THIS REINSTATEMENT AGREEMENT ("Reinstatement Agreement") is made as of
this ________ day of October, 1998, by and between BENEVA SHOPS ASSOCIATES,
LTD., a Florida limited partnership ("Seller"), and RRC ACQUISITIONS, INC., a
Florida corporation ("Buyer").
WHEREAS, Seller and Buyer entered into that certain Purchase and Sale
Agreement dated October 21, 1997, whereby Seller agreed to sell and convey to
Buyer and Buyer agreed to purchase from Seller certain real and personal
property described therein, as subsequently amended by letter agreements dated
December 8, 1997, December 23, 1997, December 29, 1997, January 15, 1998, and
January 17, 1998 (the "Agreement"); and
WHEREAS, the Purchase Agreement terminated in accordance with its terms
on January 27, 1998, but Buyer and Seller have agreed to reinstate the Purchase
Agreement and amend certain provisions thereof, as more particularly set forth
NOW, THEREFORE, in consideration of the sum of Ten and No/100 Dollars
($10.00), and other valuable consideration, the receipt of which is hereby
acknowledged, Seller and Buyer acknowledge and agree as follows:
1. Buyer and Seller hereby agree that the Purchase Agreement is hereby
reinstated, subject to and in accordance with the terms and conditions of this
Reinstatement Agreement. As amended and modified hereby, the Purchase Agreement
is in full force and effect. In the event of a conflict between the provisions
hereof and those of the Purchase Agreement, the provisions hereof shall control.
2. The Purchase Agreement is amended and restated in its entirety as
set forth in Exhibit "A" attached hereto.
3. Buyer hereby assigns its interest in the Purchase Agreement, as
modified hereby, to RRC Acquisitions Two, Inc., a Florida corporation
("Assignee"), which assumes the obligations of Buyer under the Purchase
Agreement, as modified hereby, from and after the date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses: RRC ACQUISITIONS, INC.,
a Florida corporation
Tax Identification No. 59-3210155
RRC ACQUISITIONS TWO, INC.,
a Florida corporation
Tax Identification No. 59-3478325
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BENEVA SHOPS ASSOCIATES, LTD.,
a Florida limited partnership
By Its General Partner:
Sarasota Beneva Company, Ltd.,
a Florida limited partnership
By Its General Partners:
RAB Holdings, Inc., a Florida
Name: Richard A. Beard, III
As to RAB Holdings, Inc. President
WRC Holdings, Inc., a Texas
Name: William R. Cooper
As to WRC Holdings, Inc. President
Tax Identification No: 75-2018292
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JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of agreeing to
comply with the terms hereof insofar as they apply to Escrow Agent. Escrow Agent
shall receive and hold the Earnest Money Deposit in trust, to be disposed of in
accordance with the provisions of this joinder and the foregoing Agreement. The
Earnest Money Deposit shall be invested by Escrow Agent in an interest bearing
account at First Union National Bank.
2. Indemnity. Escrow Agent shall not be liable to either party except
for claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which Escrow Agent may incur by reason of or in connection with such
controversy or litigation, except to the extent it is finally determined that
such controversy or litigation resulted from Escrow Agent's gross negligence or
willful misconduct. If the indemnity amounts payable hereunder result from the
fault of Buyer or Seller (or their respective agents), the party at fault shall
pay, and hold the other party harmless against, such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow
Agent or Escrow Agent is uncertain with respect to the escrow, the parties
hereto expressly agree that Escrow Agent shall have the absolute right to do
either or both of the following: (i) withhold and stop all proceedings in
performance of this escrow and await settlement of the controversy by final
appropriate legal proceedings or otherwise as it may require; or (ii) file suit
for declaratory relief and/or interpleader and obtain an order from the court
requiring the parties to interplead and litigate in such court their several
claims and rights between themselves. Upon the filing of any such declaratory
relief or interpleader suit and tender of the Earnest Money Deposit to the
court, Escrow Agent shall thereupon be fully released and discharged from any
and all obligations to further perform the duties or obligations imposed upon
it. Buyer and Seller agree to respond promptly in writing to any request by
Escrow Agent for clarification, consent or instructions. Any action proposed to
be taken by Escrow Agent for which approval of Buyer and/or Seller is requested
shall be considered approved if Escrow Agent does not receive written notice of
disapproval within fourteen (14) days after a written request for approval is
received by the party whose approval is being requested. Escrow Agent shall not
be required to take any action for which approval of Buyer and/or Seller has
been sought unless such approval has been received or deemed received. No
disbursements shall be made, other than as provided in Sections and of Exhibit
"A" to this Agreement, or to a court in an interpleader action, unless Escrow
Agent shall have given written notice of the proposed disbursement to Buyer and
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and neither Buyer nor Seller shall have delivered any written objection to the
disbursement within 14 days after receipt of Escrow Agent's notice. No notice by
Buyer or Seller to Escrow Agent of disapproval of a proposed action shall affect
the right of Escrow Agent to take any action as to which such approval is not
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
Its Authorized Agent
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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:
As used in this Agreement, the following terms shall have the following
1.1 Agreement means this instrument as it may be amended from time to
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 RRC Acquisitions Two, Inc.
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
1.6 Closing Date means the date on which the Closing occurs.
1.7 Contracts means service contracts and similar agreements affecting
the Shopping Center (excluding Leases) which are freely terminable by the owner
of the Shopping Center upon not more than thirty (30) days' written notice.
1.8 Day means a calendar day, whether or not the term is capitalized.
1.9 Earnest Money Deposit means the deposits delivered by Buyer to
Escrow Agent prior to the Closing under Sections and 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
1.11 Environmental Assessments means the environmental assessment
reports identified in Exhibit attached hereto.
1.12 Environmental Escrow Agreement is the agreement attached hereto as
1.13 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.
1.14 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.
1.15 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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1.16 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.
1.17 Hazardous Material Activity means any activity, event, or
occurrence at or prior to the Closing Date involving a Hazardous Material,
including, without limitation, the manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation, handling or corrective or response
action to any Hazardous Material.
1.18 Improvements means any buildings, structures or other improvements
situated on the Real Property.
1.19 Inspection Period means the period of time which expires at
midnight on the thirtieth (30th) day after the earlier of (i) November 1, 1998,
or (ii) the date upon which the Remedial Action Plan is approved by the Florida
Department of Environmental Protection. If such expiration date is a weekend or
national holiday, the Inspection Period shall expire at midnight on the next
immediately succeeding business day.
1.20 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.21 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.
1.22 Permitted Exceptions means only the following interests, liens and
(a) Liens for ad valorem taxes not payable on or before Closing;
(b) Rights of tenants under Leases; and
(c) Other matters determined by Buyer to be acceptable.
1.23 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,
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radiators, pipes, wiring and other apparatus, equipment and fixtures, elevators,
partitions, fire prevention and extinguishing systems located in or on the
Improvements, (b) all Materials, and (c) all other personal property used in
connection with the Improvements, provided the same are now owned or are
acquired by Seller prior to the Closing.
1.24 Property means collectively the Real Property, the Improvements
and the Personal Property.
1.25 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.
1.26 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).
1.27 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.
1.28 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.
1.29 Remedial Action Plan is the plan to be prepared at the cost and
expense of Seller (subject to reimbursement as provided herein) for the
remediation of certain contamination of the Property described in the
Environmental Assessments, said plan to be subject to review by and approval of
1.30 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.
1.31 Seller means Beneva Shops Associates, Ltd., a Florida limited partnership.
1.32 Seller Financial Statements means the unaudited balance sheets and
statements of income, cash flows and changes in financial positions prepared by
Seller for the Property, as of and for the two (2) calendar years next preceding
the date of this
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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
1.33 Shopping Center means the Shopping Center identified on the
initial page hereof.
1.34 Survey means the survey prepared by George F. Young, Inc., dated
August 18, 1989, last revised and recertified on November 7, 1997, to be updated
to a date 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
1.35 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.
1.36 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.37 Title Insurance means an ALTA Form B Owners Policy of Title
Insurance for the full Purchase Price insuring marketable title in Buyer in fee
simple, subject only to the Permitted Exceptions, issued by a title insurer
acceptable to Buyer.
1.38 Title Insurance Commitment means the Commitment for Title
Insurance issued by Commonwealth Land Title Insurance Company, bearing an
effective date of November 3, 1997, at 8:00 A.M., to be updated within the
Inspection Period and "marked down" at Closing.
1.39 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 $11,422,781. The
Purchase Price shall be payable in cash at Closing.
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(b) Adjustments at Closing. Notwithstanding anything to the
contrary contained in this Agreement or applicable law, the provisions of this
Section shall survive the Closing. All income and obligations attributable to
periods ending on or before the Allocation Date shall be allocated to Seller,
and all income and obligations attributable to periods ending after the
Allocation Date (including the Closing Date) shall be allocated to Buyer.
Without limitation upon the foregoing the following items shall be adjusted or
prorated between Seller and Buyer as set forth below:
(1) The Closing year's real and tangible personal property taxes
shall be prorated between Seller and Buyer as of the Allocation Date (if the
amount of the current year's property taxes are not available, such taxes will
be prorated based upon the prior year's assessment);
(2) Except as provided in subparagraph below, all
income and operating expenses of the Property, including, without limitation,
public utility charges, maintenance, management, and other service charges,
costs and expenses associated with leases entered into between the date of this
Agreement and the Closing Date, and all other normal operating charges shall be
prorated at the Closing effective as of the Allocation Date based upon the best
(3) Seller will credit Buyer with any prepaid rents and
reimbursements, or unforfeited security deposits with respect to the Leases, but
only to the extent that the same were actually paid by tenants as reflected by
Tenant Estoppel Letters, or if a Tenant Estoppel Letter is not received from a
particular tenant, by the Lease. If the Seller's records disagree with those of
a particular tenant, Seller and Buyer shall negotiate in good faith during the
Inspection Period to resolve the disagreement.
(4) Any rents, percentage rents or tenant reimbursements
payable by tenants after the Allocation Date but applicable to periods on or
prior to the Allocation Date shall be remitted to Seller by Buyer within thirty
(30) days after receipt, less any expenses of the Property found to be
attributable to pre-Allocation Date periods 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 has received no proration or credit,
Buyer shall remit same to Seller within thirty (30) days after receipt. 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. Receipts after
Closing of either Buyer or Seller from tenants who do not designate the period
to which they are to be applied shall be applied first to then current rents and
reimbursements for such tenant(s), then to
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delinquent rents and reimbursements attributable to post-Allocation Date
periods, and then to pre-Allocation Date periods.
(5) An escrow will be established with Escrow Agent pursuant
to the Environmental Escrow Agreement, in the initial amount of $900,000 to
accomplish the preparation of the Remedial Action Plan and removal of the
Hazardous Materials which are the subject of the Environmental Assessments. The
escrowed sum will be deposited with Escrow Agent by Seller from the proceeds of
sale. If this transaction closes, the costs incurred by Seller in the
preparation of the Remedial Action Plan, including without limitation additional
testing, if any, shall be reimbursed from such escrow (but such preparation cost
reimbursement not to exceed $25,000 in the aggregate), and the balance held and
disbursed as provided in the Environmental Escrow Agreement.
2.2 Earnest Money Deposit. An Earnest Money Deposit in the amount of
$12,500 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 satisfying any liens on the Property;
(3) Cost of title insurance and the costs, if any, of curing title
defects and recording any curative title documents;
(4) Cost of preparation of the Remedial Action Plan (subject to
reimbursement as provided herein);
(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
(b) Buyer shall pay:
(1) Cost of Buyer's due diligence inspection;
(2) Cost of the Survey;
(3) Cost of recording the deed; and
(4) Buyer's attorneys' fees.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, review the economic data, underwrite the
tenants and review their Leases, and to otherwise conduct its due diligence
review of the Property and all books, records and accounts of Seller related
thereto. Buyer hereby agrees to indemnify and hold Seller harmless from any
damages, liabilities or claims for property damage or personal injury arising
out of such inspection and investigation by Buyer or its agents or independent
contractors, such indemnification obligations to survive the termination, breach
or Closing of this Agreement, as the case may be. Within the Inspection Period,
Buyer may, in its sole discretion and for any reason or no reason, elect to go
forward with this Agreement to closing, which election shall be made by notice
to Seller given within the Inspection Period. If such notice is not timely
given, this Agreement and all rights, duties and obligations of Buyer and Seller
hereunder, except any which expressly survive termination, shall terminate and
Escrow Agent shall forthwith return to Buyer the Earnest Money Deposit. If Buyer
so elects to go forward, the Earnest Money Deposit shall be increased by an
additional deposit of $87,500 (to be deposited with Escrow Agent no later than
three (3) business days following the end of the Inspection Period), and shall
not be refundable except upon the terms otherwise set forth herein.
(b) Seller will promptly furnish or make available to Buyer
the documents enumerated on Exhibit attached hereto, to the extent such
documents exist and are within Seller's possession or that of Seller's property
manager. Subject to subparagraph (d) below, Buyer, through its officers,
employees and other authorized representatives, shall have the right to
reasonable access to the Property and all records of Seller related thereto,
including without limitation all Leases and Seller Financial Statements, at
reasonable times during the Inspection Period for the purpose of inspecting the
Property, taking soil and ground water samples, conducting
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Hazardous Materials inspections, reviewing the books and records of Seller
concerning the Property and otherwise conducting its due diligence review of the
Property. Seller shall cooperate with and assist Buyer in making such
inspections and reviews. Seller shall give Buyer any authorizations which may be
required by Buyer in order to gain access to records or other information
pertaining to the Property or the use thereof maintained by any governmental or
quasi-governmental authority or organization. Buyer, for itself and its agents,
agrees not to enter into 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 Buyer
furnishes Seller reasonable notice of the time and place of any such interview
or discussion and affords Seller an opportunity to be present.
(c) Buyer, through its officers or other authorized
representatives, shall have the right to reasonable access to all Materials
(other than privileged or confidential materials) for the purpose of reviewing
and copying the same.
(d) Buyer shall not have the right, without first obtaining
Seller's prior written consent, to pierce or penetrate the roof, walls,
foundation, or structural component of any of the Improvements or paved areas.
Buyer shall give Seller reasonable notice of all inspections and other
activities of Buyer or its representatives, agents or contractors that will take
place on the Property and afford Seller the opportunity to be present during all
or any part of such inspections and other activities on the Property. All
interior inspections shall be made only (x) with the prior consent of Seller,
(y) on business days and (z) during such hours that will not, in Seller's
opinion, interfere with or disturb the quiet enjoyment of the Property by
tenants. Any inspections of any space leased by a tenant shall be made only with
advance notice to and consent of such tenant and with the opportunity having
been given to Seller to be present. The costs and expenses of Buyer's
investigations shall be borne solely by Buyer and Buyer shall deliver to Seller
a copy of each such test, report and inspection conducted or obtained by Buyer
with respect to the Property. Buyer shall immediately repair and restore any
damage to the Property resulting from the performance of any of Buyer's
activities on the Property. Buyer shall not have the right to perform or cause
to be performed on the Property any investigation, inspection, testing, or
on-site visitation unless and until Buyer delivers to Seller evidence that Buyer
and all persons acting for and on behalf of Buyer in performing any
investigation, inspection, testing and on-site work are covered by comprehensive
general liability insurance, having Seller as a named insured and liability
limits that are acceptable to Seller.
(e) Buyer agrees that all information pertaining to the
Property that Buyer obtains from Seller or in connection with the performance of
its rights under this Agreement shall be held in confidence and not disclosed to
any persons other than Buyer's agents, attorneys and representatives. Buyer
further agrees that, until the
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Closing, neither the Buyer nor its agents will disclose the contents of such
information or the terms of this Agreement except to financial institutions who
may provide financing to Buyer for the Property. If this Agreement is terminated
for any reason, Buyer shall promptly return to Seller all materials in Buyer's
or any agent of Buyer's possession furnished by Seller, or resulting from
testing performed by Buyer, relating to the Property and all such information
and the terms of this Agreement shall continue to be held in confidence by Buyer
and its agents. The provisions of this paragraph shall survive the termination
of this Agreement.
3.2 Hazardous Material. Seller has made available to Buyer the
Environmental Assessments. Buyer and Seller will cooperate to cause the Remedial
Action Plan to be prepared and approved as expeditiously as possible. Seller
shall engage Dames & Moore, environmental consultants, to prepare a
contamination assessment report and the Remedial Action Plan and secure their
approval by the Florida Department of Environmental Protection. If the Remedial
Action Plan is approved prior to the end of the Inspection Period, the
adjustment to the Escrow Deposit contemplated by Section 5 of the Environmental
Escrow Agreement shall be made such that the component of the Escrow Deposit
attributable to the cost of the Remediation Work shall be based upon the
Engineer's estimate of such cost. If the Remedial Action Plan has not been
approved prior to the end of the Inspection Period, the initial escrow shall be
$900,000, to be made at Closing. After Closing, the terms of the Environmental
Escrow Agreement shall govern the determination and adjustment of the amount of
the Escrow Deposit and the disbursement thereof.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties,
the Closing shall take place at the offices of Escrow Agent at 10:00 A.M. on the
date which is the fifteenth (15th) day following the expiration of the
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
4.1 Organization; Authority. Seller is duly organized and validly
existing as a limited partnership, duly authorized to transact business in 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.
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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 will transfer to Buyer, and Buyer will acquire
hereunder, good, marketable and insurable title to, and the entire right, title
and interest in the Property, free and clear of all liens, encumbrances,
liabilities, agreements, leases, judgments, claims, rights, easements,
restrictions and other matters affecting title, except the Permitted Exceptions
and the Leases. At Closing, the issuance of the Title Insurance and the deliver
of the closing documents contemplated by Section shall terminate this
representation and warranty, but shall not limit the representations and
warranties, if any, contained in the closing documents.
4.4 Commissions. Seller has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Seller, Buyer or the Property for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transaction provided herein
except for R.A. Beard Co. and Richard A. Beard, III, and Seller agrees to
indemnify Buyer from any such claim arising by, through or under Seller.
4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except for Permitted Exceptions and this Agreement.
4.6 Litigation. There is no litigation or proceeding pending, or to the
best of Seller's knowledge, threatened against Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll, and any Leases or modifications
entered into between the date of this Agreement and the Closing Date with the
consent of Buyer. Copies of the Leases, which have been delivered to Buyer or
shall be delivered to Buyer within five (5) days from the date hereof, are, to
the best knowledge of Seller, true, correct and complete copies thereof, subject
to the matters set forth on the Rent Roll. Between the date hereof and the close
of business on the date which is the fifth (5th) business day preceding the end
of the Inspection Period, Seller may terminate or modify existing Leases or
enter into new Leases without the consent of Buyer, provided Seller furnishes
Buyer a copy of any proposed modification, termination or new Lease and consults
with Buyer concerning same. Thereafter, Seller will not terminate or modify
existing Leases or enter into any new Leases without the consent of Buyer. All
of the Property's tenant leases are in good standing and to the best of Seller's
knowledge no defaults exist thereunder except as noted on the Rent Roll. No rent
or reimbursement has been paid more than one (1) month in advance and no
security deposit has been paid, except as
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stated on the Rent Roll. No tenants under the Leases are entitled to interest on
any security deposits. No tenant under any Lease has or will be promised any
inducement, concession or consideration by Seller other than as expressly stated
in such Lease, and except as stated therein there are and will be no side
agreements between Seller and any tenant.
4.8 Financial Statements. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
in accordance with the books and records of Seller and presents fairly in all
material respects the financial condition, results of operations and cash flows
for the Property as of and for the periods to which they relate. All are in
conformity with generally accepted accounting principles applied on a consistent
basis. There has been no material adverse change in the operations of the
Property or its prospects since the date of the most recent Seller Financial
Statements. Seller covenants to furnish promptly to Buyer copies of the Seller
Financial Statements together with unaudited updated monthly reports of cash
flow for interim periods beginning after December 31, 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
prior to Closing. Seller agrees to execute and deliver or to cause its property
manager to execute and deliver to Buyer or its accountants the Audit
Representation Letter should Buyer's accountants audit the records of the
4.9 Contracts. There are no contracts or agreements affecting the
Property, oral or written, which will extend beyond the Closing Date other than
the Contracts. All Contracts are in full force and effect in accordance with
their respective terms, and all obligations of Seller under the Contracts
required to be performed to date have been performed in all material respects;
to Seller's knowledge, no party to any Contract has asserted any claim of
default or offset against Seller with respect thereto and no event has occurred
or failed to occur, which would in any way affect the validity or enforceability
of any such Contract; and the copies of the Contracts delivered to Buyer prior
to the date hereof are true, correct and complete copies thereof. Between the
date hereof and the Closing, Seller covenants to fulfill all of its obligations
under all Contracts, and covenants not to terminate or modify any such Contracts
or enter into any new contractual obligations relating to the Property without
the consent of Buyer (not to be unreasonably withheld) except such obligations
as are freely terminable without penalty by Seller upon not more than thirty
(30) days' written notice.
4.10 Maintenance and Operation of Property. From and after the date
hereof and until the Closing, Seller covenants to keep and maintain and operate
the Property substantially in the manner in which it is currently being
maintained and operated and covenants not to cause or permit any waste of the
Property nor undertake any action with respect to the operation thereof outside
the ordinary course of business without
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Buyer's prior written consent, which consent shall not be unreasonably withheld.
In connection therewith, Seller covenants to make all necessary repairs and
replacements until the Closing so that the Property shall be of substantially
the same quality and condition at the time of Closing as on the date hereof.
Seller covenants not to remove from the Improvements or the Real Property any
article included in the Personal Property. Seller covenants to maintain such
casualty and liability insurance on the Property as it is presently being
4.11 Permits and Zoning. To the best knowledge of Seller, the Property
is properly zoned for its present use, and there are no outstanding assessments,
impact fees or other charges related to the Property.
4.12 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and
correct in all material respects. Seller agrees to use reasonable efforts to
obtain Tenant Estoppel Letters dated within thirty (30) days of Closing from all
Tenants under Leases, which Tenant Estoppel Letters shall confirm the matters
reflected by the Rent Roll as to the particular tenant.
4.13 Condemnation. Neither the whole nor any portion of the Property,
including access thereto or any easement benefitting the Property, is subject to
temporary requisition of use by any governmental authority or has been
condemned, or taken in any proceeding similar to a condemnation proceeding, nor
is there now pending any condemnation, expropriation, requisition or similar
proceeding against the Property or any portion thereof. Seller has received no
notice nor has any knowledge that any such proceeding is contemplated.
4.14 Governmental Matters. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing to Buyer and Seller has
received no notices from any such governmental authorities or agencies of
uncured violations at the Property of building, fire, air pollution or zoning
codes, rules, ordinances or regulations, environmental and hazardous substances
laws, or other rules, ordinances or regulations relating to the Property. Seller
shall be responsible for the remittance of all sales tax for periods occurring
prior to the Allocation Date directly to the appropriate state department of
4.15 Repairs. Seller has received no notice of any requirements or
recommendations by any lender, insurance companies, or governmental body or
agencies requiring or recommending any repairs or work to be done on the
Property which have not already been completed.
4.16 Consents and Approvals. Seller has obtained all consents and
permissions necessary to carry out and perform its obligations under this
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4.17 Environmental Matters. Seller represents and warrants as of the
date hereof and as of the Closing that Seller has not, and to Seller's knowledge
except for the matters reflected in the Environmental Assessments, no other
person has, caused any Release, threatened Release, or disposal of any Hazardous
Material at the Property in any material quantity.
4.18 Disclaimer of Certain Warranties. NOTHING IN THIS ARTICLE 4, NOR
ANY OTHER PROVISION OF THIS AGREEMENT, IS INTENDED OR SHALL BE CONSTRUED TO
CONSTITUTE A REPRESENTATION OR WARRANTY BY SELLER WITH RESPECT TO (I) THE FAIR
MARKET VALUE OF THE PROPERTY, OR (II) THE ACCURACY OF ANY PROJECTIONS OR
ESTIMATES OF FUTURE INCOME OR EXPENSES FROM THE OPERATION OF THE PROPERTY.
4.19 Disclaimer of Additional Warranties. BUYER ACKNOWLEDGES THAT THE
CONVEYANCE OF THE PROPERTY IS SPECIFICALLY MADE "AS-IS" AND "WHERE-IS", WITHOUT
ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED (EXCEPT FOR ANY EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND THE EXHIBITS
ATTACHED HERETO AND THE CLOSING DOCUMENTS), INCLUDING, WITHOUT LIMITATION,
IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR
ANY OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE UNIFORM
COMMERCIAL CODE OR OTHERWISE.
BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT
AND THE EXHIBITS ATTACHED HERETO AND IN THE CLOSING DOCUMENTS, NEITHER SELLER
NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
OF, AS TO, CONCERNING, OR WITH RESPECT TO, (i) THE VALUE, NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, (ii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND
USES THAT MAY BE CONDUCTED THEREON, (iii) THE COMPLIANCE OF OR BY THE PROPERTY
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY, (iv) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (v) ANY OTHER MATTER
WITH RESPECT TO THE PROPERTY. BUYER SHALL RELY SOLELY ON ITS OWN INVESTIGATION
OF THE PROPERTY WITH REGARD TO ENVIRONMENTAL MATTERS, THE ASSESSMENT REPORTS,
THE REMEDIAL ACTION PLAN TO BE PREPARED BY DAMES & MOORE, AND THE CLOSING
DOCUMENTS, INCLUDING WITHOUT LIMITATION THE ENVIRONMENTAL ESCROW AGREEMENT.
- - 14 -
4.20 No Untrue Statement. To the best knowledge of Seller, 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 to enter into and perform this Agreement in accordance with its
terms, and the persons executing this Agreement and other Transaction Documents
on behalf of Buyer have been duly authorized to do so.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement and the other Transaction Documents have been duly and validly
authorized by the Board of Directors of Buyer. This Agreement has been duly and
validly executed and delivered by Buyer and (assuming the valid execution and
delivery of this Agreement by Seller) constitutes a legal, valid and binding
agreement of Buyer enforceable against it in accordance with its terms.
5.3 Commissions. Buyer has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Buyer or Seller for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transaction provided herein except R.A.
Beard Co. and Richard A. Beard, III, whose commission shall be paid by Seller;
and Buyer agrees to indemnify Seller from any other such claim arising by,
through or under Buyer.
5.4 Independent Representation. Each party is represented by legal
counsel of its own selection in connection with the negotiation and execution of
this Agreement and the closing of the acquisition of the Property and such legal
counsel is not and has not been directly or indirectly identified, suggested or
selected by the other party. With respect to this Agreement, neither party is in
a significant disparate bargaining position.
- - 15 -
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
7. TITLE MATTERS
(a) Title Insurance and Survey. Seller has provided or caused
to be provided to Buyer the Title Insurance Commitment and the Survey (each of
which are to be updated), and Buyer hereby acknowledges receipt of the same.
Buyer has made comments concerning a previously issued title insurance
commitment (but not the Survey), by letter dated October 27, 1997, which
comments were not resolved by the Title Insurance Commitment, and such comments
are hereby renewed. Buyer will have through the last day of the Inspection
Period to notify Seller in writing of any additional objections, encroachments
or other matters not acceptable to Buyer. Any unresolved objection on which
Buyer commented in its October 27, 1997, letter, or which Buyer hereafter raises
during the Inspection Period shall be deemed an objection. Seller shall notify
Buyer in writing within five (5) days of Buyer's notice if Seller intends to
cure any Title Defect or other objection. If Seller elects to cure, Seller shall
use diligent efforts to cure the Title Defects and/or objections by the Closing
Date (as it may be extended). If Seller elects not to cure or if such Title
Defects and/or objections are not cured, Buyer shall have the right, in lieu of
any other remedies, to: (i) refuse to purchase the Property, terminate this
Agreement and receive a return of the Earnest Money Deposit;
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or (ii) waive such Title Defects and/or objections and close the purchase of the
Property subject to them.
(b) Miscellaneous Title Matters. If a search of the title
discloses judgments, bankruptcies or other returns against other persons having
names the same as or similar to that of Seller, Seller shall on request deliver
to Buyer an affidavit stating, if true, that such judgments, bankruptcies or the
returns are not against Seller. Seller further agrees to execute and deliver to
the Title Insurance agent at Closing such documentation, if any, as the Title
Insurance underwriter shall reasonably require to evidence that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and that there are no mechanics'
liens on the Property or parties in possession of the Property other than
tenants under Leases and Seller.
8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The obligations of
Buyer under this Agreement are subject to satisfaction or waiver by Buyer of
each of the following conditions or requirements on or before the Closing Date:
(a) Seller's warranties and representations under this
Agreement shall be true and correct as of the Closing Date, and Seller shall not
be in default hereunder.
(b) All obligations of Seller contained in this Agreement,
shall have been fully performed in all material respects and Seller shall not be
in default under any covenant, restriction, right-of-way or easement affecting
(c) None of the following tenants leasing space in the
Shopping Center shall have become a Bankrupt Tenant:
Ross Dress for Less Shaner's, Inc.
For purposes of this Agreement, the term "Bankrupt Tenant" shall mean any tenant
(a) that (i) makes a general assignment for the benefit of creditors; (ii) files
a voluntary bankruptcy petition; (iii) becomes the subject of an order for
relief or is declared insolvent in any federal or state bankruptcy or insolvency
proceedings; (iv) files a petition or answer seeking for the tenant a
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law; (v) files an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against the
tenant in a proceeding of the type described in subclauses (i) through (iv) of
this clause (a); or (vi) seeks, consents to or acquiesces in the appointment of
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a trustee, receiver, or liquidator of the tenant or of all or any substantial
part of the tenant's properties; or (b) against which a proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law has been commenced and one hundred twenty (120)
days have expired without dismissal thereof or with respect to which, without
the tenant's consent or acquiescence, a trustee, receiver or liquidator of the
tenant or of all or any substantial part of the tenant's properties has been
appointed and ninety (90) days have expired without the appointment having been
vacated or stayed, or ninety (90) days have expired after the date of expiration
of a stay, if the appointment has not previously been vacated.
(d) A Title Insurance Commitment in the full amount of the
Purchase Price shall have been issued and "marked down" through Closing, subject
only to Permitted Exceptions.
(e) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear
excepted and except for any activities conducted in the preparation or
implementation of the Remedial Action Plan.
(f) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) 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;
(2) Originals, if available, or if not, true copies of
the Leases and of the contracts, agreements, permits and
licenses, and such Materials as may be in the possession
or control of Seller;
(3) A blanket assignment (the "Assignment") to Buyer of
all Leases and the Contracts, together with such permits
and licenses (to the extent assignable) as may affect the
Property, including an indemnity against breach of
such instruments by Seller prior to the Closing Date,
which indemnity shall be reciprocated by Buyer for breaches
occurring from and after the Closing Date;
(4) A bill of sale with respect to the Personal
Property and Materials;
(5) Notices of sale to tenants of the Shopping Center
in form mutually agreeable to Seller and Buyer, duly executed by
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(6) A current rent roll for all Leases in effect showing no changes
from the rent roll attached to this Agreement other than those set
forth in the Leases or approved in writing by Buyer;
(7) All Tenant Estoppel Letters obtained by Seller, which must include
Publix, Walgreens, Ross Dress for Less, Shaner's, Inc., Mae's
Fabrics and eighty percent (80%) of the other tenants who have
signed leases for any portion of the Property, without any material
exceptions, covenants or changes to the form approved by Buyer and
distributed to the tenants by Seller, the substance of which Tenant
Estoppel Letters must confirm the Rent Roll;
(8) A general assignment of all assignable existing warranties relating
to the Property;
(9) A mechanics lien and possessory affidavit, non-foreign affidavit,
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
(10) 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;
(11) Certificates of Seller and its constituent entities as may be
reasonably required by the title insurance company which affect the
authorization of the transactions described herein;
(12) All keys and other means of access to the Improvements in the
possession of Seller or its agents;
(13) The Environmental Escrow Agreement, executed by Seller;
(14) Materials; and
(15) Such other documents as Buyer may reasonably request to effect the
transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this
Section are not satisfied and Buyer elects in writing to terminate this
Agreement, then the Earnest
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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) Notices of sale to tenants of the Shopping Center in form
mutually agreeable to Seller and Buyer, duly executed by
(3) The Environmental Escrow Agreement, executed by Buyer.
(4) An original counterpart of the Assignment, executed by
(5) Such other documents as Seller may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all conditions precedent to Buyer's
obligation to purchase shall have been satisfied but the foregoing provisions of
this Section have not, and Seller elects in writing to terminate this Agreement,
then the Earnest Money Deposit shall be promptly delivered to Seller by Escrow
Agent and, upon the making of such delivery, neither party shall have any
further claim against the other by reasons of this Agreement, except as provided
in Article .
9. 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
- - 20 -
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). The limitation on Seller's remedies contained
in this Section does not apply to (i) defaults or breaches by Buyer in respect
of any obligation or agreement contained herein (or in any other document or
agreement executed in connection with the Closing) that survives Closing, or
(ii) any action taken by Buyer to interfere with the delivery of the Earnest
Money Deposit to Seller if Seller is entitled to the delivery of the Earnest
Money Deposit under this Agreement.
10. INTENTIONALLY OMITTED
11.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement without the prior approval of the other, except
to its attorneys, accountants and other consultants, their lenders and
prospective lenders, or where disclosure is required by law.
11.2 Radon Gas. Radon is a naturally occurring radioactive gas which,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon which
exceed federal and state guidelines have been found in buildings in the state in
which the Property is located. Additional information regarding radon and radon
testing may be obtained from the county public health unit.
11.3 Entire Agreement. This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and may not be modified, amended or
otherwise changed in any manner except by a writing executed by Buyer and
11.4 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement shall be served by personal delivery, certified or overnight
- - 21 -
overnight courier service or facsimile (followed promptly by hard copy) at the
addresses set forth below:
As to Seller: Beneva Shops Associates, Ltd.
c/o Sarofim Realty Advisors Co.
Attention: Jeff C. Spelman
8201 Preston Road, Suite 300
Dallas, Texas 75225
Facsimile: (214) 692-4222
Beneva Shops Associates, Ltd.
c/o R. A. Beard Co.
Attention: Richard A. Beard, III
100 North Tampa Street, Suite 3175
Tampa, Florida 33602
Facsimile: (813) 221-7296
Beneva Shops Associates, Ltd.
c/o Mr. William R. Cooper
10000 N. Central Expressway, Suite 1150
Dallas, Texas 75231
Facsimile: (214) 360-1844
With copies to: Donohoe, Jameson & Carroll, P.C.
Attention: Rebecca Hurley, Esq.
3400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Facsimile: (214) 744-0231
Stutzman & Bromberg, P.C.
Attention: Myron D. Stutzman, Esq.
2323 Bryan Street, Suite 2200
Dallas, Texas 75201
Facsimile: (214) 969-4999
As to Buyer: RRC Acquisitions Two, Inc.
Attention: Robert L. Miller
Suite 200, 121 W. Forsyth St.
Jacksonville, Florida 32202
Facsimile: (904) 354-1832
- - 22 -
With a copy to: Rogers, Towers, Bailey, Jones & Gay
Attention: William E. Scheu, Esq.
1301 Riverplace Blvd., Suite 1500
Jacksonville, Florida 32207
Facsimile: (904) 396-0663
Any notice or demand so served shall constitute proper notice hereunder upon
delivery to the United States Postal Service or to such overnight courier. A
party may change its notice address by notice given in the aforesaid manner.
11.5 Headings. The titles and headings of the various sections hereof
are intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
11.6 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.7 Attorneys' Fees. In the event of any litigation between the
parties hereto to enforce any of the provisions of this Agreement or any right
of either party hereto, the unsuccessful party to such litigation agrees to pay
to the successful party all costs and expenses, including reasonable attorneys'
fees, whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions herein shall include
indemnification for reasonable attorneys' fees and costs, whether or not suit be
brought and including fees and costs on appeal.
11.8 Time of Essence. Time is of the essence of this Agreement.
11.9 Governing Law. This Agreement shall be governed by the laws of the
state in which the Property is located, and the parties hereto agree that any
litigation between the parties hereto relating to this Agreement shall take
place (unless otherwise required by law) in a court located in the county in
which Escrow Agent's principal place of business is located. Each party waives
its right to jurisdiction or venue in any other location.
11.10 Successors and Assigns. The terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
- - 23 -
and their respective successors and assigns. No third parties, including any
brokers or creditors, shall be beneficiaries hereof.
11.11 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
11.12 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
11.13 Further Instruments, Etc. Seller and Buyer shall, at or after
Closing, execute any and all documents and perform any and all acts reasonably
necessary to fully implement this Agreement.
11.14 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.15 No Recording. Neither this Agreement nor any notice, memorandum
or other notice or document relating hereto shall be recorded.
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Audit Representation Letter
(Acquisition Completion Date)
KPMG Peat Marwick LLP
One Independent Drive
Jacksonville, Florida 32202
We are providing this letter in connection with your audit of the
Statement of Revenues and Certain Expenses for the twelve months ended
________________, for the purpose of expressing an opinion as to whether the
financial statement presents fairly, in all material respects, the results of
its operations of __________________ in conformity with generally accepted
Certain representations in this letter are described as being limited
to matters that are material. Items are considered material, regardless of size,
if they involve an omission or misstatement of accounting information that, in
the light of surrounding circumstances, makes it probable that the judgment of a
reasonable person relying on the information would be changed or influenced by
the omission or misstatement.
We confirm, to the best of our knowledge and belief, the following
representations made to you during your audit:
1. The financial statement referred to above is fairly presented
in conformity with generally accepted accounting principles.
2. We have made available to you:
a. All financial records and related data.
b. All agreements or amendments to agreements which
would have a material impact on the Statement of
Revenues and Certain Expenses.
3. There have been no:
a. Instances of fraud involving management or employees
who have significant roles in internal control.
b. Instances of fraud involving others that could have a
material effect on the Statement of Revenue and
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 or as a basis for recording a
4. There are no:
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 Accounting for
Contingencies (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 Revenues and Certain Expenses.
d. Events that have occurred subsequent to
______________ and through the date of this letter
that would require adjustment to or disclosure in the
Statement of Revenues and Certain Expenses.
5. The Company has complied with all aspects of contractual
agreements that would have a material effect on the Statement
of Revenues and Certain Expenses in the event of
6. All related party transactions have been properly recorded or
disclosed in the Statement of Revenues and Certain Expenses.
Further, we acknowledge that we are responsible for the fair
presentation of the Statements of Revenue and Certain Expenses in conformity
with generally accepted accounting principles.
Very truly yours,
Environmental Assessment Reports
1. Phase II Soil and Groundwater Sampling; Malcolm-Pirnie, Inc. (MPI),
2. Site Screening Report; HSA Environmental, Inc., September, 1996
3. Additional Phase II Assessment Report, LFR, April, 1997
4. Revised Site Screening Report; LFR, June, 1997
5. Source Area Delineation Report; LFR, July, 1997
6. Phase II Environmental Property Assessment for Beneva Place Apartments;
Nutting Environmental of Florida, Inc., November, 1997
7. Pilot Test Results - Vacuum-Enhanced Recovery for Interim Remediation
of Tetrachloroethene; LFR, December, 1997
8. Deep Well Installation and Sampling Report (Draft); LFR, February, 1998
9. Contamination Assessment Report; LFR, June, 1998
10. Additional Phase II Assessment Report; LFR, April, 1997
11. Contamination Assessment Report; LFR, June 1, 1998
Environmental Escrow Agreement
Legal Description of Real Property
Form of Estoppel Letter
RRC Acquisitions Two, Inc.
Regency Centers, L.P.
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:
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
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
7. All matters of an inducement nature and all obligations Landlord under the
Lease concerning the construction of the Tenant's premises and
development of the Shopping Center, including without limitation, parking
requirements, have been performed by Landlord.
8. The Lease contains no first right of refusal, option to expand, option
to terminate, or exclusive business rights, except as follows:
9. Tenant knows of no default by either Landlord or Tenant under
the Lease, and knows of no situations which, with notice or
the passage of time, or both, would constitute a default.
Tenant has no rights to off-set or defense against Landlord as
of the date hereof.
10. The undersigned has not entered into any sublease, assignment
or any other agreement transferring any of its interest in the
Lease or the Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or released
any hazardous substances at, on or in the Premises. "Hazardous Substances"
means any flammable, explosive, toxic, carcinogenic, mutagenic, or
corrosive substance or waste, including volatile petroleum products and
derivatives and drycleaning solvents. To the best of Tenant's knowledge,
no asbestos or polychlorinated biphenyl ("PCB") is located at, on or in the
Premises. The term "Hazardous Substances" does not include those materials
which are technically within the definition set forth above but which
are contained in pre-packaged office supplies, cleaning materials or
personal grooming items or other items which are sold for consumer or
commercial use and typically used in other similar buildings or space.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
DOCUMENT REQUEST LIST
Items To Be Provided By Seller (to the extent they are in existence and in
Seller's possession or in the possession of Seller's property manager):
1) Property Specifications (Zoning)
2) As Built Plans & Specs (arch. and engineering)
3) Site Plan (including suite numbers)
4) Legal Description
5) Parking Information - Space count
6) Copy of All Leases (and amendments) & Lease Briefs
7) Certificates of Occupancy - All current tenants
8) Schedule of Security Deposits
9) Most recent Rent Roll (with suite #'s, rent escalations, and
option period info)
10) Sales Reports (most recent 3 Years) for tenants reporting
11) Current Rent Billings (by category, base, CAM, etc.)
12) Current Delinquency Report (with explanations for balances >
13) Tenant Activity Register for all Current Tenants (billings
14) Tenant Estoppels
15) Property Operating Results - Most recent 3 Years
16) Property Capital Expenditures - Most recent 3 Years
17) Audited Financial Statements - 3 Years
18) Real Estate and other tax bills - 3 Years
19) Year to Date Financials & YTD detail general Ledger
20) Existing Service Agreements and Warranties
21) Three years loss history - reported claims
22) Most Recent Year Expense Recovery Reconciliation
23) Breakdown of CAM Pools
24) Proof Sales Tax Payments are Current
25) Seller's Budget for up-coming/current year
26) Utility Bills for last 12 mths/deposits
27) Personal Property Inventory
28) Existing Title Insurance Policy
29) Available Inspection Reports (environmental, roof, structural,
30) Summary of Tenant Contacts (with address and telephone
numbers) With local (incld store#) & national addresses
32) Tax plat map