PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 26th day of November, 1996, between
XXXXX INVESTMENT COMPANY, a Tennessee corporation ("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 Orlando,
County of Orange, State of Florida, owned by Seller, known as the Mariners
Village 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 1.3.
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 deposits delivered by Buyer to
Escrow Agent prior to the Closing under Section 2.2 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.
1.12 Escrow Agent means First American Title Insurance Company, through
its agent, Ulmer, Murchison, Xxxxx & Xxxxxx, Attorneys, whose address is Suite
1600, SunTrust Building, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000
(Fax 904/000-0000), or any successor Escrow Agent.
1.13 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
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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 forty-fifth (45th) day after the date of execution by the
last of Buyer or Seller to execute this Agreement and transmit a copy thereof to
the other. If such expiration date is a weekend or national holiday, the
Inspection Period shall expire at the end of business on the next immediately
succeeding business day.
1.18 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.19 Materials means all plans, drawings, specifications, soil test
reports, environmental reports, market studies, surveys, and similar
documentation, if any, owned by or in the possession of Seller with respect to
the Property, Improvements and any proposed improvements to the Property, which
Seller may lawfully transfer to Buyer except that, as to financial and other
records, Materials shall include only photostatic copies.
1.20 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem taxes not payable on or before Closing;
(b) Rights of tenants under Leases; and
(c) Other matters determined by Buyer to be acceptable.
1.21 Personal Property means all (a) sprinkler, plumbing, heating,
air-conditioning, electric power or lighting, incinerating, ventilating and
cooling systems, with each of their respective appurtenant furnaces, boilers,
engines, motors, dynamos, radiators, pipes, wiring and other apparatus,
equipment and fixtures, elevators, partitions, fire prevention and extinguishing
systems located in or on the Improvements, (b) all Materials, and (c) all other
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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 2.1 (subject
to adjustments as provided herein).
1.25 Real Property means the lands more particularly described on
Exhibit 1.25, 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
1.27, identifying with particularity the space leased by each tenant, the term
(including extensions), square footage and applicable rent, common area
maintenance, tax and other reimbursements, security deposits and similar data.
1.28 Seller means the party identified as Seller on the initial page
hereof.
1.29 Seller Financial Statements means the unaudited balance sheets and
statements of income, cash flows and changes in financial positions prepared by
Seller for the Property, as of and for the two (2) calendar years next preceding
the date of this Agreement and all monthly reports of income, expense and cash
flow prepared by Seller for the Property, which shall be consistent with past
practice, for any period beginning after the latest of such calendar years, and
ending prior to Closing.
1.30 Shopping Center means the Shopping Center identified on the initial
page hereof.
1.31 Survey means a map of a stake survey of the Real Property which
shall comply with Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, jointly established and adopted by ALTA and ACSM in 1992, and includes
items 1, 2, 3, 4,
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6, 7, 8, 9, 10 and 11 of Table "A" thereof, which meets the accuracy standards
(as adopted by ALTA and ACSM and in effect on the date of the Survey) of an
urban survey, which is dated not earlier than thirty (30) days prior to the
Closing, and which is certified to Buyer, Seller, the Title Insurance company
providing Title Insurance to Buyer, and Buyer's lender, and dated as of the date
the Survey was made.
1.32 Tenant Estoppel Letter means a letter or other certificate from a
tenant certifying as to certain matters regarding such tenant's Lease, in
substantially the same form as attached hereto as Exhibit 1.32, or in the case
of national or regional "credit" tenants identified as such on the Rent Roll,
the form customarily used by such tenant provided the information disclosed is
acceptable to Buyer.
1.33 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.34 Title Insurance means an ALTA Form B Owners Policy of Title
Insurance for the full Purchase Price insuring marketable title in Buyer in fee
simple, subject only to the Permitted Exceptions, issued by a title insurer
acceptable to Buyer.
1.35 Title Insurance Commitment means a binder whereby the title
insurer agrees to issue the Title Insurance to Buyer.
1.36 Transaction Documents means this Agreement, the deed conveying the
Property, the assignment of leases, the 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 $7,500,000.00. 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
assessment);
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(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 Tenant Escrow Funds and disbursing same to Escrow Agent
as provided in Section 2.4 below; and
(4) subtracting the amount of prepaid rents from tenants under the
Leases, and credit balances, if any, of any tenants. Any rents, percentage rents
or tenant reimbursements payable 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. 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 reasonable 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 within thirty (30) days 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 such tenant(s), then
to delinquent rents and reimbursements attributable to post-Allocation Date
periods, and then to pre-Allocation Date periods.
(c) Tenant Security Deposits. Tenant security deposits held by Seller under
the Leases shall be paid over to Buyer at Closing or an equivalent credit
against the Purchase Price shall be given to Buyer, as elected by Seller.
2.2 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the amount of
$25,000.00 shall be delivered to Escrow Agent within three (3) days after the
date 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 shall also include the additional deposit to be made by
Buyer under Section 3.1(a) below, if and when made, and the earnings. The
Xxxxxxx Money Deposit paid by Buyer shall be held as specifically provided in
this Agreement and shall be applied to the Purchase Price at the Closing.
2.3 Closing Costs.
(a) Seller shall pay:
(1) Documentary stamp and other transfer taxes imposed upon the
transactions contemplated hereby;
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(2) Cost of the Survey;
(3) Cost of satisfying any liens on the Property;
(4) Cost of title insurance and the costs, if any, of curing title defects
and recording any curative title documents;
(5) All broker's commissions, finders' fees and similar expenses incurred
by either party in connection with the sale of the Property, subject however to
Buyer's indemnity given in Section 5.3 of this Agreement; and
(6) Seller's attorneys' fees relating to the sale of the Property.
(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Costs of the Phase 1 environmental site assessment to be obtained by
Buyer;
(3) Cost of recording the deed; and
(4) Buyer's attorneys' fees.
2.4 Tenant Escrow Funds. Included in the Leases are (i) a lease dated
__________, concerning space number ________, between Seller as landlord and The
Cutting Edge Salon as tenant (the "Cutting Edge Lease") and (ii) a lease dated
____________, covering space number _________, between Seller as landlord and
Concept Management Corp (the "Concept Management Lease"). Neither the Cutting
Edge Lease nor the Concept Management Lease by Closing will have commenced, or,
if so, will not have been open for business for sufficient time to determine if
they are viable tenants. Seller and Buyer have agreed to deposit in escrow with
Escrow Agent, at Closing, the sums of $103,696.00 for the Cutting Edge Lease
(the "Cutting Edge Fund") and $161,304.00 for the Concept Management Lease (the
"Concept Management Fund"), to be disbursed to Seller upon the respective
Qualification Dates for each of said leases (the Cutting Edge Fund and the
Concept Management Fund being collectively referred to as the "Tenant Escrow
Funds"). Escrow Agent shall disburse the Cutting Edge Fund, and the Concept
Management Fund, respectively, to Seller, within ten (10) days after the
occurrence of the respective Qualification Date for each. The Qualification Date
for each lease shall be the date for each such lease by which the following
events shall have occurred:
(a) The tenant shall have accepted the space and be lawfully open for
business therein;
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(b) The tenant shall have received all concessions due it under the Lease,
such as, by way of example, free rent and reimbursement for tenant improvements;
(c) The tenant has been paying full rent and reimbursements for at least
six (6) consecutive months without default;
(d) There shall be no default under such Lease which remains uncured as of
the Qualification Date;
(e) All sums payable for the construction of tenant
improvements and fixturing for the leased space shall have been paid and
releases of liens and final payment affidavits for such work have been delivered
to Buyer; and
(f) The tenant shall have executed and delivered to Buyer a
Tenant Estoppel Letter regarding its lease and occupancy which is acceptable to
Buyer.
If the Qualification Date for a particular Lease has not occurred by the date
which occurs nine (9) months following Closing, Seller shall have an additional
twelve (12) months from the date of the termination of the Lease for which the
Qualification Date did not occur and vacating of its premises by the tenant
thereunder, (the costs of which shall be borne by Seller), but no later than the
date which occurs twenty-one (21) months after the Closing Date, within which to
obtain a replacement tenant under an Approved Lease, and thereafter an
additional nine (9) months during which the Qualification Date for such
replacement tenant may occur. In order to qualify as a replacement tenant the
replacement lease must have an initial term of no less than three (3) years with
a third party tenant 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. The replacement lease shall not be considered an Approved Lease unless
it is written on the Shopping Center's standard form lease used by Buyer,
without material modification (or other form reasonably approved by Buyer), and
unless it provides for rents, cost sharing and concessions which are comparable
to that of the tenant being replaced and which Buyer reasonably considers to be
"market" for the Orlando area. The amount to be paid with respect to an approved
replacement tenant shall be the lesser of (i) the Cutting Edge Fund (in the case
of space number 2), or the Concept Management Fund (in the case of space number
5), and (ii) the Net Effective Rent under the replacement lease divided by
0.104. Any balance shall be returned to Buyer. The term "Net Effective Rent"
shall mean base rent and expense reimbursement recoveries from a tenant under a
Lease, less all free rent, cash payments and allowances and other concessions to
the tenant and less a credit reserve of five percent (5%) of tenant rent and
recoveries, if the tenant is a local tenant or a tenant whose lease has an
initial term of less than ten (10) years. Notwithstanding the foregoing, if
Buyer shall itself lease the space prior to Seller's tendering a replacement
tenant, Seller's right to lease such space shall terminate, but the escrowed
funds with respect to such space shall be paid to Seller on the basis of the
aforesaid computaed to Buyer. Seller shall pay all leasing
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commissions payable with respect to the Cutting Edge Lease, the Concept
Management Lease or any replacement lease, whether procured by Seller or Buyer.
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, a copy of the
notice shall be furnished to Escrow Agent with an additional deposit of
$50,000.00, which shall become part of the Xxxxxxx Money Deposit for all
purposes. The Xxxxxxx Money Deposit shall not thereafter 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
but shall not interfere with the tenants' businesses.
(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.
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3.2 Hazardous Material. Prior to the end of the Inspection Period Buyer
may order a "Phase 1" assessment of the Property, and a copy of any assessment
report, if made, shall be furnished by Buyer to Seller promptly upon its
completion. If the assessment report discloses the existence of any Hazardous
Material or any other matters concerning the environmental condition of the
Property or its environs, Buyer may notify Seller in writing, within ten (10)
business days after receipt of the assessment report 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 fifteenth (15th) day following the expiration of the
Inspection Period, provided that Buyer may designate an earlier date for
Closing. The parties contemplate that and shall endeavor to hold the Closing on
or before December 31, 1996.
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, validly existing
and in good standing under the laws of the state of its organization and
authorized as a foreign corporation to transact business in the state in which
the Shopping Center is located, and has full power and authority to enter into
and perform this Agreement in accordance with its terms, and the persons
executing this Agreement and other Transaction Documents have been duly
authorized to do so on behalf of Seller. Seller is not a "foreign person" under
Sections 1445 or 897 of the Internal Revenue Code nor is this transaction
subject to any withholding under any state or federal law.
4.2 Authorization; Validity. The execution and delivery of this
Agreement by Seller and Seller's consummation of the transactions contemplated
by this Agreement have been duly and validly authorized. This Agreement
constitutes a legal, valid and binding agreement of Seller enforceable against
it in accordance with its terms.
4.3 Title. Seller is the owner in fee simple of all of the Property,
subject only to the Permitted Exceptions.
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 Insignia Mortgage & Investment Company, and Seller agrees to
indemnify Buyer from any such claim arising by, through or under Seller.
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4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except for Permitted Exceptions and this Agreement.
4.6 Litigation. There is no litigation or proceeding pending, or to the
best of Seller's knowledge, threatened against Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll, and any Leases or modifications
entered into between the date of this Agreement and the Closing Date with the
consent of Buyer. Copies of the Leases, which have been delivered to Buyer or
shall be delivered to Buyer within five (5) days from the date hereof, are, to
the best knowledge of Seller, true, correct and complete copies thereof, subject
to the matters set forth on the Rent Roll. Between the date hereof and the
Closing Date, Seller will not terminate or modify existing Leases or enter into
any new Leases without the consent of Buyer. All of the Property's tenant leases
are in good standing and to the best of Seller's knowledge no defaults exist
thereunder except as noted on the Rent Roll. No rent or reimbursement has been
paid more than one (1) month in advance and no security deposit has been paid,
except as stated on the Rent Roll. No tenants under the Leases are entitled to
interest on any security deposits. No tenant under any Lease has or will be
promised any inducement, concession or consideration by Seller other than as
expressly stated in such Lease, and except as stated therein there are and will
be no side agreements between Seller and any tenant.
4.8 Financial Statements. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
in accordance with the books and records of Seller and presents fairly in all
material respects the financial condition, results of operations and cash flows
for the Property as of and for the periods to which they relate. All are in
conformity with generally accepted accounting principles applied on a consistent
basis. There has been no material adverse change in the operations of the
Property or its prospects since the date of the most recent Seller Financial
Statements. Seller covenants to furnish promptly to Buyer copies of the Seller
Financial Statements together with unaudited updated monthly reports of cash
flow for interim periods beginning after December 31, 1995. Buyer and its
independent certified accountants shall be given access to Seller's books and
records relating to the Property at any time prior to and for six (6) months
following Closing upon reasonable advance notice in order that they may verify
the financial statements prior to Closing. Seller agrees to execute and deliver
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 Leases and Permitted Exceptions, 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 Closing. All such Contracts are in full force and
effect in accordance with their respective terms, and
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all material 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 covenants to
fulfill all of its obligations under all Contracts, and covenants not to
terminate or modify any such Contracts or enter into any new contractual
obligations relating to the Property without the consent of Buyer (not to be
unreasonably withheld) except such obligations as are freely terminable without
penalty by Seller upon not more than thirty (30) days' written notice.
4.10 Maintenance and Operation of Property. From and after the date
hereof and until the Closing, Seller covenants to keep and maintain and operate
the Property substantially in the manner in which it is currently being
maintained and operated and covenants not to cause or permit any waste of the
Property nor undertake any action with respect to the operation thereof outside
the ordinary course of business without Buyer's prior written consent, not to be
unreasonably withheld. In connection therewith, Seller covenants to make all
necessary repairs and replacements until the Closing so that the Property shall
be of substantially the same quality and condition at the time of Closing as on
the date hereof. Seller covenants not to remove from the Improvements or the
Real Property any article included in the Personal Property. Seller covenants to
maintain such casualty and liability insurance on the Property as it is
presently being maintained.
4.11 Permits and Zoning. To the best knowledge of Seller, there are no
material permits and licenses (collectively referred to as "Permits") required
to be issued to Seller by any governmental body, agency or department having
jurisdiction over the Property which materially affect the ownership or the use
thereof which have not been issued. The Property is properly zoned for its
present use and is not subject to any local, regional or state development
order. The use of the Property is consistent with the land use designation for
the Property under the comprehensive plan or plans applicable thereto, and all
concurrency requirements have been satisfied. There are no outstanding
assessments, impact fees or other charges related to the Property.
4.12 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and
correct in all respects. Seller agrees to use its best 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.
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Seller has received no notice nor has any knowledge that any such proceeding is
contemplated.
4.14 Governmental Matters. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing to Buyer and Seller has
received no notices from any such governmental authorities or agencies of
uncured violations at the Property of building, fire, air pollution or zoning
codes, rules, ordinances or regulations, environmental and hazardous substances
laws, or other rules, ordinances or regulations relating to the Property. Seller
shall be responsible for the remittance of all sales tax for periods occurring
prior to the Allocation Date directly to the appropriate state department of
revenue.
4.15 Repairs. Seller has received no notice of any requirements or
recommendations by any lender, insurance companies, or governmental body or
agencies requiring or recommending any repairs or work to be done on the
Property which have not already been completed.
4.16 Consents and Approvals; 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 the best of Seller's actual
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) to the best of
Seller's actual knowledge 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.
4.17 Environmental Matters.
(a) Seller represents and warrants as of the date hereof and as of the
Closing that:
(1) Seller has not, and has no 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) Except as disclosed in the Limited Phase II Environmental Site
Assessment report dated May 9, 1996, prepared by Xxxxx Investment Company, a
copy of which has been furnished to Buyer, the Property to the best of Seller's
knowledge does not now contain and has not contained any: (a) underground
storage tank, (b) material amounts
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of asbestos-containing building material, (c) landfills or dumps, or (d)
hazardous waste management facility as defined pursuant to the Resource
Conservation and Recovery Act ("RCRA") or any comparable state law. There is a
drycleaning plant located on the Property which is a subject of the
environmental assessment. 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, except as disclosed in the aforementioned environmental
assessment report.
(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
period of one (1) year, and shall be in addition to the post-closing indemnities
contained in Section 10.01.
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 or
omits or will omit any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement
and as of the Closing and where indicated covenants and agrees as follows:
5.1 Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under laws of Florida and has full power
and authority to enter into and perform this Agreement in accordance with its
terms, and the persons executing this Agreement and other Transaction Documents
on behalf of Buyer have been duly authorized to do so.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement and the other Transaction Documents have been duly and validly
authorized by the Board of Directors of Buyer. This Agreement has been duly and
validly executed and delivered by Buyer and (assuming the valid execution and
delivery of this Agreement by Seller) constitutes a legal, valid and binding
agreement of Buyer enforceable against it in accordance with its terms.
-14-
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
Insignia Mortgage & Investment Company, whose commission shall be paid by
Seller; and 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 Permitted Exceptions.
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. Prior to the end of the Inspection Period
Buyer shall order the Title Insurance Commitment from First American Title
Insurance Company and the 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
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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 true and correct as of the Closing Date, and Seller shall not
be in default hereunder.
(b) All obligations of Seller contained in this Agreement,
shall have been fully performed in all material respects and Seller shall not be
in default under any covenant, restriction, right-of-way or easement affecting
the Property.
(c) 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 excess of 5,000 square feet or more than
twenty percent (20%) of the other tenants who have signed leases for any portion
of the Property since the date of this Agreement. Xxxx- Xxxxx Stores, Inc.,
Walgreen Co., World Gym, Blockbuster Video and R.B. Industries, and no less than
ninety percent (90%) of the other tenants, exclusive of the Cutting Edge Lease
and the Concept Management Lease, shall be open for business in the Shopping
Center and have commenced paying rent.
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(d) A Title Insurance Commitment in the full amount of the
Purchase Price shall have been issued and "marked down" through Closing, subject
only to Permitted Exceptions.
(e) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear
excepted.
(f) Seller shall have delivered to Buyer the following in form reasonably
satisfactory to Buyer:
(1) A special warranty deed in proper form for recording, duly executed and
acknowledged so as to convey to Buyer the fee simple title to the Property,
subject only to the Permitted Exceptions;
(2) Originals, if available, or if not, true copies of the Leases and of
the contracts, agreements, permits and licenses, and such Materials as may be in
the possession or control of Seller;
(3) A blanket assignment to Buyer of all Leases and the contracts,
agreements, permits and licenses (to the extent assignable) as they affect the
Property, including an indemnity against breach of such instruments by Seller
prior to the Closing Date;
(4) A xxxx of sale with respect to the Personal Property and Materials;
(5) A title certificate, properly endorsed by Seller, as to any items of
Property for which title certificates exist;
(6) The Survey;
(7) 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;
(8) All Tenant Estoppel Letters obtained by Seller, which must include
Xxxx-Xxxxx Stores, Inc., Walgreen Co., World Gym, Blockbuster Video and R.B.
Industries, and ninety percent (90%) of the other tenants who have signed leases
for any portion of the Property (exclusive of the Cutting Edge Lease and the
Concept Management Lease), 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;
(9) A general assignment of all assignable existing warranties relating
to the Property;
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(10) 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;
(11) 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;
(12) Resolutions of Seller authorizing the transactions described herein;
(13) All keys and other means of access to the Improvements in the
possession of Seller or its agents;
(14) Materials; and
(15) 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 8.1 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 9.
8.2 Conditions Precedent to Seller's Obligations. The obligations of Seller
under this Agreement are subject to satisfaction or waiver by Seller of each of
the following conditions or requirements on or before the Closing date:
(a) Buyer's warranties and representations under this
Agreement shall be true and correct as of the Closing Date, and Buyer shall not
be in default hereunder.
(b) All of the obligations of Buyer contained in this
Agreement shall have been fully performed by or on the date of Closing in
compliance with the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Seller at or prior to the
Closing the following, which shall be reasonably satisfactory to Seller:
(1) Delivery and/or payment of the balance of the Purchase Price
in accordance with Section 2.1 at Closing;
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(2) Such other documents as Seller may reasonably request to effect
the transactions contemplated by this Agreement.
In the event that all conditions precedent to Buyer's
obligation to purchase shall have been satisfied but the foregoing provisions of
this Section 8.2 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 9.
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; 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 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. POST CLOSING INDEMNITIES AND COVENANTS
10.1 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 for a
period of one (1) year. Buyer's rights and remedies herein against Seller shall
be in addition to, and not in lieu of all other rights and remedies of Buyer at
law or in equity.
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10.2 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, representations and covenants.
Buyer's warranties, representations and covenants, and the foregoing indemnity,
shall survive the Closing for a period of one (1) year. Seller's rights and
remedies herein against Buyer shall be in addition to, and not in lieu of all
other rights and remedies of Seller at law or in equity.
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: Xxxxxxxx-Xxxxx Corporation
Attention: Xxxxx Xxxxxx and Xxxx X. Xxxx
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
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With a copy to: Xxxxx & Xxxxxx
Attention: X. Xxxxx Xxxxxxxxxx, Esq.
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 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: Ulmer, Murchison, Xxxxx & Xxxxxx
Attention: Xxxxxxx X. Xxxxx, Esq.
P. O. Xxx 000
Xxxxx 0000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000 (32202 for courier)
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.
11.8 Time of Essence. Time is of the essence of this Agreement.
-21-
11.9 Governing Law. This Agreement shall be governed by the laws of
Florida 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 Xxxxx County, State of Florida. 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. No third parties, including any
brokers or creditors, shall be beneficiaries hereof.
11.11 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
11.12 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
11.13 Further Instruments, Etc. Seller and Buyer shall, at or after
Closing, execute any and all documents and perform any and all acts reasonably
necessary to fully implement this Agreement.
11.14 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.15 No Recording. Neither this Agreement nor any notice, memorandum or
other notice or document relating hereto shall be recorded.
11.16 Like-Kind Exchange. It is recognized and agreed that in
connection with Seller's conveyance of the Property, Seller desires and intends
to effectuate a like-kind exchange in accordance with Section 1031 of the
Internal Revenue Code, as amended, through a "Starker-Type" deferred exchange,
utilizing an exchange trust. Buyer, without additional expense to it, shall
cooperate with Seller in completing the exchange by execution of an exchange
trust in form and substance acceptable to Buyer and its counsel. Seller agrees
to save and hold harmless Buyer from and against any and all loss, damage, tax,
cost and expense associated with or claimed to be due by reason of such
exchange.
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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:
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: November ____, 1996
Name (Please Print)
Tax Identification No. 00-0000000
"BUYER"
XXXXXXXX-XXXXX CORPORATION,
____________________________ a Mississippi corporation
[ - - - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ - - - - - - - - - - - - - - - - - ]
Name (Please Print) Date: November ____, 1996
Tax Identification No:
"SELLER"
JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of acknowledging
receipt of the initial Xxxxxxx Money Deposit and agrees 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 Section 2.2 of the foregoing Agreement.
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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 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 2.2 and 3.1(a) 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.
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5. Tax Identification. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
ULMER, MURCHISON, XXXXX & XXXXXX
By:
Its Authorized Agent
Date: November _____, 1996
"ESCROW AGENT"
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EXHIBIT 1.3
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 1.25
Legal Description of Real Property
Xxx 0, XXX XXXXXX XX XXXXXXXX' XXXXXXX, as shown in plat of record in Plat Book
18, Page 15, in the public records of Orange County, Florida, to which plat
reference is hereby made for a more particular description of said lot. Said lot
is further described as follows:
Tract A, MARINER'S VILLAGE, according to the plat thereof, as recorded
in Plat Book 15, Pages 98 and 99 of the public records of Orange
County, Florida;
Together with the South 150.00 feet of the North 645 feet of the North
3/4 of the Southeast 1/4 of the Southeast 1/4 of Section 5, Township 23
South, Range 30 East, Orlando, Orange County, Florida; LESS the West 30
feet thereof for road right-of-way (Xxxxxx Road). The same being more
particularly described as follows:
Begin at the Southwest corner of said Tract A, MARINER'S VILLAGE;
thence N.00(degree)12'18"W., along the West line of said Tract A, for
406.84 feet to the point of curvature of a curve concave Southeasterly;
thence Northeasterly along the arc of said curve having a radius of
35.00 feet through a central angle of 90(degree)15'58" for 55.14 feet
to the point of tangency; thence S.89(degree)56'21"E., along the North
line of said Tract A, for 512.82 feet to the point of curvature of a
curve concave Northeasterly; thence Northeasterly along the North line
of said Tract A, along the arc of said curve having a radius of 813.00
feet, through a central angle of 30(degree)37'10" for 434.48 feet;
thence S.00(degree)03'40"W., along the East line of said Tract A for
555.36 feet to the Southwest corner of Tract F of said plat, MARINER'S
VILLAGE; thence S.89(degree)56'20"E., along the South line of said
Tract F, for 315.50 feet to the East line of Xxxxxxx 0, Xxxxxxxx 00
Xxxxx, Xxxxx 00 Xxxx; thence S.00(degree)03'38"W., along said East line
for 150.00 feet; thence N.89(degree)56'20"W., for 1297.82 feet to the
East right-of-way line of Xxxxxx Road; thence N.00(degree)12'18"W.,
along said East right-of-way line for 150.00 feet; thence
S.89(degree)56'20"E., for 23.00 feet to the point of beginning.
LESS AND EXCEPT that portion of the property conveyed to NCNB National
Bank of Florida, recorded in Official Records Book 3866, Page 4350 of
the aforesaid public records which is Xxx 0, XXX XXXXXX XX XXXXXXXX'
XXXXXXX, as shown in plat of record in Plat Book 18, Page 15 of the
public records of Orange County, Florida, to which plat reference is
hereby made for a more particular description of said lot.
EXHIBIT 1.27
Rent Roll
EXHIBIT 1.32
Form of Estoppel Letter
_____________________, 199_
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:_________________________________
----------------------------
I:\USERS\XXX\REG\MARINER\PSA-F
