EXHIBIT 2.1
REGENCY PARK SHOPPING CENTER
REAL ESTATE SALE AGREEMENT
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THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the 8th
day of May, 1997, by and between REGENCY PARK ASSOCIATES, an Illinois general
partnership ("Seller"), with an office at Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, and NEW PLAN REALTY TRUST, a Massachusetts business
trust ("Purchaser"), with an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
RECITALS
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A. Seller is the owner of a certain parcel of real estate (the "Real
Property") in the City of Jacksonville, State of Florida, which parcel is more
particularly described in attached EXHIBIT A, and upon which is located a
shopping center commonly known as "Regency Park Shopping Center."
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the Property (as such term is hereinafter defined), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
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Subject to and in accordance with the terms and conditions set forth
in this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (i) all buildings and improvements
and all rights, easements, licenses and privileges presently thereon or
appertaining thereto (subject to terms of the "Leases" [hereinafter defined]);
(ii) Seller's right, title and interest in and to the leases and lease
guarantees (the "Leases") affecting the Property or any part thereof and all
lease files and copies of all books and records (other than proprietary
information and computer software, but including hard copies of the computer
software documents) which are used in connection with the ownership or operation
of the Property and are either located in the Maitland, Florida district office
of Seller's manager or at the Property; (iii) all furniture, furnishings,
fixtures, equipment, maintenance vehicles, tools, tradename, telephone numbers
and other tangible personalty owned by Seller, located on the Property or used
in connection therewith; (iv) all right, title and interest of Seller under any
and all of the maintenance, service, advertising and other like contracts and
agreements with respect to the ownership and operation of the Property which
have been approved by Purchaser pursuant to Section 11 below; all to the extent
applicable to the period from and after the Closing (as such term is hereinafter
defined); (v) all right, title and interest of Seller in all rights, licenses,
permits, privileges and appurtenances, whether or not of record, in any way
belonging or relating to the Property and which are assignable; (vi) all right,
title and interest of Seller in all development, air, water and other rights in
any way belonging or relating to the Property; (vii) all of Seller's right,
title and interest in and to all guarantees, warranties and indemnities with
respect to the Property which are assignable by Seller and (viii) all of
Seller's right, title and interest in and to all intangibles and intellectual
property described on EXHIBIT B to EXHIBIT I attached hereto which are
assignable by Seller; (items (i) through (viii) above, together with the Real
Property, are collectively referred to in
this Agreement as the "Property"). All of the foregoing expressly excludes (i)
all property owned by tenants or other users or occupants of the Property, and
(ii) all rights with respect to any refund of taxes applicable to any period
prior to the "Closing Date" (as defined herein).
2. PURCHASE PRICE
The purchase price to be paid by Purchaser to Seller for the Property
is Nineteen Million Four Hundred Thousand Dollars and No/100 Dollars
($19,400,000.00) (the "Purchase Price"). The Purchase Price shall be paid as
follows:
X. XXXXXXX MONEY.
(i) Deposit: Three Hundred Thousand and No/100 Dollars ($300,000.00)
(the "Xxxxxxx Money") will be deposited by Purchaser with an agent of Chicago
Title Insurance Company ("Escrow Agent") pursuant to that certain Escrow
Agreement in the form attached hereto as EXHIBIT B (the "Escrow Agreement") upon
Seller's acceptance of this offer as evidenced by Seller's signature below. This
Xxxxxxx Money is paid as evidence of Purchaser's good faith intention to review
those materials provided in Section 10 and such other matters as Purchaser deems
appropriate in order to determine if the Property appears to be suitable for its
portfolio. If Purchaser is satisfied with the results of its inspection and
investigation, then on or before the end of the "Due Diligence Period" (as
defined in Section 3), Purchaser will deliver a notice to Seller and Escrow
Agent stating that it is so satisfied ("Satisfaction Notice"). In the event
Purchaser fails to deliver the Satisfaction Notice prior to the expiration of
the Due Diligence Period, the Xxxxxxx Money (less $100.00 as consideration to
Seller for entering into this Agreement) shall be returned to Purchaser, and
neither party shall have any further obligation to the other, except as set
forth herein. The Xxxxxxx Money shall be invested in accordance with the Escrow
Agreement. Any and all interest earned on the Xxxxxxx Money shall be reported to
Purchaser's federal tax identification number and shall belong to the Purchaser
in accordance with the terms herewith.
(ii) If the transaction closes in accordance with the terms of this
Agreement, at Closing, the Xxxxxxx Money shall be delivered by Escrow Agent to
Seller as partial payment of the Purchase Price.
B. CASH AT CLOSING. At Closing, Purchaser shall pay to Seller, by
wire transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Xxxxxxx Money which Seller receives at Closing from the
Escrow Agent and plus or minus, as the case may require, the closing prorations
and adjustments to be made pursuant to Section 5.C. below.
3. DUE DILIGENCE PERIOD AND SELLER'S OBLIGATIONS UNTIL CLOSING:
A. Purchaser shall have a period of forty (40) days (the "Due
Diligence Period") within which to satisfy itself as to all matters concerning
its acquisition, ownership and operation of the Property, including, without
limitation, matters concerning title, survey, zoning, subdivision laws,
environmental matters, review and approval of leases, contracts and financial
matters affecting the Property, existence of all required licenses, permits and
approvals, approval of the condition of the improvements on the Property, all
soil, landscaping and other physical conditions of the Property, availability
and sufficient quantities of all utilities, and other matters in its discretion.
From the date this Agreement is executed until the Closing, Seller hereby grants
to Purchaser and its agents full access to the Property and all of Seller's
operational and financial records pertaining to the Property in order to conduct
such inspections, samplings and tests as Purchaser deems necessary in order to
reach its decision by the end of the Due Diligence Period. Purchaser's right of
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inspection pursuant to this Section 3 shall be subject to the rights of tenants
under the Leases and other occupants and users of the Property. No physical
samplings shall be undertaken without twenty-four (24) hour prior oral notice to
Seller. Seller shall have the right to be present at any inspections involving
physical samplings.
B. In the event Purchaser delivers the Satisfaction Notice to Seller
and Escrow Agent on or before the end of the Due Diligence Period, then the
Xxxxxxx Money will be at risk and will be forfeited as liquidated damages as
Seller's sole and exclusive remedy in the event Purchaser fails to close, except
due to a default by the Seller or the failure of any condition to Purchaser's
obligations, as set forth herein. In the event Purchaser fails to deliver the
Satisfaction Notice prior to the expiration of the Due Diligence Period, the
Xxxxxxx Money (less $100.00 as consideration to Seller for entering into this
Agreement) shall be returned to Purchaser, and neither party shall have any
further obligation to the other, except as set forth herein. All of the
foregoing tests, investigations and studies to be conducted under this Section 3
by Purchaser shall be at Purchaser's sole cost and expense and Purchaser shall
restore the Property to the condition existing prior to the performance of such
tests or investigations by or on behalf of Purchaser. Purchaser shall have no
liability to cure or remediate any condition discovered by Purchaser other than
to restore the Property to the condition existing prior to the performance of
such tests or investigation. Purchaser shall defend, indemnify and hold Seller
and any affiliate, parent of Seller, and all shareholders, employees, officers
and directors of Seller or Seller's affiliate or parent (hereinafter
collectively referred to as "Affiliate of Seller") harmless from any and all
liability, cost and expense (including without limitation, reasonable attorney's
fees, court costs and costs of appeal) suffered or incurred by Seller or
Affiliates of Seller for injury to persons or property caused by Purchaser's
investigations and inspection of the Property. Purchaser shall undertake its
obligation to defend set forth in the preceding sentence using attorneys
selected by Purchaser and reasonably acceptable to Seller. Notwithstanding
anything contained herein to the contrary, the terms of this Section 3 shall
survive the Closing and the delivery of the Deed and termination of this
Agreement.
4. SURVEY AND TITLE COMMITMENT; PERMITTED EXCEPTIONS.
A. PRELIMINARY TITLE REPORT. Purchaser shall cause Chicago Title
Insurance Company, or an agent thereof, ("Title Company") to issue and deliver
to Purchaser and Seller an A.L.T.A. Form B title commitment on 1970 form ("Title
Commitment") in the amount of the Purchase Price, accompanied by one copy of all
documents affecting the Property and which constitute exceptions to the Title
Commitment ("Recorded Documents"). Purchaser shall give Seller written notice
(the "Title Notice") within seven (7) days after Purchaser's receipt of the
Title Commitment, the Recorded Documents and the Survey, whether such title is
or is not acceptable to Purchaser. In the event that the condition of title is
not acceptable to Purchaser or if the Title Company is unwilling to issue
_____________________ (the "Required Endorsements"), Purchaser shall state in
the Title Notice which exceptions to the Title Commitment are unacceptable and
which Required Endorsements Title Company is unwilling to issue. Purchaser and
Seller shall use good faith efforts to attempt to agree upon a definitive list
of title exceptions acceptable to Purchaser and Seller ("Permitted Exceptions")
on or before the expiration of the seven (7) day period following the delivery
of the Title Notice. All other exceptions to title shall be "Unpermitted
Exceptions." Notwithstanding the foregoing, Seller agrees that liens and other
encumbrances for the payment of money of a definite and ascertainable amount
which are disclosed by the original Title Commitment other than real estate
taxes not yet due and payable and special assessments shall be Unpermitted
Exceptions which Seller shall remove on or before Closing. If the parties agree
upon a list of Permitted Exceptions, Seller shall cause the Title Company to
remove all Unpermitted Exceptions and issue the Required Endorsements at the
Closing. If the parties cannot agree upon a mutually acceptable list of
Permitted Exceptions on or
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before the expiration of said seven (7) day period, then Purchaser shall have
the right to terminate this Agreement by notice to Seller on or before the
Closing Date or waive its objections to such title matters. If Purchaser
terminates this Agreement in accordance with the terms of this Section 4.A.,
this Agreement shall become null and void without further action of the parties
and all Xxxxxxx Money, together with any interest accrued thereon, shall be
returned to Purchaser, and neither party shall have any further liability to the
other, except as specifically set forth herein.
B. CURRENT SURVEY. Seller shall, at its sole cost, provide Purchaser
within twenty (20) days following the execution of this Agreement with a current
as-built survey of the Property prepared by a duly licensed land surveyor (the
"Survey"). Such surveyor shall follow the survey instructions attached hereto as
EXHIBIT C-1 and certify the survey pursuant to the Surveyor's Certificate
attached hereto as EXHIBIT C-2. In the event the Survey shows any encroachments
or any improvements upon, from, or onto the Property, or on or between any
building setback line, property line, or any easement, or any other matter
objectionable to Purchaser, said encroachment or objection shall be treated in
the same manner as a title defect under the procedure set forth in Section 4.A.
above. Notice of any such Survey encroachment or objection must be provided by
Purchaser to Seller with the Title Notice.
C. PERMITTED EXCEPTIONS. The Property shall be conveyed to Purchaser
subject to ad valorem taxes for the current year, the Permitted Exceptions and
those Unpermitted Exceptions waived by Purchaser.
D. Purchaser shall cause the Title Insurer to issue a date-down to
the Title Commitment on or before five (5) days prior to the expiration of the
Due Diligence Period. If the aforesaid date-down to the Title Commitment
discloses any new Unpermitted Exception, Seller shall have five (5) days from
the date of the date-down to the Title Commitment, as applicable, at Seller's
expense, to (i) bond over, cure and/or have any new Unpermitted Exceptions
which, in the aggregate, do not exceed $100,000 (a "Minor Unpermitted
Exception"), removed from the Title Commitment, or (ii) have the right, but not
the obligation, to bond over, cure and/or have any new Unpermitted Exceptions
which, in the aggregate, equal or exceed $100,000, removed from the Title
Commitment. In such event, the time of Closing shall be delayed, if necessary,
to give effect to said aforementioned time periods. If Seller fails to cure or
have said new Unpermitted Exception removed within said five (5) day period or
if Seller elects not to exercise its rights under (ii) in the preceding
sentence, Purchaser may terminate this Agreement upon notice to Seller within
five (5) days after the expiration of said five (5) day period. Absent notice
from Purchaser to Seller in accordance with this Section 4.D., Purchaser shall
be deemed to have elected to take title subject to said new Unpermitted
Exception. If Purchaser terminates this Agreement in accordance with the terms
of this Section 4.D., this Agreement shall become null and void without further
action of the parties and all Xxxxxxx Money theretofore deposited into the
escrow by Purchaser together with any interest accrued thereon, shall be
returned to Purchaser, and neither party shall have any further liability to the
other, except as specifically set forth herein. Notwithstanding anything
contained herein to the contrary, (x) if the new Unpermitted Exception which
gives rise to Purchaser's right to terminate was recorded against the Property
as a result of the affirmative, willful action of Seller then Purchaser shall
have the additional rights contained in Section 8 herein or (y) if Seller is
able to bond over, cure or remove a Minor Unpermitted Exception for a cost not
to exceed $100,000 and Seller fails to expend said funds, then Purchaser shall
have the right to elect to close and deduct from the Purchase Price the cost to
bond over, cure or remove said Minor Unpermitted Exception (not to exceed
$100,000) or have the additional rights contained in Section 8 herein.
5. CLOSING
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A. CLOSING DATE. The "Closing" of the transaction contemplated by
this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and conditions of
this Agreement) shall occur at 10:00 a.m. on the second (2nd) day after the
expiration of the "Due Diligence Period" at the Chicago, Illinois office of
Seller's attorney, or at such other time and place as Seller and Purchaser shall
agree in writing. The "Closing Date" shall be the date of Closing. If the date
for Closing above provided for falls on a Saturday, Sunday or legal holiday,
then the Closing Date shall be the next business day. Both Purchaser and Seller
shall have the right to extend the Closing Date on a one time basis for up to
two (2) business days on account of "force majeure" events and upon prior oral
notice to the other party.
B. CLOSING DOCUMENTS.
(i) Seller's Obligations at Closing. At Closing, Seller shall
do the following:
(a) execute, acknowledge, and deliver to Purchaser a
Special Warranty Deed conveying the Property to
Purchaser subject only to the Permitted Exceptions and
any Unpermitted Exceptions waived by Purchaser, which
deed shall be in form attached hereto as EXHIBIT D
which is incorporated herein by reference. The legal
description of the Property contained in such deed
shall be identical to the legal description of the
Property as contained in the Survey and the Title
Commitment;
(b) deliver to Title Company evidence satisfactory to it of
Seller's authority to execute and deliver the documents
necessary to consummate the transaction contemplated
hereby in the form of resolutions or minutes of Seller;
(c) cause to be furnished and delivered to Purchaser, at
the sole cost and expense of Purchaser, an owner's
Title Insurance Policy as described in Section 5.A.;
(d) execute and deliver to Purchaser and Title Company a
Lien Waiver Affidavit so as to cause Title Company to
remove the mechanics' lien (other than construction
obligations to be assumed by Purchaser herein) and
parties in possession (other than the tenants of the
Property, but excluding any tenant's right to purchase
the Property, other than pursuant to the Save and Pac,
Inc. lease dated January 15, 1985, as amended) and
standard exceptions from the Title Commitment;
(e) execute and deliver to Purchaser and Title Company a
FIRPTA certificate concerning resident alien or non-
alien status for IRS withholding purposes in the form
attached hereto as EXHIBIT E;
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(f) execute and deliver to Purchaser a special warranty
Xxxx of Sale as to the Tangible Personal Property in
the form attached hereto as Exhibit F;
(g) execute an Assignment of any guaranties or warranties
and indemnities, including a termite bond, if any, with
respect to the Property in the form attached as Exhibit
G;
(h) execute an Assignment and Assumption of Leases and
Security Deposits in the form attached as Exhibit H;
(i) execute and deliver an Assignment of Intangibles in the
form attached hereto as Exhibit I;
(j) execute and deliver an Assignment and Assumption of
Contracts with respect to the "Service Contracts"
(hereinafter defined) in the form attached hereto as
Exhibit J;
(k) execute such other documents, resolutions, or
instruments as may reasonably be required by Purchaser
or the Title Company required by this Agreement to
effectuate the agreement memorialized herein;
(l) deliver to Purchaser all lease and lease files and
books and records in Seller's possession located in the
Maitland, Florida district office of Seller's manager
or at the Property;
(m) a closing statement to be executed by Seller and
Purchaser, setting forth the prorations and adjustments
to the Purchase Price as required by Section 5.C.
below;
(n) a copy of the notice terminating the management and
leasing agreement effective as of the Closing Date and
to the extent obtainable after reasonable efforts on
the part of Seller, an acknowledgement of the aforesaid
terminations;
(o) a notice from Seller and Seller's on-site property
manager to the tenants of the transfer of title and the
assumption by Purchaser of the landlord's obligations
under the Leases for the period commencing on the
Closing Date and the obligation to refund the security
deposits which have been assigned or credited to
Purchaser in the form attached hereto as EXHIBIT Q and
a notice to the parties to the "REA" (hereafter
defined) from Seller and Seller's on-site property
manager of the transfer of title to Purchaser in the
Property;
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(p) a receipt from Seller's Broker (hereinafter defined)
for the fee or commission due Seller's Broker and a
release stating that no other fees or commissions are
due to it from Seller or Purchaser;
(q) subject to the terms of Section 9.E., reaffirmation of
representations and warranties by Seller in the form
attached hereto as Exhibit R;
(r) subject to Section 9.E., an update (as of the Closing)
of the rent roll attached hereto as Exhibit L together
with a certificate pursuant to which Seller represents
and warrants (subject to Section 9.D.) that, to
Seller's knowledge (as defined in Section 9.A. herein),
the updated rent roll is accurate as of the date set
forth thereon; and
(s) subject to Section 9.E., an update (as of the Closing)
of the security deposit listing attached hereto as
Exhibit S together with a certificate pursuant to which
Seller represents and warrants (subject to Section
9.D.) that, to Seller's knowledge (as defined in
Section 9.A. herein), the updated security deposit
listing is accurate as of the date set forth therein.
(ii) Purchaser. Purchaser shall deliver or cause to be delivered
to Seller at Closing:
(a) the funds required pursuant to Section 2.B. above;
(b) a closing statement to be executed by Seller and
Purchaser, setting forth the prorations and adjustments
to the Purchase Price as required by Section 5.C.
below; and
(c) an assumption of the documents set forth in Sections
5.B.(i), (h) and (j).
C. Closing Prorations and Adjustments.
(i) The following items are to be prorated or adjusted (as
appropriate) as of 11:59 p.m. on the day prior to the
Closing Date, it being understood that for purposes of
prorations and adjustments, Seller shall be deemed the owner
of the Property through such time and Purchaser shall be
deemed the owner of the Property as of the day of the
Closing Date:
(a) real estate and personal property taxes (on the basis
of the most recent ascertainable tax xxxx if the
current xxxx is not then available and taking into
account any discount for early payment if Seller has
received said discount for 1996). The parties shall
also prorate special assessments for incompleted
improvements and completed improvements (but only to
the extent the special assessments for completed
improvements are chargeable to the Tenants
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["Chargeable Assessments"]. Seller shall pay at Closing
the balance of any special assessments for completed
improvements other than Chargeable Assessments. Once
the tax xxxx for the year of closing is received, taxes
may be reprorated taking into account the tenant's
contribution received in accordance herewith at
election of Seller or Purchaser and taking into account
any discount available for early payment;
(b) the "minimum" or "base" rent payable by tenants under
the Leases; provided, however, that rent and all other
sums which are due and payable to Seller by any tenant
but uncollected as of the Closing shall not be
adjusted, but Purchaser shall cause the rent and other
sums for the period prior to Closing to be remitted to
Seller if, as and when collected. At Closing, Seller
shall deliver to Purchaser a schedule of all such past
due but uncollected rent and other sums owed by
tenants. Purchaser shall include the amount of such
rent and other sums in the second bills thereafter
submitted to the tenants in question after the Closing,
and shall continue to do so for three (3) additional
months thereafter. Seller shall have the right to
pursue collection of such past due rents after said
three (3) month period, but Seller agrees not to bring
any actions against such delinquent tenants for
eviction or dispossession. Notwithstanding anything
contained herein to the contrary, with respect to
delinquent base rent for periods prior to the Closing
Date, Purchaser shall remit such delinquent rent to
Seller only after the tenant owing such delinquent rent
is current on its base rent obligations for the period
of Purchaser's ownership. Percentage or overage rent
and reimbursement of real estate taxes payable, common
area maintenance, mall maintenance, utility charges,
water and sewer charges, insurance and merchant's
association dues and assessments and all other charges
to or contributions by tenants under the Leases shall
be prorated as follows: with respect to percentage
rents, and upon receipt by Purchaser, Purchaser shall
furnish to Seller copies of all sales reports from
tenants relative thereto, including, without
limitation, all sales reports with respect to any
tenants whose lease years have expired as of the
Closing but whose sales reports were not available on
Closing and sales reports of any tenants whose lease
year expires after the Closing, and the amount of any
rents (including, without limitation, percentage
rents), reimbursement or contribution to be made by any
tenant shall be made in accordance with such tenant's
Lease as now existing and Purchaser shall promptly pay
to Seller a pro-rata portion of such percentage rents,
reimbursement or contribution, based upon apportionment
being made as of the Closing Date, promptly after the
date when such percentage rents, reimbursement or
contribution is received (net of any offsets taken by
tenants) from the tenant.
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Purchaser shall conduct a reconciliation of
contributions of real estate taxes, common area
maintenance, mall maintenance, utility charges, water
and sewer charges, insurance and merchants' association
dues and assessments and all other changes to or
contributions by tenants under Leases for 1997 and
Seller shall furnish any additional available
information requested by Purchaser in connection with
preparing a 1997 reconciliation.
(c) With respect to tenant improvement costs, leasing
commissions, free rent periods or concessions relating
to Leases executed after the date hereof in accordance
with Section 14.J.(b), or relating to any modification,
amendment, restatement or renewal thereto, executed
after the date hereof in accordance with Section
14.J.(b) (said new leases, modifications, amendments,
restatements and renewals being collectively referred
to as a "New Lease"), Seller and Purchaser agree that
such costs, free rent periods, concessions and
commissions shall be prorated over the term of any New
Lease with Seller being responsible for a portion of
such costs, free rent periods, concessions and
commissions based on the ratio of base rent payments
received by Seller through the Closing Date to the
total base rent payable over the term of the particular
New Lease.
(d) Seller shall deliver a separate payment to Purchaser at
Closing in the amount of refundable security deposits
under the Leases as set forth in Exhibit S;
(e) water, electric, telephone and all other utility and
fuel charges, fuel on hand (at cost plus sales tax) (to
the extent possible, utility prorations will be handled
by meter readings on the day immediately preceding the
Closing Date) (Seller shall retain any deposits with
utility companies);
(f) amounts due and prepayments under the Service
Contracts;
(g) assignable license and permit fees;
(h) other similar items of income and expenses of
operation; and
(i) To the extent there remains at Closing any
unsatisfied tenant improvement obligation,
concessions, free rent periods or leasing
commission set forth in Exhibit O, Seller shall
credit Purchaser for the amount of said
obligations and Purchaser shall assume the
satisfaction of such obligations.
(ii) Notwithstanding the foregoing, Seller shall in
all events be entitled to retain amounts paid
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by tenants for real estate taxes and
assessments and common area expenses as of
the Closing Date, such sums to be prorated
if paid for a portion of the month in which
the Closing occurs.
(iii) Notwithstanding anything to the contrary
contained in this Section 5, Seller reserves
the right, subject to Seller not taking any
actions which might adversely affect
Purchaser's prospective real estate tax
assessments or Purchaser's future rights (a)
to meet with governmental officials and to
contest any reassessment governing or
affecting Seller's obligations under Section
5.C.(i) above and (b) to contest any
assessment of the Property or any portion
thereof and to attempt to obtain a refund
for any taxes previously paid. Seller shall
retain all rights with respect to any refund
of taxes applicable to any period prior to
the Closing Date.
D. CLOSING COSTS. Closing costs shall be allocated as follows:
(i) Seller shall pay the following costs and expenses in
connection with the Closing:
(a) Seller's attorney's fees;
(b) Any real estate commission to be paid from Seller's
closing proceeds pursuant to Section 7 hereof;
(c) Documentary stamps and intangibles tax on the deed; and
(d) All Survey costs.
(ii) Purchaser shall only be responsible for the following
closing costs and expenses in connection with the Closing:
(a) Recording fees for the deed;
(b) The premium payable for the Title Commitment and Title
Policy issued pursuant thereto as well as all other
title costs or costs of endorsements;
(c) Purchaser's attorneys' fees;
(d) Environmental report obtained by Purchaser;
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(e) Structural reports obtained by Purchaser;
(f) Investigation costs of Purchaser during Due Diligence
Period; and
(g) Lease review costs of Purchaser.
E. POSSESSION.
Upon Closing, Seller shall deliver to Purchaser possession of the
Property, subject to such matters as are permitted by or pursuant to this
Agreement.
F. SURVIVAL. The terms of this Article 5 shall survive the Closing
and the delivery of the Deed.
6. CASUALTY LOSS AND CONDEMNATION
A. Except as provided in the indemnity provisions contained in
Section 3.B. of this Agreement, Seller shall bear all risk of loss with respect
to the Property up to the earlier of the dates upon which either possession or
title is transferred to Purchaser in accordance with this Agreement.
Notwithstanding the foregoing, in the event of damage to the Property by fire or
other casualty prior to the Closing Date, repair or restoration of which would
cost less than or equal to $200,000.00 (as determined by Seller and Purchaser in
good faith) Purchaser shall not have the right to terminate its obligations
under this Agreement by reason thereof, but Seller shall assign and transfer to
Purchaser on the Closing Date all of Seller's right, title and interest in and
to all insurance proceeds on account of such fire or casualty and Seller shall
pay to Purchaser at the Closing the amount of Seller's insurance deductible. In
the event Purchaser is to receive the insurance proceeds as aforedescribed,
Purchaser shall have the right to negotiate the settlement of the insurance
claim with the insurance carrier. Seller shall execute whatever documents are
reasonably required in order to enable Purchaser to conduct those negotiations.
Notwithstanding the foregoing, (i) if the casualty results in tenants having the
right to terminate Leases on the Property aggregating 25,000 square feet or
more, then Purchaser, upon notice to Seller prior to Closing, can elect to
either: (a) terminate this Agreement or (b) accept the Property in its damaged
condition together with an assignment from Seller of all insurance proceeds and
receive a credit at Closing in the amount of the deductible; or (ii) if the
casualty is uninsured (in excess of the deductible) then Purchaser, at its
option, may terminate this Agreement. If Purchaser elects to terminate this
Agreement in accordance with the terms of the preceding sentence, this Agreement
shall become null and void, and the Xxxxxxx Money deposited by Purchaser shall
be returned to Purchaser together with interest thereon, and neither party shall
have any further liability or obligations hereunder, except as specifically set
forth herein. Seller shall promptly notify Purchaser in writing of any such fire
or other casualty and Seller's determination of the cost to repair the damage
caused thereby. In the event of damage to the Property by fire or other casualty
prior to the Closing Date, repair or restoration of which would cost in excess
of $200,000.00 (as determined by Seller and Purchaser in good faith), then this
Agreement may be terminated at the option of Purchaser, which option shall be
exercised, if at all, by Purchaser's written notice thereof to Seller within ten
(10) business days after Purchaser receives written notice of such fire or other
casualty and Seller's and Purchaser's determination of the amount of such
damages, and upon the exercise of such option by Purchaser this Agreement shall
become null and void, the Xxxxxxx Money deposited by Purchaser shall be returned
to Purchaser together with interest thereon, and neither party shall have any
further liability or obligations hereunder, except as specifically set forth
herein. In the event that Purchaser does not exercise the option set forth in
the preceding sentence, the Closing shall take place on the Closing Date and
Seller shall assign and transfer to
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Purchaser on the Closing Date all of Seller's right, title and interest in and
to all insurance proceeds paid or payable to Seller on account of the fire or
casualty and Seller shall pay to Purchaser at the Closing the amount of Seller's
insurance deductible.
B. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated or if Seller receives
any governmental notices of threats or notices of proposed or contemplated
condemnation or eminent domain proceedings which might result in the taking of
any part of the Property or the taking or closing of any right of access to the
Property (a "Condemnation Event"), Seller shall immediately notify Purchaser of
such occurrence. In the event of a Condemnation Event, Purchaser may:
(i) terminate this Agreement by written notice to Seller, in which
event the Xxxxxxx Money deposited by Purchaser, together with
interest thereon, shall be returned to Purchaser and all rights
and obligations of the parties hereunder with respect to the
closing of this transaction will cease, except as specifically
set forth herein; or
(ii) proceed with the Closing, in which event Seller shall assign to
Purchaser all of Seller's right, title and interest in and to any
award made in connection with such condemnation or eminent domain
proceedings and Purchaser shall immediately have the right to
negotiate said award.
C. Purchaser shall then notify Seller, within ten (10) business days
after Purchaser's receipt of Seller's notice, whether Purchaser elects to
exercise its rights under Section 6.B.(i) or Section 6.B.(ii). Closing shall be
delayed, if necessary, until Purchaser makes such election. If Purchaser fails
to make an election within such ten (10) business day period, Purchaser shall be
deemed to have elected to exercise its rights under Section 6.B.(ii).
D. The terms of this Article 6 shall survive the Closing and the
delivery of the Deed.
7. BROKERAGE
Seller agrees to pay upon Closing (but not otherwise) a brokerage
commission due to Xxx Xxxxxx Associates ("Seller's Broker") pursuant to a
separate written agreement for services rendered in connection with the sale and
purchase of the Property. Seller agrees to indemnify Purchaser from and against
any claims arising from any broker commission due to Seller's Broker. Seller and
Purchaser shall each indemnify and hold the other harmless from and against any
and all claims of all other brokers and finders claiming by, through or under
the indemnifying party and in any way related to the sale and purchase of the
Property, this Agreement or otherwise, including, without limitation, attorneys'
fees and expenses incurred by the indemnified party in connection with such
claim. The terms of this Article 7 shall survive the Closing and the delivery of
the Deed.
8. DEFAULT AND REMEDIES
A. Notwithstanding anything to the contrary contained in this
Agreement, if Seller fails to perform in accordance with the terms of this
Agreement and the transaction hereunder does not close in accordance with the
terms hereof (including, without limitation, a breach of a representation or
warranty at the time said representation or warranty was made), then, as
Purchaser's sole and exclusive remedy hereunder and at Purchaser's option,
either (1)(a) the Xxxxxxx Money shall be returned to Purchaser plus Purchaser
shall have the right to recover third party expenses incurred by Purchaser in
connection with its due diligence of the Property and the
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preparation of this Agreement in an amount not to exceed $100,000.00, in which
event this Agreement shall be null and void, and neither party shall have any
rights or obligations under this Agreement, except for Purchaser's liability
pursuant to Section 3.B. herein or (b) if Seller's default is (i) the willful
refusal to deliver the closing documents set forth in Paragraph 5.B.(i)(a), (b),
(c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (q), (r) and
(s), (ii) its affirmative, willful action which results in the recording of an
encumbrance against the Property; (iii) its failure to expend up to $100,000 if
Seller is able to bond over, cure or remove a Minor Unpermitted Exception for a
cost not to exceed $100,000, or (iv) the execution of a "New Lease" (hereinafter
defined) in violation of Section 14.J.(b), then the Xxxxxxx Money shall be
returned to Purchaser plus Purchaser shall be entitled to an amount equal to
$150,000 as liquidated damages for the aforesaid default by Seller and because
of the difficulty, inconvenience and uncertainty of ascertaining actual damages,
or (2) upon notice to Seller not more than ten (10) days after the specified
Closing Date, and provided an action is filed within thirty (30) days
thereafter, Purchaser may seek specific performance of this Agreement, but not
damages (other than reasonable court costs and reasonable legal fees if so
awarded). Purchaser's failure to seek specific performance as aforesaid shall
constitute its election to proceed under clause (1) above.
B. Notwithstanding anything to the contrary contained in this
Agreement, if Purchaser fails to perform in accordance with the terms of this
Agreement after expiration of the Due Diligence Period, and after delivery and
deposit of the Additional Xxxxxxx Money, then, Seller, as its sole and exclusive
remedy, shall terminate this Agreement and retain the Xxxxxxx Money, with
accrued interest, such sum being agreed upon as liquidated damages for the
failure of Purchaser to perform the duties and obligations imposed upon it by
the terms and provisions of this Agreement and because of the difficulty,
inconvenience, and uncertainty of ascertaining actual damages and Purchaser
shall continue to be liable for its indemnity contained in Section 3.B. herein.
No other damages, rights or remedies shall in any case be collectible,
enforceable or available to Seller other than as provided in this Section 8.B.
9. REPRESENTATIONS AND WARRANTIES
A. Any reference herein to Seller's knowledge or notice of any
matter or thing shall only mean such knowledge or notice that has actually been
received by Xxxxxx Xxxxxx, asset manager or Xxxxxx X. Xxxxxx, executive vice-
president (collectively, the "Seller's Representative"), and any representation
or warranty of the Seller is based upon those matters of which the Seller's
Representative has actual knowledge. Seller's Representative agrees to review
the accuracy of the representations and warranties with Seller's third-party on-
site property manager prior to Seller's execution hereof. Any knowledge or
notice given, had or received by any of Seller's agents, servants or employees
(other than Seller's Representative) shall not be imputed to Seller, the general
partners of Seller, the subpartners of the general partners of Seller or
Seller's Representative.
B. The following representations and warranties are made as of the
date hereof:
(i) Seller is the sole owner of the Property.
(ii) Seller has the power to execute and deliver this Agreement
and consummate the transaction contemplated herein. Seller
is in existence and good standing in the state in which the
Property is located and in all other states in which such
qualification or authorization is necessary to consummate
the transaction contemplated herein.
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(iii) Except as may be disclosed in that certain environmental
report prepared by ENSR and dated August 1996 and delivered
by Seller to Purchaser, to Seller's knowledge, Seller has
not received any notice from any governmental authority
having jurisdiction over the Property of any uncured
violation of any federal, state or local applicable
environmental law or regulation. To Seller's knowledge,
Seller does not possess any additional environmental reports
concerning the Property.
(iv) To Seller's knowledge, Seller has no notice of any pending
threatened, proposed or contemplated condemnation.
(v) To Seller's knowledge, the rent roll attached hereto as
EXHIBIT L is accurate as of the date set forth therein. To
Seller's knowledge, the security deposit list attached
hereto as EXHIBIT S is accurate as of the date set forth
therein. To Seller's knowledge, a complete list of all
Leases and amendments thereto is attached hereto as EXHIBIT
U.
(vi) Seller is not a party to any other agreement to sell the
Property to any other party except for that right of first
refusal contained in the ground lease between Seller's
predecessor-in-interest and Save and Pac, Inc. dated January
15, 1985, as amended, relating to a transaction involving
the sale of only the ground lease parcel and Seller will not
enter into any agreement to sell the Property during the
term of this Agreement.
(vii) To Seller's knowledge, there is no litigation pending
against Seller or against the Property which affects the
Property or this transaction except as set forth in EXHIBIT
M, nor does Seller have any knowledge for the basis for such
litigation, claims, causes of action or administrative
proceedings other than as disclosed in EXHIBIT M.
(viii) To Seller's knowledge, Seller has the franchises,
certificates, licenses, permits and other authorizations
from government, political subdivisions or regulatory
authorities (collectively "Permits") set forth on EXHIBIT N.
(ix) To Seller's knowledge, Purchaser shall have no obligation to
hire any employees of Seller. To Seller's knowledge, there
are no employees of the Property.
(x) Except as set forth on EXHIBIT O, to Seller's knowledge, all
amounts to be paid by Seller pursuant to tenant leases,
including, but not limited to, construction allowances, free
rent, rent concessions, costs for tenant improvements, and
leasing commissions, have been fully paid by Seller.
(xi) To Seller's knowledge, Seller has received no written notice
that any applicable building or zoning laws, rules or
regulations are being violated. To Seller's knowledge, the
Shopping Center was constructed after 1982.
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(xii) This Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all
necessary action on the part of Seller and, upon the
assumption that this Agreement constitutes a legal, valid
and binding obligation of Purchaser, this Agreement
constitutes a legal, valid and binding obligation of Seller.
(xiii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by
Seller do not and will not (a) violate or conflict with the
organizational documents of Seller, (b) violate or conflict
with any judgment, decree or order of any court applicable
to or affecting Seller, (c) breach the provisions of, or
constitute a default under, any contract, agreement,
instrument or obligation to which Seller is a party or by
which Seller is bound, or (d) violate or conflict with any
law or governmental regulation or permit applicable to
Seller.
(xiv) To Seller's knowledge, attached hereto as EXHIBIT K is a
list of all service, maintenance and supply contracts
affecting the Property in effect on the date hereof and
which shall survive Closing, and to Seller's knowledge,
neither party to any service contract is in default
thereunder.
(xv) Seller is not a "foreign person" as defined in the Federal
Foreign Investment in Real Property Tax Act of 1980 and the
1984 Tax Reform Act, as amended.
(xvi) To Seller's knowledge, Seller has not received written
notice from a governmental authority or any public utility
that the water supply or sewage disposal system presently
servicing the Property are inadequate to distribute the
water supply and dispose of the sewage for the Property.
C. Purchaser hereby represents and warrants to Seller that Purchaser
has the full right, power and authority to execute and deliver this Agreement
and consummate the transactions contemplated herein.
D. The parties agree that the representations and warranties
contained herein and in the "Seller Tenant Certificates" (as hereinafter
defined) shall survive Closing for a period of nine (9) months (i.e., the
claiming party shall have no right to make any claims against the other party
for a breach of a representation or warranty after the expiration of nine (9)
months immediately following Closing).
E. If at any time after the execution of this Agreement, either
Xxxxxxx Xxxxxxxx or Xxxxx Xxxxxx, on the part of Purchaser, or Seller become
aware of information which makes a representation and warranty contained in this
Agreement to become untrue, said party shall promptly disclose said information
to the other party hereto. Provided the party making the representation or
warranty did not take any deliberate actions to cause the representation or
warranty in question to become untrue and said representation or warranty was
true when made, said party shall not be in default under this Agreement. If
Seller is unable to remake a representation or warranty as aforesaid, and the
cost to cure all conditions giving rise to any representations and warranties
being untrue (the "UNACCEPTABLE CONDITIONS") is equal to or less
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than $100,000 in the aggregate (as reasonably determined by Seller and
Purchaser), then Seller shall either (i) grant Purchaser a credit at Closing for
an amount equal to cure all Unacceptable Conditions up to $100,000 in the
aggregate, or (ii) cure all conditions giving rise to the Unacceptable
Conditions prior to the Closing Date. The determination to perform the covenant
contained in subparagraphs (i) or (ii) in the preceding sentence shall be made
by Seller in its sole discretion. Provided Seller performs its covenant in this
Section 9.E., the disclosure of the Unacceptable Conditions with a cost to cure
of less than $100,000 in the aggregate shall not affect Purchaser's obligations
to close hereunder or give rise to any additional liability from Seller to
Purchaser. If the cost to cure all Unacceptable Conditions is greater than
$100,000 in the aggregate (as reasonably determined by Seller and Purchaser),
Purchaser shall either have the right to terminate this Agreement in accordance
with the terms of this Section 9.E. or proceed to Closing and, at the election
of Seller, (i) Purchaser shall receive a credit at Closing equal to the amount
of $100,000 or (ii) Seller shall cure all Unacceptable Conditions prior to the
Closing Date up to an aggregate amount of $100,000. Purchaser shall make such an
election of whether to terminate this Agreement in writing on or before five (5)
days after the determination by Seller and Purchaser that the cost to cure the
Unacceptable Conditions exceeds $100,000. If Purchaser exercises its right to
terminate in accordance with the terms of this Section 9.E., this Agreement
shall be null and void without further action of the parties and all Xxxxxxx
Money theretofore deposited by Purchaser together with interest accrued thereon,
shall be returned to Purchaser, and neither party shall have any further
liability to the other, except as specifically set forth herein. If Purchaser
elects to proceed to Closing, then the performance by Seller in accordance with
the terms of this Paragraph 9.E. shall be the only liability of Seller with
respect to said Unacceptable Conditions. In no event shall Purchaser be entitled
to enforce the terms of this Section 9.E. and Sections 13.D. and F. with respect
to the same condition, but Seller shall not restrict which of the aforesaid
Sections or in what combination thereof Purchaser elects to proceed under.
Notwithstanding anything contained herein to the contrary, if the status of any
of the tenancies or security deposits changes as the result of the actions of
any tenants from the date of the rent roll and security deposit list attached
hereto and the date of the rent roll or security deposit list delivered at
Closing, provided the change in status is not caused by a breach of Seller's
covenants contained in Section 14.J.(a) herein, then Purchaser shall not have
the right to terminate this Agreement or make any claim for a breach of a
representation or warranty hereunder involving the rent roll, the security
deposit list or tenancies thereunder or receive any credit therefor. Purchaser
and Seller are prohibited from making any claims against the other party hereto
after the Closing with respect to any breaches of the other party's
representations and warranties contained in this Agreement that the claiming
party has actual knowledge of prior to the Closing. With respect to the
preceding sentence, Purchaser's knowledge shall mean the actual knowledge of
Xxxxxxx Xxxxxxxx or Xxxxx Xxxxxx.
10. INFORMATION
Within five (5) days from the date this Agreement is executed, Seller
shall furnish such of the following items that Seller has in its possession or
control:
(a) Real estate tax bills for the current and two preceding years;
(b) Owner's title insurance policy;
(c) The most recent environmental report made or known to Seller with
respect to the Property;
(d) List of pending litigation and status report;
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(e) Utility bills for the current year;
(f) Copies of all contracts, if any, in effect such as janitorial,
maintenance, cable company, utility company, management, leasing
or other, as well as copies of any guaranties or warranties,
including a termite bond;
(g) Operating income and expenses for the current year;
(h) True and correct copies of all leases and any amendments or
modifications thereto and information on all pending lease
negotiations;
(i) Current rent roll and monthly gross sale reports for current
lease years from tenants obligated to deliver monthly gross sales
reports;
(j) Copies of insurance policies;
(k) Engineering/structural reports on the Property;
(l) As-built constructions plans and site plans and drawings,
certificates of occupancy and building permits; and
(m) List of all inventory, personal property, furniture, fixtures and
equipment located on or used in connection with the Property.
11. SERVICE CONTRACTS
Prior to the expiration of the Due Diligence Period, Purchaser shall
notify Seller as to which of the service contracts listed in EXHIBIT K it
requires terminated on or prior to Closing (the "Undesired Contracts"). Seller
hereby agrees to send notice of termination under the Undesired Contracts on or
prior to the Closing Date. The parties acknowledge that some of the Undesired
Contracts may require more notice than available prior to the Closing to
effectuate termination and that such Undesired Contracts shall be referred to as
"Noticed Contracts." Seller shall assign the service contracts (other than the
Undesired Contracts that are not Noticed Contracts) (the "Service Contracts") to
Purchaser at Closing, and Purchaser shall assume responsibility and obligations
under the Service Contracts, but only with respect to matters which arise after
the Closing. Seller agrees to terminate any and all management and leasing
agreements affecting the Property as of the Closing Date.
12. LIMITATION OF LIABILITY
A. Subject to the terms of Sections 17 and 18, neither Seller's
partners, nor any Affiliate of Seller, nor any of their respective
beneficiaries, shareholders, partners, officers, directors, agents or employees,
heirs, successors or assigns shall have any personal liability of any kind or
nature for or by reason of any matter or thing whatsoever under, in connection
with, arising out of or in any way related to this Agreement and the
transactions contemplated herein, and Purchaser hereby waives for itself and
anyone who may claim by, through or under Purchaser any and all rights to xxx or
recover on account of any such alleged personal liability.
B. Notwithstanding anything contained herein to the contrary,
Purchaser hereby agrees that any claims made against Seller after the Closing in
connection with, arising out of or in
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any way related to a breach by Seller under this Agreement or any document or
conveyance agreement in connection with the transaction, shall be limited to
claims for actual damages and in no event shall the maximum liability of Seller
in connection with, arising out of or in any way related to a breach by Seller
under this Agreement or any document or conveyance agreement in connection with
the transaction exceed $750,000.
C. This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed and
delivered on behalf of Purchaser by the trustees or officers thereof in their
representative capacity under the Amended and Restated Declaration of Trust of
New Plan Realty Trust dated as of January 15, 1996 and not individually, and
bind only the trust estate of Purchaser, and no trustee, officer, employee,
agent or shareholder of Purchaser shall be bound or held to any personal
liability or responsibility in connection with the agreements, obligations and
undertakings of Purchaser thereunder, and any person or entity dealing with
Purchaser in connection therewith shall look solely to the trust estate for the
payment of any claim or for the performance of any agreement, obligation or
undertaking hereunder. Seller acknowledges and agrees that each agreement and
other document executed by Purchaser in accordance with or in respect of this
transaction shall be deemed and treated to include in all respects and for all
purposes the foregoing exculpatory provision.
13. TENANT CERTIFICATE CONDITION TO CLOSING
A. The following terms have been defined as follows for convenience
of reference:
(i) "Tenant Certificate" means a certificate, commonly known as
an estoppel certificate, signed by a tenant with respect to its Lease,
either in the form set forth on EXHIBIT P hereto or on such other form
as is substantially consistent with the requirements of the tenant's
lease for such certificates.
(ii) "Seller Tenant Certificate" means a Tenant Certificate signed
by the Seller with respect to a particular Lease for which the Tenant
in question has failed to execute and deliver a Tenant Certificate, in
which case the Seller Tenant Certificate shall be in the form of
EXHIBIT P, provided that a Seller Tenant Certificate shall in all
cases (other than the description of the documents constituting the
Lease) be limited to Seller's knowledge as defined in Section 9.A.
above.
(iii) "REA Certificate" means a certificate, signed by any of
Publix Super Markets, Inc., Save and Pack, Inc., or Southtrust Bank of
Jacksonville, N.A., as a party to that certain Easements with
Covenants and Restrictions Affecting Land (the "REA") by and among the
aforesaid and Seller dated June 12, 1985, as amended in the form set
forth in EXHIBIT T.
(iv) "Qualification" means any assertion in a Tenant Certificate,
Seller Tenant Certificate (whether in the form of EXHIBIT P or
otherwise) or REA Certificate of (i) a claim, counterclaim, offset or
defense against the landlord or Seller other than disclosed in EXHIBIT
M, (ii) a default on the part of the landlord or Seller other than
disclosed in EXHIBIT M, (iii) unpaid credits, allowances or other sums
due from the landlord or Seller prior to the date of the estoppel
(other than disclosed on EXHIBIT L or EXHIBIT O or EXHIBIT S attached
hereto or pursuant to a New Lease pursuant to Section 14.J. herein),
(iv) an unfulfilled construction or other obligation on the part of
the landlord or Seller prior to the date of estoppel (other than
disclosed on EXHIBIT L, EXHIBIT O or EXHIBIT S attached hereto or
pursuant to a
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New Lease pursuant to Section 14.J. herein), or (v) information which
is contrary (in an adverse respect to the landlord) (x) to the
information contained in the rent roll or security deposit list
attached hereto as EXHIBITS L and S, respectively, or (y) the
information pertaining to tenant allowances and concessions and
leasing commissions contained on EXHIBIT O;
(v) "Unacceptable Qualification" means any Qualification other
than the following:
(a) a Qualification which is expressly disclosed on the
rent roll attached hereto as EXHIBIT L or the security
deposit listing attached hereto as EXHIBIT S or the
schedule attached hereto as EXHIBIT O or a
Qualification relating to non-payment of April, 1997 or
May, 1997 rent, provided the same is not as a result of
a default by Seller; or
(b) a Qualification expressly disclosed in this Agreement
or the Exhibits attached hereto and made a part hereof.
B. If a Qualification is not an Unacceptable Qualification, it
shall not affect Purchaser's obligations to close hereunder or give rise to
any liability from Seller to Purchaser, unless otherwise set forth in this
Agreement.
C. Seller shall promptly request a Tenant Certificate in the form of
EXHIBIT P from all tenants and an REA Certificate from Publix Super Markets,
Inc., Save and Pack, Inc. and Southtrust Bank of Jacksonville, N.A. in the form
of EXHIBIT T, and shall in good faith pursue the collection of a Tenant
Certificate from all tenants and the aforesaid REA certificates. Seller shall
deliver to Purchaser, upon Seller's receipt thereof, all Tenant Certificates
signed by tenants (whether in the form of EXHIBIT P or otherwise) and all REA
Certificates (whether in the form of EXHIBIT T or otherwise).
D. It shall be a condition to Purchaser's obligations hereunder (the
"Estoppel Condition") that Seller deliver to Purchaser, at or prior to the
Closing (i) a Tenant Certificate from each tenant of the Property occupying or
leasing at least 5,000 square feet (with respect to the space occupied by Xxxxxx
Furniture and Books-A-Million, Seller shall deliver a Tenant Certificate from
Publix Super Markets, Inc. [which shall include an acknowledgment that the right
of first refusal contained in 14 therein does not pertain to the sale
transaction set forth in this Agreement], the tenant pursuant to that certain
ground lease originally made by Safeway Stores, Inc. and subleased to SSI O.K.
Holdings, Inc., subleased to Welcome, Inc., assigned to Publix Super Markets,
Inc. and subsequently subleased to Xxxxxx Furniture which has subleased a
portion to Books-A-Million and Seller shall diligently attempt to obtain a
Tenant Certificate from Xxxxxx Furniture and Books-A-Million but neither the
delivery of a Tenant Certificate or a Seller Tenant Certificate with respect to
Xxxxxx Furniture's or Books-A-Million's tenancy shall be a part of the Estoppel
Condition), in the aggregate, of gross leasable area of the Property ("Major
Tenant"), and (ii) either a Tenant Certificate or Seller Tenant Certificate for
that many of the non-Major Tenants at the Property occupying 100% of the balance
of the leased gross leasable area of the Property. Notwithstanding anything
contained herein to the contrary, it shall not be a condition of this
transaction that Seller receive any REA Certificates. Seller agrees to use its
good faith efforts to obtain Tenant Certificates from all Tenants.
Notwithstanding the foregoing to the contrary, Seller shall not have satisfied
the Estoppel Condition if any of the Tenant Certificates or REA Certificates
received by Seller or Seller Tenant Certificates disclose Unacceptable
Qualifications other than
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Unacceptable Qualifications with an "Estoppel Qualification Sum" (hereinafter
defined) of less than $100,000 in the aggregate. The "Estoppel Qualification
Sum" shall mean the following:
(i) if the claim asserted arises out of a defect which can be
cured, with the expenditure of money on a one time basis, such as an
unsatisfied tenant improvement obligation not otherwise disclosed
herein, then such sum shall be calculated by the amount to satisfy
such obligation (if such a defect is disclosed herein, then the
provisions of this Agreement pertaining to such disclosed defect shall
govern); and
(ii) if the claim asserted affects a continuing obligation of a
tenant under the lease, such as the payment of rent, then the claim
shall be calculated by (i) determining the amount of the claim on a
per annum basis, (ii) multiplying said amount by the number of years
or partial years said claim would affect the monetary obligations
under the lease and (iii) discounting said product on a present value
basis using a discount rate of 9% per annum.
If the Unacceptable Qualifications have an Estoppel Qualification Sum of
less than $100,000 in the aggregate, then Seller shall either (i) grant
Purchaser a credit at Closing for an amount equal to the Estoppel Qualification
Sum, or (ii) cure all conditions giving rise to an Unacceptable Qualification on
or before the Closing, which selection shall be made by Seller in its sole
discretion. Provided Seller performs its covenant in this Section 13.D., the
disclosure of Unacceptable Qualifications having an Estoppel Qualification Sum
of less than $100,000 in the aggregate shall not affect Purchaser's obligations
to close hereunder or give rise to any additional liability from Seller to
Purchaser.
E. If Seller delivers any Seller Tenant Certificates, then upon
receipt after Closing by Purchaser of a Tenant Certificate containing the
information herein required from a tenant under a Lease for whom Seller has
executed and delivered a Seller Tenant Certificate at Closing, the Seller Tenant
Certificate executed and delivered by Seller at Closing shall become null and
void (but only as to information in the Tenant Certificate which is consistent
with that in the Seller Tenant Certificate) and the Tenant Certificate received
from the tenant shall, to the extent of such consistency, be substituted
therefor. Seller's liability under Seller Tenant Certificates shall be limited
pursuant to Section 12 herein.
F. If Seller has not satisfied the Estoppel Condition on or before
the Closing Date, then Purchaser shall have the right to terminate this
Agreement by delivering written notice to Seller on or before the Closing Date.
If Purchaser exercises its rights to terminate in accordance with the terms of
this Section 13.F., this Agreement shall be null and void without further action
of the parties and all Xxxxxxx Money theretofore deposited by Purchaser together
with any interest accrued thereon, shall be returned to Purchaser, and neither
party shall have any further liability to the other, except as specifically set
forth herein. If Purchaser does not terminate this Agreement pursuant to the
first sentence of this Section 13.F., the parties shall proceed to Closing and
(i) Purchaser shall receive a credit at Closing equal to the amount of the
Estoppel Qualification Sum of the Unacceptable Qualifications contained in the
Tenant Certificates and REA Certificates, if any, up to an aggregate amount of
$100,000 or (ii) Seller shall cure all conditions giving rise to an Unacceptable
Qualification Sum up to an aggregate amount of $100,000 on or before Closing.
The selection between subparagraphs (i) or (ii) in the preceding sentence shall
be made by Seller in its sole discretion.
14. MISCELLANEOUS
-20-
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and completely expresses the agreement of the parties. Purchaser
acknowledges that it has inspected or will inspect the Property and that it
accepts same in its "as is" condition subject to use, ordinary wear and tear and
natural deterioration and representations, warranties and agreements
specifically made herein. Purchaser further acknowledges that, except as
expressly provided in this Agreement, neither Seller nor any agent or
representative of Seller has made, and Seller is not liable for or bound in any
manner by, any express or implied warranties, guaranties, promises, statements,
inducements, representations or information pertaining to the Property.
B. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser or Seller without the prior written
approval of the other. Notwithstanding the foregoing, Seller hereby consents to
an assignment to any corporation which is a wholly-owned subsidiary of Purchaser
or to a partnership which is controlled by Purchaser. However, Purchaser shall
remain liable for all of Purchaser's obligations and undertakings set forth
herein occurring on or before the Closing and said assignee shall assume all the
obligations and undertakings hereunder.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Florida.
F. All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and delivered personally, by
certified mail, return receipt requested, postage prepaid, by overnight courier
(such as Federal Express), or by facsimile transmission (with a copy to follow
by either overnight courier or certified mail, return receipt requested, postage
prepaid), addressed as follows:
1. If to Seller:
c/o Equity Properties and Development Limited Partnership
Suite 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
General Counsel and Executive Vice-President
(000) 000-0000
(000) 000-0000 (FAX)
With a copy to:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
(000) 000-0000
-21-
(000) 000-0000 (FAX)
2. If to Purchaser:
New Plan Realty Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(000) 000-0000
(000) 000-0000 (FAX)
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
(000) 000-0000
(000) 000-0000 (FAX)
All notices given in accordance with the terms hereof shall be deemed to have
been duly given when personally delivered, against receipt therefore, signed by
the party to whom the notice is given, or on the next business day if sent by
overnight courier, the same day notice is given if sent by facsimile
transmission and received by 5:00 p.m. Chicago time, or on the fourth business
day after mailing by certified or registered mail. The parties shall have the
right to direct their attorneys to deliver notices hereunder. Either party
hereto may change the address for receiving notices, requests, demands or other
communication by notice sent in accordance with the terms of this Section 14.F.
G. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND PURCHASER'S
OPPORTUNITY TO INSPECT THE PROPERTY, SUBJECT TO THE SPECIFIC REPRESENTATIONS AND
WARRANTIES AND AGREEMENTS MADE HEREIN, PURCHASER AGREES TO TAKE THE PROPERTY "AS
IS" WITH ALL FAULTS AND CONDITIONS THEREON. ANY INFORMATION, REPORTS,
STATEMENTS, DOCUMENTS OR RECORDS ("DISCLOSURES") PROVIDED OR MADE TO PURCHASER
OR ITS CONSTITUENTS BY SELLER, ITS AGENTS OR EMPLOYEES CONCERNING THE
ENVIRONMENTAL CONDITION OF THE PROPERTY SHALL NOT BE REPRESENTATIONS OR
WARRANTIES, UNLESS SPECIFICALLY STATED HEREIN AS A REPRESENTATION OR WARRANTY.
PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT RATHER, PURCHASER SHALL RELY
ONLY ON ITS OWN INSPECTION OF THE PROPERTY AND THE SPECIFIC REPRESENTATIONS AND
WARRANTIES MADE HEREIN. PURCHASER ACKNOWLEDGES AND AGREES THAT EXCEPT AS
SPECIFICALLY CONTAINED HEREIN, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH
RESPECT TO (A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED
FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF
OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY,
-22-
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY
OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE U.S.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED, AND REGULATIONS PROMULGATED
THEREUNDER.
H. Except as may be required by law or as a part of customary
practice by Purchaser and except for disclosures to consultants, the Title
Company and surveyors, governmental authorities, without the prior written
consent of the other party, and unless the Closing occurs, neither party shall
disclose to any third party the existence of this Agreement or any term or
condition thereof or the results of any inspections or studies undertaken in
connection herewith. Purchaser shall have the right to inform tenants of the
Property of the existence of this Agreement, but not the terms thereof. After
the Closing, Purchaser agrees that any press release regarding this transaction
will not disclose the purchase price or the Seller hereunder on an individual
basis.
I. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request and payment therefor at Purchaser's cost,
transfer to Seller all of its right, title and interest in and to any and all
third-party studies, reports and surveys relating to the Property or any part
thereof prepared by or at the request of Purchaser, its employees and agents,
and shall deliver to Seller copies of all of the foregoing.
J. Seller hereby covenants and agrees with Purchaser that:
(a) Seller covenants to operate and manage the Property in the
same manner that it has managed, maintained and operated the Property
during the period of Seller's ownership, subject to reasonable wear
and tear and casualty.
(b) From and after the date hereof through the Closing Date,
Seller shall not enter into any New Lease or new Service Contract, or
any modification, amendment, restatement or renewal of any existing
Service Contracts (collectively, "New Agreements") without Purchaser's
consent, which will not be unreasonably withheld. If Purchaser does
not respond in writing to Seller's request for approval or disapproval
of a New Agreement within three (3) business days after Purchaser's
receipt of Seller's request and the complete copy of said lease and
all other information regarding associated leasing commissions, tenant
improvements and concessions, Purchaser shall be conclusively deemed
to have approved of such New Agreement.
K. RADON GAS PROVISO APPLICABLE TO FLORIDA: Pursuant to Section
404.05618, Florida Statues (1988), the following notification regarding radon
gas is hereby made, and all parties executing this Agreement acknowledge receipt
of this notification:
Radon Gas: "Radon is a naturally occurring radioactive
gas that, 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 that exceed federal and state
guidelines have been found in buildings in Florida. Additional
information regarding radon
-23-
and radon testing may be obtained
from your county public health unit."
L. Seller and Purchaser hereby designate Escrowee to act as and
perform the duties and obligations of the "reporting person" with respect to the
transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller
and Purchaser each agree to execute at Closing, and to cause the Escrowee to
execute at Closing, a Designation Agreement, designating Escrowee as the
reporting person with respect to the transaction contemplated by this Agreement.
M. CONSTRUCTION. The parties hereby agree that each has played an
equal part in the negotiations and drafting of this Agreement, and in the event
any ambiguities should be realized in the construction or interpretation of this
Agreement, the result of those ambiguities shall be equally assumed and realized
by each of the parties to this Agreement.
N. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which shall constitute one and
the same Agreement.
O. PREVAILING PARTIES. Should any litigation be commenced between
the parties hereto or should any party institute any proceeding in a bankruptcy
or similar court which has jurisdiction over any party hereto or any of its
assets concerning any provision of this Agreement or the rights and duties of
any person or entity in relation thereto, the party or parties prevailing in
such litigation shall be entitled, in addition to such other relief as may be
granted, its or their reasonable attorneys' fees and expenses and court costs in
such litigation, which shall be determined by the court in such litigation or in
a separate action brought for that purpose.
15. ACCEPTANCE.
The offer made in this Agreement by Purchaser shall expire and be null
and void unless accepted, signed, and returned to Purchaser by May 7, 1997. This
offer supersedes any and all other offers made by Purchaser with respect to the
Property.
16. RIGHT TO AUDIT. Without limiting any other rights or remedies of
Purchaser, Purchaser shall have the right, if required by law, after the Closing
and up until December 31, 1999 to audit the books and records of Seller in
respect of the Property for those last two entire fiscal years of Seller's
ownership of the Property ending immediately preceding the Closing plus any
"stub" period thereafter to such Closing, which audit shall be at Purchaser's
sole cost and expenses; provided, however, any matters disclosed by such audit
shall not be the basis or the foundation for a claim of a breach of a
representation or warranty by the Seller unless a claim is filed in connection
therewith on or before nine (9) months after the Closing Date.
17. DISTRIBUTIONS. Seller shall not distribute $750,000.00 from the
proceeds of the net cash received from the Purchaser at the Closing prior to
nine (9) months after the Closing. If any time Purchaser alleges claims for
damages against Seller after the Closing Date, but prior to nine (9) months
after the Closing ("Claims"), then after the date which is nine (9) months after
the Closing Seller shall continue to withhold distribution of the funds in an
amount equal to the lesser of (i) the amount of the Claims, or (ii) $750,000.00,
until the Claims are resolved. The Claims shall specify the exact representation
or warranty which was breached and the amount of damages the Purchaser alleges
it has sustained.
-24-
18. EXECUTION BY FIRST CAPITAL. First Capital Income Properties, Ltd. -
Series X, First Capital Income Properties, Ltd. - Series XI and First Capital
Income and Growth Fund - XII execute this Agreement solely for the purpose of
assuring to Purchaser that if Seller fails to withhold the sums required
pursuant to Paragraph 17 above and if Purchaser is successful in any Claims
asserted against the Seller for damages against Seller, then First Capital
Income Properties, Ltd. - Series X, First Capital Income Properties, Ltd. -
Series XI and First Capital Income and Growth Fund - XII shall jointly and
severally pay the amount of such Claim(s), the total of which shall not exceed
$750,000.00.
-25-
19. LIST OF EXHIBITS
Exhibit A Legal Description of the Property
Exhibit B Escrow Agreement
Exhibit C-1 Survey Instructions
Exhibit C-2 Surveyor Certificate
Exhibit D Special Warranty Deed
Exhibit E FIRPTA Affidavit
Exhibit F Xxxx of Sale
Exhibit G Assignment and Assumption of Guaranties and Warranties
Exhibit H Assignment and Assumption of Leases
Exhibit I Assignment and Assumption of Intangibles
Exhibit J Assignment and Assumption of Contracts
Exhibit K Service Contracts
Exhibit L Rent Roll
Exhibit M Litigation
Exhibit N Permits
Exhibit O Tenant Improvements, Free Rent Periods and Leasing Commission
Exhibit P Tenant Estoppel
Exhibit Q Notice to Tenants
Exhibit R Reaffirmation of Representations and Warranties
Exhibit S Security Deposit Listing
Exhibit T REA Certificate
Exhibit U List of Leases
-26-
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
REGENCY PARK ASSOCIATES, an Illinois general
partnership
By: First Capital Income Properties, Ltd. - Series X,
a Florida limited partnership, a general partner
By: First Capital Financial Corporation, a
Florida corporation, a general partner
By:_______________________________________
Name: Xxxxxx Field
Title: Vice-President and Treasurer
By: First Capital Income Properties, Ltd. - Series XI,
a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation
By:_______________________________________
Name: Xxxxxx Field
Title: Vice-President and Treasurer
By: First Capital Income and Growth Fund - Series XII,
a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation
By:_______________________________________
Name: Xxxxxx Field
Title: Vice-President and Treasurer
PURCHASER:
NEW PLAN REALTY TRUST, a Massachusetts business trust
By:_______________________________________
Name:_____________________________________
Its:______________________________________
-27-
JOINDER
-------
The undersigned execute this joinder solely for the purpose of
effectuating its obligations arising under Paragraph 18 of this Agreement.
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES X,
a Florida limited partnership
By: First Capital Financial Corporation, a Florida
Corporation
By:_______________________________________
Name: Xxxxxx Field
Title: Vice-President and Treasurer
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES XI,
a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation
By:_______________________________________
Name: Xxxxxx Field
Title: Vice-President and Treasurer
FIRST CAPITAL INCOME AND GROWTH FUND - SERIES XII,
a Florida limited partnership
By: First Capital Financial Corporation,
a Florida Corporation
By:_______________________________________
Name: Xxxxxx Field
Title: Vice-President and Treasurer
-28-
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
---------------------------------
A PART OF SECTION 24, TOWNSHIP 2 SOUTH, RANGE 27 EAST, XXXXX COUNTY, FLORIDA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE INTERSECTION OF THE NORTHERLY LINE OF XXX 0X XX XXXXX XX XXX XXX
XX XXXXXXXXX XXXXXXX UNIT ONE, AS RECORDED IN PLAT BOOK 18, PAGES 55 AND 55A, OF
THE CURRENT PUBLIC RECORDS OF SAID COUNTY WITH THE EASTERLY RIGHT OF WAY LINE OF
SOUTHSIDE BOULEVARD (STATE ROAD NO. 115); THENCE NORTH 00 DEGREES 13 MINUTES 10
SECONDS WEST ALONG SAID EASTERLY RIGHT OF WAY LINE A DISTANCE OF 92.80 FEET TO
AN ANGLE POINT IN SAID RIGHT OF WAY LINE; THENCE NORTH 28 DEGREES 16 MINUTES 05
SECONDS EAST ALONG SAID EASTERLY RIGHT OF WAY LINE A DISTANCE OF 263.68 FEET TO
ITS INTERSECTION WITH THE SOUTHEASTERLY RIGHT OF WAY LINE OF ATLANTIC BOULEVARD
(STATE ROAD NO. 10); THENCE NORTH 56 DEGREES 45 MINUTES 20 SECONDS EAST ALONG
SAID SOUTHEASTERLY RIGHT OF WAY LINE OF ATLANTIC BOULEVARD A DISTANCE OF 592.51
FEET TO THE POINT OF BEGINNING; THENCE CONTINUE NORTH 56 DEGREES 45 MINUTES 20
SECONDS EAST ALONG SAID SOUTHEASTERLY RIGHT OF WAY LINE A DISTANCE OF 80.00
FEET; THENCE SOUTH 33 DEGREES 14 MINUTES 30 SECONDS EAST A DISTANCE OF 199.13
FEET; THENCE NORTH 56 DEGREES 45 MINUTES 20 SECONDS EAST A DISTANCE OF 210.00
FEET; THENCE NORTH 44 DEGREES 13 MINUTES 06 SECONDS EAST A DISTANCE OF 122.47
FEET; THENCE NORTH 33 DEGREES 14 MINUTES 40 SECONDS WEST A DISTANCE OF 172.55
FEET TO THE AFOREMENTIONED SOUTHEASTERLY RIGHT OF WAY LINE OF ATLANTIC
BOULEVARD; THENCE NORTH 56 DEGREES 45 MINUTES 20 SECONDS EAST ALONG SAID RIGHT
OF WAY LINE A DISTANCE OF 379.24 FEET TO AN ANGLE POINT IN SAID RIGHT OF WAY
LINE; THENCE NORTH 56 DEGREES 43 MINUTES 20 SECONDS EAST ALONG SAID
SOUTHEASTERLY RIGHT OF WAY LINE OF ATLANTIC BOULEVARD A DISTANCE OF 414.43 FEET
TO THE POINT OF A CURVE TO THE RIGHT, SAID CURVE BEING CONCAVE SOUTHEASTERLY AND
HAVING A RADIUS OF 5679.65 FEET; THENCE NORTHEASTERLY ALONG SAID SOUTHEASTERLY
RIGHT OF WAY LINE OF ATLANTIC BOULEVARD ALONG AND AROUND SAID CURVE AN ARC
DISTANCE OF 58.72 FEET, SAID ARC BEING SUBTENDED BY A CHORD BEARING AND DISTANCE
OF NORTH 57 DEGREES 01; MINUTE 06 SECONDS EAST A DISTANCE OF 58.72 FEET TO THE
NORTHWESTERLY CORNER OF LANDS DESCRIBED AND RECORDED IN OFFICIAL RECORDS VOLUME
5591, PAGE 896; THENCE ALONG THE SOUTHWESTERLY, SOUTHEASTERLY AND NORTHEASTERLY
LINE OF SAID LANDS DESCRIBED IN OFFICIAL RECORDS VOLUME 5591, PAGE 896, THE
FOLLOWING THREE COURSES AND DISTANCES: COURSE NO. 1 - SOUTH 33 DEGREES 14
MINUTES 45 SECONDS EAST, 194.58 FEET; COURSE NO. 2 - NORTH 56 DEGREES 45 MINUTES
20 SECONDS EAST, 199.86 FEET; COURSE XX. 0 - XXXXX 00 XXXXXXX 00 XXXXXXX 00
XXXXXXX XXXX; 36.64 FEET TO THE SOUTHWESTERLY CORNER OF LANDS DESCRIBED AND
RECORDED IN OFFICIAL RECORDS VOLUME 5559, PAGE 94; THENCE NORTH 56 DEGREES 45
MINUTES 20 SECONDS EAST ALONG THE SOUTHEASTERLY LINE OF SAID LANDS A DISTANCE OF
100.00 FEET TO THE SOUTHEASTERLY CORNER OF SAID LANDS; THENCE SOUTH 33 DEGREES
14 MINUTES 40 SECONDS EAST A DISTANCE OF 222.87 FEET TO THE POINT OF A CURVE TO
THE RIGHT, SAID CURVE BEING CONCAVE WESTERLY AND HAVING A RADIUS OF 480.00 FEET;
THENCE SOUTHEASTERLY ALONG AND AROUND SAID CURVE AN ARC DISTANCE OF 376.99 FEET
TO THE POINT OF TANGENCY OF SAID CURVE, SAID ARC BEING SUBTENDED BY A CHORD
BEARING AND DISTANCE OF SOUTH 10 DEGREES
A-1
44 MINUTES 40 SECONDS EAST A DISTANCE OF 367.38 FEET; AND THENCE SOUTH 11
DEGREES 45 MINUTES 20 SECONDS WEST A DISTANCE OF 731.43 FEET; THENCE SOUTH 89
DEGREES 42 MINUTES 25 SECONDS WEST A DISTANCE OF 731.43 FEET; THENCE SOUTH 89
DEGREES 42 MINUTES 25 SECONDS WEST A DISTANCE OF 1077.35 FEET; THENCE NORTH 33
DEGREES 14 MINUTES 30 SECONDS WEST A DISTANCE OF 651.44 FEET TO THE POINT OF
BEGINNING.
THE PARTIES AGREE THAT, UPON RECEIPT OF THE TITLE COMMITMENT AND SURVEY, THE
LEGAL DESCRIPTION WILL BE REVISED ACCORDINGLY.
A-2
EXHIBIT B
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT is made and entered into on this 8th day of May,
1997, by and among REGENCY PARK ASSOCIATES, an Illinois general partnership
("SELLER"), NEW PLAN REALTY TRUST, a Massachusetts business trust (the
"PURCHASER") and CHICAGO TITLE INSURANCE COMPANY (the "ESCROW AGENT");
WITNESSETH:
----------
WHEREAS, Seller and Purchaser have entered into an agreement dated May __,
1997 (the "AGREEMENT"), providing for the sale by Seller of property located in
Jacksonville, Florida and known as Regency Park Shopping Center (the
"PROPERTY"); and
WHEREAS, the parties wish to enter into this Escrow Agreement to provide
for the holding and disposition of the xxxxxxx money under the Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Concurrently with execution of this Escrow Agreement, Purchaser has
delivered to Escrow Agent funds in the amount of $300,000.00, (the "XXXXXXX
MONEY"). Escrow Agent acknowledges receipt of a check or funds representing the
Xxxxxxx Money.
2. On or before forty (40) days after the date hereof (the "DUE DILIGENCE
DATE"), Purchaser may deliver to Escrow Agent and Seller a "SATISFACTION NOTICE"
(as defined in the Agreement). In the event that Purchaser does not deliver to
Escrow Agent and Seller the Satisfaction Notice on or before the Due Diligence
Date, Escrow Agent shall promptly deliver to Purchaser the Xxxxxxx Money,
together with all interest earned thereon, and this Escrow Agreement shall be
null and void.
3. Unless terminated pursuant to Paragraph 2 above, on the date which is
forty-five (45) days after the date hereof or at such other date as Seller and
Purchaser may, in writing, advise Escrow Agent is the applicable closing date
(the "CLOSING DATE"), and provided Seller has satisfied all its conditions to
Closing, Seller has delivered to Escrow Agent fully executed closing documents
and Escrow Agent is prepared to deliver a marked-up title commitment to
Purchaser in accordance with the terms of the Agreement, Escrow Agent shall
deliver all funds then held in the escrow to Seller. However, if Purchaser has
delivered an Affidavit of Seller's Default to Escrow Agent, on or before the
Closing Date, in substantially the form of SCHEDULE 1, subscribed and sworn to
by Purchaser, specifying the default or defaults of Seller, then Escrow Agent
shall not deliver the funds to Seller, but shall continue to hold the funds
until advised in writing by both Seller and Purchaser or until directed by
judicial order to disburse the funds.
4. Escrow Agent shall invest the funds in an interest bearing account, in a
financial institution which has FDIC insurance covering up to $100,000 of such
funds. Interest shall accrue to the benefit of Purchaser.
5. It is agreed that the Escrow Agent shall have no obligation or liability
hereunder except as a depositary to retain the cash which may be deposited with
it hereunder and to dispose of the same in accordance with the terms hereof. The
Escrow Agent shall be entitled to rely and act upon any written instrument
received by it from either party, and if a corporation or trust, purporting to
be
B-1
executed by an officer thereof, and if a partnership, purporting to be executed
by a general partner thereof and shall not be required to inquire into the
authority of such officer or partner or the correctness of the facts stated in
said instrument. Upon disposition by the Escrow Agent, in accordance with the
terms hereof, of the cash deposited with the Escrow Agent hereunder, the Escrow
Agent shall be fully and finally released and discharged from any and all
duties, obligations, and liabilities hereunder.
6. In the event of a dispute between any of the parties hereto as to their
respective rights and interests hereunder, the Escrow Agent shall be entitled to
hold any and all cash then in its possession hereunder until such dispute shall
have been resolved by the parties in dispute and the Escrow Agent shall have
been notified by instrument jointly signed by all of the parties in dispute, or
until such dispute shall have been finally adjudicated by a court of competent
jurisdiction or to interplead the funds into a court of competent jurisdiction.
7. Any notice which any party may deemed to have been duly given when
personally delivered, against receipt therefor signed by be required or may
desire to the party to whom the notice is given, or with respect to any party
other than the Escrow Agent, give hereunder shall be on the next business day if
sent by overnight courier, the same day as given if sent by facsimile
transmission and received by 5:00 p.m. Chicago time, or on the fourth business
day after mailing by certified or registered mail, postage prepaid, addressed as
set forth below, or to such other address as a party hereto may designate by a
notice to the other parties. Any notice mailed, sent by facsimile transmission,
or given to the Escrow Agent shall be deemed given only when received. The
parties shall have the right to direct their attorneys to deliver notices
hereunder.
Seller: Purchaser:
c/o Equity Properties and Development New Plan Realty Trust
Limited Partnership 1120 Avenue of the Americas
Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000
Two North Riverside Plaza Attention: General Counsel
Chicago, Illinois (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq. (000) 000-0000 (FAX)
General Counsel and
Executive Vice-President
(000) 000-0000
(000) 000-0000 (FAX)
Copy to: Copy to:
Xxxxxx Xxxxxx & Xxxxx Xxxxxxxxx & Xxxx
000 Xxxx Xxxxxx 00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq. Attention: Xxxxxx X. Xxxxxxxx, Esq.
(000) 000-0000 (000) 000-0000
(000) 000-0000 (FAX) (312) 000- 0000 (FAX)
B-2
Escrow Agent:
Chicago Title Insurance Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: _________________
(000) 000-0000
(312) ________ (FAX)
8. The Escrow Agent hereby agrees to accept, as Escrow Agent hereunder, all
cash and other monetary deposits deposited hereunder, and agrees to hold and
dispose of said cash and other monetary deposits deposited hereunder in
accordance with the terms and provisions hereof, to all of which terms and
provisions the Escrow Agent hereby consents and agrees.
9. This Escrow Agreement and all of the provisions hereof shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
legal representatives, successors and assigns.
10. This Escrow Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
11. This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed and
delivered on behalf of Purchaser by the trustees or officers thereof in their
representative capacity under the Amended and Restated Declaration of Trust of
New Plan Realty Trust dated as of January 15, 1996 and not individually, and
bind only the trust estate of Purchaser, and no trustee, officer, employee,
agent or shareholder of Purchaser shall be bound or held to any personal
liability or responsibility in connection with the agreements, obligations and
undertakings of Purchaser thereunder, and any person or entity dealing with
Purchaser in connection therewith shall look solely to the trust estate for the
payment of any claim or for the performance of any agreement, obligation or
undertaking hereunder. Seller and Escrow Agent acknowledge and agree that each
agreement and other document executed by Purchaser in accordance with or in
respect of this transaction shall be deemed and treated to include in all
respects and for all purposes the foregoing exculpatory provision.
[EXECUTION PAGE FOLLOWS]
B-3
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed the day and year first above written.
PURCHASER:
---------
NEW PLAN REALTY TRUST, a Massachusetts
business trust
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
SELLER:
------
REGENCY PARK ASSOCIATES, an Illinois general
partnership
By: First Capital Income Properties, Ltd.-Series
X, a Florida limited partnership, a general
partner
By: First Capital Financial Corporation, a
Florida corporation, a general partner
By:
-------------------------
Name:
-----------------------
Its:
-----------------------
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
--------------------
Its: Authorized Agent
B-4
SCHEDULE 1
AFFIDAVIT OF SELLER'S DEFAULT
-----------------------------
State of )
) SS.
County of )
The undersigned, having been first duly sworn, does hereby affirm, depose
and state that Regency Park Associates, an Illinois general partnership, as
Seller under that certain Agreement of Sale dated May 8, 1997, providing for
the sale of property located in Jacksonville, Florida and known as Regency Park
Shopping Center has defaulted under the Agreement of Sale in the following
respects:
The undersigned demands return of all xxxxxxx money deposited under the
Agreement of Sale pursuant to his right therein.
IN WITNESS WHEREOF, the undersigned has executed this Affidavit on this ___
day of April, 1997.
NEW PLAN REALTY TRUST, a Massachusetts
business trust
By:
-----------------------------------
Name:
---------------------------------
Its:
---------------------------------
Subscribed and sworn to before
me, a Notary Public in and for
said County and State.
-----------------------------------
Notary Public
B-5
EXHIBIT C-1
NEW PLAN REALTY TRUST
SURVEY INSTRUCTIONS
-------------------
The Survey will be prepared in accordance with the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys" jointly established and adopted
by ALTA and ACSM in 1992, and include items 1, 2, 3, 4, 6, 7(a), 7(b)(1),
7(b)(2), 7(c), 8, 9, 10, 11 and 13 on Table A thereof and pursuant to the
Accuracy Standards (as adopted by ALTA and ACSM and in effect on the date of the
surveyor's certification) of an "Urban" survey. Without limiting the foregoing,
such Survey shall show: (i) the location of the perimeter of the Land by courses
and distances and its square footage and acreage, (ii) the location of all
improvements and the relationship thereof by distances to the perimeter of the
Land, the building and set-back lines, and the street lines, (iii) the lines of
the streets abutting the Land and the width of such streets, (iv) any
encroachments and the extent thereof in feet and inches upon the Land, (v) any
encumbrances of a physical nature, (vi) the location, by spotting, of any
improvements on adjoining property within ten feet of the perimeter of the Land
and (vii) the square footage of the footprint of each separate store premises.
Such Survey also shall show all zoning and zoning-related data and information
required by Purchaser and Title Company and said surveyor shall cooperate with
and assist whomever shall be working towards and furnishing zoning and zoning-
related compliance assurances and coverages to Purchaser.
C-1-1
SURVEY REVIEW
-------------
a. General:
i. Legend:
1) Surveyor's name
------- 2) Surveyor's phone and fax number
------- 3) Surveyor's address
------- 4) Surveyor's job number
------- 5) Date ore revision date
------- 6) General description of property (street addresses)
------- 7) Scale
-------
------- ii. North arrow and basis of bearings
------- iii. Legend for symbols
------- iv. Vicinity Map
b. Legal Description:
i. Caption:
------- 1) State reference
------- 2) County reference
------- ii. Coordination of description:
------- 1) Metes and bounds calls compared with drawing (trace
legal description on drawing)
------- 2) Compared with Title Policy
------- iii. Insured easements descriptions
c. Certificate:
------- i. Signed
------- ii. Sealed
------- iii. Dated
iv. Addressed to:
1) Purchaser
------- 2) Lender
------- 3) Title Company
------- v. Certified as shown on Exhibit A attached hereto
-------
d. Notes:
------- i. Set-back and height restrictions (if any)
ii. Flood Hazards:
------- 1) None exists
------- 2) Exists (Reference to applicable flood insurance rate
map)
------- iii. Specify easements that are blanket easements that apply to
property but cannot be located on drawing, or note that
certain exceptions shown on the title commitment do not
apply to property
------- iv. Applicable zoning classification
v. Fault Lines:
------- 1)None exists
------- 2) Exist (Reference to recent map of fault lines)
C-1-2
------- vi. Indicate number of regular and handicapped vehicular parking
spaces
e. Drawing:
------- i. Point of Commencement: shown and labelled
------- ii. Bearing and distance to Point of Beginning
------- iii. Point of Beginning shown and labelled
iv. Boundary lines:
------- 1) Bearing (direction in degrees, minutes, seconds or
curves)
------- 2) Distances (feet and hundredths of feet)
------- 3) Legal description closes
------- v. Adjoining property shown and labelled
------- vi. Total gross acreage and square footage
------- vii. Access to public street:
------- 1) Label streets as "Dedicated, accepted and open public
street"
------- 2) Label right-of-way line on drawing which should be
contiguous with boundary line
------- 3) Show width of right-of-way
viii. Title Exceptions located and labelled:
------- 1) Name of document or easement
------- 2) Located and shown; if feasible, location of easements
should be color-coded with title exceptions
------- 3) Dimensions
------- 4) Recording data given
ix. Set-back lines:
------- 1) Shown
------- 2) Labelled (Plat, ordinance or restrictive covenant
reference)
x. Insured easements:
------- 1) Shown and labelled
------- 2) Bearing and distances
------- 3) Coordination of description (Title, survey and
documents)
xi. Improvements:
------- 1) Shown and labelled
------- 2) Horizontal distances shown
------- 3) Vertical distances (height) shown
------- 4) Distances to boundaries, easements, streets,
set-back lines
------- 5) Square footage of footprint of each building (and if a
shopping center, each store premises within the
building)
xii. Encroachments from or onto adjoining properties or onto
easements:
------- 1) Dimensions
------- 2) Details
------- 3) Type
xiii. Fences:
------- 1) On boundary line
------- 2) Encroachment onto adjacent property
------- 3) Protrusion into subject property
xiv. Utility lines and facilities (e.g. telephone, water, gas,
electric, storm sewers, sanitary sewers, cable):
C-1-3
____ 1) Shown and labelled to extent feasible (can be based
on utility or engineering drawings), including
indication that they originate from a public way or
easements benefitting property
____ 2) Type and size
____ 3) Source of information
xv. Parking:
____ 1) Shown
____ 2) Designate as regular or handicapped vehicular spaces
xvi. Multiple tracts:
____ 1) No gaps
____ 2) Common boundary line called and tied
____ xvii. Curbs, driveways and sidewalks, including all curb-cuts
shown
____ xviii. Any physical objects not reflected in title commitment
____ xix. Water bodies and courses shown
C-1-4
SCHEDULE 1
PARKING TABULATIONS EXISTING PARKING
-------------------------------------------------------------
Zoning Classifications =______ Handicapped Spaces (___ X ___) = ____
Regular Spaces (__ X __) = ____
REQUIRED REGULAR SPACES: (if for retail)___________________ TOTAL = ___
-----------------------
ZONING ______________
RETAIL SHOPS:
1 space per each ________ S.F. = __________
ON-SITE RESTAURANT:
1 space per each _____ seats = __________
ZONING ______________
Professional Offices:
1 space per each _______S.F. = __________
Spaces Required: = _________ spaces
Spaces Provided: = _________ spaces
HANDICAPPED SPACES:
------------------
Spaces Required: = _______% of total spaces = __________ spaces
Spaces Provided: = _________ spaces
EXHIBIT C-2
-----------
SURVEYOR CERTIFICATE
--------------------
The undersigned hereby certifies to New Plan Realty Trust, Regency Park
Associates and Chicago Title Insurance Company that the Survey prepared by me
entitled "Land Title Survey" was actually made upon the ground and that it and
the information, courses and distances shown thereon are correct; that the title
lines and lines of actual possession are the same; and the Survey correctly
shows: (i) the size, location and type of all buildings, structures and other
improvements situated on the premises described therein; that, except as shown,
there are (A) no visible or recorded easements or rights-of-way across said
premises or any other easements or rights-of-way of which the undersigned has
been advised or which appear from a careful inspection of said premises, (B) no
party walls, (C) no encroachments on adjoining premises, easements, streets or
alleys by any of said buildings, structures or other improvements, and (D) no
encroachments on said premises by buildings, structures or other improvements
situated on the adjoining premises; (ii) the courses and measured distances of
the exterior property lines of the premises and any easements located on or
affecting the same premises; (iii) the location and number of regular and
handicapped parking spaces and the total square foot area of said premises and
any easements located on or affecting said premises; (iv) the dimensions of all
improvements on said premises at ground surface level and the distance therefrom
to the nearest facing exterior property lines of said premises; and (v) the
scale, the north direction, the beginning point, the distance to the nearest
intersection, street and point of reference from which said premises are
measured, the width of the street or streets on which said premises abut, the
lot and block number shown on any field map to which reference is made in the
legal description of said premises together with the filing date of such map and
an accurate reference to the real estate records of _________________,
_______________, identifying all easements of record crossing or affecting said
premises. The undersigned further certifies that all streets abutting said
premises and all means of ingress and egress for said premises have been
completed, dedicated and accepted by the City of _______________. The
undersigned further certifies that there are no volitions of zoning ordinances,
restrictions or other rules and regulations with reference to the location of
said buildings and improvements and that all utility services required for the
operation of said premises either enter said premises through adjoining public
streets, or the Survey shows the point of entry and location of any utilities
which pass through or are located on adjoining private land; that the Survey
shows the location and direction of all storm drainage systems for the
collection and disposal of all roof and surface drainage, and that any discharge
into streams, rivers or other conveyance system is shown on the Survey. Except
as shown on the Survey, no part of said premises lies within a 100-year flood
plain or in an identified "flood prone area" or an area which is subject to
"special flood hazard" as defined by the U.S. Department of Housing and Urban
Development, pursuant to the Flood Disaster Act of 1973, as amended, and as
depicted on any maps entitled "Flood Insurance Rate Map," "Flood Hazard Floodway
Boundary Map," "Flood Hazard Boundary Map" or "Flood boundary Floodway Map"
published by the Federal Emergency Management Agency or a Flood Hazard Boundary
Map published by the U.S. Department of Housing and Urban Development. There is
no fault line on any portion of the premises as disclosed by a careful visual
inspection of the premises or as indicated on the most recent map of fault lines
in the County in which the premises are located, prepared by the Department of
Interior, U.S. Geological Survey in cooperation with the National Aeronautics
and Space Administration.
__________________________________
By:_______________________________
C-2-1
EXHIBIT D
SPECIAL WARRANTY DEED
---------------------
STATE OF FLORIDA )
) [TO CONFORM TO FLORIDA]
_____________ COUNTY )
KNOW ALL MEN BY THESE PRESENTS, That in consideration of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, in hand paid by the
grantee herein, the receipt of which is hereby acknowledged, REGENCY PARK
ASSOCIATES, an Illinois general partnership ("Grantor"), does by these presents,
sell, grant, bargain and convey unto NEW PLAN REALTY TRUST, a Massachusetts
business trust (hereinafter referred to as "Grantee"), the real estate, situated
in ___________________________ County, Florida, to-wit:
See EXHIBIT A which is attached hereto and incorporated herein by
reference.
SUBJECT TO:
1. Taxes for the year 1997 which are not yet due and payable.
2. Those matters set forth on EXHIBIT B, a copy of which is attached
hereto and incorporated herein by reference.
TO HAVE AND TO HOLD, To the said Grantee, its heirs and assigns, forever.
And said Grantor does, for itself, its successors and assigns, covenant with
said Grantee, its successors and assigns, that it is lawfully seized in fee
simple of said real estate, that said real estate is free from all encumbrances
unless otherwise noted above, that it has a good right to sell and convey the
same as aforesaid, and that it will, and its successors and assigns shall
warrant and defend the same to the said Grantee, its successors and assigns
forever, against the lawful claims of all persons claiming by, through or under
Grantor, but not otherwise.
D-1
IN WITNESS WHEREOF, the said Grantor has hereto set its signatures this the
______ day of _______________, 1997.
WITNESSES: REGENCY PARK ASSOCIATES, an Illinois
general partnership
By: First Capital Income Properties, Ltd. - Series X, a
Florida limited partnership, a general partner
------------
Print Name By: First Capital Financial Corporation, a Florida
corporation, a general partner
By:_____________________________
_______________ Name:___________________________
Its:____________________________
_______________
Print Name
STATE OF FLORIDA )
)
_______________ COUNTY )
The foregoing instrument was acknowledged before me this _______ day of
__________________, 1997 by: ______________________________, who is personally
known to me and who presented a driver's license as identification and did not
take an oath and who executed same for the purposes set forth herein.
Given under my hand and official seal this _______ day of _____________,
1997.
____________________________________
Notary Public
My Commission Expires:______________
D-2
Prepared by:
________________
________________
________________
________________
Send Tax Notice to:
New Plan Realty Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
D-3
EXHIBIT A
LEGAL DESCRIPTION
-----------------
EXHIBIT B
EXCEPTIONS
----------
D-5
EXHIBIT E
CERTIFICATION OF NON-FOREIGN STATUS
-----------------------------------
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform New Plan Realty Trust, a Massachusetts business trust (the
"Transferee") that withholding of tax is not required upon the disposition of a
U.S. real property interest by REGENCY PARK ASSOCIATES, an Illinois general
partnership (the "Transferor"), the undersigned hereby certifies to Transferee
on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. The Transferor's U.S. employer identification number is _____________;
and
3. The Transferor's office address is ___________________________
The undersigned understands that this Certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
This Certification is made with the knowledge that New Plan Realty Trust, a
Massachusetts business trust, is relying upon this Certification in purchasing
property from the Transferor.
Under penalties of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief, it is true, correct
and complete, and I further declare that I have authority to sign this document
on behalf of the Transferor.
Date:_________________
WITNESSES: REGENCY PARK ASSOCIATES, an Illinois
general partnership
______________________ By: First Capital Income Properties,
Ltd. - Series X, a Florida limited
______________________ partnership, a general partner
Print Name
By: First Capital Financial
Corporation, a Florida
corporation, a general partner
______________________ By:__________________________
Print Name Name:________________________
Its:_________________________
E-1
EXHIBIT F
XXXX OF SALE
------------
STATE OF FLORIDA )
)
____________ COUNTY )
KNOW ALL PERSONS BY THESE PRESENTS, that for good and valuable
consideration, and in consummation of that certain purchase of Regency Park
Shopping Center, Jacksonville, Florida (the "Property") between REGENCY PARK
ASSOCIATES, an Illinois general partnership (the "Grantor"), and NEW PLAN REALTY
TRUST, a Massachusetts business trust (the "Grantee"), the undersigned Grantor
does hereby sell, assign, transfer, grant, deliver, effective as of _______ a.m.
on ____________________, 1997, all of the property and assets set forth below.
TO HAVE AND TO HOLD, said property and assets unto the Grantee, its
successors and assigns, to and for its or their use forever:
1. All of the personal property set forth on EXHIBIT A, and also all
other furniture, furnishings, fixtures, equipment, maintenance vehicles and
tools and personal property which is located at or used in connection with the
Property, excluding therefrom any of the foregoing non-EXHIBIT A items owned by
tenants located on the Property and excluding computer software.
2. All phone listings under the name Regency Park Shopping Center (other
than Grantor's corporate listing) and the right to use the phone numbers for
such listings.
Grantor does hereby warrant, covenant and agree with Grantee that it:
(a) has good and marketable title to all of its property and assets
hereby sold, transferred and assigned to Grantee and all right and power to
assign the same and that all property and assets are free and clear of all
liens, claims and encumbrances; and
(b) will warrant and defend the sale of said property and assets
against all and every person or persons whomsoever otherwise claiming by,
through or under Grantor but not otherwise, other than with respect to
liabilities and obligations being assumed by Grantee.
GRANTEE HEREBY WAIVES ANY AND ALL WARRANTIES OF MERCHANTABILITY OR
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PERSONAL
PROPERTY BEING TRANSFERRED BY THIS INSTRUMENT.
F-1
IN WITNESS WHEREOF, Grantor has caused these presents to be executed on
its behalf by its _____________________ on this _________ of
________________________, 1997.
WITNESSES: REGENCY PARK ASSOCIATES, an Illinois general
partnership
By: First Capital Income Properties, Ltd.- Series X,
__________________ a Florida limited partnership, a general partner
__________________
Print Name
By: First Capital Financial Corporation, a Florida
corporation, a general partner
__________________
__________________ By:___________________________
Print Name Name:_________________________
Its:__________________________
STATE OF FLORIDA )
)
_____________ COUNTY )
The foregoing instrument was acknowledged before me this _____ day of
___________, 1997 by: ___________________, ___________________ of
________________________________, who is personally known to me and who
presented a driver's license as identification and did not take an oath and who
executed same for the purposes set forth herein.
Given under my hand and official seal this _____ day of ______________,
1997.
________________________________
Notary Public
My Commission Expires:__________
F-2
EXHIBIT A
PERSONAL PROPERTY
-----------------
EXHIBIT G
STATE OF FLORIDA )
)
_________________ COUNTY )
ASSIGNMENT OF GUARANTIES AND WARRANTIES
---------------------------------------
THIS ASSIGNMENT made on this the _____ day of ___________________, 1997, by
REGENCY PARK ASSOCIATES, an Illinois general partnership (herein, the
"Assignor"), to NEW PLAN REALTY TRUST, a Massachusetts business trust (herein,
the "Assignee").
R E C I T A L S:
- - - - - - - -
A. Effective contemporaneously herewith, pursuant to a Real Estate Sale
Agreement between Assignor and Assignee (the "SALE AGREEMENT") Assignor has
conveyed to Assignee certain real property described on EXHIBIT A (the
"Property") located in ____________ County, Florida.
B. In connection with the sale of the Property, Assignor agreed to
transfer, convey and assign to Assignee all guaranties, warranties and
indemnifications with respect to Assignor's real property, improvements and
personal property (the "Guaranties and Warranties").
C. Assignor possesses all right, title, and interest in and to the
Guaranties and Warranties, and Assignor desires to sell, assign, convey, and
transfer the Guaranties and Warranties, and Assignee desires to accept said
sale, assignment, conveyance, and transfer upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the purchase of the Property and of the
mutual covenants herein set forth and for Ten Dollars ($10.00) and other good
and valuable consideration, the parties hereto agree as follows:
1. Assignor hereby sells, assigns, and transfers to Assignee all of
Assignor's interest in and to all of Assignor's Guaranties and Warranties in
favor of Assignor for all personal property conveyed to Assignee, including
electrical appliances, refrigerators, ovens or other personal property, all real
property, roof, structural portions of the building, paving, and otherwise, as
well as any termite bonds on the Property.
2. This Assignment shall be binding on the successors and assigns of the
parties hereto. The parties hereto shall execute such further and additional
documents as may be necessary to evidence or carry out the provisions of this
Assignment.
3. The terms of limitation of liability contained in Section 12 of the
Sale Agreement are incorporated herein by reference.
G-1
IN WITNESS WHEREOF, the parties hereto have executed or have caused this
Assignment to be properly executed on the day and year set forth above.
WITNESSES: ASSIGNOR:
________________ REGENCY PARK ASSOCIATES, an Illinois general partnership
________________ By: First Capital Income Properties, Ltd.-Series X, a
Print Name Florida limited partnership, a general partner
By: First Capital Financial Corporation, a Florida
________________ corporation, a general partner
________________ By:__________________________
Print Name Name:________________________
Its:_________________________
G-2
EXHIBIT H
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
---------------------------------------------------------
KNOW ALL MEN BY THESE PRESENTS:
THAT REGENCY PARK ASSOCIATES, an Illinois general partnership ("Assignor"),
in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby effective ________________, 1997 (the "Effective
Date"), assign, transfer and set over absolutely unto NEW PLAN REALTY TRUST, a
Massachusetts business trust ("Assignee"), those certain leases described on
attached EXHIBIT A (the "Leases"), together with all of Assignor's right, title
and interest thereunder and any and all deposits made thereunder by way of
security, if any, and any accrued interest thereon, subject, however, to all the
terms covenants and conditions contained therein.
The Assignee hereby assumes and covenants to perform all of the obligations
of the Assignor under the Leases from and after the date hereof, including,
without limitation, the obligation to return the security deposits under the
Leases, if required by the Leases and only to the extent delivered by Assignor
to Assignee.
The terms of limitation of liability contained in Section 12 of that
certain Real Estate Sale Agreement (the "Sale Agreement") between Assignor and
Assignee for the sale of Regency Park Shopping Center, Jacksonville, Florida,
are incorporated herein by reference.
This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed and
delivered on behalf of Purchaser by the trustees or officers thereof in their
representative capacity under the Amended and Restated Declaration of Trust of
New Plan Realty Trust dated as of January 15, 1996 and not individually, and
bind only the trust estate of Purchaser, and no trustee, officer, employee,
agent or shareholder of Purchaser shall be bound or held to any personal
liability or responsibility in connection with the agreements, obligations and
undertakings of Purchaser thereunder, and any person or entity dealing with
Purchaser in connection therewith shall look solely to the trust estate for the
payment of any claim or for the performance of any agreement, obligation or
undertaking hereunder. Seller acknowledges and agrees that each agreement and
other document executed by Purchaser in accordance with or in respect of this
transaction shall be deemed and treated to include in all respects and for all
purposes the foregoing exculpatory provision.
H-1
IN WITNESS WHEREOF, Assignor and Assignee have caused their hands and seals
to be set this _____ day of ________________, 1997.
WITNESSES: ASSIGNOR:
REGENCY PARK ASSOCIATES, an Illinois general partnership
_________________
By: First Capital Income Properties, Ltd. - Series X, a
_________________ Florida limited partnership, a general partner
Print Name
By: First Capital Financial Corporation, a Florida
corporation, a general partner
_________________
By:
_________________ Name:
Print Name Its:
ASSIGNEE:
NEW PLAN REALTY TRUST, a Massachusetts business trust
By:________________________
Name:______________________
Its:_______________________
H-2
EXHIBIT I
ASSIGNMENT OF INTANGIBLES
-------------------------
STATE OF FLORIDA )
)
______ COUNTY )
THIS ASSIGNMENT made as of the _____ day of ___________________, 1997, by
REGENCY PARK ASSOCIATES, an Illinois general partnership (herein, the
"Assignor"), to NEW PLAN REALTY TRUST, a Massachusetts business trust (herein,
the "Assignee").
R E C I T A L S:
- - - - - - - -
A. Effective as of the date hereof, Assignor has conveyed to Assignee
certain real property described on EXHIBIT A (the "Property") located in
Jacksonville, Florida.
B. In connection with the sale of the Property, Assignor agreed to
transfer, convey and assign to Assignee all of its transferable rights in any
intangibles and intellectual property with respect to the Property (the
"Intangibles"). The Intangibles are described on EXHIBIT B which is attached
hereto and incorporated herein by reference.
C. Assignor desires to sell, assign, convey, and transfer all of its
rights in the Intangibles, and Assignee desires to accept said sale, assignment,
conveyance, and transfer upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the purchase of the Property and of the
mutual covenants herein set forth and for Ten Dollars ($10.00) and other good
and valuable consideration, the parties hereto agree as follows:
1. Assignor hereby sells, assigns, and transfers to Assignee all of
Assignor's interest in and to the Intangibles in favor of Assignor.
2. This Assignment shall be binding on the successors and assigns of the
parties hereto. The parties hereto shall execute such further and additional
documents as may be necessary to evidence or carry out the provisions of this
Assignment.
3. The terms of limitation of liability contained in Section 12 of that
certain Real Estate Sale Agreement between Assignor and Assignee for the sale of
Regency Park Shopping Center, Jacksonville, Florida, are incorporated herein by
reference.
I-1
IN WITNESS WHEREOF, the parties hereto have executed or have caused this
Assignment to be properly executed on the day and year set forth above.
WITNESSES: ASSIGNOR:
REGENCY PARK ASSOCIATES, an Illinois
_________________ general partnership
_________________ By: First Capital Income Properties, Ltd.-
Print Name Series X, a Florida limited partnership,
a general partner
_________________ By: First Capital Financial
Corporation, a Florida
corporation, a general partner
_________________ By:
Print Name -------------------------------
Name:
-----------------------------
Its:
------------------------------
I-2
EXHIBIT A
LEGAL DESCRIPTION
-----------------
EXHIBIT B
1. All trademarks, including the name "Regency Park Shopping Center"
(registered or common law).
2. All service marks.
3. All logo's and design criteria for the same.
4. All copyrights.
5. All media related materials, including current advertising in place,
phone listings, marketing plans, drawings, manuals and information
related to same.
6. All rights to plans, specifications, design criteria and architectural
plans for improvements on the Property.
EXHIBIT J
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
--------------------------------------
KNOW ALL MEN BY THESE PRESENTS:
THAT REGENCY PARK ASSOCIATES, an Illinois general partnership ("Assignor"),
in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby effective as of ________________, 1997 (the
"Effective Date"), assign, transfer and set over absolutely unto NEW PLAN
REALTY TRUST, a Massachusetts business trust ("Assignee"), all of Assignor's
right, title and interest in and to those certain contracts described on
attached EXHIBIT A (the "Contracts").
The Assignee hereby assumes and covenants to perform all of the obligations
of the Assignor under the Contracts from and after the date hereof.
The terms of limitation of liability contained in Section 12 of that certain
Real Estate Sale Agreement between Assignor and Assignee for the sale of
Regency Park Shopping Center, Jacksonville, Florida, are incorporated herein by
reference.
This Agreement and all documents, agreements, understandings and arrangements
relating to this transaction have been negotiated, executed and delivered on
behalf of Purchaser by the trustees or officers thereof in their representative
capacity under the Amended and Restated Declaration of Trust of New Plan Realty
Trust dated as of January 15, 1996 and not individually, and bind only the
trust estate of Purchaser, and no trustee, officer, employee, agent or
shareholder of Purchaser shall be bound or held to any personal liability or
responsibility in connection with the agreements, obligations and undertakings
of Purchaser thereunder, and any person or entity dealing with Purchaser in
connection therewith shall look solely to the trust estate for the payment of
any claim or for the performance of any agreement, obligation or undertaking
hereunder. Seller acknowledges and agrees that each agreement and other
document executed by Purchaser in accordance with or in respect of this
transaction shall be deemed and treated to include in all respects and for all
purposes the foregoing exculpatory provision.
J-1
IN WITNESS WHEREOF, Assignor and Assignee have caused their hands and seals
to be set as of the _____ day of ________________, 1997.
WITNESSES: ASSIGNOR:
REGENCY PARK ASSOCIATES, an Illinois
general partnership
-----------------------------
By: First Capital Income Properties, Ltd.-
-----------------------------
Print Name Series X, a Florida limited partnership,
a general partner
By: First Capital Financial
----------------------------- Corporation, a Florida
corporation, a general partner
-----------------------------
Print Name By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
ASSIGNEE:
NEW PLAN REALTY TRUST, a
Massachusetts business trust
By:
-------------------------------------------
Name:
-----------------------------------------
Its:
------------------------------------------
J-2
EXHIBIT A
LIST OF CONTRACTS
-----------------
EXHIBIT K
SERVICE CONTRACTS
-----------------
SERVICE CONTRACTS - REGENCY PARK
--------------------------------
1. Clean Sweepers d/b/a Xxxxx Sweeping (sweeping)
2. Intercon Security (security)
3. Grass Master Lawn Care & Landscaping (landscaping)
4. High Pressure Sales (contract sidewalks)
5. Orkin (pest control)
6. Florida Sound Engineering Company (sound systems)
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EXHIBIT L
RENT ROLL
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EXHIBIT M
LITIGATION
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1. Clothestime filed for protection pursuant to the U.S. Bankruptcy Code, Case
No. SA95-22533-X.X. through SA95-22538-X.X., U.S. Bankruptcy Court, Central
District of California.
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EXHIBIT N
PERMITS
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1. Xxxxxxxx Xxxxxx Xx. 00000, dated November 5, 1996
2. Xxxxxxxx Xxxxxx Xx. 00000, dated September 5, 1996
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EXHIBIT O
TENANT IMPROVEMENTS, FREE RENT PERIODS
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AND LEASING COMMISSION
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Third Party Broker Fees
TENANT AMOUNT OWED
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None None
Free Rent Periods
TENANT AMOUNT OWED
------ -----------
David's Bridal $37,848.03
5/97 - 3/98
AT&T Wireless $12,350.00
Has not commenced.
Tenant Improvements and Concessions
TENANT AMOUNT OWED
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None None
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EXHIBIT P
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__________________________________
(Tenant)
(Shopping Center)
ESTOPPEL CERTIFICATE
LANDLORD:
____________________________________________________________________
TENANT:
____________________________________________________________________
COVERING PREMISES:
____________________________________________________________________
(Shopping Center) (City, State)
The undersigned ("Tenant") hereby certifies to New Plan Realty Trust and
________________________________________________ ("Landlord"), as follows with
respect to the Tenant's lease of the Premises at the Shopping Center:
1. Tenant is the tenant under said lease ("Lease") described in EXHIBIT A and
attached hereto.
2. The Lease is in full force and effect and has not been assigned or subleased
by Tenant, and has not been supplemented, modified, or amended and there do not
exist any other agreements concerning the Premises whether oral or written,
between the Landlord (or its predecessors or successors) under the Lease and
Tenant, except as set forth in EXHIBIT A hereto.
3. Tenant is entitled to no offsets, deductions, credits, or rent abatements
whatsoever with respect to rentals or other charges which will be owing under
the Lease or any other agreement described in EXHIBIT A hereto, except as set
forth in EXHIBIT A hereto.
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4. None of the matters set forth in EXHIBIT A hereto are untrue or incorrect
and, without limitation on the foregoing, there are, with respect to the lease,
no options to renew or expand, security deposits or prepaid rent or liens,
except as set forth in EXHIBIT A hereto.
5. Tenant has accepted possession of the Premises and each of the obligations
on the Landlord's part to be performed to date under the Lease or under any
other agreement described in EXHIBIT A hereto has been performed and there are
no defaults by Landlord or Tenant, other acts on the Landlord's part, known to
Tenant which with the passage of time or the giving of notices or both would
ripen into any such default under the Lease or under any such other agreements,
except as stated in EXHIBIT A hereto.
6. As of the date hereto, no basic rent or additional rent is due to Landlord
except as set forth in EXHIBIT A hereto. No rent under the Lease has been paid
more than thirty (30) days in advance of its due date.
7. We have no notice of a prior assignment, hypothecation or pledge of rents of
the Lease or any other agreement described in EXHIBIT A other than to
Landlord's mortgage lender.
8. There are no actions, either voluntary or involuntary, pending against us
under the bankruptcy laws of the United States or the bankruptcy laws of any
state.
9. Tenant has received no allowances or concessions (including rent-free
concessions) that remain outstanding.
10. Tenant has no knowledge of any broker or other intermediary who is
entitled to receive any leasing, brokerage or other compensation out of or with
respect to rentals or other payments or rights or obligations under the Lease
or with respect of the Lease itself.
11. Landlord has not waived the fully and timely observance or performance by
Tenant of any of the agreements, covenants, terms or conditions to be observed
or performed by Tenant under the Lease.
12. To the best of Tenant's knowledge, Tenant has never permitted or suffered
the generation, treatment, use, storage, disposal or discharge of any
hazardous, toxic or dangerous waste, substance or materials in, on or about the
Premises or any adjacent property.
13. Tenant's address for notice purposes under the Lease is_______________
_________________________________________________________.
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This certificate is made for the benefit of New Plan Realty Trust and Regency
Park Associates, their successors or assigns and shall bind the successor and
assigns of the Tenant. Tenant acknowledges that New Plan Realty Trust may rely
on this certificate in conjunction with its purchase and thereafter its
ownership and operation of the Shopping Center.
Dated as of the _____ day of ________________________, 1997.
_______________________________
(Tenant)
By:_____________________________
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ESTOPPEL CERTIFICATE
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EXHIBIT A
(a) Date of Lease:_______________________________________
(b) Date of Amendments or Modifications:_______________________________
(c) Current Term of Lease:
Commencement Date:________________________________
Expiration Date:_______________________________
(d) Remaining Renewal Options:_______________________________
(e) Annual Base Rent: $______________________annually
(f) Operating Expense Reimbursement: $______________________annually
(g) Tax Reimbursement: $______________________annually
(h) Security Deposit: $______________________________
(i) Base Rent Paid Through:_______________________________
NOTE: INDICATE IF AN ITEM IS NOT APPLICABLE (N/A)
EXHIBIT Q
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NOTICE TO TENANTS
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TO: All Tenants of Regency Park Shopping Center, Jacksonville, Florida
Please be advised that Regency Park Shopping Center has, on the date
hereof, been sold by the undersigned Seller, Regency Park Associates, an
Illinois general partnership, to New Plan Realty Trust, a Massachusetts business
trust, with principal offices in New York, New York.
Please be further advised that any security deposits presently held by the
undersigned Seller have been delivered to and accepted by New Plan Realty Trust.
All payments, including payments for ________________, 1997 rent and
payments for any statements on hand, should continue to be directed to and paid
at, as applicable, the existing rental office on-site at Regency Park Shopping
Center. Also, all such payments should be made payable to
"_____________________".
If you have any questions, please contact _______________________________
___________________________________.
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Dated: ____________________, 1997
SELLER: REGENCY PARK ASSOCIATES, an Illinois general
partnership
By: First Capital Income Properties, Ltd. - Series X,
a Florida limited partnership, a general partner
By: First Capital Financial Corporation, a
Florida corporation, a general partner
By:
-----------------------------------
Name:
-----------------------------------
Its:
-----------------------------------
MANAGER: THE XXXXX ORGANIZATION
By:
-----------------------------------
Name:
-----------------------------------
Its:
-----------------------------------
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EXHIBIT R
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REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
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KNOW ALL MEN BY THESE PRESENTS THAT: REGENCY PARK ASSOCIATES, an Illinois
general partnership, having an office at c/o Equity Properties and Development
Limited Partnership, Xxxxx 0000, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000 ("Seller") for the consideration of Ten Dollars ($10.00) and other
valuable considerations, received to its full satisfaction from NEW PLAN REALTY
TRUST, a Massachusetts business trust ("Purchaser"), does hereby reaffirm and
ratify, and remake as of the date hereof to "Seller's knowledge" (as defined in
Section 9.A. of that certain Agreement of Sale ("Agreement") by and between
Seller and Purchaser, dated April __, 1997) (but only to the extent such
representation and warranties are limited to the knowledge of Seller in the
Agreement) and in favor of Purchaser, each and every warranty and representation
made by Seller in the Agreement, other than those contained in Section 9.B.(v);
and such warranties and representations shall survive the closing of the
transaction in the manner and for the time periods contemplated by the
Agreement, as further limited by Sections 9.E. and 12 of the Agreement, and
shall not be deemed to merge upon the delivery and acceptance of Seller's deed
or any other conveyance document.
IN WITNESS WHEREOF Seller has executed this instrument as of this __ day of
______________, 1997.
WITNESSES: REGENCY PARK ASSOCIATES, an Illinois general partnership
--------------- By: First Capital Income Properties, Ltd. -
Series X, a Florida limited partnership,
--------------- a general partner
Print Name
By: First Capital Financial Corporation, a
Florida corporation, a general partner
---------------
By:
-------------------------------
Name:
--------------- -----------------------------
Print Name Its:
------------------------------
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EXHIBIT S
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SECURITY DEPOSIT LISTING
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===========================================================
MERCHANT NAME UNIT REF NO. DEPOSIT BALANCE
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China Buffet 75170 - 1112 $ 8,325.35
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Xxxxx Xxxxx 75170 - 1326 2,143.39
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Ladies Suits, Etc. 75170 - 1310 2,744.57
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Nations Credit 75170 - 1318 1,077.08
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Princess Nails 75170 - 1104 13,449.59
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Xxxx Ltd. Big & Tall #1303 75170 - 1330 2,988.33
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TCBY Yogurt 71570 - 1006 1,770.69
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TOTAL DEPOSITS ON HAND $32,499.00
===========================================================
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EXHIBIT T
REA CERTIFICATE
New Plan Realty Trust Regency Park Associates
1120 Avenue of the Americas Two North Riverside Plaza
12th Floor Suite 1000
New York, NY 10036 Xxxxxxx, XX 00000
Re: Amendment and Establishment of Easements with Covenants and
Restrictions Affecting Land between Regency Park Associates
("Developer"), Publix Super Markets, Inc. ("Publix"), Save and Pack,
Inc. ("SAP") and Southtrust Bank of Jacksonville, N.A. ("Southtrust")
dated June 12, 1985, as amended (the "REA Agreement") with respect to
the premises commonly known as Regency Park Shopping Center,
Jacksonville, Florida
Gentlemen:
The undersigned is a party under the REA Agreement above described. The
undersigned hereby certifies, represents and warrants to you as of the date
hereof as follows:
1. Attached hereto as EXHIBIT A is a true, complete and accurate copy of the
REA Agreement, and the REA Agreement has not been modified, supplemented or
superseded in any manner other than by the documents, if any, which are
attached hereto. There are no other agreements or understanding with the
undersigned with respect to such REA transaction or the property subject to
such transaction [other than that certain Ground Lease by and between
Publix and Seveloper dated January 15, 1985, as amended -- for SAP and
Publix].
2. The REA Agreement is in full force and effect and is legal, valid, binding
and enforceable.
3. To the best of the undersigned's knowledge, there is no default under the
REA Agreement in the payment of any monies thereunder or in the observance
or performance of any other agreement, covenant, obligation, term or
condition to be observed or performed by the undersigned or any other party
to the REA Agreement, and the undersigned has no knowledge of any state of
facts or events which, with the passage of time or the giving of notice or
both, would constitute a default by the undersigned or any such other
party.
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4. To the best of the undersigned's knowledge, the undersigned has no offset,
charge, lien, claim, termination right or defense which currently exists
(or with the passage of time or the giving of notice or both will exist)
under the REA Agreement.
5. There are no monies under the REA Agreement currently owing from the
undersigned to any other party or any other entity under the REA Agreement
or currently owing from any such other party or any such other entity to
the undersigned, [other than pursuant to that certain Ground Lease by and
between Publix and Developer dated January 15, 1985, as amended -- for SAP
and Publix].
6. All the construction and other improvement obligations under the REA
Agreement have been performed; and all conditions to the obligation of the
undersigned to observe and perform its agreements and obligations have been
satisfied.
7. The acquisition of the above-described shopping center does not violate or
constitute a default under the REA Agreement. Without limiting the
foregoing, the undersigned hereby consents thereto.
8. The undersigned and the person executing this Certificate on behalf of the
undersigned have the power and authority to render this Certificate.
The certifications, representations and warranties herein made shall be
binding upon the undersigned, its heirs, legal representatives, successors and
assigns, and shall inure to your benefit and the benefit of your successors and
assigns. The undersigned acknowledges and agrees that New Plan Realty Trust and
Regency Park Associates may rely on this Certificate in conjunction with its
purchase and thereafter its ownership and operation of the above-description
shopping center.
Dated: ____________________, 1997
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By:
----------------------------------
Its:
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