AGREEMENT TO PURCHASE REAL ESTATE
THIS AGREEMENT made this 27th day of December, 1996, by and between:
SELLER: PUBLIX SUPER MARKETS, INC.
Post Office Box 407
Lakeland FL 33802-0407
BUYER: RRC ACQUISITIONS, INC.
Attention: Robert L. Miller
Suite 200, 121 W. Forsyth Street
Jacksonville, Florida 32202
ESCROW AGENT: James P. Hahn
HAHN, McCLURG, WATSON GRIFFITH & BUSH, P.A.
Post Office Box 38
Lakeland, FL 33802-0038
W I T N E S S E T H
WHEREAS, Seller has title to certain real property as is more
particularly described in Exhibit "A" attached hereto and made a part hereof
(hereinafter the "Real Property"); and
WHEREAS, Seller desires to sell and Buyer desires to buy the Real
Property under terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual recitals, the mutual
covenants and agreements set forth herein and good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, Seller agrees to
sell and Buyer agrees to buy the following described subject property upon the
following terms and conditions:
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I
DEFINITIONS
l. As used in this Agreement, the following terms shall
have the following meanings:
l.0l "Agreement" means this Agreement to Purchase Real Estate
as it may be amended from time to time.
l.02 "Buyer's Intended Use" means the operation upon the Real
Property of the existing shopping center.
l.03 "Closing" means the execution and delivery of those
documents and funds necessary to transfer fee simple title to the Subject
Property to the Buyer in accordance with the terms of the Agreement.
l.04 "Effective Date" means the last date on which Seller and
Buyer have both executed this Agreement.
1.05 "Subject Property" means:
(a) The Real Property, including but not
limited to, all buildings, tenements, hereditaments, easements, rights-of-way,
appurtenances, passages, water rights, drainage rights, and any and all other
rights, liberties and privileges thereon or in any way now or hereafter
appertaining, and including all right, title, and interest of the Seller in and
to all rights-of-way, easements, public and private streets, roads, avenues,
alleys, passageways and water rights (including any of the foregoing lying in
any road beds), in front of or abutting the Real Property or any portion
thereof; and
(b) All of Seller's right, title and interest
in, to and under any and all site plans, surveys, engineering soil reports and
studies, licenses, permits, approvals, sewer permits, utility permits, drainage
permits, rights and agreements and similar or equivalent private and
governmental documents of every kind and character whatsoever pertaining to,
applicable to or in any way connected with the Real Property, all to the extent
transferable; and
(c) Buyer shall notify Seller within thirty
(30) days following the Effective Date of which contracts described Buyer
desires to have assigned, which shall then be deemed to constitute the "Assigned
Contracts." Buyer acknowledges that Seller's assignment of any of the Assigned
Contracts may require the consent of the third party thereto over which Seller
has no control. Seller shall use reasonable efforts to obtain such consent;
provided, however, Seller's inability to obtain such
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consent shall not constitute a default hereunder, and shall not constitute a
condition to closing. However, in any event, the Seller shall assign to the
Buyer all warranties under the construction contracts and equipment purchase
agreements. Seller shall furnish to Buyer within fifteen days from the Effective
Date a list of contracts, leases, construction, warranties and equipment
purchase warranties, if they have not already been heretofore furnished prior to
the Effective Date.
l.06 "Title Insurance" means preliminary reports of title,
title insurance commitments and policies issued by Chicago Title Insurance
Company, (the "Title Insurance Company").
II
PURCHASE PRICE AND TERMS
2.0l Purchase Price. Buyer agrees to pay a total
purchase price consisting of Six Million Two Hundred Thousand and
NO/100 Dollars ($6,200,000.00) cash at Closing.
2.02 Earnest Money Deposit. Within three (3) days after the
Effective Date, Buyer shall deposit with the Escrow Agent the amount of Fifty
Thousand and NO/100 Dollars ($50,000.00), which Earnest Money Deposit shall be
held in an interest bearing account in accordance with the provisions
hereinafter stated. "Earnest Money Deposit" as used in this Agreement shall
include all interest earned on the Earnest Money Deposit. At the Closing as set
forth in this Agreement Buyer shall receive a credit against the cash payable at
Closing for the total amount of the Earnest Money Deposit including any and all
interest that has accrued thereon.
III
TITLE INSURANCE
3.0l Title Insurance.
(a) Within fifteen (15) days after the
Effective Date, Buyer shall furnish Buyer, at Buyer's sole cost and expense,
with a title insurance commitment (the "Commitment") committing the Title
Insurance Company to insure Buyer's title to the Real Property, together with
copies of all documents listed in the Commitment as exceptions or matters
required to be corrected prior to Closing. The Commitment and resulting title
insurance policy (the "Policy") shall be in the amount of the purchase price.
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All costs of the Commitment and Policy shall be paid by Seller. The Commitment
and resulting Policy shall be an ALTA standard form as currently authorized and
approved by the Insurance Commissioner of the State of Florida. There shall be
no exceptions to the Commitment or Policy except ad valorem taxes for the year
of Closing and subsequent years, the lease set forth in XVII hereof, and the
matters of record relating to the Real Property listed on Attorneys' Title
Insurance Policy #OPM-1073331 dated 5/25/96 as amended by Endorsement #1 dated
10/2/95, all in Exhibit "B" attached hereto to which Buyer waives any and all
objections unless objections are made within thirty (30) days from the Effective
Date (which items shall be the "Permitted Exceptions" unless objection is made
as aforesaid). If any future title commitment prior to Closing (including one
which Seller will cause to be delivered to Buyer's attorney within two (2) days
prior to the date of Closing) reveals other restrictions or easements which are
not caused by Buyer and which would prohibit or materially and adversely affect
Buyer's Intended Use of the Real Property, Seller shall make all reasonable
efforts as set forth herein to cure any such objections provided such objections
are made to Seller by Buyer in writing within fifteen (15) days of delivery to
Buyer of such title commitment revealing such objections, otherwise, Buyer shall
be deemed to have waived its right to so object, in which event such objections
shall constitute Permitted Exceptions. The Policy shall insure marketable title.
The Commitment shall be delivered to Buyer's attorney, unless Buyer directs
otherwise. Buyer or Buyer's attorney shall give written notice to the Seller of
any objections by the Buyer to the title. The Buyer shall not be required to
make objection to the existence of any mortgage lien, materialmen or mechanic's
lien, assessment lien or any other lien encumbering all or any part of the Real
Property, all of which are hereby deemed to be title objections. After due
notice, Seller shall have a reasonable time, not to exceed sixty (60) days, to
(i) cure any title defect, or (ii) have the exception waived or bonded over by
the Title Insurance Company, or (iii) have the Title Insurance Company provide
affirmative coverage regarding such exception, or (iv) have such exception
otherwise deleted from the Commitment and Policy, none of which (i) through (iv)
shall cause the title to be unmarketable, and, if necessary, the Closing shall
be delayed for that period. If Seller fails to cure or otherwise eliminate as
provided herein any title defect as to which due notice has been given within
said time period, Buyer shall have the option to terminate this Agreement by
providing notice thereof to Seller within five (5) days following said sixty
(60) day period whereupon this Agreement shall terminate and the Buyer shall be
paid all Earnest Money Deposits. In the event Buyer terminates this Agreement,
Seller shall bear all title insurance charges. In the alternative, Buyer shall
have the right to accept the title in its then existing condition and proceed to
Closing as otherwise provided herein by providing notice thereof to Seller
within five (5) days following said sixty (60) day period. Buyer's failure to
provide either the notice of termination or acceptance shall be
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deemed to constitute an acceptance of title and the transaction shall close
subject to the terms of this Agreement. Seller agrees to use reasonable efforts
to cure all title defects.
(b) Seller shall cause the Title Insurance
Company to issue such endorsements to the Commitment and Policy as shall be
required by Buyer subject to the terms of this Agreement.
3.02 Affidavits. At Closing, Seller shall provide the Title
Insurance Company with an Affidavit of No Lien and such additional documentation
as is required in such form as is necessary to enable the Title Insurance
Company issuing said Commitment to remove the mechanic's lien and parties in
possession exceptions from the Commitment and the Policy.
IV
CLOSING
4.0l Closing. The Closing shall take place on or before ten
(10) days after the completion of the Property Inspection and Buyer has not
cancelled and terminated this agreement, as provided in paragraph 10.01 hereof,
at the offices of Seller's attorneys in Lakeland, Florida. The parties mutually
agree that time is of the essence and that each party shall pursue in good faith
preparation for closing.
4.02 Closing Costs.
(a) Seller: Seller will pay all costs of (i)
preparation and recordation of any instruments necessary to correct title
subject to the terms of this agreement; and (ii) Seller's attorney's fees.
(b) Buyer: Buyer will pay all costs of (i)
the Title Insurance Commitment and Policy premium plus endorsements; (ii)
documentary stamps to be affixed to the Deed; (iii) recording the deed; (iv)
Buyer's attorney's fees; and (v) for any additional survey desired by the Buyer.
4.03 Documents to be Delivered by Seller at Closing. At the
time of Closing, the Seller and Buyer, as appropriate, shall execute and deliver
or cause to be delivered executed originals of the following documents:
(a) Customary Special Warranty Deed (the
"Deed") conveying good and marketable title of the Real Property to
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Buyer subject to the Permitted Exceptions.
(b) Affidavit of No Lien as required by
Article 3.02 above.
(c) Affidavit in compliance with the Foreign
Investment in Real Property Tax Act of 1980, as amended, affirming that the
Seller is not a "foreign person" as defined by the Internal Revenue Code.
(d) The Assignment and Assumption Agreement
assigning the Assigned Contracts and transferring the matters covered by Article
1.05(b) to the extent transferable.
(e) Such other documents as the Parties may
reasonably require to be executed and delivered to complete the
transaction contemplated hereunder.
(f) Mechanic's lien, possession and gap
affidavits, and any other such affidavits or documents as may be
required by the Title Insurance Company.
(g) Closing Statement.
(h) Restrictions described in XVI hereof.
(i) Lease described in XVII hereof.
Seller shall deliver copies of all documents to be delivered at Closing to
Buyer's attorney not less than three (3) days prior to Closing.
4.04 Prorations. The following adjustments to the
Purchase Price shall be made at the Closing by proration of the
amounts as specified below as of 11:59 p.m. of the date preceeding
the closing:
(a) Ad valorem real estate and personal
property taxes applicable to the Properties for 1996, such apportionment to be
made on the basis of the previous year's taxes unless the bill therefor is
available. Once the taxes for 1996 are established, upon written demand by
either party, the parties shall promptly recompute such proration in accordance
with the current tax figures, and any excess payment or credit received by a
party shall promptly be reimbursed by it to the other party. Buyer shall have
the right to contest the 1996 taxes and Seller shall provide Buyer with any
information in Seller's possession to assist such contest. The provisions for
readjustment of taxes are intended to and shall survive the Closing of this
transaction.
(b) Water and sewer rentals, charges for the
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supply of electricity, gas, trash collection and other utility and
service charges.
(c) Charges and receipts under service,
maintenance, and other like contracts affecting the Subject Property. The amount
of charges paid by Seller prior to the Closing and attributable to a period
after the Closing shall be credited to Seller. The amount of receipts received
prior to the Closing and attributable to a period after the Closing shall be
credited to Buyer.
(d) All other proratable items with respect to
the Subject Property, including, but not limited to, rents. Security deposits
shall be transferred as an escrow item which shall not adjust the Purchase
Price. Rents and reimbursements for periods prior to Closing which have not been
collected as of Closing, shall be applied first to post-Closing date
delinquencies, and then to pre-Closing date delinquencies.
(e) All items to be adjusted for which figures
are not available at the Closing, including real estate taxes for the year 1996,
will be adjusted, and payment therefor will be made by Seller to Buyer or by
Buyer to Seller, as appropriate, as soon as figures are available after the
Closing and, in the case of revenues, if any, when they are collected.
V
WARRANTIES AND REPRESENTATIONS
5.0l Seller's Warranties. Seller hereby warrants,
represents and covenants (which warranties, representations and
covenants shall be effective as of the date of Closing) the
following:
(a) The Seller has neither assigned nor
pledged, nor will assign or pledge this Agreement to any other person, and that
Seller has full power and authority to execute this Agreement.
(b) That Seller has not entered into any
outstanding agreements of sale, options or other rights of third parties to
acquire an interest in the Subject Property, except for leases in existence on
the date of this Agreement.
(c) That Seller has not entered into any
agreements which are not of record with any state, county or local governmental
authority or agency other than (i) those approved in writing by Buyer with
respect to the Subject Property, or (ii)
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those that will not have a material adverse effect on Buyer's Intended Use.
(d) That Seller has full power to sell,
convey, transfer and assign the Subject Property on behalf of all parties having
an interest therein. That Seller is a Florida corporation duly organized and
validly existing in good standing under the laws of the State of Florida; this
Agreement and all documents executed by Seller which are to be delivered to
Buyer at Closing are, or at the time of Closing will be, (i) duly authorized,
executed and delivered by Seller, (ii) the legal, valid and binding obligation
of Seller, and (iii) sufficient to convey title as required by this Agreement.
Buyer will give a warranty, representation and covenant like this 5.0l(d) to
Seller.
(e) That except as may be set forth in any
existing Environmental Audits of the Real Property which will be provided by
Seller to Buyer within five (5) working days from the Effective Date, Seller
will inform Buyer within the inspection period in Article l0.0l hereof of any
violations of any federal or state environmental law or regulation, including,
but not limited to, 42 U.S.C., Section 59601 et. seq. (CERCLA) and 42 U.S.C.,
Section 6901 et. seq. (RCRA) that affect the Real Property of which the Seller
has knowledge.
(f) That to the best of Seller's knowledge,
there are no pending condemnation or similar proceedings affecting the Real
Property, and Seller will inform Buyer within the inspection period in Article
l0.0l hereof of any threatened condemnation of which the Seller has knowledge.
(g) That to the best of Seller's knowledge,
there are no violations of any law, statute, regulation, governmental code or
ordinance with respect to the Real Property, other than those that would not
have a material affect on the Real Property.
(h) That to the best of Seller's knowledge,
there is no litigation or administrative proceeding pending which affects the
Real Property, and Seller will inform Buyer within the inspection period in
Article l0.0l hereof of any such matters that are threatened of which the Seller
has knowledge.
(i) There are no leases affecting the Real
Property, oral or written, except as listed on the Rent Roll, and any Leases or
modifications entered into between the date of this Agreement and the Closing
Date with the Consent of Buyer. Copies of the leases, which have been delivered
to Buyer or shall be delivered to Buyer within five (5) days from the date
hereof, are, to the best knowledge of Seller, true, correct and complete copies
thereof, subject to the matters set forth on the Rent Roll. Between the date
hereof and the Closing Date, Seller will not
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terminate or modify existing leases or enter into any new leases without the
consent of Buyer. All of the Property's tenant leases are in good standing and
to the best of Seller's knowledge no defaults exist thereunder except as noted
on the Rent Roll. No rent or reimbursement has been paid more than one (1) month
in advance and no security deposit has been paid, except as stated on the Rent
Roll. No tenants under the leases are entitled to interest on any security
deposits. No tenant under any lease has or will be promised any inducement,
concession or consideration by Seller other than as expressly stated in such
lease, and except as stated therein there are and will be no side agreements
between Seller and any tenant.
(j) Each of the seller financial statements
for the Property ("Seller Financial Statements") delivered or to be delivered to
Buyer hereunder has or will have been prepared in accordance with the books and
records of Seller and presents fairly in all material respects the financial
condition, results of operations and cash flows for the Property as of and for
the periods to which they relate. All are in conformity with generally accepted
accounting principles applied on a consistent basis. There has been no material
adverse change in the operations of the Property or its prospects since the date
of the most recent Seller Financial Statements. Seller covenants to furnish
promptly to Buyer copies of the Seller Financial Statements together with
unaudited updated monthly reports of cash flow for interim periods beginning
after December 31, 1995. Buyer and its independent certified accountants shall
be given access to Seller's books and records at any time prior to and for six
(6) months following Closing upon reasonable advance notice in order that they
may verify the financial statements prior to Closing. Seller agrees to execute
and deliver to Buyer or its accountants the Audit Representation Letter should
Buyer's accountants audit the records of the Shopping Center.
(k) On the date of Closing, Seller will
recertify to Buyer, in writing, that all of Seller's representations and
warranties, as contained in this Agreement, remain true and correct except in
such respects as are not likely to have a material adverse effect on Buyer's
Intended Use, but the same shall not survive closing.
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VI
SURVEY
6.0l Seller, at Seller's sole cost and expense, will furnish
to Buyer an existing previous ALTA/ACSM Land Title Survey of the Real Property
(the "Survey") within ten (10) working days after the Effective Date. The Survey
will be dated and signed by a registered and/or licensed land surveyor in
Florida. The Buyer may obtain such additional surveys as Buyer desires, at
Buyer's expense.
VII
SELLER'S COOPERATION: PLANS AND TECHNICAL DATA
7.0l Access to Information. Within ten (10) working days after
the Effective Date Seller shall provide Buyer and its representatives full and
free access to all documents of Seller pertaining to the Subject Property,
including but not limited to maintenance, improvement, repair, and other
records, utility agreements, plans and specifications, studies, reports,
correspondence and files, if any, all architectural and building plans,
engineering plans and technical data including but not limited to all sewer,
water, grading, drainage and paving plans, surveys and all letters,
applications, permits or licenses from applicable governmental agencies prepared
which are in the possession of Seller, and all other records relating to the
Subject Property. All information gained by the Buyer hereunder shall be
maintained in confidence, shall not be disclosed to any third party and shall be
used only for purposes of carrying out the transaction contemplated by this
Agreement, except that said information may be shown to lenders, attorneys and
prospective purchasers.
VIII
EMINENT DOMAIN
8.0l If, prior to the Closing, any or all of the Real Property shall be
condemned or taken by any governmental or quasigovernmental authority under its
power of eminent domain, or if proceedings for such condemnation or taking shall
be commenced, the Buyer, at Buyer's option, to be exercised by written notice
within ten (10) days of Buyer receiving written notice of such condemnation, may
cancel this Agreement, or at
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Buyer's option, the Buyer may agree to close this transaction and the Seller
shall assign all awards from the eminent domain proceedings to the Buyer.
IX
ACCESS TO PROPERTY
9.0l Possession. Seller shall deliver to Buyer the sole and
exclusive possession of the Real Property as of the date of Closing subject to
the Permitted Exceptions.
X
PROPERTY INSPECTION
l0.0l Property Inspection. For and in consideration of the sum
of Ten Dollars ($10.00) and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Seller agrees that Buyer shall
have until thirty (30) days after the "Effective Date" of this Agreement (the
"Inspection Period") to conduct such inspections, tests, surveys or studies,
subject to Seller's right to be present at or during any such activities and to
be provided with any samples or test results relating thereto. Buyer agrees that
it will have the Inspection Period to physically inspect the Property, review
the economic data, underwrite the tenants and review their leases, and to
otherwise conduct its due diligence review of the Property and all books,
records and accounts of Seller related thereto. Buyer hereby agrees to indemnify
and hold Seller harmless from any damages, liabilities or claims for property
damage or personal injury arising out of such inspection and investigation by
Buyer or its agents or independent contractors. Within the Inspection Period,
Buyer may, in its sole discretion and for any reason or no reason, elect to go
forward with this Agreement to closing, which election shall be made by notice
to Seller given within the Inspection Period. If such notice is not timely
given, this Agreement and all rights, duties and obligations of Buyer and Seller
hereunder, except any which expressly survive termination, shall terminate and
Escrow Agent shall forthwith return to Buyer the Earnest Money Deposit. If Buyer
so elects to go forward, the Earnest Money Deposit shall not be refundable
except upon the terms otherwise set forth herein. The Inspection Period may be
extended by Buyer for three successive periods of thirty (30) days each, by
written notice to Seller given within the Inspection Period, as
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extended, as the case may be. Buyer, through its officers, employees and other
authorized representatives, shall have the right to reasonable access to the
Property and all records of Seller related thereto, including without limitation
all leases and Seller Financial Statements, at reasonable times during the
Inspection Period for the purpose of inspecting the Property, taking soil
borings, conducting Hazardous Materials inspections, reviewing the books and
records of Seller concerning the Property and otherwise conducting its due
diligence review of the Property. Seller shall cooperate with and assist Buyer
in making such inspections and reviews. Seller shall give Buyer any
authorizations which may be required by Buyer in order to gain access to records
and 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. 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.
l0.02 Property Condition And Release. Buyer hereby acknowledges that it is
responsible for inspecting the Subject Property, all fixtures and attached
equipment and articles of personal property and the Buyer accepts the Subject
Property, the fixtures and attached equipment and articles of personal property
in their AS IS, WHERE IS condition as of the date of Buyer's completion of
inspection without cancellation and termination as per Article l0.0l hereof,
subject to the provisions of Article 5.01 hereof. Further, Buyer hereby releases
Seller as hereafter set forth.
(a) Each of the following terms used in this
paragraph shall have the meaning set forth below:
(i) "Released Parties" means Seller and its officers, directors, shareholders,
employees, agents, any entity controlling, controlled by, or under common
control with Seller, and the successors, and assigns of any of the foregoing
persons or entities.
(ii) "Environmental Laws" means any and
all applicable (a) federal, state and local environmental laws, rules, and
regulations; (b) rules, regulations, guidelines or policy statements,
orders, or requests promulgated under or issued in connection with such
laws, rules, or regulations; and (c) amendments to any of the foregoing.
(iii) "Hazardous Substances" means,
collectively and without regard to quantity, concentration,
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location, physical state, or other reporting, clean-up, or other
regulatory threshold, (a) any "hazardous substance" under the
Comprehensive, Environmental Response, Compensation, and Liability Act, 42
U.S.C. 9601 et. seq., (b) any hazardous substances under applicable
Florida environmental laws, (c) petroleum or petroleum-based products (or
any derivative or hazardous constituents thereof or additives thereto),
including without limitation, fuel and lubricating oils, and (d) any
asbestos containing materials, any "hazardous chemicals" or "toxic
chemicals" under the Occupational Safety and Health Act, 29 U.S.C. ss.ss.
651 et. seq. References to particular acts or modifications in this
definition include all past and future amendments thereto, as well as
applicable rules and regulations as now or hereafter promulgated
thereunder.
(iv) "Presence" means the presence on the
Subject Property of any Hazardous Substances and the use, possession,
storage, disposal, burial, or deposit of any Hazardous Substances on the
Subject Property.
(v) "Release" means the threatened or
actual release, discharge, spillage, uncontrolled loss, seepage or
filtration of Hazardous Substances onto the Subject Property, or from the
Subject Property onto any adjacent or contiguous property.
(b) As material consideration for the purchase
of the Subject Property, Buyer hereby knowingly, intentionally, unconditionally,
irrevocably, and permanently waives, releases, discharges, and agrees not to
assert or seek damages or other relief from any of the Released Parties for or
on account of, any claim, demand, cause of action, or other right or remedy of
any kind or character that Buyer or any of its employees, agents, successors,
and assigns may now or hereafter have or acquire against any of the Released
Parties, whether known or unknown to Buyer or any of the Released Parties,
disclosed or not disclosed to Buyer by any of the Released Parties, liquidated
or unliquidated, contingent or matured, relating in whole or in part, or
directly or indirectly to, or in any way arising out of (i) the violation of any
Environmental Law on the Subject Property by any Released Party, (ii) the
Presence of any Hazardous Substances on the Subject Property, or (iii) the
Release of any Hazardous Substances onto the Subject Property, or from the
Subject Property onto any adjacent or contiguous property. The foregoing release
is specifically intended to include (but not be limited to) any claims, demands,
causes of action, or other rights and remedies of Buyer under the Comprehensive,
Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C.
9601 et. seq., including claims for response costs or contribution.
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XI
CONDITIONS PRECEDENT TO CLOSING
ll.0l This Agreement and the obligation of Buyer to close this
transaction and to pay any portion of the Purchase Price to Seller is
exclusively conditioned upon satisfaction of each of the following Conditions
Precedent (any of which may be waived by Buyer in writing) prior to Closing.
ll.02 Agreement To Remain in Effect. That this Agreement
remain in full force and effect and that there shall not exist a right on the
part of the Seller to either terminate the rights of Buyer under this Agreement,
or seek the recovery of damages against Buyer provided Buyer's right not to
close shall not be in derogation of Seller's right to retain the earnest money
deposit as provided in 13.01(3) below.
ll.03 Performance of Seller. That Seller shall comply fully in
all material respects with all of Seller's obligations and duties under this
Agreement.
ll.04 Representations. That all representations, covenants and
warranties of Seller contained in this Agreement including, but not limited to,
those set forth in Paragraph V hereof, shall be true, satisfied and documented
in all material respects as of the date of Closing.
In the event any of the foregoing conditions precedent have not been satisfied
prior to closing as required herein, which will cause a material adverse effect,
and the Buyer has not waived such condition in writing, then Buyer shall have
the option to (i) cancel and terminate this Agreement and have the right to
immediate return of the Earnest Money Deposit described in Paragraph 2.02 above,
whereupon this Agreement shall be terminated; or (ii) waive said condition and
close on the transaction in accordance with the terms hereof.
11.05 That reasonably acceptable Tenant Estoppel Letters shall
be obtained, that there shall be no material adverse change in the condition of
the Subject Property nor as to the tenant's leasing space in the Subject
Property and that Publix and the other two tenants in the Subject Property shall
have opened business in the shopping center and shall have commenced paying
rent, all as of Closing Date.
XII
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RISK OF LOSS
l2.0l Damage or Destruction. In the event of loss or damage to
the Subject Property prior to Closing either by fire or other casualty, the
Buyer, at Buyer's option, may rescind Buyer's obligations to close on this
Agreement and receive an immediate refund of the Earnest Money Deposit, or Buyer
may elect to close on this Agreement and take title to the Subject Property
together with whatever insurance proceeds accrue by virtue of said loss or
damage, plus a credit at Closing in the amount of any deductible payable under
any insurance policy.
XIII
REMEDIES
l3.0l Default. In the event of a default by the
Seller, the Buyer shall have the following options:
1. Sue Seller for specific performance
including recovery of court costs and attorney's fees with respect
thereto.
2. Rescind Buyer's obligations to close on
this agreement and demand refund of the Escrow Deposit together with interest
thereon.
3. In the event that all conditions precedent
have been fulfilled and Buyer fails to close this transaction, the Seller shall
have, as Seller's sole and exclusive remedies, the right to retain the Earnest
Money Deposit as liquidated damages or to sue for specific performance including
court costs and attorney's fees with respect thereto. The Buyer and Seller
hereby acknowledge that it is impossible to more precisely estimate the damages
to be suffered by Seller upon Buyer's default and the parties expressly
acknowledge that retention of the Earnest Money Deposit is intended not as a
penalty but as fully liquidated damages. In the event of a default hereunder by
Buyer and if Seller retains the Earnest Money Deposit, Seller hereby waives and
releases any right, and hereby covenants that it shall not sue Buyer (a) for
specific performance of this Agreement or (b) to prove that Seller's actual
damages exceed the Earnest Money Deposit.
13.02 Interest on Escrow Funds. In the event that
the Closing shall take place, then any interest earned on the
Earnest Money Deposit shall be credited to the Buyer as a portion
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of the cash required to be paid at Closing. In the event that the Closing fails
to take place through default of the Seller and the Buyer shall demand a refund
of the Earnest Money Deposit in accordance with any of the terms of this
Agreement, then said interest shall be paid to the Buyer. In the event that the
Closing fails to take place through a default of the Buyer, Seller shall be
entitled to the Earnest Money Deposit paid hereunder, together with all interest
earned on the Earnest Money Deposit if the Seller accepts same as liquidated
damages.
XIV
BROKER'S COMMISSION
l4.0l Seller warrants and represents that no broker or finder
has been engaged by or represents Seller as to this Agreement. Buyer warrants
and represents that no broker or finder has been engaged by or represents Buyer
as to this Agreement. Seller and Buyer each agree to indemnify, defend and hold
the other harmless from and against any claim by any other real estate broker or
finder engaged by the respective indemnitor.
XV
ESCROW AGENT
l5.0l Duties. It is agreed that the duties of any Escrow Agent
appointed under this Agreement are only such as are specifically provided herein
being purely ministerial in nature, and that such Escrow Agent shall incur no
liability whatsoever except for willful misconduct or negligence so long as the
Escrow Agent has acted in good faith. The Seller and Buyer release any Escrow
Agent from any act done or omitted to be done by the Escrow Agent in good faith
in the performance of such Escrow Agent's duties hereunder.
l5.02 Responsibilities. The Escrow Agent shall be under no
responsibility in respect to the Earnest Money Deposit other than faithfully to
follow the instructions herein contained. The Escrow Agent may advise with
counsel and shall be fully protected in any actions taken in good faith, in
accordance with such advice. The Escrow Agent shall not be required to defend
any legal proceedings which may be instituted against such Escrow Agent in
respect to the subject matter of these instructions unless requested to do so by
Seller and Buyer and is indemnified to the satisfaction of such Escrow Agent
against the cost and expense of
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such defense. The Escrow Agent shall not be required to institute legal
proceedings of any kind; such Escrow Agent shall have no responsibility for the
genuineness or validity of any document or other item deposited with such Escrow
Agent, and shall be fully protected in acting in accordance with any written
instructions given to such Escrow Agent hereunder and believed by such Escrow
Agent to have been signed by the proper parties.
l5.03 Sole Liability. The Escrow Agent assumes no liability
under this Agreement except that of a stake holder. If there is any dispute as
to whether the Escrow Agent is obligated to deliver the Earnest Money Deposit or
as to whom such Earnest Money Deposit is to be delivered, the Escrow Agent will
not be obligated to make any delivery thereof, but in such event may hold the
Earnest Money Deposit until receipt by such Escrow Agent of any authorization in
writing signed by all of the persons having an interest in such dispute,
directing the disposition thereof, or in the absence of such authorization, the
Escrow Agent may hold the Earnest Money Deposit until the final determination of
the rights of the parties in an appropriate proceeding. If such written
authorization is not given, or proceedings for such determinations are not begun
and diligently continued, the Escrow Agent may, but is not required, bring an
appropriate action or proceeding for leave to deposit the Earnest Money Deposit
into the Registry of the Court pending such determination. In making delivery of
the Earnest Money Deposit in the manner provided for in this Agreement, the
Escrow Agent shall have no further liability in the matter.
l5.04 Confirmation of Deposit. The Escrow Agent for the
Earnest Money Deposit has executed this Agreement at the bottom hereof to
confirm that such Escrow Agent is holding and/or will hold the Earnest Money
Deposit in Escrow pursuant to the provisions of this Agreement. The Earnest
Money Deposit shall be deposited in an interest bearing account.
l5.05 Successor Escrow Agent. The foregoing requirements of
the Escrow Agent shall be applicable to the initial Escrow Agent and all
subsequent Escrow Agents following the transfer of the Escrow Deposit upon
completion of the Property Inspection Period. It is understood and agreed that
all times prior to the closing and transfer of title that the Earnest Money
Deposits shall be the subject of an Escrow and governed according to the terms
set forth herein. Any and all Escrow Agents as set forth herein and at various
times herein shall at the request of either party provide written acknowledgment
of the continued escrow of the Escrow Deposit and the amount of interest that
has accrued thereon.
XVI
RESTRICTIONS
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17
Parcel B on Exhibit "C" attached hereto, Martin Downs Village Center
(former Publix location) as shown on Exhibit "D" attached hereto, and Ocean East
Shopping Center in which Stuart Fine Foods is located as shown on Exhibit "E"
attached hereto, shall all be restricted against use as a grocery supermarket
(except for the existing Stuart Fine Foods), and an appropriate restriction
thereon shall be recorded at closing, all of which shall be in accordance with
the Restrictions as to defined in the form of lease attached hereto as Exhibit
"F."
XVII
Seller as Tenant and Buyer as Landlord agree at closing to enter into the
form of lease attached hereto as Exhibit "F," with an amount of rental set forth
in a separate memorandum.
XVIII
MISCELLANEOUS
l8.0l Notices. Any notice required or permitted to be given
hereunder shall be sufficient in writing and sent by registered or certified
mail, postage prepaid, or sent by expedited courier service to the party being
given such notice at the address heretofore given herein or at such other
address as to which notice is to be given in accordance with the provisions
herein. A copy of any notice shall also be given to James P. Hahn, Esquire,
HAHN, McCLURG, WATSON GRIFFITH & BUSH, P.A., 101 South Florida Avenue, Post
Office Box 38, Lakeland, Florida, 33802, attorney for Seller, and to ULMER,
MURCHISON, ASHBY & TAYLORD, Attn: William E. Scheu, Esquire, Post Office Box
479, Suite 1600, 200 West Forsyth Street, Jacksonville, Florida, 32201 (32202
for courier), attorney for Buyer.
l8.02 Entire Agreement. This Agreement is the
entire Agreement of the parties with regard to the transaction
dealt with herein.
l8.03 Assignment. Buyer shall not have the right to assign any
part or all of this Agreement without the written consent of the Seller, which
consent shall not be unreasonably withheld. However, the Seller does hereby
consent to the assignment of this agreement and the lease attached hereto, to
RRC FL THREE.
l8.04 Survival of Agreement. The terms and
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conditions of this Agreement shall survive the Closing hereof and the delivery
of all related documents subject to any applicable period of survivability as
provided herein including warranties and representations not surviving closing.
l8.05 Time is of the Essence. The parties acknowledge that
time is of the essence for each time and date specifically set forth in this
Agreement.
l8.06 Modification. The parties acknowledge that this
Agreement is the entire agreement between the parties and that this Agreement
may be modified only by a written instrument signed by all parties.
l8.07 Attorney's Fees. In the event of any litigation between
the parties arising out of this Agreement or the collection of any funds due the
Buyer or the Seller pursuant to this Agreement, the prevailing party shall be
entitled to recover all costs incurred, such costs to include without limitation
reasonable attorney's fees, also including attorney's fees on appeal and in any
bankruptcy proceedings, and this provision shall survive the termination of this
Agreement.
l8.08 Waiver. No waiver hereunder of any condition or breach
shall be deemed to be a continuing waiver of any subsequent breach and all
waivers shall be in writing.
l8.09 Headings. Headings used herein are for
convenience only and do not constitute a substantive part of this
agreement.
l8.l0 Choice of Law. This Agreement shall be
governed by the laws of the State of Florida.
l8.ll Extension of Time Periods. In the event that the last
day of any period of time specified in this Agreement shall fall on a weekend or
legal holiday, such period of time shall be extended through the end of the next
work day.
l8.l2 Time for Acceptance. In order for this Agreement to have
any legal force and effect, this Agreement shall be accepted and executed by the
Seller and delivered to the Buyer within seven (7) business days after execution
hereof by the Buyer and delivery thereof to Seller. In the event this Agreement
is not accepted, executed and delivered by Seller as stated herein, the
Agreement shall be considered null and void and of no legal force and effect.
l8.l3 Radon Gas Notification. Radon is a naturally
occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to
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19
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 and radon testing may be obtained some from your local county
public health unit.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year first above written.
AS TO SELLER:
PUBLIX SUPER MARKETS, INC.
A Florida corporation
WITNESSES:
By:
CHARLES H. JENKINS, JR.
As Chairman of the Executive
Committee
DATED: day of , 1996
AS TO BUYER:
RRC ACQUISITIONS, INC.
WITNESSES:
By:
DATED: day of , 1996
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20
STATE OF FLORIDA
COUNTY OF POLK
Before me the undersigned authority, this day appeared CHARLES H. JENKINS,
JR., known to me and known to me to be the individual described in and who
executed the foregoing instrument as Chairman of the Executive Committee of
PUBLIX SUPER MARKETS, INC., a Florida corporation named in the foregoing
instrument, and he acknowledged to and before me that he executed said
instrument on behalf of and in the name of said Florida corporation with
authority to execute said instrument and that said instrument is the free act
and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this day of , 1996.
NOTARY PUBLIC
Print Notary Name:
(SEAL) STATE OF FLORIDA AT LARGE
My Commission Expires:
Commission Number:
STATE OF
COUNTY OF
Before me the undersigned authority, this day appeared
_____________________________, known to me and known to me to be the individual
described in and who executed the foregoing instrument as of , a
____________________________ named in the foregoing instrument, and he
acknowledged to and before me that he executed said instrument on behalf of and
in the name of said _____________ with authority to execute said instrument and
that said instrument is the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this day of , 1996.
NOTARY PUBLIC
Print Notary Name:
(SEAL) STATE OF AT LARGE
My Commission Expires:
Commission Number:
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21
RECEIPT
Receipt of the Earnest Money Deposit is herewith acknowledged in the
amount and in accordance with the foregoing Agreement.
This day of , 1996.
ESCROW AGENT:
HAHN, McCLURG, WATSON, GRIFFITH & BUSH
BY:
JAMES P. HAHN, President
C:\WP\MARTINDO.2ND
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Description
All of Village Shoppes at the Downs according to the plat thereof as recorded in
Plat Book 10, Page 65, Public Records of martin County, Florida. Said lands
lying in Martin County, Florida.
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EXHIBIT "E"
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EXHIBIT "F"
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AUDIT REPRESENTATION LETTER
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