REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is entered into as of the 24 day of July 1996 ("Effective
Date"), between MIAMI GARDENS ASSOCIATES, a New Jersey general partnership,
having an office at c/o Stiles Realty, 6400 N. Andrews Avenue, Ft. Lauderdale,
Florida 33309-2114 ("Seller"), and BASIC ACQUISITIONS INC., a Delaware
corporation, having a mailing address at 7850 N.W. 146th Street, Suite 308,
Miami Lakes, FL 33016 ("Purchaser").
1. PURCHASE AND SALE. In consideration of their mutual covenants set
forth in this Agreement, Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from Seller, for the Purchase Price (as hereinafter defined)
and on the terms and conditions set forth herein, the following:
(a) All of the land (the "Real Estate") situated at the Northeast
corner of Miami Gardens Drive and N.W. 87th Avenue, Miami, Dade County, Florida,
more particularly described on EXHIBIT "A" attached hereto and made a part
hereof (less and except the Chevron Parcel as defined in Section 3 hereof if
conveyed by Seller prior to the Closing [as hereinafter defined]), and commonly
known as the "Garden Square Shopping Center" together with all right, title, and
interest of Seller in and to all open or proposed highways, streets, roads,
avenues, alleys, easements, strips, gores and rights-of-way in, on, across, in
front of, contiguous to, abutting or adjoining the Real Estate. The Real Estate
does not include the outparcels previously conveyed to McDonald's Corp. and to
Chevron, USA, Inc. and the outparcel to be conveyed to Chevron, USA, Inc.
(b) All structures, buildings, improvements and fixtures, including
without limitation all equipment and appliances, located on or used in
connection with the operation or occupancy of the Real Estate, such as heating
and air-conditioning systems and facilities used to provide any utility
services, parking services, refrigeration, ventilation, trash disposal or other
services all to the extent owned by Seller and located on the Real Estate
("Improvements").
(c) All personal property owned by Seller and located on or in the
Real Estate or Improvements or used in connection with the operation and
maintenance of the Real Estate or Improvements ("Personal Property").
(d) Seller's interest in all leases and other agreements to occupy
the Real Estate and/or the Improvements, or any portion thereof, as amended from
time to time, including any sublease of which Seller has knowledge and any
concession, license, or kiosk agreements entered into by Seller, including any
modifications and amendments thereto and all enforceable waivers, approvals,
and/or consents given by Seller or the tenant thereunder which modify or amend
the terms thereof, in effect on the date of Closing (as hereinafter defined)
(all such leases, subleases, and agreements being sometimes collectively
referred to herein as "Leases").
(e) Seller's interest in all service agreements or other contracts,
written or oral (collectively the "Service Contracts"), in effect at Closing and
which are not terminated as hereinafter provided, and which in any way relate to
the Premises (as hereinafter defined).
(f) Seller's interest in all equipment leases (the "Equipment
Leases") and all rights of Seller thereunder relating to equipment or property
located upon the Premises, in effect at Closing.
(g) All intangible property owned by Seller and used in connection
with the Real Estate, Improvements and Personal Property, including all
trademarks and trade names used in connection with any part of the Real Estate
and Improvements, all hereditaments, privileges, tenements, and appurtenances
belonging to the Real Estate, and all assignable licenses, permits, and
warranties now in effect, and which are not expired as of the Closing, with
respect to the Real Estate, Improvements and Personal Property, ("Intangible
Property"),
copies of all records and correspondence in the possession or control of Seller
or any property manager of Seller required in Purchaser's reasonable opinion for
the operation of the Real Estate and Improvements including but not limited to
all those related to ad valorem taxes and any reductions or protests thereof,
tenants, services, maintenance, repairs, capital improvements, booklets and
manuals, and advertising materials, all of Seller's interest in the name by
which the Real Estate and Improvements is presently known together with the good
will appurtenant thereto and all of Seller's interest in all building plans,
architectural and engineering plans, site plans, traffic studies and marketing
studies prepared by third parties for Seller.
(h) All of Seller's interest in (1) all the reciprocal easement
agreements, operating agreements and similar easements and agreements and all
amendments and modifications thereto and all enforceable waivers, approvals,
consents, and notifications given thereunder which amend or modify the terms
thereof, relating to the Real Estate and Improvements (the "Operating
Agreements") and (2) all other agreements and ground leases and all amendments
and modifications thereto and all enforceable waivers, approvals, consents, and
modifications given thereunder which amend or modify the terms thereof, in
either case between, or binding upon, Seller on the one hand and any tenant on
the other hand relating to the Real Estate and Improvements or any part thereof
(the "Other Agreements").
The Real Estate, Improvements, Personal Property, Leases, Service
Contracts, Equipment Leases, Intangible Property, Operating Agreements, and
Other Agreements are sometimes collectively referred to herein as "Premises".
EXCEPT FOR THOSE COVENANTS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN
THIS AGREEMENT AND/OR IN ANY DOCUMENTS EXECUTED AND DELIVERED BY SELLER PURSUANT
TO THIS AGREEMENT, PURCHASER IS ACQUIRING THE PREMISES "AS IS" WITH ALL FAULTS,
AND WITHOUT WARRANTY OR REPRESENTATION BY SELLER, EXPRESS OR IMPLIED.
2. PURCHASE PRICE; EARNEST MONEY DEPOSIT. The purchase price for the
Premises shall be Nine Million Six Hundred Fifty Thousand and No/100
($9,650,000.00) Dollars ("Purchase Price"). The Purchase Price shall be payable
as follows:
(a) Simultaneous with the execution of this Agreement, Purchaser
shall deposit with the Escrow Agent (as hereinafter defined) One Hundred
Thousand and No/100 ($100,000.00) Dollars (the "Initial Deposit"). In the event
the Purchaser does not terminate this Agreement in accordance with section 5 of
this Agreement, Purchaser shall, within five (5) business days after the
completion of the Due Diligence Period (as hereinafter defined), deliver to the
Escrow Agent an additional sum of One Hundred Thousand and No/100 ($100,000.00)
Dollars (the "Second Deposit"). The Initial Deposit and the Second Deposit, as
same shall exist from time to time, along with all interest earned thereon
sometimes hereinafter individually and collectively referred to as the "Earnest
Money Deposit".
Escrow Agent is authorized and agrees to promptly deposit the
Earnest Money Deposit in a money market account or repurchase agreement as is
selected by Purchaser and Seller for their benefit with all interest thereon
accruing to whomever the Earnest Money Deposit is applied to the benefit of
pursuant to the terms of this Agreement. Escrow Agent shall hold and disburse
the Earnest Money Deposit as well as any other funds which may be delivered to
it pursuant to this Agreement or subsequent written agreement of the parties, in
accordance with the terms and conditions of this Agreement or any such
subsequent agreement. In the event of doubt as to its duties or liabilities
under the provisions of this Agreement, Escrow Agent may in its sole discretion
continue to hold the Earnest Money Deposit until the parties mutually agree to
disbursement thereof, or until a court of competent jurisdiction shall determine
the rights of the parties thereto, or it may deposit all the monies then held
pursuant to this Agreement with the Clerk of the Circuit Court of Dade County,
Florida, and, upon notifying all parties concerned of such action, all future
liability on the part of Escrow Agent shall fully terminate. In the event of
any suit between Purchaser and Seller wherein Escrow Agent is made a party by
virtue of acting as such hereunder, or in the event of any suit wherein Escrow
Agent interpleads the subject
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matter of this escrow, Escrow Agent shall be entitled to recover reasonable
attorneys' fees, reasonable paralegal charges and other reasonable costs
incurred, said fees and costs to be charged and assessed as court costs in favor
of the prevailing party (notwithstanding that Escrow Agent may represent itself
in such proceeding). All parties agree that Escrow Agent shall not be liable to
any party or person whomsoever for misdelivery to Purchaser or Seller of the
Earnest Money Deposit, unless such misdelivery shall be due to willful breach of
this Agreement or gross negligence on the part of Escrow Agent. Seller
acknowledges that the Escrow Agent acts in the capacity of counsel to Purchaser
and waives any objection that it may have with regard to its acting in either
capacity. A copy of all letters delivered or mailed by the Purchaser or Seller
to the Escrow Agent pursuant to this Agreement shall be sent or delivered
simultaneously to the other party to this Agreement. Nothing herein contained
shall prohibit Escrow Agent from acting as the attorney for Purchaser with
regard to this Agreement and in any litigation between Purchaser and Seller.
(b) Purchaser shall acquire the Property subject to an existing first
mortgage encumbering the Premises (the "Existing Mortgage") held by Life
Investors Insurance Company of America (the "Mortgagee"), which Existing
Mortgage has a present principal balance of approximately Six Million Seven
Hundred Fifty-Six Thousand and No/100 ($6,756,000.00) Dollars. The Purchaser
shall assume and agree to pay the Existing Mortgage and all obligations under
all existing documents relating to the Existing Mortgage loan, provided the
Mortgagee consents to such assumption. Notwithstanding anything in this
Agreement to the contrary, Purchaser's obligation to assume the Existing
Mortgage shall be contingent upon the Existing Mortgage being a non-recourse
loan and that the Purchaser shall not be required to assume any personal
liability under the Existing Mortgage loan by virtue of such assumption, except
for carve-out provisions presently contained in the Existing Mortgage.
(c) Not later than 3:00 p.m., Eastern Daylight Time, on the Closing
Date (as hereinafter defined), Purchaser shall cause to be wired to the Escrow
Agent the sum necessary (i) to pay the holders of any mortgages (except for the
Existing Mortgage), liens, and security interests against the Premises the
amounts necessary to pay them off and obtain satisfactions or releases of lien,
and (ii) to make the total consideration paid (including the amounts in clause
(i)) to or for the account of Seller at Closing equal to the Purchase Price,
less the balance due and owing on the Existing Mortgage, plus or minus
prorations and adjustments as hereinafter provided, in accordance with escrow
instructions executed by Seller and Purchaser ("Escrow Instructions").
3. SALE OF CHEVRON PARCEL. Purchaser hereby acknowledges that Seller has
entered into, or may enter into after the execution of this Agreement, an
agreement to sell to Chevron, USA, Inc. or its affiliate ("Chevron") that
portion of the Real Estate described in the attached EXHIBIT "A-1" (the "Chevron
Parcel"). Said agreement shall be substantially in accordance with the form
attached hereto and marked EXHIBIT "A-2" (the "Chevron Agreement"). Subject to
Seller obtaining the unconditional written consent from all tenants whose
consent is required by the terms and conditions of their respective lease
agreements with Seller and the compliance by Seller with the requirements of all
requisite governmental agencies with regard to such sale, Purchaser hereby
consents to the sale of the Chevron Parcel to Chevron. Notwithstanding anything
herein to the contrary, so long as Chevron is ready, willing, and able to
acquire the Chevron Parcel within one (1) year of the Closing, Purchaser agrees
to sell the Chevron Parcel to Chevron, provided that in no event is the
Purchaser to bear any portion of the costs of such sale (including but not
limited to reasonable attorneys' fees), it being agreed that Purchaser shall in
no event incur any costs associated with such sale, and if the Chevron Parcel is
sold after Closing, the net proceeds from such sale or if the same are required
to be paid to the Mortgagee or any other person an amount equal to the net
proceeds shall be paid by Purchaser to Seller within ten (10) days of the
closing on the Chevron Parcel. The parties hereto agree that the value of the
Chevron Parcel (as between Seller and Purchaser) is the sales price of the
Chevron Parcel as shown in the Chevron Agreement, and the Seller agrees to
indemnify and save Purchaser harmless from any income tax Purchaser may become
obligated for as a result of the sale of the Chevron Parcel from Purchaser to
Chevron as a result of the foregoing. If the closing of the Chevron Parcel
occurs prior to the Closing, Seller may execute and deliver to Chevron or its
assignee or designee a deed to the Chevron Parcel and all such other documents
as may reasonably be required to consummate such sale and the net proceeds shall
be either retained by Seller or applied to reduce the Existing
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Mortgage balance. If, however, such sale occurs after the Closing, the
Purchaser shall execute and deliver to Chevron or its assignee or designee a
deed to the Chevron Parcel and all such other documents as may be reasonably
required to consummate such sale, including such documents to further assure
Seller's obtaining the net proceeds from such sale of the Chevron Parcel.
Should the closing of the Chevron Parcel occur before or after the Closing of
this Agreement, Seller will obtain all tenants' consents required by the Chevron
Agreement.
4. CLOSING.
(a) The consummation of the purchase and sale of the Premises
("Closing") shall take place at the offices of Fowler, White, Burnett, Hurley,
Banick & Strickroot, P.A., 100 Southeast Second Street, 17th Floor, Miami,
Florida 33131, on November 15, 1996 (the "Closing Date"), unless such date is
extended according to the provisions of Sections 6 or 13 of this Agreement or by
written agreement signed by the parties.
(b) The Purchase Price shall be paid and all documents necessary for
the consummation of this transaction shall be executed and delivered on or prior
to the Closing Date, and Seller shall deliver possession of the Premises to
Purchaser, subject to the rights of tenants under existing leases and leases
approved by Purchaser or permitted by this Agreement.
(c) At or prior to Closing, Seller shall deliver the following
documents to the Escrow Agent, in each case the document shall be dated,
executed by authorized representatives of Seller, and acknowledged, where
required:
(1) A Special Warranty Deed in the form attached hereto as
EXHIBIT "B";
(2) A Bill of Sale in the form attached hereto as EXHIBIT "C";
(3) An Assignment and Assumption of Leases;
(4) An Assignment and Assumption of Service Contracts and
Equipment Leases;
(5) An Assignment and Assumption of Intangible Property;
(6) Letters to tenants at the Real Estate instructing the
tenants to pay rent at the direction of Purchaser and to recognize Purchaser as
landlord under their respective Leases;
(7) Originals of all Leases in Seller's possession, together
with a Certificate of Rent Roll;
(8) An estoppel certificate, in form substantially in accordance
with EXHIBIT "D" attached hereto, executed by Blockbuster Video, Publix and
Eckerd Drugs ("Anchor Tenants") and by other tenants occupying at least ninety
percent (90%) of the rentable space in the Premises not occupied by the Anchor
Tenants, provided that such other tenants must include Lakes Pre-School,
Allstate Insurance Company (provided that if an estoppel certificate from
Allstate Insurance Company is not delivered at closing, Seller shall execute and
deliver an estoppel certificate to Purchaser at Closing with respect to the
Allstate lease which shall be substantially similar to the estoppel certificate
set forth in Exhibit "D" hereto but which shall be based upon Seller's best
knowledge and belief) and Lady of America ("Required Tenants"); provided
further, that estoppel certificates containing only non-material exceptions,
qualifications or modifications shall be deemed to be in accordance with EXHIBIT
"D", except that Anchor Tenants may utilize their own form of estoppel
certificate customarily utilized by them in lieu of the form set forth on
EXHIBIT "D," and such Anchor Tenant's form shall be acceptable to Purchaser
unless it discloses a material adverse exception(s), qualification(s), or
modification(s). Failure by Seller to obtain any estoppel certificates shall
not constitute a default by Seller under this Agreement, provided Seller
exercises reasonable efforts and due diligence in attempting to obtain same.
Should Seller not
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obtain the requisite estoppel certificates as provided for in this subparagraph
4(c)(8), Purchaser, at its sole option, shall have the right to cancel this
Agreement;
(9) An affidavit sworn by an officer of Seller to the effect
that Seller is not a "foreign person" as that term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended, which affidavit
shall be in such form as may be prescribed by federal regulations;
(10) Termination statements terminating, as of the date of
Closing, all Service Contracts and management and leasing contracts relating to
the Improvements which Purchaser has decided, in its sole discretion, to
terminate, and instructs Seller to terminate by written notice delivered to
Seller at least sixty (60) days prior to the Closing;
(11) Certified copies of, as applicable (i) the partnership
agreement (if such partnership agreements exist) of Seller and each partnership
that is a partner of Seller or a partner of a partner of Seller, (ii) the
articles of incorporation of all corporations which are partners of partners,
(iii) the Articles of Incorporation of Seller, (iv) partnership and corporate
resolutions authorizing this transaction, (v) incumbency certificates, all
showing the authority of the Seller to consummate the transaction contemplated
by the agreement, and (vi) certificates of good standing issued by the state
authority licensing any entity aforedescribed evidencing said entity to be in
good standing as of the Effective Date and to a date as close as practicable to
the Closing Date;
(12) Assumption documents from the Mortgagee for assumption by
Purchaser of the Existing Mortgage. Failure of Seller to obtain said documents
from the Mortgagee shall not constitute a default by Seller under the Agreement;
and
(13) Should the closing of the Chevron Parcel occur prior to the
Closing of this Agreement, Seller shall provide Purchaser, at the closing of the
Chevron Parcel, with originals (except that if originals have been previously
delivered to Chevron USA, in which event copies) of all tenants' consents to the
sale of the Chevron Parcel. In the event the Closing of this Agreement shall
occur prior to the closing of the Chevron Agreement, at the Closing of this
Agreement Seller shall deliver to Purchaser the original tenants' consents to
the sale of the Chevron Parcel then in Seller's possession.
The forms of all such documents shall be delivered to Purchaser at least ten
(10) days prior to the Closing Date.
5. CONDITIONS TO CLOSING.
A. In addition to all other conditions to the completion of the
transaction described in this Agreement, Seller and Purchaser agree that the
Closing is subject to satisfaction, approval or waiver by Purchaser of the
following conditions on or before the expiration of forty-five (45) days from
the Effective Date ("Due Diligence Period"):
(a) Inspection and approval of the physical condition and use of
the Premises, at Purchaser's sole cost, including without limitation, the
availability of access, utility services, zoning, environmental risks,
engineering and soil conditions. For the purpose of conducting physical
inspections, Seller agrees to provide Purchaser and its authorized agents,
accompanied by a representative of Seller, reasonable access to the Premises at
all reasonable times on business days during the Due Diligence Period, and
Purchaser shall conduct such inspections in a manner not disruptive to tenants
or to the operation of the Premises. Purchaser agrees to indemnify and save
Seller harmless from and against any and all claims, costs, expenses, and
liabilities, including reasonable attorney's fees, arising out of or by reason
of any entry upon the Premises or the inspections and testing by Purchaser or
Purchaser's agents. Further, prior to commencing such inspections and testing,
Purchaser or its agents performing such inspections, shall furnish to Seller
certificates of insurance evidencing general liability insurance coverage in
reasonable amounts insuring against such risks.
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(b) Inspection and approval of documents, contracts, reports and
studies related to the Premises, including without limitation, all Leases, Lease
files, contracts, reports, studies and the documentation described in attached
EXHIBIT "E" (collectively "Seller's Disclosure Documentation"), all of which
shall be made available to Purchaser at the Premises or at the office of
Seller's property manager for the Premises ("Property Manager") at reasonable
times for inspection and copying by Purchaser at Purchaser's expense. Except as
set forth in Section 7 of this Agreement, none of Seller's Disclosure
Documentation shall be deemed or constitute a representation or warranty of
Seller. In the event that this transaction is not closed for any reason, then
Purchaser shall refrain, and shall cause its agents, representatives and
accountants to refrain, from disclosing all such information to any other party.
Except for such disclosure as may be required under applicable law, and further
deliver to Seller all of Seller's Disclosure Documentation in the possession of
Purchaser.
(c) Seller obtains and furnishes to Purchaser written
confirmation that the Mortgagee will consent to the Purchaser acquiring title to
the Premises and assuming the Existing Mortgage and such other documents that
relate to the Existing Mortgage loan, without amendment or modification. Seller
agrees to exercise reasonable due diligence in attempting to obtain Mortgagee's
consent regarding such assumption and taking subject to, and Purchaser agrees to
pay to Mortgagee all fees and costs to obtain such consent, not to exceed (in
the aggregate) an assumption fee in the amount of one (1%) percent of the then
existing Mortgage's outstanding principal balance as of the Closing Date (the
"Assumption Fee"). Purchaser further agrees to pay for all recording fees,
documentary stamps, intangible taxes, and the reasonable fees of the Mortgagee's
counsel and the reasonable and customary costs incurred with respect to the
Purchaser's assumption of the Existing Mortgage.
(d) Seller obtaining the required estoppel certificates provided
for in subparagraph 4(c)(8) above.
B. Seller's obligations under this Agreement are subject to and
contingent upon the following:
(a) Written consent of the Mortgagee to this Agreement and to
Purchaser assuming the Existing Mortgage pursuant to the terms of this
Agreement;
(b) Purchaser, pursuant to the terms of this Agreement, assuming
the Existing Mortgage loan and all obligations relating thereto; and
(c) Seller and Messrs. Malhame, Hakim and McNutt being released
by the Mortgagee, under the Existing Mortgage and other documents, from all
liability thereunder.
In the event any of the conditions set forth in this Section 5(A)(a) or (b)
are not satisfied or waived by Purchaser within the Due Diligence Period,
Purchaser shall notify Seller and Escrow Agent in writing of the termination of
this Agreement prior to the end of the final day of the Due Diligence Period. If
the conditions set forth in Section 5(A)(c) or (d) of this Agreement are not
satisfied or waived by Purchaser prior to Closing, Purchaser shall notify Seller
and Escrow Agent in writing of the termination of this Agreement. If the
conditions set forth in Section 5(B) of this Agreement are not satisfied or
waived in writing by Seller prior to Closing, Seller shall notify Purchaser and
Escrow Agent in writing of the termination of this Agreement. Upon timely
receipt of any such notice, the Earnest Money Deposit shall be returned to
Purchaser by the Escrow Agent, both Seller and Purchaser shall be released and
discharged from all further obligations under this Agreement (other than those
which expressly survive termination of this Agreement), and neither Seller nor
Purchaser shall be subject to any claim by the other for damages of any kind.
If no such notice has been served within the time provided in this Section 5,
all conditions shall be deemed to have been satisfied or waived and Purchaser's
obligations to close shall be firm with respect to the conditions of this
Section 5.
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6. EVIDENCE OF TITLE AND SURVEY. The following shall be obtained as
evidence of Seller's title:
(a) TITLE COMMITMENT. Seller shall, within ten (10) days after the
Effective Date, deliver to Purchaser a copy of any existing owner's title
insurance policy, relating to the Real Estate, then in Seller's possession or
control. On or before sixty (60) days from the Effective Date, at Purchaser's
expense, Purchaser shall obtain a pro forma title commitment (the "Commitment")
for an ALTA Owner's Title Insurance Policy issued by a title insurance company
chosen by Purchaser (the "Title Company") in the amount of the Purchase Price
showing title to the Premises in Seller's name subject only to title exceptions
acceptable to Purchaser which are listed on attached EXHIBIT "F" hereto
("Permitted Exceptions"). If the Commitment discloses exceptions other than the
Permitted Exceptions, of if any of the Permitted Exceptions make title
unmarketable (as determined in accordance with Title Standards adopted and
reasonably applied by The Florida Bar and in accordance with law, Purchaser,
within ten (10) business days following the date on which Purchaser received the
Commitment and copies of all exceptions disclosed in the Commitment, shall
deliver to Seller written notice of Purchaser's objections, if any, to such
exceptions ("Unpermitted Exceptions"). If Purchaser fails to deliver such
written notice or objection to Seller within such ten (10) business day period,
Purchaser shall be deemed to have waived its right to object to such Unpermitted
Exceptions, which shall thereafter be deemed Permitted Exceptions. In the event
that Purchaser shall so object to any such Unpermitted Exceptions, Seller shall
use reasonable efforts to remove prior to Closing any Unpermitted Exceptions
capable of being removed solely by the payment of money and shall notify
Purchaser within thirty (30) business days following the date of Purchaser's
notice of such objections that either (a) the Unpermitted Exceptions (other than
those capable of being removed by the payment of money) have been, or will be at
or prior to Closing, removed at Seller's expense or are or will be insured over
by the Title Company at no additional expense to Purchaser pursuant to an
endorsement to the Commitment, provided that such insurance over is acceptable
to Purchaser in Purchaser's sole discretion, or (b) Seller has failed to arrange
to have the Unpermitted Exceptions removed or insured over by the Title Company.
Notwithstanding anything herein to the contrary, Seller shall not be obligated
to bring suit or incur a liability of more than $25,000.00 (the "Maximum
Amount") to remove or cause the Title Company to insure over Unpermitted
Exceptions. If Seller does not notify Purchaser that it has arranged to have
the Unpermitted Exceptions removed or insured over within said thirty (30)
business day period, Purchaser may elect either:
(i) to terminate this Agreement, in which event the Earnest
Money Deposit shall be returned to Purchaser as Purchaser's sole remedy
hereunder; or
(ii) to take title as it then is, which election must be made
within five (5) business days following expiration of said thirty (30) business
day period.
If Purchaser does not elect to so terminate this Agreement, then:
(1) Purchaser shall be deemed to have agreed to accept
title as it then is without any reduction in the Purchase Price;
(2 all Unpermitted Exceptions (other than those capable of
being removed by the payment of money not to exceed the Maximum Amount, in the
aggregate) not removed from the Commitment will thenceforth be deemed Permitted
Exceptions; and
(3) this Agreement shall remain in full force and effect.
On the Closing Date, good and marketable title shall be conclusively presumed
by, and Purchaser's obligations hereunder shall be conditioned upon, Purchaser's
ability to obtain at the promulgated risk rate which shall be paid by Purchaser,
an owner's title insurance policy insuring fee simple title in Purchaser as of
the Closing Date, in accordance with the Commitment, subject only to the
Permitted Exceptions, the general or standard exceptions
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for taxes for the year of Closing and the rights of tenants as tenants only, and
any exceptions for liens and encumbrances created subsequent to the effective
date of the Commitment with the Purchaser's specific consent.
(b) Survey. Seller shall, within ten (10) days after the Effective
Date, deliver to Purchaser a copy of any existing survey, relating to the Real
Estate, then in Seller's possession or control. On or before sixty (60) days
from the Effective Date, Purchaser shall obtain a survey of the Real Estate and
Improvements, at Purchaser's sole cost and expense, dated no earlier than the
date hereof and prepared and certified to Purchaser, made in accordance with
ALTA/ACSM standards on or after the date of this Agreement by a registered
Florida land surveyor ("Survey"). If the Survey shows any material
encroachments over a building, set back or property line, a prohibited
encroachment of a material nature over any easement or any other matter which or
could in the future interfere with the use, operation or financing of the Real
Estate and Improvements or render title thereto unmarketable and which are not
Permitted Exceptions (collectively "Survey Defects"), Purchaser, within ten (10)
days of the date it receives the Survey, may deliver to Seller written notice of
those Survey Defects to which it objects, or Purchaser will be deemed to have
waived any right to such objection. Seller shall have thirty (30) business days
("Survey Cure Period") from the date of receipt of Purchaser's notice of
objections, if any, to cure the Survey Defects. Notwithstanding anything herein
to the contrary, Seller shall not be obligated to bring suit or incur a
liability of more than the Maximum Amount, in the aggregate, to cure any Survey
Defect and Unpermitted Exceptions. If Seller fails to do so, Purchaser shall,
within ten (10) days after the end of the Survey Cure Period, elect either to
terminate this Agreement by delivering written notice thereof to Seller within
said ten (10) day period, or be deemed to have accepted the Property as is. If
Purchaser fails to deliver such notice of termination within the time provided,
(i) Purchaser shall be deemed to have agreed to accept the Premises as is
without any reduction in the Purchase Price and (ii) this Agreement shall remain
in full force and effect. All Survey Defects (a) to which Purchaser makes no
objection within the time provided in this paragraph, or (b) which Seller does
not cure within the Survey Cure Period, and provided Purchaser does not
terminate this Agreement as permitted herein, will, in either case, thenceforth
be deemed Permitted Exceptions.
7. REPRESENTATIONS AND WARRANTIES. Seller represents and warrants that
as of the date hereof and as of the Closing Date:
(a) Seller has received no notice from any governmental authority of
any pending or threatened zoning, building, fire, or health code violations or
violations of other governmental requirements or regulations with respect to the
Premises that have not previously been corrected, or any condemnation of the
Premises. In the event Seller receives any such notice prior to the Closing
Date, it will provide to Purchaser copies of any such notice. Seller agrees to
use reasonable efforts to correct any matters disclosed in such notice,
provided, however, that Seller shall not be obligated to expend more than the
Maximum Amount, in the aggregate, in connection any or all such corrections. If
any such matter cannot be corrected by Seller by Closing, Seller shall give
Purchaser a credit at Closing for the amount estimated to be required to correct
such matter, but in no event more than the Maximum Amount, in the aggregate. If
the estimated cost to correct such matter is greater than the Maximum Amount, in
the aggregate, either Seller or Purchaser may deliver written notice of
termination of this Agreement to the other party, and this Agreement shall
thereupon terminate and the Earnest Money Deposit shall be returned to
Purchaser, unless either party agrees in writing to pay the excess required to
correct such matter.
(b) As of the date hereof, there are no leases or other agreements
for occupancy in effect with respect to the Premises except for those described
upon the schedule of leases and rent roll attached hereto as EXHIBIT "G" (the
"Rent Roll").
(c) Seller has received no notices from insurers of defects in the
Improvements which have not been corrected.
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(d) There are no legal actions pending or threatened against the
Premises known to Seller nor are there any violations of any building codes or
other statutes known to Seller affecting the use, occupancy and enjoyment of the
Premises.
(e) Except as set forth in EXHIBIT "J" attached hereto, all lease
commissions due with regard to the lease terms of existing tenants, all tenant
improvement work, all free rent concessions and all other obligations presently
due and owing from Seller to existing tenants have been paid or provisions have
been made for the payment of same by Seller or credit will be given to Purchaser
at Closing for any sums not yet paid by Seller. At Closing, Purchaser shall be
deemed to have assumed all liabilities set forth in EXHIBIT "J."
(f) The Schedule of Leases and Rent Roll attached hereto as EXHIBIT
"G" and the list of Service Contracts attached hereto as EXHIBIT "K" are each
accurate in all material respects.
(g) Seller has heretofore delivered to Purchaser true and correct
copies of the Service Contracts. To Seller's best knowledge, all of the Service
Contracts are in full force and effect. Seller has not sent or received any
notices of default under the Service Contracts, and, to the best of Seller's
knowledge, there are no defaults or events which, with the passage of time or
giving of notice, or both, could become a default under the Service Contracts.
All charges under the Service Contracts have been or will be paid through the
Closing Date.
(h) There are no employment, collective bargaining, or similar
agreements or arrangements between Seller or Seller's property manager and any
of their respective employees that will be binding on Purchaser. Seller has no
employees employed relating to the Real Estate.
(i) All sales tax on rentals has been collected and paid to the State
of Florida from the date Seller acquired the Premises through and including the
Date of Closing, or will be paid by Seller prior to the time that the same
becomes delinquent.
(j) There are no agreements known to Seller for the deferral of real
estate taxes or special assessments.
(k) Seller has not received notice of any pending or threatened
condemnation of all or any part of the Premises.
(l) There is no litigation, governmental or administrative proceeding
or arbitration known to Seller which is presently pending or threatened with
respect to any of the Premises, except for actions which do not in any way
affect the current use or operation of any of the Premises.
(m) There are no unrecorded rights of first offer to purchase, rights
of first refusal to purchase, purchase options or similar rights or
contractually required consents to transfer pertaining to the Premises, that
were created by virtue of the acts of Seller.
(n) Seller is not a "foreign person" within the meaning of Paragraph
1445(f)(3) of the Internal Revenue Code.
(o) Seller has not filed or been the subject of any filing of a
petition under the Federal Bankruptcy Law or any insolvency laws, or any laws
for composition of indebtedness or for the reorganization of debtors.
(p) Seller has not received from any insurance company which carries
insurance on the Premises, or any Board of Fire Underwriters, any notice of any
defect or inadequacy in connection with the Premises or its operations which has
not been cured.
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(q) Except as set forth on EXHIBIT "J," no brokerage commissions or
other compensation created by virtue of the acts of Seller is or will be due and
payable to any person, firm, corporation or other entity with respect to or on
account of any of the Leases, or any renewal thereof that could be a lien
against the Premises or claim against Purchaser. At Closing, the Purchaser
shall be deemed to have assumed all liabilities set forth on EXHIBIT "J."
(r) To the best of Seller's knowledge, the Existing Mortgage is in
good standing and not in default and the principal balance due and owing
thereon, as of the Closing Date, will be the sum of $6,800,000.00 less principal
amount paid in the normal amortization of the loan and less the amounts paid the
Mortgagee (if any) as a result of the sale of the Chevron Parcel), and is
payable together with interest at the rate of 7.94% per annum on the basis of a
25 year amortization and matures on December 1, 2002.
(s) Seller is a duly organized and validly existing general
partnership under the laws of the State of New Jersey, and the execution and
delivery of this Agreement and the transaction contemplated hereby have been
duly authorized and approved by Seller.
(t) Seller's partners and the State of organization of each, if
applicable, are set forth on EXHIBIT "I" attached hereto.
(u) To the best of Seller's knowledge, the Seller's Disclosure
Documentation are accurate in all material respects.
The representations and warranties contained in this Section 7 shall
survive the Closing for a period of six (6) months, provided that any
representation and warranty set forth in clause (i) of this Section shall
continue as long as the State of Florida has any right to claim such taxes from
Purchaser. Each such representation and warranty shall expire and terminate
automatically at the expiration of the applicable time period described in the
preceding sentence, except to the extent, if any, suit for breach thereof is
instituted during such period in which case the representation or warranty sued
upon shall survive until such time as the suit is dismissed or adjudicated.
8. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and
warrants to Seller that Purchaser is a duly organized and validly existing
corporation under the laws of the State of Delaware and the execution and
delivery of this Agreement and the transaction contemplated hereby have been
duly authorized and approved by Purchaser.
9. SELLER'S COVENANTS. Between the date of the execution of this
Agreement and the Closing, Seller shall:
(a) Maintain the Premises in its present condition, ordinary wear and
tear excepted;
(b) Use reasonable efforts to maintain all casualty, liability and
hazard insurance currently in force with respect to the Premises (it is
understood that the existing insurance policy will not be renewed by the insurer
and that Seller is seeking replacement coverage for the Premises); and
(c) Lease, operate, manage and enter into contracts with respect to
the Premises, in substantially the same manner done by Seller prior to the date
hereof, maintaining present services and sufficient supplies and equipment for
the operation and maintenance of the Premises in substantially the same manner
as prior to the date hereof; provided, however, that Seller shall not enter into
any service contract that cannot be terminated within thirty (30) days and shall
not enter into any leases with proposed tenants to lease portions of the Real
Estate without the prior written consent of Purchaser, which consent shall not
be unreasonably withheld, conditioned, or delayed, provided that the terms of
such proposed lease shall be at then market terms and conditions and for a term
of no longer than five (5) years.
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(d) Afford Purchaser and its investment adviser, agents, and
consultants, at reasonable times, continued access to the Premises to the same
extent as Purchaser had and subject to the same indemnity provisions applicable
during the Due Diligence Period.
(e) Not declare any Tenant to be in default, amend or modify any
lease in a manner materially adverse to Purchaser's interests without
Purchaser's consent, which consent will not be unreasonably withheld,
conditioned, or delayed.
10. PRORATIONS AND ADJUSTMENTS. The following shall be prorated and
adjusted between Seller and Purchaser, on a per diem basis, as of the Closing
Date, except as otherwise specified:
(a) Minimum rents and other monthly charges shall be prorated as
follows: Purchaser shall receive a proration credit for all current minimum
rents and monthly charges received by Seller prior to the Closing Date to the
extent attributable to any period after the Closing Date. Prepaid rents and
other prepaid charges shall be credited to Purchaser to the extent attributable
to any period after the Closing Date. Past due rents (excluding percentage
rents for the present period), past due percentage rents, past due tax
contributions, past due common area maintenance, and other past due charges
charged to tenants of the Premises ("Tenants") which exist at time of closing
(all hereinafter collectively called "Delinquent Rents") shall not be prorated.
(b) The amount of all unapplied security and other Tenant deposits,
or other monies collected by Seller wherein the Tenant is entitled to a refund
of part or all of such amount collected, and interest due thereon, if any, shall
be credited to Purchaser. Seller hereby agrees that it shall remain liable to
Purchaser for any security deposit or other Tenant deposits to rent due from any
Tenant, except (i) where otherwise provided for in the subject Lease or (ii)
where the Tenant is in default under the subject Lease, when such application is
noted on the Rent Roll, or (iii) such Tenant has vacated the Premises and its
security deposit has been applied against said Tenant's obligations to Seller,
or (iv) where the application thereof is noted on the Rent Roll.
(c) The amount of any other credits due Tenants, as specifically
provided for in any Lease, which have not already been credited to a particular
Tenant shall be credited to Purchaser. Notwithstanding the foregoing sentence,
with regard to all new leases entered into subsequent to the Effective Date,
which leases have been approved by Purchaser, Purchaser shall be responsible for
paying all leasing commissions (not to exceed $4.00 per square foot) and all
tenant improvement costs and concessions agreed to be paid for by landlord
pursuant to the terms of such Purchaser approved lease.
(d) Percentage rents shall be prorated as follows: If Seller has
received any monthly, quarterly, or other advance payments of percentage rent
for a Tenant's fiscal year ending after the Closing Date, the aggregate amount
of such payments shall be credited to Purchaser at Closing. For each Tenant
paying percentage rent, at the end of the Tenant's fiscal year within thirty
(30) days, after the Tenant has paid percentage rent to Purchaser based on such
Tenant's 1996 certified sales, Purchaser shall deliver written notice thereof to
Seller along with copies of all supporting information provided by the Tenant
and simultaneously therewith Purchaser shall pay to Seller, net of management
fees, an amount determined by multiplying the percentage rent paid by a Tenant
by a fraction, the numerator of which shall be the number of days during that
Tenant's fiscal year for purposes of calculating percentage rent and for which
the percentage rent is being paid that the Seller owned the Premises and the
denominator of which shall be 365. If the Tenant paying percentage rent pays
same based upon a reporting period of other than 365 days, then the figure used
as the denominator in the formula provided above shall be the number of days in
that Tenant's reporting period rather than 365 days. Purchaser shall exercise
after Closing its reasonable efforts to collect all percentage rents to which
Seller is entitled to a portion thereof.
(e) Should the Leases, or certain of the Leases, contain a provision
obligating the Tenant thereunder to pay to the Landlord under the Lease,
subsequent to the end of each calendar year, a portion of the
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real property taxes, assessments, common area maintenance costs, insurance, or
operating costs required to be paid by Seller, excluding advertising and
promotion costs (the "Tenant's Contribution"), the Tenant's Contribution
relating to the calendar year in which the Closing Date occurred shall be
prorated on a Tenant by Tenant basis and on an expense occurred basis. Purchaser
shall pay to Seller, or Seller shall pay to Purchaser, as the case may be,
within forty-five (45) days of the date of receipt of such sums, an amount
determined by multiplying the Tenant's Contribution paid by a Tenant by a
fraction, the numerator of which shall be the total expenses paid by Seller
prior to the Closing Date, and the denominator of which shall be the total
expenses incurred for 1996. It is the intent of Seller and Purchaser that all
Tenant Contributions collected by Purchaser from Tenants for the period prior to
Closing shall be retained by Purchaser and all Tenant Contributions collected by
Seller from Tenants for the period after Closing shall be retained by Seller and
that after Closing Seller and Purchaser shall adjust and pay each other the
amounts necessary to recover any surplus or deficiency in accordance with the
underlying actual cost figures as they become known.
For example, if the Closing Date occurs on June 30, 1996, and at such date
common area maintenance costs, real property taxes, insurance, and operating
expenses paid by the Seller total $100,000, of which Seller has received
$100,000 from Tenants, and on December 31, 1996, such expenses total $300,000,
of which Purchaser has received $150,000 from Tenants, the proration would be
calculated as follows, such calculation to be performed on a Tenant by Tenant
basis:
Purchaser Seller Total
Total Expenses 200,000 100,000 300,000
Recovery Amount
270,000
Prorated x 2/3 x 1/3
180,000 90,000 270,000
Received 150,000 100,000 250,000
------- ------- -------4
Due from Tenants 20,000
Due from Seller 10,000
In the event Purchaser has not collected such Tenant's Contribution within
ninety (90) days after the Tenant's Contribution is billed to Tenant, and is not
then making a good faith effort to collect the same, Seller shall have the right
to pursue collection of Tenant's Contribution. Tenant's Contribution collected
by either party shall be prorated between Purchaser and Seller as provided in
this paragraph 9(e) after payment of reasonable costs of collection. In the
event Seller has collected Tenant's Contribution prior to the Closing for any
portion of the year 1996, Purchaser shall be credited at Closing with the
portion, if any, of the Tenant's Contribution so collected applicable to the
period after the Closing Date.
(f) Prepaid premiums under any assigned insurance policies shall be
credited to Seller.
(g) Amounts paid or payable under assigned Service Contracts shall be
prorated.
(h) Accrued general real estate, personal property, and ad valorem
taxes for the current year shall be prorated on the basis of bills, if available
prior to Closing. If such bills are not available, then such taxes shall be
prorated on the basis of the most recent ascertainable taxes for the Premises
(based on the maximum discount amount, then available at the time of Closing,
for early payment) and promptly reprorated upon the issuance of final bills
therefor and any amounts due from one party to the other shall be paid in cash
at that time.
(i) Special assessments which are certified or become a lien prior to
Closing and pending special assessments in which the work has been substantially
completed prior to Closing shall be credited to Purchaser at Closing. All other
pending liens for special assessments, the Purchaser shall take subject to.
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(j) Commissions of leasing and rental agents for any Lease entered
into before the Closing Date shall be paid exclusively by Seller at or prior to
Closing, pursuant to the terms relating to such payment, except for those shown
on EXHIBIT "J" or as described in Section 10(c) above which shall be assumed by
Purchaser.
(k) The amount of any unused maintenance reserve shall be credited to
Purchaser.
(l) Such other items and expenses that are customarily prorated in
transactions of this nature shall be prorated, provided that such amounts shall
be reprorated upon receipt of the actual bills. If possible, Seller will assign
its utility deposits to Purchaser and receive a credit therefor.
(m) Seller shall pay over to Purchaser all unpaid funds, if any,
collected by Seller from Tenants, to be used for promotion of the Real Estate
and Improvements.
(n) Interest on the Existing Mortgage as of the Closing Date, and
Purchaser shall be charged with, and Seller shall be credited with, all amounts
held by the Mortgagee, as of the Closing Date, for tax, insurance, or other
escrow purposes.
In all instances in Section 10 hereinabove where Purchaser, after the
Closing, collects monies from Tenants and the Seller is entitled to all or a
portion thereof, Purchaser shall pay to Seller, within thirty (30) days from
date of receipt by Purchaser, those sums to which the Seller is entitled to
receive in accordance with the provisions of Section 10 hereinabove.
As to the Delinquent Rents, after the Closing Purchaser shall, upon
Seller's written request, assign to Seller Purchaser's interest in Delinquent
Rents for the purpose of collection (which may include the filing of any
lawsuit). If Seller intends to commence litigation in connection with such
collection, Seller shall give Purchaser written notice of such intention prior
to actually filing such litigation. If Purchaser attempts collection, Purchaser
shall be entitled to recover from Seller all reasonable costs and expenses of
such action against a delinquent Tenant that are not recovered and collected
from such delinquent Tenant. Any Delinquent Rents collected by the Purchaser
shall first be applied toward payment of costs of collection, then to current
rent and other obligations due the Purchaser and, thereafter, said sum shall be
applied to Delinquent Rents owed by that Tenant, with the earliest Delinquent
Rents being paid first. At any time after six (6) months following the Closing,
Seller shall have the right to pursue collections of such Delinquent Rents, and
shall apply any Delinquent Rents collected first toward payment of the
reasonable costs of collection, then to Delinquent Rents with the earliest
Delinquent Rents being paid first and thereafter to rents due Purchaser from the
Tenant owing such Delinquent Rents only through the month of the Closing.
Seller and Purchaser agree to make end of year adjustments to the foregoing
prorations, where the amounts prorated are based upon estimates as opposed to
actual figures, said adjustments to be made within forty five (45) days of the
date when the actual figures are available and based on actual collections.
At Closing and for up to three (3) years after Closing, Seller shall direct
the then property manager (the "Then Property Manager") to make available at the
offices of the Then Property Manager, all contracts, leases and leasing
correspondence, receipts for deposits, financial reports, billings to tenants,
invoices from vendors, and unpaid bills which pertain to the Premises, together
with all advertising materials, booklets, and keys, if any, used in the
operation of the Premises. Seller makes no representations regarding the
existence or adequacy of such documents or items for use in management or
operation of the Premises. The foregoing shall not include the separate books,
records, correspondence and other documentation of Seller relating exclusively
to Seller's other properties located at its offices.
For purposes of calculating prorations, Purchaser shall be deemed to be in
title to the Premises, and therefore entitled to the income therefrom and
responsible for the expenses thereof, for the entire day upon which the Closing
is completed. All such prorations shall be made on the basis of the actual
number of days of the
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year and months which shall have elapsed as of the Closing Date. The amount of
such prorations shall be adjusted in cash at or after Closing, as and when
complete and accurate information becomes available and, as, and when the cash
has been collected, if applicable. If such information is not available as of
the Closing, Seller and Purchaser agree to prorate based on a reasonable
estimate of such taxes and to cooperate and use their best efforts to make such
adjustments no later than thirty (30) days after such figures become available
to Purchaser and Seller. Bills received after Closing which relate to expenses
incurred, services performed, or other amounts allocable to the period prior to
the Closing Date shall be paid by Seller. If any claim is asserted against
Purchaser or the Premises or any liability is incurred by Purchaser or the
Premises at any time subsequent to the Closing Date, which was not adjusted
hereunder, and, if any such claim or liability is based upon or arises out of
any occurrence or state of facts or any act or omission of Seller existing at
any time from the date Seller acquired the Premises to the Closing Date, Seller
shall satisfy such claim or liability and shall indemnify, defend, protect, and
hold Purchaser and the Premises harmless therefrom and from any costs and
expenses (including without limitation reasonable attorneys' fees) incurred by
Purchaser in connection therewith. All items paid or credited to Seller in
connection with this section shall be paid net of management fees applicable to
those funds so collected and sales taxes and any other costs of collection
incurred by the Purchaser. If any claim is asserted against Seller or any
liability is incurred by Seller at any time subsequent to the Closing Date,
which was not adjusted hereunder, and if any such claim or liability is based
upon or arises out of any occurrence or state of facts occurring after the
Closing Date or as a result of any act of the Purchaser, Purchaser shall satisfy
such liability and shall indemnify, defend, protect, and hold Seller harmless
therefrom and from any costs and expenses (including without limitation
reasonable attorneys' fees) incurred by Seller in connect therewith.
11. TRANSFER TAXES; TITLE CHARGES; AND OTHER EXPENSES. Seller and
Purchaser agree to execute any real estate transfer declarations required by the
state, county or municipality in which the Real Estate is located. Seller shall
pay the cost of any state or county deed or transfer taxes and surtax.
Purchaser shall pay the cost of recording the instruments of conveyance, the
Assumption Fee, all documentary stamps, intangible taxes, recording fees, and
the reasonable fees of Mortgagee's counsel and other reasonable and customary
costs with respect to the assumption. If the transaction is terminated by
either party on account of default by the other, the defaulting party shall pay
all title examination and search costs billed by the Title Company. Each party
shall pay its own attorneys' fees except as otherwise provided in this
Agreement.
12. RISK OF LOSS. Except as provided in any indemnity provision of this
Agreement, Seller shall bear all risk of loss with respect to the Premises up to
the earlier of the dates upon which either possession or title is transferred to
Purchaser in accordance with this Agreement. Notwithstanding the foregoing, in
the event of damage to the Premises by fire or other casualty prior to the
Closing Date, the repair of which would cost less than $250,000.00 (as
determined by Purchaser in good faith), Purchaser shall not have the right to
terminate its obligations under this Agreement by reason thereof, but Seller
shall have the right to elect to either repair and restore the Premises or to
assign and transfer to Purchaser on the Closing Date all of Seller's right,
title, and interest in and to all insurance proceeds paid or payable to Seller
on account of such fire or casualty, provided that such proceeds and any
deductible, which shall be paid to Purchaser or credited against the Purchase
Price, are sufficient to repair or restore the Premises. Seller shall promptly
notify Purchaser in writing of any such fire or other casualty and Seller's
determination of the cost to repair the damage caused thereby. In the event of
damage to the Premises by fire or other casualty prior to the Closing Date,
repair of which would cost in excess of $250,000.00 (as determined by Purchaser
in good faith), then this Agreement may be terminated at the option of
Purchaser, which option shall be exercised, if at all, by Purchaser's written
notice thereof to Seller within twenty (20) business days after Purchaser
receives written notice of such fire or other casualty and Purchaser's
determination of the amount of such damages, and upon the exercise of such
option by Purchaser this Agreement shall become null and void, the Earnest Money
deposit shall be returned to Purchaser, and neither party shall have any further
liability or obligations hereunder. If Purchaser does not so elect to
terminate, then Purchaser shall not have the right to terminate this Agreement
and Seller shall assign and transfer to Purchaser on the Closing Date all of
Seller's right, title, and interest in and to all insurance proceeds paid or
payable to Seller on account of such fire or casualty, together with the amount
of any deductible, and Seller shall have no obligation to repair or restore the
Premises.
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13. CONDEMNATION. In the event between the date of this Agreement and the
Closing Date, any condemnation or eminent domain proceedings are initiated which
might result in the taking of any part of the Real Estate or the Improvements or
the taking or closing of any right of access to the Premises or the termination
of any lease of an Anchor Lease or Required Tenant, Purchaser may:
(a) terminate this Agreement by written notice to Seller; or
(b) proceed with the Closing, in which event Seller shall assign to
Purchaser all of Seller's right, title, and interest in and to any award made in
connection with such condemnation or eminent domain proceedings.
Seller shall immediately notify Purchaser in writing of the commencement or
occurrence of any condemnation or eminent domain proceedings. If such
proceedings would result in the taking of any of the Real Estate or the
Improvements or the taking or closing of any right of access to the Premises, or
the termination of any Anchor Lease or Required Lease, Purchaser shall then
notify Seller, within twenty (20) days of Purchaser's receipt of Seller's
Notice, whether Purchaser elects to exercise its rights under subparagraph (a)
or subparagraph (b) of this section 13. Closing shall be delayed, if necessary,
until Purchaser makes such election. If Purchaser fails to make an election
within such twenty (20) day period, Purchaser shall be deemed to have elected to
exercise its rights under subparagraph (b) and closing shall be delayed, if
necessary, until the later to occur of (i) the Closing Date or (ii) twenty (20)
days after the expiration of the twenty (20) day period.
14. DEFAULT. If this transaction is not consummated by reason of a
default by Purchaser hereunder, then Seller shall retain the Earnest Money
Deposit as full compensation for its damages and as it sole remedy. If this
transaction is not consummated by reason of a default by Seller hereunder,
Purchaser shall have the right to: (a) declare this Agreement terminated, in
which event the Earnest Money Deposit shall be returned to Purchaser or (b) seek
specific performance of this Agreement.
15. NOTICE. All notices required or permitted hereunder shall be in
writing and shall be served on the Parties at the following address:
If to Purchaser: Basic Acquisitions, Inc.
7850 N.W. 146th Street, Suite 308
Miami Lakes, Florida 33016
Attn: Carl K. Maynard, President
Facsimile: (305) 825-9681
With a Copy to: Morton P. Brown, Esquire
Fowler, White, Burnett, Hurley,
Banick & Strickroot
100 Southeast Second Street
17th Floor
Miami, Florida 33131-1101
Facsimile: (305) 789-9201
If to Seller: Miami Gardens Associates, a New Jersey general
partnership
c/o Brad McNutt
Stiles Realty
6400 N. Andrews Avenue
Ft. Lauderdale, Florida 33309-2114
Facsimile: (305) 771-0416
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With Copies to: Neil Platock, Esq.
Honigman, Miller, Schwartz & Cohn
222 Lakeview Avenue, Suite 800
West Palm Beach, Florida 33401
Facsimile: (407) 832-3036
Any such notices may be sent by (a) certified mail, return receipt requested, in
which case notice shall be deemed delivered three business days after deposit,
postage prepaid in the U.S. mail or (b) a nationally recognized overnight
courier, in which case notice shall be deemed delivered one business day after
deposit with such courier or (c) facsimile transmission, in which case notice
shall be deemed delivered upon electronic verification that transmission to
recipient was completed. The above addresses and facsimile numbers may be
changed by written notice to the other party; provided that no notice of a
change of address or facsimile number shall be effective until actual receipt of
such notice. Copies of notices are for informational purposes only, and a
failure to give or receive copies of any notice shall not be deemed a failure to
give notice.
16. TIME OF ESSENCE. Time is of the essence of this Agreement.
17. GOVERNING LAW. The validity, meaning and effect of this Agreement
shall be determined in accordance with the laws of the State of Florida.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. CAPTIONS. The captions in this Agreement are inserted for convenience
of reference and in no way define, describe or limit the scope or intent of this
Agreement or any of the provisions hereof.
20. ASSIGNABILITY. Purchaser may assign its rights under this Agreement
without the prior written consent of Seller, provided, however, that: (a) the
original Purchaser shall remain liable for the performance of all of Purchaser's
obligations hereunder; (b) Seller shall incur no additional expenses on account
of such assignment; and (c) Purchaser shall disclose the identity of such
assignee to Seller, and shall supply to Seller all information regarding such
assignee as may be reasonably requested by Seller, not later than ten (10)
business days prior to the closing of this transaction. Notwithstanding the
immediately preceding sentence, clause (c) thereof will not be applicable to any
assignment of Purchaser's rights under this Agreement if such assignment is to
an entity affiliated with Purchaser or any of Purchaser's principals.
21. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns.
22. MODIFICATIONS; WAIVER. No waiver, modification amendment, discharge
or change of this Agreement shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
amendment, discharge, or change is sought.
23. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the transactions contemplated hereby and all
prior or contemporaneous agreements, understandings, representations or
statements, oral or written, are superseded hereby.
24. PARTIAL INVALIDITY. Any provision of this Agreement which is
unenforceable or invalid or the inclusion of which would adversely affect the
validity, legality or enforcement of this Agreement shall be of no effect, but
all the remaining provisions of this Agreement shall remain in full force and
effect.
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25. SURVIVAL. The obligations of Seller and Purchaser under this
Agreement which are expressly or impliedly intended to survive Closing shall
survive the Closing of this transaction. The indemnity provisions under this
Agreement shall survive the termination of this Agreement.
26. NO THIRD-PARTY RIGHTS. Nothing in this Agreement, express or implied,
is intended to confer upon any person, other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of
this Agreement.
27. FURTHER ACTIONS. The parties hereto agree that should any act or
actions of any party hereto be reasonably required to be performed after the
Closing, to carry out the intention of this Agreement, said party will perform
same upon request of the other party.
28. BROKER. Seller and Purchaser represent each to the other that each
has had no dealings with any broker, finder or other party concerning
Purchaser's purchase of the Premises except Stiles Realty ("Stiles") and Maynard
Rich/Abraham, Inc. ("Maynard") (Maynard and Stiles collectively the "Brokers").
Seller agrees to pay a commission to Brokers as separately agreed between Seller
and Brokers. Seller and Purchaser each hereby agrees to indemnify and hold the
other harmless from all loss, cost, damage or expense (including reasonable
attorney's fees) incurred by the other as a result of any claim arising out of
the acts of the indemnifying party (or others on its behalf) for a commission,
finder's fee or similar compensation made by any broker, finder or any party who
claims to have dealt with such party except Broker. The representations and
warranties contained in this section 28 shall survive the Closing or the
termination of this Agreement.
29. EFFECTIVE DATE. For purposes of calculation of all time periods
within which Seller or Purchaser must act or respond as herein described, all
phrases such as "the date of this Agreement", "the date of execution of this
Agreement" or any other like phrase referring to the date of the Agreement,
shall mean and refer to the Effective Date of this Agreement as described in the
first sentence of page 1 hereof, which shall be the date when the last of the
Seller and Purchaser have executed this Agreement.
30. NO RECORDING. Seller and Purchaser agree that neither this Agreement
nor any memorandum thereof shall be recorded.
31. TERMINATION OF EXISTING MANAGEMENT AND EMPLOYEE CONTRACTS. On or
before the expiration of the Due Diligence Period, Purchaser shall advise
Seller, in writing, which of the Service Contracts it intends to assume and
which Purchaser requests that Seller terminate on or before the Closing Date.
Within ten (10) business days after receipt of Purchaser's notice, Seller shall
advise Purchaser in writing whether any Service Contracts Purchaser has
requested Seller to terminate cannot be terminated prior to Closing or can be
terminated prior to Closing only with the payment of a fee or penalty and:
(a) with respect to those Service Contracts which cannot be
terminated, Purchaser shall advise Seller in writing, within five (5) business
days of receipt of Seller's notice, that Purchaser has either agreed to assume
such Service Contracts or has elected to terminate this Agreement in which
latter instance, the Earnest Money Deposit shall be returned to Purchaser and
neither Seller nor Purchaser shall have any further liability to the other; and
(b) with respect to those Service Contracts which can be terminated
prior to the Closing, but only with the payment of a fee or penalty which Seller
does not agree to pay, Purchaser shall advise Seller in writing, within five (5)
business days of receipt of Seller's notice, that Purchaser has either agreed to
pay the termination fee or penalty or has elected to terminate this Agreement,
in which latter instance the Earnest Money Deposit shall be returned to
Purchaser and neither party shall have any further liability to the other.
On or before the Closing Date, Seller shall terminate all of its employees
of the Premises and all contracts related to the management and operation of the
Premises (other than the Service Contracts which
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Purchaser has elected to assume in the manner provided herein), including,
without limitation, any property management and leasing agreements together with
such releases and other evidence and assurances that Purchaser shall have no
liability with respect to any such terminated employees and contracts (other
than the Service Contracts which Purchaser has elected to assume in the manner
herein provided) except as set forth hereinabove with respect to termination
fees or penalties to be paid by Purchaser in connection with the termination of
Service Contracts. Seller shall defend, indemnify and hold Purchaser harmless
from any claims or damages arising from terminated Service Contracts (unless
pursuant to the terms of the Service Contract in question such Service Contract
may not be terminated or unless and to the extent Purchaser is obligated to pay
a termination fee or penalty in connection with the termination of a Service
Contract as set forth above) or from any claims of employees of Seller whose
employment was not continued after the Closing Date. Seller's obligations
relating to former employees and Purchaser's obligations with respect to the
payment of termination fees or penalties as hereinabove provided shall survive
the Closing.
32. ADDITIONAL CLOSING CONTINGENCIES. The Closing and the obligation of
Purchaser to close this Agreement shall, in addition to any other conditions, be
conditioned expressly on the satisfaction of the following conditions as of the
Closing Date:
(a) The representations and warranties of Seller contained in this
Agreement shall be true, correct, and complete in all material respects and
shall also be true, correct, and complete in all material respects as of the
Closing Date as if made on and as of such date.
(b) Each of the agreements to be performed by Seller on or prior to
the Closing Date pursuant to the terms of this Agreement shall have been
performed in all material respects.
(c) At the time of Closing (i) all of the now existing tenants, as
shown on the Rent Roll, shall be open for business and conducting their regular
business operations in their respective stores at the Premises, and (ii) none of
such tenants shall have given notice of their intention to (A) close any such
stores or (B) materially reduce the hours during which any such stores are
normally open or otherwise change the manner of operation of any such stores, in
either case in any material respect. The immediately preceding sentence shall
not be applicable to leaseable space within the Premises of less than 4,000
square feet in the aggregate which may be vacant (for purposes hereof, the term
"vacant" shall mean all vacant store(s) within the Premises, any existing tenant
which materially reduced [or has given Seller notice of its intention to reduce]
the hours during which any such tenant normally maintains store hours or
otherwise materially changes [or has given Seller notice of its intention to
materially change] the manner of operation of any such stores, and tenants which
have given notice to Seller of its intention to close its store).
(d) Seller and Purchaser shall deliver an executed escrow agreement
(the "Escrow Agreement"), in form and content reasonably acceptable to Seller
and Purchaser. The Escrow Agreement shall provide, among other things, that at
Closing Seller shall deliver to the Escrow Agent the sum of $150,000.00 (the
"Escrow Deposit") which shall be held by the Escrow Agent in an interest bearing
account. At any time prior to Closing, Seller and BellSouth Mobility, Inc. or
its affiliate or designee ("BellSouth") may enter into an option and lease
agreement (with a minimum net rent of $16,000 per year and lease term of not
less than five years) substantially in form attached hereto ("BellSouth Lease"),
and/or Seller and Majorco, L.P., or its affiliate or designee ("Sprint") may
enter into an option and lease agreement in a form to be approved by Seller and
Purchaser, which approval shall not be unreasonably withheld or delayed ("Sprint
Lease"), failing which Purchaser will use reasonable efforts to enter into the
BellSouth Lease and/or the Sprint Lease, as requested by Seller, for a period of
ninety (90) days after Closing. Should BellSouth not execute the BellSouth
Lease or BellSouth does not exercise its option to lease the premises, the
Sprint Lease shall be in form and content substantially similar to the BellSouth
Lease and shall require a minimum net rent paid to Purchaser of $16,000 per year
and a lease term of not less than five years. The BellSouth Lease and, once
approved by Seller and Purchaser, the Sprint Lease may not be modified without
Purchaser's consent which such consent will not be unreasonably withheld or
delayed, except that Seller's consent shall not be required once the Escrow
Deposit is
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disbursed as hereinafter provided. The improvements to be constructed by
BellSouth or Sprint shall be in accordance with the terms and conditions of the
BellSouth Lease or Sprint Lease, as applicable, at the sole cost and expense of
BellSouth or Sprint, respectively. All plans and specifications required to be
submitted to Seller pursuant to the BellSouth Lease or Sprint Lease, as
applicable, shall be submitted to Purchaser for approval, which such approval
shall not be unreasonably withheld or delayed, keeping in mind the time frames,
if any, set forth in the BellSouth Lease or Sprint Lease, as applicable. In the
event BellSouth does not enter into the BellSouth Lease within ninety (90) days
after the Closing Date and/or Sprint does not enter into the Sprint Lease within
ninety (90) days after the Closing Date, the Escrow Agent shall deliver the
Escrow Deposit and the interest earned thereon to the Purchaser. In the event
Seller or Purchaser and BellSouth enter into the BellSouth Lease, or Seller or
Purchaser and Sprint enter into the Sprint Lease at any time between the date of
this Agreement and ninety (90) days after the Closing Date, and either BellSouth
or Sprint exercises its option to lease the premises therein described prior to
the expiration of four hundred fifty-five (455) days after the Closing, the
Escrow Agent shall deliver the Escrow Deposit and the interest earned thereon to
the Seller, and if such option is not exercised within the time period, then the
Escrow Agent shall deliver the Escrow Deposit and the interest earned thereon to
the Purchaser. Should as a result of the BellSouth Lease and/or the Sprint
Lease any option fee(s) be paid by BellSouth and/or Sprint any option fee(s)
paid prior to Closing shall be paid to the Seller without any accounting
therefor to the Purchaser, however, any option fee(s) paid after Closing shall
be paid to the Purchaser without any accounting therefor to the Seller.
Purchaser shall have the right to waive any condition of its obligations under
this Agreement, provided that any such waiver shall be in writing. The Closing
of the transaction contemplated by this Agreement shall constitute a waiver of
any unsatisfied closing condition provided that no such waiver shall release
either party from its liability under the representations and warranties it has
made in this Agreement.
33. UTILITY CUT-OFF. Purchaser and Seller shall coordinate to have all
utility meters read immediately prior to the Closing and to transfer all
utilities to the Purchaser as of the Closing Date. Purchaser shall pay whatever
utility deposits that may be required and Seller shall be entitled to receive
from the various utility companies a return of any of its existing utility
deposits.
34. RADON GAS. The following notification is hereby given pursuant to
Florida Statutes Section 404.056(7) (1993):
RADON GAS: Radon is a naturally occurring radioactive gas
that, 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 that exceed
federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
35. LITIGATION. In the event of litigation, including but not limited to
appeals, between the parties with respect to this Agreement, the performance of
the obligations hereunder or the effect of a termination under this Agreement,
the losing party shall pay all costs and expenses incurred by the prevailing
party in connection with such litigation, including reasonable attorneys' fees.
Notwithstanding any provision of this Agreement to the contrary, the obligations
of the parties under this Section 35 shall survive termination of this
Agreement.
36. DATES. If any date herein set forth for the performance of any
obligations by Seller or Purchaser or for the delivery of any instrument or
notice as herein provided should be on a Saturday, Sunday or legal holiday, the
compliance with such obligations or delivery shall be deemed acceptable on the
next business day following such Saturday, Sunday or legal holiday. As used
herein, the term "legal holiday" means any state or federal holiday for which
financial institutions or post offices are generally closed in the State of
Florida for observance thereof. As used in this Agreement, the term "business
day" means a day other than a Saturday, Sunday or legal holiday.
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37. PREPARATION OF AGREEMENT. The Seller and Purchaser have participated
equally in the drafting and preparation of this Agreement, and it shall not be
construed against either party on the basis that that party drafted the
Agreement.
38. LIKE-KIND EXCHANGE. At the request of Seller, the Purchaser shall, at
no cost or expense to the Purchaser, cooperate with Seller if Seller desires to
effectuate the sale of the Premises to Purchaser as a "like-kind" exchange
pursuant to Section 1031 of the United States Internal Revenue Code.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Witnesseth:
/s/ illegible MIAMI GARDENS ASSOCIATES,
- ------------------- a New Jersey general partnership
By: Garden Square Associates, L.P., a
/s/ illegible Delaware
- ------------------- limited partnership, as general
As to Seller partner
By: Englewood Gardens, Inc., a
Florida corporation,
as sole general partner
By: /s/ illegible
------------------------
Print Name: illegible
----------------
Title: Pres.
---------------------
Witnesseth:
/s/ illegible BASIC ACQUISITIONS, INC.,
- ------------------- a Delaware corporation
/s/ illegible
- ------------------- By: /s/ illegible
As to Purchaser -------------------------------
Print Name: illegible
-----------------------
Title: V.P.
-----------------------------
As Escrow Agent, we hereby acknowledge receipt of the Initial Deposit pursuant
to the Real Estate Purchase and Sale Agreement and agree to be bound by and
comply with all provisions of this Agreement which relate to the Earnest Money
Deposit and Escrow Agreement.
DATED this 24 day of July, 1996.
ESCROW AGENT:
FOWLER, WHITE, BURNETT, HURLEY,
BANICK & STRICKROOT, P.A.
By: /s/ Morton P. Brown
--------------------------------
Morton P. Brown
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