PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 9th day of August, 1996, between
STERLING TEQUESTA/TRAILS LIMITED PARTNERSHIP, a Florida limited partnership
("Seller"), and RRC ACQUISITIONS, INC., a Florida corporation ("Buyer").
Background
Buyer wishes to purchase two shopping centers owned by Seller, one known
as "Trails Shopping Center", in Ormond Beach, Volusia County, Florida ("Trail"),
and the other known as "Tequesta Shoppes", in Tequesta, Palm Beach County,
Florida ("Tequesta"). Inasmuch as this Agreement concerns the sale and purchase
of both Trail and Tequesta, the two shopping centers are referred to herein
collectively as 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 affecting the Property.
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1.8 Xxxxxxx Money Deposit means the deposit delivered by Buyer to Escrow
Agent prior to the Closing under Section 2.2 of this Agreement, together with
the earnings thereon, if any.
1.9 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.
1.10 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, posses sion, 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.
1.11 Escrow Agent means 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
approved by the parties.
1.12 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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1.13 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.
1.14 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.
1.15 Improvements means any buildings, structures or other improvements
situated on the Real Property.
1.16 Inspection Period means the period of time which expires at
midnight on Monday, September 16, 1996.
1.17 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.18 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.
1.19 Permitted Exceptions means only the following interests, liens
and encumbrances:
(a) Liens for ad valorem taxes not payable on or before
Closing;
(b) Printed form exclusions under ALTA standard form title
insurance policies not ordinarily removed at closing through the use of
affidavits, indemnities and similar undertakings;
(c) Rights of tenants under Leases; and
(d) Other matters determined by Buyer to be acceptable.
1.20 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 located at and used in connection with the Improvements,
provided the same are now owned or are acquired by Seller prior to the Closing.
1.21 Property means collectively the Real Property, the Improvements
and the Personal Property.
1.22 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.
1.23 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).
1.24 Real Property means the lands more particularly described on
Exhibit 1.24, together with all easements, licenses, privileges, rights of way
and other appurtenances pertaining to or accruing to the benefit of such lands,
and includes both Trail and Tequesta.
1.25 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.
1.26 Rent Roll means the list of Leases attached hereto as Exhibit 1.26,
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.
1.27 Seller means the party identified as Seller on the initial page
hereof.
1.28 Seller Financial Statements means the unaudited balance sheets and
statements of income, cash flows and changes in financial positions of 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.
1.29 Shopping Center means Trail and Tequesta, collectively, as
identified on the initial page hereof.
1.30 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 0, 0, 0, 0, 0, 0, 0,
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0, 00 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.
1.31 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 1.31, 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
contains substantially all of the information contained in the form attached
hereto, such information does not materially differ from that contained in the
Rent Roll, and is not otherwise determined to be detrimental by Buyer, acting in
a commercially reasonable manner.
1.32 Title Defect means any exception in the Title Insurance Commitment
or any encroachment, easement, setback violation or other interest disclosed by
the Survey, other than a Permitted Exception.
1.33 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.
1.34 Title Insurance Commitment means a binder whereby the title insurer
agrees to issue the Title Insurance to Buyer.
1.35 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 $15,200,000.
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:
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(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);
(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, such as utilities, insurance and payments due
under Contracts; and
(3) subtracting the amount of security deposits,
prepaid rents from tenants under the Leases, and credit balances, if any, of
any tenants. Any rents, percentage rents or tenant reimbursements payable
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 costs of collection. Seller may use
reasonable efforts other than eviction or lease termination to collect
sums owed it, and Buyer will not interfere in Seller's efforts to collect
sums due it. Seller will remit to Buyer promptly after receipt any rents,
percentage rents or tenant reimbursements received by Seller
after Closing which are attributable to periods occurring after the Allocation
Date. Undesignated receipts after Closing of either Buyer or Seller from tenants
in the Shopping Center shall be applied first to then current rents and
reimbursements for such tenant(s), then to delinquent rents and reimbursements
attributable to post-Allocation Date periods, and then to pre-Allocation Date
periods. Each party agrees to furnish to the other, upon receipt, copies of all
post-Closing xxxxxxxx made to tenants for collection of sums due the landlord
from such tenants.
2.2 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the amount of
$50,000 shall be delivered to Escrow Agent within three (3) days after the date
of execution by the last of Buyer or Seller to execute and transmit a copy of
this Agreement to the other. This Agreement may be terminated by Seller if the
Xxxxxxx Money Deposit is not received by Escrow Agent by such deadline. The
Xxxxxxx Money Deposit paid by Buyer shall be 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;
(2) The first $2,500 of the cost of each Survey if the
transaction closes but not otherwise;
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(3) Cost of satisfying any liens on the Property;
(4) Cost of title insurance and the costs, if any, of
curing title defects nd recording any curative title documents;
(5) All broker's commissions, finders' fees and similar
expenses ncurred by either party in connection with the sale of the Property,
including without limitation the commission of Sterling Realty Services,
L.C., in an amount equal to three percent (3%) of the Purchase Price, 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) The balance of the cost of each Survey;
(4) Cost of recording the deed;
(5) Cost of any audit(s) made after Closing by Buyer
pursuant to Section 4.8 of this Agreement; and
(6) Buyer's attorneys' fees.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, 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, personal injury or
construction liens arising out of the conduct 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
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is not timely given, this Agreement and all rights, duties and obligations of
Buyer and Seller hereunder, except any which expressly survive termination,
shall terminate and Escrow Agent shall forthwith return to Buyer the Xxxxxxx
Money Deposit. If Buyer so elects to go forward, the Xxxxxxx Money Deposit shall
not be refundable except upon the terms otherwise set forth herein.
(b) Buyer, through its officers, employees and other authorized
representatives, shall have the right to reasonable access to the Property and
all records of Seller related thereto, including without limitation all Leases
and Seller Financial Statements, at reasonable times during the Inspection
Period for the purpose of inspecting the Property, taking soil borings,
conducting Hazardous Materials inspections, reviewing the books and records of
Seller concerning the Property and otherwise conducting its due diligence review
of the Property. Seller shall cooperate with and assist Buyer in making such
inspections and reviews. Seller shall give Buyer any authorizations which may be
required by Buyer in order to gain access to records or other information
pertaining to the Property or the use thereof maintained by any governmental or
quasi-governmental authority or organization. Buyer, for itself and its agents,
agrees not to enter into any contract with existing tenants without the prior
written consent of Seller if such contract would be binding upon Seller should
this transaction fail to close. Buyer shall have the right to have due diligence
interviews and other discussions or negotiations with tenants, provided it
furnishes to Seller no less than forty-eight (48) hours notice of any such
interview and affords Seller an opportunity to be present.
(c) Buyer, through its officers or other authorized
representatives, shall have the right to reasonable access to all Materials
(other than privileged or confidential litigation materials) for the purpose of
reviewing and copying the same.
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, before the end of
the Inspection Period that it elects to terminate this Agreement, whereupon this
Agreement shall terminate and Escrow Agent shall return to Buyer its Xxxxxxx
Money Deposit. Buyer hereby agrees to indemnify and hold Seller harmless from
any damages, liabilities or claims for property damage, personal injury or
construction liens arising out of the conduct of such environmental testing and
investigation by Buyer or its agents or independent contractors.
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
Wednesday, September 25, 1996, provided that Buyer may designate an earlier date
for Closing.
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4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as of the date of this Agreement and
where indicated covenants and agrees as follows:
4.1 Organization; Authority. Seller is duly organized, validly existing
and in good standing under the laws of the state of its organization and the
state in which the 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 of Seller's General partner. The execution and
delivery of this Agreement by Seller's general partner have been duly and
validly authorized by its board of directors.
4.3 Title. Based on the title insurance policy issued to Seller when it
acquired the Property, 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 Sterling Realty Services, L.C., whose commission shall be paid by
Seller as provided above, and Seller agrees to indemnify Buyer from any such
claim arising by, through or under Seller.
4.5 Sale Agreements. To Seller's knowledge, 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. 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 Thursday, September 12, 1996, inclusive, Seller may enter into
new Leases provided Seller furnishes to Buyer a copy of the proposed Lease and
pertinent historical and credit information about the proposed tenant and its
operating experience. Thereafter, Seller will not enter into any new Leases
without the prior consent of
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Buyer. Buyer agrees to review any proposed new Lease and supporting information
delivered to it and indicate to Seller whether Buyer approves or rejects such
proposed Lease within five (5) days after Buyer's receipt of such proposed lease
and supporting information. If Buyer approves a new Lease it is understood that
Buyer as the new landlord, if and when the transaction closes, shall be
responsible for all tenant build-out, tenant improvements, concessions and
leasing commissions. If Buyer does not indicate its approval or disapproval
within such five (5) day period, the lease for which approval is sought shall be
deemed disapproved. 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 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 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 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 Permitted Exceptions, and except for a
Contract with Harmony Music and Sound Systems, Inc., 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. To Seller's knowledge 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. 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
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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. 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,
subject however to the provisions of Section 6.2 hereof, which shall control in
the event of a casualty. 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 and which have not been issued. To Seller's knowledge, the Property is
properly zoned for its present use and is not subject to any local, regional or
state development order under Chapter 380, Florida Statutes, as a development of
regional impact. To Seller's knowledge, 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.
To Seller's knowledge, 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 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 disclose the information requested in the
attached form of Tenant Estoppel Letter without material change in form or
substance and not be in Buyer's reasonable judgment detrimental to the landlord.
4.13 Condemnation. Neither the whole nor any portion of the Property,
including access thereto or any easement benefiting the Property, is subject to
temporary requisition of use by any governmental authority or has been
condemned, or taken in any proceeding similar to a condemnation proceeding, nor
to Seller's knowledge 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.
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4.14 Governmental Matters. Seller has not entered into any commitments
or agree ments 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 recom mending any repairs or work to be done on the
Property which have not already been com pleted.
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) 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, except
that the mortgage presently encumbering the Shopping Center, which will be
satisfied by Seller at Closing, contains a "due-on-sale" clause and related
covenants;; or (d) violate any order, writ, injunction, decree, judgment,
statute, law or ruling of any court or governmental authority applicable to
Seller, the Property or any of Seller's material assets.
4.17 Environmental Matters.
(a) Seller represents and warrants 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) To Seller's knowledge, the Property does not now contain and 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 the drycleaning
establishment noted 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. To Seller's knowledge, the Property is not a site on
or nominated for the National Priority List promulgated pursuant to
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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) To Seller's knowledge, there are 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
indefinitely 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.
4.19 Renewal of Warranties and Representations. The warranties and
representations of Seller herein shall be renewed as of the Closing, making
additions or changes to reflect the facts existing at that time. If in Buyer's
opinion there is a material, adverse change of or addition to any of Seller's
warranties or representations, Buyer may terminate this Agreement, in which
event the Xxxxxxx Money Deposit shall be returned promptly to Buyer.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents 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.
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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
Sterling Realty Services, L.C., 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 either:
(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.
Failure by Buyer to elect either alternative within the required period shall
mean that Buyer has elected alternative (a).
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7. TITLE MATTERS
7.1 Title.
(a) Title Insurance. Within ten (10) days after the full
execution of this Agreement, Seller shall order at Seller's expense the Title
Insurance Commitment from Chicago Title Insurance Company and each Survey at
Buyer's expense (subject to partial reimbursement if the transaction closes)
from a reputable surveyor familiar with the Property (Seller also 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 fifteen
(15) 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 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:
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(a) Seller's warranties and representations under this Agreement
shall have been updated and as updated 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, the Leases or the financial condition of tenants leasing space in the
Property since the date of this Agreement.
(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, and Buyer shall have received from the surveyor
the final Survey.
(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 Real Property and Improvements, 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 Materials;
(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 reciprocal indemnities by Seller and Buyer
against breach of such instruments by Seller prior to the Closing Date and by
Buyer thereafter;
(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) A current rent roll for all Leases in effect showing no
material changes from the Rent Roll attached to this Agreement other than those
set forth in the Leases or approved in writing by Buyer;
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(7) All Tenant Estoppel Letters obtained by Seller, which
must include (i) as to Trail: Eckerd, Publix, Xxxxx Xxxxxx Video, First American
Home and Gold's Gym, (ii) as to Tequesta: Publix, Xxxxxxx Xxxxx, Walgreen's,
Giacomo's Tomato and Basil Restaurant, Classic Dream Cars and Brandywine Downs
Restaurant, and (iii) as to both Trail and Tequesta: eighty percent (80%) of the
other tenants who have signed leases for any portion thereof (or affidavit from
Seller as a substitute for no more than three (3) of the tenants falling into
the eighty percent [80%] category if, after diligent effort, Seller has been
unable to obtain the estoppel letter from such tenant[s]), 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 (and if
necessary such Seller's affidavit) must reflect the information requested in the
form of Tenant Estoppel Letter attached hereto without material variation from
the Rent Roll and not be detrimental to the landlord in Buyer's reasonable
judgment;
(8) A general assignment of all assignable existing
warranties relating to the Property;
(9) 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;
(10) The originals or copies of any real and tangible
personal property tax bills for the Property for the tax year of Closing and the
previous year, and, if requested, the originals or copies of any current water,
sewer and utility bills which are in Seller's custody or control;
(11) Resolutions of Seller's general partner authorizing the
transactions described herein;
(12) All keys and other means of access to the Improvements
in the possession of Seller or its agents;
(13) Materials; and
(14) Such other documents as Buyer may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this Section
8.1 are not satisfied and Buyer elects in writing to terminate this Agreement,
then the Xxxxxxx Money
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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 have been updated and as updated shall be true and correct as of the
Closing Date, and Buyer shall not be in default hereunder.
(b) All of the obligations of Buyer contained in this Agreement
shall have been fully performed by or on the date of Closing in compliance with
the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Seller at or prior to the
Closing the following, which shall be reasonably satisfactory to Seller:
(1)Delivery and/or payment of the balance of the Purchase
Price in accordance with Section 2.1 at Closing;
(2)The reciprocal indemnity of Buyer with respect to
Leases and Contracts, as specified in Section 8.1(f)(3) above;
(3)Evidence in the nature of resolutions or other certificates reasonably
required by the title insurance company reflecting Buyer's authority to acquire
the Property; and
(4)Such other documents as Seller may reasonably request to effect the
transactions contemplated by this Agreement.
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
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.
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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 shall either (i) terminate this Agreement and
receive a return of the Xxxxxxx Money Deposit, and the parties shall have no
further rights or obligations under this Agreement (except as expressly survive
termination); (ii) enforce this Agreement by suit for specific performance; or
(iii) waive such breach and close the purchase contemplated hereby,
notwithstanding such breach. Buyer shall have no action for damages with respect
to pre-Closing breaches.
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 expressly survive termination). Seller shall have no action for
damages with respect to pre-Closing breaches.
10. POST CLOSING INDEMNITIES AND COVENANTS
10.1 Seller's Indemnity. Should this transaction close, Seller, subject
to the limita tions 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, except pre-Closing breaches of which
Buyer had knowledge and elected to close notwithstanding the same. Seller's
warranties, representations and covenants, and the foregoing indemnity, shall
survive the Closing for a period of one (1) year, except that the brokerage
commission indemnity set forth in Section 4.4, the environmental indemnities
contained in Section 4.17, and the indemnity with respect to assigned Leases and
Contracts set forth in Section 8.1(f)(3), shall survive indefinitely.
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,
except pre-Closing breaches of which Seller had knowledge and elected to close
notwithstanding same. Buyer's warranties, representations and covenants, and the
foregoing indemnity, shall survive the Closing for a period of one (1) year,
except for the provisions of Sections 3.1(a), 3.2 and 5.3, the Permitted
Exceptions to which Seller is a party or for which it is otherwise contractually
liable, and Buyer's indemnity with respect to assigned Leases and Contracts set
forth in Section 8.2(c)(2), all of which shall survive indefinitely.
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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: Sterling Tequesta/Trails Limited Partnership
c/o Sterling Equities
000 Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
With a copy toHonigman Xxxxxx Xxxxxxx and Xxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
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.
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P. O. Xxx 000
Xxxxx 0000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 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, or by
transmission of such facsimile. 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 unsuc cessful party to such litigation agrees to pay to the
successful party all costs and expenses, including reasonable attorneys' fees,
whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions herein shall include
indemnification for reasonable attorneys' fees and costs, whether or not suit be
brought and including fees and costs on appeal.
11.8 Time of Essence. Time is of the essence of this Agreement.
11.9 Governing Law. This Agreement shall be governed by the laws of
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 Volusia County, Florida, as to Trail and in Palm
Beach County, Florida, as to Tequesta. 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. Buyer shall not assign this Agreement
to any person other than a wholly owned subsidiary of Regency Realty
Corporation.
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11.11 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
11.12 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
11.13 Further Instruments, Etc. Seller and Buyer shall, at or after
Closing, execute any and all documents and perform any and all acts reasonably
necessary to fully implement this Agreement.
11.14 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.15 No Recording. Neither this Agreement nor any notice, memorandum or
other notice or document relating hereto shall be recorded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses:
RRC ACQUISITIONS, INC.,
____________________________ a Florida corporation
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: ______________________, 1996
Name (Please Print)
Tax Identification No. 00-0000000
"BUYER"
STERLING TEQUESTA/TRAILS LIMITED
PARTNERSHIP, a Florida limited partnership
By Its General Partner:
Sterling 1 Florida, Inc., a Florida corporation
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[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: ______________, 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.
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
inter pleader and obtain an order from the Xxxxx County Circuit 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.
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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.
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: ______________, 1996
"ESCROW AGENT"
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EXHIBIT 1.3
Audit Representation Letter
--------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
0000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
RE: ___________________________________
(Acquisition Property Name)
Dear Sirs:
We are writing at your request to confirm our understanding that your
audit of the Statement of Revenue and Expenses of _________________ for the
twelve months ended December 31, 19____, 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 in our possession 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 system of internal accounting control;
(b) Irregularities involving other persons that could have a material
effect on the statement of revenue and 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 expenses.
3. There are no:
(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;
(b) Material gain or loss contingencies that are required to be disclosed
by Statement of Financial Accounting Standards No. 5;
(c) Material transactions that have not been properly recorded in the
accounting records underlying the financial statement; and
(d) Events that have occurred subsequent to the audit period that
should require adjustment to or disclosure in the Statement of Revenue
and Expenses.
4. Provision, when material, has been made for losses to be sustained in
the fulfillment of, or from inability to fulfill, any contract commitments.
5. The shopping center has satisfactory title to all owned assets, and
there are no liens or encumbrances on such assets nor has any asset been
pledged, that has not been disclosed.
6. All contractual agreements that would have a material effect on the
Statement of Revenue and Expenses have been complied with.
7. There have been no:
(a) Material undisclosed related party transactions and related
amounts receivable or payable, including sales, purchases, loans,
transfer, and guarantees;
(b) Agreements to repurchase assets previously sold.
Further, we acknowledge that we are responsible for the fair
presentation of the Statement of Revenue and Expenses prepared in accordance
with generally accepted accounting principles.
Very truly yours,
__________________________(Seller)
By:_________________________________
Its:______________________________
EXHIBIT 1.24
Legal Description of Real Property
A. Tequesta Shoppes, Palm Beach County, Florida
B. Trails Shopping Center, Volusia County, Florida
EXHIBIT 1.26
Rent Roll
A. Tequesta Shoppes, Palm Beach County, Florida
B. Trails Shopping Center, Volusia County, Florida
EXHIBIT 1.31
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,
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___________________________(Tenant)
Mailing Address:
____________________________ By:______________________________
Its:__________________________
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