17
TABLE OF CONTENTS
1.
Definitions. ........................................................1
1.1. Assignment of
Leases. .........................................1
1.2. Assignment of Service
Contracts. ..............................1
1.3. Bill of
Sale. .................................................1
1.4.
Closing. ......................................................1
1.5. Closing
Date. .................................................1
1.6. Contract
Period. ..............................................1
1.7.
Deed. .........................................................1
1.8. Hazardous
Material. ...........................................1
1.9.
Improvements. .................................................2
1.10.
Land. ........................................................2
1.11.
Leases. ......................................................2
1.12. Permitted
Exceptions. ........................................2
1.13. Personal
Property. ...........................................2
1.14.
Project. .....................................................2
1.15. Purchase
Price. ..............................................2
1.16. Schedule of
Leases. ..........................................2
1.17. Service
Contracts. ...........................................3
1.18.
Survey. ......................................................3
1.19.
Tenant. ......................................................3
1.20. Tenant
Estoppel. .............................................3
1.21. Title
Insurer. ...............................................3
1.22. Title
Policy. ................................................3
1.23. Title
Report. ................................................3
2. Purchase and
Sale. ..................................................3
3. Purchase Price; Payment
Thereof. ....................................3
4. Closing Date;
Closing. ..............................................4
4.1. Closing
Date. .................................................4
4.2.
Closing. ......................................................4
5. Adjustments and Prorations; Closing
Expenses. .......................5
5.1. Adjustments and
Prorations. ...................................5
5.2. Closing
Expenses. .............................................6
6.
Covenants. ..........................................................6
6.1. Covenants of
Seller. ..........................................6
6.2. Covenants of
Buyer. ...........................................7
6.3. Earn
Out. .....................................................8
7. Representations and Warranties of
Seller. ...........................9
8. Environmental
Conditions..............................................11
9. Representations and Warranties of
Buyer. ............................12
10. Damage or
Destruction. .............................................12
11. Eminent
Domain. ....................................................12
12. Conditions to
Closing. .............................................13
12.1. Buyer's
Conditions. ..........................................13
12.2. Seller's
Conditions. .........................................13
13.
Brokerage. .........................................................13
14.
Notices. ...........................................................13
15.
Counterparts. ......................................................14
16. Governing
Law. .....................................................15
17. Entire
Agreement. ..................................................15
18. Attorneys'
Fees. ...................................................15
19. Titles and
Headings. ...............................................15
20. Non-Waiver of
Rights. ..............................................15
21.
Exhibits. ..........................................................15
22. Pronouns; Joint and Several
Liability. .............................15
23. Further
Assurances. ................................................15
24. No
Assignment. .....................................................16
25. Time of
Essence. ...................................................16
26. Radon
Gas. .........................................................16
EXHIBITS
Exhibit A Assignment of Leases
Exhibit B Assignment of Service Contracts
Exhibit C Bill of Sale
Exhibit D Land
Exhibit E Permitted Exceptions
Exhibit F Personal Property
Exhibit G Schedule of Leases
Exhibit H Service Contracts
Exhibit I Tenant Estoppel
Exhibit J Project Documents
Exhibit K Leasing Parameters
Exhibit L Notices of Violation
AGREEMENT
OF
PURCHASE AND SALE
WELLINGTON TOWN SQUARE, WELLINGTON, FLORIDA
AGREEMENT OF PURCHASE AND SALE ("Agreement") made as of the 10th day of
December, l996, by and between C. M. WELLINGTON TOWN SQUARE LIMITED
PARTNERSHIP, an Illinois limited partnership the general partner of which is
C. M. General, Inc., a Delaware corporation ("Seller") and RRC ACQUISITIONS,
INC., a Florida corporation ("Buyer").
W I T N E S S E T H :
|1. Definitions.
For purposes of this Agreement, the following terms have the meanings
indicated in this Section 1.
1.1. Assignment of Leases.
An assignment of the Leases, executed and acknowledged by Seller in
favor of Buyer, in the form of Exhibit A.
1.2. Assignment of Service Contracts.
An assignment of the Service Contracts, executed and acknowledged by
Seller in favor of Buyer, in the form of Exhibit B.
1.3. Bill of Sale.
A good and sufficient bill of sale with respect to the Personal
Property, executed by Seller in favor of Buyer, in the form of Exhibit C.
1.4. Closing.
The accomplishment (or waiver by the party in whose favor each such
activity runs) of each and every one of the activities described in
Section 4.2 below.
1.5. Closing Date.
The date on which the Closing occurs.
1.6. Contract Period.
The period commencing upon the execution by both Buyer and Seller of
this Agreement and ending upon the first to occur of the Closing or the
termination of this Agreement.
1.7. Deed.
A special warranty deed, executed and acknowledged by Seller in
favor of Buyer.
1.8. Hazardous Material.
Any substance:
(i) the presence of which requires investigation or remediation
under any federal, state or local statute, regulation, ordinance,
order, action, policy or common law; or
(ii) which is or becomes defined as a "hazardous waste,"
"hazardous substance," pollutant or contaminant under any
federal, state or local statute, regulation, rule or ordinance or
amendments thereto including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. section 9601 et seq.) and/or the Resource
Conservation and Recovery act (42 U.S.C. section 6901 et seq.); or
(iii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is
or becomes regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the
United States, the State of Florida or any political subdivision
thereof.
1.9. Improvements.
All buildings, structures, parking lots, walks, and walkways and all
fixtures and equipment (including without limitation all plumbing,
electrical, heating, air conditioning and ventilating lines and systems
and boilers) and each and every other type of physical improvement located
at, on or affixed to the Land to the full extent such items constitute or
are or can or may be construed as realty under the laws of the state of
Florida.
|1.10. Land.
All that certain land particularly described in Exhibit D, together
with all appurtenances thereto (including an easement for ingress and
egress over the private road known as "Club Road" along the westerly line
of the Land), including without limitation any land lying in the bed of
any street, road or avenue, open or proposed, in front of, within or
adjoining or adjacent to the land described in Exhibit D.
1.11. Leases.
The leases described in the Schedule of Leases, and all amendments
and modifications thereof.
1.12. Permitted Exceptions.
Those certain matters constituting exceptions to and/or encumbrances
against the Land and Improvements, which matters are enumerated in Exhibit
E , and such other matters as may be approved by Buyer pursuant to the
terms of this Agreement.
1.13. Personal Property.
All tools, equipment, supplies, inventory, fixtures and equipment
not deemed or constituting realty, furniture, furnishings and all other
items of personal property owned by Seller and used at, on or in
connection with the Project, including without limitation all items
enumerated in Exhibit F.
1.14. Project.
The Land, the Improvements and the Personal Property,
collectively.
1.15. Purchase Price.
The aggregate consideration, specified in Section 3 below, to be
paid by Buyer for the Project.
1.16. Schedule of Leases.
Exhibit G hereto, which shall be updated by Seller immediately prior
to the Closing.
1.17. Service Contracts.
Those agreements and arrangements entered into by or on behalf of
Seller pursuant to which goods, services, supplies or any other items
whatever are furnished or to be furnished to the Project, set forth on
Exhibit H hereto.
1.18. Survey.
A plot of the results of an instrument survey of the Land made by a
surveyor or civil engineer duly licensed in the jurisdiction in which the
Project is located, dated not earlier than the date of this Agreement and
certified to Buyer and to the Title Insurer in a manner which will permit
the issuance of the Title Policy and in form and substance otherwise
satisfactory to Buyer and the Title Insurer.
1.19. Tenant.
The holder of any right to occupy or use all or any part of the
Project pursuant to a Lease.
1.20. Tenant Estoppel.
A certification substantially in the form of Exhibit I attached
hereto, executed by a Tenant.
1.21. Title Insurer.
Chicago Title Insurance Company, whose address is Suite 1000,
SunTrust Building, 200 W. Forsythe Street, Jacksonville, FL 32202
1.22. Title Policy.
A most current form ALTA owner's policy of title insurance, or local
equivalent, dated the Closing Date and with liability in the amount of the
Purchase Price, insuring Buyer as owner of good, marketable and
indefeasible fee title to the Land and Improvements, subject only to the
Permitted Exceptions.
1.23. Title Report.
A certificate of title or title report issued by the Title Insurer
to Buyer, which must disclose Seller as owner of fee simple interest in
the Land and Improvements and shall disclose, and shall have attached to
it copies of all documents underlying, all exceptions to title and all
encumbrances on and other matters of record affecting the Land and
Improvements.
|2. Purchase and Sale.
In consideration of the Purchase Price and subject to and in accordance
with all terms and conditions and based upon all representations and warranties
set forth in this Agreement, Buyer agrees to Purchase from Seller, and Seller
agrees to sell Buyer, the Project.
|3. Purchase Price; Payment Thereof.
The Purchase Price is Eight Million Seven Hundred Thousand Dollars
($8,700,000.00), subject to prorations and adjustments as described in Section
5.1 below, and is payable by Buyer to Seller as follows:
(a) The sum of Two Hundred Fifty Thousand Dollars ($250,000.00) (the
"Deposit") is payable by Buyer to Seller within two (2) business days
following the execution by all parties of this Agreement, by wire or other
mutually agreeable transfer of immediately available funds. The Deposit
shall be held in escrow by the Title Insurer or another escrow agent
mutually acceptable to the parties hereto, pursuant to escrow instructions
reasonably acceptable to Buyer, Seller and the escrow agent. The Deposit,
together with all accrued interest thereon (which shall be for Buyer's
account) shall be paid (i) to Seller, at the Closing as a portion of the
Purchase Price; (ii) to Seller, if the Closing does not occur as a result
of Buyer's default hereunder, (iii) to Buyer, if the Closing does not
occur as a result of Seller's default hereunder or (iv) otherwise as
expressly provided in this Agreement.
(c) The balance of the Purchase Price is payable by Buyer to Seller
at the Closing by wire or other mutually agreeable transfer of immediately
available funds.
4. Closing Date; Closing.
4.1. Closing Date.
The Closing Date shall be December 10, 1996 or such earlier or later
date as may be agreed upon in writing by Buyer and Seller, but in no event
later than December 31, 1996.
|4.2. Closing.
The Closing shall take place at 10:00 a.m. on the Closing Date, at
the offices of the Title Insurer. At the Closing, the following actions
shall be taken, all of which will be deemed taken simultaneously and no
one of which will be deemed completed until all have been completed:
(a) The Deed and such easements as Seller shall be required
hereunder to obtain shall be delivered to Buyer.
(b) The balance of the Purchase Price shall be paid to Seller in
accordance with Section 3.
(c) The Assignment of Leases shall be delivered to Buyer.
(d) The Bill of Sale shall be delivered to Buyer.
(e) The Title Policy shall be delivered to Buyer.
(f) The Assignment of Service Contracts shall be delivered to
Buyer.
(h) The original lessor/landlord counterparts (or, if originals are
not in Seller's possession, copies thereof) of all Leases shall be
delivered to Buyer.
(i) Tenant Estoppels, each dated not earlier than thirty (30) days
prior to the Closing Date, from the Publix, Eckerd Drugs, Great Western
Bank and at least 75% of the remaining occupied square footage of the
Project shall be delivered to Buyer.
(j) Seller shall deliver to Buyer and the Title Insurer: (i) a
certified copy of Seller's certificate of limited partnership issued by
the State of Illinois; (ii) a long form good standing certificate of C. M.
General, Inc. issued by the State of Delaware; (iii) a certificate of
registration of Seller as a foreign limited partnership in Florida issued
by the State of Florida; and (iv) a certificate to the effect that
Seller's general partner is qualified to do business in Florida, issued by
the State of Florida, each dated not earlier than thirty (30) days prior
to the Closing Date.
(k) An affidavit of Seller to the effect that Seller is not a
"foreign person" for purposes of FIRPTA shall be delivered to Buyer.
(l) Any and all documents, affidavits and agreements reasonably
required by the Title Insurer to issue the Title Policy shall be delivered
by Seller to the Title Insurer.
(m) An audit representation letter, signed by Seller or the property
manager, substantially in the form specified by KMPG Peat Marwick and
previously furnished to Seller, shall be delivered to Buyer.
|5. Adjustments and Prorations; Closing Expenses.
5.1. Adjustments and Prorations.
The following items are to be apportioned between Buyer and Seller
as of 11:59 p.m. of the day next preceding the Closing Date (it being
understood and agreed that Buyer and Seller shall endeavor to compute all
closing adjustments at least five (5) business days prior to the Closing
Date, and Seller, by such time, shall supply satisfactory documentary
supporting evidence for all such adjustments):
(a) Rents and charges actually received from Tenants for the month
in which the Closing occurs, which rents and charges include, but are not
limited to, basic rents, percentage rents and escalation payments for
taxes, utilities and operating expenses. Percentage rents and escalation
payments allocable to periods prior to the Closing and not fully adjusted
at Closing shall be prorated promptly after such rents and charges are
paid by Tenants. If at the time of Closing there are past due rents or
charges owed by Tenants and Seller is entitled to all or part of the same,
then the rents received from and after the closing shall, to the extent
designated by tenants as attributable to rents or additional rent accruing
prior to the Closing, be applied to Seller's account and to the extent
undesignated, be applied to the first monies due under such Lease
following Closing. Buyer will make reasonable efforts, without suit, to
collect any past due rents and charges for the account of Seller and any
such rents and charges received by Buyer for the account of Seller shall
upon receipt, be promptly remitted by Buyer to Seller. Any past due rents
and charges not so collected by Buyer within the period of ninety (90)
days following the Closing shall remain the property of Seller who may
pursue such remedies (not including termination of the particular Lease)
for collection thereof, for its own account, as it may deem advisable and
available to it. All prepaid rents and charges for the period following
the Closing and all security or other deposits of Tenants held by Seller
shall be paid over by Seller to Buyer. Seller agrees to and does hereby
indemnify and hold Buyer harmless against any liability or expense
incurred by Buyer in respect of any Tenant security deposit (and interest
thereon, if required by law) collected by Seller and not paid (or
credited) to Buyer at the Closing. This provision shall survive the
Closing.
(b) Real and personal property taxes and assessments for the tax
year in which the Closing occurs, based upon the lowest amount payable
under applicable bills taking into account all discounts for early
payment. In the event a final tax bill is not available for such year at
the Closing, the required proration shall be made on the basis of the most
recent available final tax bill and a further proration shall be made
between the parties when the final tax bill for the tax year in which the
Closing occurs becomes available. This provision shall survive the
Closing.
(c) Fees and charges under such of the Service Contracts as are
being assigned to and assumed by Buyer at the Closing, on the basis of the
periods to which such Service Contracts relate.
(d) Utility charges, including water, sewer, electricity and gas,
vault taxes and maintenance charges, if any, for sewers. In conjunction
with such prorations, Seller will notify, or cause to be notified, all
utilities servicing the Project of the change in ownership and direct that
all future billings be made to Buyer at the address of the Project with no
interruption of service. Seller shall use its best efforts to procure
final meter readings for all utilities as of the Closing Date and to have
bills rendered directly to Seller.
5.2. Closing Expenses.
The following closing expenses shall be paid by Seller: (a) fees and
expenses in connection with the preparation of the Survey, except as
provided below; (b) any fees, costs and premiums incurred in connection
with the prepayment of the existing mortgage encumbering the Project; (c)
one half of any escrow fees and recording costs for recording the Deed and
Assignment of Leases, and (d) any state, county and local transfer and/or
documentary stamp taxes. The following closing expenses shall be paid by
Buyer: (i) the premium for, and search fees and expenses incurred in
connection with, the Title Policy; (ii) fees and expenses incurred in
satisfying any special or extraordinary requirements of Buyer with respect
to the Survey; and (iii) one half of any escrow fees recording costs for
recording the Deed and Assignment of Leases. Each party shall pay the fees
and expenses of its own legal counsel and other advisors and consultants,
and Buyer shall pay any and all costs and expenses in connection with any
financing by Buyer. All other expenses incurred in connection with the
Closing shall be allocated between the parties in accordance with local
custom.
|6. Covenants.
6.1. Covenants of Seller.
Seller hereby covenants and agrees with Buyer as follows:
(a) At all times during the Contract Period, Seller shall operate
and manage the Project in the normal and ordinary course of business and
in accordance with Seller's past practices, but Seller shall not, without
the advance written consent of Buyer, (i) effect any change in any Lease
or Service Contract, (ii) renew or extend the term of any Lease or Service
Contract, (iii) enter into any new Lease or Service Contract or cancel or
terminate any Lease or Service Contract (except as expressly provided
herein). Buyer shall not unreasonably withhold or delay its consent to any
new Lease proposed by Seller, and Buyer shall, at the Closing assume all
liability for any brokerage commissions incurred in connection with any
new Lease executed in accordance with the foregoing, and for any tenant
improvement allowances and other concessions granted to the Tenant under
any such new Lease. If Seller has paid any brokerage commissions or
disbursed any tenant improvement allowances or similar concessions to
Tenants in respect of such new Leases, Buyer shall reimburse such amounts
to Seller at the Closing.
(b) At all times during the Contract Period, Seller shall duly and
punctually pay and perform all of its obligations under the Leases and
Service Contracts.
(c) At all times during the Contract Period, Seller shall maintain
in full force and effect and pay all premiums on any fire and extended
coverage or liability insurance policies currently covering the Project.
(d) If there are any title exceptions other than the Permitted
Exceptions, then (i) to the extent such exceptions can be cured by the
payment of money not to exceed $50,000 in the aggregate, Seller shall do
so or, if Seller so elects, such exceptions shall be satisfied out of the
proceeds from this sale, or (ii) with respect to all other exceptions,
Seller shall have the right to adjourn the Closing for up to ninety (90)
days in which to attempt to cure such defects. If Seller elects not to
cure such defects, or fails to do so within such period of time, Buyer
shall have the right to proceed with the Closing and take title subject to
such exceptions, without reduction of the Purchase Price, or terminate
this Agreement by written notice to Seller, in which event the Deposit,
together with all accrued interest thereon, shall be returned to Buyer,
any documents or other information theretofore delivered to Buyer shall be
returned to Seller and thereafter neither party shall have any further
rights or obligation hereunder. It is expressly understood that Seller
shall cause the existing mortgage in favor of New York Life Insurance
Company to be paid off from the proceeds of this sale.
(e) At no time during the Contract Period shall Seller encumber or
permit to be encumbered with any lien or other claim or right, the
Project, the Leases or any other rights, appurtenances or property or
properties, real or personal, to be conveyed pursuant to this Agreement.
(f) Seller shall take all actions required of it in order to
properly effectuate the purpose and intent of this Agreement; and, without
limitation, Seller shall take all actions and make all deliveries required
of it at the Closing.
6.2. Covenants of Buyer.
Buyer hereby covenants and agrees with Seller as follows:
(a) Buyer shall notify Seller in writing of any Service Contracts
Buyer does not desire to assume and that is, by its terms, terminable upon
written notice from Seller. However, Seller shall assume no responsibility
for the termination of any Service Contracts by the Closing Date (and
Buyer shall assume any Service Contracts not so terminated) unless Buyer's
notice to Seller is given in sufficient time to permit Seller to give any
notice of termination required under the terms of such Service Contracts.
6.3. Earn Out.
(a) Suites 6, 7, 29 and 34 of the Project are currently vacant.
Such suites together with Suite 26 shall be referred to herein
collectively as the "Vacant Space." There shall be withheld from the
Purchase Price and deposited in escrow with the Title Insurer, pursuant to
an escrow agreement reasonably acceptable to the parties and the Title
Insurer, the sum of One Hundred Fifty Thousand Dollars ($150,000), to be
held in connection with the Vacant Space and disbursed in accordance with
the terms of this section 6.3. The term of the escrow agreement shall
commence on the Closing Date and expire on the first anniversary thereof,
subject to extension in accordance with subsection 6.3 (e) below.
(b) Following the Closing, Buyer shall use reasonable, diligent and
good faith efforts to lease the Vacant Space, giving preference, if
possible, to the Vacant Space over other space in the Project taking into
account the size and location of the space required by the tenant, and
Seller shall have the right to seek prospective tenants for the Vacant
Space, in each case upon terms and conditions consistent with the leasing
parameters set forth in Exhibit K hereto (the "Leasing Parameters"). If
Seller presents a tenant or tenants for one or more suites of Vacant Space
who is willing to enter into a lease which conforms with the Leasing
Parameters, who is not related to or affiliated with Buyer or Seller and
whose creditworthiness, reputation, experience in the business to be
operated at the premises and proposed use of the space are acceptable to
Buyer, in its reasonable judgment, Buyer shall use all reasonable and good
faith efforts to execute a lease with such tenant. A lease executed in
accordance with the foregoing covenants shall be referred to as a "New
Lease."
(c) Upon the execution of a New Lease by landlord and tenant, the
parties shall execute written instructions authorizing the Title Insurer
to disburse from escrow (i) to the leasing broker or brokers, leasing
commissions due and payable in connection with the New Lease, provided
that the amount disbursed from escrow shall not exceed five percent (5%)
of the total fixed minimum or base rents due during the base term of the
New Lease, minus any free rent, rent credits or similar rent concessions,
(ii) to or as directed by Buyer, the amount of any tenant improvement
allowances provided for in the New Lease , not to exceed three dollars
($3.00) per square foot (and Buyer shall be responsible for disbursing
same to the tenant pursuant to the terms of the New Lease) and (iii) to
Seller the lesser of the "Earn Out Amount" as hereinafter defined or the
balance of the funds held in escrow.
(d) For purposes of calculating the "Earn Out Amount," the term
"Effective Rent" shall mean the average annual fixed rent over the term of
the New Lease, taking into account the amount of any free rent, rent
credits or similar rent concessions but without reduction for tenant
improvement allowances and/or leasing commissions. The "Earn Out Amount"
shall mean the Effective Rent divided by 0.11 for a particular New Lease.
(e) Upon Seller's request, no more often than once every two (2)
months, Buyer shall provide Seller with written reports as to the status
of leasing the Vacant Space, which shall provide a list of potential
tenants for each suite, the terms and conditions of each potential lease,
the status of any negotiations and the anticipated date of signing a New
Lease. If any funds remain undisbursed on the first anniversary of the
Closing Date, and if Seller is not entitled to receive all or any portion
of such funds as a result of the execution of New Leases in accordance
with the foregoing, then the balance held in the escrow account shall be
disbursed to Buyer. Notwithstanding the foregoing, if active negotiations
are pending with any prospective tenants as of such first anniversary,
then Seller shall have the right to extend the term of the escrow
agreement, and adjourn the date for disbursement of the balance of the
escrowed funds, for one additional ninety (90) day period. If a New Lease
is executed during such time, the provisions of Section 6.3 (c) and (d)
shall apply.
(f) Notwithstanding the foregoing, if prior to the Closing Seller
leases all or a portion of the Vacant Space in accordance with the Leasing
Parameters, the amount of the Purchase Price withheld in escrow (if any)
shall be $150,000 minus the Earn Out Amount applicable to such New
Lease(s).
7. Representations and Warranties of Seller.
Seller hereby represents and warrants to Buyer as follows, it being
expressly understood and agreed that all such representations and warranties
shall be true and correct at the date of this Agreement and as of the Closing
and shall, except as otherwise expressly provided herein, survive for six (6)
months following the Closing. The foregoing period of survival shall not affect
or limit any warranties contained in any of the closing documents:
(a) Seller has good and marketable title to the Project free and
clear of all liens, covenants, conditions, restrictions, rights of way,
easements and encumbrances of any kind or character whatsoever, except the
Permitted Exceptions and such exceptions as will be removed at or prior to
Closing. This provision shall not survive the Closing.
(b) There is no pending litigation or, to Seller's actual knowledge,
threatened litigation which does or will affect the Project.
(c) Seller has not received notice that the Project is in violation
of any laws, ordinances, rules and regulations of any government or any
agency, body or subdivision thereof bearing on the construction of the
Improvements and on the operation, ownership or use of the Project
("Applicable Laws"), and (subject to the environmental conditions
described in Section 8 below) to Seller's actual knowledge the Project is
not in violation of Applicable Laws. Seller has received notices from
Wellington Management, Inc., copies of which are attached hereto as
Exhibit L, which have not been cured.
(d) Except as set forth in the Schedule of Leases, there are no
leases affecting all or any portion of the Project, and no person other
than the Tenants thereunder has any right of possession to the Project or
any part thereof; no rent has been paid in advance by any Tenant; no
Tenant has any claim against Seller for any security deposit or other
deposits; no Tenant has any defense of off-sets to rent accruing after the
Closing Date; Seller has received no notice and has no actual knowledge of
any defaults by Seller as landlord or any Tenant thereunder, nor does
Seller have actual knowledge of any actions or omissions which, with the
giving of notice or passage of time, or both, would give rise to such a
default. This representation shall survive, as to each Tenant, until the
earlier of (i) six (6) months following the Closing or (ii) delivery of a
Tenant Estoppel from such Tenant, but only to the extent that the Tenant
Estoppel is consistent in scope and substance with the representations of
Seller herein.
(e) Seller has not (i) made a general assignment for the benefit of
creditors; (ii) filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by Seller's creditors; (iii) suffered
the appointment of a receiver to take possession of all or substantially
all of the Seller's assets; (iv) suffered the attachment or other judicial
seizure of all, or substantially all, of Seller's assets; (v) admitted in
writing its inability to pay its debts as they come due; or (vi) made an
offer of settlement, extension or composition to its creditors generally.
(f) Seller is duly organized and existing and in good standing under
the laws of the state of its incorporation; Seller has the full right and
authority to enter into this Agreement, consummate the sale, transfers and
assignments contemplated herein; and each of the persons signing this
Agreement on behalf of Seller is authorized to do so.
(g) There are no contracts or other agreements for services,
supplies or materials, affecting the use, operation or management of the
Project other than the Service Contracts.
Except as expressly set forth herein, Seller has not, does not and will
not make any warranties or representations, and Seller specifically disclaims
any other implied warranties or warranties arising by operation of law,
including, without limitation, any warranty of condition, merchantability,
habitability or fitness for a particular purpose or use. Furthermore, Seller has
not, does not and will not, except as expressly set forth herein, make any
representation or warranty with regard to compliance with any environmental
laws. Buyer acknowledges that it is a sophisticated purchaser who is familiar
with this type of property, that prior to executing this Agreement it has made,
or will have made, such inspections and investigations of the Project as it
deemed necessary including, without limitation, review of all documents on file
with federal, state and/or local government agencies relating to the Project,
the physical and environmental features of the Project, review of the Project
Documents set forth on Exhibit J and analysis of the economic and financial
aspects of this transaction and that, subject only to the express warranties set
forth above or that are contained in the closing documents, Buyer is acquiring
the Project "AS IS AND WHERE IS" in its current state and physical condition,
subject to normal wear and tear between the effective date of this Agreement and
the Closing.
The term "Seller's actual knowledge" as used herein shall mean the actual
knowledge of Seller, based solely upon inquiry of Christopher J. Carbone and/or
Joseph B. Dobronyi, who are officers of UBS Asset Management (New York), Inc.,
and of Seller's property manager, Southeast Centers Management Service Corp.
8. Environmental Conditions.
(a) Without limiting the generality of the foregoing provisions of
Section 7, Buyer is aware that the Project's soil and ground water have been
impacted by dry cleaning solvents and other related Hazardous Material and that
such contamination (the "Contamination") has been reported to the Florida
Department of Environmental Protection. Seller has delivered to Buyer certain
environmental reports prepared by Seller's engineers with respect to the
Contamination, and Buyer has reviewed such reports and has caused its own
engineers to perform such investigations of the Project as Buyer determined to
be appropriate. Buyer, on behalf of itself and its successors, assigns and
others claiming by, through and under it, hereby releases, acquits and forever
discharges Seller, its predecessors, successors, assigns, heirs, officers,
partners, attorneys, accountants, advisors, insurers and representatives, of and
from any and all manner of federal state or local action or actions, cause or
causes of action in law or in equity, suits, debts, liens, contracts,
agreements, promises, liabilities, claims, demands, damages, losses, interest,
costs or expenses, of any nature whatsoever, known or unknown, fixed or
contingent, which Buyer may now or at any time have against Seller in connection
with or relating to any obligation to remediate the Contamination. Seller shall
at no time have any obligation to remediate, abate or otherwise address the
Contamination, or to provide to State and/or Federal environmental agencies or
authorities any further site assessments or other information with respect to
the Contamination, whether during the Contract Period or on or after the
Closing. Buyer hereby indemnifies and agrees to hold harmless and defend Seller
from and against any and all loss, cost, liability, expense, claims, response
costs, damages, interest or fees (including, without limitation, reasonable
attorneys fees) which Seller may incur as a result of any claim, demand, suit,
proceeding or action brought by any person, entity or governmental agency or
authority in connection with or arising out of any obligation to remediate the
Contamination. Buyer shall perform all investigations, characterizations,
removal or clean-up of the contamination which is demanded, requested or ordered
by any federal, state or local governmental agency with oversight authority.
Buyer is not releasing or indemnifying Seller for any claims of third parties
for personal injury or property damage arising out of any discharge or release
of Hazardous Material that occurred prior to the Closing.
(b) Seller reserves to itself the exclusive right to file, pursue,
prosecute, settle, release or otherwise deal with any and all claims, causes of
action, rights or remedies that may exist against Dry Clean USA, its
predecessors, successors, assigns, parent companies, affiliates, officers,
employees, consultants or advisors or any other tenant or occupant of the
Project who may be responsible for the environmental conditions described above,
whether under the covenants set forth in the Dry Clean USA Lease, or under
applicable Federal, State or local law (the "Responsible Party"). Buyer shall,
at Seller's request, cooperate with Seller in pursuing any such legal action
against the Responsible Party, all at Seller's sole cost and expense, which
cooperation shall include, without limitation, giving Seller access to the
Project in order to perform any further environmental investigations or studies
thereon, giving Seller access to the books and records with respect to the
Project, and making available for interview, declaration, affidavit, deposition,
trial, arbitration or mediation, any witnesses Seller may call in connection
with any such legal action. Access to the Project and the books and records with
respect to the Project shall be at reasonable times and upon prior written
notice, and Seller shall be obligated to restore any damage caused by the
activities of Seller or its agents or consultants, and shall indemnify Buyer
against any loss, cost, damage, liability or expense arising from Seller's such
activities. At Seller's request, Buyer shall execute a specific assignment of
Seller's rights against such Responsible Party in respect of the environmental
contamination at the Project, including, without limitation, any rights under
any operational or maintenance covenants or indemnifications provided under the
Dry Clean USA Lease. Seller shall have no right, nor shall Buyer have any
obligation, to terminate, or seek termination of, the Dry Clean USA Lease.
Seller shall have no liability whatsoever to Buyer in the event that Dry Clean
USA shall, during the Contract Period or on or after the Closing, cease
operations at the Project, abandon its premises or terminate its Lease as a
result of any such legal action taken by Seller or for any other reason.
9. Representations and Warranties of Buyer.
Buyer hereby represents and warrants to Seller (such representations and
warranties to be true and correct at the date of this Agreement and as of the
Closing) that (i) Buyer is duly organized and in good standing under the laws of
the jurisdiction of its formation, (ii) Buyer has the full right, power and
authority to enter into and fully perform its obligations under this Agreement,
and (iii) each person signing this Agreement on behalf of Buyer is authorized to
do so.
|10. Damage or Destruction.
The risk of loss of or damage to the Project by reason of any insured or
uninsured casualty shall be borne by Seller. In the event of any damage to or
destruction of the Project or any portion thereof (notice of which shall be
given to Buyer by Seller promptly following its occurrence), which damage or
destruction can reasonably be repaired or replaced by Seller prior to the
Closing Date, Seller shall do so. If the cost of such repair or replacement
exceeds $500,000, Buyer may, at its option, by notice to Seller given within
thirty (30) days after Buyer is notified of such damage or destruction, (a)
unilaterally terminate this Agreement, or (b) elect to continue this Agreement
and purchase the Project. In the event of (b) above, or if the cost of repair or
replacement is $500,000 or less, Seller shall assign to Buyer at the Closing any
insurance proceeds payable in respect of such casualty and Buyer shall be
entitled to a credit against the Purchase Price in the amount of any deductible
that is applicable under Seller's casualty insurance policy to such casualty.
11. Eminent Domain.
In the event of any threatened, contemplated, commenced or consummated
proceedings in eminent domain (notice of which shall be given to Buyer by Seller
promptly) respecting all or any material portion of the Project, Buyer may, at
its option, by notice to Seller given thirty (30) days after Buyer is notified
of such actual or possible proceedings, (a) unilaterally terminate this
Agreement, in which event the Deposit together with accrued interest thereon
shall be returned to Buyer and neither party shall have any further rights or
obligations hereunder, or (b) elect to continue this Agreement, in which event
Seller shall, at the Closing, assign to Buyer its entire right, title and
interest in and to any condemnation award and Buyer shall have the sole right
during the Contract Period to negotiate and otherwise deal with the condemning
authority in respect of such matter.
|12. Conditions to Closing.
12.1. Buyer's Conditions.
Buyer's obligation to purchase the Project is expressly conditioned
upon the following (unless waived by Buyer), and absent satisfaction of
same at the Closing Date Buyer may unilaterally and forthwith terminate
this Agreement:
(a) At the Closing Date, no suit, action or other proceedings shall
be pending or threatened which seeks, nor shall there exist any judgment
the effect of which is, to restrain the purchase and sale of the Project;
and
(b) Seller's representations and warranties set forth herein
shall be true and correct in all material respects at the Closing Date;
and
(c) As the Closing Date, the Leases with Publix, Eckerd Drugs and
Great Western shall be in full force and effect, and at least 75% of the
remaining gross leasable area of the Project shall be leased in accordance
with the Schedule of Leases or otherwise in accordance with this
Agreement. Except as expressly provided in this subparagraph, Buyer shall
have no right to terminate this Agreement, nor shall Buyer be entitled to
any credits against the Purchase Price, as a result of any changes in the
Leases and/or the Tenants of the Project as of the Closing Date.
12.2. Seller's Conditions.
Seller's obligation to sell the Project is expressly conditioned
upon the following (unless waived by Seller) and, absent satisfaction of
same at the Closing Date, Seller may unilaterally and forthwith terminate
this Agreement: (a) Buyer's representations and warranties set forth
herein shall be true and correct at the Closing Date; and (b) Buyer shall
be ready, willing and able to deliver the Purchase Price at the Closing.
13. Brokerage.
Each party represents and warrants to the other that it has neither
engaged nor employed any broker or finder in connection with the transactions
contemplated by this Agreement, other than Sonnenblick-Goldman Company, One
Biscayne Tower, 2 South Biscayne Boulevard, Miami, Florida 33131 Attn: Manuel De
Zarraga, for whose compensation Seller shall be responsible pursuant to a
separate agreement, and each party hereby indemnifies and agrees to hold the
other harmless from and against any loss, cost, damage or expense (including
reasonable attorneys' fees) by reason of the incorrectness of such
representation and warranty. This provision shall survive the Closing.
|14. Notices.
All notices, demands, requests, consents, approvals or other
communications (for the purposes of this Section collectively called "Notices")
required or permitted to be given hereunder or which are given with respect to
this Agreement shall be in writing and shall be delivered personally or sent by
either registered or certified mail, return receipt requested, postage prepaid
or Federal Express or another nationally recognized air courier service,
addressed as follows:
TO SELLER:
Chamanreal Inc., N.V.
c/o UBS Asset Management (New York), Inc.
1345 Avenue of the Americas
New York, NY 10105
Attn: Real Estate Asset Management Department
with a copy to:
Gibson, Dunn & Crutcher, LLP
200 Park Avenue
New York, NY 10166
Attn: Joanne Franzel, Esq.
TO BUYER:
RRC Acquisitions, Inc.
c/o Regency Realty Corporation
121 West Forsyth Street
Suite 200
Jacksonville, FL 32202
Attn: Richard E. Cook
with a copy to:
Ulmer, Murchison, Ashby & Taylor
200 West Forsyth Street
Suite 1600
Jacksonville, FL 32201
Attn: William E. Scheu, Esq.
or such other address as such party shall have specified most recently by
like Notice. Notices mailed as provided herein shall be deemed given on the
third New York business day following the date so mailed.
15. Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute but one and
the same instrument.
|16. Governing Law.
This Agreement shall be governed by, interpreted under, and construed and
enforced in accordance with, the laws of the State of Florida applicable to
agreements made and to be performed wholly within the State of Florida.
17. Entire Agreement.
This Agreement (including the Exhibits attached here) contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior understandings, if any, with respect thereto. This
Agreement may not be modified, changed or supplemented, nor may any obligations
hereunder be waived, except by written instrument signed by the party to be
charged or by its agent duly authorized in writing or as otherwise expressly
permitted herein. The parties do not intend to confer any benefit hereunder on
any person, firm or corporation other than the parties hereto. This provision
shall survive the Closing.
18. Attorneys' Fees.
Should either party institute any action or proceeding to enforce this
Agreement or any provision hereof, or for damages by reason of any alleged
breach of this Agreement or of any provision hereof, or for a declaration of
rights hereunder, the prevailing party in any such action or proceeding shall be
entitled to receive from the other party all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party in connection with
such action or proceeding.
19. Titles and Headings.
Titles and headings of Articles and Sections of this Agreement are for
convenience of reference only and shall not affect the construction of any
provision of this Agreement.
20. Non-Waiver of Rights.
No failure or delay of either party in the exercise of any right given to
such party hereunder shall constitute a waiver thereof unless the time specified
herein for exercise of such right has expired, nor shall any single or partial
exercise of any right preclude other or further exercise thereof or of any other
right. The waiver of any breach hereunder shall not be deemed to be a waiver of
any other or any subsequent breach hereof.
21. Exhibits.
Each of the Exhibits referred to herein and attached hereto is an integral
part of this Agreement and is incorporated herein by this reference.
22. Pronouns; Joint and Several Liability.
All pronouns and any variation thereof shall be deemed to refer to the
masculine, feminine or neuter, singular of plural, as the identity of the
parties may require. If the Buyer consists of two or more parties, the liability
of such parties shall be joint and several.
23. Further Assurances.
Seller and Buyer each agrees to do such further acts and things and to
execute and deliver such additional agreements and instruments as the other may
reasonably require to consummate, evidence or confirm the sale or any other
agreement contained herein in the manner contemplated hereby.
24. No Assignment.
Buyer shall have no right to assign this Agreement or its rights hereunder
without the express written consent of Seller. A sale of a controlling interest
in the shares or partnership interests of Buyer shall be deemed an assignment
for purposes of this Agreement. Notwithstanding the foregoing, Buyer shall have
the right to assign this Agreement to, or to designate as the grantee under the
Deed, an entity controlled by, controlling or under common control with Buyer,
where "control" means the capacity to control the business operations and
policies of the entity, whether by share ownership, contract or otherwise.
|25. Time of Essence.
Time is of the essence of each and every term, condition and particular of
this Agreement.
26. Radon Gas.
Radon is a naturally occurring radioactive gas which, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon which exceed federal
and state guidelines have been found in buildings in the state in which the
Property is located. Additional information regarding radon and radon testing
may be obtained from the county public health unit.
IN WITNESS WHEREOF, the Seller and Buyer have duly executed this Agreement
as of the day and year first above written.
SELLER: BUYER:
C. M. WELLINGTON TOWN SQUARE RRC ACQUISITIONS, INC.,
LIMITED PARTNERSHIP, a Florida corporation
an Illinois limited partnership
By: C. M. General, Inc., By:_____________________________
a Delaware corporation, its Name:
general Title:
partner
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
EXHIBIT K
LEASING PARAMETERS
1. Fixed minimum or base rent: No less than $14 per square foot of
net rentable area
2.Common Area Maintenance (which shall include reasonable and customary
management fees), Insurance and Real Estate Taxes to be paid prorata by
tenant.
3. Term: No less than 3 years
4. Free Rent: No more than 3 months following substantial completion
5. Tenant Improvement Allowance: No more than $3.00 per square foot
6. The lease shall be on Buyer's standard form for the Project.
7.The tenant shall not have received any inducements to execute the
lease other than free rent and/or tenant improvement allowance
consistent with these Leasing Parameters, and other concessions which
are customarily given by prudent landlords in leasing space in shopping
centers comparable to and within the vicinity of the Project.
NA962760.012/20+