PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 22nd day of May, 1997, between COUSINS
REAL ESTATE CORPORATION, a Georgia corporation ("Seller"), and RRC ACQUISITIONS,
INC., a Florida corporation, its designees, successors and assigns ("Buyer").
Background
Seller recently completed construction of two shopping centers which Buyer
wishes to purchase, each of which are owned by Seller. Xxxxxxx Station is
located in Xxxxxxx County, Georgia and Rivermont Station is located in Xxxxxx
County,Georgia;
Seller wishes to sell the two shopping centers to Buyer;
In consideration of the mutual agreements herein, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller
agrees to sell and Buyer agrees to purchase the Property (as hereinafter
defined) on the following terms and conditions:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Agreement means this instrument as it may be amended from time to
time.
1.2 Allocation Date means midnight of the Closing Date.
1.3 Audit Representation Letter means the form of Audit Representation
Letter attached hereto as Exhibit 1.3.
1.4 Buyer means the party identified as Buyer on the initial page
hereof.
1.5 Closing means generally the execution and delivery of the sale
documents and the wiring of funds by Buyer in accordance with Section .
1.6 Closing Date means the date on which the Closing occurs.
1.7 Contracts means all service contracts, agreements or other instruments
to be assigned by Seller to Buyer at Closing.
1.8 Day means a business day, whether or not the term is capitalized.
1.9 Xxxxxxx Money Deposit means the deposit delivered by Buyer to Escrow
Agent prior to the Closing under Section of this Agreement, together with the
earnings thereon, if any.
1.10 Environmental Claim means any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) from a violation of any Environmental Law, (b) in
connection with any Hazardous Material Activity, or (c) from any abatement,
removal, remedial, corrective, or other response action in connection with a
Hazardous Material Activity, Environmental Law or order of a governmental
authority.
1.11 Environmental Law means any legal requirement in effect as of the
Closing Date pertaining to (a) the protection of health, and the environment,
(b) the conservation, management, protection or use of natural resources and
wildlife, (c) the protection or use of groundwater, (d) the management,
manufacture, possession, presence, use, generation, transportation, treatment,
storage, disposal, Release, threatened Release, abatement, removal, remediation
or handling of, or exposure to, any Hazardous Material, except as related to the
operation and maintenance of the Real Property and the Improvements, and except
for any Hazardous Material lawfully sold in the ordinary course of business by
retailers at the Real Property, or (e) any Release to air, soil, surface water,
and groundwater; and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq.,
Solid Waste Disposal Act, as amended by the Resource Conservation Act of 1976
and Hazardous and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC
1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic
Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801, Occupational Safety and Health Act of
1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC App.
11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq.,
Safe Drinking Water Act of 1974, as amended by 42 USC 300(f) et seq., and any
rule, regulation, order or directive, issued thereunder.
1.12 Escrow Agent means First American Title Insurance Company, attention
Xxxxxx Xxxxxx, whose address is 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000 (Fax 904/000-0000), or any successor Escrow Agent.
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1.13 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
1.14 Hazardous Material means any petroleum, petroleum product,
drycleaning solvent or any other hazardous or toxic substance as defined in or
regulated by any Environmental Law.
1.15 Hazardous Material Activity means any activity, event, or occurrence
at or prior to the Closing Date involving a Hazardous Material, including,
without limitation, the manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release, threatened Release,
abatement, removal, remediation, handling or corrective or response action to
any Hazardous Material, except as related to the operation and maintenance of
the Real Property and the Improvements, and except for any Hazardous Material
lawfully sold in the ordinary course of business by retailers at the Real
Property.
1.16 Improvements means any buildings, structures or other improvements
situated on the Real Property.
1.17 Inspection Period means the period of time which expires at the end
of business on June 23, 1997. If such expiration date is a weekend or national
holiday, the Inspection Period shall expire at the end of business on the next
immediately succeeding business day.
1.18 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.19 Materials means all plans, drawings, specifications, soil test
reports, environmental reports, surveys, and similar documentation, if any,
owned by or in the possession of Seller with respect to the Property,
Improvements and any proposed improvements to the Property, which Seller may
lawfully transfer to Buyer except that, as to financial and other records,
Materials shall include only photostatic copies.
1.20 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem taxes not payable on or before Closing;
(b) Rights of tenants under Leases; and
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(c) Other matters determined by Buyer within the period prescribed
for examination of title to be acceptable.
1.21 Personal Property means all (a) sprinkler, plumbing, heating,
air-conditioning, electric power or lighting, incinerating, ventilating and
cooling systems, with each of their respective appurtenant furnaces, boilers,
engines, motors, dynamos, radiators, pipes, wiring and other apparatus,
equipment and fixtures, elevators, partitions, fire prevention and extinguishing
systems located in or on the Improvements, (b) all Materials, and (c) all other
personal property used in connection with the Improvements, owned or are
acquired by Seller prior to the Closing.
1.22 Property means collectively the Real Property, the Improvements and
the Personal Property.
1.23 Prorated means the allocation of items of expense or income between
Buyer and Seller based upon that percentage of the time period as to which such
item of expense or income relates which has expired as of the date at which the
proration is to be made.
1.24 Purchase Price means the consideration agreed to be paid by Buyer to
Seller for the purchase of the Property as set forth in Section (subject to
adjustments as provided herein).
1.25 Real Property means the lands more particularly described on Exhibit
1.25, and depicted on the site plans attached as Exhibit 1.25(a), as to
Rivermont, and Exhibit 1.25(b), as to Xxxxxxx Station, together with all
easements, licenses, privileges, rights of way and other appurtenances
pertaining to or accruing to the benefit of such lands.
1.26 Release means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing of
Hazardous Material at, in, under or upon the Real Property, and/or the
abandonment or discarding of barrels, drums, containers, tanks, and other
receptacles containing or previously containing any Hazardous Material at or
prior to the Closing Date.
1.27 Rent Roll means the list of Leases attached hereto as Exhibit 1.27,
identifying with particularity the space leased by each tenant, the term
(including extensions), square footage and applicable rent, common area
maintenance, tax and other reimbursements, security deposits and similar data.
1.28 Seller means the party identified as Seller on the initial page
hereof.
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1.29 Seller Financial Statements means the unaudited statements of income
and cash flows of Seller for the Property, for 1996, and for any earlier
calendar years in which the particular Shopping Center was operating and owned
or managed by Seller, and all monthly reports of income, expense and cash flow
prepared by Seller for the Property, which shall be consistent with past
practice, for any periods after December 31, 1996 and ending prior to Closing.
1.30 Shopping Center refers collectively to Xxxxxxx Station Shopping
Centerin Xxxxxxx County, Georgia, and Rivermont Station Shopping Center in
Xxxxxx County, Georgia. "Lovejoy" shall mean Xxxxxxx Station and "Rivermont"
shall mean Rivermont Station.
1.31 Survey means a map of a stake survey of the Real Property which shall
comply with Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, jointly established and adopted by ALTA and ACSM in 1992, and includes
items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof, which meets the
accuracy standards (as adopted by ALTA and ACSM and in effect on the date of the
Survey) of an urban survey, which is dated not earlier than thirty (30) days
prior to the Closing, and which is certified to Buyer, Seller, the Title
Insurance company providing Title Insurance to Buyer, and Buyer's lender, and
dated as of the date the Survey was made.
1.32 Tenant Estoppel Letter means a letter or other certificate from a
tenant certifying to Buyer and Seller, as to certain matters regarding such
tenant's Lease, in substantially the same form as attached hereto as Exhibit
1.32, or in the case of national or regional "credit" tenants identified as such
on the Rent Roll, the form customarily used by such tenant, or, in the case of a
tenant whose lease prescribes the form of tenant estoppel, the form required
thereby, provided the information disclosed in any case by such Tenant Estoppel
Letter must be acceptable to Buyer.
1.33 Title Defect means any exception in the Title Insurance Commitment or
any matter disclosed by the Survey, other than a Permitted Exception.
1.34 Title Insurance means an ALTA Form B Owners Policy of Title Insurance
for the full Purchase Price insuring marketable title in Buyer in fee simple,
subject only to the Permitted Exceptions, issued by a title insurer acceptable
to Buyer.
1.35 Title Insurance Commitment means a binder whereby the title insurer
agrees to issue the Title Insurance to Buyer.
1.36 Transaction Documents means this Agreement, the deed conveying the
Property, the assignment of leases, the xxxx of sale conveying the Personal
Property
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and all other documents required or appropriate in connection with the transac-
tions contemplated hereby.
2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The total Purchase Price for the
Property (subject to adjustment as provided herein) shall be $20,500,000. The
Purchase Price, subject to adjustments and prorations as provided herein, shall
be paid by wire transfer by Buyer to First American Title Insurance Company
("First American"), 000 X. Xxxxxxx Xx., Xxxxxxxxxxxx, Xxxxxxx 00000, Attn:
Xxxxxx Xxxxxx. The Purchase Price proceeds shall be held in escrow by First
American and shall be disbursed to Seller by First American on July 1, 1997. All
interest earned on the funds deposited with First American from the date of
Closing to the date of disbursement by First American to Seller shall be paid to
Buyer. Buyer shall provide Buyer's federal tax identification number to First
American at or prior to Closing. Seller and Buyer shall enter into First
American's standard form escrow agreement for deposit of the Purchase Price
proceeds, subject to the reasonable approval of each.
(b) Adjustments to the Purchase Price. The Purchase Price shall be
adjusted by:
(1) prorating the Closing year's real and tangible personal
property taxes as of the Allocation Date by crediting Buyer with all 1997 tax
reimbursement payments paid prior to Closing to Seller by tenants of the
Shopping Center (Seller to retain such payments, subject to the post-Closing
adjustment provided in Section 2.3 of this Agreement).
(2) prorating as of the Allocation Date cash receipts and
expenditures for the Shopping Center and other items customarily prorated in
transactions of this sort; and
(3) subtracting the amount of security deposits, prepaid rents
from tenants under the Leases, and credit balances, if any, of any tenants. Any
rents, percentage rents or tenant reimbursements payable after the Allocation
Date but applicable to periods on or prior to the Allocation Date shall be
remitted to Seller by Buyer within thirty (30) days after receipt with such
information, if any, concerning percentage rents (such as by way of example,
year end sales reports and other supporting documentation) which is actually
furnished to Buyer by the particular tenant paying percentage rent. Buyer will
invoice and use reasonable efforts (short of litigation or eviction) to collect
1997 percentage rents, if any, due
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from tenants. Buyer shall have no obligation to collect delinquencies, but
should Buyer collect any delinquent rents or other sums which cover periods
prior to the Allocation Date and for which Seller have received no proration or
credit, Buyer shall remit same to Seller within thirty (30) days after receipt,
less any costs of collection. Buyer will not interfere in Seller's efforts to
collect sums due it prior to the Closing. Seller will remit to Buyer promptly
after receipt any rents, percentage rents or tenant reimbursements received by
Seller after Closing which are attributable to periods occurring after the
Allocation Date. Undesignated receipts after Closing of either Buyer or Seller
from tenants in the Shopping Center shall be applied first to then current rents
and reimbursements for such tenant(s), then to delinquent rents and
reimbursements attributable to post-Allocation Date periods, and then to
pre-Allocation Date periods; and
(4) Seller retaining amounts, if any, paid to or escrowed with
Seller by tenants for reimbursement of 1997 common area maintenance and
insurance payments, but crediting Buyer with the portion of such amounts which
is allocable to periods beyond the Allocation Date.
2.2 Xxxxxxx Outparcels. Buyer acknowledges and agrees that two (2)
outparcels at Xxxxxxx, as identified on the Xxxxxxx site plan, are included in
the Property and that Seller may enter into (or continue current) negotiations
from and after the date hereof to the Closing Date for the sale or ground
leasing of one or both of such outparcels to Chick-Fil-A, McDonald Corp. or
Wendy's Corp. (the "Preferred Retailers"). In the event that one or both of such
outparcels are sold by Seller to one or more of such Preferred Retailers prior
to the Closing, this Agreement shall be amended by Seller and Buyer to delete
the outparcel(s) sold from the description of the Property and the Purchase
Price shall be reduced by the amount of $175,000.00 for each outparcel sold. In
the event Seller has an executed contract for the purchase and sale of one or
both of such outparcels, but the closing date thereunder is after the date of
Closing, Seller may give written notice thereof to Buyer not less than five (5)
business days prior to the date of Closing and Seller and Buyer shall amend this
Agreement to delete the outparcel(s) under contract from the description of the
Property and to reduce the Purchase Price by the amount of $175,000.00 for each
outparcel excluded from the Property. Further in such event, if the purchase and
sale of such outparcel(s) shall fail to close for any reason whatsoever and such
contract(s) are terminated, Seller shall promptly give notice thereof to Buyer,
whereupon (i) Seller shall have the right, for a period of one hundred twenty
(120) days following the date of delivery of such notice(s), to require Buyer to
purchase such outparcel(s) for a purchase price equal to $175,000.00 for each
such outparcel upon the terms and conditions set forth herein, and (ii) Buyer
shall have the right, for a period of one hundred thirty (130) days following
the date of delivery of such notice(s), to require Seller to convey such
outparcel(s) to Buyer for a purchase price equal to $175,000.00 for each such
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outparcel upon the terms and conditions stated herein. Such right(s) shall be
exercisable by written notice from Seller to Buyer or from Buyer to Seller, as
the case may be, and the sale of such outparcel(s) shall be consummated on the
thirtieth (30th) day after such exercise notice(s) at the offices of Seller's
counsel at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, at
10:00 A.M., or at such time and on such date as is mutually agreed upon by
Seller and Buyer. The outparcel(s) shall be conveyed by Seller to Buyer by
limited warranty deed, subject only to the Permitted Exceptions hereunder which
are applicable to such outparcel(s). The costs of closing shall be paid and
prorations shall be made in the manner set forth in the Agreement for the sale
of the Property, as applicable. Buyer acknowledges and agrees that such closings
may occur, if at all, on two (2) different dates for the two (2) different
outparcels, as long as notice is given within the specified time periods.
Seller and Buyer acknowledge and agree that, in the event one or both of
the outparcels is sold to a Preferred Retailer the outparcel(s) shall be
conveyed (i) burdened by restrictive covenants which will be imposed upon such
outparcel(s) reflective of any Lease restrictions thereon, and (ii) burdened and
benefitted by non-exclusive easements for pedestrian and vehicular access, the
installation, use, maintenance, repair and replacement of utilities (including
rights for drainage of storm and surface water), and for parking. Prior to any
sale of such outparcel(s), and in any event prior to the Closing in the event
Seller is to retain ownership of the outparcel(s), Seller shall draft a
restrictive covenant and easement agreement covering such matters (and which is
also consistent with the Leases), for Buyer's review and approval, which
approval shall not be unreasonably withheld, conditioned or delayed. The parties
agree to cooperate with each other, in good faith, to determine the form of such
agreement promptly upon Seller's determination to sell any such outparcel(s) to
any of the Preferred Retailers.
Buyer further agrees that Seller shall have the right prior to Closing to
enter into a ground lease with any of the Preferred Retailers for one or both of
the outparcels at Xxxxxxx in form and substance reasonably acceptable to Buyer
and for a term of not less than twenty (20) years and for a net base rent of not
less than $25,000.00 per year, on a "triple net" basis. Any such leases shall be
assigned by Seller to Buyer at Closing with the other Leases, subject to
Seller's continuing obligations thereunder as herein provided, and any such
leases shall contain the restrictions and easements required above for a sale.
All broker's commissions and tenant allowances payable by the Landlord in
connection with such lease(s) shall be the responsibility of Seller. In the
event Seller shall enter into such a ground lease with one or more of the
Preferred Retailers for one or both of the outparcel(s) prior to Closing (or
failing that, should Buyer do so within one hundred twenty [120] days after
Closing), Buyer shall pay to Seller, with respect to each such ground lease, as
additional Purchase Price hereunder, an amount equal
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to the difference obtained by subtracting $150,000 from the sum obtained by
dividing (i) the base rent payable for a one (1) year period commencing with the
rent commencement date under such lease (or leases), by (ii) ten percent (10%).
Such additional Purchase Price shall be payable within ten (10) days after the
date upon which (i) such tenant(s) shall have become obligated to pay full rent
under such lease(s) (eg., beyond any "free rent" period, if any), and (ii) any
rights of the tenant to cancel the lease for failure of a condition (other than
the landlord's default) shall have expired, provided however, should there be a
material default by such tenant(s) under such lease(s) during such ten (10) day
period, the Buyer's payment obligation shall be deferred until ten (10) days
following the date by which the default has been cured. Buyer's obligation to
pay Seller additional Purchase Price under this paragraph shall terminate if
such default by the tenant is not cured and Buyer, as landlord, elects by notice
to the tenant (with a copy to Seller) to terminate such lease; provided that
Buyer's obligation to pay Seller additional consideration for such terminated
lease shall be reinstated if Buyer rescinds the termination or otherwise permits
the occupancy of leased premises by such tenant within ninety (90) days after
such termination. Any such ground lease shall be assigned by Seller to Buyer at
Closing with the other Leases, subject to Seller's continuing obligations
thereunder as herein provided.
The provisions of this Section shall expressly survive the Closing.
2.3 Post-Closing Adjustment. Seller and Buyer agree to adjust the
prorations provided for in subparagraphs (b), (1), (2), (3) and (4) above as
necessary, upon receipt of actual bills for such prorated items and upon receipt
of reimbursement from the tenants of the Property, if applicable. Seller and
Buyer acknowledge and agree that the provisions of this Section shall expressly
survive the Closing until the date the tenant reimbursements are reconciled and
received.
2.4 Xxxxxxx Money Deposit. An Xxxxxxx Money Deposit in the amount of
$25,000 shall be delivered to Escrow Agent within three (3) days after the date
of execution by the last of Buyer or Seller to execute and transmit a copy of
this Agreement to the other. This Agreement may be terminated by Seller if the
Xxxxxxx Money Deposit is not received by Escrow Agent by such deadline. The
Xxxxxxx Money Deposit paid by Buyer shall be held as specifically provided in
this Agreement and shall be applied to the Purchase Price at the Closing.
2.5 Rivermont ECR Reimbursement. Buyer acknowledges and agrees that the
ECR (as such term is defined in Section ) contemplates the reimbursement by the
owner of the "Xxxxxxx Tract" (as such term is defined in the ECR) to Seller of
certain costs incurred by Seller, as such costs are more particularly described
and set forth in the ECR. Such costs are payable by the owner of the Xxxxxxx
Tract to Seller upon the later to occur of the completion of one or more
buildings on the
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Xxxxxxx Tract. Buyer acknowledges and agrees that Seller shall retain the right
of such reimbursement to the extent of such ECR costs heretofore incurred by
Seller, and that such right shall not be conveyed to Buyer and shall not be
transferred to, nor inure to the benefit of, Buyer as the future owner of the
"Cousins Tract" (as such term is defined in the ECR). In the amendment to the
ECR which is contemplated in Section hereof, Seller shall clarify the same. This
section shall expressly survive the Closing without limitation notwithstanding
any other provision of this Agreement to the contrary.
2.6 Closing Costs.
(a) Seller shall pay:
(1) Georgia transfer taxes imposed upon the transactions
contemplated hereby;
(2) Cost of satisfying any deed(s) to secure debt and
construction liens on the Property which may be satisfied by the payment of
money;
(3) Costs, if any, of curing title defects and recording any
curative title documents, should Seller elect to cure as permitted by Section of
this Agreement;
(4) Seller's attorneys' fees relating to the sale of the
Property.
(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Costs of a Phase 1 environmental site assessment to be
obtained by Buyer;
(3) Cost of the Title Insurance and Survey;
(4) Brokerage commission payable to Xxxx Xxxxxxxxx of Xxx
Xxxxxx Associates;
(5) Cost of recording the deed; and
(6) Buyer's attorneys' fees.
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3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, review the economic data, underwrite the
tenants and review their leases, and to otherwise conduct its due diligence
review of the Property and all books, records and accounts of Seller related
thereto. Buyer hereby agrees to indemnify and hold Seller harmless from any
damages, liabilities or claims for property damage or personal injury arising
out of such inspection and investigation by Buyer or its agents or independent
contractors, pursuant to this Section , which indemnity shall survive the
Closing or termination of this Agreement. Buyer's indemnity obligations as set
forth herein shall not be limited to the Xxxxxxx Money deposited hereunder and
Seller's right to recover from Buyer under such indemnity shall not be limited
by any provisions of this Agreement providing for liquidated damages in the
event of Buyer's default hereunder. Within the Inspection Period, Buyer may, in
its sole discretion and for any reason or no reason, elect to go forward with
this Agreement to Closing, which election shall be made by notice to Seller
given within the Inspection Period. If such notice is not timely given, this
Agreement and all rights, duties and obligations of Buyer and Seller hereunder,
except any which expressly survive termination, shall terminate and Escrow Agent
shall forthwith return to Buyer the Xxxxxxx Money Deposit. If Buyer so elects to
go forward, Buyer shall deliver an additional $225,000 to Escrow Agent which
shall be included in the Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit
shall not be refundable except upon the terms otherwise set forth herein.
(b) Buyer, through its officers, employees and other authorized
representatives, shall have the right to reasonable access to the Property and
all records of Seller related thereto, including without limitation all Leases
and Seller Financial Statements, at reasonable times during the Inspection
Period for the purpose of inspecting the Property, taking soil borings,
conducting Hazardous Materials inspections, reviewing the books and records of
Seller concerning the Property and otherwise conducting its due diligence review
of the Property. Seller shall cooperate in all reasonable respects with and
assist Buyer in making such inspections and reviews, provided Seller shall not
be obligated to reimburse or share with Buyer any of Buyer's due diligence
costs. Seller shall give Buyer any authorizations which may be reasonably
required by Buyer in order to gain access to records or other information
pertaining to the Property or the use thereof maintained by any governmental or
quasi-governmental authority or organization. Buyer, for itself and its agents,
agrees not to enter into any contract with existing tenants without the written
consent of Seller if such contract would be binding upon Seller should this
transaction fail to close. Buyer shall have the right to have due diligence
interviews and other discussions or negotiations with tenants, provided
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Buyer furnishes Seller (eg. Xxxxxx X. Xxxxxx, at 770/857-2443) no less than 2
days' prior telephone notice of the time and place of any such interview(s) and
affords Seller an opportunity to be present (Seller agreeing to make available
sufficient personnel to attend such interview(s) in accordance with Buyer's
schedule).
(c) Buyer, through its officers or other authorized representatives,
shall have the right to reasonable access to all Materials (other than
privileged or confidential litigation materials) for the purpose of reviewing
and copying the same.
3.2 Hazardous Material. Prior to the end of the Inspection Period Buyer
may order an environmental assessment of the Property, and a copy of any
assessment report, if made, shall be furnished by Buyer to Seller promptly upon
its completion together with the sampling and analytical data, if any, furnished
to Buyer by the engineer performing the assessment. If the assessment report
discloses the existence of any Hazardous Material or any other matters
concerning the environmental condition of the Property or its environs, Buyer
may notify Seller in writing, within the Inspection Period, that Buyer elects to
terminate this Agreement, whereupon this Agreement shall terminate and Escrow
Agent shall return to Buyer its Xxxxxxx Money Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties, the
Closing shall take place at the offices of Escrow Agent on June 30, 1997.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as follows as of the date of this Agreement
and as of the Closing and where indicated covenants and agrees as follows:
4.1 Organization; Authority. Seller is duly organized, validly existing
and in good standing under the laws of the state of its organization and the
state in which the Shopping Center is located, and has full corporate power and
authority to enter into and perform this Agreement in accordance with its terms.
Seller is not a "foreign person" under Sections 1445 or 897 of the Internal
Revenue Code nor is this transaction subject to any withholding under any state
or federal law.
4.2 Authorization; Validity. The execution and delivery of this Agreement
by Seller and Seller's consummation of the transactions contemplated by this
Agreement have been duly and validly authorized by Seller's board of directors.
This Agreement constitutes a legal, valid and binding agreement of Seller
enforceable against it in accordance with its terms.
4.3 Title. Seller is the owner in fee simple of all of the Property.
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4.4 Commissions. Seller has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Seller or the Property for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transaction provided herein
except for Xxxx Xxxxxxxxxx of Xxx Xxxxxx Associates, whose commissions shall be
paid by Buyer. Seller agrees to indemnify Buyer from any other such brokerage
claim arising by, through or under Seller.
4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except this Agreement.
4.6 Litigation. Except as described in Section of this Agreement or in
Exhibit attached hereto, there is no litigation or proceeding pending, or to the
best of Seller's knowledge, threatened against Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, oral or written,
except as listed on the Rent Roll, and any Leases or modifications entered into
between the date of this Agreement and the Closing Date with the consent of
Buyer. Copies of the Leases, which have been delivered to Buyer or shall be
delivered to Buyer within five (5) days from the date hereof, are, to the best
knowledge of Seller, true, correct and complete copies thereof, subject to the
matters set forth on the Rent Roll and in this Agreement. Between the date
hereof and the Closing Date, Seller will not terminate or modify existing Leases
or enter into any new Leases without the consent of Buyer, subject to the
provisions of Sections and of this Agreement. To the best of Seller's knowledge,
all of the Property's tenant leases are in good standing and to the best of
Seller's knowledge no defaults exist thereunder except as noted on the Rent
Roll. No rent or reimbursement has been paid more than one (1) month in advance
and no security deposit has been paid, except as stated on the Rent Roll. No
tenants under the Leases are entitled to interest on any security deposits. No
tenant under any Lease has or will be promised any inducement, concession or
consideration by Seller other than as expressly stated in such Lease, and except
as stated therein there are and will be no side agreements between Seller and
any tenant. Seller hereby discloses that Roswell Rivermont Station CVS, Inc.
("CVS"), a tenant in Rivermont claims that Seller is obligated to reimburse CVS
for the costs of installing an "Energy Management System" in its premises.
Seller believes that it is not obligated for such reimbursement and hereby
agrees to indemnify and hold Buyer harmless from such claim.
4.8 Financial Statements. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
in accordance with the books and records of Seller and presents fairly in all
material respects the
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financial condition, results of operations and cash flows for the Property as of
and for the periods to which they relate. All are in conformity with sound
accounting practice and applied on a consistent basis. There has been no
material adverse change in the operations of the Property since the date of the
most recent Seller Financial Statements. Seller covenants to furnish promptly to
Buyer copies of the Seller Financial Statements together with unaudited updated
monthly reports of cash flow for interim periods beginning after December 31,
1996. Buyer and its independent certified accountants shall be given access to
Seller's books and records at any time during the Inspection Period upon
reasonable advance notice in order that they may verify the Seller Financial
Statements. Seller agrees to execute and deliver to Buyer or its accountants at
Closing, the Audit Representation Letter should Buyer's accountants audit the
records of the Shopping Center.
4.9 Contracts. Except for Leases and Permitted Exceptions, there are no
management, service, maintenance, utility or other contracts or agreements
affecting the Property, oral or written, which extend beyond the Closing Date
and which would bind Buyer or encumber the Property more than thirty (30) days
after Closing. To the best of Seller's knowledge, all such Contracts are in full
force and effect in accordance with their respective terms, and all obligations
of Seller under the Contracts required to be performed to date have been
performed in all material respects; Seller has received no notice of any claim
of default or offset against Seller with respect thereto and no event has
occurred or failed to occur, which would in any way affect the validity or
enforceability of any such Contract; and to the best of Seller's knowledge, the
copies of the Contracts delivered to Buyer prior to the date hereof are true,
correct and complete copies thereof. Between the date hereof and the Closing,
Seller in the ordinary course of its business operations shall fulfill all of
its material obligations under all Contracts, and shall not terminate or modify
any such Contracts or enter into any new contractual obligations relating to the
Property without the consent of Buyer (not to be unreasonably withheld) except
such obligations as are freely terminable without penalty by Seller upon not
more than thirty (30) days' written notice, and except for Leases as permitted
under Sections , and of this Agreement.
4.10 Maintenance and Operation of Property. From and after the date hereof
and until the Closing, Seller covenants to keep and maintain and operate the
Property substantially in the manner in which it is currently being maintained
and operated and covenants not to cause or permit any waste of the Property nor
undertake any action with respect to the operation thereof outside the ordinary
course of business without Buyer's prior written consent. Subject to the
provisions of Section of this Agreement, Seller covenants to cause the Shopping
Center to be in substantially the same quality and condition at the time of
Closing as on the date hereof, ordinary wear and tear excepted. Seller covenants
not to remove from the Improvements or the Real Property any article included in
the Personal
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Property. Seller covenants to maintain such casualty and liability insurance
on the Property as is presently being maintained.
4.11 Permits and Zoning. To the best of Seller's knowledge, there are no
material permits and licenses (collectively referred to as "Permits") required
to be issued to Seller by any governmental body, agency or department having
jurisdiction over the Property which materially affect the ownership or the use
thereof which have not been issued, except that whereas the Easement Agreement
with Covenants and Restrictions (the "ECR") affecting Rivermont (recorded in
Deed Book 20439, Page 240), contemplates three exit/entrances along Xxxxxxx
Bridge Road, Rivermont received permits only for two of such exit/entrances.
Buyer consents to a modification of the ECR to reflect the actual status of such
exits/entrances. Seller has received no notice of outstanding assessments,
impact fees or other charges related to the Property, other than 1997 taxes,
which are not yet due.
4.12 Rent Roll; Tenant Estoppel Letters. To the best of Seller's
knowledge, the Rent Roll is true and correct in all material respects. Seller
agrees to use reasonable efforts to obtain current Tenant Estoppel Letters
acceptable to Buyer from all Tenants under Leases.
4.13 Condemnation. Seller has received no notice that the whole or any
portion of the Property, including access thereto or any easement benefitting
the Property, is or will be subject to temporary requisition of use by any
governmental authority or has been condemned, or taken in any proceeding similar
to a condemnation proceeding, nor has Seller received notice of nor is Seller
aware of any pending condemnation, expropriation, requisition or similar
proceeding against the Property or any portion thereof.
4.14 Governmental Matters. Except for customary permit and zoning
applications executed by Seller in the ordinary course of business in connection
with obtaining its permits and governmental approvals for construction of the
Improvements (which, to Seller's actual knowledge, do not contain any agreements
or commitments of Seller which are as yet unperformed, other than ongoing
conditions of zoning), Seller has not entered into any commitments or agreements
with any governmental authorities or agencies affecting the Property that have
not been disclosed in writing to Buyer and Seller has received no notices from
any such governmental authorities or agencies of uncured violations at the
Property of building, fire or zoning codes, rules, ordinances or regulations,
Environmental Laws, or other rules, ordinances or regulations relating to the
Property.
4.15 Repairs. Seller has received no notice of any requirements or
recommendations by any lender, insurance companies, or governmental body or
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agencies requiring or recommending any repairs or work to be done on the
Property.
4.16 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) to Seller's knowledge after due
inquiry, require Seller to file or register with, notify, or obtain any permit,
authorization, consent, or approval of, any governmental or regulatory
authority; (b) conflict with or breach any provision of the organizational
documents of Seller; (c) violate or breach any provision of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, any note, bond, mortgage, indenture, deed of trust,
license, franchise, permit, lease, contract, agreement or other instrument,
commitment or obligation to which Seller is a party, or by which Seller, the
Property or any of Seller's material assets may be bound; or (d) to Seller's
knowledge after due inquiry, violate any order, writ, injunction, decree,
judgment, statute, law or ruling of any court or governmental authority
applicable to Seller, the Property or any of Seller's material assets.
4.17 Environmental Matters.Seller represents and warrants as of the date
hereof and as of the Closing that:
(a) Seller has not, and has no knowledge of any other person who has,
caused any Release at the Property in any material quantity; and
(b) To Seller's actual knowledge, except as may be set forth in the
Materials, the Property does not now contain any: (a) underground storage tank,
(b) material amounts of asbestos-containing building material, (c) landfills or
dumps, (d) drycleaning plant; or (e) hazardous waste management facility as
defined pursuant to the Resource Conservation and Recovery Act ("RCRA") or any
comparable state law. Seller has received no notice that the Property is claimed
to be a site on or has been nominated for the National Priority List promulgated
pursuant to Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA") or any state remedial priority list promulgated or published pursuant
to any comparable state law.
4.18 Representations and Warranties to be Remade at Closing. The foregoing
warranties and representations shall be reaffirmed and restated by Seller in
their entirety as of the date of Closing, except for any changes in any
foregoing warranty or representation that occurs at any time and from time to
time prior to Closing. In the event any of the foregoing warranties or
representations shall become untrue or misleading, Seller shall promptly inform
Buyer of the same, in writing, prior to Closing. In the event that Seller does
not elect to cure all such changes prior to Closing, then notwithstanding
anything herein to the contrary and as it sole remedy,
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Buyer may elect to either (i) close and consummate the transaction contemplated
by this Agreement and waive any such breach, or (ii) terminate this Agreement by
written notice to Seller, whereupon Escrow Agent shall return the Xxxxxxx Money
to Buyer and thereafter the parties hereto shall have no further rights or
obligations hereunder whatsoever, except for such rights or obligations that, by
the express terms hereof, survive any termination of this Agreement.
Prior to Closing, Buyer shall have fully examined and inspected the
Property and shall have become thoroughly familiar with the condition, status
and usability of the same. Buyer is willing to and shall accept the Property "AS
IS, WHERE IS" "WITH ALL FAULTS" on the date of the Closing, subject only to the
express representations and warranties made by Seller in this Agreement and/or
in the closing documents, and except for such express representations and
warranties (which shall survive Closing as provided in Section of this
Agreement), Buyer does hereby waive and release Seller, Seller's agents,
employees, officers, directors and stockholders of and from any and all claims,
demands, liabilities and obligations of whatsoever kind of nature, direct or
indirect, and whether contingent, conditional or otherwise, known or unknown,
arising under, pursuant to, from or by reason of or in connection with, any and
all federal, state and local laws (including but not limited to decisional law),
statutes, ordinances, rules, regulations, permits, or standards and all
Environmental Laws (all of the foregoing being herein referred to collectively
as "Applicable Laws"). EXCEPT FOR SUCH REPRESENTATIONS AND WARRANTIES, SELLER
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES TO BUYER
WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE CONDITION OR COMPLIANCE OF
THE PROPERTY WITH RESPECT TO ANY LAWS GOVERNING ENVIRONMENTAL PROTECTION,
POLLUTION CONTROL OR LAND USE OR OTHERWISE CONCERNING THE PROPERTY OR THE
FITNESS, MERCHANTABILITY, USE OR CONDITION OF THE PROPERTY OR ANY MATTERS
RELATED TO THE SUBJECT TRANSACTION OR THE PROPERTY. This section shall expressly
survive the Closing.
4.19 Certain Limitations on Seller's knowledge. Buyer expressly
acknowledges and agrees that wherever in this Agreement a statement,
certification, representation or warranty is made by Seller to its knowledge
(however qualified), such information is limited to the actual knowledge, after
reasonable inquiry and examination of Seller's files of Xxxxxx X. Xxxxxx and
Xxxxxxxxx Xxxx as to Xxxxxxx, and of Xxxxxx X. Xxxxxx as to Rivermont. Seller
represents that such persons are the most knowledgeable employees of Seller with
respect to matters involving the respective shopping centers, and to date have
been charged by Seller with the responsibility for the operation, management and
leasing thereof.
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5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement and
as of the Closing and where indicated covenants and agrees as follows:
5.1 Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under laws of Florida and has full power
and authority to enter into and perform this Agreement in accordance with its
terms, and the persons executing this Agreement and other Transaction Documents
on behalf of Buyer have been duly authorized to do so.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement and the other Transaction Documents have been duly and validly
authorized by the Board of Directors of Buyer. This Agreement has been duly and
validly executed and delivered by Buyer and (assuming the valid execution and
delivery of this Agreement by Seller) constitutes a legal, valid and binding
agreement of Buyer enforceable against it in accordance with its terms.
5.3 Commissions. Buyer has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Buyer or Seller for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transaction provided herein except Xxxx
Xxxxxxxxxx of Xxx Xxxxxx Associates, whose commission shall be paid by Buyer;
and Buyer agrees to indemnify Seller from any other such claim arising by,
through or under Buyer.
5.4 Audit Representation Letter. The common shares of Buyer's parent,
Regency Realty Corporation ("Regency") are publicly traded on the New York
Stock Exchange. The quarterly filing requirements of the Securities Exchange
Commission impose upon Regency a duty to file, inter alia, audited financial
statements covering properties acquired by Regency or its subsidiaries during
the prior quarter. The Audit Representation Letter to be given by Seller under
Section of this Agreement is to be provided as part of those requirements.
Buyer acknowledges that such Audit Representation Letter is for the benefit of
Buyer's auditors (KPMG Peat Marwick LLP) only and no person including Buyer,
other than Buyer's auditor, is or will be authorized by Seller or Buyer to
rely thereon.Buyer agrees to indemnify Seller for any costs incurred by Seller
in responding to any inquiry and/or litigation and/or other claim related
to the Audit Representation Letter unless such Audit Representation Letter
contains a material or fraudulent misstatement.
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6. POSSESSION; RISK OF LOSS
6.1 Possession. Possession of the Property will be transferred to Buyer at
the conclusion of the Closing, subject to the rights of tenants under the
Leases.
6.2 Risk of Loss. All risk of loss to the Property shall remain upon
Seller until the conclusion of the Closing. If, before the possession of the
Property has been transferred to Buyer, any material portion of the Property is
damaged by fire or other casualty and will not be restored by the Closing Date
or if any material portion of the Property is taken by eminent domain or there
is a material obstruction of access to the Improvements by virtue of a taking by
eminent domain, Seller shall, within ten (10) days of such damage or taking,
notify Buyer thereof and Buyer shall have the option to:
(a) terminate this Agreement upon notice to Seller given within ten
(10) business days after such notice from Seller, in which case Buyer shall
receive a return of its Xxxxxxx Money Deposit; or
(b) proceed with the purchase of the Property, in which event Seller
shall assign to Buyer all Seller's right, title and interest in all amounts due
or collected by Seller under the insurance policies or as condemnation awards.
In such event, the Purchase Price shall be reduced by the amount of any
insurance deductible in excess of $25,000.00, to the extent it reduces the
insurance proceeds payable.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance. Buyer shall promptly order the Title Insurance
Commitment from First American Title Insurance Company and the Survey from a
reputable surveyor familiar with the Property (Seller agreeing to furnish to
Buyer copies of any existing surveys and title information in its possession
promptly after execution of this Agreement). Buyer will have the Inspection
Period within which to notify Seller in writing of any Title Defect,
encroachments or other matters not acceptable to Buyer which are not permitted
by this Agreement. Any Title Defect or other objection disclosed by the Title
Insurance Commitment (other than deeds to secure debt and construction lien[s]
removable by the payment of money) or the Survey which is not timely specified
in Buyer's written notice to Seller of Title Defects shall be deemed a Permitted
Exception. Seller shall notify Buyer in writing within three (3) days of Buyer's
notice if Seller intends to cure any Title Defect or other objection. If Seller
elects to cure, Seller shall use diligent efforts to cure the Title Defects
and/or objections by the Closing Date (as it may be extended by
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mutual agreement of the parties). If Seller elects not to cure or if such Title
Defects and/or objections are not cured, Buyer shall have the right, in lieu of
any other remedies, to: (i) refuse to purchase the Property, terminate this
Agreement by notice to Seller given within two (2) days after notice from Seller
that Seller will not cure, in which event Buyer shall receive a return of the
Xxxxxxx Money Deposit; or (ii) waive such Title Defects and/or objections and
close the purchase of the Property subject to them. If Seller does not respond
to Buyer's notice of Title Defects within such three (3) day period, Seller
shall be deemed to have elected not to cure such Title Defects.
(b) Miscellaneous Title Matters. If a search of the title discloses
judgments, bankruptcies or other returns against other persons having names the
same as or similar to that of Seller, Seller shall on request deliver to Buyer
an affidavit stating, if true, that such judgments, bankruptcies or the returns
are not against Seller. Seller further agrees to execute and deliver to the
Title Insurance agent at Closing such documentation, if any, as the Title
Insurance underwriter shall reasonably require to evidence that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and that there are no mechanics'
liens on the Property or parties in possession of the Property other than
tenants under Leases and Seller.
8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The obligations of Buyer
under this Agreement are subject to satisfaction or waiver by Buyer of each of
the following conditions or requirements on or before the Closing Date:
(a) Seller's warranties and representations under this Agreement
shall be true and correct in all material respects as of the Closing Date, and
Seller shall not be in default hereunder.
(b) All obligations of Seller contained in this Agreement, shall
have been fully performed in all material respects.
(c) There shall have been no material adverse change in the
Property, its operations or future prospects, the Leases or the financial
condition of Publix, Xxxxxx Xxxxxx or CVS.
(d) The physical and environmental condition of the Property shall
be unchanged from the date of this Agreement, ordinary wear and tear excepted.
(e) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
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(A) A limited warranty deed in proper form for recording,
duly executed and acknowledged so as to convey to Buyer the fee simple title to
the Property, subject only to the Permitted Exceptions;
(B) Originals, if available, or if not, true copies of
the Leases and of the Contracts;
(C) A blanket assignment to Buyer of all Leases and the
Contracts, as they affect the Property, including an indemnity by Seller against
all matters first arising or accruing prior to the date of such assignment and
an indemnity by Buyer for all matters first arising or accruing from and after
the date of such assignment, subject however to the respective post-Closing
obligations of Seller and Buyer, as the case may be, under or with respect to
any such Leases and Contracts, as may be imposed under this Agreement;
(D) A quit-claim xxxx of sale with respect to the Personal
Property;
(E) A current rent roll for all Leases in effect showing no
changes from the rent roll attached to this Agreement other than those set forth
in the Leases or approved in writing by Buyer;
(F) All Tenant Estoppel Letters obtained by Seller, which
must include Xxxxxx Xxxxxx, CVS Drugs, Blockbuster Video, Calico Corners,
Publix, Video Wonderland and Family MedCare and seventy-five percent (75%) of
the other tenants, by number, who have signed leases for any portion of the
Property, without any material exceptions, covenants, or changes to the form
approved by Buyer and distributed to the tenants by Seller (except that the
excision of paragraphs 8 and 10 from the Tenant Estoppel Letter by any tenant
shall not in and of itself be deemed a material exception), the substance of
which Tenant Estoppel Letters must be reasonably acceptable to Buyer in all
material respects;
(G) An owner's affidavit, non-foreign affidavits, non-tax
withholding certificates and such other documents as may reasonably be required
by the title insurance company in order to effectuate the provisions of this
Agreement and the transactions contemplated herein;
(H) The originals or copies of any real and tangible personal
property tax bills for the Property for the tax year of Closing and the previous
year, and, if requested, the originals or copies of any current water, sewer and
utility bills which are in Seller's custody or control;
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(I) Resolutions of Seller authorizing the transactions
described herein;
(J) All keys and other means of access to the Improvements
in the possession of Seller or its agents;
(K) Materials; and
(L) Such other documents as Buyer may reasonably request
to effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this Section are not
satisfied and Buyer elects in writing to terminate this Agreement, then the
Xxxxxxx Money Deposit shall be promptly delivered to Buyer by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
against the other by reasons of this Agreement, except as provided in Article .
8.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement are subject to satisfaction or waiver by Seller of
each of the following conditions or requirements on or before the Closing date:
(a) Buyer's warranties and representations under this Agreement
shall be true and correct in all material respects as of the Closing Date.
(b) All of the obligations of Buyer contained in this Agreement
shall have been fully performed by or on the date of Closing in compliance with
the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Seller at or prior to the Closing
the following, which shall be reasonably satisfactory to Seller:
(1) Delivery and/or payment of the balance of the Purchase Price
in accordance with Section at Closing;
(2) Such other documents as Seller may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
have not, and Seller elects in writing to terminate this Agreement, then the
Xxxxxxx Money Deposit shall be promptly delivered to Seller by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
against the other by reasons of this Agreement, except as provided in Article .
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8.3 Reasonable Efforts. Each of the parties hereto agrees to use
reasonable efforts to take or cause to be taken all actions necessary, proper or
advisable to consummate the transactions contemplated by this Agreement.
9. BREACH; REMEDIES
9.1 Pre-Closing Breach by Seller. In the event of a default by Seller
herein and failure by Seller to cure such default within the time provided for
Closing, Buyer may, at Buyer's election and as its sole remedy elect to either
(i) terminate this Agreement and receive a return of the Xxxxxxx Money Deposit,
and the parties shall have no further rights or obligations under this Agreement
(except as survive termination); (ii) enforce this Agreement by suit for
specific performance; or (iii) waive such default and close the purchase
contemplated hereby, notwithstanding such default.
9.2 Pre-Closing Breach by Buyer. In the event of a default by Buyer herein
and failure of Buyer to cure such breach within the time provided for Closing,
Seller's sole remedy shall be to terminate this Agreement and retain Buyer's
Xxxxxxx Money Deposit as agreed liquidated damages for such breach, and upon
payment in full to Seller of such amounts, the parties shall have no further
rights, claims, liabilities or obligations under this Agreement (except as
survive termination).
9.3 Breach of Post-Closing Obligations. Each party shall be limited to the
remedy of specific performance for breaches by either party of post-Closing
obligations imposed upon it under this Agreement, together with costs and
attorneys fees as contemplated by Section 10.6 hereof.
10. MISCELLANEOUS
10.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement or any information obtained in connection with
preparation for Closing and/or the conducting of due diligence without the prior
approval of the other, except to its attorneys, accountants and other
consultants, their lenders and prospective lenders, or where disclosure is
required by law.
10.2 Entire Agreement; Counterparts. This Agreement together with the
Exhibits attached hereto, when executed singly or in counterparts, shall
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and may not be modified, amended or otherwise changed in
any manner except by a writing executed by Buyer and Seller.
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10.3 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement shall be served by personal delivery, certified or overnight
mail, reputable overnight courier service or facsimile (if transmission is
confirmed and is followed promptly by overnight hard copy) at the addresses set
forth below:
to Seller: Cousins Real Estate Corporation
Attention: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxxx LLP
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
NationsBank Plaza
000 Xxxxxxxxx Xx., X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
to Buyer: RRC Acquisitions, Inc.
Attention: Xxxxxx X. Xxxxxx
Xxxxx 000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to: Rogers, Towers, Xxxxxx, Xxxxx & Gay
Attention: Xxxxxxx X. Xxxxx, Esq.
0000 Xxxxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Any notice or demand so served shall constitute proper notice hereunder upon
delivery to the United States Postal Service, postage prepaid, or to such
overnight courier, prepaid. A party may change its notice address by notice
given in the aforesaid manner.
10.4 Headings. The titles and headings of the various sections hereof are
intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
10.5 Validity. If any of the provisions of this Agreement or the application
thereof to any persons or circumstances shall, to any extent, be invalid or
- 24 -
unenforceable, the remainder of this Agreement by the application of such
provision or provisions to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable shall not be affected thereby, and
every provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
10.6 Attorneys' Fees. In the event of any litigation between the parties
hereto to enforce any of the provisions of this Agreement or any right of either
party hereto, the unsuccessful party to such litigation agrees to pay to the
successful party all costs and expenses, including reasonable attorneys' fees,
whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions herein shall include
indemnification for reasonable attorneys' fees and costs, whether or not suit be
brought and including fees and costs on appeal.
10.7 Time of Essence. Time is of the essence of this Agreement.
10.8 Governing Law. This Agreement shall be governed by the laws of the
State in which the Property is located and the parties hereto agree that any
litigation between the parties hereto relating to this Agreement shall take
place (unless otherwise required by law) in a court located in the County, State
in such that Property is located. Each party waives its right to jurisdiction or
venue in any other location.
10.9 Successors and Assigns. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. No third parties, including any
brokers or creditors, shall be beneficiaries hereof. Buyer may not assign this
Agreement other than to a wholly owned subsidiary of Regency Realty Corporation
without the consent of Seller.
10.10 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
10.11 Gender; Plural; Singular; Terms. A reference in this Agreement to any
gender, masculine, feminine or neuter, shall be deemed a reference to the other,
and the singular shall be deemed to include the plural and vice versa, unless
the context otherwise requires. The terms "herein," "hereof," "hereunder," and
other words of a similar nature mean and refer to this Agreement as a whole and
not merely to the specified section or clause in which the respective word
appears unless expressly so stated.
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10.12 Further Instruments, Etc. Seller and Buyer shall, at or after Closing,
execute any and all documents and perform any and all acts reasonably necessary
to fully implement this Agreement.
10.13 Survival. The representations, warranties and covenants made
respectively, by Seller and Buyer in Articles and of this Agreement shall
survive the Closing for a period of one (1) year. The post-Closing obligations
of the parties as set forth in the closing documents and in Sections , , , , , ,
, , , , , , , , and hereof, shall also survive Closing. Otherwise the terms and
provisions of this Agreement shall merge with the execution and delivery of the
Closing documents and shall not survive the Closing.
10.14 No Recording. This Agreement nor any notice, memorandum or other
notice or document incorporating this Agreement generally shall be recorded, but
a memorandum concerning post-Closing obligations under Section of this Agreement
shall be executed at Closing and recorded at the request of either party.
10.15 Like-Kind Exchange by Seller. Seller reserves the right to effectuate
the sale of the Property by means of an exchange of "like-kind" property which
will qualify as such under Section 1031 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder. Seller expressly reserves
the right to assign its rights, but not its obligations, hereunder to a
qualified intermediary as provided in I.R.c. Reg. 1.1031(k)-1(g)(4) on or before
the date of Closing. Upon written notice from Seller to Buyer, Buyer agrees to
cooperate with Seller to effect a like-kind exchange, provided that such
cooperation shall be subject to the following conditions: (a) such exchange
shall not delay the date of Closing and shall occur either simultaneously with
the Closing or the sale proceeds payable to seller shall be paid to a third
party escrow agent or intermediary and title conveyed to Buyer, such that Buyer
shall not be required to participate in any subsequent closing, (b) Buyer shall
not be obligated to spend any sums or incur any expenses in excess of the sums
and expenses which would have been spent or incurred by Buyer if there had been
no exchange, and (c) Buyer shall not be obligated to acquire, accept title to or
convey any property other than the Property to be conveyed to Buyer pursuant to
this Agreement. Buyer makes no representation or warranty that the conveyance of
the Property by Seller to Buyer shall qualify for a like-kind exchange.
10.16 Effective Date. The effective date of this Agreement shall be the
date upon which this Agreement shall be fully executed by Seller and Buyer and
each of Seller and Buyer have received a fully executed counterpart hereof.
10.17 Rivermont Consent Order. Buyer acknowledges that the portion of
the Property which is known as Rivermont Station shall be sold subject to that
certain Final Consent Judgment dated April 6, 1992, as amended by the First
- 26 -
Amendment to Consent Judgment dated December 15, 1995, entered in Civil Action
D82953, in the Superior Court of Xxxxxx County, Georgia (the "Consent
Agreement"). Seller is currently negotiating a second amendment to the Consent
Agreement whereby Seller is seeking to set forth the final resolution of all
issues arising under the Consent Agreement and an acknowledgment by the parties
to the Consent Agreement that all obligations to be performed by Seller
thereunder have been performed, or if not which obligations of Seller remain.
Seller shall keep Buyer informed of the status of such second amendment and will
continue such negotiations in good faith and with all due diligence. In the
event that a second amendment acceptable to Seller and Buyer has not been
finalized by the date which occurs five (5) business days prior to the end of
the Inspection Period, and/or if Seller is unwilling to indemnify Seller for
post-Closing obligations arising under the Consent Agreement, whether or not
amended, Buyer shall have its termination rights under this Agreement as stated
herein or Buyer, at its option, may accept the Property subject to the Consent
Agreement, and Seller shall thereafter cooperate with Buyer, in good faith, to
pursue a second amendment to the Consent Agreement as aforesaid. Buyer
acknowledges and agrees that Seller makes no representation or warranty to Buyer
as to the ability of Seller to obtain such second amendment.
10.18 Agreements Concerning Certain Buildout Expenses and Tenant
Improvement Allowances. Seller has executed leases and delivered stores to four
tenants in Rivermont (Xxxxxxxx'x Bagels [Store 140], Details [Store 150], Calico
Corner [Store 170] and Pride Cleaners [Store 230]); and to five tenants in
Lovejoy (Georgia Medical [Store 100], China Kitchen [Store 135], Nail Expo
[Store 155], Supercuts [Store 200] and Subway [Store 240]), each of which
tenants has accepted its store, and each of which is responsible for the
buildout and fixturing of the store leased to it. Seller is obligated to pay to
each of the tenants a tenant improvement allowance. Seller acknowledges that the
payment of such tenant improvement allowances is the obligation of Seller and
that such obligation shall survive Closing. Seller will include in the Tenant
Estoppel Letter for each of the foregoing tenants a certification as to the
amounts remaining due from the Seller, as landlord, to such tenant(s). If a
particular allowance has not been paid by Closing, Seller and Buyer shall escrow
with the Escrow Agent with respect to each tenant to whom such allowance remains
unpaid, an amount to be agreed upon by Seller and Buyer during the Inspection
Period sufficient to cover the unpaid tenant improvement allowance due each of
such tenants. The portion of the escrowed sums due to each such tenant shall be
disbursed to the tenant by the Escrow Agent upon delivery to Escrow Agent (with
copies to Seller and Buyer) of the following with respect to each space:
(a) Certificate of occupancy;
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(b) Final payment affidavit and release of lien from the contractor
concerning such space (or alternatively, if such is not obtainable, the
expiration of the period during which construction liens may be filed with
respect to such work).
The portion of any sum escrowed for a particular tenant which is in excess of
that due and disbursed to the particular tenant shall be disbursed to Seller. If
the conditions for disbursement have not occurred by the date which is six (6)
months after Closing, Escrow Agent shall disburse to Seller any sums remaining
in escrow, Seller shall pay the remaining allowance(s) due each tenant as and
when due under the tenant's lease, and Seller shall indemnify and hold Buyer
harmless from any loss, expense or damage suffered by Buyer as a result of
Seller failing to do so.
10.19 Xxxxxx Xxxxxx Reimbursement. As of the execution of this Agreement
Xxxxxx Xxxxxx, Inc. ("Xxxxxx Xxxxxx"), which is a tenant at Rivermont, has not
reimbursed Seller the sums due Seller under Sections 5.1 and 7.3(d) of the
Xxxxxx Xxxxxx lease. Seller shall endeavor to collect said sums prior to
Closing, but if Seller shall be unable to do so, Seller shall retain its right
to such payment after Closing (which right shall be reserved in the Assignment
of Leases), but Seller agrees to look only to Xxxxxx Xxxxxx to collect said
sums. Seller may institute such actions at law as it may deem appropriate to
collect said sums, but Seller shall not seek to dispossess Xxxxxx Xxxxxx or
interfere with its use and enjoyment of its premises under the Xxxxxx Xxxxxx
lease.
10.20 Certain Unleased Space. As of the execution of this Agreement Spaces
115 (consisting of 1370 square feet) and 125 (consisting of 2123 square feet) in
Xxxxxxx are unleased. Should Seller prior to Closing lease either of such spaces
under an Approved Lease, Buyer shall pay to Seller at Closing an amount equal to
the product of $2.50 multiplied by the square footage of store area leased (the
"Unleased Space Payment"). An "Approved Lease" is defined as a lease acceptable
in all respects to Buyer, in its sole and absolute discretion, having an initial
term of no less than three (3) and no more than ten (10) years with a tenant who
is a bonafide third party unaffiliated with Seller. In the event Seller obtains
a proposed tenant and proposed lease for either of such spaces and submits said
proposed tenant and proposed lease to Buyer for its approval, Buyer shall have a
period of five (5) business days after the receipt of the proposed lease and any
related materials within which to respond to Seller in writing. If the response
is in the negative, said response must be supplied to Seller in writing within
said five (5) business days, along with a detailed list which defines and sets
forth in clear and understandable terms the reasons for turning down or negating
said potential tenant or potential lease. In the event Buyer does not respond or
take any action in regard to the written request or notice of a potential tenant
or potential lease (when and if said lease and reasonable supporting financial
and operating expense information are enclosed in the package) within said five
(5) business day period,
- 28 -
said potential tenant and potential lease shall be conclusively deemed to have
been approved by Buyer as of the end of such five (5) business day period, and
shall become an Approved Lease which Buyer shall be obligated to execute and
perform. An Approved Lease hereunder shall be deemed to be a Lease and included
with those to be assigned to Buyer at Closing. Should Buyer have rejected a
particular Approved Lease but subsequently within six (6) months following
Closing enter into a lease with the rejected tenant(s) on substantially the same
terms as the rejected lease, Buyer shall be obligated to pay Seller the Unleased
Space Payment which would be due Seller for such lease as if it had been an
Approved Lease prior to Closing. This Section shall expressly survive Closing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Witnesses:
RRC ACQUISITIONS, INC.,
____________________________ a Florida corporation
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
Official Witness (Notary) By:______________________________________
Its:__________________________________
----------------------------
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: April _____, 1997
Name (Please Print)
Unofficial Witness Tax Identification No. 00-0000000
"BUYER"
- 29 -
COUSINS REAL ESTATE CORPORATION,
____________________________ a Georgia corporation
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
Official Witness (Notary) By:________________________________
Its:____________________________
----------------------------
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Date: April _____, 1997
Name (Please Print)
Unofficial Witness Tax Identification No:_______________
"SELLER"
JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of acknowledging
receipt of the initial Xxxxxxx Money Deposit and agrees to comply with the terms
hereof insofar as they apply to Escrow Agent. Escrow Agent shall receive and
hold the Xxxxxxx Money Deposit in an interest bearing account in trust, to be
disposed of in accordance with the provisions of this joinder and Section of the
foregoing Agreement.
2. Indemnity. Escrow Agent shall not be liable to either party except for
claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow Agent
with respect to the escrow, the parties hereto expressly agree that Escrow Agent
shall have the absolute right to do either or both of the following: (i)
withhold and stop all proceedings in performance of this escrow and await
settlement of the controversy by final appropriate legal proceedings or
otherwise as it may require; or (ii) file suit for declaratory relief and/or
interpleader and
- 30 -
obtain an order from the court requiring the parties to interplead and litigate
in such court their several claims and rights between themselves. Upon the
filing of any such declaratory relief or interpleader suit and tender of the
Xxxxxxx Money Deposit to the court, Escrow Agent shall thereupon be fully
released and discharged from any and all obligations to further perform the
duties or obligations imposed upon it. Buyer and Seller agree to respond
promptly in writing to any request by Escrow Agent for clarification, consent or
instructions. Any action proposed to be taken by Escrow Agent for which approval
of Buyer and/or Seller is requested shall be considered approved if Escrow Agent
does not receive written notice of disapproval within fourteen (14) days after a
written request for approval is received by the party whose approval is being
requested. Escrow Agent shall not be required to take any action for which
approval of Buyer and/or Seller has been sought unless such approval has been
received. No disbursements shall be made, other than as provided in Sections and
of the foregoing Agreement, or to a court in an interpleader action, unless
Escrow Agent shall have given written notice of the proposed disbursement to
Buyer and Seller and neither Buyer nor Seller shall have delivered any written
objection to the disbursement within 14 days after receipt of Escrow Agent's
notice. No notice by Buyer or Seller to Escrow Agent of disapproval of a
proposed action shall affect the right of Escrow Agent to take any action as to
which such approval is not required.
4. Tax Identification.Seller and Buyer shall provide to Escrow Agent appro-
priate Federal tax identification numbers.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:_____________________________________
Its Authorized Agent
Date: April _____, 1997
"ESCROW AGENT"
- 31 -
EXHIBIT 1.3
Audit Representation Letter
---------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
Xxxxx 0000
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
We are writing at your request to confirm our understanding that your audit
of the Statement of Revenue and Certain Expenses for the twelve months ended
________________, was made for the purpose of expressing an opinion as to
whether the statement presents fairly, in all material respects, the results of
its operations in conformity with generally accepted accounting principles. In
connection with your audit we confirm, to the best of our knowledge and belief,
the following representations made to you during your audit:
1. We have made available to you all financial records and related data for
the period under audit.
2. There have been no undisclosed:
a. Irregularities involving any member of management or employees who
have significant roles in the internal control structure.
b. Irregularities involving other persons that could have a material
effect on the Statement of Revenue and Certain Expenses.
c. Violations or possible violations of laws or regulations, the
effects of which should be considered for disclosure in the Statement of Revenue
and Certain Expenses.
3. There are no undisclosed:
a.Unasserted claims or assessments that our lawyers have advised us are
probable of assertion and must be disclosed in accordance with Statement of
Financial Accounting Standards No. 5 (SFAS No. 5).
b. Material gain or loss contingencies (including oral and written
guarantees) that are required to be accrued or disclosed by SFAS No. 5.
c. Material transactions that have not been properly recorded in the
accounting records underlying the Statement of Revenue and Certain Expenses.
d. Material undisclosed related party transactions and related amounts
receivable or payable, including sales, purchases, loans, transfers, leasing
arrangements, and guarantees.
e. Events that have occurred subsequent to the balance sheet date that
would require adjustment to or disclosure in the Statement of Revenue and
Certain Expenses.
4. All aspects of contractual agreements that would have a material effect
on the Statement of Revenue and Certain Expenses have been complied with.
Further, we acknowledge that we are responsible for the fair presentation
of the Statements of Revenue and Certain Expenses prepared in conformity with
generally accepted accounting principles.
Very truly yours,
"Seller/Manager"
Name
Title
EXHIBIT 1.25
Legal Description of Real Property
EXHIBIT 1.25(a)
Site Plan - Rivermont
(To be attached)
EXHIBIT 1.25(b)
Site Plan - Xxxxxxx Station
(To be attached)
EXHIBIT 1.27
Rent Roll
EXHIBIT 1.32
Form of Estoppel Letter
_____________________, 199_
RRC Centers, Inc.
Attention: Xxxxxx X. Xxxxxx
Xxxxx 000, 000 X. Xxxxxxx Xx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Cousins Real Estate Corporation
Attention: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised that Regency Centers, Inc., or
its affiliate, may purchase the above Shopping Center, and we hereby confirm to
you that:
1. The undersigned is the Tenant of ____________________________________,
Landlord, in the above Shopping Center, and is currently in possession and
paying rent on premises known as Store No. _____ [or Address:
______________________], and containing approximately ______ square feet, under
the terms of the lease dated _________, which has (not) been amended by
amendment dated __________ (the "Lease"). There are no other written or oral
agreements between Tenant and Landlord. Tenant neither expects nor has been
promised any inducement, concession or consideration for entering into the
Lease, except as stated therein, and there are no side agreements or
understandings between Landlord and Tenant.
2. The term of the Lease commenced on ____________________, expiring on
___________________, with options to extend of ________________ (____) years
each.
3. As of _______________, monthly minimum rental is $____________ a
month.
4. Tenant is required to pay its pro rata share of Common Area Expenses and
its pro rata share of the Center's real property taxes and insurance cost.
Current additional monthly payments for expense reimbursement total
$____________ per month for common area maintenance, property insurance and real
estate taxes.
5. Tenant has given [no security deposit] [a security deposit of $_________].
6. No payments by Tenant under the Lease have been made for more than one
(1) month in advance, and minimum rents and other charges under the Lease are
current.
7. All matters of an inducement nature and all obligations of the Landlord
under the Lease concerning the construction of the Tenant's premises and
development of the Shopping Center, including without limitation, parking
requirements, have been performed by Landlord.
8. The Lease contains no first right of refusal, option to expand, option
to terminate, or exclusive business rights, except as follows:
9. Tenant knows of no default by either Landlord or Tenant under the Lease,
and knows of no situations which, with notice or the passage of time, or both,
would constitute a default. Tenant has no rights to off-set or defense against
Landlord as of the date hereof.
10. The undersigned has not entered into any sublease, assignment or any
other agreement transferring any of its interest in the Lease or the Premises
except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or
released any hazardous substances at, on or in the Premises. "Hazardous
Substances" means any flammable, explosive, toxic, carcinogenic, mutagenic, or
corrosive substance or waste, including volatile petroleum products and
derivatives and drycleaning solvents. To the best of Tenant's knowledge, no
asbestos or polychlorinated biphenyl ("PCB") is located at, on or in the
Premises. The term "Hazardous Substances" does not include those materials which
are technically within the definition set forth above but which are contained in
pre-packaged office supplies, cleaning materials or personal grooming items or
other items which are sold for consumer or commercial use and typically used in
other similar buildings or space.
The undersigned makes this statement for your benefit and protection with the
understanding that each of you intends to rely upon this statement in connection
with the intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from you,
commence to pay all rents to Regency Centers, Inc., or to its designee.
Very truly yours,
-----------------------------------
___________________________(Tenant)
Mailing Address:
________________________________ By:_____________________________
Its:___________________________
--------------------------------
EXHIBIT 4.6
Pending Litigation
None.
