SECURITIES AND EXCHANGE COMMISSION
UNITED STATES
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 12, 1998
REGENCY REALTY CORPORATION
(Exact name of registrant as specified in its charter)
Florida 1-12298 59-3191743
(State or other jurisdiction Commission (IRS Employer
of incorporation) File Number) Identification No.)
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (904)-356-7000
Not Applicable
(Former name or former address, if changed since last report)
ITEM 5. PENDING ACQUISITION OF ASSETS
Regency Realty Corporation (the "Company") announced on January 12, 1998 that it
had entered into an agreement to acquire the real estate assets of entities
comprising the Midland Group ("Midland") consisting of 21 shopping centers (the
"Midland Properties") plus a development pipeline of 12 shopping centers. Of the
21 centers to be acquired, 20 are anchored by Kroger and King Soopers, a Kroger
subsidiary. Eight of the shopping centers included in the development pipeline
will be owned through a joint venture in which the Company will own less than a
50% interest upon completion of construction.
At closing and during 1998, the Company will pay approximately $230.4 million to
acquire 21 properties and pay transaction costs through the issuance of units of
limited partnership interest valued at $26.58 per unit or cash of $47 million,
the assumption of $92.5 million of debt, and $90.9 million to pay off existing
secured real estate loans. The Company will incur additional costs to establish
reserves, pay severance, and prepay existing assumed loans. Subsequent to 1998,
the Company expects to pay approximately $12.7 million to acquire equity
interests in the development pipeline as the properties reach stabilization. The
Company may also be required to make payments aggregating $10.5 million through
the year 2000 contingent upon increases in net income from existing properties,
the development pipeline, and new properties developed or acquired in accordance
with the contribution agreement.
The factors considered by the Company in determining the price to be paid for
the shopping centers included historical and expected cash flow, nature of the
tenancies and terms of the leases in place, occupancy rates, opportunities for
alternative and new tenancies, current operating costs, physical condition and
location, and the anticipated impact on the Company's financial results. The
Company took into consideration capitalization rates at which it believes other
shopping centers have recently sold, but determined the purchase price on the
factors discussed above. No separate independent appraisals were obtained for
the properties acquired.
Consummation of the acquisition is subject, among other things, to Midland
partner and other third party consents. Amounts shown above for units issued and
cash payments to Midland partners are estimated amounts that are subject to
Midland partner approval.
OTHER EVENTS
The Company, through its wholly-owned subsidiaries (together the "Company")
acquired seven shopping centers (the "Acquisition Properties") during the months
of June through December, 1997. The individual purchase price of these
acquisitions, as provided below, did not individually exceed 10% of the
Company's total assets. The acquisitions were made pursuant to separate purchase
agreements, the sellers of which are unrelated to the Company. All of the
properties currently operate as neighborhood retail shopping centers, and will
continue as such. The purchase price of each shopping center was funded from the
Company's revolving line of credit with Wells Fargo Realty Advisors Funding,
Inc.
OTHER EVENTS (CONTINUED)
The factors considered by the Company in determining the price to be paid for
the shopping centers included historical and expected cash flow, nature of the
tenancies and terms of the leases in place, occupancy rates, opportunities for
alternative and new tenancies, current operating costs, physical condition and
location, and the anticipated impact on the Company's financial results. The
Company took into consideration capitalization rates at which it believes other
shopping centers have recently sold, but determined the purchase price on the
factors discussed above. No separate independent appraisals were obtained for
the Acquisition Properties.
The following summarizes the Acquisition Properties:
Property Purchase Acquisition Occupancy at
Name Price Date GLA City/State Acquisition
Rivermont Station $ 13,448,000 6-30-97 90,323 Atlanta, GA 98.0%
Lovejoy Station $ 7,099,500 6-30-97 77,336 Atlanta, GA 95.0%
Tamiami Trails $ 9,560,300 7-10-97 110,867 Miami, FL 93.0%
Gardens Square $ 9,723,700 9-19-97 90,258 Miami, FL 95.0%
Kingsdale $ 17,575,000 10-10-97 267,177 Columbus, OH 95.6%
Boynton Lks Plaza $ 12,893,500 12-01-97 130,724 Boynton Bch, FL 90.0%
Pinetree Plaza $ 2,534,927 12-23-97 53,866 Jacksonville, FL 95.0%
============= ========
Total $ 72,834,927 820,551
============= ========
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
A. Financial Statements
(a) MIDLAND PROPERTIES
Audited Statement of Revenues and Certain Expenses for the year
ended December 31, 1996.
(b) GARDENS SQUARE
Audited Statement of Revenues and Certain Expenses for the year
ended December 31, 1996.
(c) PINETREE PLAZA
Audited Statement of Revenues and Certain Expenses for the year
ended December 31, 1996.
B. Pro Forma Financial Information
(a) REGENCY REALTY CORPORATION
Pro Forma Consolidated Balance Sheet, September 30, 1997
(unaudited)
Pro Forma Consolidated Statements of Operations for the Nine
Month Period ended September 30, 1997 and the Year ended
December 31, 1996 (unaudited)
C. Exhibits:
10. Material Contracts
* (a) Purchase and Sale Agreement dated May 22, 1997, between RRC
Acquisitions, Inc., a wholly-owned subsidiary of the Company as
purchaser and Cousins Real Estate Corporation as seller relating
to the acquisition of Rivermont Station Shopping Center.
* (b) Purchase and Sale Agreement dated May 22, 1997, between RRC
Acquisitions, Inc., a wholly-owned subsidiary of the Company as
purchaser and Cousins Real Estate Corporation as seller relating
to the acquisition of Lovejoy Station Shopping Center.
** (c) Purchase and Sale Agreement dated May 12, 1997, between RRC
Acquisitions, Inc., a wholly-owned subsidiary of the Company as
purchaser and Quantum Realty Partners, L.P. as seller relating to
the acquisition of Tamiami Trails Shopping Center.
** (d) Purchase and Sale Agreement dated July 9, 1997, between RRC
Acquisitions, Inc., a wholly-owned subsidiary of the Company as
purchaser and Miami Gardens Associates as seller relating to the
acquisition of Gardens Square Shopping Center.
** (e) Purchase and Sale Agreement dated September 19, 1997, between
RRC Acquisitions, Inc., a wholly-owned subsidiary of the Company
as purchaser and TBC Kingsdale, Inc. as seller relating to the
acquisition of Kingsdale Shopping Center.
(f) Purchase and Sale Agreement dated October 1, 1997, between RRC
Acquisitions, Inc., a wholly-owned subsidiary of the Company as
purchaser and Boynton Lakes Plaza Partnership as seller relating
to the acquisition of Boynton Lakes Plaza Shopping Center.
(g) Purchase and Sale Agreement dated October 7, 1997, between RRC
Acquisitions, Inc., a wholly-owned subsidiary of the Company as
purchaser and Meteor Industriebeteiligungsgesellschaft mbH as
seller relating to the acquisition of Pinetree Plaza Shopping
Center.
23. Consent of KPMG Peat Marwick LLP
- -------------------------
* Incorporated by reference to Form 10-Q filed August 11, 1997.
** Incorporated by reference to Form 10-Q filed November 13, 1997.
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
REGENCY REALTY CORPORATION
(registrant)
February 4, 1998 By:/s/ J. Christian Leavitt
----------------------------------
J. Christian Leavitt
Vice President and Treasurer
Independent Auditors' Report
The Board of Directors
Regency Realty Corporation:
We have audited the accompanying statement of revenues and certain expenses of
the Midland Properties for the year ended December 31, 1996. This financial
statement is the responsibility of management. Our responsibility is to express
an opinion on this statement of revenues and certain expenses based on our
audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the statement of revenues and certain expenses is free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the statement of revenues and certain
expenses. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
presentation of the statement of revenues and certain expenses. We believe that
our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues and certain expenses of the Midland
Properties was prepared for the purpose of complying with the rules and
regulations of the Securities and Exchange Commission and for inclusion in a
Form 8-K of Regency Realty Corporation and excludes material amounts, described
in note 1, that would not be comparable to those resulting from the proposed
future operation of the properties. The presentation is not intended to be a
complete presentation of the Midland Properties revenues and expenses.
In our opinion, the statement of revenues and certain expenses referred to above
presents fairly, in all material respects, the revenues and certain expenses,
described in note 1, of the Midland Properties for the year ended December 31,
1996, in conformity with generally accepted accounting principles.
KPMG Peat Marwick LLP
Jacksonville, Florida
November 21, 1997
MIDLAND PROPERTIES
Statement of Revenues and Certain Expenses
For the year ended December 31, 1996
Revenues:
Minimum rent $ 11,997,123
Percentage rent 36,037
Recoveries from tenants 1,884,462
-------------
Total revenues 13,917,622
Operating expenses:
Operating and maintenance 1,174,141
Management fees 408,614
Real estate taxes 1,144,284
General and administrative 92,343
-------------
Total expenses 2,819,382
Revenues in excess of certain expenses $ 11,098,240
=============
See accompanying notes to statement of revenues and certain expenses.
MIDLAND PROPERTIES
Notes to Statement of Revenues and Certain Expenses
For the year ended December 31, 1996
1. Basis of Presentation
The statement of revenues and certain expenses combines the operations of
the following 20 shopping centers (Midland Properties), in which Midland
Development Group, Inc., or one of its affiliated entities, is the general
partner:
Square
Property Name Location Feet
Beckett Commons West Chester, OH 80,434
Bent Tree Plaza Raleigh, NC 79,503
Brookville Plaza Lynchburg, VA 63,664
Cherry Grove Plaza Cincinnati, OH 186,020
Creekside Arlington, TX 85,652
East Point Crossing Columbus, OH 81,320
Evans Crossing Evans, GA 76,580
Franklin Shopping Centers Franklin, KY 205,060
Hamilton Meadows Hamilton, OH 126,251
Lake Pine Plaza Raleigh, NC 76,490
Lake Shores Plaza Detroit, MI 85,478
North Gate Plaza Columbus, OH 85,100
Maynard Crossing Raleigh, NC 121,063
Shoppes at Mason Cincinnati, OH 80,880
St. Ann Square St. Ann, MO 82,498
Statler Square Staunton, VA 132,994
Village Center Southlake, TX 118,172
West Chester Plaza Westchester, OH 88,181
Windmiller Farms Columbus, OH 119,192
Worthington Park Centre Worthington, OH 91,192
This financial statement is prepared on the accrual basis of accounting in
conformity with generally accepted accounting principles.
Subsequent to December 31, 1996, the Midland Properties were acquired by
Regency Realty Corporation (RRC) in a transaction accounted for as a
purchase. All operations of the Midland Properties will be included in the
consolidated financial statements of RRC beginning at the acquisition
date.
MIDLAND PROPERTIES
Notes to Statement of Revenues and Certain Expenses
1. Basis of Presentation, continued
The accompanying financial statement is not representative of the actual
operations for the period presented as certain expenses, which may not be
comparable to the expenses expected to be incurred by RRC in the proposed
future operation of the Midland Properties, have been excluded. RRC is not
aware of any material factors relating to the Midland Properties that
would cause the reported financial information not to be necessarily
indicative of future operating results. Costs not directly related to the
operation of the Midland Properties have been excluded, and consist of
interest, depreciation, professional fees, certain other non operating
expenses.
2. Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
3. Operating Leases
For the year ended December 31, 1996, Kroger Supermarkets, an anchor
tenant in 18 of the 20 shopping centers, paid minimum rent of $6,315,460,
which exceeded 10% of the total minimum rent earned by all the Midland
Properties.
The Midland Properties are leased to tenants under operating leases with
expiration dates extending to the year 2022. Future minimum rent under
noncancelable operating leases as of December 31, 1996, excluding tenant
reimbursements of operating expenses and excluding additional contingent
rentals based on tenants' sales volume, are as follows:
Year ending December 31, Amount
1997 $ 17,564,921
1998 18,422,107
1999 17,620,074
2000 16,369,355
2001 15,652,802
=============
MIDLAND PROPERTIES
Notes to Statement of Revenues and Certain Expenses
4. Related Party Transactions
Midland Development Group, Inc., serves as managing agent for the Midland
Properties and receives a management fee of approximately 4% of minimum
and percentage rent, as adjusted and defined, which amounted to $408,614
for the year ended December 31, 1996.
Independent Auditors' Report
The Board of Directors
Regency Realty Corporation:
We have audited the accompanying statement of revenues and certain expenses of
Gardens Square Shopping Center for the year ended December 31, 1996. This
financial statement is the responsibility of management. Our responsibility is
to express an opinion on this statement of revenues and certain expenses based
on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the statement of revenues and certain expenses is free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the statement of revenues and certain
expenses. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
presentation of the statement of revenues and certain expenses. We believe that
our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues and certain expenses of Gardens Square
Shopping Center was prepared for the purpose of complying with the rules and
regulations of the Securities and Exchange Commission and for inclusion in a
Form 8-K of Regency Realty Corporation and excludes material amounts, described
in note 1, that would not be comparable to those resulting from the proposed
future operation of the property. The presentation is not intended to be a
complete presentation of Gardens Square Shopping Center revenues and expenses.
In our opinion, the statement of revenues and certain expenses referred to above
presents fairly, in all material respects, the revenues and certain expenses,
described in note 1, of Gardens Square Shopping Center for the year ended
December 31, 1996, in conformity with generally accepted accounting principles.
KPMG Peat Marwick LLP
Jacksonville, Florida
January 27, 1998
GARDENS SQUARE SHOPPING CENTER
Statement of Revenues and Certain Expenses
For the year ended December 31, 1996
Revenues:
Minimum rent $ 934,590
Recoveries from tenants 323,245
-------------
Total revenues 1,257,835
Operating expenses:
Operating and maintenance 201,078
Management fees 50,340
Real estate taxes 137,533
General and administrative 18,589
-------------
Total expenses 407,540
Revenues in excess of certain expenses $ 850,295
=============
See accompanying notes to statement of revenues and certain expenses.
GARDENS SQUARE SHOPPING CENTER
Notes to Statement of Revenues and Certain Expenses
For the year ended December 31, 1996
1. Basis of Presentation
The statement of revenues and certain expenses relates to the operation of
a 90,258 square foot shopping center (the "Property") located in Miami,
Florida.
The Property's financial statement is prepared on the accrual basis of
accounting in conformity with generally accepted accounting principles.
Subsequent to December 31, 1996, the Property was acquired by Regency
Realty Corporation (RRC) in a transaction accounted for as a purchase. All
operations of the Property will be included in the consolidated financial
statements of RRC beginning at the acquisition date.
The accompanying financial statement is not representative of the actual
operations for the period presented as certain expenses, which may not be
comparable to the expenses expected to be incurred by RRC in the proposed
future operation of the Property, have been excluded. RRC is not aware of
any material factors relating to the Property that would cause the
reported financial information not to be necessarily indicative of future
operating results. Costs not directly related to the operation of the
Property have been excluded, and consist of interest, depreciation,
professional fees, and various other non operating expenses.
2. Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
GARDENS SQUARE SHOPPING CENTER
Notes to Statement of Revenues and Certain Expenses
3. Operating Leases
For the year ended December 31, 1996, the following tenants paid minimum
rent which exceeded 10% of the total minimum rent earned by the Property:
Minimum
Tenant Rent Paid
Publix Supermarkets $ 263,200
Eckerd Drugs 104,544
The Property is leased to tenants under operating leases with expiration
dates extending to the year 2011. Future minimum rent under noncancelable
operating leases as of December 31, 1996, excluding tenant reimbursements
of operating expenses and excluding additional contingent rentals based on
tenants' sales volume, are as follows:
Year ending December 31, Amount
1997 $ 984,141
1998 926,382
1999 825,996
2000 794,885
2001 594,413
=========
Independent Auditors' Report
The Board of Directors
Regency Realty Corporation:
We have audited the accompanying statement of revenues and certain expenses of
Pinetree Plaza for the year ended December 31, 1996. This financial statement is
the responsibility of management. Our responsibility is to express an opinion on
this statement of revenues and certain expenses based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the statement of revenues and certain expenses is free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the statement of revenues and certain
expenses. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
presentation of the statement of revenues and certain expenses. We believe that
our audit provides a reasonable basis for our opinion.
The accompanying statement of revenues and certain expenses of Pinetree Plaza
was prepared for the purpose of complying with the rules and regulations of the
Securities and Exchange Commission and for inclusion in a Form 8-K of Regency
Realty Corporation and excludes material amounts, described in note 1, that
would not be comparable to those resulting from the proposed future operation of
the property. The presentation is not intended to be a complete presentation of
Pinetree Plaza revenues and expenses.
In our opinion, the statement of revenues and certain expenses referred to above
presents fairly, in all material respects, the revenues and certain expenses,
described in note 1, of Pinetree Plaza for the year ended December 31, 1996, in
conformity with generally accepted accounting principles.
KPMG Peat Marwick LLP
Jacksonville, Florida
January 27, 1998
PINETREE PLAZA
Statement of Revenues and Certain Expenses
For the year ended December 31, 1996
Revenues:
Minimum rent $ 284,892
Recoveries from tenants 51,775
-------------
Total revenues 336,667
Operating expenses:
Operating and maintenance 51,834
Management fees 16,532
Real estate taxes 37,625
General and administrative 4,817
-------------
Total expenses 110,808
Revenues in excess of certain expenses $ 225,859
=============
See accompanying notes to statement of revenues and certain expenses.
PINETREE PLAZA
Notes to Statement of Revenues and Certain Expenses
For the year ended December 31, 1996
1. Basis of Presentation
The statement of revenues and certain expenses relates to the operation of
a 56,566 square foot shopping center (the "Property") located in Orange
Park, Florida.
The financial statement is prepared on the accrual basis of accounting in
conformity with generally accepted accounting principles.
Subsequent to December 31, 1996, the Property was acquired by Regency
Realty Corporation (RRC) in a transaction accounted for as a purchase. All
operations of the Property will be included in the consolidated financial
statements of RRC beginning at the acquisition date.
The accompanying financial statement is not representative of the actual
operations for the period presented as certain expenses, which may not be
comparable to the expenses expected to be incurred by RRC in the proposed
future operation of the Property, have been excluded. RRC is not aware of
any material factors relating to the Property that would cause the
reported financial information not to be necessarily indicative of future
operating results. Costs not directly related to the operation of the
Property have been excluded, and consist of interest, depreciation,
professional fees, and certain other non operating expenses.
2. Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
PINETREE PLAZA
Notes to Statement of Revenues and Certain Expenses
3. Operating Leases
For the year ended December 31, 1996, the following tenants paid minimum
rent which exceeded 10% of the total minimum rent earned by the Property:
Minimum
Tenant Rent Paid
Winn Dixie Stores, Inc. $ 120,405
Revco/Piece Goods Shops, Co. 42,330
Windsurfing Orange Park, Inc. 47,253
The Property is leased to tenants under operating leases with expiration
dates extending to the year 2006 and including a new anchor tenant lease
signed during 1997 with Publix Supermarkets which begins in 1999. Future
minimum rent under noncancelable operating leases as of December 31, 1996,
excluding tenant reimbursements of operating expenses and excluding
additional contingent rentals based on tenants' sales volume, are as
follows:
Year ending December 31, Amount
1997 $ 295,760
1998 157,812
1999 420,936
2000 393,064
2001 396,954
=========
Regency Realty Corporation
Pro Forma Condensed Consolidated Balance Sheet
September 30, 1997
(Unaudited)
(In thousands)
The following unaudited pro forma condensed consolidated balance sheet is based
upon the historical consolidated balance sheet of the Company as of September
30, 1997 as if the Company had acquired Midland and the Acquisition Properties
as of that date. The following pro forma condensed consolidated balance sheet
should be read in conjunction with the Company's annual report filed on Form
10-K for the year ended December 31, 1996, Form 10-Q for the period ended
September 30, 1997, and the pro forma consolidated statement of operations of
the Company and notes thereto included elsewhere herein.
The unaudited pro forma condensed consolidated balance sheet is not necessarily
indicative of what the actual financial position of the Company would have been
at September 30, 1997, nor does it purport to represent the future financial
position of the Company.
Regency Regency
Realty Realty
Corporation Midland Acquisition Corporation
Historical Properties Properties Pro Forma
Assets (a)
Real estate rental property, at cost $ 772,496 $ 230,400 33,004 (b) 1,035,900
Less: accumulated depreciation 37,130 - - 37,130
---------- ---------- ---------- ------------
Real estate rental property, net 735,366 230,400 33,004 998,770
---------- ---------- ---------- ------------
Construction in progress 16,211 - - 16,211
Investments in unconsolidated real estate partnerships 1,005 - - 1,005
---------- ---------- ---------- ------------
Total investments in real estate, net 752,582 230,400 33,004 1,015,986
---------- ---------- ---------- ------------
Cash and cash equivalents 14,031 - - 14,031
Accounts receivable and other assets 12,036 - - 12,036
---------- ---------- ---------- ------------
$ 778,649 $ 230,400 33,004 1,042,053
========== ========== ========== ============
Liabilities and Stockholders' Equity
Mortgage and other loans $ 236,277 $ 92,500 - 328,777
Acquisition and development line of credit 3,831 137,900 33,004 (b) 174,735
---------- ---------- ---------- ------------
Total Notes Payable 240,108 230,400 33,004 503,512
Tenant security and escrow deposits 2,226 - - 2,226
Accounts payable & other liabilities 16,002 - - 16,002
---------- ---------- ---------- ------------
Total Liabilities 258,336 230,400 33,004 521,740
---------- ---------- ---------- ------------
Minority interests in consolidated partnerships 8,504 - - 8,504
Redeemable partnership units 13,753 - - 13,753
---------- ---------- ---------- ------------
22,257 - - 22,257
---------- ---------- ---------- ------------
Stockholders' Equity
Common stock and additional paid in capital 519,540 - - 519,540
Distributions in excess of net income (21,484) - - (21,484)
---------- ---------- ---------- ------------
Total Stockholders' Equity 498,056 - - 498,056
---------- ---------- ---------- ------------
$ 778,649 $ 230,400 33,004 1,042,053
========== ========== ========== ============
See accompanying notes to pro forma condensed consolidated balance sheet.
Regency Realty Corporation
Notes to Pro Forma Condensed Consolidated Balance Sheet
September 30, 1997
(Unaudited)
(In thousands)
(a) At closing and during 1998, the Company will pay approximately
$230.4 million to acquire 21 properties and pay transaction costs
through the issuance of units of limited partnership interest valued
at $26.58 per unit or cash of $47 million, the assumption of $92.5
million of debt, and $90.9 million to pay off existing secured real
estate loans. Subsequent to 1998, the Company expects to pay
approximately $12.7 million to acquire equity interests in the
development pipeline as the properties reach stabilization. The
Company may also be required to make payments aggregating $10.5
million through the year 2000 contingent upon increases in net
income from existing properties, the development pipeline, and new
properties developed or acquired in accordance with the contribution
agreement.
(b) Represents the aggregate purchase price for Kingsdale Shopping
Center, Boynton Lakes Plaza and Pinetree Plaza. The other Acquisition
Properties (Rivermont Station, Lovejoy Station, Tamiami Trails, and
Gardens Square) were acquired prior to September 30, 1997 and are
therefore included in the Company's September 30, 1997 balance sheet.
Purchase
Price
--------------
Kingsdale Shopping Ctr 17,575
Boynton Lakes Plaza 12,894
Pinetree Plaza 2,535
--------------
$ 33,004
==============
Regency Realty Corporation
Pro Forma Consolidated Statements of Operations
For the Nine Month Period ended
September 30, 1997 and the Year
ended December 31, 1996
(Unaudited)
(In thousands, except share and per share data)
The following unaudited pro forma consolidated statements of operations are
based upon the historical consolidated statements of operations for the nine
month period ended September 30, 1997 and the year ended December 31, 1996 and
are presented as if the Company had acquired Midland and the Acquisition
Properties as of January 1, 1996. Previously Reported Acquisitions represent
operating properties which the Company has acquired and reported on in two Form
8-K/A's dated June 6, 1997 and March 7, 1997. These pro forma consolidated
statements of operations should be read in conjunction with the Company's 1996
Form 10-K, and the Statement of Revenues and Certain Expenses of Midland
Properties, Garden Square and Pinetree Plaza and notes thereto included
elsewhere herein.
The unaudited pro forma consolidated statements of operations are not
necessarily indicative of what the actual results of the Company would have
been assuming the transactions had been completed as set forth above, nor does
it purport to represent the Company's results of operations in future periods.
For the Nine Month Period Ended September 30, 1997:
Regency Regency
Realty Previously Realty
Corporation Reported Midland Acquisition Pro Forma Corporation
Historical Acquisitions Properties Properties Adjustments Pro Forma
Real estate operating revenues: (a) (b) (c)
Minimum rent $ 49,925 6,659 13,093 4,898 - 74,575
Percentage rent 1,612 302 27 - - 1,941
Recoveries from tenants 11,303 1,344 1,875 1,324 - 15,846
Other recoveries and income - - 100 - - 100
Equity income of unconsolidated
partnerships 20 - - - - 20
----------- ----------- ---------- ---------- ---------- ------------
62,860 8,305 15,095 6,222 - 92,482
----------- ----------- ---------- ---------- ---------- ------------
Real estate operating expenses:
Operating and maintenance 9,967 1,142 969 1,310 - 13,388
Real estate taxes 6,049 844 1,517 758 - 9,168
----------- ----------- ---------- ---------- ---------- ------------
16,016 1,986 2,486 2,068 - 22,556
----------- ----------- ---------- ---------- ---------- ------------
Net Property Revenues 46,844 6,319 12,609 4,154 - 69,926
Third party revenues:
Leasing, brokerage and
development fees 4,804 735 - - - 5,539
Property management fees 1,484 325 - - - 1,809
----------- ----------- ---------- ---------- ---------- ------------
6,288 1,060 - - - 7,348
----------- ----------- ---------- ---------- ---------- ------------
Other expense (income):
General and administrative 7,761 683 622 - - 9,066
Depreciation & amortization 11,502 2,029 - - 3,300 (d) 16,831
Interest expense 14,749 5,035 - - 14,371 (e) 34,155
Interest income (729) (33) - - - (762)
----------- ----------- ---------- ---------- ---------- ------------
33,283 7,714 622 - 17,670 59,290
----------- ----------- ---------- ---------- ---------- ------------
Net income 19,849 (335) 11,987 4,154 (17,670) 17,984
Minority interest in consolidated
property partnerships (2,342) 1,010 - - - (1,332)
----------- ----------- ---------- ---------- ---------- ------------
Net income for common stockholders $ 17,507 675 11,987 4,154 (17,670) 16,652
=========== =========== ========== ========== ========== ============
Earnings per share (note (f)):
Primary $ 0.97 $ 0.90
=========== ============
Fully Diluted $ 0.97 $ 0.84
=========== ============
Regency Realty Corporation
Pro Forma Consolidated Statements of Operations
For the Nine Month Period ended
September 30, 1997 and the Year
ended December 31, 1996
(Unaudited)
(In thousands, except share and per share data)
For the Year Ended December 31, 1996:
Regency Regency
Realty Previously Realty
Corporation Reported Midland Acquisition Pro Forma Corporation
Historical Acquisitions Properties Properties Adjustments Pro Forma
Real estate operating revenues: (a) (b) (c)
Minimum rent $ 34,706 25,564 11,997 7,088 - 79,355
Percentage rent 998 496 36 - - 1,530
Recoveries from tenants 7,729 4,994 1,884 1,879 - 16,486
Other recoveries and income - 321 - - - 321
Equity income of unconsolidated
partnerships 70 - - - - 70
----------- ----------- ---------- ----------- ----------- ------------
43,503 31,375 13,917 8,967 - 97,762
----------- ----------- ---------- ----------- ----------- ------------
Real estate operating expenses:
Operating and maintenance 7,656 9,329 1,174 1,822 - 19,981
Real estate taxes 4,409 2,875 1,144 1,032 - 9,460
----------- ----------- ---------- ----------- ----------- ------------
12,065 12,204 2,318 2,854 - 29,441
----------- ----------- ---------- ----------- ----------- ------------
Net Property Revenues 31,438 19,171 11,599 6,113 - 68,321
Third party revenues:
Leasing, brokerage and
development fees 2,852 3,576 - - - 6,428
Property management fees 592 879 - - - 1,471
----------- ----------- ---------- ----------- ----------- ------------
3,444 4,455 - - - 7,899
----------- ----------- ---------- ----------- ----------- ------------
Other expense (income):
General and administrative 6,048 2,547 501 - - 9,096
Depreciation & amortization 8,758 7,255 - - 3,891 (d) 19,904
Branch formation expenses - 108 - - - 108
Interest expense 10,777 12,259 - - 13,176 (e) 36,212
Interest income (666) - - - - (666)
----------- ----------- ---------- ----------- ----------- ------------
24,917 22,169 501 - 17,067 64,654
----------- ----------- ---------- ----------- ----------- ------------
Net income 9,965 1,457 11,098 6,113 (17,067) 11,566
Minority interest in consolidated
property partnerships - (696) - - - (696)
Preferred stock dividends (58) - - - - (58)
----------- ----------- ---------- ----------- ----------- ------------
Net income for common stockholders $ 9,907 761 11,098 6,113 (17,067) $ 10,812
=========== =========== ========== =========== =========== ============
Earnings per share (note (f)):
Primary $ 0.96 $ 0.75
=========== ============
Fully Diluted $ 0.96 $ 0.73
=========== ============
See accompanying notes to pro forma consolidated statements of operations.
Regency Realty Corporation
Notes to Pro Forma Consolidated Statements of Operations
For the Nine Month Period ended
September 30, 1997 and the Year
ended December 31, 1996
(Unaudited)
(In thousands, except share and per share data)
(a) Reflects revenues and certain expenses for the Previously Reported
Acquisitions for the period from January 1, 1997 to the respective
acquisition date of the property, and for the year ended December 31,1996,
as reported in Form 8-K/A dated June 6, 1997.
(b) Reflects revenues and certain expenses for the Midland Properties for the
nine month period ended September 30, 1997 and the year ended December
31, 1996.
(c) Reflects revenues and certain expenses of the Acquisition Properties for
the period from January 1, 1997 to the respective acquisition date of the
property and for the year ended December 31, 1996.
For the period from January 1, 1997 to the Acquisition Date
Property Acquisition Minimum Percentage Recoveries Operating & Real
Name Date Rent Rent from Tenants Maintenance Estate Taxes
---- ----------- ------------- ------------- ------------- -------------- -------------
Rivermont Station 6/30/97 $ 642 - 124 98 56
Lovejoy Station 6/30/97 306 - 64 45 29
Tamiami Trails 7/10/97 508 - 163 154 66
Gardens Square 9/19/97 671 - 232 194 99
Kingsdale Shopping Ctr 10/10/97 1,334 - 300 400 221
Boynton Lakes Plaza 12/1/97 1,159 - 391 347 250
Pinetree Plaza 12/23/97 279 - 51 72 37
------------- ------------- ------------- -------------- -------------
$ 4,898 - 1,324 1,310 758
============= ============= ============= ============== =============
For the year ended December 31, 1996
Property Minimum Percentage Recoveries Operating & Real
Name Rent Rent from Tenants Maintenance Estate Taxes
---- ------------- ------------- ------------- -------------- -------------
Rivermont Station $ 1,294 - 251 199 112
Lovejoy Station 617 - 128 91 59
Tamiami Trails 970 - 311 294 127
Gardens Square 935 - 323 270 138
Kingsdale Shopping Ctr 1,720 - 387 516 285
Boynton Lakes Plaza 1,267 - 427 379 273
Pinetree Plaza 285 - 52 73 38
------------- ------------- ------------- -------------- -------------
$ 7,088 - 1,879 1,822 1,032
============= ============= ============= ============== =============
(d) Depreciation expense is based upon the costs allocated to the buildings
acquired estimating the useful life. For properties under construction,
depreciation expense is calculated from the date the property is placed in
service through the end of the period. In addition, the nine month period
ended September 30, 1997 calculation reflects depreciation expense on the
Acquisition Properties from January 1, 1997 to the respective acquisition
date of the property.
For the year ended December 31, 1996
Property Building and Year Building Annual
Name Improvements Built/Renovated Useful Life Depreciation
---- ------------- --------------- ----------- -------------
Rivermont Station 9,548 1996 39 $ 245
Lovejoy Station 5,560 1995 38 146
Tamiami Trails 7,598 1987 30 253
Garden Square 7,151 1991 34 210
Kingsdale Shopping Center 10,023 1959 27 371
Boynton Lakes Plaza 9,618 1993 36 267
Pinetree Plaza 3,057 1982 25 122
Midland Properties 180,435 Ranging from Ranging from 2,275
1986 to 1996 29 to 40
---------
Pro forma depreciation expense for the year ended December 31, 1996 $ 3,891
=========
Pro forma depreciation expense for the nine month period
ended September 30, 1997 $ 3,300
=========
(e) To reflect interest expense on the acquisition and development line of
credit required to make the property acquisitions at the average interest
rate afforded the Company (7.4%) and the assumption of $92,500 of debt at
existing rates averaging 8.2%. For properties under construction, interest
expense is calculated from the date the property is placed in service
through the end of the period.
Pro forma interest expense for the year
ended December 31, 1996 $ 13,176
===========
Pro forma interest expense for the nine month period
ended September 30, 1997 $ 14,371
===========
(f) Earnings per share
December 31, September 30,
1996 1997
------------- -------------
Primary Common Shares and Per Share Calculation:
Total Primary Shares 15,380 19,956
Income from continuing operations for common stockholders 10,812 16,652
Minority Interest in RRLP 696 1,332
------------- -------------
Income for Primary Shareholders 11,508 17,984
------------- -------------
Primary earnings per share 0.75 0.90
============= =============
Fully Diluted Common Shares and Per Share Calculation:
Contingent Units as reported on in Form 8-K/A dated June 6, 1997. 1,020 1,020
------------- -------------
Total Fully Diluted Shares 16,400 20,976
------------- -------------
Required increase in income from real estate operations necessary
to earn contingent shares, less applicable depreciation on
increased purchase price. 439 (262)
Income from continuing operations before extraordinary item for
common stockholders for computation of fully diluted
------------- -------------
earnings per share 11,947 17,722
------------- -------------
Fully diluted earnings per share 0.73 0.84
============= =============
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of the 1st day of October, 1997, between
BOYNTON LAKES PLAZA PARTNERSHIP, a Florida general partnership ("Seller"), and
RRC ACQUISITIONS, INC., a Florida corporation, its designees, successors and
assigns ("Buyer").
Background
Buyer wishes to purchase a shopping center in the City of Boynton
Beach, County of Palm Beach, State of Florida, owned by Seller, known as Boynton
Lakes Plaza (the "Shopping Center");
Seller wishes to sell the Shopping Center to Buyer;
In consideration of the mutual agreements herein, and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller
agrees to sell and Buyer agrees to purchase the Property (as hereinafter
defined) on the following terms and conditions:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Agreement means this instrument as it may be amended from time to
time.
1.2 Allocation Date means the close of business on the day immediately
prior to the Closing Date.
1.3 Audit Representation Letter means the form of Audit Representation
Letter attached hereto as Exhibit .
1.4 Buyer means the party identified as Buyer on the initial page
hereof.
1.5 Closing means generally the execution and delivery of those
documents and funds necessary to effect the sale of the Property by Seller to
Buyer.
1.6 Closing Date means the date on which the Closing occurs.
1.7 Contracts means all service contracts, agreements or other
instruments to be assigned by Seller to Buyer at Closing.
1.8 Day means a calendar day, whether or not the term is capitalized.
1.9 Earnest Money Deposit means the deposit delivered by Buyer to
Escrow Agent prior to the Closing under Section of this Agreement, together with
the earnings thereon, if any.
1.10 Environmental Claim means any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Material or actual or alleged Hazardous Material Activity, (c) from
any abatement, removal, remedial, corrective, or other response action in
connection with a Hazardous Material, Environmental Law or other order of a
governmental authority or (d) from any actual or alleged damage, injury, threat,
or harm to health, safety, natural resources, or the environment.
1.11 Environmental Law means any current legal requirement in effect at
the Closing Date pertaining to (a) the protection of health, safety, and the
indoor or outdoor environment, (b) the conservation, management, protection or
use of natural resources and wildlife, (c) the protection or use of source water
and groundwater, (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation or handling of, or exposure to, any
Hazardous Material or (e) pollution (including any Release to air, land, surface
water, and groundwater); and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 USC ss.ss.9601 et
seq., Solid Waste Disposal Act, as amended by the Resource Conservation Act of
1976 and Hazardous and Solid Waste Amendments of 1984, 42 USC ss.ss.6901 et
seq., Federal Water Pollution Control Act, as amended by the Clean Water Act of
1977, 33 USC ss.ss.1251 et seq., Clean Air Act of 1966, as amended, 42 USC
ss.ss.7401 et seq., Toxic Substances Control Act of 1976, 15 USC ss.ss.2601 et
seq., Hazardous Materials Transportation Act, 49 USC App. ss.ss.1801,
Occupational Safety and Health Act of 1970, as amended, 29 USC ss.ss.651 et
seq., Oil Pollution Act of 1990, 33 USC ss.ss.2701 et seq., Emergency Planning
and Community Right-to-Know Act of 1986, 42 USC App. ss.ss.11001 et seq.,
National Environmental Policy Act of 1969, 42 USC ss.ss.4321 et seq., Safe
Drinking Water Act of 1974, as amended by 42 USC ss.ss.300(f) et seq., and any
similar, implementing or successor law, any amendment, rule, regulation, order
or directive, issued thereunder.
1.12 Escrow Agent means Rogers, Towers, Bailey, Jones & Gay, Attorneys,
whose address is 1301 Riverplace Blvd., Suite 1500, Jacksonville, Florida 32207
(Fax 904/396-0663), or any successor Escrow Agent.
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1.13 Governmental Approval means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
1.14 Hazardous Material means any petroleum, petroleum product,
drycleaning solvent or chemical, biological or medical waste, "sharps" or any
other hazardous or toxic substance as defined in or regulated by any
Environmental Law in effect at the pertinent date or dates.
1.15 Hazardous Material Activity means any activity, event, or
occurrence at or prior to the Closing Date involving a Hazardous Material,
including, without limitation, the manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation, handling or corrective or response
action to any Hazardous Material.
1.16 Improvements means any buildings, structures or other improvements
situated on the Real Property.
1.17 Inspection Period means the period of time which expires at the
end of business on the thirtieth (30th) day after the date of execution by the
last of Buyer or Seller to execute this Agreement and transmit a copy of the
fully executed Agreement to the other. If such expiration date is a weekend or
national holiday, the Inspection Period shall expire at the end of business on
the next immediately succeeding business day.
1.18 Leases means all leases and other occupancy agreements permitting
persons to lease or occupy all or a portion of the Property.
1.19 Materials means all plans, drawings, specifications, soil test
reports, environmental reports, market studies, surveys, and similar
documentation, if any, owned by or in the possession of Seller with respect to
the Property, Improvements and any proposed improvements to the Property, which
Seller may lawfully transfer to Buyer except that, as to financial and other
records, Materials shall include only photostatic copies.
1.20 Permitted Exceptions means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem taxes not payable on or before Closing;
(b) Rights of tenants under Leases; and
(c) Other matters determined by Buyer to be acceptable.
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1.21 Personal Property means all (a) sprinkler, plumbing, heating,
air-conditioning, electric power or lighting, incinerating, ventilating and
cooling systems, with each of their respective appurtenant furnaces, boilers,
engines, motors, dynamos, radiators, pipes, wiring and other apparatus,
equipment and fixtures, elevators, partitions, fire prevention and extinguishing
systems located in or on the Improvements, (b) all Materials, and (c) all other
personal property used in connection with the Improvements, provided the same
are now owned or are acquired by Seller prior to the Closing.
1.22 Property means collectively the Real Property, the Improvements
and the Personal Property.
1.23 Prorated means the allocation of items of expense or income
between Buyer and Seller based upon that percentage of the time period as to
which such item of expense or income relates which has expired as of the date at
which the proration is to be made.
1.24 Purchase Price means the consideration agreed to be paid by Buyer
to Seller for the purchase of the Property as set forth in Section (subject to
adjustments as provided herein).
1.25 Real Property means the lands more particularly described on
Exhibit , together with all easements, licenses, privileges, rights of way and
other appurtenances pertaining to or accruing to the benefit of such lands.
1.26 Release means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing into
the indoor or outdoor environment, including, without limitation, the
abandonment or discarding of barrels, drums, containers, tanks, and other
receptacles containing or previously containing any Hazardous Material at or
prior to the Closing Date.
1.27 Rent Roll means the list of Leases attached hereto as Exhibit ,
identifying with particularity the space leased by each tenant, the term
(including extension options), square footage and applicable rent, common area
maintenance, tax and other reimbursements, security deposits and similar data.
1.28 Seller means the party identified as Seller on the initial page
hereof.
1.29 Seller Financial Statements means the unaudited balance sheets and
statements of income, cash flows and changes in financial positions prepared by
Seller for the Property, as of and for the two (2) calendar years next preceding
the date of this Agreement and all monthly reports of income, expense and cash
flow prepared by
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Seller for the Property, which shall be consistent with past practice, for any
period beginning after the latest of such calendar years, and ending prior to
Closing.
1.30 Shopping Center means the Shopping Center identified on the
initial page hereof.
1.31 Survey means a map of a stake survey of the Real Property which
shall comply with Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, jointly established and adopted by ALTA and ACSM in 1992, and includes
items 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 of Table "A" thereof, which meets the
accuracy standards (as adopted by ALTA and ACSM and in effect on the date of the
Survey) of an urban survey, which is dated not earlier than thirty (30) days
prior to the Closing, and which is certified to Buyer, Seller, the Title
Insurance company providing Title Insurance to Buyer, and Buyer's lender, and
dated as of the date the Survey was made.
1.32 Tenant Estoppel Letter means a letter or other certificate from a
tenant certifying as to certain matters regarding such tenant's Lease, in
substantially the same form as attached hereto as Exhibit , or in the case of
national or regional "credit" tenants identified as such on the Rent Roll, the
form customarily used by such tenant provided the information disclosed is
acceptable to Buyer.
1.33 Title Defect means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.34 Title Insurance means an ALTA Form B Owners Policy of Title
Insurance for the full Purchase Price insuring marketable title in Buyer in fee
simple, subject only to the Permitted Exceptions, issued by a title insurer
acceptable to Buyer.
1.35 Title Insurance Commitment means a binder whereby the title
insurer agrees to issue the Title Insurance to Buyer.
1.36 Transaction Documents means this Agreement, the deed conveying the
Property, the assignment of leases, the bill of sale conveying the Personal
Property and all other documents required or appropriate in connection with the
transactions contemplated hereby.
2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price; Payment.
(a) Purchase Price and Terms. The total Purchase Price for the
Property (subject to adjustment as provided herein) shall be $13,000,000. The
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Purchase Price shall be payable in cash or certified funds, cashier's check or
by wire transfer of good and immediately available funds at Closing.
(b) Adjustments to the Purchase Price. The Purchase Price
shall be adjusted as of the Closing Date by:
(1) prorating the Closing year's real and tangible personal
property taxes as of the Allocation Date (if the amount of the current year's
property taxes are not available, such taxes will be prorated based upon the
prior year's assessment) provided, however, special taxes or assessments, if
any, upon the Property assessed or becoming a lien prior to the date hereof (but
only a pro-rata share of the then current installment of such special taxes or
assessments, if any), shall be charged as a credit against the Purchase Price),
Buyer agreeing to assume all liability for future installments and deferred
payments. Seller has no knowledge of any outstanding special taxes or
assessments as of the date hereof;
(2) prorating as of the Allocation Date cash receipts and
expenditures for the Shopping Center; and
(3) subtracting the amount of security deposits, prepaid rents
from tenants under the Leases, and credit balances, if any, of any tenants. Any
rents, percentage rents or tenant reimbursements payable by tenants after the
Allocation Date but applicable to periods on or prior to the Allocation Date
shall be remitted to Seller by Buyer within thirty (30) days after receipt
thereof, less all reasonable costs incurred by Buyer in connection with such
collection. If, as of Closing, any tenants under the Leases have failed to pay
any amounts due and payable thereunder prior to the Closing (the "Delinquent
Amounts"), then (i) Buyer shall use reasonable efforts to collect the Delinquent
Amounts, by billing such tenants monthly for a period not exceeding ninety (90)
days, but Buyer shall not be required to terminate any lease, evict any tenant
or institute or threaten litigation with respect to any delinquency; and (ii)
Buyer shall pay to Seller all Delinquent Amounts actually received by Buyer
within thirty (30) days after receipt thereof, less all reasonable costs
incurred by Buyer in connection with such collection. Buyer will not interfere
in Seller's efforts to collect sums due it prior to the Closing. Seller will
remit to Buyer promptly after receipt any rents, percentage rents or tenant
reimbursements received by Seller after Closing which are attributable to
periods occurring after the Allocation Date. Undesignated receipts after Closing
of either Buyer or Seller from tenants in the Shopping Center shall be applied
first to then current rents and reimbursements for such tenant(s), then to
delinquent rents and reimbursements attributable to post-Allocation Date
periods, and then to pre-Allocation Date periods.
2.2 Earnest Money Deposit. An initial Earnest Money Deposit in the amount
of $25,000 shall be delivered to Escrow Agent within three (3) days after the
date of
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execution by the last of Buyer or Seller to execute and transmit a copy of this
Agreement to the other. An additional Earnest Money Deposit in the amount of
$100,000 shall be delivered by Buyer to Escrow Agent on or before the expiration
of the Inspection Period, provided that Buyer has not terminated this Agreement
in accordance with Section (the initial Earnest Money Deposit and the additional
Earnest Money Deposit, together with accrued interest thereon, being at times
hereinafter collectively referred to and held as the "Earnest Money Deposit").
This Agreement may be terminated by Seller if the initial Earnest Money Deposit
or the additional Earnest Money Deposit is not received by Escrow Agent by the
respective deadline therefor. The Earnest Money Deposit paid by Buyer shall be
deposited by Escrow Agent in an interest bearing account at First Union National
Bank, and shall be held and disbursed by Escrow Agent as specifically provided
in this Agreement. The Earnest Money Deposit, and all interest and income
thereon, shall be applied to the Purchase Price at the Closing.
2.3 Closing Costs.
(a) Seller shall pay:
(1) One-half of the cost of documentary stamp and other transfer
taxes imposed upon the transactions contemplated hereby;
(2) Cost of satisfying any liens (other than any arising out of any
acts or omissions of Buyer) on the Property;
(3) Cost of title insurance and the costs, if any, of curing title
defects and recording any curative title documents to the extent Seller elects
to cure any such defects;
(4) The broker's commission payable to Eckstein Rothenberg
Corporation; and
(5) Except as otherwise provided in this Agreement, Seller's
attorneys' fees relating to the sale of the Property.
(b) Buyer shall pay:
(1) One-half of the cost of documentary stamp and other transfer
taxes imposed upon the transactions contemplated hereby;
(2) Cost of Buyer's due diligence inspection;
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(3) Costs of the Phase 1 environmental site assessment to be
obtained by Buyer;
(4) Cost of the Survey;
(5) Cost of recording the deed; and
(6) Except as otherwise provided in this Agreement, Buyer's
attorneys' fees.
3. INSPECTION PERIOD AND CLOSING
3.1 Inspection Period.
(a) Buyer agrees that it will have the Inspection Period to
physically inspect the Property, review the economic data, underwrite the
tenants and review their Leases, and to otherwise conduct its due diligence
review of the Property and all books, records and accounts of Seller related
thereto. Buyer hereby agrees to indemnify and hold Seller harmless from any
damages, liabilities or claims for property damage or personal injury arising
out of such inspection and investigation by Buyer or its agents or independent
contractors. By written notice delivered to Seller on or before the expiration
of the Inspection Period, Buyer, in its sole discretion and for any reason or no
reason, shall elect either (i) not to go forward with this Agreement to closing,
in which event the initial Earnest Money Deposit shall be returned to Buyer,
this Agreement shall lapse and terminate, and neither party shall have any
further rights, duties, obligations or liabilities hereunder except those that
are intended to survive any termination hereof, or (ii) to go forward with this
Agreement to closing, in which event Buyer shall deliver the additional Earnest
Money Deposit to Escrow Agent simultaneously with the delivery of Buyer's notice
to Seller. If no notice is timely given or if the additional Earnest Money
Deposit is not timely made, Buyer shall be deemed to have elected alternative
(i).
(b) Provided the same does not unreasonably interfere with the
business operations of the Property, Buyer, through its officers, employees and
other authorized representatives, shall have the right to reasonable access to
the Property and all records of Seller related thereto, including without
limitation all Leases and Seller Financial Statements, at reasonable times and
upon reasonable prior notice to Seller during the Inspection Period for the
purpose of inspecting the Property, taking soil and ground water samples,
conducting Hazardous Materials inspections, reviewing the books and records of
Seller concerning the Property and otherwise conducting its due diligence review
of the Property. Seller shall cooperate with and assist Buyer in making such
inspections and reviews without cost or liability to Seller. Seller shall give
Buyer any authorizations which may be reasonably required by Buyer in order to
gain
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access to records or other information pertaining to the Property or the use
thereof maintained by any governmental or quasi-governmental authority or
organization. Buyer, for itself and its agents, agrees not to enter into any
contract with existing tenants without the written consent of Seller if such
contract would be binding upon Seller should this transaction fail to close.
Prior to the expiration of the Inspection Period, Buyer shall have the right to
conduct due diligence interviews with tenants, but agrees that it shall not
conduct any other discussions or negotiations with such tenants without the
prior consent of Seller until and unless Buyer elects to proceed to closing
hereunder. Buyer shall take no action which would permit the imposition of a
mechanic's or materialman's lien against the Property. If Buyer does not close
for any reason hereunder, Buyer shall restore the Property to its condition
existing prior to such investigation and inspection.
(c) Upon reasonable prior notice to Seller, Buyer, through its
officers or other authorized representatives, shall have the right to reasonable
access to all Materials (other than privileged or confidential litigation
materials) for the purpose of reviewing and copying the same.
3.2 Hazardous Material. Prior to the end of the Inspection Period Buyer
may order environmental assessments of the Property. A copy of any assessment
report, if made, shall be furnished by Buyer to Seller promptly upon its
completion. If an assessment report discloses the existence of any Hazardous
Material or any other matters concerning the environmental condition of the
Property or its environs, Buyer may notify Seller in writing, within ten (10)
business days after receipt of the assessment report that it elects to terminate
this Agreement, whereupon this Agreement shall terminate and Escrow Agent shall
return to Buyer its Earnest Money Deposit and neither party shall have any
further rights, duties, obligations or liabilities hereunder except those that
are intended to survive termination of this Agreement.
3.3 Time and Place of Closing. Unless otherwise agreed by the parties,
the Closing shall take place at the offices of Escrow Agent at 10:00 A.M. or
through escrow on the date which is the fifteenth (15th) day following the
expiration of the Inspection Period, provided that Buyer may designate an
earlier date for Closing by notice in writing to Seller given at least five (5)
business days prior to such earlier closing date.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents as follows as of the date of this
Agreement and as of the Closing and where indicated covenants and agrees as
follows:
4.1 Organization; Authority. Seller is duly organized, validly existing
and in good standing under the laws of the state of its organization and the
state in which the Shopping Center is located, and has full power and authority
to enter into and perform
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this Agreement in accordance with its terms, and the persons executing this
Agreement and other Transaction Documents have been duly authorized to do so on
behalf of Seller. Seller is not a "foreign person" under Sections 1445 or 897 of
the Internal Revenue Code nor to the Seller's knowledge is this transaction
subject to any withholding under any state or federal law.
4.2 Authorization; Validity. The execution and delivery of this
Agreement by Seller and Seller's consummation of the transactions contemplated
by this Agreement have been duly and validly authorized. Assuming valid
execution and delivery of this Agreement by Buyer this Agreement constitutes a
legal, valid and binding agreement of Seller enforceable against it in
accordance with its terms.
4.3 Title. Seller is the owner in fee simple of all of the Property,
subject, as of the date hereof, to the matters set forth on Exhibit attached
hereto and incorporated herein by reference (and in reliance solely upon said
Exhibit ), and as of the date of Closing, the Permitted Exceptions.
4.4 Commissions. Seller has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Seller, Buyer or the Property for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transaction provided herein
except for Eckstein Rothenberg Corporation, whose commission shall be paid by
Seller, and Seller agrees to indemnify Buyer from any such claim arising by,
through or under Seller.
4.5 Sale Agreements. The Property is not subject to any outstanding
agreement(s) of sale, option(s), or other right(s) of third parties to acquire
any interest therein, except for, as of the date hereof, those matters set forth
on Exhibit hereto (and in reliance solely upon said Exhibit ) and this
Agreement, and as of the date of Closing, the Permitted Exceptions and this
Agreement.
4.6 Litigation. There is no litigation or proceeding pending, or to
Seller's knowledge, threatened against Seller relating to the Property.
4.7 Leases. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll, and any Leases or modifications
entered into between the date of this Agreement and the Closing Date with the
consent of Buyer. Copies of the Leases, which have been delivered to Buyer or
shall be delivered to Buyer within five (5) days from the date hereof, are, to
Seller's knowledge, true, correct and complete copies thereof, subject to the
matters set forth on the Rent Roll. Between the date hereof and the Closing
Date, Seller will not terminate or modify existing Leases or enter into any new
Leases without the consent of Buyer. All of the Property's tenant leases are in
good standing and to the best of Seller's knowledge no defaults exist thereunder
except as noted on the Rent Roll. No rent or reimbursement
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has been paid more than one (1) month in advance and no security deposit has
been paid, except as stated on the Rent Roll. No tenants under the Leases are
entitled to interest on any security deposits. No tenant under any Lease has or
will be promised any inducement, concession or consideration by Seller other
than as expressly stated in such Lease, and except as stated therein there are
and will be no side agreements between Seller and any tenant.
4.8 Financial Statements. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
in accordance with the books and records of Seller and presents fairly in all
material respects the financial condition, results of operations and cash flows
for the Property as of and for the periods to which they relate. All are in
conformity with generally accepted accounting principles applied on a consistent
basis. There has been no material adverse change in the operations of the
Property or its prospects since the date of the most recent Seller Financial
Statements. Seller covenants to furnish promptly to Buyer copies of the Seller
Financial Statements together with unaudited updated monthly reports of cash
flow for interim periods beginning after December 31, 1996. Buyer and its
independent certified accountants shall be given access to Seller's books and
records at any time prior to and for six (6) months following Closing upon
reasonable advance notice in order that Buyer at its sole cost and expense may
verify the Seller Financial Statements. Seller agrees to execute and deliver to
Buyer or its accountants the Audit Representation Letter should Buyer's
accountants audit the records of the Shopping Center. Buyer shall pay all costs
associated with such audit.
4.9 Contracts. Except for, as of the date hereof, the Leases and those
matters set forth on Exhibit hereto (and in reliance solely upon said Exhibit )
and as of the date of Closing, the Leases and Permitted Exceptions, there are no
management, service, maintenance, utility or other contracts or agreements
affecting the Property, oral or written, which extend beyond the Closing Date
and which would bind Buyer or encumber the Property, at Buyer's option, more
than thirty (30) days after Closing. All such Contracts are in full force and
effect in accordance with their respective terms, and all obligations of Seller
under the Contracts required to be performed to date have been performed in all
material respects; no party to any Contract has asserted any claim of default or
offset against Seller with respect thereto and no event has occurred or failed
to occur, which would in any way affect the validity or enforceability of any
such Contract; and the copies of the Contracts, which have been delivered to
Buyer or shall be delivered to Buyer within five (5) days from the date hereof,
are, to the knowledge of Seller, true, correct and complete copies thereof.
Between the date hereof and the Closing, Seller covenants to fulfill all of its
obligations under all Contracts, and covenants not to terminate or modify any
such Contracts or enter into any new contractual obligations relating to the
Property without the consent of Buyer (not to be unreasonably withheld) except
such obligations as are freely terminable without penalty by Seller upon not
more than thirty (30) days' written notice.
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4.10 Maintenance and Operation of Property. From and after the date
hereof and until the Closing, Seller covenants to keep and maintain and operate
the Property substantially in the manner in which it is currently being
maintained and operated and covenants not to cause or permit any waste of the
Property nor undertake any action with respect to the operation thereof outside
the ordinary course of business without Buyer's prior written consent. In
connection therewith, Seller covenants to make all necessary repairs and
replacements until the Closing so that the Property shall be of substantially
the same quality and condition at the time of Closing as on the date hereof.
Seller covenants not to remove from the Improvements or the Real Property any
article included in the Personal Property. Seller covenants to maintain such
casualty and liability insurance on the Property as it is presently being
maintained.
4.11 Permits and Zoning. To the knowledge of Seller, (a) there are no
material permits and licenses (collectively referred to as "Permits") required
to be issued to Seller by any governmental body, agency or department having
jurisdiction over the Property which materially affect the ownership or the use
thereof which have not been issued, except to tenants for tenant work not
involving the landlord; (b) the Property is properly zoned for its present use
and is not subject to any local, regional or state development order; (c) the
use of the Property is consistent with the land use designation for the Property
under the comprehensive plan or plans applicable thereto; and (d) there are no
outstanding assessments, impact fees or other charges related to the Property.
4.12 Rent Roll; Tenant Estoppel Letters. The Rent Roll is true and
correct in all respects. Seller agrees to use reasonable efforts to obtain
current Tenant Estoppel Letters acceptable to Buyer from all Tenants under
Leases, which Tenant Estoppel Letters shall confirm the matters reflected by the
Rent Roll as to the particular tenant and shall otherwise be reasonably
acceptable to Buyer.
4.13 Condemnation. Neither the whole nor any portion of the Property,
including access thereto or any easement benefitting the Property, is subject to
temporary requisition of use by any governmental authority or has been
condemned, or taken in any proceeding similar to a condemnation proceeding, nor
is there now pending any condemnation, expropriation, requisition or similar
proceeding against the Property or any portion thereof. Seller has received no
notice nor has any knowledge that any such proceeding is contemplated.
4.14 Governmental Matters. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing to Buyer and Seller has
received no notices from any such governmental authorities or agencies of
violations at the Property which remain uncured, concerning building, fire, air
pollution or zoning codes, rules, ordinances or regulations, environmental and
hazardous substances laws, or other
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rules, ordinances or regulations relating to the Property. Seller shall be
responsible for the remittance of all sales tax for periods occurring prior to
the Allocation Date directly to the appropriate state department of revenue.
4.15 Repairs. Seller has received no notice of any requirements or
recommendations by any lender, insurance companies, or governmental body or
agencies requiring or recommending any repairs or work to be done on the
Property which have not already been completed.
4.16 Consents and Approvals; No Violation. Neither the execution and
delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) require Seller to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority; (b) conflict with or breach any provision
of the organizational documents of Seller; (c) violate or breach any provision
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Seller is a party, or by which
Seller, the Property or any of Seller's material assets may be bound; or (d) to
Seller's knowledge violate any order, writ, injunction, decree, judgment,
statute, law or ruling of any court or governmental authority applicable to
Seller, the Property or any of Seller's material assets.
4.17 Environmental Matters.
(a) Seller represents and warrants as of the date hereof and as of the
Closing that:
(1) Seller has not, and to Seller's knowledge and subject to the
matters reflected in that certain Phase I Environmental Report dated January 22,
1991 (the "Phase I Report"), a copy of which is to be promptly furnished to
Buyer by Seller, no other person has, caused any Release, threatened Release, or
disposal of any Hazardous Material at the Property in any material quantity;
(2) To Seller's knowledge and subject to the matters reflected
in the Phase I Report the Property does not contain any: (a) underground storage
tank, (b) material amounts of asbestos-containing building material, (c)
landfills or dumps, (d) drycleaning plant or other facility using drycleaning
solvents (other than de minimis amounts of spot removers and similar products),
or (e) hazardous waste management facility as defined pursuant to the Resource
Conservation and Recovery Act ("RCRA") or any comparable state law. The Property
is not a site on or nominated for the National Priority List promulgated
pursuant to Comprehensive Environmental Response,
- 13 -
Compensation and Liability Act ("CERCLA") or any state remedial priority list
promulgated or published pursuant to any comparable state law; and
(3) There are to the best of Seller's knowledge no conditions or
circumstances at the Property which pose a risk to the environment or the health
or safety of persons.
(b) Seller shall indemnify, hold harmless, and hereby waives
any claim for contribution against Buyer for any damages to the extent they
arise from the inaccuracy or breach of any representation or warranty by Seller
in this section of this Agreement. This indemnity shall survive Closing
indefinitely and shall be in addition to the post-closing indemnities contained
in Section .
4.18 No Untrue Statement. To Seller's knowledge neither this Agreement
nor any exhibit nor any written statement or Transaction Document furnished or
to be furnished by Seller to Buyer in connection with the transactions
contemplated by this Agreement contains or will contain any untrue statement of
material fact or omits or will omit any material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
4.19 As used herein the term "knowledge" with respect to Seller shall
mean the actual knowledge of Seller based on knowledge of the officers of the
partners comprising Seller of matters of which they have personally received
written notice or which they have been personally informed, and of which they
are aware (and shall not, in any event, include constructive knowledge or
notice).
Except as otherwise expressly set forth in this Agreement,
Seller makes no guarantees, warranties or representations, express or implied,
with respect to (a) the Property, (b) the condition of title, (c) suitability
for any intended purpose, or habitability, (d) size, location, physical
condition, encroachments, access, availability of utilities, zoning, zoning
stipulations or other building or development requirements, value, future value,
income potential, productivity, rights to, adequacy of or quality of the water
supply or water rights, soil compaction, or (e) any other matter pertaining to
this transaction.
EXCEPT AS EXPRESSLY PROVIDED HEREIN BY CONSUMMATING THIS
TRANSACTION, BUYER AGREES TO ACCEPT THE PROPERTY IN ITS PRESENT CONDITION "AS
IS" WITH ALL FAULTS AND WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER AS TO
ITS CONDITION OR FITNESS FOR ANY PARTICULAR PURPOSE. No person acting on behalf
of Seller is authorized to make, and by execution hereof, Buyer acknowledges and
agrees that no such person has made, any representation, warranty, guarantee or
promise, whether oral or written, except as set forth herein, and no such
agreement, statement, representation or
- 14 -
promise made by any such person which is not contained in this Agreement shall
be valid or binding against Seller.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement
and as of the Closing and where indicated covenants and agrees as follows:
5.1 Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under laws of Florida and has full power
and authority to enter into and perform this Agreement in accordance with its
terms, and the persons executing this Agreement and other Transaction Documents
on behalf of Buyer have been duly authorized to do so.
5.2 Authorization; Validity. The execution, delivery and performance of
this Agreement and the other Transaction Documents have been duly and validly
authorized by the Board of Directors of Buyer. This Agreement has been duly and
validly executed and delivered by Buyer and (assuming the valid execution and
delivery of this Agreement by Seller) constitutes a legal, valid and binding
agreement of Buyer enforceable against it in accordance with its terms.
5.3 Commissions. Buyer has neither dealt with nor does it have any
knowledge of any broker or other party who has or may have any claim against
Buyer or Seller for a brokerage commission or finder's fee or like payment
arising out of or in connection with the transaction provided herein except
Eckstein Rothenberg Corporation, whose commission shall be paid by Seller; and
Buyer agrees to indemnify Seller from any other such claim arising by, through
or under Buyer.
6. POSSESSION; RISK OF LOSS
6.1 Possession. Possession of the Property will be transferred to Buyer
at the conclusion of the Closing.
6.2 Risk of Loss. All risk of loss to the Property shall remain upon
Seller until the conclusion of the Closing. If, before the possession of the
Property has been transferred to Buyer, any material portion of the Property is
damaged by fire or other casualty and will not be restored by the Closing Date
or if any material portion of the Property is taken by eminent domain or there
is a material obstruction of access to the Improvements by virtue of a taking by
eminent domain, Seller shall, within ten (10) days of such damage or taking,
notify Buyer thereof and Buyer shall have the option to:
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(a) terminate this Agreement upon notice to Seller given
within ten (10) business days after such notice from Seller, in which case Buyer
shall receive a return of its Earnest Money Deposit and neither party shall have
any further rights, duties, obligations or liabilities hereunder except those
which are intended to survive termination of this Agreement; or
(b) proceed with the purchase of the Property, in which event
Seller shall assign to Buyer all Seller's right, title and interest in all
amounts due or collected by Seller under the insurance policies or as
condemnation awards. In such event, the Purchase Price shall be reduced by the
amount of any insurance deductible to the extent it reduced the insurance
proceeds payable.
7. TITLE MATTERS
7.1 Title.
(a) Title Insurance and Survey. Prior to the end of the
Inspection Period Buyer's counsel shall order the Title Insurance Commitment and
a Survey (Seller agreeing to furnish to Buyer copies of any existing surveys and
title information in its possession promptly after execution of this Agreement).
Buyer will have ten (10) days from receipt of the Title Commitment (including
legible copies of all recorded exceptions noted therein) and Survey to notify
Seller in writing of any Title Defects, encroachments or other matters not
acceptable to Buyer which are not permitted by this Agreement. Any Title Defect
or other objection disclosed by the Title Insurance Commitment (other than liens
removable by the payment of money) or the Survey which is not timely specified
in Buyer's written notice to Seller of Title Defects shall be deemed a Permitted
Exception. Seller shall notify Buyer in writing within five (5) days of Buyer's
notice if Seller intends to cure any Title Defect or other objection. If Seller
elects to cure, Seller shall use diligent efforts to cure the Title Defects
and/or objections by the Closing Date (as it may be extended). If Seller elects
not to cure or if such Title Defects and/or objections are not cured, Buyer
shall have the right, in lieu of any other remedies, to: (i) refuse to purchase
the Property, terminate this Agreement and receive a return of the Earnest Money
Deposit in which event neither party shall have any further rights, duties,
obligations or liabilities hereunder except those which are intended to survive
termination of this Agreement; or (ii) waive such Title Defects and/or
objections and close the purchase of the Property subject to them.
(b) Miscellaneous Title Matters. If a search of the title
discloses judgments, bankruptcies or other returns against other persons having
names the same as or similar to that of Seller, Seller shall on request deliver
to Buyer an affidavit stating, if true, that such judgments, bankruptcies or the
returns are not against Seller. Seller further agrees to execute and deliver to
the Title Insurance agent at Closing such documentation, if any, as the Title
Insurance underwriter shall reasonably require to
- 16 -
evidence that the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized and that there
are no mechanics' liens on the Property or parties in possession of the Property
other than tenants under Leases and Seller.
8. CONDITIONS PRECEDENT
8.1 Conditions Precedent to Buyer's Obligations. The obligations of
Buyer under this Agreement are subject to satisfaction or waiver by Buyer of
each of the following conditions or requirements on or before the Closing Date:
(a) Seller's warranties and representations under this
Agreement shall be true and correct as of the Closing Date, and Seller shall not
be in default hereunder.
(b) All obligations of Seller contained in this Agreement,
shall have been fully performed in all material respects and Seller shall not be
in default under any covenant, restriction, right-of-way or easement affecting
the Property.
(c) There shall have been no material adverse change in the
Property, its operations, the Leases or the financial condition of tenants
leasing space in the Shopping Center.
(d) A Title Insurance Commitment in the full amount of the
Purchase Price shall have been issued and "marked down" through Closing, subject
only to Permitted Exceptions.
(e) The physical and environmental condition of the Property
shall be unchanged from the date of this Agreement, ordinary wear and tear and,
if applicable, the contingencies addressed in Section above and the Buyer's
election thereunder.
(f) Seller shall have delivered to Buyer the following in form
reasonably satisfactory to Buyer:
(1) A warranty deed in proper form for recording, duly executed and
acknowledged so as to convey to Buyer the fee simple title to the Property,
subject only to the Permitted Exceptions;
(2) Originals, if available, or if not, true copies of the Leases
and of the contracts, agreements, permits and licenses, and such Materials as
may be in the possession or control of Seller;
(3) A blanket assignment to and assumption by Buyer of all Leases
and Contracts, and such other contracts, agreements, permits and licenses
(to the
- 17 -
extent assignable) as they affect the Property, including an indemnity against
breach of such instruments by Seller prior to the Closing Date and an indemnity
by Buyer against any event accruing or first arising thereunder after the
Closing Date;
(4) A bill of sale with respect to the Personal
Property and Materials;
(5) A title certificate, properly endorsed by Seller,as to any items of
Property for which title certificates exist;
(6) The Survey;
(7) A current rent roll for all Leases in effect showing no
changes from the rent roll attached to this Agreement other than those set
forth in Section or in the Leases or approved in writing by Buyer;
(8) All Tenant Estoppel Letters obtained by Seller, which must
include Winn-Dixie, Cuco's Mexican Restaurant, Walgreen, R.J. Gators, Radio
Shack, World Gym, Capital Carpets, Dryclean USA, Dunkin Doughnuts, Blockbuster
and Play It Again Sports and eighty percent (80%) by number of the other tenants
who have signed leases for any portion of the Property, without any material
exceptions, covenants, or changes to the form approved by Buyer and distributed
to the tenants by Seller, the substance of which Tenant Estoppel Letters must be
reasonably acceptable to Buyer;
(9) A general assignment of all assignable existing warranties
relating to the Property;
(10) An owner's affidavit, non-foreign affidavits,non-tax with
holding certificates and such other documents as may reasonably be required by
Buyer or its counsel in order to effectuate the provisions of this Agreement
and the transactions contemplated herein;
(11) The originals or copies of any real and tangible personal
property tax bills for the Property for the tax year of Closing and the previous
year, and, if requested, the originals or copies of any current water, sewer and
utility bills which are in Seller's custody or control;
(12) Resolutions of Seller authorizing the transactions described
herein;
(13) All keys and other means of access to the Improvements
in the possession of Seller or its agents;
- 18 -
(14) Materials; and
(15) Such other documents as Buyer may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all of the foregoing provisions of this
Section are not satisfied and Buyer elects in writing to terminate this
Agreement, then the Earnest Money Deposit shall be promptly delivered to Buyer
by Escrow Agent and, upon the making of such delivery, neither party shall have
any further claim against the other by reasons of this Agreement, except for any
such claim arising out of an obligation or duty of the other party which is
intended to survive termination of this Agreement.
8.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement are subject to satisfaction or waiver by Seller of
each of the following conditions or requirements on or before the Closing date:
(a) Buyer's warranties and representations under this
Agreement shall be true and correct as of the Closing Date, and Buyer shall not
be in default hereunder.
(b) All of the obligations of Buyer contained in this
Agreement shall have been fully performed by or on the date of Closing in
compliance with the terms and provisions of this Agreement.
(c) Buyer shall have delivered to Seller at or prior to the
Closing the following, which shall be reasonably satisfactory to Seller:
(1) Delivery and/or payment of the balance of the Purchase Price in
accordance with Section at Closing;
(2) Such other documents as Seller may reasonably request to
effect the transactions contemplated by this Agreement.
In the event that all conditions precedent to Buyer's
obligation to purchase shall have been satisfied but the foregoing provisions of
this Section have not, and Seller elects in writing to terminate this Agreement,
then the Earnest Money Deposit shall be promptly delivered to Seller by Escrow
Agent and, upon the making of such delivery, neither party shall have any
further claim against the other by reasons of this Agreement, except for any
such claim arising out of an obligation or duty of the other party which is
intended to survive termination of this Agreement.
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8.3 Best Efforts. Each of the parties hereto agrees to use reasonable
best efforts to take or cause to be taken all actions necessary, proper or
advisable to consummate the transactions contemplated by this Agreement.
9. PRE-CLOSING BREACH; REMEDIES
9.1 Breach by Seller. In the event of a breach of Seller's covenants or
warranties herein and failure by Seller to cure such breach within the time
provided for Closing, Buyer may, at Buyer's election (i) terminate this
Agreement and receive a return of the Earnest Money Deposit, and the parties
shall have no further rights or obligations under this Agreement (except as
survive termination); (ii) enforce this Agreement by suit for specific
performance; or (iii) waive such breach and close the purchase contemplated
hereby, notwithstanding such breach.
9.2 Breach by Buyer. In the event of a breach of Buyer's covenants or
warranties herein and failure of Buyer to cure such breach within the time
provided for Closing, Seller's sole remedy shall be to terminate this Agreement
and retain Buyer's Earnest Money Deposit as agreed liquidated damages for such
breach, and upon payment in full to Seller of such amounts, the parties shall
have no further rights, claims, liabilities or obligations under this Agreement
(except as survive termination).
10. POST CLOSING INDEMNITIES AND COVENANTS
10.1 Seller's Indemnity. Should this transaction close, Seller, subject
to the limitations set forth herein, shall indemnify, defend and hold harmless
Buyer from all claims, demands, liabilities, damages, penalties, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, which may be imposed upon, asserted against or incurred or paid
by Buyer by reason of, or on account of, any breach by Seller of Seller's
warranties, representations and covenants or by reason of liabilities or
obligations, fixed or contingent, relating to or affecting the Property accruing
or first arising out of events occurring prior to the date of Closing. Seller's
warranties, representations and covenants, and the foregoing indemnity, shall
survive the Closing for a period of one (1) year. Buyer's rights and remedies
herein against Seller shall be in addition to, and not in lieu of all other
rights and remedies of Buyer at law or in equity.
10.2 Buyer's Indemnity. Should this transaction close, Buyer shall
indemnify, defend and hold harmless Seller from all claims, demands,
liabilities, damages, penalties, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, which may be imposed
upon, asserted against or incurred or paid by Seller by reason of, or on account
of, any breach by Buyer of Buyer's warranties, representations and covenants or
by reason of liabilities or obligations, fixed or contingent, relating to or
affecting the Property accruing or first arising out of event
- 20 -
occurring on or after the date of Closing. Buyer's warranties, representations
and covenants, and the foregoing indemnity, shall survive the Closing for a
period of one (1) year. Seller's rights and remedies herein against Buyer shall
be in addition to, and not in lieu of all other rights and remedies of Seller at
law or in equity.
11. MISCELLANEOUS
11.1 Disclosure. Neither party shall disclose the transactions
contemplated by this Agreement without the prior approval of the other, except
to its attorneys, accountants and other consultants, their lenders and
prospective lenders, or where disclosure is required by law.
11.2 Radon Gas. Radon is a naturally occurring radioactive gas which,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon which
exceed federal and state guidelines have been found in buildings in the state in
which the Property is located. Additional information regarding radon and radon
testing may be obtained from the county public health unit.
11.3 Entire Agreement. This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and may not be modified, amended or
otherwise changed in any manner except by a writing executed by Buyer and
Seller.
11.4 Notices. All written notices and demands of any kind which either
party may be required or may desire to serve upon the other party in connection
with this Agreement shall be served by personal delivery, certified or overnight
mail, reputable overnight courier service or facsimile (followed promptly by
hard copy) at the addresses set forth below:
As to Seller: Boynton Lakes Plaza Partnership
Attention: Richard Maloof
Fru-Con Development Corp.
999 Berkshire Blvd., Suite 290
Wyomissing, Pennsylvania 19610
Facsimile: (610) 376-9925
With copies to: Fru-Con Development Corporation
Attention: A.A. Zehner
15933 Clayton Road
Ballwin, Missouri 63011
Facsimile: (314) 391-4572
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and
Fru-Con Development Corporation
Attention: Peggy H. Morris,
General Counsel
15933 Clayton Road
Ballwin, Missouri 63011
Facsimile: (314) 391-4624
As to Buyer: RRC Acquisitions, Inc.
Attention: Robert L. Miller
Suite 200, 121 W. Forsyth St.
Jacksonville, Florida 32202
Facsimile: (904) 634-3428
With a copy to: Rogers, Towers, Bailey, Jones & Gay
Attention: William E. Scheu, Esq.
1301 Riverplace Blvd., Suite 1500
Jacksonville, Florida 32207
Facsimile: (904) 396-0663
Any notice or demand so served shall constitute proper notice hereunder upon
delivery to the United States Postal Service or to such overnight courier. A
party may change its notice address by notice given in the aforesaid manner.
11.5 Headings. The titles and headings of the various sections hereof
are intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
11.6 Validity. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement by the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable shall not be affected thereby,
and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11.7 Attorneys' Fees. In the event of any litigation between the
parties hereto to enforce any of the provisions of this Agreement or any right
of either party hereto, the unsuccessful party to such litigation agrees to pay
to the successful party all costs and expenses, including reasonable attorneys'
fees, whether or not incurred in trial or on appeal, incurred therein by the
successful party, all of which may be included in and as a part of the judgment
rendered in such litigation. Any indemnity provisions
- 22 -
herein shall include indemnification for reasonable attorneys' fees and costs,
whether or not suit be brought and including fees and costs on appeal.
11.8 Time of Essence. Time is of the essence of this Agreement.
11.9 Governing Law. This Agreement shall be governed by the laws of the
state in which the Property is located, and the parties hereto agree that any
litigation between the parties hereto relating to this Agreement shall take
place (unless otherwise required by law) in a court located in the county in
which Escrow Agent's principal place of business is located. Each party waives
its right to jurisdiction or venue in any other location.
11.10 Successors and Assigns. The terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. No third parties, including any
brokers or creditors, shall be beneficiaries hereof.
11.11 Exhibits. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
11.12 Gender; Plural; Singular; Terms. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the specified section or clause in which
the respective word appears unless expressly so stated.
11.13 Further Instruments, Etc. Seller and Buyer shall, at or after
Closing, execute any and all documents and perform any and all acts reasonably
necessary to fully implement this Agreement.
11.14 Survival. The obligations of Seller and Buyer intended to be
performed after the Closing shall survive the closing.
11.15 No Recording. Neither this Agreement nor any notice, memorandum
or other notice or document relating hereto shall be recorded.
11.16 Assignment. Without Seller's prior written consent, Buyer shall
not assign its rights and interests hereunder at any time except that Buyer is
permitted to assign such rights and interests to any wholly owned subsidiary of
Regency Realty Corporation. In the event of Buyer's assignment of this
Agreement, Buyer and its
- 23 -
assignee shall execute a written form of assignment acceptable to Seller that
provides that notwithstanding such assignment, Buyer and its assignee shall
remain liable and responsible for the performance of all obligations of Buyer
hereunder.
11.17 Limitations on Liability. It is acknowledged and agreed by Buyer
that notwithstanding anything herein or elsewhere to the contrary, all persons
dealing with Seller or with any of the partners, officers of such partners, or
agents of Seller in their respective capacities as such shall look solely to the
Property and to the assets of Seller and/or to the proceeds of sale of all or
portions of the Property realized by Seller, which may be traced by Buyer from
Seller to Seller's partners and/or other distributees or recipients thereof, for
the payment of any claim against, or for the performance of any obligation of
Seller, whether hereunder or otherwise, and no natural person who is an officer
or agent of Seller or such partner(s), shall have personal liability for payment
of any such claim or the performance of any such obligation, nor shall resort be
had to any natural person's separate property for satisfaction of any such claim
or obligation (other than proceeds of sale traced to such natural person).
11.18 Performance on Business Days. If any date for the occurrence of
an event or act under this Agreement falls on a Saturday or Sunday or nationally
recognized legal holiday or local holiday recognized by bank closing, then the
time for the occurrence of such event or act shall be extended to the next
succeeding business day.
11.19 Interpretations and Definitions. The parties agree that each
party and such party's counsel have reviewed and revised this Agreement (or have
had the opportunity to do so) and that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not apply
in the interpretation of this Agreement.
11.20 Acceptance of Offer. The offer to purchase the Property made by
Buyer by the delivery to Seller of three (3) copies of this Agreement as
executed on behalf of Buyer shall automatically terminate and expire at 5:00
p.m. St. Louis time on the 5th day following such delivery, unless the offer is
accepted earlier by Seller's execution of this Agreement, or a counterpart
hereof, and by the return to Buyer of a fully executed copy of this Agreement on
or before the date and time aforementioned.
- 24 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses:
RRC ACQUISITIONS, INC.,
____________________________ a Florida corporation
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: September , 1997
Tax Identification No. 59-3210155
"BUYER"
BOYNTON LAKES PLAZA PARTNERSHIP,
a Florida general partnership
By Its Partner:
____________________________
[ - - - - - - - - - - - - - - - ]
Name (Please Print)
By:
____________________________ Its:
[ - - - - - - - - - - - - - - - ]
Name (Please Print) Date: September , 1997
Tax Identification No:
"SELLER"
- 25 -
JOINDER OF ESCROW AGENT
1. Duties. Escrow Agent joins herein for the purpose of agreeing to
comply with the terms hereof insofar as they apply to Escrow Agent. Escrow Agent
shall receive and hold the Earnest Money Deposit in trust, to be disposed of in
accordance with the provisions of this joinder and the foregoing Agreement. The
Earnest Money Deposit shall be invested by Escrow Agent in an interest bearing
account at First Union National Bank.
2. Indemnity. Escrow Agent shall not be liable to either party except
for claims resulting from the gross negligence or willful misconduct of Escrow
Agent. If the escrow is involved in any controversy or litigation, the parties
hereto shall jointly and severally indemnify and hold Escrow Agent free and
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put
or which may incur by reason of or in connection with such controversy or
litigation, except to the extent it is finally determined that such controversy
or litigation resulted from Escrow Agent's gross negligence or willful
misconduct. If the indemnity amounts payable hereunder result from the fault of
Buyer or Seller (or their respective agents), the party at fault shall pay, and
hold the other party harmless against, such amounts.
3. Conflicting Demands. If conflicting demands are made upon Escrow
Agent or Escrow Agent is uncertain with respect to the escrow, the parties
hereto expressly agree that Escrow Agent shall have the absolute right to do
either or both of the following: (i) withhold and stop all proceedings in
performance of this escrow and await settlement of the controversy by final
appropriate legal proceedings or otherwise as it may require; or (ii) file suit
for declaratory relief and/or interpleader and obtain an order from the court
requiring the parties to interplead and litigate in such court their several
claims and rights between themselves. Upon the filing of any such declaratory
relief or interpleader suit and tender of the Earnest Money Deposit to the
court, Escrow Agent shall thereupon be fully released and discharged from any
and all obligations to further perform the duties or obligations imposed upon
it. Buyer and Seller agree to respond promptly in writing to any request by
Escrow Agent for clarification, consent or instructions. Any action proposed to
be taken by Escrow Agent for which approval of Buyer and/or Seller is requested
shall be considered approved if Escrow Agent does not receive written notice of
disapproval within fourteen (14) days after a written request for approval is
received by the party whose approval is being requested. Escrow Agent shall not
be required to take any action for which approval of Buyer and/or Seller has
been sought unless such approval has been received. No disbursements shall be
made, other than as provided in Sections and of the foregoing Agreement, or to a
court in an interpleader action, unless Escrow Agent shall have given written
notice of the proposed disbursement to Buyer and Seller and
- 26 -
neither Buyer nor Seller shall have delivered any written objection to the
disbursement within 14 days after receipt of Escrow Agent's notice. No notice by
Buyer or Seller to Escrow Agent of disapproval of a proposed action shall affect
the right of Escrow Agent to take any action as to which such approval is not
required.
4. Continuing Counsel. Seller acknowledges that Escrow Agent is counsel
to Buyer herein and Seller agrees that in the event of a dispute hereunder or
otherwise between Seller and Buyer, Escrow Agent may continue to represent Buyer
notwithstanding that it is acting and will continue to act as Escrow Agent
hereunder, it being acknowledged by all parties that Escrow Agent's duties
hereunder are ministerial in nature.
5. Tax Identification. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
ROGERS, TOWERS, BAILEY, JONES & GAY
By:
Its Authorized Agent
Date: September , 1997
"ESCROW AGENT"
- 27 -
EXHIBIT
Audit Representation Letter
--------------------------
(Acquisition Completion Date)
KPMG Peat Marwick LLP
Suite 2700
One Independent Drive
Jacksonville, Florida 32202
Dear Sirs:
We are writing at your request to confirm our understanding that your
audit of the Statement of Revenue and Certain Expenses for the twelve months
ended ________________, was made for the purpose of expressing an opinion as to
whether the statement presents fairly, in all material respects, the results of
its operations in conformity with generally accepted accounting principles. In
connection with your audit we confirm, to the best of our knowledge and belief,
the following representations made to you during your audit:
1. We have made available to you all financial records and related data
for the period under audit.
2. There have been no undisclosed:
a. Irregularities involving any member of management or
employees who have significant roles in the internal control structure.
b. Irregularities involving other persons that could have a
material effect on the Statement of Revenue and Certain Expenses.
c. Violations or possible violations of laws or regulations,
the effects of which should be considered for disclosure in the Statement of
Revenue and Certain Expenses.
3. There are no undisclosed:
a. Unasserted claims or assessments that our lawyers have
advised us are probable of assertion and must be disclosed in accordance with
Statement of Financial Accounting Standards No. 5 (SFAS No. 5).
b. Material gain or loss contingencies (including oral and
written guarantees) that are required to be accrued or disclosed by SFAS No. 5.
c. Material transactions that have not been properly recorded
in the accounting records underlying the Statement of Revenue and Certain
Expenses.
d. Material undisclosed related party transactions and related
amounts receivable or payable, including sales, purchases, loans, transfers,
leasing arrangements, and guarantees.
e. Events that have occurred subsequent to the balance sheet
date that would require adjustment to or disclosure in the Statement of Revenue
and Certain Expenses.
4. All aspects of contractual agreements that would have a material
effect on the Statement of Revenue and Certain Expenses have been complied with.
Further, we acknowledge that we are responsible for the fair
presentation of the Statements of Revenue and Certain Expenses prepared in
conformity with generally accepted accounting principles.
Very truly yours,
"Seller/Manager"
Name
Title
EXHIBIT
Legal Description of Real Property
EXHIBIT
Rent Roll
EXHIBIT
Form of Estoppel Letter
_____________________, 199_
RRC Acquisitions, Inc.
Regency Centers, Inc.
121 W. Forsyth St., Suite 200
Jacksonville, Florida 32202
RE: ___________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised you may purchase the above
Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of ___________________________,
Landlord, in the above Shopping Center, and is currently in
possession and paying rent on premises known as Store No.
_______________ [or Address:
------------------------------------------------------------],
and containing approximately _____________ square feet, under
the terms of the lease dated ______________________, which has
(not) been amended by amendment dated ________________________
(the "Lease"). There are no other written or oral agreements
between Tenant and Landlord. Tenant neither expects nor has
been promised any inducement, concession or consideration for
entering into the Lease, except as stated therein, and there
are no side agreements or understandings between Landlord and
Tenant.
2. The term of the Lease commenced on ____________________,
expiring on ___________________, with options to extend of
________________ (____) years each.
3. As of ____________________, monthly minimum rental is
$_______________ a month.
4. Tenant is required to pay its pro rata share of Common Area
Expenses and its pro rata share of the Center's real property
taxes and insurance cost. Current additional monthly payments
for expense reimbursement total $____________ per month for
common area maintenance, property insurance and real estate
taxes.
5. Tenant has given [no security deposit] [a security deposit of
$--------------].
6. No payments by Tenant under the Lease have been made for more
than one (1) month in advance, and minimum rents and other
charges under the Lease are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the
Tenant's premises and development of the Shopping Center,
including without limitation, parking requirements, have been
performed by Landlord.
8. The Lease contains no first right of refusal, option to
expand, option to terminate, or exclusive business rights,
except as follows:
9. Tenant knows of no default by either Landlord or Tenant under
the Lease, and knows of no situations which, with notice or
the passage of time, or both, would constitute a default.
Tenant has no rights to off-set or defense against Landlord as
of the date hereof.
10. The undersigned has not entered into any sublease, assignment
or any other agreement transferring any of its interest in the
Lease or the Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of,
or released any hazardous substances at,on or in the Premises.
"Hazardous Substances" means any flammable, explosive, toxic,
carcinogenic, mutagenic, or corrosive substance or waste,
including volatile petroleum products and derivatives and dry
cleaning solvents. To the best of Tenant's knowledge, no
asbestos or polychlorinated biphenyl ("PCB") is located at, on
or in the Premises. The term "Hazardous Substances" does not
include those materials which are technically within the
definition set forth above but which are contained in pre-
packaged office supplies,cleaning materials or personal groom
ing items or other items which are sold for consumer or
commercial use and typically used in other similar buildings
or space.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
-------------------------------------------
____________________________________(Tenant)
Mailing Address:
____________________________ By:________________________________________
Its:_________________________________
- ----------------------------
EXHIBIT
Permitted Exceptions
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE is made as of this 7th day of
October, 1997 between METEOR INDUSTRIEBETEILIGUNGSGESELLSCHAFT mbH, having an
address of c/o TMW Realty Services, Inc., 5500 Interstate North Parkway, Suite
220, Atlanta, Georgia 30328-4662 Attn: Jeffrey L. Pittman (Telecopy Number (770)
951-9160) ("Seller"), and RRC ACQUISITIONS, INC., a Florida corporation, having
an address of 121 West Forsyth Street, Suite 200, Jacksonville, Florida 32202,
Attn: Robert L. Miller (Telecopy Number (904) 634-0618) ("Purchaser").
R E C I T A L S:
A. Seller is the owner of the Premises (as hereinafter defined) located in
Jacksonville, Florida and commonly known as "Pinetree Plaza ".
B. Purchaser is desirous of purchasing from Seller the Premises and Seller is
desirous of selling same to Purchaser upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency are hereby acknowledged by Purchaser and Seller, the
parties hereto, each intending to be legally bound, do hereby covenant and agree
as follows:
1. Recitals. All of the recitals set forth above are true and
accurate and are incorporated herein by reference.
2. Definitions. In addition to the terms defined elsewhere in this Agreement, as
used herein and in the Exhibits annexed hereto, the following terms shall have
the following meanings, unless otherwise defined herein:
Agreement: This Agreement of Purchase and Sale and any written
amendments or modifications hereof duly executed by all of the parties hereto.
Business Day: Any day of the year in which commercial banks
are not required or authorized to close in Atlanta, Georgia.
Effective Date: The date on which Seller and Purchaser have
executed this Agreement, as evidenced by the date first above written.
Existing Leases: All leases and other occupancy agreements
in effect with respect to the Premises as of the Effective Date.
Inspection Materials: Existing Leases, soils, engineering,
structural and other reports relating to the current condition of the Premises,
environmental audits and the results of any other studies, tests, investigations
and inspections as well as any surveys, title policies, operating reports and
other materials in the possession of Seller respecting the Premises, such
materials to be delivered by Seller to Purchaser within ten (10) days after the
Effective Date.
Leases: Collectively, the Existing Leases and the New Leases.
New Leases: All extensions or modifications of Existing Leases
and all new leases of portions of the Premises entered into after the Effective
Date.
Personal Property: As such term is defined in Section 3 hereof.
Premises: As such term is defined in Section 3 hereof.
Purchaser's Representatives: Collectively, Purchaser's employees,
agents, directors, officers, affiliates, partners, brokers or other
representatives, including, without limitation, contractors, engineers,
appraisers, attorneys, accountants, consultants, financial advisors, investors
and lenders.
Seller: As such term has been defined at the outset hereof.
Seller's Affiliates: Collectively, all officers, directors,
employees, partners, principals, parents, subsidiaries and affiliates of Seller.
Surviving Obligations: Collectively: (i) any indemnities and any
other obligations under this Agreement on the part of Purchaser or Seller which
are specifically stated to survive the termination of this Agreement, (ii) the
delivery by Purchaser to Seller pursuant to Section 36 hereof of all Inspection
Materials, and (iii) those costs, expenses, and payments specifically stated
herein to be the responsibility of Purchaser or Seller, respectively, it being
the intention of the parties that the parties shall nonetheless be and remain
liable for their respective obligations under (i), (ii) and (iii)
notwithstanding the termination of this Agreement for any reason.
Winn-Dixie: Winn-Dixie Stores, Inc., a Florida corporation.
Winn-Dixie Lease: That certain Lease dated February 11, 1982
by and between Seller, as Landlord, and Winn-Dixie, as Tenant.
3. Sale and Purchase of Property. Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller, at the price and upon the terms,
provisions and conditions set forth in this Agreement all those certain plots,
pieces and parcels of land located in Jacksonville, Florida, as more
particularly described in Exhibit A attached hereto and made a part hereof (the
"Land"), together with (i) all buildings and other improvements situated on the
Land (collectively, the "Buildings"), (ii) all right, title and interest of
Seller in and to all easements, rights of way, reservations, privileges,
appurtenances, and other estates pertaining to the Land and the Buildings, (iii)
all right, title and interest of Seller, if any, in and to the fixtures,
machinery, equipment, supplies and other articles of personal property attached
or appurtenant to the Land or the Buildings, (collectively, the "Personal
Property"), (iv) all oil, gas and mineral rights of Seller, if any, in and to
the Land, (v) all right, title and interest of Seller, if any, in and to the
trade name(s) of the Buildings, and (vi) all right, title and interest of
Seller, if any, in and to all strips and gores, all alleys adjoining the Land to
the center line thereof, and all right, title and interest of Seller, if any, in
and to any award made or to be made in lieu thereof and in and to any unpaid
award for any taking by condemnation or any damages to the Land or the Buildings
by reason of a change of grade of any street, road or avenue and (vii) all
right, title and interest of Seller, if any, in and to the Leases (the Land, the
Buildings and all of the foregoing items listed in clauses (i) - (vii) above
being hereinafter sometimes collectively referred to as the "Premises").
4. Purchase Price and Method of Payment of Purchase Price.
(a) Subject to adjustment in accordance with the terms and conditions of Section
7 hereof, the purchase price for the Premises is TWO MILLION FOUR HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($2,450,000.00) (the "Purchase Price").
The Purchase Price shall be paid as follows:
(1) Deposit: Within three (3) Business Days after the execution of this
Agreement by Seller and Purchaser, Purchaser shall deliver to Chicago Title
Insurance Company, or other title insurance company mutually acceptable to
Purchaser and Seller ("Escrow Agent"), in immediately available funds, the sum
of TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) (the "Initial Deposit").
If Purchaser does not terminate this Agreement under Section 5 herein, on or
before the third (3rd) Business Day following the last day of the Inspection
Period Purchaser shall deposit with Escrow Agent additional good funds in the
sum of SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00) (the "Additional
Deposit"; the Initial Deposit and the Additional Deposit shall collectively be
referred to herein as the "Deposit").
(2) The balance of the Purchase Price, after giving credit to Purchaser for the
Deposit and any interest earned thereon, and after calculating the adjustments
and prorations to be made in accordance with Section 7 hereof, shall be paid to
Seller by Purchaser at Closing, by wire transfer of immediately available funds.
(b) The Deposit shall be held by Escrow Agent and deposited in an
interest-bearing money market account under Federal Tax I.D. No. 59-3210155 for
the mutual benefit of the parties hereto. Any interest earned on the Deposit
shall be for the benefit of Purchaser unless the Deposit is paid to Seller as a
result of the default of Purchaser or as otherwise provided hereunder, in which
event all interest earned thereon shall be paid to Seller. The Initial Deposit,
once paid, shall be refundable to Purchaser during the Inspection Period as set
forth in Section 5 hereof. The Deposit, together with all interest earned
thereon, shall be applied toward the Purchase Price at Closing. Upon the
delivery of a Notice of Continuation (as defined in Section 5 herein) from
Purchaser to Seller, the Deposit, and all interest earned thereon, shall be
nonrefundable to Purchaser except as provided in Sections 8(e), 11, 14 and 15
hereof.
5. Inspection and Due Diligence Period.
(a) During the period (the "Inspection Period") commencing with the Effective
Date and expiring at 5:00 p.m. (Eastern Daylight Time) on the date which is
forty-five (45) days from and after the Effective Date, provided Purchaser is
not in default hereunder, Purchaser and Purchaser's Representatives shall, upon
reasonable prior notice to Seller and subject to the rights of parties in
possession, have full access during reasonable business hours to examine and
inspect the Premises. Provided Purchaser is not in default hereunder, Purchaser
and/or Purchaser's Representatives may make surveys, perform soil tests,
environmental audits, engineering tests, and other investigations and tests as
Purchaser in its reasonable discretion deems advisable (collectively, the
"Inspection") and Seller grants to Purchaser and Purchaser's Representatives a
non-exclusive license for such Inspection, subject to the terms and conditions
set forth herein. Notwithstanding the foregoing, Purchaser shall not cause or
permit any borings, drillings or samplings to be done or conducted on the
Premises without the prior consent of Seller (such consent to be obtained from
Jeff Pittman). Seller and its agents, employees or designated representatives
shall have the right to accompany Purchaser and Purchaser's Representatives
during any inspections, testing or other activity performed at the Premises in
accordance with the terms and conditions of this Section 5. Neither Purchaser
nor any of the Purchaser's Representatives shall interview, communicate with or
otherwise contact any tenant or other occupant of the Premises prior to the
Closing without notifying Seller no less than two (2) Business Days prior to
such requested contact date and giving Seller or its agents, employees or
designated representatives the opportunity to accompany Purchaser or Purchaser's
Representative in each such instance.
(b) Seller acknowledges that part of the Inspection will include an examination
and audit by Purchaser or Purchaser's accountants of the financial and operating
statements of the Premises. Purchaser and its accountants shall be given access
to such financial and operating statements for the purpose of conducting such
examination and audit upon reasonable prior notice and during reasonable
business hours at any time prior to and for six (6) months following the Closing
Date. Seller agrees to execute or cause its accountant to execute and deliver to
Purchaser or its accountants, if requested, an Audit Representation Letter in
the form of Exhibit B attached hereto and made a part hereof in connection with
any such audit. Seller's covenants contained in this Section 5(b) shall
expressly survive the Closing hereunder. (c) The Inspection and all other due
diligence activities shall be conducted by Purchaser at Purchaser's sole cost
and expense. (d) Purchaser shall promptly repair any damage to the Premises
resulting from the Inspection and shall promptly replace and refill any portion
of the Premises used for any inspections or tests and shall promptly restore the
Premises to the same condition that it existed in prior to the Inspection. (e)
Purchaser and Purchaser's Representatives shall take reasonable precautions so
that the Inspection shall cause minimum disruption to parties in possession and
Seller's employees located on the Premises. (f) Purchaser shall (i) comply with
all laws applicable to the Inspection and all other activities undertaken in
connection therewith; and (ii) take all actions and implement all protections
necessary to ensure that all actions taken in connection with the Inspection,
and the equipment, materials and substances generated, used or brought onto the
Premises pose no threat to the safety or health of persons or the environment,
and cause no damage to the Premises or other property of Seller, any of the
tenants or other occupants of the Premises or any other persons. (g) Purchaser
agrees to keep the Premises free of any lien or encumbrance, including, without
limitation, liens for services, labor or materials furnished in connection with
the Inspection, and to cause any such liens or encumbrances to be immediately
removed. (h) Purchaser agrees to maintain or cause to be maintained, at
Purchaser's expense, (i) a policy of comprehensive general public liability
insurance, with a broad form contractual liability endorsement covering all
indemnification obligations of Purchaser under Section 5(i) hereof, with a
combined single limit of not less than $1,000,000 per occurrence for bodily
injury and property damage, (ii) automobile liability coverage, including owned
and hired vehicles, with a combined single limit of $1,000,000 per occurrence
for bodily injury and property damage, and (iii) an excess umbrella liability
policy for bodily injury and property damage in the amount of $5,000,000,
insuring Purchaser and Purchaser's Representatives who perform actual work on
the Premises on Purchaser's behalf, and Seller and Seller's Affiliates, as
additional insureds, against any injuries or damages to persons or property that
may result from or are related to (x) Purchaser's and/or Purchaser's
Representatives entry upon the Premises, (y) the Inspection, or (z) any and all
other activities undertaken by Purchaser and/or Purchaser's Representatives. (i)
Purchaser shall indemnify Seller and Seller's Affiliates and hold Seller and
Seller's Affiliates harmless from and against any and all claims, demands,
causes of action, losses, damages, liabilities, costs and expenses (including,
without limitation, attorneys' fees and disbursements), suffered or incurred by
Seller or any of Seller's Affiliates and arising out of or in connection with
(i) Purchaser's and/or Purchaser's Representatives' entry upon the Premises,
(ii) any Inspection conducted with respect to the Premises by Purchaser or
Purchaser's Representatives, (iii) any liens or encumbrances filed or recorded
against the Premises as a consequence of the Inspection or any and all other
activities undertaken by Purchaser or Purchaser's Representatives, and/or (iv)
any and all other activities undertaken by Purchaser or Purchaser's
Representatives on the Premises. (j) If subsequent to its completion of the
Inspection pursuant to the terms of this Section 5, Purchaser determines to
continue under the terms of this Agreement and complete the purchase of the
Premises, Purchaser shall notify Seller and Escrow Agent in writing of its
decision to continue under the terms of this Agreement (the "Notice of
Continuation") and deposit with Escrow Agent the Additional Deposit in
accordance with the provisions of Section 4 herein. If Seller and Escrow Agent
have not received the Notice of Continuation from Purchaser prior to the
expiration of the Inspection Period, Purchaser shall be deemed to have
terminated this Agreement under the terms of this Section 5 and Escrow Agent
shall refund the Deposit and any interest earned thereon (subject to the terms
of Section 36(d) hereof) to Purchaser, at which time this Agreement shall be
deemed to be terminated and all parties hereto shall be relieved of further
liability hereunder to the other parties, except for the Surviving Obligations.
If Seller and Escrow Agent receive the Notice of Continuation prior to the
expiration of the Inspection Period, Purchaser shall be deemed to have
irrevocably and unconditionally waived and relinquished its right of
cancellation, and the Deposit made by Purchaser, including any interest earned
thereon, shall be nonrefundable and shall remain at Purchaser's risk pending the
Closing, subject to Sections 8(e), 11, 14 and 15 hereof. (k) The provisions of
Section 5(d), (g), (i) and the Surviving Obligations shall survive the Closing
or the sooner termination of this Agreement. 6. As-Is-Where-Is.
Purchaser acknowledges that Purchaser will have the opportunity
throughout the Inspection Period to inspect the Premises and become fully
familiar with the physical condition, state of repair and all other physical,
operational and other aspects of the Premises and shall determine and/or confirm
to Purchaser's own satisfaction all aspects of the status and condition of the
Premises. All such determinations shall be at the discretion of Purchaser and
not as a result of any representation of Seller, Seller's Affiliates or their
respective agents, representatives and employees, whether actual or implied.
Purchaser acknowledges and agrees that at the Closing it will be accepting title
to the Premises on an "as-is-where-is" basis, subject only to the
representations and warranties set forth in Section 12(b) hereof. Purchaser
agrees to rely wholly on its own inquiry and investigation to determine the
merits, usefulness and suitability of the Premises, the financial condition of
the Premises and the quality and extent of construction of the Buildings.
Purchaser acknowledges and agrees that the Inspection Materials are being
provided to Purchaser by Seller solely as a convenience to Purchaser in the
performance of Purchaser's Inspection, and that Purchaser shall rely upon the
Inspection Materials at its own risk, without recourse to Seller. In no event
shall Seller have any obligation to make or effect any repairs or improvements
to the Premises. This Agreement, as written, contains all the terms of the
agreement entered into between the parties as of the Effective Date, and
Purchaser acknowledges that neither Seller nor any of Seller's Affiliates, nor
any of their respective agents, employees or representatives, has made any
representations, or held out any inducements to Purchaser or to Purchaser's
Representatives (other than those, if any, herein expressed). Seller shall not
be liable or bound in any manner by any verbal or written information pertaining
to the Premises' furnished by Seller or any of Seller's Affiliates, or their
respective agents, employees, representatives, or by any real estate broker,
including Brokers (as hereinafter defined). Purchaser acknowledges, represents
and warrants that if Purchaser shall not have exercised its termination option
prior to the expiration of the Inspection Period, and shall have thus elected to
proceed to Closing, Purchaser shall have fully examined and inspected the
Premises, including the construction, use and operation thereof and Purchaser
shall have determined to its own satisfaction the status of and compliance with
the Licenses (as hereinafter defined) and all governmental and
quasi-governmental laws, ordinances and regulations applicable to the Premises,
and Purchaser will have accepted and will be fully satisfied in all respects
with the foregoing and with the physical condition, environmental condition,
value, financing status, use, operation, tax and assessment status, income and
expenses of the Premises. The delivery and acceptance of the Deed (as
hereinafter defined) shall be a discharge of all of the respective obligations
of Seller hereunder, except for those obligations as are expressly made to
survive the delivery of the Deed pursuant to the terms of this Agreement and
except for any obligations of Seller contained in the Seller's Documents.
7. Adjustments to Purchase Price, Prorations and Apportionments.
(a) Except as otherwise set forth below, the following shall be prorated and
apportioned between Seller and Purchaser as of midnight of the day preceding the
Closing Date:
(i) real estate taxes for the year of Closing, but if the Closing occurs before
the then current year's millage is fixed, and if the then current year's
assessment is available, taxes shall be prorated based upon such assessment and
the prior year's millage; and if the then current year's assessment is not
available, then taxes will be prorated based upon the prior year's tax; any tax
prorations based on the prior year's taxes, at the request of either Seller or
Purchaser, shall be subsequently readjusted upon the receipt of the actual tax
bills for the year in which Closing takes place for the Premises, if there is a
variance between the total amount of the actual tax bills and the amount used
for proration purposes;
(ii) prepaid rents and Additional Rents (as hereinafter defined) and other
amounts payable by tenants, if, as and when received; provided, however, rents
payable by tenants that are less than thirty (30) days past due shall be
apportioned between Seller and Purchaser pursuant to this Section 7 as if such
delinquent rents had been received; (iii) charges and payments under
transferable Contracts (as hereinafter defined) or permitted renewals or
replacements thereof; (iv) any prepaid items, including, without limitation,
fees for any Licenses transferred to Purchaser at Closing and annual permit and
inspection fees; (v) utilities, including, without limitation, water, sewer,
telephone, electricity and gas, on the basis of the most recently issued bills
therefor, subject to adjustment after the Closing when the next bills are
available, or if current meter readings are available, on the basis of such
readings; (vi) deposits with telephone and other utility companies, and any
other persons or entities who supply goods or services in connection with the
Premises if same are assigned to Purchaser at Closing, which will be credited in
their entirety to Seller; (vii) personal property taxes, if any, with respect to
the Personal Property being transferred and assigned to Purchaser hereunder on
the basis of the fiscal year for which assessed; (viii) Seller's share, if any,
of all revenues from the operation of the Premises other than rents and
Additional Rents (including, without limitation, parking charges, telephone
booth and vending machine revenues), if, as and when received; (ix) taxes
payable by Seller relating to operations of the Premises, including, without
limitation, business and occupancy taxes and sales taxes, if any, but excluding
income taxes measured by the income or receipts of Seller generally; and (x)
such other items as are customarily apportioned between sellers and purchasers
of shopping centers located in Florida. (b) In addition to the items to be
apportioned in accordance with Section 7(a), at Closing, Purchaser shall
reimburse Seller, in cash, for (i) all tenant improvement costs and expenses
incurred by Seller for repairs, improvements, equipment, painting, decorating,
partitioning, carpeting, and other work performed to satisfy any tenant's
requirements with respect to or in connection with any New Lease including,
without limitation, any reimbursements paid to tenants in connection with any
such work performed by the tenants (collectively, the "TI Expenditures") to the
extent that such TI Expenditures have been paid by Seller as of the Closing Date
and (ii) all leasing costs and expenses, including, without limitation, leasing
commissions, incurred by Seller in connection with all New Leases (collectively,
the "Leasing Expenditures") to the extent such Leasing Expenditures have been
paid by Seller as of the Closing Date.
(c) If on the Closing Date any tenant is in arrears in the payment of rent or
has not paid the rent payable by it for the month in which the Closing occurs
(whether or not it is in arrears for such month on the Closing Date), any rents
received by Purchaser or Seller from such tenant after the Closing shall be
applied to amounts due and payable by such tenant during the following periods
in the following order of priority: (A) first, to the month in which the Closing
occurred with the appropriate amount being due and payable to Purchaser in
accordance with the prorations between Seller and Purchaser under Section 7(a)
hereof; (B) second, each post-Closing month for which such tenant is in arrears
as of the date of receipt of such rent, and if rents or any portion thereof
received by Seller or Purchaser after the Closing are due and payable to the
other party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and expenses
expended in connection with the collection thereof, shall be promptly paid to
the other party, and (C) third, to each pre-Closing month for which such tenant
is in arrears as of the Closing Date. If any tenants are required to pay
percentage rent, escalation charges for real estate taxes, parking charges,
operating expenses and maintenance escalation rents or charges, cost of living
increases or other charges of a similar nature (collectively, "Additional
Rents") and any Additional Rents are collected by Purchaser from a tenant after
the Closing Date, the Purchaser shall promptly pay to Seller out of the first
such sums received from such tenant the amount of all Additional Rents which are
due and payable by such tenant with respect to any period prior to the Closing
Date (whether or not such Additional Rents first became due and payable on or
after the Closing Date), less a proportionate share of any reasonable attorneys'
fees and costs and expenses expended in connection with the collection thereof.
Notwithstanding the foregoing or anything to the contrary contained herein,
following the Closing, Seller shall continue to have the right, in its own name,
to demand payment of and to collect rent and Additional Rent arrearages owed to
Seller by any tenant, which right shall include, without limitation, the right
to continue or commence legal actions or proceedings against any tenant (other
than the commencement of a dispossessory, summary or eviction proceeding), and
the delivery of the Lease Assignment shall not constitute a waiver by Seller of
such rights. Purchaser agrees to cooperate with Seller in connection with all
efforts by Seller to collect such rents and Additional Rents, including, without
limitation, the delivery to Seller, upon demand, of any relevant books and
records (including any rent or Additional Rent statements, receipted bills and
copies of tenant checks used in payment of such rents or Additional Rents), the
execution of any and all consents or other documents, and the undertaking of any
act necessary for the collection of such rents and Additional Rents by Seller;
provided however, Purchaser shall in no event be required or obligated to
commence legal actions or proceedings against any tenant for the purpose of
collecting any delinquent rents. The provisions of this Section 7(c) shall
survive the Closing. (d) If there is a water meter on the Premises, Seller shall
furnish a reading to a date not more than ten (10) days prior to the Closing
Date, and the unfixed water charges and sewer rent, if any, based thereon for
the intervening time shall be apportioned on the basis of such last reading. (e)
(i) If, on the Effective Date of this Agreement, the Premises or any part
thereof shall be affected by any assessment or assessments which are or may
become payable in installments, of which the first installment is now a charge
or lien, or has been paid, then (A) Seller shall be obligated to pay all
installments of any such assessment which are due and payable prior to the
Closing Date, and (B) for the purposes of this Agreement, all the unpaid
installments of any such assessment which are to become due and payable on or
after the Closing Date shall not be deemed to be liens upon the Premises and the
payment thereof shall be assumed by Purchaser without abatement of the Purchase
Price.
(ii) Seller shall pay, or will have paid, all special assessments
and liens for public improvements or similar liens which are, as of the Closing
Date, certified liens and Purchaser shall assume payment of all special
assessments and liens or public improvements or similar liens which are, as of
the Closing Date, pending liens, unless such special assessments are payable in
installments in which case Seller shall be responsible for all installments
accruing prior to the Closing Date and Purchaser shall be responsible for all of
the installments accruing on or after the Closing Date.
(f) At Closing, Purchaser shall receive a credit against the Purchase Price in
the aggregate amount of all security deposits paid by tenants of the Premises
under the Leases and Purchaser shall thereafter assume all of Seller's
obligations with respect to the security deposits so credited including the
obligation to refund such security deposits to the tenants in accordance with
the terms of their respective Leases.
8. Closing.
(a) Closing Date and Place. The closing hereunder (the "Closing") shall take
place at 10:00 a.m. (Eastern Standard Time) on or before the thirtieth (30th)
day following the last day of the Inspection Period ("Closing Date") at the
offices of Escrow Agent, time being of the essence, unless otherwise extended
pursuant to Section 8(e) herein.
(b) Seller's Documents. At the Closing, Seller shall execute, acknowledge and/or
deliver, as applicable, the following items to Purchaser (collectively, the
"Seller's Documents"): (i) a special warranty deed (the "Deed") which shall be
effective to vest in Purchaser marketable fee simple title to the Premises
subject only to the Permitted Encumbrances (as hereinafter defined);
(ii) an Assignment and Assumption of Leases and Security Deposits (the "Lease
Assignment") assigning without warranty or representation, except as expressly
set forth therein, all of Seller's right, title and interest, if any, in and to
the Leases, all guarantees thereof and the security deposits thereunder, if any;
(iii) an Assignment and Assumption of Contracts and Licenses (the "Contracts
Assignment") assigning without warranty or representation, except as expressly
set forth therein, and to the extent assignable or transferable, all of Seller's
right, title and interest, if any, in and to (x) all of the licenses, permits,
certificates, approvals, authorizations and variances issued for or with respect
to the Premises by any governmental or quasi-governmental authority
(collectively, the "Licenses"), and (ii) all purchase orders, equipment leases,
advertising agreements, franchise agreements, license agreements and service
contracts relating to the operation of the Premises which Purchaser shall
request in writing prior to Closing that Seller assign to Purchaser at Closing
and which, notwithstanding the foregoing, shall include all contracts
evidencing, respecting or relating to the TI Expenditures and the Leasing
Expenditures (collectively the "Contracts"); (iv) a Bill of Sale ("Bill of
Sale") conveying, transferring and selling to Purchaser without warranty or
representation, except as expressly set forth therein, all right, title and
interest of Seller in and to the Personal Property; (v) notices to the tenants
of the Premises advising the tenants of the sale of the Premises to Purchaser
and directing that rents and other payments thereafter be sent to Purchaser or
as Purchaser may direct; (vi) to the extent in Seller's possession, executed
counterparts of all Leases and any amendments, guarantees and other documents
relating thereto, together with a schedule of all security deposits paid by the
tenants thereunder, if any; (vii) a copy of the resolutions of Seller,
authorizing the execution, delivery and performance of this Agreement by Seller
and the consummation of the transactions contemplated hereunder and the
execution and delivery of the Seller's Documents certified as true and correct
by Seller; (viii) to the extent in Seller's possession and not already located
at the Premises, keys to all entrance doors to, and equipment and utility rooms
located in, the Premises; (ix) to the extent in Seller's possession and not
already located at the Premises, originals and/or copies of all Licenses; (x) to
the extent in Seller's possession, executed counterparts of all Contracts and
all warranties in connection therewith which are in effect on the Closing Date
and which are being assigned by Seller; (xi) a "FIRPTA" affidavit attesting to
facts pertaining to Seller's name, address, tax identification number and
non-foreign status as required by Section 1445 of the Internal Revenue Code and
regulations (in the event Seller is unable to deliver a FIRPTA affidavit, Seller
and Purchaser agree Purchaser shall withhold and place in escrow with an escrow
agent acceptable to Seller a certain percentage of the Purchase Price pending
satisfaction by Seller of the requirements of FIRPTA); (xii) an affidavit
stating that there have been no improvements to the Premises for the ninety (90)
day period immediately preceding the Closing Date (other than work done by or on
behalf of the Purchaser) or, if there have been any such improvements (other
than work done by or on behalf of the Purchaser), that all lienors in connection
with said improvements have been or will be paid in full when due except to the
extent that any amounts due to any such lienors constitute TI Expenditures to be
assumed by Purchaser at Closing; that there are no persons or entities in
possession of all or any portion of the Premises except Seller and tenants in
possession pursuant to recorded or unrecorded leases; and that there are no
unrecorded easements or agreements known to Seller affecting title to or
relating to the Premises, except as otherwise set forth in the affidavit; (xiii)
a closing statement (the "Closing Statement") reflecting all credits,
prorations, apportionments and adjustments contemplated hereunder; (xiv)
estoppel letters, if any, in the form of Exhibit C attached hereto and made a
part hereof (the "Tenant Estoppels") from tenants of the Premises that Seller
has used its best efforts to obtain; (xv) the letter or other written
notification from Seller to Winn-Dixie evidencing the termination of the
Winn-Dixie Lease as confirmed by Winn-Dixie; and (xvi) all other documents
Seller is required to deliver pursuant to the provisions of this Agreement or to
consummate the transactions contemplated hereunder. (c) Purchaser's Documents.
At or prior to Closing, Purchaser shall execute, acknowledge and/or deliver, as
applicable, the following items to Seller (collectively, the "Purchaser's
Documents"):
(i) the Purchase Price in accordance with Section 4 hereof;
(ii) the Closing Statement; (iii) the Lease Assignment; (iv) the Contracts
Assignment;
(v) (a) copies of Purchaser's organizational documents and resolutions and/or
consents authorizing Purchaser to purchase the Premises and to consummate the
closing of the transactions contemplated hereunder and to execute and deliver
the Purchaser's Documents, all certified as true and correct, and (b) such other
partnership and/or corporate documentation as may be reasonably requested by the
Title Company; (vi) any documents required to be obtained by the Title Company
in connection with the Closing, including, without limitation, Schedule B,
Section I requirements to the issuance of the Title Policy, that are within the
purview of Purchaser's responsibilities hereunder, or otherwise to comply with
any state or federal law; and (vii) all other documents Purchaser is required to
deliver pursuant to the provisions of this Agreement or to consummate the
transactions contemplated hereunder. (d) Closing Expenses. At Closing, Seller
shall pay all documentary stamp/transfer taxes required to be paid as to the
Deed, up to $500.00 of the cost of the title examination necessary to prepare
the Title Commitment (as hereinafter defined) and Seller's attorneys fees.
Purchaser shall pay all costs of the Inspection and other due diligence
activities of Purchaser, the cost to record the Deed, any costs of obtaining the
Title Commitment in addition to title examination costs exceeding $500.00, the
title insurance premiums for an owner's title insurance policy issued pursuant
to the Title Commitment ("Title Policy"), the Survey (as hereinafter defined),
and Purchaser's attorneys' fees.
(e) Conditions Precedent to Closing. Purchaser's obligation to close hereunder
is subject to the satisfaction of each of the following conditions: (i) the
representations and warranties of Seller contained herein shall be true and
correct in all material respects as of the Closing Date except to the extent
that they relate only to an earlier date and subject to Seller's right to cure
as hereinafter set forth. Purchaser shall promptly notify Seller in writing of
any material breach of any representation or warranty of Seller upon discovery
by Purchaser whereupon Seller shall have up to the Closing Date to cure such
breach; and
(ii) Seller is able to obtain the termination of the Winn-Dixie Lease in
accordance with the provisions of Section 26 thereof. If said condition
precedent shall not have been satisfied in full prior to the Closing Date,
Seller shall have the right, in its sole discretion, (a) to terminate this
Agreement, whereupon Escrow Agent shall refund the Deposit to Purchaser, at
which time this Agreement shall be deemed to be terminated and all parties
hereto shall be relieved of further liability hereunder to the other parties,
except for the Surviving Obligations, or (b) to extend the Closing Date to March
31, 1998 to allow further time for said condition precedent to be satisfied. If
Seller shall elect to so extend the Closing Date as permitted hereinabove, and
on the extended Closing Date said unsatisfied condition precedent shall remain
unsatisfied, Purchaser shall have the right to terminate this Agreement by
delivering written notice of such election to Seller and Escrow Agent, whereupon
Escrow Agent shall refund to Purchaser the Deposit, at which time this Agreement
shall be deemed to be terminated and all parties hereto shall be relieved of
further liability hereunder to the other parties, except for the Surviving
Obligations. 9. Operation of the Premises Prior to the Closing Date. Between the
Effective Date and the Closing Date, Seller shall have the right to continue to
operate and maintain the Premises in the usual and ordinary course of business
consistent with past practices. In connection therewith:
(a) Seller may modify, extend, renew, cancel or permit the expiration of any
Existing Lease or enter into any New Lease without Purchaser's prior consent at
any time prior to the date which is forty (40) days from and after the Effective
Date; provided, however, after such date Seller shall obtain Purchaser's prior
consent in each instance, which consent shall not be unreasonably withheld and
shall be given or denied in writing within three (3) days of Purchaser's receipt
of Seller's request for Purchaser's consent. If Purchaser fails to reply to
Seller's request for consent in a written notice given within the
above-described time period, Purchaser's consent shall be deemed to have been
granted. Seller shall furnish Purchaser with a copy of each instrument relating
to any such action involving any Existing Lease or New Lease, regardless of
whether Purchaser's consent is required pursuant to the terms hereof.
(b) Notwithstanding anything to the contrary contained in this Agreement, Seller
reserves the right, but is not obligated, to institute summary proceedings
against any tenant or terminate any Lease as a result of a default by the tenant
therein prior to the Closing Date. Seller makes no representations and assumes
no responsibility with respect to the continued occupancy of the Premises or any
part thereof by any tenant. The removal of a defaulting tenant (irrespective of
the size of the applicable demised premises) whether by summary proceedings or
otherwise prior to the Closing Date shall not give rise to any claim on the part
of Purchaser. Further, Purchaser agrees that it shall not be grounds for
Purchaser's refusal to close this transaction that any tenant may be a holdover
tenant or in default under its Lease on the Closing Date and Purchaser shall
accept title subject to such holding over or default without credit against, or
reduction of, the Purchase Price. (c) Seller may cancel, terminate, modify,
renew or permit the expiration or termination of any existing Contracts or enter
into any new Contracts without Purchaser's prior consent in any such instance at
any time prior to the date which is forty (40) days from and after the Effective
Date; provided, however, after such date Seller shall obtain Purchaser's prior
consent in each instance, which consent shall not be unreasonably withheld and
shall be given or denied in writing within three (3) days of Purchaser's receipt
of Seller's request for Purchaser's consent. If Purchaser fails to reply to
Seller's request for consent in a written notice given within the
above-described time period, Purchaser's consent shall be deemed to have been
granted. Seller shall furnish Purchaser with a copy of each instrument relating
to any such action involving any existing Contract or new Contract, regardless
of whether Purchaser's consent is required pursuant to the terms hereof. (d)
Seller shall keep in full force and effect all of the existing insurance
policies respecting the Premises or policies providing similar coverage to the
existing insurance policies. 10. Assumption of Liabilities.
As further consideration for the conveyance of the Premises by
Seller to Purchaser, at Closing, Purchaser shall assume all of the following
obligations and liabilities associated with the Premises, and shall indemnify
Seller and Seller's Affiliates for all loss, damage and liability at any time
arising in connection therewith:
(a) all TI Expenditures and Leasing Expenditures to the extent that same are not
otherwise reimbursed by Purchaser to Seller at Closing.
11. Condition of Title.
(a) On or prior to the thirtieth (30th) day following the Effective Date,
Purchaser shall obtain and provide Seller with a copy of a title insurance
commitment (the "Title Commitment") agreeing to issue to Purchaser, upon
recording of the Deed, an owner's title insurance policy on the form then in use
in Florida in an amount equal to the Purchase Price, subject only to taxes for
the year of Closing and subsequent years, pre-printed standard exceptions and
the "Permitted Encumbrances" (as hereinafter defined). The cost of the Title
Commitment shall be borne in accordance with the terms of Section 8(d) hereof.
(b) Purchaser shall have the right, (i) as to matters disclosed in the Title
Commitment, not less than ten (10) days prior to the expiration of the
Inspection Period, and (ii) as to matters disclosed in any such update to the
Title Commitment, within three (3) days after Purchaser's receipt of such update
(each, a "Purchaser's Title Notice"), to object in writing to any liens,
encumbrances, and other matters reflected by the Title Commitment which
Purchaser finds objectionable ("Objections"), if any. If no Purchaser's Title
Notice is given within the time periods set forth above, all matters reflected
by the Title Commitment, other than liens, shall be "Permitted Encumbrances."
Purchaser hereby waives any right Purchaser may have to raise as an objection to
title or as a ground for Purchaser's refusal to close this transaction, any New
Title Matters which Purchaser does not list as an Objection in a timely
delivered Purchaser's Title Notice, such New Title Matters thereafter being
deemed to be Permitted Encumbrances. Seller shall notify Purchaser within three
(3) days of receipt of Purchaser's Title Notice as to whether Seller intends to
remedy any or all of Purchaser's Objections, in which event Seller shall have up
to the Closing Date to cure such Objections. If Seller has not notified
Purchaser within three (3) days of receipt of Purchaser's Title Notice of its
intent or if Seller elects not to cure all of the Objections or otherwise
arrange for title insurance insuring against enforcement of such Objections
against, or collection of same out of, the Premises, Purchaser shall have only
the right (i) to terminate this Agreement by giving written notice thereof to
Seller within five (5) days of the expiry of the reply period or receipt of
Seller's election not to cure and upon such termination, to receive from Escrow
Agent the return of the Deposit, neither party hereto thereafter having any
further rights or obligations hereunder, except for the Surviving Obligations,
including Purchaser's obligation to deliver to Seller the Inspection Materials
pursuant to the terms of Section 36 hereof, or (ii) to waive the Objections and
consummate the purchase of the Premises, without any abatement or reduction of
the Purchase Price, subject to the Objections which shall be deemed to be
Permitted Encumbrances. Anything contained herein to the contrary
notwithstanding, Seller shall (x) have no duty or obligation to commence or
prosecute litigation in order to effect a cure of any title defect, and (y) have
no obligation to pay any amounts for cure of any title defects, other than liens
or judgments affecting the Premises that can be satisfied by the payment of
money. (c) Purchaser may update the survey (the "Survey") delivered by Seller to
Purchaser as part of the Inspection Materials. The cost of any update shall be
borne by Purchaser. Purchaser shall notify Seller, in writing, (i) as to matters
disclosed on the Survey which Purchaser finds objectionable, not less than ten
(10) days prior to the expiration of the Inspection Period and such objections
shall be deemed Objections and dealt with as such in accordance with the
provisions of Section 11(b) hereof. Purchaser agrees that the delivery of the
Survey to Purchaser shall satisfy Seller's obligations with respect to any
survey matters. It shall be Purchaser's responsibility to provide the Title
Company with a copy of the Survey and any other certifications, affidavits or
instruments which the Title Company may request or require in order to delete
the standard survey exceptions in the Title Commitment. 12. Representations,
Warranties, Covenants and Acknowledgments.
Except as expressly set forth herein, Seller's delivery of the
Inspection Materials to Purchaser shall in no way be deemed to be a
representation or warranty by Seller to Purchaser as to any matter whatsoever
and Seller shall have no liability of any kind or nature whatsoever to Purchaser
for any damage to Purchaser which may result from Purchaser's reliance upon the
contents of the Inspection Materials.
(a) Purchaser acknowledges and agrees that (i) the Inspection Materials
delivered or made available to Purchaser and Purchaser's Representatives by
Seller or Seller's Affiliates or any of their agents or representatives, may
have been prepared by third parties and may not be the work product of Seller
and/or any of Seller's Affiliates; (ii) the Inspection Materials delivered or
made available to Purchaser and Purchaser's Representatives is furnished to each
of them at the request, and for the convenience of, Purchaser; (iii) Purchaser
is relying solely on its own investigations, examinations and inspections of the
Premises and those of Purchaser's Representatives and is not relying in any way
on the Inspection Materials furnished by Seller or any of Seller's Affiliates,
or any of their agents or representatives beyond the representation and warranty
of Seller regarding the Inspection Materials set forth below; and (iv) any
further distribution of the Inspection Materials is subject to Section 36.
(b) Seller represents and warrants to Purchaser as follows:
(i) Seller has the full legal right, power and authority to execute and deliver
this Agreement and all of Seller's Documents, to consummate the transactions
contemplated hereby, and to perform its obligations hereunder and under all of
Seller's Documents;
(ii) This Agreement and Seller's Documents do not and will not contravene any
provision of the organizational documents of Seller, any judgment, order,
decree, writ or injunction issued against Seller, or any provision of any laws
applicable to Seller. The consummation of the transactions contemplated hereby
will not result in a breach or constitute a default or event of default by
Seller under any agreement to which Seller or any of its assets are subject or
bound and will not result in a violation of any laws applicable to Seller; (iii)
To the actual knowledge of Seller, Seller has not received any written notices
of any material claims against the Premises, any violation of any laws,
ordinances or other governmental regulations applicable to the Premises, or any
pending condemnation proceedings respecting any portion of the Premises; (iv) To
the best of Seller's knowledge, all Inspection Materials representing the work
product of Seller and/or any of Seller's Affiliates delivered to Purchaser
hereunder shall be true and complete in all material respects; and (v) Seller
has not disposed of or released any hazardous substances on the Premises, and to
the best of Seller's actual knowledge, without independent investigation, no
other party has disposed of or released any hazardous substances on the Premises
in quantities in excess of, or in violation of, any law, rule or regulation
governing same. For purposes of this Agreement, the term "hazardous substances"
shall mean any of the substances defined as "hazardous substances" or "toxic
substances" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq., Hazardous
Materials Transportation Act, 49 U.S.C. ss. 1802, the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901 et seq., and in the Toxic Substance Control Act
of 1976, as amended, 15 U.S.C. ss. 2601 et seq., or any other federal, state,
local or other governmental legislation, statute, law, code, rule, regulation or
ordinance identified by its terms as pertaining to the disposal of hazardous
substances. (c) Purchaser warrants and represents to Seller as follows:
(i) Purchaser is a duly formed and validly existing corporation organized under
the laws of the State of Florida, and is and will continue to be qualified under
the laws of the State of Florida to conduct business therein and in the State of
Florida on the Effective Date and on the Closing Date;
(ii) Purchaser has the full legal right, power, authority and financial ability
to execute and deliver this Agreement and all of Purchaser's Documents, to
consummate the transactions contemplated hereby, and to perform its obligations
hereunder and under all of Purchaser's Documents;
(iii) This Agreement and Purchaser's Documents do not and will not contravene
any provision of the organizational documents of Purchaser, any judgment, order,
decree, writ or injunction issued against Purchaser, or any provision of any
laws applicable to Purchaser. The consummation of the transactions contemplated
hereby will not result in a breach or constitute a default or event of default
by Purchaser under any agreement to which Purchaser or any of its assets are
subject or bound and will not result in a violation of any laws applicable to
Purchaser; and (iv) There are no pending actions, suits, proceedings or
investigations to which Purchaser is a party before any court or other
governmental authority which may have an adverse impact on the transactions
contemplated hereby. (d) The representations and warranties of Purchaser and
Seller set forth in this Agreement shall be true, accurate and correct in all
material respects upon the execution of this Agreement, shall be deemed to be
repeated on and as of the Closing Date (except as they relate only to an earlier
date) and shall survive the Closing for a period of six (6) months from the
Closing Date.
13. Remedies Upon Default of Purchaser.
If Purchaser fails to perform any of its obligations under this
Agreement, or is in default hereunder, Seller may terminate this Agreement by
notice to Purchaser. If Seller elects to terminate this Agreement, then this
Agreement shall be terminated and Escrow Agent shall pay to Seller the Deposit
and all interest earned thereon, as full and agreed upon liquidated damages, in
consideration for the execution of this Agreement and in full settlement of all
claims whereupon the parties hereto shall be relieved of all obligations
hereunder, except for the Surviving Obligations, it being agreed that the actual
damages suffered by Seller shall be impossible to ascertain and the payment of
the Deposit and all interest earned thereon (plus the Surviving Obligations)
shall be the sole liability of Purchaser by reason of any default hereunder.
Notwithstanding any of the foregoing to the contrary, in the event Purchaser
fails to perform any of its obligations under this Agreement, or is in default
hereunder, after Seller obtains the termination of the Winn-Dixie Lease, Seller
may terminate this Agreement by notice to Purchaser and, in addition to
receiving payment from Escrow Agent of the Deposit and all interest earned
thereon, Purchaser shall immediately pay to Seller as additional charges a sum
which, at the date of such termination, represents the present value (discounted
at a rate equal to the then average rate for Moody's "AAA" rated corporate
bonds) of the total rental payments that would have been due and payable from
Winn-Dixie to Seller under the Winn-Dixie Lease for the full term of the
Winn-Dixie Lease, including any extensions provided for thereunder, if Seller
had not otherwise terminated the Winn-Dixie Lease pursuant to the terms of
Section 26 thereof. Except as set forth in this Section 13, Seller hereby
expressly waives, relinquishes and releases any other right or remedy available
to it at law, in equity or otherwise by reason of Purchaser's default hereunder
or Purchaser's failure or refusal to perform its obligations hereunder.
14. Remedies on Default of Seller.
If for any reason Seller fails, neglects or refuses to perform
its obligations under this Agreement, Purchaser may, as its sole remedies,
either seek specific performance (provided that an action for specific
performance is commenced within 90 days of the occurrence of the default by
Seller) or elect to terminate this Agreement and (subject to the terms and
conditions of Section 36 hereof) receive all monies and the Deposit paid to
Escrow Agent pursuant to this Agreement, and any interest earned thereon,
whereupon each of the parties shall be relieved of all further liability to the
other hereunder, except for the Surviving Obligations. Purchaser agrees that the
foregoing remedies shall be the sole and exclusive remedies available to
Purchaser in the event of a default by Seller and Purchaser hereby waives any
and all other rights, in equity or at law, which it might otherwise have against
Seller (including, without limitation, the right to any consequential or other
damages) in connection with any such default.
15. Risk of Loss; Eminent Domain.
(a) If, prior to the Closing, all or any portion of the Buildings are damaged by
fire, vandalism, acts of God or other casualty or cause, Seller shall promptly
give Purchaser written notice of any such damage, together with Seller's
estimate of the cost and period of repair and restoration. In any such event:
(i) in the case of damage to the Buildings of less than $250,000.00 and from a
risk "fully covered" by Seller's insurance, Purchaser shall take the Buildings
at the Closing as-is, together with the insurance proceeds or the right to
receive the same and a credit against the Purchase Price for any deductible; or
(ii) in the case of either (1) damage to the Buildings of $250,000.00 or more,
or (2) damage to the Buildings from a risk not covered by Seller's insurance,
Purchaser shall have the option of (x) taking the Buildings at the Closing in
accordance with item (i) above or (y) terminating this Agreement by delivering
notice of its decision to Seller within fifteen (15) days of receipt of Seller's
notice of any such damage. "Fully covered" for purposes of this Agreement shall
mean that there are paid sufficient insurance proceeds, together with the amount
of any applicable deductible, on account of the subject casualty to fully repair
and restore the damaged portion of the Buildings to its pre-casualty condition.
If pursuant to this Section 15(a), Purchaser is either obligated or elects to
take the Buildings as-is together with the insurance proceeds or the right to
receive the same Seller agrees to permit Purchaser to participate in any loss
adjustment negotiations, legal actions and agreements with the insurance
company, and to assign to Purchaser at the Closing its rights to such insurance
proceeds and will not settle any insurance claims or legal actions relating
thereto without Purchaser's prior written consent.
(b) If, prior to Closing, all or any "significant" portion (as hereinafter
defined) of the Premises is taken by eminent domain (or is the subject of a
pending or contemplated taking which has not been consummated), Seller shall
notify Purchaser of such fact and Purchaser shall have the option to terminate
this Agreement upon written notice to Seller given not later than fifteen (15)
days after Purchaser's receipt of Seller's notice. If this Agreement is so
terminated, the provisions of Section 15(c) shall apply. If Purchaser does not
elect to so terminate this Agreement or if an "insignificant" portion
("insignificant" is herein deemed to be any taking which is not "significant")
of the Premises is taken by eminent domain or condemnation, Purchaser shall
proceed to Closing as provided in this Agreement without abatement of or
adjustment to the Purchase Price and, at Closing, Seller shall assign and turn
over all compensation and damages awarded or the right to receive same with
respect to such taking, condemnation or eminent domain. A "significant portion"
includes: any portion of the Buildings; a taking entitling any tenant of the
Premises to abate rent or terminate their lease; the parking areas (to the
extent the number of parking spaces is reduced below that which is legally
required); or the predominant means of ingress thereto or egress therefrom. (c)
If this Agreement is terminated pursuant to this Section 15, the Deposit and all
interest earned thereon shall be delivered by Escrow Agent to Purchaser,
subject, however, to Purchaser's obligation to return the Inspection Materials
to Seller, and the parties hereto shall be released from all further obligations
and liabilities hereunder, except for the Surviving Obligations. 16. Attorneys'
Fees.
In the event either party hereto shall default in the performance
of any of the terms and conditions of this Agreement, the prevailing party shall
be entitled to recover all costs, charges and expenses of enforcement, including
reasonable attorneys' and paralegal fees, which reasonable fees shall include
attorneys' and paralegal fees incurred in any trial or appellate proceedings.
17. Binding Effect.
This Agreement shall be binding upon, shall inure to the benefit
of, and shall be enforceable by, the parties hereto and their respective heirs,
personal representatives, successors and permitted assigns.
18. Governing Law.
This Agreement shall be governed by and construed under and in
accordance with the laws of the State of in which the Premises is located.
19. Time of Essence.
Time shall be deemed of the essence with respect to consummating
the transactions contemplated under this Agreement on the Closing Date and with
respect to all other obligations of Purchaser and Seller hereunder.
20. Counterparts.
This Agreement may be executed in one or more counterparts each
of which shall be deemed an original but all of which shall constitute one and
the same Agreement.
21. Agreement not to be Recorded.
This Agreement shall not be recorded in the public records. Any
attempts to record this instrument by or on behalf of Purchaser shall, at
Seller's option, cause all of the effect of enforcement of any of its terms to
become null and void, and same shall not constitute constructive notice of its
existence or constitute a cloud on title. Purchaser hereby indemnities and
exonerates Seller from all loss, claim, expense, liability, action or demand
(including, but not limited to, reasonable counsel fees and expenses through and
including all appellate proceedings) arising out of or in connection with the
improper or unauthorized recordation of this Agreement or any memorandum or
notice thereof or any reference hereto by Purchaser or any agent or
representative of Purchaser in any recorded document.
22. Waiver.
Except as otherwise provided herein, the failure of Seller or
Purchaser to insist upon or enforce any of their respective rights hereunder
shall not constitute a waiver thereof.
23. Construction.
Each party hereto acknowledges that all parties hereto have
participated equally in the drafting of this Agreement and that accordingly, no
court construing this Agreement shall construe it more stringently against one
party than the other.
24. Insertion of corrections or Modifications.
Typewritten or handwritten provisions inserted in this Agreement
or in the exhibits hereto (and initialed by the parties) shall control all
printed provisions in conflict therewith.
25. Captions.
The captions used herein have been included for convenience of
reference only and shall not be deemed to vary the content of this Agreement or
limit the provisions or scope of any section or paragraph hereof.
26. Pronouns.
All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, neuter, singular, or plural as the identity of the
person or entity may require.
27. Severability.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but in the event that any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
28. Brokers.
TMW Realty Services, Inc. ("TMW") is a licensed real estate
broker in Florida and is representing the interests of Seller. Beacon Realty
("Beacon") is a licensed real estate broker in Florida and is representing the
interests of Purchaser (TMW and Beacon are hereinafter collectively referred to
as "Brokers"). If, and only if, Purchaser purchases the Premises from Seller
pursuant to this Agreement, Seller shall pay at Closing to TMW and Beacon a
sales commission pursuant to a separate written agreement. Each party hereto
agrees to indemnify, defend and hold the other harmless from and against any and
all claims, causes of action, losses, costs, expenses, damages or liabilities,
including reasonable attorneys' fees and disbursements, which the other may
sustain, incur or be exposed to, by reason of any claim or claims by any broker,
finder or other person, except Brokers, for fees, commissions or other
compensation arising out of the transactions contemplated in this Agreement if
such claim or claims are based in whole or in part on dealings, discussions or
agreements with the indemnifying party; provided, however, that Purchaser shall
not indemnify Seller against any claims of Brokers. The obligations and
representations contained in this Section 28 shall survive the termination of
this Agreement and the Closing.
29. Assignment.
This Agreement may not be assigned by Purchaser without the prior
written consent of Seller. Notwithstanding the foregoing to the contrary,
Purchaser may assign its rights under this Agreement on the Closing Date to any
subsidiary of Regency Realty Corporation, provided that such assignee assume all
obligations of Purchaser under the terms of this Agreement, with evidence of
such assumption being provided to Seller.
30. Merger.
All prior statements, understandings, letters of intent,
representations and agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone fully and completely
expresses the agreement between Seller and Purchaser in connection with this
transaction and which is entered into after full investigation, neither party
relying upon any statement, understanding, representation or agreement made by
the other not embodied in this Agreement. Except as otherwise expressly provided
herein, all of Seller's representations, warranties, covenants and agreements
herein shall merge in the documents and agreements executed at the Closing and
shall not survive the Closing.
31. Exhibits.
All of the Exhibits annexed hereto are incorporated herein by
reference and form a part of this Agreement.
32. Use of the Word "Herein'.
Use of the words "herein," "hereof," "hereunder" and any other
words of similar import refer to this Agreement as a whole and not to any
particular article, section or other paragraph of this Agreement unless
specifically noted otherwise in this Agreement.
33. Date of Performance.
If the date of the performance of any term, provision or
condition of this Agreement shall happen to fall on a Saturday, Sunday or other
non-business day, the date for the performance of such term, provision or
condition shall be extended to the next succeeding business day immediately
thereafter occurring.
34. Third Parties.
This Agreement shall not be deemed to confer in favor of any
third parties any rights whatsoever as third-party beneficiaries, the parties
hereto intending by the provisions hereof to confer no such benefits or status.
35. Acceptance of the Deed.
The delivery by Seller and the acceptance by Purchaser of the
Deed, and the delivery and acceptance by the parties of the Seller's Documents
and the Purchaser's Documents, shall be deemed to be the full performance and
discharge of every agreement, obligation, and covenant, guaranty,
representation, or warranty on the part of Seller and Purchaser, respectively,
to be performed pursuant to the provisions of this Agreement in respect of the
Premises, except for those paragraphs or sections specifically stated to survive
the Closing and except for the obligations of Purchaser under the Purchaser's
Documents. Certain provisions of this Agreement, as expressly provided herein,
shall survive Closing or termination. This Section shall survive the Closing.
36. Property Information and Confidentiality.
(a) Purchaser expressly acknowledges and agrees that all Inspection Materials
are confidential in nature and thus shall be kept in strict confidence.
Purchaser shall not use or allow the use, directly or indirectly, for any
purpose, other than evaluating the Premises, of or otherwise disclose, except to
Purchaser's Representatives, any of the Inspection Materials or notes, summaries
or other materials derived by Purchaser, Purchaser's Representatives, or their
respective agents or representatives, from the Inspection Materials, without the
prior written consent of Seller. Moreover, Purchaser agrees that, prior to the
Closing, the Inspection Materials will be transmitted only to Purchaser's
Representatives who need to know the Inspection Materials for the purpose of
evaluating the Premises and who are informed by the Purchaser of the
confidential nature of the Inspection Materials.
(b) Purchaser and Seller, for the benefit of each other, hereby agree that
between the Effective Date and the Closing Date, they will not release or cause
or permit to be released any press notices, publicity (oral or written) or
advertising promotion relating to, or otherwise announce or disclose or cause or
permit to be announced or disclosed, in any manner whatsoever, the terms,
conditions or substance of this Agreement or the transactions contemplated
herein, without first obtaining the written consent of the other party hereto.
It is understood that the foregoing shall not preclude either party from
discussing the substance or any relevant details of the transactions
contemplated in this Agreement, subject to the terms of Section 36(a), with any
of its attorneys, accountants, professional consultants or potential lenders, as
the case may be, or prevent either party hereto from complying with any laws
applicable to such party, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements. (c) Purchaser shall
indemnify and hold Seller and Seller's Affiliates harmless from and against any
and all claims, demands, causes of action, losses, damages, liabilities, costs
and expenses (including, without limitation, attorneys' fees and disbursements)
suffered or incurred by Seller or any of Seller's Affiliates and arising out of
or in connection with a breach by Purchaser or Purchaser's Representatives of
the provisions of this Section 36. (d) In the event this Agreement shall be
terminated for any reason, including, without limitation, Purchaser's exercise
of its termination option set forth in Section 5 hereof or pursuant to Sections
8(e), 11, 14 or 15 hereof, the return of a portion of the Deposit equal to
$5,000.00 to Purchaser is expressly conditioned upon Purchaser's having first
delivered to Seller all originals and copies of all Inspection Materials in the
possession of Purchaser, Purchaser's Representatives, and their respective
employees, consultants, agents and representatives. (e) In addition to any other
remedies available to Seller, Seller shall have the right to seek equitable
relief, including, without limitation, injunctive relief or specific
performance, against Purchaser or Purchaser's Representatives in order to
enforce the provisions of this Section 36 and the last sentence of Section 5(a)
hereof. (f) The terms and conditions of this Agreement and the transactions
contemplated hereby are confidential and shall not be communicated or otherwise
provided to third parties (other than the respective legal counsel, employees
and financial advisors) by any party hereto, or its agents or employees, without
the prior written consent of the other party. (g) The obligations and covenants
of Purchaser under this Section 36 shall survive any termination of this
Agreement prior to Closing hereunder. 37. Notices.
All notices, elections, consents, approvals, demands, objections,
requests or other communications (collectively, "Notices") which Seller or
Purchaser may be required or desire to give pursuant to, under or by virtue of
this Agreement must be in writing and sent by (a) first class U.S. certified
mail, return receipt requested, with postage prepaid, or (b) telecopier (with
receipt confirmed), or (c) express mail or courier (next day delivery),
addressed to the respective party at the address for each first set forth above.
Seller or Purchaser may designate another addressee or change its address for
notices and other communications hereunder by a notice given to the other in the
manner provided in this Section 37. A notice or other communication shall be
deemed to have been properly sent and given when delivered in compliance with
the provisions of this Section. If sent by certified mail, a Notice shall be
deemed received on the third business day following the date it is deposited in
the U.S. mail. If sent by telecopier, express mail, courier or personal
delivery, a Notice shall be deemed received on the date it is received by the
other party
38. No Modification.
This Agreement constitutes the entire agreement between the
parties hereto with respect to the transactions contemplated hereby and it
supersedes all prior understandings or agreements between the parties as to the
subject matter hereof. No term or provision of this Agreement may be changed or
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
39. Waiver of Claims Against Seller's Affiliates.
Purchaser agrees that it does not have and will not have any
claims or causes of action against any of Seller's Affiliates arising out of or
in connection with this Agreement or the transactions contemplated hereby.
Purchaser agrees to look solely to Seller and its assets for the satisfaction of
any liability or obligation arising under this Agreement or the transactions
contemplated hereby, or for the performance of any of the covenants, warranties
or other agreements contained herein, and further agrees not to sue or otherwise
seek to enforce any personal obligation against any of Seller's Affiliates with
respect to any matters arising out of or in connection with this Agreement or
the transactions contemplated hereby. Without limiting the generality of the
foregoing provisions of this Section 39, Purchaser hereby unconditionally and
irrevocably waives any and all claims and causes of action of any nature
whatsoever it may now or hereafter have against Seller's Affiliates, and hereby
unconditionally and irrevocably releases and discharges Seller's Affiliates from
any and all liability whatsoever which may now or hereafter accrue in favor of
Purchaser against Seller's Affiliates, in connection with or arising out of this
Agreement or the transactions contemplated hereby. The provisions of this
Section 39 shall survive the termination of this Agreement and the Closing.
40. 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.
IN WITNESS WHEREOF, Seller and Purchaser have caused these
presents to be executed, on the date first above written.
SELLER:
METEOR INDUSTRIEBETEILIGUNGSGESELLSCHAFT mbH
By:________________________________________
Name:_________________________________
Title:________________________________
PURCHASER:
RRC ACQUISITIONS, INC., a Florida corporation
By:________________________________________
Name:_________________________________
Title:________________________________
Attest:____________________________________
Name:_________________________________
Title:________________________________
LIST OF EXHIBITS
Exhibit A Land Description
Exhibit B Audit Representation Letter
Exhibit C Tenant Estoppel Letter
Accountants' Consent
The Board of Directors
Regency Realty Corporation:
We consent to incorporation by reference in the registration statements, (No.
33-86886, No. 333-930, No. 333-2546, and No. 333-31077) on Form S-3 and (No.
333-24971) on Form S-8, of Regency Realty Corporation of our reports, with
respect to the Statements of Revenues and Certain Expenses for the year ended
December 31, 1996, of the following entities:
Name of audited entity Date of audit report
---------------------- --------------------
Midland Properties November 21, 1997
Pinetree Plaza January 27, 1998
Gardens Square Shopping Center January 27, 1998
The above reports appear in the Form 8-K of Regency Realty Corporation dated
February 4, 1998.
KPMG PEAT MARWICK LLP
Jacksonville, Florida
February 4, 1998
