PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 10th day of March, 1998, between
FAISON-FLEMING ISLAND LIMITED PARTNERSHIP, a Florida limited partnership
("Seller"), and RRC ACQUISITIONS TWO, INC., a Florida corporation, its
designees, successors and assigns ("Buyer").
Background
Buyer wishes to purchase a shopping center in the County of Clay, State
of Florida, owned by Seller, known as Fleming Island Shopping Center (the
"Shopping Center");
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 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.
1.13 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
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1.14 Hazardous Material means any asbestos, 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 which is in violation of any Environmental Law.
1.16 Improvements means all buildings, structures or other improvements
situated on the Real Property.
1.17 Inspection Period means the period of time which expires at
midnight on April 20, 1998.
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 approved or deemed approved by Buyer to be
acceptable pursuant to the terms of this Agreement.
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,
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(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 statements of
income and expenses, 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 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 including the adjacent five acre parcel (excluding
outparcels M and K) and including Outparcel P/Q.
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1.31 Site Plan means the map or survey which is attached hereto as part
of Exhibit .
1.32 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.
1.33 Surviving Mortgage means the Mortgage, Security Agreement,
Financing Statement and Assignment of Leases given by Faison to United of Omaha
Life Insurance Company, a Nebraska corporation, dated January 10, 1995 and
recorded in Official Records Book 1536, Page 1090 of the public records of Clay
County, Florida, which has an approximate principal balance of $________________
and bears interest at _____% per annum, amortizing over a period of _____ years.
To Seller's knowledge, the Surviving Mortgage is in good standing with no
defaults existing thereunder and no event has occurred which with the giving of
notice and passage of time would constitute in event of default thereunder.
Prior to the end of the Inspection Period, Seller will use reasonable efforts to
cause the holder of the Surviving Mortgage to execute and deliver to Buyer an
estoppel letter and certifying that as of a date which is no more than fifteen
(15) days prior to the Closing Date no default exists thereunder and further
certifying the principal balance due and the date of the next regular
installment. Seller agrees that the Surviving Mortgage will remain in good
standing without default until Closing.
1.34 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.
1.35 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.36 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.
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1.37 Title Insurance Commitment means a binder whereby the title
insurer agrees to issue the Title Insurance to Buyer.
1.38 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 $9,000,000.
The Purchase Price shall be payable as follows:
(1)Buyer will accept title subject to an existing mortgage (the
"Surviving Mortgage") with an approximate principal balance of $________________
and receive credit for the principal balance as partial payment of the Purchase
Price, and
(2) The balance of the Purchase Price shall be paid in cash at
Closing.
Buyer shall be responsible for obtaining the consent of the holder of the
Surviving Mortgage to the transfer of the Property to Buyer. Seller shall be
responsible for the payment of all costs incurred on account thereof including,
without limitation, fees charged by such lender, taxes and lender's attorneys
fees up to a cap of $5,000.00.
(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); taxes shall not be pro rated on space for which the
tenant is to either pay the real estate taxes directly or reimburse or pay
landlord after the date of closing.
(2) prorating as of the Allocation Date cash receipts and
expenditures for the Shopping Center and other items customarily prorated in
transactions of this sort; and
(3) subtracting the amount of security deposits, prepaid rents
from tenants under the Leases, and credit balances, if any, of any tenants.
Any rents,
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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, less
any expenses of the Property incurred on or prior to the Allocation Date but
discovered by Buyer after Closing. Buyer shall have no obligation to collect
delinquencies, but should Buyer collect any delinquent rents or other sums which
cover periods prior to the Allocation Date and for which Seller have received no
proration or credit, Buyer shall remit same to Seller within thirty (30) days
after receipt, less any costs of collection. Buyer will not interfere in
Seller's efforts to collect sums due it prior to the Closing. Seller will remit
to Buyer promptly after receipt any rents, percentage rents or tenant
reimbursements received by Seller after Closing which are attributable to
periods occurring after the Allocation Date. Undesignated receipts after Closing
of either Buyer or Seller from tenants in the Shopping Center shall be applied
first to then current rents and reimbursements for such tenant(s), then to
delinquent rents and reimbursements attributable to post-Allocation Date
periods, and then to pre-Allocation Date periods.
2.2 Earnest Money Deposit. An Earnest Money Deposit in the amount of
$100,000 shall be delivered to Escrow Agent within three (3) days after the date
of execution by the last of Buyer or Seller to execute and transmit a copy of
this Agreement to the other. This Agreement may be terminated by Seller if the
Earnest Money Deposit is not received by Escrow Agent by such deadline. The
Earnest Money Deposit paid by Buyer shall be 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 shall be applied to the Purchase Price at the Closing.
2.3 Closing Costs.
(a) Seller shall pay:
(1) Documentary stamp and other transfer taxes imposed upon
the transactions contemplated hereby;
(2) Cost of the Survey;
(3) Cost of satisfying any liens on the Property;
(4) Cost of curing title defects and recording any curative title
documents;
(5) All broker's commissions, finders' fees and similar expenses
incurred by either party in connection with the sale of the Property, subject
however to Buyer's indemnity given in Section of this Agreement; and
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(6) Seller's attorneys' fees relating to the sale of
the Property.
(7) Costs incurred in connection with the Surviving Mortgage as
provided in Section .
(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Costs of the Phase 1 environmental site assessment to be
obtained by Buyer;
(3) Cost of recording the deed;
(4) Buyer's attorneys' fees; and
(5) Cost of title insurance.
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 shall not enter upon the Property for inspection without prior
reasonable notice to Seller. Buyer hereby agrees to indemnify and hold Seller
harmless from any damages, liabilities or claims for property damage or personal
injury arising out of such inspection and investigation by Buyer or its agents
or independent contractors. Within the Inspection Period, Buyer may, in its sole
discretion and for any reason or no reason, elect to go forward with this
Agreement to closing, which election shall be made by notice to Seller given
within the Inspection Period. If such notice is not timely given, this Agreement
and all rights, duties and obligations of Buyer and Seller hereunder, except any
which expressly survive termination, shall terminate and Escrow Agent shall
forthwith return to Buyer the Earnest Money Deposit.
The Property is being sold in an "as is" condition and "with all
faults" as of the Effective Date of this Agreement and as of Closing. Except as
may be expressly set forth in this Agreement, no representations or warranties
have been made or are made and no responsibility has been or is assumed by
Seller or by any partner, officer, person, firm, agent or representative acting
or purporting to act on behalf of Seller as to the condition or repair of the
Property or the value, expense of operation, or income
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potential thereof or as to any other fact or condition which has or might affect
the Property or the condition, repair, value, expense of operation or
warranties, express or implied, as to the suitability or fitness of the Property
for Buyer's intended use of the Property. The parties agree that all
understandings and agreements heretofore made between them or their respective
agents or representatives are merged in this Agreement and the Exhibits hereto
annexed, which alone fully and completely express their agreement, and that this
Agreement has been entered into after full investigation, or with the parties
satisfied with the opportunity afforded for investigation, neither party relying
upon any statement or representation by the other unless such statement or
representation is specifically embodied in this Agreement or the Exhibits
annexed hereto. To the extent that Seller has provided to Buyer information from
any inspection, engineering or environmental reports concerning asbestos or
harmful or toxic substances, Seller makes no representations or warranties with
respect to the accuracy or completeness, methodology of preparation or otherwise
concerning asbestos or harmful or toxic substances, Seller makes no
representations or warranties with respect to the accuracy or completeness,
methodology of preparation or otherwise concerning the contents of such reports.
Buyer acknowledges that Seller has requested Buyer to inspect fully the Property
and investigate all matters relevant thereto and to rely solely upon the results
of Buyer's own inspections or other information obtained or otherwise available
to Buyer, rather than any information that may have been provided by Seller to
Buyer.
(b) Seller will promptly furnish or make available to Buyer
the documents enumerated on Exhibit attached hereto which are available to
Seller. Buyer, through its officers, employees and other authorized
representatives, shall have the right to reasonable access to the Property and
all income and expense, maintenance and tenant records of Seller related
thereto, including without limitation all Leases, at reasonable times and notice
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. Seller shall give Buyer any
authorizations which may be required by Buyer in order to gain access to records
or other information pertaining to the Property or the use thereof maintained by
any governmental or quasi-governmental authority or organization. Buyer, for
itself and its agents, agrees not to, and has no authority to enter into any
contract with existing tenants without the written consent of Seller if such
contract would be binding upon Seller should this transaction fail to close.
Buyer shall have the right to have due diligence interviews and other
discussions or negotiations with tenants, provided Seller is notified in advance
of all such meetings and given the opportunity to be present at any meeting held
with a tenant or tenants.
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(c) Buyer, through its officers or other authorized
representatives, shall have the right to reasonable access to all Materials
(other than privileged or confidential litigation materials) for the purpose of
reviewing and copying the same.
3.2 Hazardous Material. Prior to the end of the Inspection Period Buyer
may order 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.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties,
the Closing shall take place by express courier at the offices of the title
agent issuing the title insurance commitment at 10:00 A.M. on the date which is
the tenth (10th) day following the expiration of the Inspection Period, provided
that Buyer may designate an earlier date for Closing.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as follows as of the date of this
Agreement and as of the Closing and where indicated covenants and agrees as
follows:
4.1 Organization; Authority. Seller is duly organized, validly existing
and in good standing under the laws of the state of its organization and the
state in which the Shopping Center is located, and has full power and authority
to enter into and perform this Agreement in accordance with its terms, and the
persons executing this Agreement and other Transaction Documents have been duly
authorized to do so on behalf of Seller. Seller is not a "foreign person" under
Sections 1445 or 897 of the Internal Revenue Code nor is this transaction
subject to any withholding under any state or federal law.
4.2 Authorization; Validity. The execution and delivery of this
Agreement by Seller and Seller's consummation of the transactions contemplated
by this Agreement have been duly and validly authorized. This Agreement
constitutes a legal, valid and binding agreement of Seller enforceable against
it in accordance with its terms.
4.3 Title. Seller is the owner of the Property.
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,
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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. Seller
agrees to indemnify Buyer from any such claim arising by, through or under
Seller, including without limitation any claim that may be asserted against
Buyer or the Property by Delta Shamrock Enterprises, Inc. or any of its
officers.
4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except for Permitted Exceptions, this Agreement and the
Faison Contract.
4.6 Litigation. To the best of Seller's knowledge, there is no
litigation or proceeding pending or threatened against Seller relating to the
Property.
4.7 Leases. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll, and any Leases or modifications
entered into between the date of this Agreement and the Closing Date with the
consent of Buyer. Copies of the Leases, which have been delivered to Buyer or
shall be delivered to Buyer within five (5) days from the date hereof, are, to
the best knowledge of Seller, true, correct and complete copies thereof, subject
to the matters set forth on the Rent Roll. Between April 15, 1998 and the
Closing Date, Seller will not terminate or modify existing Leases or enter into
any new Leases without the consent of Buyer which Buyer agrees not to
unreasonably withhold. All of the Property's tenant leases are in good standing
and to the best of Seller's knowledge no defaults exist thereunder except as
noted on the Rent Roll. No rent or reimbursement has been paid more than one (1)
month in advance and no security deposit has been paid, except as stated on the
Rent Roll. No tenants under the Leases are entitled to interest on any security
deposits. No tenant under any Lease has or will be promised any inducement,
concession or consideration by Seller other than as expressly stated in such
Lease, and except as stated therein there are and will be no side agreements
between Seller and any tenant.
4.8 Financial Statements. Seller covenants to furnish promptly to Buyer
copies of the income and expense accounts together with unaudited updated
monthly reports of cash flow for interim periods beginning after December 31,
1997. Buyer and its independent certified accountants shall be given access to
Seller's books and records at any time prior to and for six (6) months following
Closing upon reasonable advance notice in order that they may verify the
financial statements. Buyer agrees to reimburse Seller for any reasonable and
direct costs incurred by Seller on account of any audit performed by Buyer or
Buyer's representatives after Closing. Seller agrees to execute and deliver to
Buyer or its accountants the Audit Representation Letter should Buyer's
accountants audit the records of the Shopping Center.
4.9 Contracts. Except for Leases, Permitted Exceptions, and as may be set
forth in the schedule of service contracts attached hereto as Exhibit 4.9,
there are no
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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.
4.10 Permits and Zoning. To the best knowledge of Seller, there are no
material permits and licenses (collectively referred to as "Permits") required
to be issued to Seller or to Faison 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.
4.11 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and
correct in all respects. Buyer agrees to accept Seller's existing local Tenant
Estoppel Letters (not including Publix) from the Tenants under Leases which are
annexed hereto as Composite Exhibit 4.11, together with a certificate from
Seller that there have been no material changes in the terms and status of the
leases.
4.12 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.
4.13 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 or which are not
available to Buyer by an examination of the records of such authorities or
agencies having jurisdiction over the Property and Seller has received no
notices from any such governmental authorities or agencies of uncured violations
at the Property of building, fire, air pollution or zoning codes, rules,
ordinances or regulations, environmental and hazardous substances laws, or other
rules, ordinances or regulations relating to the Property. Seller shall be
responsible for the remittance of all sales tax for periods occurring prior to
the Allocation Date directly to the appropriate state department of revenue.
4.14 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.
4.15 Consents and Approvals; No Violation. Neither the execution and delivery
of this Agreement by Seller nor the consummation by Seller of the transactions
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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)
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.
4.1 Environmental Matters. Seller represents and warrants as of the date
hereof and as of the Closing that:
(a) Seller has not, and has no knowledge of any other person
who has, caused any Release, threatened Release, or disposal of any Hazardous
Material at the Property in any material quantity; and
(b) The Property does not now contain and to the best of
Seller's knowledge has not contained any: (a) underground storage tank, (b)
material amounts of asbestos-containing building material, (c) landfills or
dumps, (d) drycleaning plant or other facility using drycleaning solvents; or
(e) hazardous waste management facility as defined pursuant to the Resource
Conservation and Recovery Act ("RCRA") or any comparable state law. The Property
is not a site on or nominated for the National Priority List promulgated
pursuant to Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA") or any state remedial priority list promulgated or published pursuant
to any comparable state law; and
4.17 No Untrue Statement. Neither this Agreement nor any exhibit nor
any written statement or Transaction Document furnished or to be furnished by
Seller to Buyer in connection with the transactions contemplated by this
Agreement contains or will contain any untrue statement of material fact or
omits or will omit any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
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
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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. 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:
(a) terminate this Agreement upon notice to Seller given
within ten (10) business days after such notice from Seller, in which case Buyer
shall receive a return of its Earnest Money Deposit; or
(b) proceed with the purchase of the Property, in which event
Seller shall assign to Buyer all Seller's right, title and interest in all
amounts due or collected by Seller under the insurance policies or as
condemnation awards. In such event, the Purchase Price shall be reduced by the
amount of any insurance deductible to the extent it reduced the insurance
proceeds payable.
- 14 -
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
including the title commitment and survey furnished by Faison under the Faison
Contract). The title evidence will also include copies of restrictive covenants
imposed on lands lying between the Shopping Center and US Highway 17. 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 (including the said
restrictive covenants) not acceptable to Buyer. 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 with Seller's and
Buyer's agreement). If Seller elects not to cure or if such Title Defects and/or
objections are not cured, Buyer shall have the right, in lieu of any other
remedies, to: (i) refuse to purchase the Property, terminate this Agreement and
receive a return of the Earnest Money Deposit; or (ii) waive such Title Defects
and/or objections and close the purchase of the Property subject to such Title
Defects.
(b) Miscellaneous Title Matters. If a search of the title
discloses judgments, bankruptcies or other returns against other persons having
names the same as or similar to that of Seller, Seller shall on request deliver
to Buyer an affidavit stating, if true, that such judgments, bankruptcies or the
returns are not against Seller. Seller further agrees to execute and deliver to
the Title Insurance agent at Closing such documentation, if any, as the Title
Insurance underwriter shall reasonably require to evidence that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and that there are no mechanics'
liens on the Property or parties in possession of the Property other than
tenants under Leases and Seller.
- 15 -
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 neither Seller nor
Faison shall be in default under any covenant, restriction, right-of-way or
easement affecting the Property.
(c) 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.
(d) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear
excepted.
(e) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(f) A special 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;
(1) 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;
(2) A blanket assignment to Buyer of all Leases and the
contracts, agreements, permits and licenses (to the extent assignable) as they
affect the Property, including an indemnity against breach of such instruments
by Seller prior to the Closing Date
(3) A bill of sale with respect to the Personal Property and
Materials;
(4) The Survey;
- 16 -
(5) A current rent roll for all Leases in effect showing no
changes from the rent roll in effect on April 15, 1998 other than those set
forth in the Leases or approved in writing by Buyer;
(6) All Tenant Estoppel Letters by Seller pursuant to the terms
of this Agreement which must include Publix and eighty percent (80%) (which 80%
includes the tenant estoppel letters or certificates attached hereto as
composite Exhibit 4.11) of the other tenants who have signed leases for any
portion of the Property, without any material exceptions, covenants, or changes
to the form approved by Buyer and distributed to the tenants by Seller, the
substance of which Tenant Estoppel Letters must be acceptable to Buyer in all
respects;
(7) A general assignment of all assignable existing warranties
relating to the Property, provided any cost to transfer such warranty shall be
Buyer's expense;
(8) An owner's affidavit, non-foreign affidavits, non-tax
withholding certificates and such other documents as may reasonably be required
by Buyer or its counsel in order to effectuate the provisions of this Agreement
and the transactions contemplated herein;
(9) The originals or copies of any real and tangible personal
property tax bills for the Property for the tax year of Closing and the previous
year, and, if requested, the originals or copies of any current water, sewer and
utility bills which are in Seller's custody or control;
(10) Resolutions of Seller authorizing the transactions described
herein;
(11) All keys and other means of access to the Improvements in
the possession of Seller or its agents;
(12) Materials; and
(13) Such other documents as Buyer may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this Section are
not satisfied, then Buyer, at its sole and exclusive remedy, may either waive
such condition and close or elect in writing to terminate this Agreement,
whereupon the Earnest
- 17 -
Money Deposit shall be promptly delivered to Buyer by Escrow Agent and, upon the
making of such delivery, neither party shall have any further claim against the
other by reasons of this Agreement, except as provided in Article .
8.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement are subject to satisfaction or waiver by Seller of
each of the following conditions or requirements on or before the Closing date:
(a) Buyer's warranties and representations under this
Agreement shall be true and correct 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) An assumption of the leases, contracts, agreements, permits,
licenses by Buyer in a manner acceptable to Seller, including an indemnity
against breach of such instruments by Buyer subsequent to the Closing Date;
(3) Seller's full and complete release from the Surviving
Mortgage; and
(4) 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 as provided in Article .
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.
- 18 -
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. MISCELLANEOUS
10.1 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.
10.2 Entire Agreement. This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and may not be modified, amended or
otherwise changed in any manner except by a writing executed by Buyer and
Seller.
10.3 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement shall be served by personal delivery, certified or overnight
mail, reputable overnight courier service or facsimile (followed promptly by
hard copy) at the addresses set forth below:
- 19 -
As to Seller: c/o Faison & Associates
Attention: David Lampke
1900 Interstate Tower
121 Trade Street
Charlotte, North Carolina 28202-5519
Facsimile: 1-704-331-2500
With a copy to: Steel Hector & Davis, LLP
Attention: Michael E. Botos, Esq.
777 South Flagler Drive
Suite 1900 West
West Palm Beach, Florida 33401-6198
As to Buyer: RRC Acquisitions Two, 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.
10.4 Headings. The titles and headings of the various sections hereof
are intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
10.5 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
10.6 Attorneys' Fees. In the event of any litigation between the parties
hereto to enforce any of the provisions of this Agreement or any right of
either party hereto,
- 20 -
the unsuccessful party to such litigation agrees to pay to the successful party
all costs and expenses, including reasonable attorneys' fees, whether or not
incurred in trial or on appeal, incurred therein by the successful party, all of
which may be included in and as a part of the judgment rendered in such
litigation. Any indemnity provisions herein shall include indemnification for
reasonable attorneys' fees and costs, whether or not suit be brought and
including fees and costs on appeal.
10.7 Time of Essence. Time is of the essence of this Agreement.
10.8 Governing Law. This Agreement shall be governed by the laws of the
state in which the Property is located, and the parties hereto agree that any
litigation between the parties hereto relating to this Agreement shall take
place (unless otherwise required by law) in a court located in the county in
which Escrow Agent's principal place of business is located. Each party waives
its right to jurisdiction or venue in any other location.
10.9 Successors and Assigns. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No third parties, including any brokers or
creditors, shall be beneficiaries hereof.
10.10 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
10.11 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
10.12 Further Instruments, Etc. This Agreement may be executed in
counterparts and when so executed shall be deemed executed as one agreement.
Seller and Buyer shall execute any and all documents and perform any and all
acts reasonably necessary to fully implement this Agreement.
10.13 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing for a period of one (1)
year and then terminate.
- 21 -
10.14 No Recording. Neither this Agreement nor any notice, memorandum or
other notice or document relating hereto shall be recorded.
THE CROSSINGS AT FLEMING ISLAND COMMUNITY DEVELOPMENT DISTRICT IMPOSES
TAXES OR ASSESSMENTS, OR BOTH TAXES AND ASSESSMENTS, ON THE PROPERTY
THROUGH A SPECIAL TAXING DISTRICT. THESE TAXES AND ASSESSMENTS PAY THE
CONSTRUCTION, OPERATION AND MAINTENANCE COSTS OF CERTAIN PUBLIC
FACILITIES OF THE DISTRICT AND ARE SET ANNUALLY BY THE GOVERNING BOARD
BY THE DISTRICT. THESE TAXES AND ASSESSMENTS ARE IN ADDITION TO COUNTY
AND ALL OTHER TAXES AND ASSESSMENTS PROVIDED BY LAW.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses: RRC ACQUISITIONS TWO, INC.,
a Florida corporation
___________________________________ By:________________________________________
Name:_____________________________ Name:_________________________________
Title:__________________________________
- -----------------------------------
Name:_____________________________ Date: ______________________________, 1998
Tax Identification No.: 59-3478325
"BUYER"
- 22 -
FAISON-FLEMING ISLAND LIMITED
PARTNERSHIP
By: FCD-Fleming Island Limited Partnership,
its sole general partner
By: Faison Capital Development, Inc.,
its sole general partner
___________________________________ By:________________________________________
Name:_____________________________ Name:_________________________________
Title:__________________________________
- -----------------------------------
Name:_____________________________ Date: ______________________________, 1998
Tax Identification No.: ______________________
"SELLER"
- 23 -
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 five (5) business 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
- 24 -
neither Buyer nor Seller shall have delivered any written objection to the
disbursement within five (5) business 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, P.A.
By:______________________________________
Its Authorized Agent
Date: ______________________________, 1998
"ESCROW AGENT"
- 25 -
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 Two, 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, carcino
mutagenic, or corrosive substance or waste, including volatile petroleum
products and derivatives and drycleaning solvents. To the best of
Tenant's knowledge, no asbestos or polychlorinated biphenyl ("PCB") is
located at, on or in the Premises. The term "Hazardous Substances"
does not include those materials which are technically within the definition
set forth above but which are contained in pre-packaged office supplies,
cleaning materials or personal grooming items or other items which are
sold for consumer or commercial use and typically used in other similar
buildings or space.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
-------------------------------------------
____________________________________(Tenant)
Mailing Address:
____________________________ By:________________________________________
Its:_________________________________
- ----------------------------
Exhibit
Document Request List
Items Required from the Seller:
1) Property Specifications (Zoning)
2) As Built Plans & Specs (arch. and engineering)
3) Site Plan (including suite numbers)
4) Location maps
5) Aerial photographs
6) Demographics (including traffic counts)
7) Legal Description
8) Parking Information - Space count
9) Copy of All Leases (and amendments) & Lease Briefs
10) Certificates of Occupancy - All current tenants
11) Schedule of Security Deposits
12) Most recent Rent Roll (with suite #'s, rent escalations, and option
period info)
13) Sales Reports (most recent 3 Years) for tenants reporting
14) Current Rent Billings (by category, base, CAM, etc.)
15) Current Delinquency Report (with explanations for balances > $1,000)
16) Tenant Activity Register for all Current Tenants (billings &
payments)
17) Tenant Estoppels
18) Property Operating Results - Most recent 3 Years
19) Property Capital Expenditures - Most recent 3 Years
20) Audited Financial Statements - 3 Years
21) Real Estate and other tax bills - 3 Years
22) Year to Date Financials & YTD detail general Ledger
23) Existing Service Agreements and Warranties
24) Three years loss history - reported claims
25) Most Recent Year Expense Recovery Reconciliation
26) Breakdown of CAM Pools
27) Proof Sales Tax Payments are Current
28) Appraisal (last available)
29) Seller's Budget for up-coming/current year
30) Utility Bills for last 12 mths/deposits
31) Personal Property Inventory
32) Existing Title Insurance Policy
33) Available Inspection Reports (environmental, roof, structural, etc.)
34) Summary of Tenant Contacts (with address and telephone numbers)
With local (incld store#) & national addresses
35) Survey
36) Tax plat map
Exhibit
Schedule of Service Contracts
Exhibit (4.11)