AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE is made by and between CIGNA REAL
ESTATE FUND S LIMITED PARTNERSHIP, a Connecticut limited partnership ("Seller"),
and RRC ACQUISITIONS, INC., a Florida corporation ("Purchaser"), as of the
"Effective Date" (as defined below).
Article I.
Property
Seller hereby agrees to sell, and Purchaser hereby agrees to buy, all of
the following property: (a) a parcel of real property (the "Land"), located in
the County of Hillsborough, State of Florida, more particularly described on
Exhibit A attached to this Agreement; (b) the buildings and other improvements
located on the Land, being a shopping center generally known as University
Collection (the "Improvements"); (c) all tenant leases relating to the
Improvements, being the leases referred to on the Rent Roll attached hereto as
Exhibit B (the Land, Improvements, and tenant leases are referred to herein,
collectively, as the "Real Property"); and (d) all fixtures, equipment, and
other personal property (both tangible and intangible, including, without
limitation, any service and maintenance agreements applicable thereto, other
than the property management agreement, which shall be terminated) owned by
Seller and contained in or related to the Improvements, to the extent assignable
(the "Personal Property") (collectively, the Real Property and the Personal
Property are sometimes referred to herein as the "Property").
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Article II.
Purchase Price and Deposits
The purchase price which the Purchaser agrees to pay and the Seller
agrees to accept for the Property shall be the sum of ELEVEN MILLION FIVE
HUNDRED THOUSAND DOLLARS ($11,500,000.00)(hereinafter referred to as the
"Purchase Price"), subject to adjustment as provided in Article V hereof,
payable as follows:
(a) An xxxxxxx money deposit ("Initial Deposit") of Seventy Five
Thousand Dollars ($75,000.00), in cash, to be deposited with XXXXXXX,
XXXXX & XXXX, P.A., 000 Xxxxx Xxxx Xxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000 ("Escrow Agent") within one (1) business day after execution
hereof by both parties, such amount to be held in escrow and deposited
in an interest-bearing account; and
(b) In accordance with Section 6.3 hereof, Purchaser shall
deposit an additional $25,000.00 ("Second Deposit") with Escrow Agent,
such amount to be held in the same account as the Initial Deposit.
Escrow Agent will acknowledge receipt of the Second Deposit by notice to
Seller within one (1) business day after receipt thereof. In the event
Purchaser does not deposit the Second Deposit with Escrow Agent as
required herein, Purchaser shall be in default under this Agreement.
The Initial Deposit and the Second Deposit are hereinafter
collectively referred to as the "Total Deposit." That portion of the
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Total Deposit held by Escrow Agent is sometimes referred to herein as
the "Deposit".
(c) The balance of the Purchase Price shall be paid at time of
Closing by Federal wire transfer, with the transfer of funds to Seller
to be completed by 2:00 p.m. on the day of the Closing.
The Total Deposit shall be paid to Seller at the Closing as a credit
against the Purchase Price. All interest shall be for Purchaser's account for
tax purposes and shall be considered to be a part of the Total Deposit for all
purposes. Notwithstanding the prior sentence, if Seller retains the Deposit in
accordance with Section 3.1 hereof, such interest shall be for Seller's account
for tax purposes.
In addition to the Initial Deposit, the Escrow Agent shall receive three
fully executed copies of this Agreement immediately after both parties have
executed it. The date of such deposit shall be acknowledged by the Escrow Agent
on all copies. The Escrow Agent shall retain one copy of this Agreement and
deliver one copy hereof to each of Purchaser and Seller.
The "Effective Date" of this Agreement shall be the date the Escrow
Agent receives executed counterparts hereof from both parties.
Article III.
Failure to Close
3.1 Purchaser's Default. If Seller has complied with all of the
covenants and conditions contained herein and is ready, willing and able to
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convey the Property in accordance with this Agreement and Purchaser fails to
consummate this Agreement as provided herein, then the parties hereto recognize
and agree that the damages that Seller will sustain as a result thereof will be
substantial, but difficult if not impossible to ascertain. Therefore, the
parties agree that, in the event of Purchaser's default, Seller shall, as its
sole remedy, be entitled to retain the Deposit as liquidated damages, and
neither party shall have any further rights or obligations with respect to the
other under this Agreement, except for the Surviving Covenants (hereinafter
defined).
3.2 Seller's Default. In the event that Purchaser has complied with all
of the covenants and conditions contained herein and is ready, willing and able
to take title to the Property in accordance with this Agreement, and Seller
fails to close as required herein, then Purchaser may, as its sole remedy,
either (a) terminate this Agreement and recover the Deposit and all reasonable
and bona fide out-of-pocket expenses incurred by it in connection with this
Agreement, provided, however, that Seller's liability for such expenses shall
not exceed $50,000.00; or (b) seek specific performance by Seller of Seller's
obligations in accordance with principles of Florida law, and, if successful in
obtaining specific performance, seek reimbursement of its actual attorneys' fees
reasonably incurred, provided, however, that Seller's liability for such
attorneys fees shall not exceed $100,000.00. Purchaser shall not be entitled to
enter a suit for specific performance unless (i) such suit includes a
representation that Purchaser had the ability to close hereunder at the time of
such alleged default, (ii) such suit is filed within thirty (30) days of
Seller's alleged default, and (iii) Purchaser has complied with all of its
obligations hereunder.
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Article IV.
Closing and Transfer of Title
4.1 Closing. The parties hereto agree to conduct a closing of this sale
(the "Closing") on or before 10:00 a.m. on the date ten (10) calendar days after
the "Feasibility Period" hereinafter provided ("Closing Date") in the office of
the Escrow Agent identified in Section 3.1 above, or at such other place as may
be agreed upon by the parties hereto. This Agreement shall terminate if transfer
of title is not completed by the Closing Date (unless such failure to close is
due to Seller's default, the date for Closing is extended pursuant to any
provision hereof, including, without limitation, the matters described in
Sections 4.2, 6.4, 6.5 and Article VII hereof, or the date for Closing is
extended by agreement of the parties, which agreement shall be confirmed in
writing).
4.2 Closing Procedure. At Closing, Seller shall execute and deliver or
cause to be delivered (a) a Special Warranty Deed, in the form attached hereto
as Exhibit C, proper for recording, conveying Seller's interest in the Real
Property to Purchaser, subject, however, to (i) any and all easements, rights of
way, encumbrances, liens, covenants, restrictions and other matters of record
and any and all matters shown (A) on any survey of the Real Property obtained by
Purchaser (including any survey obtained pursuant to Section 6.1) or otherwise
disclosed to Purchaser (except monetary liens of record shown in the Title
Commitment or appearing of record between the date of the Title Commitment and
the Closing Date other than liens for taxes not yet due), (B)
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in the Title Commitment (defined in Section 6.5) or (C) shown on the Survey (as
defined in Section 6.4) (or which an accurate survey of the Property would show)
and either approved by Purchaser or as to which objection has been waived by
Purchaser, (ii) taxes not yet due and payable, (iii) the rights of lessees,
ground lessees and licensees of space in the Improvements at the time of Closing
(to the extent shown on the Rent Roll), and (iv) any encumbrances created or
permitted by the terms of this Agreement; (b) a Xxxx of Sale in the form
attached hereto as Exhibit D, dated as of the date of Closing conveying to
Purchaser any and all Personal Property; (c) an Assignment of Leases in the form
attached hereto as Exhibit E, dated the date of Closing, assigning all of the
landlord's right, title and interest in and to any tenant and other leases
covering all or any portion of the Real Property; (d) Tenant Notification
Agreements (the "Tenant Notices"), dated the date of the Closing, executed by
Seller, and, among other things, relieving Seller of liability for tenant
security deposits (provided the security deposits are paid or credited to
Purchaser), notifying the tenants of the Real Property that the Property has
been sold to Purchaser and directing the tenants to pay rentals to Purchaser (or
Purchaser's designated agent); (e) the originals of all leases and, to the
extent in Seller's possession or under Seller's control, as-built plans and
specifications and maintenance and service contracts that are to be assumed; (f)
tenant estoppel certificates substantially in the form attached as Exhibit I
executed by (i) Fuddruckers, First Watch, Dockside, Jo Xxx Fabrics, Eckerd
Drugs, Write Occasions, Chili's and Kinko's; and (ii) at least seventy (70%) of
the other tenants (as measured by the number of tenants), it being understood
and agreed that Seller shall use its reasonable best efforts to obtain estoppels
from all tenants; (g) an updated Rent Roll, in the form of the Rent Roll
attached hereto as Exhibit B, dated within 15 days of the date
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of the Closing; (h) an affidavit that Seller is not a "foreign person" in the
form attached as Exhibit G; (i) a master key or duplicate key for all locks in
the Improvements; and (j) to the extent in the possession of Seller or Seller's
property management company, all maintenance records.
Purchaser acknowledges and agrees that Seller is under no obligation to
clear from the title any easements, rights of way, encumbrances, liens (except
mechanics' liens for work done for Seller, mortgage liens or judgment liens),
covenants, restrictions, or any other matters of record, or to cure any survey
objections of Purchaser, or to create any encumbrances on, or for the benefit
of, the Property. If Seller does not deliver title at Closing in a form
consistent with the Title Commitment and in accordance with the terms of this
Agreement, such failure shall not constitute a default or breach by Seller
hereunder, and notwithstanding any other provision of this Agreement Purchaser's
sole and exclusive remedy shall be to terminate this Agreement and receive a
return of the Total Deposit, or to accept conveyance by Seller of such title as
it delivers without reduction of the Purchase Price.
Purchaser acknowledges that Seller's obligation to obtain the tenant
estoppel certificates as provided in Section 4.2(f) above shall constitute a
condition of closing, the failure of which shall not constitute a default and,
notwithstanding any other provision of this Agreement, Purchaser's sole and
exclusive remedy for such failure shall be to terminate this Agreement and
receive a return of the Deposit. In the event Seller has not obtained the
estoppel certificates prior to the Closing Date, Seller may extend the Closing
Date for an additional ten (10) calendar days to attempt to obtain same.
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It is understood and agreed that in the event the estoppel certificates
are not substantially in the form of Exhibit "I" or if the information set forth
herein does not correlate with the Rent Roll attached hereto as Exhibit "B",
Purchaser may terminate this Agreement and receive its Deposit.
4.3 Purchaser's Performance. At the Closing, Purchaser will cause the
Purchase Price to be delivered to Seller, will execute and deliver the Tenant
Notices, the Assignment of Leases, the Xxxx of Sale and all other appropriate
closing documents. Purchaser's obligation shall be contingent upon its obtaining
an Owner's Title Insurance Policy (the "Owner's Title Policy") from a "Title
Company" selected by Purchaser dated no earlier than the date of the recording
of the Deed, in the full amount of the Purchase Price, insuring that good and
indefeasible fee simple title to the Property is vested in Purchaser, containing
no exceptions to such title other than the standard printed exceptions
(provided, however, that (i) if a proper survey is provided by Purchaser, the
printed survey exception must be deleted, except for matters shown on the
Survey, (ii) the exception as to ad valorem taxes shall be limited to taxes for
the current and subsequent years, (iii) the exception for tenants and parties in
possession shall be limited to those tenants, licensees, and occupants shown on
the Rent Roll delivered at Closing), those items listed on Schedule "B" of the
Title Commitment, and encumbrances created or permitted by the terms of this
Agreement and (iv) the exception for mechanics' liens must be deleted. Purchaser
shall use all reasonable efforts to obtain the Owner's Title Policy.
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4.4 Evidence of Authority; Miscellaneous. Both parties will deliver to
the Title Company and each other such evidence or documents as may reasonably be
required by the Title Company or either party hereto evidencing the power and
authority of Seller and Purchaser and the due authority of, and execution and
delivery by, any person or persons who are executing any of the documents
required hereunder in connection with the sale of the Property. Both parties
will execute and deliver such other documents as are reasonably required to
effect the intent of this Agreement.
Article V.
Prorations of Rents, Taxes, Etc.
Real estate taxes for the year of closing shall be prorated as of the
date of Closing, based on maximum discount if tenants' payments for real estate
taxes are calculated based on maximum discount, either using actual tax figures
or, if actual figures are not available, then using as a basis for said
proration the most recent assessed value of the Real Estate multiplied by the
most current tax rate, with a subsequent cash adjustment to be made between
Purchaser and Seller when actual tax figures are available. Personal property
taxes, annual permit or inspection fees, sewer charges and other expenses normal
to the operation and maintenance of the Property shall also be prorated as of
the date of Closing. Rents that have been collected for the month of the Closing
will be prorated at the Closing, effective as of the date of the Closing. With
regard to rents that are delinquent as of the date of the Closing, (i) no
proration will be made at the Closing, (ii) Purchaser will make a good faith
effort after the Closing to collect the rents in the usual course of Purchaser's
operation of the Property, (iii) Purchaser will apply
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all rents collected first to current rents and, unless specifically designated
otherwise by the tenant, post-closing delinquent rents and the excess amount, if
any, shall be applied to the delinquent rent owed to Seller, and (iv) Purchaser
will provide Seller with a copy of any correspondence received from or mailed to
tenants in connection with rents due Seller under the terms of this Agreement.
It is agreed, however, that Purchaser will not be obligated to institute any
lawsuit or other collection procedures to collect delinquent rents. Rents
collected by Purchaser after the Closing Date, to which Seller is entitled,
shall be promptly paid to Seller. Seller shall retain the right to take legal
action, if necessary, to collect any delinquent rents not collected by Purchaser
and Purchaser shall not interfere with and shall cooperate with such legal
action.
Percentage Rents and tenant reimbursements shall also be prorated, based
on the number of days in the applicable period. Percentage Rents and tenant
reimbursements not yet due and payable at Closing but allocable to the period
Seller owned the Property shall be collected by Purchaser when due and paid to
Seller upon receipt. Purchaser shall use commercially reasonable efforts to
collect such amounts and shall provide Seller with a copy of any correspondence
received from or sent to tenants in connection with percentage rents and tenant
reimbursements allocable to Seller. Notwithstanding the foregoing, Seller shall
retain the right to take legal action if necessary to collect any percentage
rents and tenant reimbursements not collected by Purchaser within three (3)
months of its due date and Purchaser shall not interfere with and shall
cooperate with any such legal action.
As of the Closing Date, Purchaser shall be entitled to a credit for any
tenant deposits under the leases, and for any prepaid rent covering periods
after the Closing.
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Final readings on all gas, water and electric meters shall be made as of
the date of closing, if possible. If final readings are not possible, gas, water
and electricity charges will be prorated based on the most recent period for
which costs are available. Any deposits made by Seller with utility companies
shall be returned to Seller. Purchaser shall be responsible for making all
arrangements for the continuation of utility services. After the Closing,
Purchaser will assume full responsibility for all security deposits and advance
rental deposits of current tenants of the Real Property currently held by
Seller, which items will be itemized by Seller and transferred and paid over to
Purchaser at the Closing.
All items (including taxes, but excluding tenant reimbursements and
percentage rent which is not due on or prior to Closing) that are not subject to
an exact determination shall be estimated by the parties. When any item so
estimated is, within six (6) months after the Closing capable of exact
determination, the party in possession of the facts necessary to make the
determination shall send the other party a detailed report on the exact
determination so made and the parties shall adjust the prior estimate within
thirty (30) days after both parties have received said reports.
All pro-rations shall be as of 12:01 a.m. on the Closing Date if closing
proceeds are received by Seller prior to 2:00 p.m. on the Closing Date.
If not paid prior to Closing, Seller shall remain responsible for
leasing commissions and tenant improvement costs in connection with the lease to
First Watch Enterprises, Inc. (the "First Watch Lease"). Purchaser shall receive
a credit for any free rent under this Lease which extends beyond Closing.
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ARTICLE VI.
Purchaser Inspections and Contingencies
6.1 Document Inspection. Seller has made or will make available within
three (3) days from the Effective Date of this Agreement the following items
relating to the Real Property for review by Purchaser to the extent in Seller's
or Seller's property manager's possession:
(1) a copy of Seller's policy of title insurance;
(2) all plans, drawings, and specifications and "as built" plans or
drawings related to the Property and any third-party soil
reports, environmental reports, engineering and architectural
studies, grading plans, topographical maps, and similar data
relating to the Property;
(3) a list and copies of all licenses, permits and approvals
regarding the Property;
(4) service contracts and similar agreements related to the Property;
(5) Seller's existing survey of the Property;
(6) copies of any leases and other occupancy agreements applicable to
the Property; and
(7) 1996 operating statements for the Property.
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Purchaser agrees that if for any reason the Closing is not consummated,
Purchaser will immediately return to Seller all materials furnished to Purchaser
pursuant to this Agreement, together with any due diligence material obtained by
Purchaser during the "Feasibility Period", described below.
6.2 Physical Inspection. In addition to the items set forth in Section
6.1, Seller will make the Property available for inspection by Purchaser and
Purchaser may, at Purchaser's costs and risk, conduct such engineering and/or
market and economic feasibility studies of the Property and undertake such
physical inspection of the Property and such other investigations as Purchaser
deems appropriate as soon as possible after the Effective Date of this
Agreement. Purchaser shall give Seller reasonable oral or written notice of all
proposed activities to be undertaken on the Property, and Seller's consent
thereto shall be required but shall not be unreasonably withheld or delayed.
Such activity shall be coordinated with the designated representative of CIGNA
Investments, Inc. and shall not unreasonably interfere with the operation of the
Property. Purchaser may conduct interviews with tenants of the Property provided
that Purchaser has scheduled such interviews with a representative of Seller and
the "Authorized Broker" hereinafter defined.
Purchaser hereby agrees to pay, protect, defend, indemnify and save
Seller and the Property free and harmless against all liabilities, obligations,
claims (including mechanic's lien claims), damages, penalties, causes of action,
judgments, costs and expenses (including, without
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limitation, attorneys' fees and expenses) (whether involving bodily injury or
property damage) imposed upon, incurred by or asserted against Seller in
connection with or arising out of the entry upon the Real Property by
Purchaser's employees, agents or independent contractors and the actions of such
persons on the Real Property (or involving mechanic's liens as a result
thereof). In the event any part of the Property is damaged or excavated by
Purchaser, its employees, agents or independent contractors, or Regency, its
employees, agents or independent contractors, Purchaser and Regency agree in the
event its purchase hereunder is not consummated, to make such additional
payments to Seller as may be reasonably required to return the Property to its
condition immediately prior to such damage or excavation or, at Seller's option,
to cause such work to be done. Notwithstanding any provision to the contrary
herein, Purchaser's obligations under this subparagraph shall be joint and
several and shall survive the expiration or termination of this Agreement, and
shall survive Closing.
Prior to any such entry on the Real Property by Purchaser's
employees, agents or independent contractors, Purchaser shall provide Seller
with evidence of insurance in form and substance acceptable to Seller with
respect to all such inspections conducted upon the Real Property.
6.3. Feasibility Period. Purchaser shall have a period commencing with
the Effective Date and terminating on the fortieth (40th) calendar date
thereafter to conduct its inspection of the documents delivered in accordance
with Section 6.1 and to conduct physical inspections of the Property as set
forth in Section 6.2 (the "Feasibility Period"). On or before the last day of
the Feasibility Period, Purchaser may, in its sole discretion without obligation
to specify which aspect of its inspection was unsatisfactory, terminate this
Agreement by providing a written notice to Seller and Escrow
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Agent so providing. Such notice to Seller shall include all documents provided
to Seller as well as all inspection reports. Upon receipt of such notice, this
Agreement shall terminate and the Escrow Agent shall return the Deposit to
Purchaser, and neither party shall have any obligation to the other, except for
the Surviving Covenants. If Purchaser fails to provide such notice of
termination on or before the last day of the Feasibility Period, Purchaser shall
be deemed to have approved such inspections. Purchaser shall thereafter deliver
the Second Deposit to Escrow Agent and this contract shall remain in full force
and effect.
6.4. Survey Contingency. Purchaser's obligation to purchase the Property
is subject to its obtaining, within fifteen (15) days after the Effective Date,
an ALTA survey of the Real Property by a registered surveyor (the "Survey"). The
Survey shall show the location of all improvements, structures, driveways,
parking areas, easements, rights of way, and any encroachments. Purchaser shall
use its best efforts to obtain the Survey. Purchaser shall provide a copy of the
Survey, which shall be certified to Purchaser and Seller, to Seller immediately
upon its receipt thereof.
Purchaser shall have until five (5) days after receipt thereof to object
in writing to the Survey, including any objection to the boundaries set forth in
the Survey and to the legal description. This contingency shall be deemed
satisfied or waived if Seller has not received written notice of Purchaser's
objection before such date. Any such written notice shall state all of
Purchaser's objections with specificity. Upon receipt of such notice, Seller
may, but shall not be obligated to, cure such objections. If Seller cures such
objections within 15 days, or, if such objections are such that they
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cannot be cured within 15 days and Seller has commenced curing such objections
and thereafter diligently proceeds to perfect such cure (but in no event beyond
45 days unless agreed to by Purchaser), then this Agreement shall continue in
force and effect, and the Closing Date shall be adjusted accordingly. If Seller
is unable to, or chooses not to, cure such objections within the time permitted,
this Agreement shall terminate, Seller shall instruct the Escrow Agent to return
the Deposit to Purchaser, and neither party shall have any further obligations
hereunder except for the Surviving Covenants. Notwithstanding the foregoing,
however, Purchaser may waive such objections that Seller is unable to or chooses
not to cure, and upon receipt by Seller of such waiver in full from Purchaser
within 10 days of notice from Seller that it is unable or chooses not to cure
such objections, this Agreement shall remain in full force and effect with no
reduction in the Purchase Price.
If requested by Seller, Purchaser will confirm in writing whether this
survey contingency has been satisfied and, if so, the date on which it was
satisfied. Seller shall provide a copy of the Survey to Purchaser at or prior to
Closing.
6.5. Title Contingency. Purchaser's obligation to purchase the Property
is subject to its obtaining within fifteen (15) days after the Effective Date a
commitment for an Owner's Title Insurance Policy (the "Title Commitment"), dated
not earlier than the Effective Date of this Agreement, issued by the Title
Company, together with such copies of all items and documents referred to in the
Title Commitment. The Title Commitment will commit the Title Company to issue
the Owner's Title Policy to Purchaser at the
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Closing in the amount of the Purchase Price. Purchaser shall use its best
efforts to obtain the Title Commitment. Purchaser shall deliver a copy of the
Title Commitment to Seller immediately upon Purchaser's receipt thereof.
Purchaser shall have until five (5) days after its receipt thereof to
state any objections in writing. This contingency shall be deemed satisfied or
waived if such written notice of objection is not provided by Purchaser on or
before the expiration of such five-day period. Such written notice of objection
shall state all of Purchaser's objections with specificity. Upon receipt of such
notice, Seller may, but shall not be obligated to, cure such objection. If
Seller cures such objections within 15 days, or, if such objections are such
that they cannot be cured within 15 days and Seller has commenced curing such
objections and thereafter diligently proceeds to perfect such cure, then this
Agreement shall continue in full force and effect and the Closing Date shall be
adjusted accordingly. If Seller is unable or chooses not to cure such objections
within the time permitted, then this Agreement shall terminate, and Seller shall
instruct the Escrow Agent to return the Initial Deposit to Purchaser, and
neither party shall have any further obligations hereunder except for the
Surviving Covenants. Notwithstanding the foregoing, however, Purchaser may waive
such objections that Seller is unable or chooses not to cure within 10 days
after receipt of a notice that Seller is unable or chooses not to cure such
objections, and upon receipt by Seller of such waiver in full from Purchaser,
this Agreement shall remain in full force and effect with no reduction in the
Purchase Price.
If requested by Seller, Purchaser will confirm in writing whether this
title contingency has been satisfied and, if so, the date on which it was
satisfied. Seller assumes no obligations to Purchaser with respect to matters
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disclosed as title exceptions in the Title Commitment. Purchaser shall promptly
deliver to Seller a copy of the Title Commitment upon Purchser's receipt
thereof.
Article VII.
Loss due to Casualty or Condemnation
7.1 Loss due to Condemnation. In the event of a condemnation of all or a
Substantial Portion of the Real Property which condemnation shall or would
render a Substantial Portion of the Real Property untenantable, or if any
portion of the building or parking area is taken, either party may, upon written
notice to the other party given within 10 days of receipt of notice of such
event, cancel this Agreement, in which event Seller shall instruct the Title
Company to return the Deposit to Purchaser, this Agreement shall terminate and
neither party shall have any rights or obligations hereunder except for the
Surviving Covenants. In the event that neither party elects to terminate, or if
the condemnation affects less than a Substantial Portion or does not affect the
building or parking area, then this Agreement shall remain in full force and
effect, and Seller shall be entitled to all monies received or collected by
reason of such condemnation prior to closing. In such event, the transaction
hereby contemplated shall close in accordance with the terms and conditions of
this Agreement except that there will be an abatement of the Purchase Price
equal to the amount of the net proceeds, less costs and attorney's fees, which
are received by Seller by reason of such condemnation prior to closing. If the
condemnation proceeding shall not have been concluded prior to the Closing, then
there shall be no abatement of the Purchase Price and Seller shall assign any
interest it has in the pending
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award to Purchaser. For purposes of this Section 7.1, a Substantial Portion
shall mean a condemnation of in excess of $250,000.00 in value of the Real
Property.
7.2 Loss due to Casualty. In the event of Substantial Loss or Damage to
the Real Property by fire or other casualty (not resulting from acts of
Purchaser), either party may, upon written notice to the other party given
within 10 days of receipt of notice of such event, cancel this Agreement in
which event Seller shall instruct the Title Company to return the Deposit to
Purchaser and this Agreement shall terminate and neither party shall have any
rights or obligations hereunder except for the Surviving Covenants. In the event
that neither party elects to terminate, or if the casualty results in less than
Substantial Loss or Damage, then this Agreement shall remain in full force and
effect and Seller shall be entitled to all insurance proceeds received or
collected by reason of such damage or loss, whereupon the transaction hereby
contemplated shall close in accordance with the terms and conditions of this
Agreement except that there will be abatement of the Purchase Price equal to the
amount of the net proceeds, less costs and attorney's fees, which are received
by Seller as a result of such damage or loss, provided that such abatement will
be reduced by the amount expended by Seller in accordance with Article VIII
hereof for restoration or preservation of the Property following the casualty.
Alternatively, Purchaser may, in its discretion, have Seller repair or replace
the damaged Property, and there shall be no abatement of the Purchase Price in
such case. However, Purchaser shall not be entitled to require Seller to effect
repair or replacement unless the loss is entirely covered by insurance (except
for any applicable deductible) and the repair or replacement will take no more
than three (3)
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months to complete. For purposes of this Section 7.2, "Substantial Loss or
Damage" shall mean loss or damage, the cost for repair of which exceeds
$250,000.00.
Article VIII.
Maintenance of the Property
Between the time of execution of this Agreement and the Closing, Seller
shall use its best efforts to maintain the Property in at least as good repair
as of the date of this Agreement, reasonable wear and tear excepted; except that
in the event of a fire or other casualty, damage or loss, Seller shall have no
duty to repair said damage except as provided in Section 7.2 hereof. However,
Seller may repair any such damage with Purchaser's prior, written approval and
may, without Purchaser's approval, repair damage where such repair is necessary
in Seller's reasonable opinion to preserve and protect the health and safety of
tenants of the Property or to preserve the Property from imminent risk of
further damage or if required to do so by Seller's insurance carrier or any
lease. Any such emergency repairs shall be reported to Purchaser within 48 hours
of their completion.
During the period after the Effective Date and prior to the Closing,
Seller shall not lease any portion of the Real Property unless such lease has
been approved in writing by Purchaser, which approval shall not be unreasonably
withheld. Any such proposed lease shall be on Seller's standard form of lease
and shall be reviewed and approved or rejected within five (5) business days
after receipt thereof by Purchaser. Failure to approve or reject such proposed
lease within such period shall be deemed approval. If the proposed lease is
rejected and Purchaser provides a reasonable rationale
Page 20
for such objection, then Seller shall not enter into such lease. With respect to
any leases entered into during such period, Purchaser shall assume all of
Seller's obligations as lessor thereunder, including paying the cost of all
tenant improvements and leasing commissions with respect thereto.
Seller shall deliver to Purchaser a copy of any new lease executed for
any portion of the Property.
Article IX.
Broker
Purchaser and Seller represent to each other that they have dealt with
no agent or broker who in any way has participated as a procuring cause of the
sale of the Property, except Xxxxxxx & Xxxxxxxxx of Florida, Inc. ("Authorized
Broker"). Seller shall pay a commission to the Authorized Broker at and if the
Closing occurs to the extent due pursuant to a separate written agreement
between Seller and Authorized Broker. The Authorized Broker shall be responsible
for paying any applicable co-broker under terms of any separate agreement
between them. Purchaser and Seller each agree to defend, indemnify and hold
harmless the other for any and all judgments, costs of suit, attorneys' fees,
and other reasonable expenses which the other may incur by reason of any action
or claim against the other by any broker, agent, or finder with whom the
indemnifying party has dealt arising out of this Agreement or any subsequent
sale of the Property to Purchaser, except for the above-described commissions,
which shall be paid by Seller. The provisions of this Article IX shall survive
the Closing and any termination of this Agreement.
Page 21
Article X.
Representations and Warranties
10.1 Limitations on Representations and Warranties. Purchaser hereby
agrees and acknowledges that, except as set forth in Section 10.2 below, neither
Seller nor any agent, attorney, employee or representative of Seller has made
any representation whatsoever regarding the subject matter of this sale, or any
part thereof, including (without limiting the generality of the foregoing)
representations as to the physical nature or condition of the Property or the
capabilities thereof, and that Purchaser, in executing, delivering and/or
performing this Agreement, does not rely upon any statement and/or information
to whomever made or given, directly or indirectly, orally or in writing, by any
individual, firm or corporation. Purchaser agrees to take the Real Property and
the Personal Property "as is," as of the date hereof, reasonable wear and tear,
and minor damage caused by the removal of any personal property or fixtures not
included in this sale, excepted. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES
AS TO THE PHYSICAL CONDITION OF THE PROPERTY OR THE SUITABILITY THEREOF FOR ANY
PURPOSE FOR WHICH PURCHASER MAY DESIRE TO USE IT. SELLER HEREBY EXPRESSLY
DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE AND ANY OTHER WARRANTIES OR REPRESENTATIONS AS TO THE PHYSICAL CONDITION
OF THE PROPERTY. PURCHASER, BY ACCEPTANCE OF THE DEED, AGREES THAT IT HAS
INSPECTED THE PROPERTY AND ACCEPTS SAME "AS IS" AND "WITH ALL FAULTS".
Purchaser understands that any financial statements and data, including,
without limitation, gross rental income, operating expenses and cash flow
statements, to be made available by Seller to Purchaser, will be unaudited
Page 22
financial statements and data not prepared or reviewed by independent public
accountants, and that Seller makes no representation as to the accuracy or
completeness thereof. Seller shall make the books and records of the Property
for 1994 and 1995 available to Seller for a period of sixty (60) days after the
Closing to permit Purchaser's accountants to conduct an audit; provided,
however, Seller shall have no expense, liability or responsibility for anything
shown in such audit. Purchaser shall indemnify and hold harmless the Seller from
any claim, damage, loss or liability to which Seller is at any time subjected by
any person as a result of its compliance with the previous sentence. The
provisions of this paragraph shall survive Closing.
In the event Purchaser's accountants request an audit letter with
respect to such audits, Seller shall supply such a letter in a form reasonably
acceptable to Seller; provided, that, in no event shall such letter expand or
enhance Seller's representations and warranties under this Agreement.
10.2 Representations and Warranties. Seller makes the following
representations and warranties and agrees that Purchaser's obligations under
this Agreement are conditioned upon the truth and accuracy of such
representations and warranties, both as of this date and as of the date of the
Closing:
(a) Seller has the corporate power and authority to enter into this
Agreement and convey the Property to Purchaser.
(b) To the best of Seller's knowledge, Seller has received no notice
of any material existing, pending or threatened litigation, administrative
Page 23
proceeding or condemnation or sale in lieu thereof, with respect to any portion
of the Real Property, except as noted on Exhibit H attached hereto.
(c) Except for those tenants and licensees in possession of the Real
Property under written leases or license agreements for space in the Real
Property, as shown in the Rent Roll, to the best of Seller's knowledge there are
no parties in possession of, or claiming any possession to, any portion of the
Real Property as lessees, tenants at sufferance, licensees, trespassers or
otherwise.
(d) The updated Rent Roll for the Real Property, which shall be
delivered at the Closing, will be true, correct and complete as of the date set
forth thereon; no tenant will be entitled to any rebates, rent concessions, or
free rent (other than as reflected in said Rent Roll) and no rents due under any
of the tenant or other leases will have been assigned, hypothecated, or
encumbered, to any party except pursuant to documents to be released at Closing.
(e) There are no attachments or executions affecting the Property,
general assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, pending or, to the best of Seller's knowledge,
threatened against Seller.
(f) To the best of Seller's knowledge, (i) the Property is not
contaminated with any hazardous substance; (ii) Seller has not caused and will
not cause, and there never has occurred, the release of any hazardous substance
on the Property; and (iii) the Property is not subject to any
Page 24
federal, state or local "superfund" lien, proceedings, claim, liability or
action. The terms "hazardous substance" and "release" as used herein shall have
the same meaning and definition as set forth in paragraphs (14), (22) and (23),
respectively, of Title 42 U.S.C. Section 9601 and under any applicable Florida
law provided, however, that the term "hazardous substance" as used herein also
shall include "hazardous waste" as defined in paragraph (5) of 42 U.S.C. Section
6903 and "petroleum" as defined in paragraph (8) of 42 U.S.C. Section 6991. The
term "superfund" as used herein means the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, being Title 42 U.S.C. Section 9601
et seq., as amended, and any similar state statute or local ordinance applicable
to the Property, and all rules and regulations promulgated, administered and
enforced by any governmental agency or authority pursuant thereto.
Anything in the foregoing to the contrary notwithstanding, it is
understood and acknowledged by Purchaser that one of the tenants shown on the
Rent Roll is a dry cleaner that may be in violation of applicable Florida law,
and that Purchaser is obtaining an environmental audit with respect to such dry
cleaner and the Property as a whole.
10.3 Seller's Knowledge. Whenever the term "to the best of Seller's
knowledge" is used in this Agreement or in any representations and warranties
given to Purchaser at Closing, such knowledge shall be the actual knowledge of
Xxxx Xxxxxxxx(the "Key Personnel"), the personnel assigned to the Real Property
by CIGNA Investments, Inc., authorized agent for Seller, without investigation
or due diligence review. Seller shall have no duty to conduct any further
inquiry in making any such representations and warranties, and no knowledge of
any other person shall be imputed to the Key Personnel.
Page 25
10.4 Survival. All representations and warranties contained in Section
10.2 will survive the Closing of this transaction (but only as to the status of
facts as they exist as of the Closing, it being understood that Seller makes no
representations or warranties which would apply to changes or other matters
occurring after the Closing), but shall expire on the date one year from the
date of Closing, and no action on such representations and warranties may be
commenced after such expiration.
Article XI.
Liability of Seller
Neither Seller nor any independent property manager which Seller has
hired to manage the Property shall, by entering into this Agreement, become
liable for any costs or expenses incurred by Purchaser subsequent to the date of
Closing, including any labor performed on, or materials furnished to, the Real
Property, or for any leasing commissions or other fees or commissions due for
renewals or extensions of existing leases or otherwise (except with respect to
the First Watch Lease), or for compliance with any laws, requirements or
regulations of, or taxes, assessments or other charges thereafter due to any
governmental authority, or for any other charges or expenses whatsoever
pertaining to the Property or to the ownership, title, possession, use, or
occupancy of the Property, whether or not such costs and expenses were incurred
pursuant to obligations of Purchaser under this Agreement (including, without
limitation, any costs of compliance with presently-existing and future
environmental laws, any environmental remediation costs, and any costs of, or
awards of damages for, damage to the environment, to natural resources, or to
any third party, it being the intent
Page 26
of this Agreement, as between Purchaser and Seller, to shift all such liability
to Purchaser, and Purchaser hereby agrees to defend, indemnify and hold Seller
harmless from any such liability for such costs and expenses. Nothing herein
shall negate any liability of Seller, if any, which arises under the express
provisions hereof or of the Assignment and Assumption of Leases and Security
Deposits. The provisions of this Article XI shall survive closing.
Article XII.
Assignment
Except to a related party, Purchaser may not assign or transfer this
Agreement without prior written consent of Seller. No assignment shall relieve
Purchaser of any of its obligations under this Agreement.
Article XIII.
Notices
All notices hereunder or required by law shall be sent via any
nationally recognized commercial overnight carrier with provisions for receipt,
addressed to the parties hereto at their respective addresses set forth below or
as they have theretofore specified by written notice delivered in accordance
herewith: PURCHASER: RRC Acquisitions, Inc.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
with a copy to: Xxxxxxx X. Xxxxx, Esq.
Ulmer, Murchison, Xxxxx & Xxxxxx
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Page 27
SELLER: Cigna Real Estate Fund S
Limited Partnership
c/o CIGNA Investments, Inc.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xx. Xxxx x. XxXxxxxxx
with a copy to: CIGNA Corporation
Investment Law Department
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Mortgage and Real Estate Group, S-215A
ESCROW AGENT: Xxxxxxx, Xxxxx & Xxxx, P.A.
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Delivery will be deemed complete upon actual deposit with such delivery service.
Article XIV.
Expenses
Seller shall pay its own attorney's fees and documentary stamps on the
Deed. Purchaser shall pay all of Purchaser's attorneys' fees and expenses,
recording charges, sales taxes, the Title Company's fees, any Title Policy
premium and the cost of the Survey, notwithstanding any local practice to the
contrary.
Article XV.
Miscellaneous
15.1 Successors and Assigns. All the terms and conditions of this
Agreement are hereby made binding upon the executors, heirs, administrators,
successors and permitted assigns of both parties hereto.
Page 28
15.2 Gender. Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
15.3 Captions. The captions in this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit or prescribe the
scope or intent of this Agreement or any part hereof.
15.4 Construction. No provision of this Agreement shall be construed by
any Court or other judicial authority against any party hereto by reason of such
party's being deemed to have drafted or structured such provisions.
15.5 Entire Agreement. This Agreement constitutes the entire contract
between the parties hereto and there are no other oral or written promises,
conditions, representations, understandings or terms of any kind as conditions
or inducements to the execution hereof and none have been relied upon by either
party.
15.6 Recording. The parties agree that this Agreement shall not be
recorded. If Purchaser causes this Agreement or any notice or memorandum thereof
to be recorded, this Agreement shall be null and void at the option of the
Seller.
15.7 No Continuance. Purchaser acknowledges that there shall be no
assignment, transfer or continuance of any of Seller's insurance coverage or
of the property management contract.
Page 29
15.8 Time of Essence. Time is of the essence in this transaction.
15.9 Original Document. This Agreement may be executed by both parties
in counterparts in which event each shall be deemed an original.
15.10 Governing Law. This Agreement shall be construed, and the rights
and obligations of Seller and Purchaser hereunder shall be determined,in
accordance with the laws of the State of Florida.
15.11 Acceptance of Offer. This Agreement constitutes Purchaser's offer
to buy from Seller on the terms set forth herein and must be accepted by Seller
by signing three copies hereof and returning them to Escrow Agent no later than
July 23, 1996. If Seller has not accepted this Agreement by such date, then this
Agreement and the offer represented hereby shall automatically be revoked and
shall be of no further force or effect.
15.12 Confidentiality. Purchaser and Seller agree that all documents and
information concerning the Property delivered to Purchaser, the subject matter
of this Agreement, and all negotiations will remain confidential. Purchaser and
Seller will disclose such information only to those parties required to know it,
including, without limitation, employees of either of the parties, consultants
and attorneys engaged by either of the parties, and prospective or existing
investors and lenders.
15.13 Surviving Covenants. Notwithstanding any provisions hereof to
the contrary, the provisions of the second paragraph of Section 6.2 hereof and
the provisions of Article IX and Section 15.15 hereof (collectively, the
Page 30
"Surviving Covenants") shall survive the Closing and any termination of this
Agreement.
15.14 Approval. Seller's obligation to perform its duties hereunder is
contingent upon approval of the transaction by all required boards and
committees in accordance with the standard policies and procedures of CIGNA
Investments, Inc. Seller will seek such approvals during the period commencing
on the date of execution hereof by Purchaser, to and including the last day of
the Feasibility Period, and will notify Purchaser promptly of the decision of
such boards and committees. If the transaction is not approved by such date,
then Seller shall terminate this Agreement by giving notice thereof to
Purchaser, whereupon the Deposit shall be returned to Purchaser and neither
party shall have any further rights or duties hereunder except for the Surviving
Covenants.
15.15 Prevailing Party. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties shall be entitled
to recover reasonable and other costs incurred in that action or proceeding,
including those related to appeals, in addition to any other relief to which it
or they may be entitled. This provision shall survive Closing or other
termination of this Agreement.
15.16 No Recording. Neither this Agreement nor any reference to it
shall be placed of record in any county in the State of Florida.
Page 31
15.17 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.
WITNESS the following signatures.
EXECUTED BY PURCHASER this _____ day of __________________, 1996.
PURCHASER:
RRC ACQUISITIONS, INC.
By: _____________________________________
Name:
Title:
Fed. Tax I.D. No.____________________
EXECUTED BY SELLER this _____ day of _________________, 1996.
SELLER:
CIGNA REAL ESTATE FUND S LIMITED
PARTNERSHIP, a Connecticut limited
partnership
By CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, a Connecticut
corporation, its general partner
By CIGNA Investments, Inc., its
authorized agent
By:______________________________
Name:
Title:
Page 32
Receipt of original copies of this Agreement executed by Seller and Purchaser is
acknowledged this ____ day of ________________, 1996. Escrow Agent's performance
under this Agreement is subject to the Escrow Conditions set forth on Schedule
"A" hereto.
ESCROW AGENT:
XXXXXXX, XXXXX & XXXX, P.A.
By:_____________________________
Name:
Title:
Executed for purposes of being bound by Section 6.2 hereof.
XXXXXXX & WAKEFIELD OF FLORIDA,
INC., a Florida corporation
By:_________________________
Name:
Title:
Page 33
AGREEMENT OF PURCHASE AND SALE
BETWEEN
CIGNA REAL ESTATE FUND S
LIMITED PARTNERSHIP, SELLER
AND
RRC ACQUISITIONS, INC., PURCHASER
Property: University Collection
Tampa, Florida Effective Date: ____________
TABLE OF CONTENTS
PAGE
Article 1 Property............................................ 1
Article 2 Purchase Price and Deposits......................... 2
Article 3 Failure to Close.................................... 3
3.1 Purchaser's Default................................. 3
3.2 Seller's Default.................................... 4
Article 4 Closing and Transfer of Title....................... 5
4.1 Closing............................................. 5
4.2 Closing Procedure................................... 5
4.3 Purchaser's Performance............................. 8
4.4 Evidence of Authority; Miscellaneous................ 9
Article 5 Prorations of Rents, Taxes, Etc..................... 9
Article 6 Purchaser Inspections and Contingencies............. 12
6.1 Document Inspection................................. 12
6.2 Physical Inspection................................. 13
6.3 Feasibility Period.................................. 14
6.4 Survey Contingency.................................. 15
6.5 Title Contingency................................... 16
Article 7 Loss due to Casualty or Condemnation................ 18
7.1 Loss due to Condemnation............................ 18
7.2 Loss due to Casualty................................ 19
Article 8 Maintenance of the Property......................... 20
Article 9 Broker.............................................. 21
Article 10 Representations and Warranties...................... 22
10.1 Limitations on Representations and Warranties....... 22
10.2 Representations and Warranties...................... 23
10.3 Seller's Knowledge.................................. 25
10.4 Survival............................................ 26
Article 11 Liability of Seller................................. 26
Article 12 Assignment.......................................... 27
Article 13 Notices............................................. 27
Article 14 Expenses............................................ 28
TABLE OF CONTENTS (Continued)
PAGE
Article 15 Miscellaneous.................................. 28
15.1 Successors and Assigns......................... 28
15.2 Gender......................................... 29
15.3 Captions....................................... 29
15.4 Construction................................... 29
15.5 Entire Agreement............................... 29
15.6 Recording...................................... 29
15.7 No Continuance................................. 29
15.8 Time of Essence................................ 30
15.9 Original Document.............................. 30
15.10 Governing Law.................................. 30
15.11 Acceptance of Offer............................ 30
15.12 Confidentiality................................ 30
15.13 Surviving Covenants............................ 30
15.14 Approval....................................... 31
15.15 Prevailing Party .............................. 31
15.16 No Recording................................... 31
15.17 Radon Gas. . . . . . . . . . . . . . . . . . . .. 32
Exhibit A - Description of Land Exhibit B - Rent Roll
Exhibit C - Special Warranty Deed Exhibit D - Xxxx of
Sale Exhibit E - Assignment of Leases Exhibit F -
Intentionally Deleted Exhibit G - Form of Seller's
Affidavit of
Non-Foreign Status
Exhibit H - Pending Material Litigation
Exhibit I - Form of Estoppel
Schedule A - Escrow Conditions
