PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 7th day of November, 1996, between DURHAM
WOODCROFT ASSOCIATES LIMITED PARTNERSHIP, a North Carolina limited partnership
("Seller"), and RRC ACQUISITIONS, INC., a Florida corporation ("Buyer").
Background
Buyer wishes to purchase a shopping center in the City of Durham, State of
North Carolina, owned by Seller, known as the Woodcroft Shopping Center (the
"Shopping Center");
Seller wishes to sell the Shopping Center to Buyer;
In consideration of the mutual agreements herein, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller
agrees to sell and Buyer agrees to purchase the Property (as hereinafter
defined) on the following terms and conditions:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Agreement means this instrument as it may be amended from time to time.
1.2 Allocation Date means the close of business on the day immediately
prior to the Closing Date.
1.3 Audit Representation Letter means the form of Audit Representation
Letter attached hereto as Exhibit 1.3.
1.4 Buyer means the party identified as Buyer on the initial page hereof.
1.5 Closing means generally the execution and delivery of those documents
and funds necessary to effect the sale of the Property by Seller to Buyer.
1.6 Closing Date means the date on which the Closing occurs.
1.7 Contracts means all service contracts, agreements or other instruments
to be assigned by Seller to Buyer at Closing.
1.8 Day means a business day, whether or not the term is capitalized.
1.9 Earnest Money Deposit means the deposit delivered by Buyer to Escrow
Agent prior to the Closing under Section 2.2 of this Agreement, together with
the earnings thereon, if any.
1.10 Environmental Claim means any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Material or actual or alleged Hazardous Material Activity, (c) from
any abatement, removal, remedial, corrective, or other response action in
connection with a Hazardous Material, Environmental Law or other order of a
governmental authority or (d) from any actual or alleged damage, injury, threat,
or harm to health, safety, natural resources, or the environment.
1.11 Environmental Law means any current legal requirement in effect at
the Closing Date pertaining to (a) the protection of health, safety, and the
indoor or outdoor environment, (b) the conservation, management, protection or
use of natural resources and wildlife, (c) the protection or use of source water
and groundwater, (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation or handling of, or exposure to, any
Hazardous Material or (e) pollution (including any Release to air, land, surface
water, and groundwater); and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq.,
Solid Waste Disposal Act, as amended by the Resource Conservation Act of 1976
and Hazardous and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC
1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic
Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801, Occupational Safety and Health Act of
1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC App.
11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321 et seq.,
Safe Drinking Water Act of 1974, as amended by 42 USC 300(f) et seq., and any
similar, implementing or successor law, any amendment, rule, regulation, order
or directive, issued thereunder.
1.12 Escrow Agent means Ulmer, Murchison, Ashby & Taylor, Attorneys, whose
address is Suite 1600, SunTrust Building, 200 West Forsyth Street, Jacksonville,
Florida 32202 (Fax 904/354-9100), or any successor Escrow Agent.
1.13 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
1.14 Hazardous Material means any petroleum, petroleum product,
drycleaning solvent or chemical, biological or medical waste, "sharps" or any
other hazardous or toxic substance as defined in or regulated by any
Environmental Law in effect at the pertinent date or dates.
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1.15 Hazardous Material Activity means any activity, event, or occurrence
at or prior to the Closing Date involving a Hazardous Material, including,
without limitation, the manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release, threatened Release,
abatement, removal, remediation, handling or corrective or response action to
any Hazardous Material.
1.16 Improvements means any buildings, structures or other improvements
situated on the Real Property, including but not limited to store buildings
containing approximately 85,353 square feet of leasable area, and paved parking
areas containing approximately 321 parking spaces.
1.17 Inspection Period means the period of time which expires at the end
of business on the forty-fifth (45th) day after the date of execution by the
last of Buyer or Seller to execute this Agreement and transmit a copy thereof to
the other. If such expiration date is a weekend or national holiday, the
inspection period shall expire at the end of business on the next immediately
succeeding business day.
1.18 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.19 Materials means all plans, drawings, specifications, soil test
reports, environmental reports, market studies, surveys, and similar
documentation, if any, owned by or in the possession of Seller with respect to
the Property, Improvements and any proposed improvements to the Property, which
Seller may lawfully transfer to Buyer except that, as to financial and other
records, Materials shall include only photostatic copies.
1.20 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem taxes not payable on or before Closing;
(b) Rights of tenants under Leases; and
(c) Other matters determined by Buyer to be acceptable.
1.21 Personal Property means all (a) sprinkler, plumbing, heating,
air-conditioning, electric power or lighting, incinerating, ventilating and
cooling systems, with each of their respective appurtenant furnaces, boilers,
engines, motors, dynamos, radiators, pipes, wiring and other apparatus,
equipment and fixtures, elevators, partitions, fire prevention and extinguishing
systems located in or on the Improvements, (b) all Materials, and (c) all other
personal property used in connection with the Improvements, provided the same
are now owned or are acquired by Seller prior to the Closing.
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1.22 Property means collectively the Real Property, the Improvements and
the Personal Property.
1.23 Prorated means the allocation of items of expense or income between
Buyer and Seller based upon that percentage of the time period as to which such
item of expense or income relates which has expired as of the date at which the
proration is to be made.
1.24 Purchase Price means the consideration agreed to be paid by Buyer to
Seller for the purchase of the Property as set forth in Section 2.1 (subject to
adjustments as provided herein).
1.25 Real Property means a parcel of land containing approximately 12.613
acres located at the northeast corner of the intersection of NC Highway 54 and
Hope Valley Road, in the City of Durham, County of Durham, North Carolina, more
particularly described on Exhibit 1.25, together with all easements, licenses,
privileges, rights of way and other appurtenances pertaining to or accruing to
the benefit of such lands.
1.26 Release means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing into
the indoor or outdoor environment, including, without limitation, the
abandonment or discarding of barrels, drums, containers, tanks, and other
receptacles containing or previously containing any Hazardous Material at or
prior to the Closing Date.
1.27 Rent Roll means the list of Leases attached hereto as Exhibit 1.27,
identifying with particularity the space leased by each tenant, the term
(including extensions), square footage and applicable rent, common area
maintenance, tax and other reimbursements, security deposits and similar data.
1.28 Seller means the party identified as Seller on the initial page hereof.
1.29 Seller Financial Statements means the unaudited statements of income,
expense and cash flow, and, if available, balance sheets, for the Property, as
of and for the two (2) calendar years next preceding the date of this Agreement
and all monthly reports of income, expense and cash flow prepared by Seller for
the Property, which shall be consistent with past practice for any period
beginning after the latest of such calendar years, and ending prior to Closing.
1.30 Shopping Center means the Shopping Center identified on the initial
page hereof which is located on the Real Property.
1.31 Survey means a 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
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in effect on the date of the Survey) of an urban survey, which is dated not
earlier than thirty (30) days prior to the Closing, and which is certified to
Buyer, Seller, the Title Insurance company providing Title Insurance to Buyer,
and Buyer's lender, and dated as of the date the Survey was made.
1.32 Tenant Estoppel Letter means a letter or other certificate from a
tenant certifying as to certain matters regarding such tenant's Lease, in
substantially the same form as attached hereto as Exhibit 1.32, or in the case
of national or regional "credit" tenants identified as such on the Rent Roll,
the form customarily used by such tenant provided the information disclosed is
acceptable to Buyer.
1.33 Title Defect means any exception in the Title Insurance Commitment or
any matter disclosed by the Survey, other than a Permitted Exception.
1.34 Title Insurance means an ALTA Form B Owners Policy of Title Insurance
for the full Purchase Price insuring marketable title in Buyer in fee simple,
subject only to the Permitted Exceptions, issued by a title insurer acceptable
to Buyer.
1.35 Title Insurance Commitment means a binder whereby the title insurer
agrees to issue the Title Insurance to Buyer.
1.36 Transaction Documents means this Agreement, the deed conveying the
Property, the assignment of leases, the bill of sale conveying the Personal
Property and all other documents required or appropriate in connection with the
transactions contemplated hereby.
2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The total Purchase Price for the
Property shall be $6,550,000. The Purchase Price shall be payable in cash at
Closing.
(b) Adjustments to the Purchase Price. The Purchase Price shall
be adjusted as of the Closing Date by:
(1) prorating the Closing year's real and tangible personal
property taxes as of the Allocation Date (if the amount of the current year's
property taxes are not available, such taxes will be prorated based upon the
prior year's assessment);
(2) prorating as of the Allocation Date cash receipts and
expenditures for the Shopping Center and other items customarily prorated in
transactions of this sort; and
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(3) subtracting the amount of security deposits, prepaid
rents from tenants under the Leases (prorated as of the Allocation Date), 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 ten
(10) days after receipt. Buyer shall have no obligation to collect
delinquencies, but should Buyer collect any delinquent rents or other sums which
cover periods prior to the Allocation Date and for which Seller have received no
proration or credit, Buyer shall remit same to Seller within ten (10) 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.
2.2 Earnest Money Deposit. An Earnest 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
Earnest Money Deposit is not received by Escrow Agent by such deadline. The
Earnest Money Deposit paid by Buyer shall be held as specifically provided in
this Agreement and shall be applied to the Purchase Price at the Closing.
2.3 Closing Costs.
(a) Seller shall pay:
(1) Documentary stamp and other transfer taxes imposed upon
the transactions contemplated hereby;
(2) Cost of satisfying any liens on the Property;
(3) The costs, if any, of curing title defects and
recording any curative title documents;
(4) All broker's commissions, finders' fees and similar
expenses incurred by either party in connection with the sale of the Property,
subject however to Buyer's indemnity given in Section 5.3 of this Agreement; and
(5) Seller's attorneys' fees relating to the sale of the
Property.
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(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Costs of the Survey and of the environmental site
assessments to be obtained by Buyer;
(3) Cost of recording the deed;
(4) Title insurance premium for the policy to be issued at
Closing, including the fees of the certifying attorney; and
(5) Buyer's attorneys' fees.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, review the economic data, underwrite the
tenants and review their leases, and to otherwise conduct its due diligence
review of the Property and all books, records and accounts of Seller related
thereto, provided Buyer and its representatives do not unreasonably interfere
with the operation of the Shopping Center. 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.
(b) Subject to the provisions of Section 3.1(a), Buyer, through its
officers, employees and other authorized representatives, shall have the right
to reasonable access to the Property and all records of Seller related thereto,
including without limitation all Leases and Seller Financial Statements, at
reasonable times during the Inspection Period for the purpose of inspecting the
Property, taking soil borings, conducting Hazardous Materials inspections,
reviewing the books and records of Seller concerning the Property and otherwise
conducting its due diligence review of the Property. Seller shall cooperate with
and assist Buyer in making such inspections and reviews. Seller shall give Buyer
any authorizations which may be required by Buyer in order to gain access to
records or other information pertaining to the Property or the use thereof
maintained by any governmental or quasi-governmental authority or organization.
Buyer, for itself and its agents, agrees not to enter into
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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.
(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. All such information shall be held confidential by Buyer
and its representatives, and shall be returned to Seller if the sale of the
Shopping Center does not close.
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. 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 five
(5) business days after receipt of the assessment report that it elects to
terminate this Agreement, whereupon this Agreement shall terminate and Escrow
Agent shall return to Buyer its Earnest Money Deposit.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties, the
Closing shall take place at the offices of Escrow Agent at 10:00 A.M. on or
before December 17, 1996, provided that Buyer may designate an earlier date for
Closing.
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 North Carolina, and has full
power and authority to enter into and perform this Agreement in accordance with
its terms, and the persons executing this Agreement and other Transaction
Documents have been duly authorized to do so on behalf of Seller. Seller is not
a "foreign person" under Sections 1445 or 897 of the Internal Revenue Code nor
is this transaction subject to any withholding under any state or federal law.
4.2 Authorization; Validity. The execution and delivery of this Agreement
by Seller and Seller's consummation of the transactions contemplated by this
Agreement have been duly and validly authorized. This Agreement constitutes a
legal, valid and binding agreement of Seller enforceable against it in
accordance with its terms.
4.3 Title. On the Closing Date Seller will own in fee simple all of the
Property, subject only to the Permitted Exceptions. Seller represents to Buyer
that Seller currently ground leases the Real Property from Paine Webber
Qualified Plan Property Fund Three, L.P., and owns the Improvements and Personal
Property in fee simple. The interest of the ground
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lessor shall be acquired by Seller and conveyed to Buyer without additional cost
to Buyer at Closing, subject however to Section 8.3 hereof.
4.4 Commissions. Seller has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Seller, Buyer or the Property for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transaction provided herein
except for Lat Purser & Associates, Inc. (the individual broker being Rob
Carter), and Seller agrees to indemnify Buyer from any such 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 for Permitted Exceptions and this Agreement.
4.6 Litigation. There is no litigation or proceeding pending, or to the
best of Seller's knowledge, threatened against Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, oral or written,
except as listed on the Rent Roll, and any Leases or modifications entered into
between the date of this Agreement and the Closing Date with the consent of
Buyer. Copies of the Leases, which have been delivered to Buyer or shall be
delivered to Buyer within five (5) days from the date hereof, are, to the best
knowledge of Seller, true, correct and complete copies thereof, subject to the
matters set forth on the Rent Roll. Between the date hereof and the Closing
Date, Seller will not terminate or modify existing Leases or enter into any new
Leases without the consent of Buyer. All of the Property's tenant leases are in
good standing and to the best of Seller's knowledge no defaults exist thereunder
except as noted on the Rent Roll. No rent or reimbursement has been paid more
than one (1) month in advance and no security deposit has been paid, except as
stated on the Rent Roll. No tenants under the Leases are entitled to interest on
any security deposits. No tenant under any Lease has or will be promised any
inducement, concession or consideration by Seller other than as expressly stated
in such Lease, and except as stated therein there are and will be no side
agreements between Seller and any tenant.
4.8 Financial Statements. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
in accordance with the books and records of Seller and presents fairly in all
material respects the financial condition, results of operations and cash flows
for the Property as of and for the periods to which they relate. All are in
conformity with accounting principles generally used in the shopping center
industry, 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
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Closing upon reasonable advance notice in order that they may verify the
financial statements prior to Closing. Seller agrees to execute and deliver to
Buyer or its accountants the Audit Representation Letter should Buyer's
accountants audit the records of the Shopping Center.
4.9 Contracts. Except for Leases and Permitted Exceptions, there are no
management, service, maintenance, utility or other contracts or agreements
affecting the Property, oral or written, which extend beyond the Closing Date
and which would bind Buyer or encumber the Property, at Buyer's option, more
than thirty (30) days after Closing. All such Contracts are in full force and
effect in accordance with their respective terms, and all obligations of Seller
under the Contracts required to be performed to date have been performed in all
material respects; no party to any Contract has asserted any claim of default or
offset against Seller with respect thereto and no event has occurred or failed
to occur, which would in any way affect the validity or enforceability of any
such Contract; and the copies of the Contracts delivered to Buyer prior to the
date hereof are true, correct and complete copies thereof. Between the date
hereof and the Closing, Seller covenants to fulfill all of its obligations under
all Contracts, and covenants not to terminate or modify any such Contracts or
enter into any new contractual obligations relating to the Property without the
consent of Buyer (not to be unreasonably withheld) except such obligations as
are freely terminable without penalty by Seller upon not more than thirty (30)
days' written notice.
4.10 Maintenance and Operation of Property. From and after the date hereof
and until the Closing, Seller covenants to keep and maintain and operate the
Property substantially in the manner in which it is currently being maintained
and operated and covenants not to cause or permit any waste of the Property nor
undertake any action with respect to the operation thereof outside the ordinary
course of business without Buyer's prior written consent. In connection
therewith, Seller covenants to make all necessary repairs and replacements until
the Closing so that the Property shall be of substantially the same quality and
condition at the time of Closing as on the date hereof. Seller covenants not to
remove from the Improvements or the Real Property any article included in the
Personal Property, unless replaced with article(s) of comparable quality. Seller
covenants to maintain through the Closing Date such casualty and liability
insurance on the Property as it is presently being maintained.
4.11 Permits and Zoning. To the best knowledge of Seller, there are no
material permits and licenses (collectively referred to as "Permits") required
to be issued to Seller by any governmental body, agency or department having
jurisdiction over the Property which materially affect the ownership or the use
thereof which have not been issued. To the best knowledge of Seller, the
Property is properly zoned for its present use as a retail shopping center.
There are no outstanding assessments, impact fees or other charges related to
the Property.
4.12 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and correct
in all respects. Seller agrees to use its best reasonable efforts to obtain
current Tenant Estoppel Letters acceptable to Buyer from all Tenants under
Leases, which Tenant Estoppel Letters shall
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confirm the matters reflected by the Rent Roll as to the particular tenant and
shall be otherwise acceptable to Buyer in all respects.
4.13 Condemnation. Neither the whole nor any portion of the Property,
including access thereto or any easement benefitting the Property, is subject to
temporary requisition of use by any governmental authority or has been
condemned, or taken in any proceeding similar to a condemnation proceeding, nor
is there now pending any condemnation, expropriation, requisition or similar
proceeding against the Property or any portion thereof. Seller has received no
notice nor has any knowledge that any such proceeding is contemplated.
4.14 Governmental Matters. Seller has not entered into any commitments or
agreements with any governmental authorities or agencies affecting the Property
that have not been disclosed in writing to Buyer and Seller has received no
notices from any such governmental authorities or agencies of uncured violations
at the Property of building, fire, air pollution or zoning codes, rules,
ordinances or regulations, environmental and hazardous substances laws, or other
rules, ordinances or regulations relating to the Property. Seller shall be
responsible for the remittance of all sales tax for periods occurring prior to
the Allocation Date directly to the appropriate state department of revenue.
4.15 Repairs. Seller has received no notice of any requirements or
recommendations by any lender, insurance companies, or governmental body or
agencies requiring or recommending any repairs or work to be done on the
Property which have not already been completed.
4.16 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) require Seller to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority; (b) conflict with or breach any provision
of the organizational documents of Seller; (c) violate or breach any provision
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Seller is a party, or by which
Seller, the Property or any of Seller's material assets may be bound except as
provided in Section 8.3; or (d) violate any order, writ, injunction, decree,
judgment, statute, law or ruling of any court or governmental authority
applicable to Seller, the Property or any of Seller's material assets.
4.17 Environmental Matters.
(a) Seller represents and warrants as of the date hereof and as
of the Closing that:
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(1) Seller has not, and has no knowledge of any other person
who has, caused any Release, threatened Release, or disposal of any Hazardous
Material at the Property in any material quantity;
(2) The Property does not now contain and to the best of
Seller's knowledge has not contained any: (a) underground storage tank, (b)
material amounts of asbestos-containing building material, (c) landfills or
dumps, (d) drycleaning plant or other facility using drycleaning solvents; or
(e) hazardous waste management facility as defined pursuant to the Resource
Conservation and Recovery Act ("RCRA") or any comparable state law. The Property
is not a site on or nominated for the National Priority List promulgated
pursuant to Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA") or any state remedial priority list promulgated or published pursuant
to any comparable state law; and
(3) There are to the best of Seller's knowledge no conditions
or circumstances at the Property which pose a risk to the environment or the
health or safety of persons.
(b) Seller shall indemnify, hold harmless, and hereby waives any
claim for contribution against Buyer for any damages to the extent they arise
from the inaccuracy or breach of any representation or warranty by Seller in
this Section 4.17. . This indemnity shall survive Closing for a period of three
(3) months, and shall be in addition to the post-closing indemnities contained
in Section 10.01.
(c) It is expressly understood and agreed that the representations
and warranties in this Section 4.17 are limited to the actual knowledge of James
T. Cobb, who is the general partner of the general partner of Seller and who has
personal knowledge of and management responsibility for the Property.
4.18 No Untrue Statement. Neither this Agreement nor any exhibit nor any
written statement or Transaction Document furnished or to be furnished by Seller
to Buyer in connection with the transactions contemplated by this Agreement
contains or will contain any untrue statement of material fact or omits or will
omit any material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.
4.19 Property Conveyed "As Is". Except as expressly set forth in this
Agreement the Property is being sold and conveyed to Buyer "as is" and "with all
faults". Except as expressly stated in this Agreement, Seller has not made, does
not make, and hereby disclaims any and all express or implied representations
and warranties regarding or relating to: the condition of the Shopping Center,
the Improvements or the Personal Property; their suitability for any particular
purpose; the susceptibility to flooding of the Real Property; the value of the
Shopping Center; the layout or leasable square footage of the Improvements; the
projected income or expenses of the Shopping Center for periods after the
Closing Date; use and
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occupancy restrictions applicable to the Shopping Center; the current manner of
operation of the Shopping Center; and all matters affecting or relating to the
Shopping Center. Buyer acknowledges that, except as expressly set forth in this
Article 4, and as may be set forth in the closing documents, no such
representations or warranties, express or implied, have been made by Seller, or
by any other person representing or purporting to represent Seller. In agreeing
to purchase the Shopping Center "as is" and without representation or warranty,
express or implied, except as expressly set forth in this Agreement, Buyer
acknowledges and represents that it has factored the "as is" condition of the
Shopping Center into the price it has hereby agreed to pay for the Property,
subject however to its findings during the Inspection Period, and any
conclusions it may make as a consequence thereof.
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 Lat
Purser & Associates, Inc., and its employee Rob Carter, whose commission shall
be paid by Seller; and Buyer agrees to indemnify Seller from any other such
claim arising by, through or under Buyer.
6. POSSESSION; RISK OF LOSS
6.1 Possession. Possession of the Property will be transferred to Buyer
at the conclusion of the Closing.
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
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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 Earnest Money Deposit; or
(b) proceed with the purchase of the Property, in which event Seller
shall assign to Buyer all Seller's right, title and interest in all amounts due
or collected by Seller under the insurance policies or as condemnation awards.
In such event, the Purchase Price shall be reduced by the amount of any
insurance deductible to the extent it reduced the insurance proceeds payable.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance. Prior to the end of the Inspection Period Buyer
shall order the Title Insurance Commitment from Chicago 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 until the expiration of the Inspection Period to notify Seller in
writing of any Title Defects, encroachments or other matters not acceptable to
Buyer which are not permitted by this Agreement. Any Title Defect or other
objection disclosed by the Title Insurance Commitment (other than liens
removable by the payment of money) or the Survey which is not timely specified
in Buyer's written notice to Seller of Title Defects shall be deemed a Permitted
Exception. Seller shall notify Buyer in writing within five (5) days of Buyer's
notice if Seller intends to cure any Title Defect or other objection. If Seller
elects to cure, Seller shall use diligent efforts to cure the Title Defects
and/or objections by the Closing Date (as it may be extended). If Seller elects
not to cure or if such Title Defects and/or objections are not cured, Buyer
shall have the right, in lieu of any other remedies, to: (i) refuse to purchase
the Property, terminate this Agreement and receive a return of the Earnest Money
Deposit; or (ii) waive such Title Defects and/or objections and close the
purchase of the Property subject to them.
(b) Miscellaneous Title Matters. If a search of the title discloses
judgments, bankruptcies or other returns against other persons having names the
same as or similar to that of Seller, Seller shall on request deliver to Buyer
an affidavit stating, if true, that such judgments, bankruptcies or the returns
are not against Seller. Seller further agrees to execute and deliver to the
Title Insurance agent at Closing such documentation, if any, as the Title
Insurance underwriter shall reasonably require to evidence that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been
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duly authorized and that there are no mechanics' liens on the Property or
parties in possession of the Property other than tenants under Leases and
Seller.
8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The obligations of Buyer
under this Agreement are subject to satisfaction or waiver by Buyer of each of
the following conditions or requirements on or before the Closing Date:
(a) Seller's warranties and representations under this Agreement
shall be true and correct as of the Closing Date, and Seller shall not be in
default hereunder.
(b) All obligations of Seller contained in this Agreement, shall
have been fully performed in all material respects and Seller shall not be in
default under any covenant, restriction, right-of-way or easement affecting the
Property.
(c) There shall have been no material adverse change in the
Property, its operations or future prospects, the Leases or the financial
condition of tenants leasing space in the Property.
(d) A Title Insurance Commitment in the full amount of the Purchase
Price shall have been issued and "marked down" through Closing, subject only to
Permitted Exceptions.
(e) The physical and environmental condition of the Property shall
be unchanged from the date of this Agreement, ordinary wear and tear excepted.
(f) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) A special warranty deed or deeds in proper form for
recording, duly executed and acknowledged so as to convey to Buyer the entire
fee simple title to the Property, subject only to the Permitted Exceptions;
(2) Originals, if available, or if not, true copies of the
Leases and of the contracts, agreements, permits and licenses, and such
Materials as may be in the possession or control of Seller;
(3) A blanket assignment to Buyer of all Leases and Contracts,
including an indemnity against breach of such instruments by Seller prior to the
Closing Date;
(4) A bill of sale with respect to the Personal Property and
Materials;
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(5) 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;
(6) All Tenant Estoppel Letters obtained by Seller, which must
include Food Lion, Kerr Drugs, True Value Hardware, Sushi House Yama and Video
Plaza and eighty percent (80%) of the other tenants 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,
the substance of which Tenant Estoppel Letters must be acceptable to Buyer in
all respects;
(7) A general assignment of all assignable existing warranties
relating to the Property;
(8) An owner's affidavit, non-foreign affidavits, non-tax
withholding certificates and such other documents as may reasonably be required
by Buyer or its counsel in order to effectuate the provisions of this Agreement
and the transactions contemplated herein;
(9) 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;
(10) Resolutions of Seller authorizing the transactions
described herein;
(11) All keys and other means of access to the Improvements in
the possession of Seller or its agents;
(12) Materials; and
(13) Such other documents as Buyer may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this Section
8.1 are not satisfied and Buyer elects in writing to terminate this Agreement,
then the Earnest Money Deposit shall be promptly delivered to Buyer by Escrow
Agent and, upon the making of such delivery, neither party shall have any
further claim against the other by reasons of this Agreement, except as provided
in Article 9.
8.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement are subject to satisfaction or waiver by Seller of
each of the following conditions or requirements on or before the Closing date:
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(a) Buyer's warranties and representations under this Agreement
shall be true and correct as of the Closing Date, and Buyer shall not be in
default hereunder.
(b) All of the obligations of Buyer contained in this Agreement
shall have been fully performed by or on the date of Closing in compliance with
the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Seller at or prior to the Closing
the following, which shall be reasonably satisfactory to Seller:
(1) Delivery and/or payment of the balance of the Purchase
Price in accordance with Section 2.1 at Closing;
(2) An assumption agreement, pursuant to which Buyer shall
assume the obligations of Seller under the Leases and the Contracts that are
being assumed by Buyer, and by which Buyer shall indemnify Seller against any
and all claims, actions, charges, expenses (including, without limitation,
attorney's fees and court costs) and liabilities relating to the Leases or the
assumed Contracts arising in connection with acts or omissions occurring after
the Closing Date; and pursuant to which Seller shall indemnify Buyer in a
reciprocal fashion for all such matters arising prior to the Closing Date;
(3) A certified copy of the Articles of Incorporation and
Bylaws of Buyer, or its acquiring affiliate, as well as a copy of Buyer's or
Buyer's acquiring affiliate's Certificate of Authority, duly filed with the
North Carolina Secretary of State;
(4) A copy of any resolution required under the terms of the
Bylaws of Buyer or Buyer's acquiring affiliate authorizing certain officers of
Buyer or of such affiliate to execute and deliver the closing documents required
by this Section 8.2;
(5) Such other documents as Seller may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
8.2 have not, and Seller elects in writing to terminate this Agreement, then the
Earnest Money Deposit shall be promptly delivered to Seller by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
against the other by reasons of this Agreement, except as provided in Article 9.
8.3 Special Condition. Seller's obligations under this Agreement shall be
conditioned upon the receipt by Seller, on or before November 15, 1996, of the
written approval of the Paine Webber Properties Investment Committee to accept
$5,485,000 as payment in full of all obligations of Seller under the ground
lease and first deed of trust covering the Shopping Center. Seller agrees to use
reasonable good faith efforts to obtain that
-17-
approval, Seller shall have the right, exercisable by delivery of written notice
to Buyer on or before November 20, 1996, to terminate this Agreement, and upon
such termination, the Deposit and all interest, if any, earned thereon shall be
returned to Buyer and this Agreement shall be deemed null and void. If Seller
fails to delivery such written notice of termination in a timely manner, Seller
shall be deemed to have waived the condition set forth in this Section 8.3.
8.4 Best Efforts. Each of the parties hereto agrees to use reasonable best
efforts to take or cause to be taken all actions necessary, proper or advisable
to consummate the transactions contemplated by this Agreement.
9. PRE-CLOSING BREACH; REMEDIES
9.1 Breach by Seller. In the event of a breach of Seller's covenants or
warranties herein and failure by Seller to cure such breach within the time
provided for Closing, Buyer may, at Buyer's election (i) terminate this
Agreement and receive a return of the Earnest Money Deposit, and the parties
shall have no further rights or obligations under this Agreement (except as
survive termination); (ii) enforce this Agreement by suit for specific
performance; or (iii) waive such breach and close the purchase contemplated
hereby, notwithstanding such breach.
9.2 Breach by Buyer. In the event of a breach of Buyer's covenants or
warranties herein and failure of Buyer to cure such breach within the time
provided for Closing, Seller's sole remedy shall be to terminate this Agreement
and retain Buyer's Earnest Money Deposit as agreed liquidated damages for such
breach, and upon payment in full to Seller of such amounts, the parties shall
have no further rights, claims, liabilities or obligations under this Agreement
(except as survive termination).
10. POST CLOSING INDEMNITIES AND COVENANTS
10.1 Seller's Indemnity. Should this transaction close, Seller, subject to
the limitations set forth herein, shall indemnify, defend and hold harmless
Buyer from all claims, demands, liabilities, damages, penalties, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, which may be imposed upon, asserted against or incurred or paid
by Buyer by reason of, or on account of, any breach by Seller of Seller's
warranties, representations and covenants. Seller's warranties, representations
and covenants, and the foregoing indemnity, shall survive the Closing for a
period of three (3) months, after which Buyer shall have no further remedies
against Seller except with respect to warranties and covenants in the closing
documents. Buyer's rights and remedies herein against Seller shall be in
addition to, and not in lieu of all other rights and remedies of Buyer at law or
in equity.
10.2 Buyer's Indemnity. Should this transaction close, Buyer shall
indemnify, defend and hold harmless Seller from all claims, demands,
liabilities, damages, penalties, costs and
-18-
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, which may be imposed upon, asserted against or incurred or paid
by Seller by reason of, or on account of, any breach by Buyer of Buyer's
warranties, representations and covenants. Buyer's warranties, representations
and covenants, and the foregoing indemnity, shall survive the Closing for a
period of three (3) months, after which Seller shall have no further remedies
against Buyer except with respect to warranties and covenants in the closing
documents. Seller's rights and remedies herein against Buyer shall be in
addition to, and not in lieu of all other rights and remedies of Seller at law
or in equity.
11. MISCELLANEOUS
11.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement without the prior approval of the other, except
to its attorneys, accountants and other consultants, their lenders and
prospective lenders, or where disclosure is required by law.
11.2 Entire Agreement. This Agreement, together with the Exhibits attached
hereto, constitutes the entire agreement between the parties hereto with respect
to the subject matter hereof and may not be modified, amended or otherwise
changed in any manner except by a writing executed by Buyer and Seller.
11.3 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 (followed promptly by
hard copy) at the addresses set forth below:
As to Seller: Durham Woodcroft Associates Limited Partnership
Attention: James T. Cobb
5821 Fairview Road, Suite 302
Charlotte, North Carolina 28209
Facsimile: (704) 553-0879
With a copy to: Robinson, Bradshaw & Hinson, P.A.
Attention: Brent A. Torstrick
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Facsimile: (704) 378-4000
As to Buyer: RRC Acquisitions, Inc.
Attention: Robert L. Miller
Suite 200, 121 W. Forsyth St.
Jacksonville, Florida 32202
Facsimile: (904) 634-3428
-19-
With a copy to: Ulmer, Murchison, Ashby & Taylor
Attention: William E. Scheu, Esq.
P. O. Box 479
Suite 1600, 200 W. Forsyth St.
Jacksonville, FL 32201 (32202 for courier)
Facsimile: (904) 354-9100
Any notice or demand so served shall constitute proper notice hereunder upon
delivery to the United States Postal Service or to such overnight courier. A
party may change its notice address by notice given in the aforesaid manner.
11.4 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.
11.5 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 unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.6 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.
11.7 Time of Essence. Time is of the essence of this Agreement.
11.8 Governing Law. This Agreement shall be governed by the laws of North
Carolina 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 Durham County, State of North Carolina. Each party
waives its right to jurisdiction or venue in any other location.
11.9 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 assigns. No third parties, including any brokers or
creditors, shall be beneficiaries hereof.
-20-
11.10 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.
11.11 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.
11.12 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.
11.13 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.14 No Recording. Neither this Agreement nor any notice, memorandum or
other notice or document relating hereto shall be recorded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Witnesses:
RRC ACQUISITIONS, INC.,
____________________________ a Florida corporation
[ - - - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: October ____, 1996
Name (Please Print)
Tax Identification No. 59-3210155
"BUYER"
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DURHAM WOODCROFT ASSOCIATES LIMITED
PARTNERSHIP, a North Carolina limited
partnership
By Its General Partner:
Durham Woodcroft Company Limited
____________________________ Partnership
[ - - - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ James T. Cobb
[ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ] Managing General Partner
Name (Please Print)
Date: October ___, 1996
Tax Identification No:
"SELLER"
JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of acknowledging
receipt of the initial Earnest Money Deposit and agrees to comply with the terms
hereof insofar as they apply to Escrow Agent. Escrow Agent shall receive and
hold the Earnest Money Deposit in trust, to be disposed of in accordance with
the provisions of this joinder and Section 2.2 of the foregoing Agreement.
2. Indemnity. Escrow Agent shall not be liable to either party except for
claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow
Agent with respect to the escrow, the parties hereto expressly agree that
Escrow Agent shall have the
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absolute right to do either or both of the following: (i) withhold and stop all
proceedings in performance of this escrow and await settlement of the
controversy by final appropriate legal proceedings or otherwise as it may
require; or (ii) file suit for declaratory relief and/or interpleader and obtain
an order from the court requiring the parties to interplead and litigate in such
court their several claims and rights between themselves. Upon the filing of any
such declaratory relief or interpleader suit and tender of the Earnest Money
Deposit to the court, Escrow Agent shall thereupon be fully released and
discharged from any and all obligations to further perform the duties or
obligations imposed upon it. Buyer and Seller agree to respond promptly in
writing to any request by Escrow Agent for clarification, consent or
instructions. Any action proposed to be taken by Escrow Agent for which approval
of Buyer and/or Seller is requested shall be considered approved if Escrow Agent
does not receive written notice of disapproval within fourteen (14) days after a
written request for approval is received by the party whose approval is being
requested. Escrow Agent shall not be required to take any action for which
approval of Buyer and/or Seller has been sought unless such approval has been
received. No disbursements shall be made, other than as provided in Sections 2.2
and 3.1(a) of the foregoing Agreement, or to a court in an interpleader action,
unless Escrow Agent shall have given written notice of the proposed disbursement
to Buyer and Seller and neither Buyer nor Seller shall have delivered any
written objection to the disbursement within 14 days after receipt of Escrow
Agent's notice. No notice by Buyer or Seller to Escrow Agent of disapproval of a
proposed action shall affect the right of Escrow Agent to take any action as to
which such approval is not required.
4. Continuing Counsel. Seller acknowledges that Escrow Agent is counsel to
Buyer herein and Seller agrees that in the event of a dispute hereunder or
otherwise between Seller and Buyer, Escrow Agent may continue to represent Buyer
notwithstanding that it is acting and will continue to act as Escrow Agent
hereunder, it being acknowledged by all parties that Escrow Agent's duties
hereunder are ministerial in nature.
5. Tax Identification. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
ULMER, MURCHISON, ASHBY & TAYLOR
By:
Its Authorized Agent
Date: October ___, 1996
"ESCROW AGENT"
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EXHIBIT 1.3
Audit Representation Letter
--------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
Suite 2700
One Independent Drive
Jacksonville, Florida 32202
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 1.27
Rent Roll
EXHIBIT 1.32
Form of Estoppel Letter
_____________________, 199_
RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised you may purchase the above
Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of _________________________________,
Landlord, in the above Shopping Center, and is currently in
possession and paying rent on premises known as Store No.
_______________ [or Address:
----------------------------------------------------------------],
and containing approximately _____________ square feet, under the
terms of the lease dated ______________________, which has (not)
been amended by amendment dated ________________________ (the
"Lease"). There are no other written or oral agreements between
Tenant and Landlord. Tenant neither expects nor has been promised
any inducement, concession or consideration for entering into the
Lease, except as stated therein, and there are no side agreements or
understandings between Landlord and Tenant.
2. The term of the Lease commenced on ____________________, expiring on
___________________, with options to extend of ________________
(____) years each.
3. As of ____________________, monthly minimum rental is $____________
a month.
4. Tenant is required to pay its pro rata share of Common Area Expenses
and its pro rata share of the Center's real property taxes and
insurance cost. Current additional monthly payments for expense
reimbursement total $____________ per month for common area
maintenance, property insurance and real estate taxes.
5. Tenant has given [no security deposit] [a security deposit of
$______________].
6. No payments by Tenant under the Lease have been made for more than
one (1) month in advance, and minimum rents and other charges under
the Lease are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the Tenant's
premises and development of the Shopping Center, including without
limitation, parking requirements, have been performed by Landlord.
8. The Lease contains no first right of refusal, option to expand,
option to terminate, or exclusive business rights, except as
follows:
9. Tenant knows of no default by either Landlord or Tenant under the
Lease, and knows of no situations which, with notice or the passage
of time, or both, would constitute a default. Tenant has no rights
to off-set or defense against Landlord as of the date hereof.
10. The undersigned has not entered into any sublease, assignment or any
other agreement transferring any of its interest in the Lease or the
Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or released
any hazardous substances at, on or in the Premises. "Hazardous Substances"
means any flammable, explosive, toxic, carcinogenic, mutagenic, or
corrosive substance or waste, including volatile petroleum products and
derivatives and drycleaning solvents. To the best of Tenant's knowledge, no
asbestos or polychlorinated biphenyl ("PCB") is located at, on or in the
Premises. The term "Hazardous Substances" does not include those materials
which are technically within the definition set forth above but which are
contained in pre-packaged office supplies, cleaning materials or personal
grooming items or other items which are sold for consumer or commercial use
and typically used in other similar buildings or space.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
-------------------------------------------
____________________________________(Tenant)
Mailing Address:
____________________________ By:________________________________________
Its:_________________________________
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