PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 1st day of October, 1997, between
BOYNTON LAKES PLAZA PARTNERSHIP, a Florida general partnership ("Seller"), and
RRC ACQUISITIONS, INC., a Florida corporation, its designees, successors and
assigns ("Buyer").
Background
Buyer wishes to purchase a shopping center in the City of Boynton
Beach, County of Palm Beach, State of Florida, owned by Seller, known as Boynton
Lakes Plaza (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 .
1.4 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 calendar 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 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 ss.ss.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 ss.ss.6901 et
seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of
1977, 33 USC ss.ss.1251 et seq., Clean Air Act of 1966, as amended, 42 USC
ss.ss.7401 et seq., Toxic Substances Control Act of 1976, 15 USC ss.ss.2601 et
seq., Hazardous Materials Transportation Act, 49 USC App. ss.ss.1801,
Occupational Safety and Health Act of 1970, as amended, 29 USC ss.ss.651 et
seq., Oil Pollution Act of 1990, 33 USC ss.ss.2701 et seq., Emergency Planning
and Community Right-to-Know Act of 1986, 42 USC App. ss.ss.11001 et seq.,
National Environmental Policy Act of 1969, 42 USC ss.ss.4321 et seq., Safe
Drinking Water Act of 1974, as amended by 42 USC ss.ss.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 Rogers, Towers, Bailey, Jones & Gay, Attorneys,
whose address is 1301 Riverplace Blvd., Suite 1500, Jacksonville, Florida 32207
(Fax 904/396-0663), or any successor Escrow Agent.
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1.13 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
1.14 Hazardous Material means any petroleum, petroleum product,
drycleaning solvent or 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.
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.
1.17 Inspection Period means the period of time which expires at the
end of business on the thirtieth (30th) day after the date of execution by the
last of Buyer or Seller to execute this Agreement and transmit a copy of the
fully executed Agreement 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.
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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.
1.22 Property means collectively the Real Property, the Improvements
and the Personal Property.
1.23 Prorated means the allocation of items of expense or income
between Buyer and Seller based upon that percentage of the time period as to
which such item of expense or income relates which has expired as of the date at
which the proration is to be made.
1.24 Purchase Price means the consideration agreed to be paid by Buyer
to Seller for the purchase of the Property as set forth in Section (subject to
adjustments as provided herein).
1.25 Real Property means the lands more particularly described on
Exhibit , 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 ,
identifying with particularity the space leased by each tenant, the term
(including extension options), 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 balance sheets and
statements of income, cash flows and changes in financial positions prepared by
Seller 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
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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.
1.31 Survey means a map of a stake survey of the Real Property which
shall comply with Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, jointly established and adopted by ALTA and ACSM in 1992, and includes
items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof, which meets the
accuracy standards (as adopted by ALTA and ACSM and in effect on the date of the
Survey) of an urban survey, which is dated not earlier than thirty (30) days
prior to the Closing, and which is certified to Buyer, Seller, the Title
Insurance company providing Title Insurance to Buyer, and Buyer's lender, and
dated as of the date the Survey was made.
1.32 Tenant Estoppel Letter means a letter or other certificate from a
tenant certifying as to certain matters regarding such tenant's Lease, in
substantially the same form as attached hereto as Exhibit , 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 (subject to adjustment as provided herein) shall be $13,000,000. The
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Purchase Price shall be payable in cash or certified funds, cashier's check or
by wire transfer of good and immediately available funds 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) provided, however, special taxes or assessments, if
any, upon the Property assessed or becoming a lien prior to the date hereof (but
only a pro-rata share of the then current installment of such special taxes or
assessments, if any), shall be charged as a credit against the Purchase Price),
Buyer agreeing to assume all liability for future installments and deferred
payments. Seller has no knowledge of any outstanding special taxes or
assessments as of the date hereof;
(2) prorating as of the Allocation Date cash receipts and
expenditures for the Shopping Center; and
(3) subtracting the amount of security deposits, prepaid rents
from tenants under the Leases, and credit balances, if any, of any tenants. Any
rents, percentage rents or tenant reimbursements payable by tenants after the
Allocation Date but applicable to periods on or prior to the Allocation Date
shall be remitted to Seller by Buyer within thirty (30) days after receipt
thereof, less all reasonable costs incurred by Buyer in connection with such
collection. If, as of Closing, any tenants under the Leases have failed to pay
any amounts due and payable thereunder prior to the Closing (the "Delinquent
Amounts"), then (i) Buyer shall use reasonable efforts to collect the Delinquent
Amounts, by billing such tenants monthly for a period not exceeding ninety (90)
days, but Buyer shall not be required to terminate any lease, evict any tenant
or institute or threaten litigation with respect to any delinquency; and (ii)
Buyer shall pay to Seller all Delinquent Amounts actually received by Buyer
within thirty (30) days after receipt thereof, less all reasonable costs
incurred by Buyer in connection with such 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 initial Earnest Money Deposit in the amount
of $25,000 shall be delivered to Escrow Agent within three (3) days after the
date of
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execution by the last of Buyer or Seller to execute and transmit a copy of this
Agreement to the other. An additional Earnest Money Deposit in the amount of
$100,000 shall be delivered by Buyer to Escrow Agent on or before the expiration
of the Inspection Period, provided that Buyer has not terminated this Agreement
in accordance with Section (the initial Earnest Money Deposit and the additional
Earnest Money Deposit, together with accrued interest thereon, being at times
hereinafter collectively referred to and held as the "Earnest Money Deposit").
This Agreement may be terminated by Seller if the initial Earnest Money Deposit
or the additional Earnest Money Deposit is not received by Escrow Agent by the
respective deadline therefor. The Earnest Money Deposit paid by Buyer shall be
deposited by Escrow Agent in an interest bearing account at First Union National
Bank, and shall be held and disbursed by Escrow Agent as specifically provided
in this Agreement. The Earnest Money Deposit, and all interest and income
thereon, shall be applied to the Purchase Price at the Closing.
2.3 Closing Costs.
(a) Seller shall pay:
(1) One-half of the cost of documentary stamp and other transfer
taxes imposed upon the transactions contemplated hereby;
(2) Cost of satisfying any liens (other than any arising out of any
acts or omissions of Buyer) on the Property;
(3) Cost of title insurance and the costs, if any, of curing title
defects and recording any curative title documents to the extent Seller elects
to cure any such defects;
(4) The broker's commission payable to Eckstein Rothenberg
Corporation; and
(5) Except as otherwise provided in this Agreement, Seller's
attorneys' fees relating to the sale of the Property.
(b) Buyer shall pay:
(1) One-half of the cost of documentary stamp and other transfer
taxes imposed upon the transactions contemplated hereby;
(2) Cost of Buyer's due diligence inspection;
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(3) Costs of the Phase 1 environmental site assessment to be
obtained by Buyer;
(4) Cost of the Survey;
(5) Cost of recording the deed; and
(6) Except as otherwise provided in this Agreement, 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. 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. By written notice delivered to Seller on or before the expiration
of the Inspection Period, Buyer, in its sole discretion and for any reason or no
reason, shall elect either (i) not to go forward with this Agreement to closing,
in which event the initial Earnest Money Deposit shall be returned to Buyer,
this Agreement shall lapse and terminate, and neither party shall have any
further rights, duties, obligations or liabilities hereunder except those that
are intended to survive any termination hereof, or (ii) to go forward with this
Agreement to closing, in which event Buyer shall deliver the additional Earnest
Money Deposit to Escrow Agent simultaneously with the delivery of Buyer's notice
to Seller. If no notice is timely given or if the additional Earnest Money
Deposit is not timely made, Buyer shall be deemed to have elected alternative
(i).
(b) Provided the same does not unreasonably interfere with the
business operations of the Property, 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 and
upon reasonable prior notice to Seller during the Inspection Period for the
purpose of inspecting the Property, taking soil and ground water samples,
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 without cost or liability to Seller. Seller shall give
Buyer any authorizations which may be reasonably required by Buyer in order to
gain
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access to records or other information pertaining to the Property or the use
thereof maintained by any governmental or quasi-governmental authority or
organization. Buyer, for itself and its agents, agrees not to enter into any
contract with existing tenants without the written consent of Seller if such
contract would be binding upon Seller should this transaction fail to close.
Prior to the expiration of the Inspection Period, Buyer shall have the right to
conduct due diligence interviews with tenants, but agrees that it shall not
conduct any other discussions or negotiations with such tenants without the
prior consent of Seller until and unless Buyer elects to proceed to closing
hereunder. Buyer shall take no action which would permit the imposition of a
mechanic's or materialman's lien against the Property. If Buyer does not close
for any reason hereunder, Buyer shall restore the Property to its condition
existing prior to such investigation and inspection.
(c) Upon reasonable prior notice to Seller, Buyer, through its
officers or other authorized representatives, shall have the right to reasonable
access to all Materials (other than privileged or confidential litigation
materials) for the purpose of reviewing and copying the same.
3.2 Hazardous Material. Prior to the end of the Inspection Period Buyer
may order environmental assessments of the Property. A copy of any assessment
report, if made, shall be furnished by Buyer to Seller promptly upon its
completion. If an 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 ten (10)
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 and neither party shall have any
further rights, duties, obligations or liabilities hereunder except those that
are intended to survive termination of this Agreement.
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. or
through escrow on the date which is the fifteenth (15th) day following the
expiration of the Inspection Period, provided that Buyer may designate an
earlier date for Closing by notice in writing to Seller given at least five (5)
business days prior to such earlier closing date.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as follows as of the date of this
Agreement and as of the Closing and where indicated covenants and agrees as
follows:
4.1 Organization; Authority. Seller is duly organized, validly existing
and in good standing under the laws of the state of its organization and the
state in which the Shopping Center is located, and has full power and authority
to enter into and perform
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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 to the Seller's knowledge 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. Assuming valid
execution and delivery of this Agreement by Buyer this Agreement constitutes a
legal, valid and binding agreement of Seller enforceable against it in
accordance with its terms.
4.3 Title. Seller is the owner in fee simple of all of the Property,
subject, as of the date hereof, to the matters set forth on Exhibit attached
hereto and incorporated herein by reference (and in reliance solely upon said
Exhibit ), and as of the date of Closing, the Permitted Exceptions.
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 Eckstein Rothenberg Corporation, whose commission shall be paid by
Seller, 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, as of the date hereof, those matters set forth
on Exhibit hereto (and in reliance solely upon said Exhibit ) and this
Agreement, and as of the date of Closing, the Permitted Exceptions and this
Agreement.
4.6 Litigation. There is no litigation or proceeding pending, or to
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
Seller's knowledge, 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
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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 generally accepted accounting principles applied on a consistent
basis. There has been no material adverse change in the operations of the
Property or its prospects since the date of the most recent Seller Financial
Statements. Seller covenants to furnish promptly to Buyer copies of the Seller
Financial Statements together with unaudited updated monthly reports of cash
flow for interim periods beginning after December 31, 1996. Buyer and its
independent certified accountants shall be given access to Seller's books and
records at any time prior to and for six (6) months following Closing upon
reasonable advance notice in order that Buyer at its sole cost and expense may
verify the Seller Financial Statements. 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. Buyer shall pay all costs
associated with such audit.
4.9 Contracts. Except for, as of the date hereof, the Leases and those
matters set forth on Exhibit hereto (and in reliance solely upon said Exhibit )
and as of the date of Closing, the 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, which have been delivered to
Buyer or shall be delivered to Buyer within five (5) days from the date hereof,
are, to the knowledge of Seller, 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.
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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. Seller covenants to maintain such
casualty and liability insurance on the Property as it is presently being
maintained.
4.11 Permits and Zoning. To the knowledge of Seller, (a) there are no
material permits and licenses (collectively referred to as "Permits") required
to be issued to Seller by any governmental body, agency or department having
jurisdiction over the Property which materially affect the ownership or the use
thereof which have not been issued, except to tenants for tenant work not
involving the landlord; (b) the Property is properly zoned for its present use
and is not subject to any local, regional or state development order; (c) the
use of the Property is consistent with the land use designation for the Property
under the comprehensive plan or plans applicable thereto; and (d) 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 reasonable efforts to obtain
current Tenant Estoppel Letters acceptable to Buyer from all Tenants under
Leases, which Tenant Estoppel Letters shall confirm the matters reflected by the
Rent Roll as to the particular tenant and shall otherwise be reasonably
acceptable to Buyer.
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
violations at the Property which remain uncured, concerning building, fire, air
pollution or zoning codes, rules, ordinances or regulations, environmental and
hazardous substances laws, or other
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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; or (d) to
Seller's knowledge 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:
(1) Seller has not, and to Seller's knowledge and subject to the
matters reflected in that certain Phase I Environmental Report dated January 22,
1991 (the "Phase I Report"), a copy of which is to be promptly furnished to
Buyer by Seller, no other person has, caused any Release, threatened Release, or
disposal of any Hazardous Material at the Property in any material quantity;
(2) To Seller's knowledge and subject to the matters reflected
in the Phase I Report the Property does not contain 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 (other than de minimis amounts of spot removers and similar products),
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,
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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 of this Agreement. This indemnity shall survive Closing
indefinitely and shall be in addition to the post-closing indemnities contained
in Section .
4.18 No Untrue Statement. To Seller's knowledge 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 As used herein the term "knowledge" with respect to Seller shall
mean the actual knowledge of Seller based on knowledge of the officers of the
partners comprising Seller of matters of which they have personally received
written notice or which they have been personally informed, and of which they
are aware (and shall not, in any event, include constructive knowledge or
notice).
Except as otherwise expressly set forth in this Agreement,
Seller makes no guarantees, warranties or representations, express or implied,
with respect to (a) the Property, (b) the condition of title, (c) suitability
for any intended purpose, or habitability, (d) size, location, physical
condition, encroachments, access, availability of utilities, zoning, zoning
stipulations or other building or development requirements, value, future value,
income potential, productivity, rights to, adequacy of or quality of the water
supply or water rights, soil compaction, or (e) any other matter pertaining to
this transaction.
EXCEPT AS EXPRESSLY PROVIDED HEREIN BY CONSUMMATING THIS
TRANSACTION, BUYER AGREES TO ACCEPT THE PROPERTY IN ITS PRESENT CONDITION "AS
IS" WITH ALL FAULTS AND WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER AS TO
ITS CONDITION OR FITNESS FOR ANY PARTICULAR PURPOSE. No person acting on behalf
of Seller is authorized to make, and by execution hereof, Buyer acknowledges and
agrees that no such person has made, any representation, warranty, guarantee or
promise, whether oral or written, except as set forth herein, and no such
agreement, statement, representation or
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promise made by any such person which is not contained in this Agreement shall
be valid or binding against Seller.
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
Eckstein Rothenberg Corporation, 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 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:
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(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 and neither party shall have
any further rights, duties, obligations or liabilities hereunder except those
which are intended to survive termination of this Agreement; 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 and Survey. Prior to the end of the
Inspection Period Buyer's counsel shall order the Title Insurance Commitment and
a Survey (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 ten (10) days from receipt of the Title Commitment (including
legible copies of all recorded exceptions noted therein) and Survey 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 in which event neither party shall have any further rights, duties,
obligations or liabilities hereunder except those which are intended to survive
termination of this Agreement; 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
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evidence that the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized and that there
are no mechanics' liens on the Property or parties in possession of the Property
other than tenants under Leases and Seller.
8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The obligations of
Buyer under this Agreement are subject to satisfaction or waiver by Buyer of
each of the following conditions or requirements on or before the Closing Date:
(a) Seller's warranties and representations under this
Agreement shall be true and correct 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, the Leases or the financial condition of tenants
leasing space in the Shopping Center.
(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 and,
if applicable, the contingencies addressed in Section above and the Buyer's
election thereunder.
(f) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) A warranty deed in proper form for recording, duly executed and
acknowledged so as to convey to Buyer the fee simple title to the Property,
subject only to the Permitted Exceptions;
(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 and assumption by Buyer of all Leases
and Contracts, and such other contracts, agreements, permits and licenses
(to the
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extent assignable) as they affect the Property, including an indemnity against
breach of such instruments by Seller prior to the Closing Date and an indemnity
by Buyer against any event accruing or first arising thereunder after the
Closing Date;
(4) A bill of sale with respect to the Personal
Property and Materials;
(5) A title certificate, properly endorsed by Seller,as to any items of
Property for which title certificates exist;
(6) The Survey;
(7) 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 Section or in the Leases or approved in writing by Buyer;
(8) All Tenant Estoppel Letters obtained by Seller, which must
include Winn-Dixie, Cuco's Mexican Restaurant, Walgreen, R.J. Gators, Radio
Shack, World Gym, Capital Carpets, Dryclean USA, Dunkin Doughnuts, Blockbuster
and Play It Again Sports and eighty percent (80%) by number 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
reasonably acceptable to Buyer;
(9) A general assignment of all assignable existing warranties
relating to the Property;
(10) An owner's affidavit, non-foreign affidavits,non-tax with
holding 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;
(11) 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;
(12) Resolutions of Seller authorizing the transactions described
herein;
(13) All keys and other means of access to the Improvements
in the possession of Seller or its agents;
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(14) Materials; and
(15) Such other documents as Buyer may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this
Section are not satisfied and Buyer elects in writing to terminate this
Agreement, then the 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 for any
such claim arising out of an obligation or duty of the other party which is
intended to survive termination of this Agreement.
8.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement are subject to satisfaction or waiver by Seller of
each of the following conditions or requirements on or before the Closing date:
(a) Buyer's warranties and representations under this
Agreement shall be true and correct 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 at Closing;
(2) Such other documents as Seller may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all conditions precedent to Buyer's
obligation to purchase shall have been satisfied but the foregoing provisions of
this Section have not, and Seller elects in writing to terminate this Agreement,
then the 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 for any
such claim arising out of an obligation or duty of the other party which is
intended to survive termination of this Agreement.
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8.3 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 or by reason of liabilities or
obligations, fixed or contingent, relating to or affecting the Property accruing
or first arising out of events occurring prior to the date of Closing. Seller's
warranties, representations and covenants, and the foregoing indemnity, shall
survive the Closing for a period of one (1) year. 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 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 or
by reason of liabilities or obligations, fixed or contingent, relating to or
affecting the Property accruing or first arising out of event
- 20 -
occurring on or after the date of Closing. Buyer's warranties, representations
and covenants, and the foregoing indemnity, shall survive the Closing for a
period of one (1) year. 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 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.
11.3 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.
11.4 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: Boynton Lakes Plaza Partnership
Attention: Richard Maloof
Fru-Con Development Corp.
999 Berkshire Blvd., Suite 290
Wyomissing, Pennsylvania 19610
Facsimile: (610) 376-9925
With copies to: Fru-Con Development Corporation
Attention: A.A. Zehner
15933 Clayton Road
Ballwin, Missouri 63011
Facsimile: (314) 391-4572
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and
Fru-Con Development Corporation
Attention: Peggy H. Morris,
General Counsel
15933 Clayton Road
Ballwin, Missouri 63011
Facsimile: (314) 391-4624
As to Buyer: RRC Acquisitions, Inc.
Attention: Robert L. Miller
Suite 200, 121 W. Forsyth St.
Jacksonville, Florida 32202
Facsimile: (904) 634-3428
With a copy to: Rogers, Towers, Bailey, Jones & Gay
Attention: William E. Scheu, Esq.
1301 Riverplace Blvd., Suite 1500
Jacksonville, Florida 32207
Facsimile: (904) 396-0663
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.
11.5 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.
11.6 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.
11.7 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
- 22 -
herein shall include indemnification for reasonable attorneys' fees and costs,
whether or not suit be brought and including fees and costs on appeal.
11.8 Time of Essence. Time is of the essence of this Agreement.
11.9 Governing Law. This Agreement shall be governed by the laws of the
state in which the Property is located, and the parties hereto agree that any
litigation between the parties hereto relating to this Agreement shall take
place (unless otherwise required by law) in a court located in the county in
which Escrow Agent's principal place of business is located. Each party waives
its right to jurisdiction or venue in any other location.
11.10 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.
11.11 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.
11.12 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.
11.13 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.
11.14 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.15 No Recording. Neither this Agreement nor any notice, memorandum
or other notice or document relating hereto shall be recorded.
11.16 Assignment. Without Seller's prior written consent, Buyer shall
not assign its rights and interests hereunder at any time except that Buyer is
permitted to assign such rights and interests to any wholly owned subsidiary of
Regency Realty Corporation. In the event of Buyer's assignment of this
Agreement, Buyer and its
- 23 -
assignee shall execute a written form of assignment acceptable to Seller that
provides that notwithstanding such assignment, Buyer and its assignee shall
remain liable and responsible for the performance of all obligations of Buyer
hereunder.
11.17 Limitations on Liability. It is acknowledged and agreed by Buyer
that notwithstanding anything herein or elsewhere to the contrary, all persons
dealing with Seller or with any of the partners, officers of such partners, or
agents of Seller in their respective capacities as such shall look solely to the
Property and to the assets of Seller and/or to the proceeds of sale of all or
portions of the Property realized by Seller, which may be traced by Buyer from
Seller to Seller's partners and/or other distributees or recipients thereof, for
the payment of any claim against, or for the performance of any obligation of
Seller, whether hereunder or otherwise, and no natural person who is an officer
or agent of Seller or such partner(s), shall have personal liability for payment
of any such claim or the performance of any such obligation, nor shall resort be
had to any natural person's separate property for satisfaction of any such claim
or obligation (other than proceeds of sale traced to such natural person).
11.18 Performance on Business Days. If any date for the occurrence of
an event or act under this Agreement falls on a Saturday or Sunday or nationally
recognized legal holiday or local holiday recognized by bank closing, then the
time for the occurrence of such event or act shall be extended to the next
succeeding business day.
11.19 Interpretations and Definitions. The parties agree that each
party and such party's counsel have reviewed and revised this Agreement (or have
had the opportunity to do so) and that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not apply
in the interpretation of this Agreement.
11.20 Acceptance of Offer. The offer to purchase the Property made by
Buyer by the delivery to Seller of three (3) copies of this Agreement as
executed on behalf of Buyer shall automatically terminate and expire at 5:00
p.m. St. Louis time on the 5th day following such delivery, unless the offer is
accepted earlier by Seller's execution of this Agreement, or a counterpart
hereof, and by the return to Buyer of a fully executed copy of this Agreement on
or before the date and time aforementioned.
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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:
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: September , 1997
Tax Identification No. 59-3210155
"BUYER"
BOYNTON LAKES PLAZA PARTNERSHIP,
a Florida general partnership
By Its Partner:
____________________________
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: September , 1997
Tax Identification No:
"SELLER"
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JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of agreeing 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 the foregoing Agreement. The
Earnest Money Deposit shall be invested by Escrow Agent in an interest bearing
account at First Union National Bank.
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 or Escrow Agent is uncertain with respect to the escrow, the parties
hereto expressly agree that Escrow Agent shall have the absolute right to do
either or both of the following: (i) withhold and stop all proceedings in
performance of this escrow and await settlement of the controversy by final
appropriate legal proceedings or otherwise as it may require; or (ii) file suit
for declaratory relief and/or interpleader and 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 and of the foregoing Agreement, or to a
court in an interpleader action, unless Escrow Agent shall have given written
notice of the proposed disbursement to Buyer and Seller and
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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.
ROGERS, TOWERS, BAILEY, JONES & GAY
By:
Its Authorized Agent
Date: September , 1997
"ESCROW AGENT"
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EXHIBIT
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
Legal Description of Real Property
EXHIBIT
Rent Roll
EXHIBIT
Form of Estoppel Letter
_____________________, 199_
RRC Acquisitions, Inc.
Regency Centers, Inc.
121 W. Forsyth St., Suite 200
Jacksonville, Florida 32202
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 dry
cleaning 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 groom
ing 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:_________________________________
- ----------------------------
EXHIBIT
Permitted Exceptions