or Seller has
been sought unless such approval has been received. No disbursements shall be
made, other than as provided in Sections and of the foregoing Agreement, or to a
court in an interpleader action, unless Escrow Agent shall have given written
notice of the proposed disbursement to Buyer and Seller and neither Buyer nor
Seller shall have delivered any written objection to the disbursement within 14
days after receipt of Escrow Agent's notice. No notice by Buyer or Seller to
Escrow Agent of disapproval of a proposed action shall affect the right of
Escrow Agent to take any action as to which such approval is not required.
4. Continuing Counsel. Seller acknowledges that Escrow Agent is counsel
to Buyer herein and Seller agrees that in the event of a dispute hereunder or
otherwise between Seller and Buyer, Escrow Agent may continue to represent Buyer
notwithstanding that it is acting and will continue to act as Escrow Agent
hereunder, it being acknowledged by all parties that Escrow Agent's duties
hereunder are ministerial in nature.
5. Tax Identification. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
CHICAGO TITLE INSURANCE COMPANY
By:
Its Authorized Agent
Date: ______________, 1997
"ESCROW AGENT"
-24-
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 the ordinary course of our business. 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 are no known 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 known 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
Service Contracts and Agreements
(To be furnished during Inspection Period)
EXHIBIT
Form of Agreement of Limited Partnership
EXHIBIT
Legal Description of Real Property
EXHIBIT
Form of Redemption Agreement for Partnership Units
EXHIBIT
Rent Roll
EXHIBIT
Form of Estoppel Letter
_____________________, 199_
RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised that Regency Centers, Inc.,
or an affiliate, may acquire the above Shopping Center, and we hereby confirm to
you that:
1. The undersigned is a Tenant in the above Shopping Center, and is
currently in possession and paying rent on premises known as Store No.
_____________ [or Address: ________________________________________],
and containing approximately _____________ square feet, under the terms
of the lease dated ______________________, which has (not) been
amended by amendment dated ________________________ (the "Lease").
There are no other written or oral agreements between Tenant and
Landlord. Tenant neither expects nor has been promised any
inducement, concession or consideration for entering into the Lease,
except as stated therein, and there are no side agreements or
understandings between Landlord and Tenant.
2. The term of the Lease commenced on ____________________,
expiring on ___________________, with options to extend of
________________ (____) years each.
3. As of _________________, monthly minimum rental is $__________
a month.
4. Tenant is required to pay its pro rata share of Common Area
Expenses and its pro rata share of the Center's real property
taxes and insurance cost. Current additional monthly payments
for expense reimbursement total $_________ per month for
common area maintenance, property insurance and real estate
taxes.
5. Tenant has given [no security deposit] [a security deposit of
$_________].
6. No payments by Tenant under the Lease have been made for more
than one (1) month in advance, and minimum rents and other
charges under the Lease are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the
Tenant's premises and development of the Shopping Center,
including without limitation, parking requirements, have been
performed by Landlord.
8. The Lease contains no first right of refusal, option to
expand, option to terminate, or exclusive business rights,
except as follows:
9. Tenant knows of no default by either Landlord or Tenant under
the Lease, and knows of no situations which, with notice or
the passage of time, or both, would constitute a default.
Tenant has no rights to off-set or defense against Landlord as
of the date hereof.
10. The undersigned has not entered into any sublease, assignment
or any other agreement transferring any of its interest in the
Lease or the Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or released
any hazardous substances at, on or in the Premises. "Hazardous Substances" means
any flammable, explosive, toxic, carcinogenic, mutagenic, or corrosive substance
or waste, including volatile petroleum products and derivatives and drycleaning
solvents. To the best of Tenant's knowledge, no asbestos or polychlorinated
biphenyl ("PCB") is located at, on or in the Premises. The term "Hazardous
Substances" does not include those materials which are technically within the
definition set forth above but which are contained in pre-packaged office
supplies, cleaning materials or personal grooming items or other items which are
sold for consumer or commercial use and typically used in other similar
buildings or space.
Very truly yours,
-------------------------------------------
____________________________________(Tenant)
Mailing Address:
__________________ By:________________________________________
Its:_________________________________
----------------------------
xxx\reg\delkspec\xxx.xxx
