<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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) December 21, 1994
-----------------
IRT Property Company
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Georgia 1-7859 58-1366611
- --------------------------------------------------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
200 Galleria Parkway, Suite 1400, Atlanta, GA 30339
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (404) 955-4406
--------------
N/A
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(Former name or former address, if changed since last report)
1
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Item 2. Acquisition or Disposition of Assets.
On December 21, 1994, IRT Property Company (the "Company") acquired
eleven neighborhood and community shopping centers in Louisiana (the "Eleven
Centers") totaling approximately 1,350,000 square feet of retail space. The
Eleven Centers were acquired from a Massachusetts limited partnership and
various related or affiliated Louisiana partnerships. It is anticipated that
Stirling Properties, Inc., an affiliate of the Sellers, will continue to manage
the properties for the Company for a period of at least six months following
the Closing.
The total purchase price paid by the Company for the Eleven Centers
was approximately $75,842,000, of which approximately $15,880,411 is
represented by pre-existing mortgage debt to which three of the Eleven Centers
are subject. The Company paid the balance of the purchase price in cash.
The acquisition was pursuant to an Agreement for Purchase and Sale, as
amended, between the four partnerships and the Company dated November 23, 1994
(the "Agreement"). This Agreement covers the acquisition of a total of
thirteen centers, only eleven of which closed December 21, 1994. The
acquisition of the remaining two centers was delayed pending approval of the
lender under the mortgages, with one mortgage to be assumed by the Company and
one to be prepaid by the Seller. It is anticipated that the acquisition of the
two remaining centers will close on or about January 6, 1995, after which an
amendment to this Form 8-K will be filed covering the two additional centers.
The Agreement was negotiated at arms' length between the Company and
representatives of the sellers. The factors considered by the Company in
determining the price to be paid for the properties included their historical
and expected cash flow, nature of the tenancies and terms of leases in place,
occupancy rates, opportunities for alternative and new tenancies, current
operating costs and taxes of the properties and anticipated changes therein
under Company ownership, prospects for financing the centers in certain cases,
the physical condition and locations of the properties, the anticipated effect
on the Company's financial results (including particularly funds from
operations) and the ability to sustain and potentially increase its
distributions to shareholders, and other factors. The Company took into
consideration capitalization rates that it believes other shopping centers may
recently have sold for, but determined the price it was willing to pay
primarily on the factors discussed above relating to the properties themselves
and their fit into the Company's post-acquisition operations. No separate
independent appraisals were obtained in connection with the acquisition.
2
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Information regarding the Eleven Centers acquired December 21, 1994 is
as follows:
<TABLE>
<CAPTION>
Percent Year Principal
Shopping Center Area Leased Completed Tenants
--------------- ---- ------- --------- ---------
<S> <C> <C> <C> <C>
Ambassador Row 193,982 sq. ft. 97% 1980, Kmart(1)
Lafayette, LA 1991 K & B Drugs
Weiners
Ambassador Courtyard 156,283 sq. ft. 90% 1986, Amber's
Lafayette, LA 1991 Delchamps
Marshalls
Bluebonnet Village 89,879 sq. ft. 100% 1983 Delchamps
Baton Rouge, LA K & B Drugs
The Boulevard 68,012 sq. ft. 92% 1976, Campo Concept
Lafayette, LA 1994 Store
Piccadilly
The Crossing 113,989 sq. ft. 93% 1988, Albertsons
Slidell, LA 1993 Campo Concept
Store
Piccadilly
Millervillage 94,559 sq. ft. 95% 1983, Delchamps
Baton Rouge, LA 1992 K & B Drugs
Pinhook Plaza 190,371 sq. ft. 97% 1979, Delchamps
Lafayette, LA 1992 Kmart
K & B Drugs
Plaza Acadienne 105,419 sq. ft. 96% 1980 Delchamps
Eunice, LA Howard
Brothers(2)
K & B Drugs
Sherwood South 77,107 sq. ft. 100% 1972, Sav-A-Center
Baton Rouge, LA 1988, Eckerds
1992
Siegen Village 115,762 sq. ft. 96% 1988 Kmart
Baton Rouge, LA
Village at Northshore 144,373 sq. ft. 96% 1988, Delchamps
Slidell, LA 1993 Kirschman's
Service
Merchandise
---------
1,349,736
=========
</TABLE>
(1) Vacant but continues to pay rent under lease expiring in September 2006.
(2) Vacant but continues to pay rent under lease expiring in June 2005.
3
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The agreed upon purchase price and the costs of acquisition of the
Eleven Centers acquired December 21, 1994 were as follows:
<TABLE>
<CAPTION>
Mortgage
Shopping Center Cost to Company (1) Financing (2) Net Investment
--------------- ------------------- ------------- --------------
<S> <C> <C> <C>
Ambassador Row $ 9,696,440 $ - $ 9,696,440
Lafayette, LA
Ambassador Courtyard 11,597,751 - 11,597,751
Lafayette, LA
Bluebonnet Village 8,050,589 - 8,050,589
Baton Rouge, LA
The Boulevard 3,793,337 - 3,793,337
Lafayette, LA
The Crossing 4,495,652 - 4,495,652
Slidell, LA
Millervillage 7,588,527 - 7,588,527
Baton Rouge, LA
Pinhook Plaza 11,072,604 7,585,167 3,487,437
Lafayette, LA
Plaza Acadienne (3) 2,917,925 2,457,481 460,444
Eunice, LA
Sherwood South 1,984,695 - 1,984,695
Baton Rouge, LA
Siegen Village 6,677,883 - 6,677,883
Baton Rouge, LA
Village at Northshore 8,262,533 5,837,763 2,424,770
Slidell, LA
----------- ----------- -----------
$76,137,936 $15,880,411 $60,257,525
=========== =========== ===========
</TABLE>
(1) Initial purchase price of $75,842,000 plus estimated costs of
acquisition of $295,936.
(2) Represents pre-existing mortgages assumed at closing. Interest rates
range from 9% to 10.25%, maturing from 2000 to 2013, with certain call
provisions.
(3) Subject to two ground leases expiring in 1998 and 2008 with aggregate
annual ground rental payments of $31,500 plus 15% of percentage rentals
received.
4
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Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits
The following financial statements, pro forma financial information and
exhibits are a part of this report. The financial statements and pro forma
financial information are not yet complete and will be filed under cover of
Form 8-K/A as soon as practicable, and in any event not later than March 6,
1995.
(a) Financial Statements. Combined statement of revenues and
certain continuing expenses of the eleven shopping centers
listed below for the year ended December 31, 1994 (audited).
Ambassador Row, Lafayette, Louisiana
Ambassador Courtyard, Lafayette, Louisiana
Bluebonnet Village, Baton Rouge, Louisiana
The Boulevard, Lafayette, Louisiana
The Crossing, Slidell, Louisiana
Millervillage, Baton Rouge, Louisiana
Pinhook Plaza, Lafayette, Louisiana
Plaza Acadienne, Eunice, Louisiana
Sherwood South, Baton Rouge, Louisiana
Siegen Village, Baton Rouge, Louisiana
Village at Northshore, Slidell, Louisiana
(b) Pro Forma Financial Information (unaudited).
(i) Combined balance sheet of the Registrant as of
December 31, 1994 (which includes the Eleven Centers)
and pro forma statements of earnings (assuming
acquisition of the aforesaid Eleven Centers as of
January 1, 1994) of the Registrant for the year ended
December 31, 1994.
(ii) Estimated pro forma earnings from operations and
funds from operations of the Eleven Centers.
(c) Exhibits.
(i) Agreement for Purchase and Sale dated November 23,
1994 between Maurin-Ogden Limited Partnership,
Sherwood South General Partnership, Pinhook Plaza
Limited Partnership, Gause 11 Limited Partnership and
the Company (exclusive of exhibits thereto), as
amended by the First Amendment to Agreement for
Purchase and Sale dated December 1, 1994 and the
Second Amendment to Agreement for Purchase and Sale
dated December 20, 1994.
5
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
IRT PROPERTY COMPANY
(Registrant)
January 5, 1995 BY: /s/ Mary M. Thomas
-------------------------------
Mary M. Thomas
Executive Vice President and
Chief Financial Officer
6
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EXHIBITS
PAGE
----
Agreement for Purchase and Sale
Dated November 23, 1994 8
First Amendment to Agreement for
Purchase and Sale Dated December
1, 1994 54
Second Amendment to Agreement for
Purchase and Sale Dated December
20, 1994 59
7
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________________________________________________________________________________
AGREEMENT FOR PURCHASE AND SALE
BY AND AMONG
MAURIN-OGDEN LIMITED PARTNERSHIP,
SHERWOOD SOUTH GENERAL PARTNERSHIP,
PINHOOK PLAZA LIMITED PARTNERSHIP,
GAUSE 11 LIMITED PARTNERSHIP,
AS SELLERS,
IRT PROPERTY COMPANY,
AS PURCHASER
AND
FIRST AMERICAN TITLE INSURANCE COMPANY,
AS ESCROW AGENT
FOR
MAURIN-OGDEN RETAIL PORTFOLIO
LOUISIANA
NOVEMBER 23, 1994
________________________________________________________________________________
8
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TABLE OF CONTENTS
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PAGE
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Agreement . . . . . . . . . . . . . . . . . . . 1
Business Day . . . . . . . . . . . . . . . . . . 1
Cancelled Debt . . . . . . . . . . . . . . . . . 1
Cash Portion . . . . . . . . . . . . . . . . . . 2
Closing . . . . . . . . . . . . . . . . . . . . 2
Closing Date . . . . . . . . . . . . . . . . . . 2
Commission Agreements . . . . . . . . . . . . . 2
Condemnation Proceeding . . . . . . . . . . . . 2
Deposit . . . . . . . . . . . . . . . . . . . . 2
Ground Lease . . . . . . . . . . . . . . . . . . 2
Ground Lessor . . . . . . . . . . . . . . . . . 3
Improvements . . . . . . . . . . . . . . . . . . 3
Land . . . . . . . . . . . . . . . . . . . 3
Lien . . . . . . . . . . . . . . . . . . . 3
Major Tenant . . . . . . . . . . . . . . . . . . 3
Material Landlord Default . . . . . . . . . . . 3
Material Taking . . . . . . . . . . . . . . . . 4
Names . . . . . . . . . . . . . . . . . . . . . 4
Other Interests . . . . . . . . . . . . . . . . 4
Permits . . . . . . . . . . . . . . . . . . . . 4
Permitted Title Exceptions . . . . . . . . . . . 4
Personal Property . . . . . . . . . . . . . . . 5
Property . . . . . . . . . . . . . . . . . . . . 5
Proration Date . . . . . . . . . . . . . . . . . 5
Purchase Price . . . . . . . . . . . . . . . . . 5
Purchaser . . . . . . . . . . . . . . . . . . . 5
Record Exceptions . . . . . . . . . . . . . . . 5
Rental Payments . . . . . . . . . . . . . . . . 5
Seller . . . . . . . . . . . . . . . . . . . . . 5
Seller's Knowledge . . . . . . . . . . . . . . . 5
Service Contracts . . . . . . . . . . . . . . . 6
Surviving Debt . . . . . . . . . . . . . . . . . 6
Tenant . . . . . . . . . . . . . . . . . . . . . 6
Tenant Deposits . . . . . . . . . . . . . . . . 6
Tenant Estoppels . . . . . . . . . . . . . . . . 6
Tenant Leases . . . . . . . . . . . . . . . . . 6
Title Company . . . . . . . . . . . . . . . . . 6
Title Policy . . . . . . . . . . . . . . . . . . 6
2. Purchase and Sale . . . . . . . . . . . . . . . . . . . 6
3. Purchase Price . . . . . . . . . . . . . . . . . . . . . 6
A. Surviving Debt . . . . . . . . . . . . . . . . . 7
B. Cash Portion . . . . . . . . . . . . . . . . . . 7
4. Deposit . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Deposit with Escrow Agent . . . . . . . . . . . 7
9
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B. Release of Deposit . . . . . . . . . . . . . . . 7
C. Disputes . . . . . . . . . . . . . . . . . . . . 7
D. Indemnification of Escrow Agent . . . . . . . . 8
5. Closing . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Delivery; Possession . . . . . . . . . . . . . . 8
B. Seller's Closing Costs . . . . . . . . . . . . . 8
C. Purchaser's Closing Costs . . . . . . . . . . . 8
D. Other Closing Costs . . . . . . . . . . . . . . 9
6. Title . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Title Warranty . . . . . . . . . . . . . . . . . 9
B. No Alteration of Title . . . . . . . . . . . . . 9
7. Surviving Debt . . . . . . . . . . . . . . . . . . . . . 9
A. Consent to Transfer . . . . . . . . . . . . . . 9
B. Closing Threshold; Two Closings . . . . . . . . 10
C. Assumption . . . . . . . . . . . . . . . . . . . 12
D. Cancellation . . . . . . . . . . . . . . . . . . 12
E. Costs . . . . . . . . . . . . . . . . . . . . . 12
8. Prorations and Credits at Closing . . . . . . . . . . . 12
A. Real Estate Taxes and Assessments . . . . . . . 12
B. Rents . . . . . . . . . . . . . . . . . . . . . 13
(i) Past Due Rents . . . . . . . . . . . . 13
(ii) Post-Closing Adjustment Payments . . . 13
(iii) Pre-Closing Adjustment Payments . . . . 14
C. Security Deposits/Advance Rent . . . . . . . . . 14
D. Utility Expenses and Payments . . . . . . . . . 14
E. Utility Deposits . . . . . . . . . . . . . . . . 15
F. Service Contract Payments . . . . . . . . . . . 15
G. Ground Lease . . . . . . . . . . . . . . . . . . 15
H. Surviving Debt . . . . . . . . . . . . . . . . . 15
I. Special Cases . . . . . . . . . . . . . . . . . 15
J. Tenant Improvements . . . . . . . . . . . . . . 15
K. Reproration after Closing . . . . . . . . . . . 15
9. Adjustment . . . . . . . . . . . . . . . . . . . . . . . 16
10. Conveyances and Deliveries . . . . . . . . . . . . . . . 16
A. Limited Warranty Deed . . . . . . . . . . . . . 16
B. Limited Warranty Assignment of
Ground Lease . . . . . . . . . . . . . . . . . . 16
C. Bill of Sale . . . . . . . . . . . . . . . . . . 16
D. Assignment of Leases . . . . . . . . . . . . . . 16
E. Assignment of Service Contracts
and Other Interests . . . . . . . . . . . . . . 16
F. Affidavit of Title . . . . . . . . . . . . . . . 17
G. Tenant Estoppels . . . . . . . . . . . . . . . . 17
H. Landlord Lease Estoppel . . . . . . . . . . . . 18
I. Agreements Re Leasing Commissions . . . . . . . 18
10
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PAGE
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J. Assumption of Assumed Debt . . . . . . . . . . . 18
K. Notices of Assignment and Assumption . . . . . . 18
L. Delivery of Tenant Leases; Other Materials . . . 18
M. Non-Foreign Certificate . . . . . . . . . . . . 19
N. Updated Operating Statements and Rent Roll . . . 19
O. Closing Statement . . . . . . . . . . . . . . . 19
P. Evidence of Authority . . . . . . . . . . . . . 19
11. Seller's Representations and Warranties . . . . . . . . 19
A. Representations and Warranties . . . . . . . . . 19
(i) Organization, Power and Authority . . . 19
(ii) Litigation Proceedings . . . . . . . . 20
(iii) No Violations . . . . . . . . . . . . . 20
(iv) Bankruptcy . . . . . . . . . . . . . . 20
(v) Pending Condemnation Proceedings . . . 20
(vi) Employees . . . . . . . . . . . . . . . 20
(vii) Management and Leasing Agreement . . . 20
(viii) Commission Agreements . . . . . . . . . 20
(ix) Rent Roll . . . . . . . . . . . . . . . 20
(x) Operating Statements . . . . . . . . . 21
(xi) Existence of Defaults . . . . . . . . . 21
(xii) Service Contracts . . . . . . . . . . . 21
(xiii) Landlord's Status . . . . . . . . . . . 21
(xiv) Loan Documents . . . . . . . . . . . . 21
(xv) Lease Side Agreements . . . . . . . . . 21
B. Reaffirmation at Closing . . . . . . . . . . . . 21
C. Survival . . . . . . . . . . . . . . . . . . . . 21
12. Purchaser's Representations and Warranties . . . . . . . 22
A. Organization, Power and Authority . . . . . . . 22
B. Financial Resources . . . . . . . . . . . . . . 22
C. No Bankruptcy . . . . . . . . . . . . . . . . . 22
D. Reaffirmation at Closing . . . . . . . . . . . . 22
13. Interim Operation . . . . . . . . . . . . . . . . . . . 22
A. Standard of Operation and Maintenance . . . . . 23
B. New Tenant Leases and Modifications
to Existing Tenant Leases . . . . . . . . . . . 23
C. New Service Contracts and Modifications
to Existing Service Contracts . . . . . . . . . 23
D. Transfer of Permits . . . . . . . . . . . . . . 23
E. Insurance . . . . . . . . . . . . . . . . . . . 23
F. Management Agreement . . . . . . . . . . . . . . 23
G. Land Sales . . . . . . . . . . . . . . . . . . . 24
H. Continued Development . . . . . . . . . . . . . 24
14. Purchaser's Due Diligence and Inspection
Rights; Cancellation Right . . . . . . . . . . . . . . . 25
A. Inspection of Property . . . . . . . . . . . . . 25
B. Completed Due Diligence . . . . . . . . . . . . 25
C. Environmental Audit . . . . . . . . . . . . . . 26
D. Environmental Cancellation Right . . . . . . . . 27
E. "As-Is" and "Where-Is" Conveyance . . . . . . . 27
11
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PAGE
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F. Delivery of Reports and Materials
upon Termination of Agreement . . . . . . . . . 28
15. Notices . . . . . . . . . . . . . . . . . . . . . . . . 28
16. Casualty and Condemnation . . . . . . . . . . . . . . . 29
A. Casualty . . . . . . . . . . . . . . . . . . . . 29
B. Condemnation . . . . . . . . . . . . . . . . . . 30
17. Brokers . . . . . . . . . . . . . . . . . . . . . . . . 31
18. Default . . . . . . . . . . . . . . . . . . . . . . . . 31
19. Plaza Acadienne . . . . . . . . . . . . . . . . . . . . 33
A. Leasehold . . . . . . . . . . . . . . . . . . . 33
B. Estoppel Certificate . . . . . . . . . . . . . . 33
20. General Provisions . . . . . . . . . . . . . . . . . . . 33
A. Agreement Binding . . . . . . . . . . . . . . . 33
B. Entire Agreement . . . . . . . . . . . . . . . . 33
C. Time is of the Essence . . . . . . . . . . . . . 34
D. Governing Law . . . . . . . . . . . . . . . . . 34
E. Survival . . . . . . . . . . . . . . . . . . . . 34
F. Further Assurance . . . . . . . . . . . . . . . 34
G. Exclusive Application . . . . . . . . . . . . . 34
H. Partial Invalidity . . . . . . . . . . . . . . . 34
I. Interpretation . . . . . . . . . . . . . . . . . 34
J. Purchaser's Waiver Right . . . . . . . . . . . . 35
K. Counterparts . . . . . . . . . . . . . . . . . . 35
L. No Implied Waiver . . . . . . . . . . . . . . . 35
M. Rights Cumulative . . . . . . . . . . . . . . . 35
N. Confidentiality . . . . . . . . . . . . . . . . 35
O. Exhibits . . . . . . . . . . . . . . . . . . . . 36
P. Good Faith . . . . . . . . . . . . . . . . . . . 36
Q. Attorney's Fees . . . . . . . . . . . . . . . . 36
R. Post-Closing Cooperation . . . . . . . . . . . . 36
12
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SCHEDULE OF EXHIBITS
- --------------------
Exhibit "A" Description of Land
------- ---
Exhibit "B" Record Exceptions
------- ---
Exhibit "C" Surviving Debt
------- ---
Exhibit "D" Major Tenants
------- ---
Exhibit "E" Tenant Estoppel Certificate
------- ---
Exhibit "F" Assignment, Assumption and Estoppel Agreement
------- ---
Exhibit "G" Commissions Paid over the Term
------- ---
Exhibit "H" Ground Lease Estoppel Certificate Form
------- ---
Exhibit "I" Tenant Notification Letter Form
------- ---
Exhibit "J" Rent Roll
------- ---
Exhibit "K" Schedule of Service Contracts
------- ---
Exhibit "L" Purchase Price Reductions for Certain Repairs
------- ---
Exhibit "M" Audit Representation Letter Form
------- ---
13
<PAGE> 14
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT FOR PURCHASE AND SALE (this "Agreement") made and
entered into this 23rd day of November, 1994, by and among MAURIN-OGDEN LIMITED
PARTNERSHIP, a Massachusetts limited partnership, (hereinafter referred to as
"MOLP"), SHERWOOD SOUTH GENERAL PARTNERSHIP, a Louisiana general partnership,
(hereinafter referred to as "Sherwood"), PINHOOK PLAZA LIMITED PARTNERSHIP, a
Louisiana limited partnership, (hereinafter referred to as "Pinhook"), and
GAUSE 11 LIMITED PARTNERSHIP, a Louisiana limited partnership, (hereinafter
referred to as "Gause") (Sherwood, as to the center known as Sherwood South,
Pinhook, as to the center known as Pinhook Plaza, Gause, as to the center known
as The Crossings, and MOLP, as to all other centers, collectively hereafter
referred to as the "Seller"); IRT PROPERTY COMPANY, a Georgia corporation,
(hereinafter referred to as "Purchaser"); and FIRST AMERICAN TITLE INSURANCE
COMPANY, a California corporation (hereinafter referred to as "Escrow Agent");
W I T N E S S E T H:
WHEREAS, Seller is the owner of thirteen retail centers located in
Louisiana hereinafter defined as the Property;
WHEREAS, Purchaser desires to purchase the Property from Seller and
Seller desires to sell the Property to Purchaser all upon the terms and
conditions hereinafter set forth; and
WHEREAS, Escrow Agent desires to serve as holder of the Deposit upon
the terms and conditions herein set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants set
forth herein, the receipt and sufficiency of which are hereby acknowledged by
each party, Purchaser, Seller, and Escrow Agent hereby agree as follows:
1. DEFINITIONS. Wherever used in this Agreement, and in addition
to terms defined elsewhere in this Agreement, the following terms shall have
the meanings set forth below:
"AGREEMENT" shall mean this Agreement for Purchase and Sale
among Seller, Purchaser, and Escrow Agent with respect to the
Property.
"BUSINESS DAY" shall mean Monday through Friday excluding
holidays recognized by the state governments of the State of Louisiana
and the State of Georgia.
"CANCELLED DEBT" shall mean all other mortgage loans
encumbering the Property which are not Surviving Debt and which
14
<PAGE> 15
are to be cancelled at Closing, as provided in Section 7D of this
Agreement.
"CASH PORTION" shall mean the Purchase Price (i) less the
outstanding principal balance at the Proration Date of the Surviving
Debt and (ii) as adjusted at Closing for the credits, adjustments,
prorations and closing costs as provided herein.
"CLOSING" shall mean the consummation and closing of the
purchase and sale contemplated in this Agreement.
"CLOSING DATE" shall mean December 20, 1994, or such earlier
date mutually agreed upon by Purchaser and Seller in writing or such
later date to which the Closing may be delayed under the terms of this
Agreement.
"COMMISSION AGREEMENTS" shall mean all leasing commission
agreements and obligations to pay leasing agents or leasing brokers
with respect to the Tenant Leases, including, without limitation, any
obligation of Seller to pay commissions on renewals, expansions,
relocations and extensions, whether such agreements are contained in a
Tenant Lease or in any separate commission agreement.
"CONDEMNATION PROCEEDING" shall mean any proceeding in
condemnation, eminent domain or any written request to Seller for a
conveyance in lieu thereof, or any notice from any appropriate
governmental or quasi-governmental authority or agency that such
proceedings have been or will be commenced against any portion of the
Property.
"DEPOSIT" shall mean the deposit made in accordance with
Section 4 hereof in the amount of One Million Dollars ($1,000,000).
The parties agree that the Deposit shall constitute a deposit on
account held in accordance with the terms of this Agreement and not as
earnest money under applicable Louisiana law.
"GROUND LEASE", collectively, shall mean (i) that certain
Agreement of Lease between Marie Merita McGee Guillory, Landlord and
Roger H. Ogden and James E. Maurin - 1979A, Tenant, dated May 4, 1979,
recorded May 15, 1979, registered in COB F-22, page 458, as amended by
First Amendment to Lease dated and filed July 26, 1979, recorded in
COB I-22, page 512, as assigned by Plaza Acadienne Limited Partnership
to Maurin-Ogden Limited Partnership by act dated October 26, 1989,
filed October 27, 1989 in COB B-32, page 880; and (ii) that certain
Agreement of Lease between Marie Merita Guillory, Landlord, and Plaza
Acadienne Limited Partnership, Tenant, dated August 31, 1988, filed
September 14, 1988 and registered as COB Y-30, page 180, as assigned
by Plaza Acadienne Limited Partnership to Maurin-Ogden Limited
Partnership
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by act dated October 26, 1989, filed October 27, 1989 in COB B-32,
page 880. Section 19 of this Agreement sets forth the specific
agreement of Purchaser and Seller with respect to the Ground Lease.
"GROUND LESSOR" shall mean, as of the Closing, the holder of
the estate of the ground lessor under the Ground Lease.
"IMPROVEMENTS" shall mean collectively all improvements,
structures and fixtures located on the Land.
"LAND" shall mean collectively (i) the fee simple estates in
twelve retail centers described in Exhibit "A", and (ii) the leasehold
estate in one retail center, known as "Plaza Acadienne," described in
Exhibit "A". The legal descriptions that comprise Exhibit "A" are
based upon recently updated surveys. Purchaser reserves the right
to modify the legal descriptions attached hereto as Exhibit "A" to
reflect further survey updates in progress as of the date of this
Agreement. Seller reserves the right to convey to Purchaser on the
basis of the record legal descriptions conveyed into Seller's chain
of title and quitclaim on the basis of the legal descriptions
attached hereto, as they may be updated, if there is a material
discrepancy between the two descriptions.
"LIEN" shall mean any mortgage, security deed, lien, judgment,
pledge, conditional sales contract, security interest, past-due taxes,
or past-due installments of assessments due against the Property of a
monetary nature.
"MAJOR TENANT" shall mean a Tenant identified on Exhibit "D".
"MATERIAL LANDLORD DEFAULT" shall mean a claim or claims
disclosed by Tenant Estoppel(s) from Tenant(s) of default(s) by
Seller, as landlord or lessor under Tenant Leases in question, (i)
involving a sum of money, either by virtue of a defaulted payment or
cost of cure, in excess of $150,000, alone or when taken with other
defaults under leases with Tenants; or (ii) in the case of a Major
Tenant, alleging that there are insufficient parking spaces at the
center in question to satisfy the requirements of its lease, subject
to the last sentence of this definition; or (iii) in the case of a
Major Tenant, asserting a right to terminate its lease pursuant to an
express right in its lease or take a rental adjustment pursuant to an
express right in its lease; or (iv) in the case of a Major Tenant,
asserting an action for injunctive relief that would result in a cost
in excess of $150,000 or a material adverse change in the operation of
the center in question or impair other leases of Major Tenants in the
center. In the case of clause (ii) of the immediately preceding
sentence, if the claim of parking space deficiency is
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raised by any tenant other than K-Mart under its leases at Siegen
Village and Ambassador Row and K-B under its lease at Ambassador Row,
Seller shall have the right to rebut the claim by demonstrating that
Tenant's claim may be satisfied from other land that is part of the
center Purchaser is acquiring or by restriping the parking lot of the
center Purchaser is acquiring.
"MATERIAL TAKING" shall mean any Condemnation Proceeding
affecting one of the retail centers comprising part of the Property
that takes so much of that retail center so as to either (i)
materially impair the income to be derived from that retail center, or
(ii) give any Major Tenant at that center the right to cancel its
lease as a result of such Material Taking.
"NAMES" shall mean any name or trade name by which the
Improvements or the Property or any part thereof may be known,
including the names listed on Exhibit "A" hereto.
"OTHER INTERESTS" shall mean any other interest of Seller in
and to the Land and the Improvements or pertaining thereto, including,
without limitation, all of the right, title and interest of the Seller
in and to any and all of the following, without recourse or warranty
(except as expressly provided herein) and to the extent assignable:
(i) all right, title and interest of Seller, if
any, in and to the Names;
(ii) all right, title and interest of Seller, if
any, in and to any construction warranties and guaranties
(including without limitation roof warranties and guaranties,
if any) site plans, construction and development drawings,
plans and specification documents, surveys, engineering and
soil reports;
(iii) all Permits.
"PERMITS" shall mean all licenses, permits, approvals and
certificates used in or relating to the construction of the
Improvements or ownership, maintenance or operation of any part of the
Property.
"PERMITTED TITLE EXCEPTIONS" shall mean each and all of the
following:
(i) the rights of Tenants in possession, as
tenants only, under existing Tenant Leases and any new leases
entered into between the date hereof and the Closing Date in
accordance with the terms of this Agreement;
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(ii) all real estate taxes not yet due and payable
as of the Closing Date;
(iii) the Record Exceptions;
(iv) matters shown by a current and accurate
survey of the Property;
(v) in the case of Plaza Acadienne, the Ground
Lease; and
(vi) in the case of Surviving Debt, the loan
documents evidencing and securing same.
"PERSONAL PROPERTY" shall mean collectively any and all of
Seller's interest in any and all tangible personal property located at
the Property and used in connection with any present operation of all
or any part of the Land or the Improvements or both, but not including
tangible personal property owned by Tenants under Tenant Leases.
"PROPERTY" shall mean collectively Land, Improvements,
Personal Property, Tenant Leases, Service Contracts, and Other
Interests.
"PRORATION DATE" shall mean December 31, 1994, at 11:59 p.m.,
Eastern Standard Time, or, if the Closing Date is delayed past
December 31, 1994, pursuant to the terms of this Agreement, then 11:59
p.m., Eastern Standard Time, of the day before the Closing Date.
"PURCHASE PRICE" shall mean Eighty Two Million Five Hundred
Thousand and No/100 Dollars ($82,500,000.00).
"PURCHASER" shall mean the purchaser referenced in the first
paragraph of this Agreement or its permitted assignee.
"RECORD EXCEPTIONS" shall mean those items described on
Exhibit "B".
"RENTAL PAYMENTS" shall mean all payments received by or on
behalf of Seller or Purchaser from Tenants with respect to the Tenant
Leases or with respect to any other use or occupancy of the Property
for items such as minimum or base rent, additional rent, percentage
rent, termination or cancellation charges, reimbursement for real
estate taxes, utilities, operating and maintenance expenses and
insurance, as well as any other reimbursements or charges received
thereunder.
"SELLER" shall have the meaning ascribed thereto in the first
paragraph of this Agreement.
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"SELLER'S KNOWLEDGE" shall mean, without duty to making any
specific inquiry, the actual knowledge of W. Jerry Sauls, Executive
Vice President, M-O Venture Corporation, or Grady K. Brame, Vice
President, Stirling Properties.
"SERVICE CONTRACTS" shall mean any and all of Seller's
interest in all service, maintenance, and other contracts respecting
maintenance or operation of the Land and Improvements (other than the
Commission Agreements), including, but not limited to, all equipment
leases.
"SURVIVING DEBT" shall mean the four loans identified by
holder, loan amount and loan document schedule on Exhibit "C", which
encumber the Property as of the date of this Agreement. The Surviving
Debt at Tarpon Heights is hereinafter referred to as the "Tarpon
Heights Debt".
"TENANT" shall mean a tenant under a Tenant Lease;
collectively, all tenants under the Tenant Leases are referred to as
the "Tenants".
"TENANT DEPOSITS" shall mean all prepaid rents, advance
rentals, security deposits and other deposits made with respect to the
Tenant Leases.
"TENANT ESTOPPELS" shall mean the estoppel certificates
executed by the Tenants, which estoppel certificates shall be
substantially in the form set forth on Exhibit "E".
"TENANT LEASES" shall mean the landlord and lessor interest in
and to all leases, subleases, rental agreements and other occupancy
agreements, and any related assignments or guaranties, for the use or
occupancy of any portion of the Property, together with all amendments
to, modifications of, renewals and extensions of said leases,
subleases, rental agreements and other occupancy agreements.
"TITLE COMPANY" shall mean First American Title Insurance
Company, the title insurance company selected by Purchaser to insure
Purchaser's title to the Property. The Title Company, acting in its
capacity hereunder as the holder of the Deposit, herein referred to as
the Escrow Agent.
"TITLE POLICY" shall mean the Owner's Policy of Title
Insurance, ALTA(1990), issued by the Title Company in the amount of
the Purchase Price.
2. PURCHASE AND SALE. Purchaser agrees to purchase from Seller,
and Seller agrees to sell to Purchaser, the Property, upon the terms and
conditions herein set forth.
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3. PURCHASE PRICE. At Closing, Purchaser shall pay to Seller the
Purchase Price as follows:
A. SURVIVING DEBT. Purchaser shall assume the Surviving
Debt on the Closing Date, as provided in Section 7 hereof.
B. CASH PORTION. Purchaser shall pay to Seller the Cash
Portion of the Purchase Price in good funds available for immediate
credit in Atlanta, Georgia, on the Closing Date by wire transfer
through the Federal Reserve System.
4. DEPOSIT.
A. DEPOSIT WITH ESCROW AGENT. As of the date of this
Agreement, Purchaser has deposited the Deposit with Escrow Agent and Escrow
Agent acknowledges receipt of the Deposit. The Deposit shall be invested by
Escrow Agent in interest bearing accounts at a national bank reasonably
acceptable to Purchaser; any interest earned thereon shall accrue for the
account of the party which ultimately receives the Deposit. Purchaser and
Seller agree to sign all IRS and bank account forms and reports required in
connection with Escrow Agent's holding and investing the Deposit.
B. RELEASE OF DEPOSIT. In the event this transaction is
closed pursuant to the terms hereof, Escrow Agent shall pay the Deposit to
Seller at Closing and Purchaser shall receive a credit against the Cash Portion
in the amount of the Deposit; if the transaction does not close pursuant to the
terms hereof, then the Deposit shall be disposed of by Escrow Agent pursuant to
the provisions hereof. In any case in which the Deposit is provided herein to
be returned to Purchaser, then notwithstanding any provision of this Agreement
to the contrary, Five Hundred Dollars ($500.00) thereof shall be paid to or
retained by Seller and deducted from the amount due Purchaser; such amount
shall belong to Seller and in any and all events and shall in effect constitute
option money, making this Agreement binding even if any conditions or
provisions herein are entirely with the discretion or control of Purchaser.
C. DISPUTES. In the event of any dispute arising under
this Agreement with respect to the disposition of the Deposit or the
entitlement of any party to the Deposit or the obligations of Escrow Agent,
Escrow Agent shall not be required to determine the resolution of any such
dispute and Escrow Agent shall not be obligated to make any delivery of the
Deposit, but in such event, Escrow Agent may hold the Deposit until receipt by
Escrow Agent of an authorization in writing signed by all of the parties having
an interest in such dispute and directing the disposition of same; or, in the
absence of such authorization, Escrow Agent may hold the Deposit with interest
thereon, until the final determination of the rights of the parties in an
appropriate proceeding. If such written authorization is not given, or if
proceedings for such determination are not commenced and diligently
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continued to a resolution of such dispute, Escrow Agent may, but is not
required to, bring an appropriate action or proceeding for leave to deposit
said monies in the registry of a court in New Orleans, Louisiana pending such
determination and to submit resolution of such dispute to a court of competent
jurisdiction by action of interpleader. Escrow Agent shall not be responsible
for any acts or omissions unless willfully done or done in a grossly negligent
manner, and upon delivery of such monies which the Escrow Agent holds in
accordance with the terms of this Agreement, Escrow Agent shall have no further
liability to the parties hereunder or in connection herewith. In the event
Escrow Agent places the monies it holds in the registry of a court as
aforesaid, and files an action of interpleader, Escrow Agent shall be released
and relieved from any and all further obligation and liability hereunder or in
connection herewith.
D. INDEMNIFICATION OF ESCROW AGENT. Seller and
Purchaser hereby jointly and severally agree to indemnify and hold Escrow Agent
harmless from and against any and all loss, costs or damages arising hereunder
or in connection herewith (except such loss, costs or damages as shall result
from the gross negligence or willful misconduct of Escrow Agent), including,
but not limited to, all costs and expenses incurred by Escrow Agent in
connection with the filing of such actions and reasonable attorneys' fees for
Escrow Agent's attorneys.
5. CLOSING. The Closing shall commence at 9:00 a.m. Eastern
Standard Time, on the Closing Date at the offices of King & Spalding, 191
Peachtree Street, Atlanta, Georgia 30303-1763 or at such other place as may be
mutually agreed in writing by the parties.
A. DELIVERY; POSSESSION. At Closing, Seller shall
deliver to Purchaser the items required of Seller as elsewhere set forth herein
and Purchaser shall deliver to Seller the Purchase Price and the other items
required of Purchaser as elsewhere set forth herein. Seller shall deliver
possession of the Property, subject to the Permitted Title Exceptions, to
Purchaser at the time of Closing.
B. SELLER'S CLOSING COSTS. Seller shall pay the
transfer tax due upon the transfer of the Property, the costs (including
recording costs) of any documents or instruments necessary to cure title
defects required of Seller hereunder, all costs, fees and expenses associated
with the Cancelled Debt (except for prepayment fees under the Cancelled Debt on
Country Club Plaza), all costs, fees and other expenses associated with the
Surviving Debt, up to $1,000 for each of the retail centers that comprise the
Property for survey update, one-half of any fees of Escrow Agent (if any are
charged in connection with the holding of the Deposit) and the fees and
expenses of Seller's own attorneys.
C. PURCHASER'S CLOSING COSTS. Purchaser shall pay for
the costs of the examination and the title insurance premium on the Title
Policy, the costs for survey updates obtained by Purchaser in excess of
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$1,000 for each retail center that comprises the Property, any other costs of
investigations, studies and appraisals conducted by Purchaser, one-half of any
fees of Escrow Agent (if any are charged in connection with the holding of the
Deposit), all recording charges due on recordation of any conveyancing
documents executed in connection with this Agreement, and the fees and expenses
of Purchaser's own attorneys. Purchaser shall pay all prepayment fees charged
by the holder of the Cancelled Debt encumbering Country Club Plaza.
D. OTHER CLOSING COSTS. All other closing costs not
specified in subparagraphs 5B and 5C above shall be paid by Purchaser and
Seller in accordance with the local custom for transactions of this type in
metropolitan Atlanta, Georgia (notwithstanding that the Property is in
Louisiana).
6. TITLE.
A. TITLE WARRANTY. Each of the entities that comprise
Seller represent and warrant to Purchaser that at the time of Closing it will
own marketable and insurable fee simple title (except, in the case of Plaza
Acadienne, leasehold estate) subject only to the Permitted Title Exceptions.
B. NO ALTERATION OF TITLE. Except as expressly provided
in this Agreement, Seller shall not further alter or encumber Seller's title to
the Land and Improvements after October 14, 1994 in any manner which would
prevent Seller from complying with its covenant in Section 6A above, except
with the prior written consent of Purchaser. Seller agrees to cure at its
expense any title matter which arises after October 14, 1994, which would
prohibit Seller from complying with its covenant in Section 6A, unless the
title matter arises from the actions of Purchaser, or its agents or
contractors, in which case such matters shall be deemed Permitted Title
Exceptions hereunder.
7. SURVIVING DEBT.
A. CONSENT TO TRANSFER. Seller agrees to use its
reasonable efforts to obtain from each holder of Surviving Debt an assignment,
assumption and estoppel agreement, substantially in the form of Exhibit "F",
providing, among other matters, consent to the sale of the Property to
Purchaser subject to the Surviving Debt which is held by that holder. In
addition to consent to transfer, Seller further shall obtain from the holder of
the Tarpon Heights Debt a release, in form and content which will cause the
Title Company to issue the Title Policy covering Country Club Plaza without
exception for the Tarpon Heights Debt, of the center known as Country Club
Plaza as additional collateral for the Tarpon Heights Debt. Any modification
to the terms of the Surviving Debt required by a holder thereof as a condition
to granting consent to transfer and, in the case of the Tarpon Heights Debt,
release of The Country Club Plaza shall require the prior written approval of
Purchaser, which consent may be withheld in Purchaser's sole discretion
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(notwithstanding any other provision of this Agreement to the contrary) if the
modification requires changes the principal amount, interest rate, maturity
date, payment schedule or non-recourse provisions.
B. CLOSING THRESHOLD; TWO CLOSINGS.
(i) As a condition to Purchaser's obligation to
close on December 20, 1994, as to all of the Property, Seller
shall have obtained consent to transfer and, in the case of
the Tarpon Heights Debt, release of Country Club Plaza, in
accordance with the terms and conditions of Section 7A above,
for all of the Surviving Debt (the "Closing Threshold").
(ii) If by December 20, 1994, Seller is unable to
satisfy the Closing Threshold, the purchase and sale as
contemplated in this Agreement shall nonetheless close as to
all of the Property, except the Property that is subject to
the Surviving Debt for which consent to transfer has not yet
been obtained and Country Club Plaza (if the holder of the
Tarpon Heights Debt has not consented to transfer and released
Country Club Plaza) and this Agreement as to that Property
shall extend to March 20, 1995. During such extension Seller
shall continue in its efforts to obtain the remaining consents
to transfer and at such time as the Closing Threshold has been
met, a second Closing shall be consummated as to all of the
remaining Property, subject to satisfaction of all other terms
and conditions of this Agreement.
(iii) If by March 20, 1995, Seller has not yet
satisfied the Closing Threshold, this Agreement shall
terminate as to the remaining Property and no party hereunder
shall have any further obligation or right under this
Agreement, except for those provisions which are expressly to
survive Closing or termination of this Agreement. Seller's
inability to satisfy the Closing Threshold shall be a failure
of condition for which Purchaser's only right shall be to
terminate this Agreement and have its Deposit returned and not
a default by Seller.
(iv) In the event that two Closings occur pursuant
to this Section 7B, the following shall apply notwithstanding
any provision of this Agreement to the contrary:
(a) In the first Closing, the Purchase
Price shall be reduced to reflect the omission of the
centers which are subject to Surviving Debt for which
consent to transfer has not been obtained (and Tarpon
Heights and Country Club Plaza, if Country Club Plaza
has not been released from the lien of the Tarpon
Height Debt)
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and in the second Closing the Purchase Price shall be
based upon the following allocation:
Center Allocated Purchase Price
------ ------------------------
Country Club Plaza $ 3,930,000.00
Pinhook Plaza $11,039,000.00
Plaza Acadienne $ 2,898,000.00
Tarpon Heights $ 2,728,000.00
Village at Northshore $ 8,239,000.00
(b) In the second Closing, if the Cash
Portion is insufficient to cover all applicable
credits, adjustments, prorations and closing costs as
provided for in this Agreement, Seller shall fund the
shortfall from its own sources.
(c) The Deposit shall be applied as a
credit pro rata based upon the ratio of the Purchase
Price for the partial Closing, determined as provided
above in Clause (a), to $82,500,000.
(d) The adjustment under Section 9 shall
only apply to the first Closing provided it occurs in
1994, and shall be calculated using in clause (x) of
the formula the reduced Purchase Price less the
outstanding principal balance as of the Proration
Date of the Surviving Debt which Purchaser has
assumed at the first Closing.
(e) The survival of any representations
and warranties shall be measured from the applicable
partial Closing.
(f) If Seller is obligated to obtain a
Tenant Estoppel from a Tenant under this Agreement,
once having obtained such a Tenant Estoppel in
satisfaction of such obligation, Seller shall not be
required to obtain another estoppel from that tenant
notwithstanding any extension of this Agreement
pursuant to this Section 7C. Provided, however,
Seller shall execute and deliver to Purchaser at the
Second Closing a certificate that it has not done
anything that would cause the Tenant Estoppel to no
longer be accurate and, to Seller's knowledge, that
it is not aware of any matter which would cause the
Tenant Estoppel to be inaccurate.
(g) The two Closings under this
Agreement are independent of each other such that
once a partial Closing has occurred, any matters or
disputes arising
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with respect to the Property sold to Purchaser shall
have no bearing on any party's obligation to close
with respect to the remaining Property and,
conversely, any dispute arising under this Agreement
with respect to the remaining Property not yet closed
shall not affect the passage of title or other
matters relative to the Property for which a partial
Closing has already occurred.
C. ASSUMPTION. Purchaser agrees to assume the Surviving
Debt, subject to the non-recourse and limitation of liability provisions
contained in the loan documents of the Survivor Debt, and accept title to the
Property subject to the lien and security interest of the loan documents
evidencing and securing the Survivor Debt.
D. CANCELLATION. Except for any prepayment fees due the
holder of Cancelled Debt encumbering Country Club Plaza , at closing, Seller
agrees to pay-in-full the Cancelled Debt, including without limitation
outstanding principal, accrued but unpaid interest, prepayment fees and all
other cost required to obtain an unqualified release of the loan documents
evidencing or securing the Cancelled Debt. This cancellation may be
accomplished as part of the Closing by wire transfer of a portion of the Cash
Portion to the holders of the Cancelled Debt pursuant to customary pay-off
letters and by causing the Title Company to issue the Title Policy without
exception to the Cancelled Debt. Purchaser shall pay all prepayment fees
charged by the holder of the Cancelled Debt encumbering Country Club Plaza.
E. COSTS. Seller agrees to pay all costs, fees and
expenses, including transfer fees and attorney's fees, for each holder of
Surviving Debt.
8. PRORATIONS AND CREDITS AT CLOSING. All prorations shall be
made as of the Proration Date. In each such proration set forth below, the
portion thereof attributable to periods beginning as of the Proration Date
shall be credited to Purchaser, or charged to Purchaser, as applicable, and the
portion thereof allocable to periods ending as of the Proration Date shall be
credited to Seller, or charged to Seller, as applicable, all of which
prorations shall be made at Closing or, in the case of allocations to be made
after Closing, upon receipt of such payments or payment of such expenses. The
following items shall be prorated between Purchaser and Seller or credited to
Purchaser or Seller, and the provisions of this Section 8 shall survive Closing
hereunder.
A. REAL ESTATE TAXES AND ASSESSMENTS. All ad valorem
real estate taxes with respect to the Property for the current year shall be
prorated as of the Proration Date. In the event that tax bills for the current
year's taxes are not available on the Closing Date, taxes shall be prorated
based upon the tax bills for the previous year, or, if available, based upon
the current assessed valuation and current millage
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rates. Seller and Purchaser shall reprorate the taxes when actual tax bills
for the current year are available.
B. RENTS. All Rental Payments shall be prorated as of
the Proration Date. Any checks for Rental Payments received by Seller or its
agents after Closing and prior to the Proration Date shall (i) to the extent
such payments represent Rental Payments for periods after the Proration Date
(prepaid rents) be promptly endorsed, without recourse, to Purchaser by the
payee thereof and promptly transmitted to Purchaser, or (ii) to the extent such
payments represent past due rents, be retained by Seller. Any checks for
Rental Payments received by Seller or its agents after the Proration Date shall
be promptly endorsed, without recourse, to Purchaser by the payee thereof and
promptly transmitted to Purchaser.
(i) PAST DUE RENTS. In the event that on the
Proration Date there shall be any past due and unpaid Rental
Payments under any Tenant Lease, Purchaser agrees to bill
tenants for the amounts due Seller for a period of six months
after the Proration Date. Any Rental Payment received
subsequent to the Proration Date by Purchaser or its agents or
Seller or its agents with respect to such Tenant Lease for the
six month period shall be applied as follows: (a) first to
any collection costs of Purchaser, (b) second, to pay any
Rental Payments due Purchaser under such Tenant Lease, and (c)
the remaining portion of such Rental Payment shall be applied
to past due and unpaid Rental Payments due Seller. Purchaser
shall, on a monthly basis in arrears, pay Seller any monies
received from tenants for its account and provide Seller with
an accounting thereof. After such six-month period, Purchaser
shall not bill tenants on Seller's behalf nor account to
Seller for any monies received from tenants.
(ii) POST-CLOSING ADJUSTMENT PAYMENTS. In the
event that on the Proration Date there shall be any Rental
Payments under any Tenant Lease which, although relating to a
period prior to the Proration Date, do not become due and
payable until after Closing (such as year end common area
expense reimbursements or percentage rent or similar charges),
then Purchaser agrees to bill tenants on behalf of Seller for
a period of six months from the date of the initial billing to
tenant, and Rental Payments received from such tenants shall
be applied as set forth in Section 8B(i) above. Seller
agrees, on or before January 31, 1995 and on or before 30 days
after the Proration Date if later than December 31, 1994, to
provide to Purchaser calculations of common area maintenance,
real estate tax and insurance billings to tenants for (i) the
calendar year 1994; (ii) the portion of calendar year 1995
from January 1, 1995 to the Proration Date if later than
December 31, 1994; or (iii) the
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tenant's lease year which includes the Proration Date, for the
period up to the Proration Date; whichever is applicable,
along with billings to tenants and copies of all documentation
required to be provided to tenants, to allow Purchaser to bill
said tenants for such charges. Seller to pay Purchaser any
credits due to tenants from Seller for such periods at the
time the billings are submitted to Purchaser; the payments
shall be for all credits to any and all tenants and shall not
be offset by any amounts due from tenants to Seller.
(iii) PRE-CLOSING ADJUSTMENT PAYMENTS.
(a) Seller shall provide to Purchaser
prior to closing a calculation of credits due tenants for
reimbursements of insurance premiums for the period from the
Proration Date to the end of the current insurance premium
year of Seller (7/1/94 - 7/1/95). Purchaser shall receive a
credit at Closing against the Purchase Price for said credit
due tenants for insurance.
(b) Seller shall provide to Purchaser
prior to Closing a calculation of credits due Delchamps at
Village at Northshore for real estate taxes reimbursed by
Delchamps to Seller for any and all years up to and including
1993 on the Phase II land and agrees to calculate
reimbursements due from Delchamps for 1994 excluding the taxes
for the Phase II land in accordance with the terms of the
Delchamps lease. Purchaser shall receive a credit at Closing
against the Purchase Price for all credits due Delchamps for
taxes on the Phase II land previously reimbursed by Delchamps
to Seller. Notwithstanding anything to the contrary contained
in this clause (b), Seller disputes that any credit is due
Delchamps as described above, and no credit shall be due
Purchaser if the Tenant Estoppel from Delchamps confirms that
no credit is due or if Seller can furnish to Purchaser other
written evidence, reasonably satisfactory to Purchaser, that
no credit is due.
C. SECURITY DEPOSITS/ADVANCE RENT. Purchaser shall
receive a credit against the Purchase Price at Closing for all Tenant Deposits
then outstanding under the Tenant Leases and for all Rental Payments made in
advance of the month of Closing.
D. UTILITY EXPENSES AND PAYMENTS. Water, sewer, gas,
waste fee, fire protection, electric and all other utility expenses and
payments due or made with respect to the Property (and not payable directly to
utility companies by Tenants under Tenant Leases) shall be prorated as of the
Proration Date. Water, sewer, gas, waste fee, fire protection, electric and
all other utility accounts shall be transferred to new accounts in Purchaser's
name or in the name of Purchaser's
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designated management agent as of Closing. Seller shall cooperate with
Purchaser's efforts to continue uninterrupted utility service to the Property.
Seller shall use reasonable efforts to cause all meters to the Property to be
read as of the Proration Date.
E. UTILITY DEPOSITS. Seller shall receive a credit at
Closing for the amount of any utility or similar deposits made by Seller which
are not refundable to Seller by the holder thereof and which deposits are
transferred to Purchaser.
F. SERVICE CONTRACT PAYMENTS. Purchaser shall receive a
credit against the Cash Portion for all payments due and payable and
attributable to any period before the Proration Date under the Service
Contracts. The Cash Portion shall be increased by any sums prepaid under the
Service Contracts for any period after the Proration Date.
G. GROUND LEASE. Purchaser shall receive a credit
against the Cash Portion for all ground rent and other sums due and payable
under the Ground Lease attributable to any period before the Proration Date.
The Cash Portion shall be increased by any ground rent or other sums prepaid
under the Ground Lease for any period after the Proration Date.
H. SURVIVING DEBT. Purchaser shall receive a credit
against the Cash Portion for all accrued but unpaid interest due and payable
under the Surviving Debt attributable to any period before the Proration Date.
I. SPECIAL CASES. Purchaser acknowledges that Franko's
Chicken and Gossip, Inc. at Tarpon Heights Plaza has prepaid rent for the year
ending July 31, 1995, and Purchaser shall receive a credit for such prepayment
applicable to the period after the Proration Date (if the Closing occurs on
December 20, 1994, the credit shall equal $10,311.21). Cloth World at Sherwood
South has a rental abatement of $1,250 per month through September 30, 1997,
the Purchase Price shall be decreased to reflect the amount of abatement due
Cloth World after the Proration Date.
J. TENANT IMPROVEMENTS. Purchaser shall receive a
credit against the Purchase Price in an amount equal to the cost to finish
tenant improvements Seller is obligated to make, but as of the Closing has not
yet completed, under Leases entered into prior to the date of this Agreement.
Purchaser shall be responsible for all tenant improvements costs under Leases
entered into on or after the date of this Agreement with Purchaser's prior
written approval.
K. REPRORATION AFTER CLOSING. In the event that the
actual amounts of any of the aforesaid proration items are unavailable as of
Closing, then such proration shall be made on the basis of an amount reasonably
estimated by Purchaser and Seller at Closing and Purchaser and Seller shall
thereafter reprorate such items at such times
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as the exact amounts for such proration items become available (but such
prorations will be made within one year after the Closing Date or upon such
earlier date as the exact amounts for such proration become available);
provided however, that no reproration adjustment shall be made if the net
amount due is $100 or less.
9. ADJUSTMENT. The Purchaser shall receive a credit against the
Cash Portion equal to the product of (x) the difference of the Purchase Price
less the outstanding principal balance of the Surviving Debt at the Proration
Date, multiplied by (y) 0.000278, multiplied by (z) the number of days
remaining in the month of December, 1994, after the Closing Date.
10. CONVEYANCES AND DELIVERIES.
A. LIMITED WARRANTY DEED. At Closing, Seller shall
convey the Land and Improvements (except the Land and Improvements subject to
the Ground Lease) to Purchaser by Limited Warranty Deeds (or their equivalent
under Louisiana law), subject to applicable Permitted Title Exceptions.
B. LIMITED WARRANTY ASSIGNMENT OF GROUND LEASE. At
Closing, Seller shall assign to Purchaser by limited warranty assignment all of
its right, title and interest in and to that portion of the Land and
Improvements subject to the Ground Lease, subject to applicable Permitted Title
Exceptions. At closing, Seller shall deliver the estoppel certificate from the
Ground Lessor as described in Section 19.
C. BILL OF SALE. At Closing, Seller shall convey the
Personal Property to Purchaser by limited warranty Bill of Sale.
D. ASSIGNMENT OF LEASES. At Closing, Seller shall
assign to Purchaser the landlord and lessor interest in and to the Tenant
Leases by an Assignment and Purchaser shall assume in writing the due and full
performance of all of Seller's covenants and obligations accruing on and after
the Closing Date under the Tenant Leases. In such Assignment, Seller shall
agree to indemnify and hold Purchaser harmless for any loss, cost and damage
arising as a result of Seller's failure to perform the obligations of landlord
accruing prior to the Closing Date under such Leases.
E. ASSIGNMENT OF SERVICE CONTRACTS AND OTHER INTERESTS.
At Closing, Seller shall assign to Purchaser, to the extent assignable, and
without representation or warranty except as expressly provided herein,
Seller's interest in the Service Contracts and the Other Interests, by an
Assignment, and Purchaser shall assume in writing the due and full performance
of all of Seller's covenants and obligations accruing on and after the Closing
Date under the Service Contracts. In such Assignment, Seller shall agree to
indemnify and hold Purchaser harmless for any loss, cost and damage arising as
a result of Seller's
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failure to perform its obligations accruing prior to the Closing Date under the
Service Contracts.
F. AFFIDAVIT OF TITLE. At Closing, Seller shall execute
and deliver to Title Company an affidavit, made to Seller's knowledge, with
respect to title matters and otherwise as may be reasonably required by the
Title Company.
G. TENANT ESTOPPELS. Seller shall use its good faith
efforts to deliver to Purchaser at or prior to Closing Tenant Estoppels from
each of the Tenants. As a condition precedent to Purchaser's obligation to
purchase the Property at Closing, Seller shall deliver to Purchaser at or prior
to Closing Tenant Estoppels executed by (i) the Major Tenants, and (ii) sixty
(60%) of the remaining Tenants (and such percentage shall be determined on a
rentable square footage basis of the Improvements leased to Tenants other than
Major Tenants) (collectively, the "Required Tenants"). Notwithstanding the
foregoing, Seller shall not have any obligation to incur any expenditures in
order to obtain such Tenant Estoppels beyond the expense of preparation,
submittal and reasonable follow-up inquiries to Tenants. Seller's obligation
to deliver the Tenant Estoppels from the Required Tenants shall be a condition
to Closing and Seller's failure to deliver all of the Tenant Estoppels from all
of the Required Tenants shall constitute a failure of condition for which
Purchaser's only right shall be to terminate this Agreement and have its
Deposit returned and not a default hereunder. If Tenant Estoppel(s) disclose
the existence of Material Landlord Default, within five (5) Business Days of
Seller's receipt of those Tenant Estoppel(s), Seller shall notify Purchaser by
written notice of that Material Landlord Default and whether or not Seller will
elect to cure same. If Seller declines, by written notice to Purchaser, to
cure that Material Landlord Default or fails to cure same by December 20, 1994,
Purchaser may elect to cancel this Agreement by written notice to Seller given
within five (5) Business Days of either event, in which case the Escrow Agent
shall refund the Deposit to Purchaser and thereafter neither party shall have
any further rights, obligations or liabilities hereunder except to the extent
any right, obligation or liability set forth herein expressly survives
termination or cancellation of this Agreement. If Seller is pursuing cure but
has not completed cure of Material Landlord Default by December 20, 1994, and
Purchaser gives notice of cancellation as provided above, Seller shall have the
right to nullify that cancellation notice and extend the Closing Date to a date
on or before March 20, 1995, by written notice to Purchaser given within five
(5) Business Days after Purchaser's notice of cancellation. If cure of
Material Landlord Default has not been accomplished by the Closing Date, as so
extended, Purchaser then may cancel this Agreement as aforesaid. Material
Landlord Default shall be deemed cured if Tenant(s) in question issue revised
Tenant Estoppel(s) withdrawing the claim of Material Landlord Default.
Seller's election not to cure Material Landlord Default or failure to cure
Material Landlord Default by the Closing Date, as it may be extended pursuant
hereto, shall constitute a failure of condition and not a default hereunder.
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Purchaser shall not have any right to cancel or terminate this Agreement on the
basis of the existence of defaults under Tenant Leases that do not constitute
Material Landlord Default and, subject to the other terms and conditions of
this Agreement, shall be obligated to close the purchase and sale of the
Property, as provided herein, without adjustment of the Purchase Price based
upon defaults under Tenant Leases that do not constitute Material Landlord
Default.
H. LANDLORD LEASE ESTOPPEL. For all leases for which a
Tenant Estoppel has not been obtained, Seller shall execute and deliver to
Purchaser a blanket estoppel substantially similar to the form of Tenant
Estoppel, made to Seller's knowledge. Any claim by Purchaser under this
estoppel must be asserted by Purchaser against Seller in writing within six (6)
months after closing or such claim shall be deemed waived.
I. AGREEMENTS RE LEASING COMMISSIONS. At Closing
Purchaser shall execute an agreement expressly assuming only the Commission
Agreements identified on Exhibit "G". Purchaser shall not assume any
Commission Agreements with Stirling Properties and, as a condition of Closing,
Seller shall deliver to Purchaser an acknowledgment from Stirling Properties
that it has been paid in full for all lease and other commissions.
J. ASSUMPTION OF SURVIVING DEBT. At Closing, Purchaser
shall execute and deliver assumption agreements for the Surviving Debt, in the
form and content reasonably required by any holder of Surviving Debt (except
that such assumption shall not affect the non-recourse provisions of the
Surviving Debt).
K. NOTICES OF ASSIGNMENT AND ASSUMPTION. On the Closing
Date, Seller shall send a written notice, substantially in the form of Exhibit
"I", to each Tenant under a Tenant Lease informing each such tenant of the sale
of the Property and of the assignment to and assumption by Purchaser of
Seller's interest in and obligations under the Tenant Leases and directing that
all rent and other sums payable after the Closing Date under each such Tenant
Lease shall be paid as set forth in the notice. Seller and Purchaser shall
also send a written notice, in form and content acceptable to Purchaser and
Seller, to each party to a Service Contract informing such party of the
assignment to and assumption by Purchaser of Seller's interest in and
obligations under such Service Contract.
L. DELIVERY OF TENANT LEASES; OTHER MATERIALS. At or
simultaneously with Closing, Seller shall deliver to Purchaser the originals of
the Tenant Leases (or, if originals are unavailable, copies certified as true
and correct by Seller or the applicable Tenants), the Service Contracts, and
any tangible items that are part of the Personal Property, or Other Interests
that are in the possession of or under the control of Seller, and the books and
records maintained for the Property.
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M. NON-FOREIGN CERTIFICATE. At Closing, Seller shall
execute and deliver to Purchaser a certificate with respect to Section 1445 of
the Internal Revenue Code stating whether or not Seller is a foreign person as
defined in said Section 1445 and applicable regulations thereunder, and shall
otherwise comply with all requirements under Section 1445 of the Internal
Revenue Code and related provisions with respect to sales of real property.
N. UPDATED OPERATING STATEMENTS AND RENT ROLL. At
Closing, Seller shall deliver to Purchaser operating statements and rent roll,
updated to the date of Closing or as close to that date as reasonably
practicable.
O. CLOSING STATEMENT. At Closing, Seller and Purchaser
shall execute and deliver a closing statement which shall, among other items,
set forth the Purchase Price, all credits against the Purchase Price, the
amounts of all prorations and other adjustments to the Purchase Price and all
disbursements made at Closing on behalf of Purchaser and Seller.
P. EVIDENCE OF AUTHORITY. At Closing, Seller shall
deliver to Purchaser evidence that Seller has the requisite power and authority
to execute, deliver and perform under this Agreement and all closing documents
to be signed by Seller, including an incumbency certificate duly executed by
the secretary or assistant secretary of the corporation with respect to the
named persons who are authorized to execute documents on behalf of such
corporation. Additionally, Seller shall provide such evidence of authority as
the Title Company and Purchaser may reasonably request for issuance of the
Title Policy.
11. SELLER'S REPRESENTATIONS AND WARRANTIES.
A. REPRESENTATIONS AND WARRANTIES. Seller, as of the
date of the execution of this Agreement by Seller, represents and warrants to
Purchaser, and covenants with Purchaser, as follows:
(i) ORGANIZATION, POWER AND AUTHORITY. Seller is a
limited partnership duly organized, validly existing and in good
standing under the laws of the State of Massachusetts, is, to the
extent required by law, duly qualified to do business in the State of
Louisiana and has all necessary power to execute and deliver this
Agreement and perform all its obligations hereunder. Seller has the
full power and authority to enter into and perform this Agreement and
the execution, delivery and performance of this Agreement by Seller
(a) has been duly and validly authorized by all necessary action on
the part of Seller, (b) does not conflict with or result in a
violation of Seller's partnership agreement or any judgment, order or
decree of any court or arbiter in any proceeding to which Seller is a
party, and (c) does not conflict with or constitute a
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material breach of, or constitute a material default under, any
contract, agreement or other instrument by which Seller is bound or to
which it is a party.
(ii) LITIGATION PROCEEDINGS. There are no judgments
unsatisfied against Seller or the Property or consent decrees or
injunctions to which Seller or the Property is subject, and there is
no litigation or proceeding pending or, to Seller's knowledge,
threatened against or relating to Seller or the Property, except
dispossessory actions filed in the ordinary course of business.
(iii) NO VIOLATIONS. Seller has not received any written
notification from any governmental or public authority that the
Property violates any existing fire, environmental, health, building,
use and occupancy or zoning laws to the extent such laws are
applicable to the Property or that any work is required to be done
upon or in connection with the Property, which remain outstanding.
(iv) BANKRUPTCY. Seller has not (a) commenced a voluntary
case, or had entered against it a petition, for relief under any
federal bankruptcy act or any similar petition, order or decree under
any federal or state law or statute relative to bankruptcy, insolvency
or other relief for debtors, (b) caused, suffered or consented to the
appointment of a receiver, trustee, administrator, conservator,
liquidator or similar official in any federal, state or foreign
judicial or non-judicial proceeding, to hold, administer and/or
liquidate all or substantially all of its assets, or (c) made an
assignment for the benefit of creditors.
(v) PENDING CONDEMNATION PROCEEDINGS. Seller has
received no notice of Condemnation Proceedings which would affect the
Property, or any part thereof.
(vi) EMPLOYEES. Seller has no employees at the Property.
(vii) MANAGEMENT AND LEASING AGREEMENT. The only agreement
for management and leasing of the Property is that certain Management
Agreement, dated March 31, 1991, by and between Seller and Stirling
Properties (hereinafter referred to as the "Management Agreement").
(viii) COMMISSION AGREEMENTS. The only Commission
Agreements pursuant to which commission is due or may be due after
Closing are those identified on Exhibit "G". All other commission
Agreements have been paid in full.
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(ix) RENT ROLL. To Seller's knowledge, the rent roll
attached hereto as Exhibit "J" is true and correct in all material
respects as of the date of its preparation and there are no Tenant
Leases, currently in effect, not disclosed to Purchaser thereon.
(x) OPERATING STATEMENTS. To Seller's knowledge, the
operating statements for the period from May 1991, to date furnished
to Purchaser are true and correct in all material respects. For the
purposes of this representation and warranty only, "To Seller's
knowledge" also shall include the actual knowledge of Jeffery L.
Marshall, Chief Financial Officer, Stirling Properties.
(xi) EXISTENCE OF DEFAULTS. Seller has received no
written notice of default from any of the Major Tenants, or from any
holder of the Surviving Debt, or from the Ground Lessor or from any
party to a Service Contract, asserting default that is outstanding and
uncured as of the date hereof. Seller has sent no notice of default
to any of the Tenants, except notices of delinquent or past due rent
given in the ordinary course of business.
(xii) SERVICE CONTRACTS. The only Service Contracts
affecting the Property are those identified on Exhibit "K".
(xiii) LANDLORD'S STATUS. Seller is the "landlord" or
"lessor" under the Leases and has the full right and power to assign
the Leases to Purchaser, subject to the Permitted Title Exceptions.
(XIV) LOAN DOCUMENTS. The loan documents listed in Exhibit
"C" are the only material loan documents evidencing or securing the
Surviving Debt.
(XV) LEASE SIDE AGREEMENTS. To Seller's knowledge, there
are no "side agreements" not disclosed in the files maintained by
Seller for the Tenant Leases.
B. REAFFIRMATION AT CLOSING. As a condition of Closing, the
foregoing representations, warranties and covenants of Seller shall be
reaffirmed by Seller in writing at Closing. By way of clarification, the
reaffirmation with regard to Section 11A(ix), concerning the rent roll, shall
be as to the rent roll attached hereto and not an updated rent roll and with
regard to Section 11A(x), concerning Operating Statements, shall be as to those
operating statements delivered to Purchaser on or before the date of this
Agreements and not updates after that date.
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C. SURVIVAL. The representations, warranties and covenants set
forth above shall survive Closing hereunder for a period of six (6) months,
except for Section 11A(viii) concerning Commission Agreements which shall
survive for a period of two (2) years, and shall not be merged with the
execution and delivery of the deed and other closing documents hereunder.
12. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser, as of
the date of the execution of this Agreement by Purchaser, represents and
warrants to Seller as follows:
A. ORGANIZATION, POWER AND AUTHORITY. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Georgia, is, or will by the Closing Date be, to the extent required by
law, duly qualified to do business in the State of Louisiana and has all
necessary power to execute and deliver this Agreement and perform all its
obligations hereunder. Purchaser has the full power and authority to enter
into and perform this Agreement and the execution, delivery and performance of
this Agreement by Purchaser (i) has been duly and validly authorized by all
necessary action on the part of Purchaser, including its Board of Directors,
(ii) does not conflict with or result in a violation of Purchaser's articles of
incorporation or bylaws or any judgment, order or decree of any court or
arbiter in any proceeding to which Purchaser is a party, and (iii) does not
conflict with or constitute a material breach of, or constitute a material
default under, any contract, agreement or other instrument by which Purchaser
is bound or to which it is a party.
B. FINANCIAL RESOURCES. Purchaser has the financial resources to
consummate the purchase and sale contemplated by this Agreement through
currently committed working capital and unfunded, or otherwise unrestricted,
borrowing capacity. Purchaser agrees that its obligation to close under this
Agreement is not conditioned upon any financing contingency, except for consent
to transfer for the Assumed Debt.
C. NO BANKRUPTCY. Purchaser has not (i) commenced a voluntary
case, or had entered against it a petition, for relief under any federal
bankruptcy act or any similar petition, order or decree under any federal or
state law or statute relative to bankruptcy, insolvency or other relief for
debtors, (ii) caused, suffered or consented to the appointment of a receiver,
trustee, administrator, conservator, liquidator or similar official in any
federal, state or foreign judicial or non-judicial proceeding, to hold,
administer and/or liquidate all or substantially all of its assets, or (iii)
made an assignment for the benefit of creditors.
D. REAFFIRMATION AT CLOSING. As a condition precedent to
Seller's obligation to sell the Property to Purchaser at Closing under this
Agreement, the representations of Purchaser set forth in this
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Agreement shall be true and correct in all material respects as of the Closing
Date and Purchaser shall reaffirm the same in writing.
13. INTERIM OPERATION. Seller and Purchaser agree as follows
between the date hereof and the Closing Date:
A. STANDARD OF OPERATION AND MAINTENANCE. Seller shall operate,
manage and maintain the Property in substantially the same manner as it has
been operated, managed and maintained by Seller prior to the date of this
Agreement, subject to the terms of this Agreement. Seller agrees to comply
with its obligations under all debt presently secured by any part of the
Property.
B. NEW TENANT LEASES AND MODIFICATIONS TO EXISTING TENANT LEASES.
Seller shall not enter into any new space leases or cancel, modify, extend or
renew any existing Tenant Lease, nor waive any default under, or accept any
surrender of, any Tenant Lease or accept any prepayment of rent thereunder
without in each case the written consent of Purchaser, which consent may be
withheld in Purchaser's sole discretion; upon delivery of such written consent,
such space lease or modification thereof shall thereupon be included within the
definition of "Tenant Leases" set forth herein. Seller shall furnish to
Purchaser copies of any new Tenant Leases entered into pursuant to this Section
13B.
C. NEW SERVICE CONTRACTS AND MODIFICATIONS TO EXISTING SERVICE
CONTRACTS. Seller shall not enter into any new service contracts which cannot
be terminated, without penalty, upon 30 days (or less) written notice from the
owner of the Property; and Seller shall promptly notify Purchaser if any
service contracts are entered into and shall provide copies of same with such
notification. In addition, Seller shall not cancel, modify, extend or renew
any Service Contract, nor waive any default under or accept any surrender of,
without in each case the prior written consent of Purchaser, which consent may
be withheld in Purchaser's sole discretion. Seller shall furnish to Purchaser
copies of any new Service Contracts entered into pursuant to this Section 13C.
D. TRANSFER OF PERMITS. Seller shall execute all applications
and instruments required in connection with the transfer to Purchaser of all
Permits, to the extent transferable, and without representation or warranty,
except as expressly provided herein. If any such Permit shall be suspended or
revoked, Seller shall promptly notify Purchaser. Seller shall not seek or
allow any amendment to any Permit which would alter the existing permissible
uses of the Property or any part thereof.
E. INSURANCE. Seller shall maintain its current insurance for
the Property.
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F. MANAGEMENT AGREEMENT. Unless Seller receives written notice
from Purchaser on or before November 29, 1994, requesting Seller not to
terminate the Management Agreement, Seller shall cancel the Management
Agreement as of the Closing Date (if there are two Closings pursuant to Section
7, as of the first Closing Date) and shall deliver to Purchaser reasonable
evidence of such cancellation.
G. LAND SALES. With respect to certain ongoing negotiations for
the sale of certain tracts of vacant land included in the Property, Purchaser
and Seller agree as follows:
(i) The vacant land that is subject to this subsection is
described in Exhibit "A" (hereafter referred to as the "Vacant Land").
(ii) Purchaser agrees that such negotiations and any sale
pursuant thereto may proceed and Purchaser agrees to cooperate fully
with such activities, including without limitation granting a
quitclaim to release any equitable or other interest it may have in
the Vacant Land pursuant to this Agreement.
(iii) Prior to entering into any contract for the purchase
and sale of the Vacant Land, Seller shall first obtain Purchaser's
written consent. Purchaser agrees that any such contract may provide
for a commission of 6% of the sales price to Stirling Properties. If
the proposed sale of Vacant Land contemplates the granting of any new
easements or servitudes that will burden the remaining Property
Purchaser will be acquiring hereunder, Purchaser shall have the right
to approve such easements or servitudes in its sole and absolute
discretion.
(iv) If a sale of any portion of the Vacant Land is closed
prior to the Closing hereunder, Purchaser shall receive a credit
against the Cash Portion equal to the cash proceeds Seller receives
from the sale, after payment of reasonable transaction costs,
brokerage fees and Assumed Debt attributable to the portion of the
Vacant Land sold.
(v) If a contract for the sale of a portion of the Vacant
Land is signed before Closing, with Purchaser's consent as provided
above, and does not provide for a closing until after the Closing,
Seller shall assign that contract to Purchaser, and transfer any
earnest money deposit made thereunder, and Purchaser shall assume and
agree to perform all Seller's obligations thereunder and agree to
indemnify and hold Seller harmless from any and all loss, cost or
damages that Seller may suffer or incur, including reasonable
attorneys' fees and court cost, as a
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result of Purchaser's failure to perform Seller's obligations
thereunder.
H. CONTINUED DEVELOPMENT. With respect to certain pending
development plans, Purchaser and Seller agree as follows:
(i) Purchaser agrees that Seller shall have the
right to continue after the date hereof certain development plans
for the Property, including a possible expansion of Delchamp's at
Country Club Plaza and possible additions of Campo's and Discovery
Zone at Siegen Village.
(ii) Prior to entering into any binding agreements
concerning such development plans, Seller agrees to obtain Purchaser's
written approval thereof.
(iii) If an agreement has been entered into prior to
Closing, with Purchaser's consent as provided above, Seller shall
assign that contract to Purchaser, and transfer any earnest money
deposit made thereunder, and Purchaser shall assume and agree to
perform all Seller's obligations thereunder and agree to indemnify and
hold Seller harmless from any and all loss, cost or damages that
Seller may suffer or incur, including reasonable attorneys' fees and
court cost, as a result of Purchaser's failure to perform Seller's
obligations thereunder.
14. PURCHASER'S DUE DILIGENCE AND INSPECTION RIGHTS; CANCELLATION RIGHT.
A. INSPECTION OF PROPERTY. Purchaser shall, at all reasonable
times prior to the Closing Date and subject to the rights of Tenants under the
Tenant Leases, have the privilege of going upon the Property with Purchaser's
agents, representatives and contractually retained independent contractors as
needed (accompanied by a representative of Seller) to inspect, examine, test,
appraise and survey the Property, including, but not limited to, investigations
of the zoning status and physical status thereof and verification of all
information made or to be made available to Purchaser with respect to Property.
This privilege shall include the right to make surveys, examinations,
appraisals and other tests to obtain any relevant information necessary to
determine subsurface and topographic conditions, including, but not limited to,
toxic and hazardous materials and substances studies, soil tests, asbestos
analysis and structural review, all of which tests, studies and reviews shall
be performed at Purchaser's sole cost and expense. Furthermore, in
consideration of Purchaser's right to inspect the Property as described in this
Paragraph, Purchaser shall, and does hereby indemnify, and agree to defend and
hold Seller, its directors and officers, harmless from any actions, suits,
liens, claims, damages, expenses, losses and liability arising out of the
exercise of such privileges by Purchaser, its agents,
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representatives, and independent inspectors (including, without limitation, any
rights or claims of materialmen or mechanics to liens on the Property), which
indemnity, defense and hold harmless agreements shall survive Closing hereunder
and any termination of this Agreement.
B. COMPLETED DUE DILIGENCE. Purchaser acknowledges to
Seller that it has completed its due diligence review of the Property in all
respects, including without limitation review of title and survey, physical
inspection of Property, review of Tenant Leases and related files, review of
the loan documents for the Surviving Debt and related files and review of
Seller's books and records for the operation of the Property; and Purchaser
confirms to Seller that it is satisfied with the results of its due diligence
review and has no objections with regard to the Property, except matters
affecting title arising after October 14, 1994, not approved by Purchaser and
except for its environmental audit which is not yet complete and which is more
particularly addressed in Sections 14C and 14D hereof. As a result of
Purchaser's physical audit of the Property, Purchaser and Seller have agreed to
the following:
(i) The Purchase Price shall be reduced in the
amounts and on the account of the matters described in Exhibit
"L".
(ii) At Closing a sum sufficient to complete
construction of the proposed sanitary sewer treatment plant at
Tarpon Village (estimated to be approximately $130,000) shall
be placed in escrow with Escrow Agent pursuant to the terms
and conditions of an Escrow Agreement reasonably acceptable to
Purchaser, Seller and Escrow Agent, providing for the
disbursement of funds to complete the proposed sanitary sewer
treatment plant. As part of such Escrow Agreement,
post-Closing, Purchaser shall agree to diligently seek
reimbursement and assist Seller in seeking reimbursement for a
portion of the costs of the completion of the proposed
sanitary sewer treatment plant from Wal-Mart (its contribution
to be 49% of the total cost) and Burger King (its contribution
to be 3% of the total cost) and all sums collected from those
tenants shall be remitted to Seller upon collection. Prior to
Closing, Seller may let contracts to construct such lift
station, with Purchaser's prior written approval, and
Purchaser shall assume all of Seller's obligations under such
preapproved construction contracts at Closing.
C. ENVIRONMENTAL AUDIT. Purchaser's environmental audit
of the Property is in progress. Purchaser shall have through November 29,
1994, to complete its Phase One Audits of the Property and raise by written
notice to Seller any objection based upon the Phase One Audits. Additionally,
Purchaser has commissioned Phase Two Audits for Ambassador Row, Ambassador
Courtyard, Plaza Acadienne, Miller Village, Sherwood South, Bluebonnet Village
and The Crossings. Purchaser shall have
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through November 29, 1994, plus an extension of time for matters beyond the
reasonable control of Purchaser that prohibit the audit work to be completed
not to extend past December 20, 1994, (to complete such Phase Two Audits and
raise by written notice any objection based on the Phase Two Audits). Such
extension of time for the Phase Two Audits shall only apply if Purchaser gives
Seller written request for the extension on or before November 29, 1994,
accompanied by a letter to Seller from Purchaser's environmental engineer
confirming the need for the extension due to conditions beyond the reasonable
control of Purchaser. The effect of an objection based upon environmental
matters shall be addressed in Section 14D. If any of the Phase One Audits
recommend that a Phase Two Audit be made on the center in question, the
Purchaser shall notify Seller of this finding on or before November 29, 1994,
by written notice together with a copy of such finding. Upon such timely
notification, Purchaser shall have until December 20, 1994, to complete such
Phase Two Audits and raise by written notice any objection based on the Phase
Two Audits and Purchaser shall have the same cancellation rights with respect
to those additional centers, as the six centers identified above for which
Phase Two Audits are already in progress.
D. ENVIRONMENTAL CANCELLATION RIGHT. If Purchaser's
environmental audits disclose an adverse environmental matter which in the
professional opinion of Purchaser's environmental engineer could result in a
remediation cost exceeding $50,000 at any one of the centers which comprise the
Property or, although not exceeding $50,000 at any one center, could result in
a total remediation cost of $150,000 for all of the Property, Purchaser shall
have the right to cancel this Agreement. To be effective, such cancellation
right must be exercised by written notice from Purchaser to Seller given within
time deadlines set forth in Section 14C above and such cancellation notice must
be accompanied by letter to Seller from Purchaser's environmental engineer
confirming the finding of remediation costs above the thresholds described
above. Upon an effective cancellation, Escrow Agent shall return the Deposit
to Purchaser and thereafter neither party hereto shall have any further rights,
obligations or liabilities hereunder except to the extent that any right,
obligation or liability set forth herein expressly survives termination of this
Agreement. If such environmental audits fail to disclose any condition that
could result in a remediation cost in excess of the thresholds described above,
Purchaser shall be obligated to close the purchase and sale of the Property,
subject to the other terms and conditions of this Agreement, without adjustment
to the Purchase Price.
E. "AS-IS" AND "WHERE-IS" CONVEYANCE. In consideration
of Purchaser's receiving access to the Property as set forth in this Section so
that Purchaser may conduct such studies, tests, investigations, inspections and
analyses with respect to the Property as Purchaser might desire, Purchaser
acknowledges and confirms that, unless Purchaser elects to terminate this
Agreement as provided herein, Purchaser shall accept Seller's conveyance of the
Property to Purchaser in "as-is" and "where-is" condition free of any warranty
by Seller
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<PAGE> 41
except as otherwise expressly provided in this Agreement or in any of the
conveyance documents and free of any obligation by Seller to perform any
repairs or other improvement work with respect to the Property, except as may
otherwise be expressly provided in this Agreement. Except as expressly set
forth herein, no representation or warranty, express or implied, is made as to
: (i) the condition, usability, fitness for purpose, or habitability of the
Property; (ii) the need (if any) for repairs thereto; (iii) the existence of or
presence of any Hazardous Substance; (iv) the existence or nonexistence of any
presence or mitigation of any Hazardous Substances; or (v) the existence or
nonexistence or any presence of any wood destroying pests and organisms,
including, without limitation, termites, fungi and/or dry rot. Except as
expressly set forth herein, Purchaser hereby releases Seller from any and all
liability and waives the warranty of fitness for intended purpose and the
guarantee against hidden or latent redhibitory vices as provided by Louisiana
law, including Louisiana Civil Code Articles 2520 and 2548, and Article 2476.
The waiver in the immediately preceding sentence is a material and integral
part of this Agreement.
F. DELIVERY OF REPORTS AND MATERIALS UPON TERMINATION OF
AGREEMENT. In the event of any termination of this Agreement, Purchaser shall
deliver to Seller the originals or photocopies of all inspection reports and
results, test reports and results, appraisals, analyses, surveys or other
reports received or obtained by or for Purchaser with respect to the Property
or any part thereof and all photocopies and other items delivered by Seller to
Purchaser pursuant to the provisions of this Section.
15. NOTICES. All notices, consents, approvals and other
communications which may be or are required to be given by a party under this
Agreement shall be properly given only if made in writing and sent by (a) hand
delivery or (b) facsimile transmission with telephonic or machine imprint
confirmation or (c) a nationally recognized overnight delivery service (such as
Express Mail, Federal Express, UPS Next Day Air, Purolator Courier or Airborne
Express), with all delivery charges paid by the sender and addressed to the
other two parties, as follows, or at such other address as each may request in
writing. Such notices delivered by hand, facsimile, or overnight delivery
service shall be deemed received on the date of delivery. Said notice
addresses are as follows:
IF TO SELLER:
------------
Maurin-Ogden Limited Partnership
c/o The Yarmouth Group, Inc.
Suite 3210
950 East Paces Ferry Road
Atlanta, Georgia 30326
Attn: W. Jerry Sauls
Executive Vice President
FAX: (404) 364-3355
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<PAGE> 42
WITH A COPY TO:
--------------
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attn: Scott J. Arnold, Esq.
William J. Armstrong, Esq.
FAX: (404) 572-5148
IF TO PURCHASER:
---------------
IRT Property Company
Suite 1400
200 Galleria Parkway
Atlanta, Georgia 30339
Attn: Donald W. MacLeod
Chairman and President
FAX: (404) 988-8773
WITH A COPY TO:
--------------
IRT Property Company
Suite 1400
200 Galleria Parkway
Atlanta, Georgia 30339
Attn: Lee A. Harris, Senior Vice President
and General Counsel
FAX: (404) 988-8773
IF TO ESCROW AGENT:
------------------
First American Title Insurance Company
c/o Orleans Title Insurance Agency
Place St. Charles, Suite 3201
201 St. Charles Avenue
New Orleans, Louisiana 70170
Attn: Henry O'Connor, Jr., President
FAX: (504) 582-1240
16. CASUALTY AND CONDEMNATION.
A. CASUALTY. In the event that prior to the Closing
Date any of the Improvements are damaged or destroyed by fire or other
casualty, then Seller shall deliver written notice to Purchaser of such
casualty and the following provisions shall apply with respect to such
casualty:
(i) if such damage or destruction results in a
casualty loss in an amount exceeding Five Million and No/100
Dollars ($5,000,000.00) or gives a Major Tenant the right to
42
<PAGE> 43
cancel its lease pursuant to its express terms or gives a
Major Tenant the right to reduce its rent so as to materially
impair the income from the center affected (in each case, a
"Major Casualty"), Purchaser shall have the right to
terminate this Agreement by written notice to Seller received
within five (5) days after Purchaser has received notice of
such fire or other casualty, in which event the Escrow Agent
shall refund the Deposit to Purchaser and thereafter neither
party hereto shall have any further rights, obligations or
liabilities hereunder except to the extent that any right,
obligation or liability set forth herein expressly survives
termination of this Agreement. In the event that this
Agreement is not terminated pursuant to this Subparagraph (i),
Purchaser shall be obligated to close the purchase and sale
contemplated by this Agreement as scheduled without adjustment
of the Purchase Price and Seller shall assign to Purchaser at
Closing all insurance proceeds payable under Seller's insurance
policies on account of such damage or destruction or pay to
Purchaser all such insurance proceeds previously paid to
Seller together with any deductible applicable thereto,
provided that to the extent Seller uses insurance proceeds or
any portion thereof to repair or restore the Property, then
such amount used for such purpose shall be deducted from the
amount payable to Purchaser at Closing with respect thereto;
and Seller shall not be obligated to repair or restore the
Property.
(ii) if such damage or destruction results in a
casualty loss that is not a Major Casualty, then, provided
that Seller is insured for not less than 100% replacement
cost, neither Purchaser nor Seller shall have such right to
terminate this Agreement, and Purchaser and Seller shall be
obligated to close the purchase and sale contemplated by this
Agreement as scheduled without adjustment of the Purchase
Price and Seller shall assign to Purchaser at Closing all
insurance proceeds payable under Seller's insurance policies
on account of such damage or destruction or pay to Purchaser
all such insurance proceeds previously paid to Seller together
with any deductible applicable thereto, provided that to the
extent Seller uses the insurance proceeds or any portion
thereof to repair or restore the Property, then such amount
used for such purpose shall be deducted from the amount
payable to Purchaser at Closing with respect thereto; and
Seller shall not be obligated to repair or restore the
Property.
B. CONDEMNATION. In the event that prior to the Closing
Date there shall be instituted against the Property any Condemnation
Proceeding, Seller shall immediately give written notice (hereinafter
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<PAGE> 44
referred to as "Seller's Condemnation Notice") of such Condemnation Proceeding
to Purchaser, and:
(i) In the event that such Condemnation
Proceeding would result in a Material Taking of any portion of
any Improvement, then Purchaser shall have the right to
terminate this Agreement by written notice to Seller received
within five (5) days after the receipt of Seller's
Condemnation Notice, in which event Escrow Agent shall
promptly refund the Deposit to Purchaser and thereafter
neither party hereto shall have any further rights,
obligations or liabilities hereunder except to the extent that
any right, obligation or liability set forth herein expressly
survives termination of this Agreement. In the event that
Purchaser shall not elect to terminate this Agreement pursuant
to this Subparagraph (i), Purchaser shall be obligated to
close the purchase and sale contemplated hereby as scheduled
less the portion of the Property so taken or subject to said
Condemnation Proceeding without adjustment of the Purchase
Price and Seller shall assign or pay to Purchaser at Closing
all of Seller's right, title and interest in any award payable
on account of such Condemnation Proceeding or pay to Purchaser
all such awards previously paid and Seller shall have no
obligation to repair or restore the Property not so taken by
said Condemnation Proceeding except as otherwise provided
herein.
(ii) In the event that such Condemnation
Proceeding would not result in a Material Taking of any
portion of any Improvement, then Purchaser shall have no right
to terminate this Agreement, and Purchaser shall be obligated
to close the purchase and sale contemplated hereby as
scheduled less the portion of the Property so taken or subject
to said Condemnation Proceeding without adjustment of the
Purchase Price and Seller shall assign to Purchaser at Closing
all of Seller's right, title and interest in any award payable
on account of such Condemnation Proceeding or pay to Purchaser
all such awards previously paid; provided that to the extent
Seller uses the award proceeds or any portion thereof to
repair or restore the Property, then such amount used for such
purpose shall be deducted from the amount payable to Purchaser
at Closing with respect thereto; and Seller shall have no
obligation to repair or restore the Property not so taken by
said Condemnation Proceeding except as otherwise provided
herein.
17. BROKERS. Each party represents to the other that such party
has not incurred any obligation to any broker or real estate agent with respect
to the purchase or sale of the Property. Each of Seller and Purchaser warrants
and represents to the other that such party has employed (expressly or
impliedly) no broker or finder and has made no
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<PAGE> 45
agreement (express or implied) to pay any broker's commissions or finder's fees
in connection with the transactions contemplated by this Agreement. Seller and
Purchaser each agrees to indemnify and defend the other against and to hold the
other harmless of and from all claims, demands and liabilities for any
commission or fee payable to or claimed by any broker or finder employed
(expressly or impliedly) by it or with whom it made an agreement (express or
implied) to pay a broker's commission or a finder's fee. The representations,
warranties, undertakings and indemnities of this Section shall survive the
Closing hereunder and any termination of this Agreement.
18. DEFAULT.
A. In the event that Purchaser defaults in the
observance or performance of its covenants and obligations hereunder, and such
default continues for five (5) consecutive days after the date of written
notice from Seller demanding cure of such default, Seller shall be entitled to
terminate this Agreement (except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement) by
written notice to Purchaser of such termination and shall also be entitled, as
its sole and exclusive remedy hereunder, to receive the Deposit as full
liquidated damages, the parties hereto acknowledging the difficulty of
ascertaining the actual damages in the event of such a default, that it is
impossible more precisely to estimate the damages to be suffered by Seller upon
Purchaser's default, that such payment is intended not as a penalty, but as
full liquidated damages and that such amount constitutes a reasonable good
faith estimate of the potential damages arising therefrom, it being otherwise
difficult or impossible to estimate Seller's actual damages which would be
suffered by Seller in the event of default by Purchaser. Except with respect
to any right, obligation or liability which survives termination of this
Agreement (as to which Seller shall be entitled to exercise any and all rights
and remedies at law or in equity), the Seller's rights to so terminate this
Agreement and to receive payment of the Deposit as full liquidated damages are
Seller's sole and exclusive remedies in the event of default hereunder by
Purchaser, and Seller hereby waives, relinquishes and releases any and all
other rights and remedies, including, but not limited to: (1) any right to sue
Purchaser for specific performance or damages or to prove that Seller's actual
damages exceed the Deposit which is hereby provided Seller as full liquidated
damages or (2) any other right or remedy which Seller may otherwise have
against Purchaser, either by law, or equity or otherwise.
B. In the event that Seller defaults in the observance
or performance of its covenants and obligations hereunder, and such default
continues for five (5) consecutive days after the date of written notice from
Purchaser demanding cure of such default, Purchaser shall be entitled to
receive a return of the Deposit and either (i) terminate this Agreement by
written notice to Seller or (ii) sue Seller for specific performance of this
Agreement. If, however, the default is the result of Seller's willful
violation of the terms of this Agreement by
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<PAGE> 46
encumbering title to the Property, failing to pay the Cancelled Debt (unless
such failure is the result of the holder's wrongfully refusing to accept
payment), entering into a Lease or conveying all or any material portion of the
Property to a third party, in each case without Purchaser's prior written
approval, Purchaser shall be entitled to terminate this Agreement (except to
the extent that any right, obligation or liability set forth herein expressly
survives termination of this Agreement) by the delivery to Seller of notice of
such termination, receive from Escrow Agent immediate payment of the Deposit,
and sue Seller for actual damages up to a maximum recovery of $1,000,000.
Notwithstanding anything to the foregoing contained in this Section 19B, in the
event Purchaser is entitled to sue for specific performance, but applicable law
will not allow the release of the Deposit to Purchaser, the Deposit shall be
handled as required under applicable law.
C. In the event the purchase and sale is not consummated
for any reason expressly provided herein for Purchaser not consummating this
transaction (other than a default by Purchaser), then the Title Company shall
immediately return the Deposit to Purchaser.
19. PLAZA ACADIENNE
A. LEASEHOLD. One of the retail centers that compromise
the Property, known as "Plaza Acadienne" is leasehold estate created under and
by virtue of the Ground Lease.
B. ESTOPPEL CERTIFICATE. Seller agrees to use
reasonable efforts to obtain for the benefit of Purchaser from the Ground
Lessor an estoppel certificate substantially in the form of Exhibit "H",
confirming, among other matters, that the Ground Lease is in full force and
effect and that no default has been declared and remains uncured thereunder.
Seller's failure to obtain this estoppel shall not be a default hereunder, but
shall be a failure of a condition of sale.
20. GENERAL PROVISIONS.
A. AGREEMENT BINDING. This Agreement shall be binding
upon each party hereto and such party's successors and assigns and shall inure
to the benefit of each party hereto and such party's successors and permitted
assigns. Purchaser may not assign its rights under this Agreement without the
prior written approval of Seller, which approval Seller may withhold in its
sole discretion; provided, however, Purchaser may assign this Agreement to
wholly-owned subsidiaries as to one or more of the centers so long as such
assignment does not impair or hinder Seller in its efforts to obtain consents
to transfer of the Surviving Debt.
B. ENTIRE AGREEMENT. This Agreement and all the
exhibits referenced herein and annexed hereto contain the entire agreement of
the parties hereto with respect to the matters contained herein and no
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<PAGE> 47
prior agreement or understanding pertaining to any of the matters connected
with this transaction shall be effective for any purpose. Except as may be
otherwise provided herein, the agreements embodied herein may not be amended
except by an agreement in writing signed by the parties hereto.
C. TIME IS OF THE ESSENCE. TIME IS OF THE ESSENCE of
the transaction contemplated by this Agreement.
D. GOVERNING LAW. This Agreement shall be governed by
the laws of the State of Louisiana.
E. SURVIVAL. All covenants, agreements, indemnities,
representations and warranties contained herein shall not survive except as may
be otherwise specifically provided in this Agreement; and except for such
provisions, all other such covenants, agreements, representations, indemnities
and warranties shall be merged into the deed and other documents delivered at
Closing.
F. FURTHER ASSURANCE. Seller and Purchaser agree to
execute and deliver to each other such further documents or instruments as may
be reasonable and necessary in furtherance of the performance of the terms,
covenants and conditions of the within Agreement. This covenant shall survive
the Closing.
G. EXCLUSIVE APPLICATION. Nothing in this Agreement is
intended or shall be construed to confer upon or to give to any person, firm or
corporation other than the parties hereto any right, remedy or claim under or
by reason of this Agreement. All terms and conditions of this Agreement shall
be for the sole and exclusive benefit of the parties hereto and may not be
assigned except as provided herein.
H. PARTIAL INVALIDITY. If all or any portion of any of
the provisions of this Agreement shall be declared invalid by laws applicable
thereto, then the performance of said offending provision shall be excused by
the parties hereto; provided, however, that, if the performance of such excused
provision materially affects any aspect of this transaction, then the party
hereto for whose benefit such excused provision was inserted in this Agreement
shall have the right, exercisable by written notice given to the other party
within ten days after such provision is so declared invalid, to terminate this
Agreement; thereupon this Agreement shall be null and void.
I. INTERPRETATION. The titles, captions and paragraph
headings are inserted for convenience only and are in no way intended to
interpret, define, limit or expand the scope or content of this Agreement or
any provision hereof. If any party to this Agreement is made up of more than
one person or entity, then all such persons and entities shall be included
jointly and severally, even though the defined term for such party is used in
the singular in this Agreement. If any time period under this Agreement ends
on a day other than a
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<PAGE> 48
Business Day, then the time period shall be extended until the next Business
Day. This Agreement shall be construed without regard to any presumption or
other rule requiring construction against the party causing this Agreement to
be drafted. If any words or phrases in this Agreement shall have been stricken
out or otherwise eliminated, whether or not any other words or phrases have
been added, this Agreement shall be construed as if the words or phrases so
stricken out or otherwise eliminated were never included in this Agreement and
no implication or inference shall be drawn from the fact that said words or
phrases were so stricken out or otherwise eliminated. Whenever the context so
requires, references herein to the singular shall include the plural and plural
shall include the singular.
J. PURCHASER'S WAIVER RIGHT. The Purchaser reserves the
right to waive, in whole or in part, any provision hereof which is for the
benefit of Purchaser.
K. COUNTERPARTS. This Agreement may be executed in
separate counterparts. It shall be fully executed when each party whose
signature is required has signed at least one counterpart even though no one
counterpart contains the signatures of all of the parties to this Agreement. A
facsimile of Escrow Agent's signature to this Agreement shall be sufficient to
evidence its execution and delivery of this Agreement.
L. NO IMPLIED WAIVER. Unless otherwise expressly
provided herein, no waiver by Seller, Purchaser or Escrow Agent of any
provision hereof shall be deemed to have been made unless expressed in writing
and signed by such party. No delay or omission in the exercise of any right or
remedy accruing to Seller, Purchaser or Escrow Agent upon any breach under this
Agreement shall impair such right or remedy or be construed as a waiver of any
such breach theretofore or thereafter occurring. The waiver by Seller,
Purchaser or Escrow Agent of any breach of any term, covenant or condition
herein stated shall not be deemed to be a waiver of any other breach, or of a
subsequent breach of the same or any other term, covenant or condition herein
contained.
M. RIGHTS CUMULATIVE. All rights, powers, options or
remedies afforded to a party hereto either hereunder or by law shall be
cumulative and not alternative, and the exercise of one right, power, option or
remedy shall not bar other rights, powers, options or remedies allowed herein
or by law, unless expressly provided to the contrary herein.
N. CONFIDENTIALITY. Except as otherwise required by
law, Seller, Purchaser and Escrow Agent agree to keep this Agreement and its
contents confidential and without the written consent of the other parties,
agree not to disclose the same to any third party (except to parties acting in
a fiduciary capacity, financial institutions, attorneys to the parties hereto,
and other authorized representatives contracted by a party, who shall be
entitled to the knowledge for the
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mutual benefit of that party). Notwithstanding the foregoing, if Purchaser
does not exercise its right to cancel for environmental matters as provided in
Section 14D, Purchaser may make public a press release describing this
transaction, so long as Seller has given its advance written approval to the
content of the press release.
O. EXHIBITS. The exhibits and schedules referred to in
and attached to this Agreement are incorporated herein in full by reference.
P. GOOD FAITH. If any right of approval or consent by a
party to this Agreement is provided for in this Agreement, such party shall
exercise the right promptly, in good faith and reasonably, unless this
Agreement expressly gives such party the right to use its sole discretion.
Q. ATTORNEY'S FEES. In the event that any party to this
Agreement institutes any action to preserve, protect or enforce any right or
benefit created by or granted under this Agreement, the prevailing party in
such action shall be entitled, in addition to any and all other relief granted
by the court, to an award of the attorneys' fees reasonably incurred by the
prevailing party therein in filing or otherwise instituting and in prosecuting
or otherwise pursuing said action and, additionally, in negotiating any and all
matters underlying said action and in preparation for instituting said action.
R. POST-CLOSING COOPERATION.
(i) Seller agrees to furnish to Purchaser on or
before January 31, 1995, unaudited, accrual basis operating
statements for the Property for the year ended December 31,
1994 and, additionally, if the Closing occurs in 1995, within
thirty (30) days after Closing unaudited, accrual basis
operating statements for year-to-date, 1995 for the Property.
(ii) Seller acknowledges that Purchaser may be
required by the Securities and Exchange Commission to file
audited financial statements for one to three years with
regard to the Property. Seller shall (a) cooperate with
Purchaser, its counsel, accountants, agents, and
representatives, provide them with reasonable access to
Seller's books and records with respect to the ownership,
management, maintenance and operation of the Property for the
applicable period, and permit them to copy the same at
Purchaser's expense, (b) execute a form of "rep" letter
substantially in the form of Exhibit "M", and such other
documents as are reasonably required by Purchaser or
Purchaser's accountants in connection with such audit, with
appropriate disclosures and modifications to reflect the
results of the audit, and (c) furnish Purchaser with such
additional information
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<PAGE> 50
concerning the same as Purchaser shall reasonably request.
Purchaser shall pay the costs associated with such audit.
Purchaser's rights and remedies under this Agreement are
limited to those arising out of this Agreement, and the
execution and delivery of the "rep" letter to Purchaser's
accountants shall not serve to convey any additional rights to
Purchaser, or to allow recourse by Purchaser against Seller
not otherwise arising out of this Agreement.
(iii) The terms of this Section 20R shall survive
Closing.
IN WITNESS WHEREOF, Purchaser, Seller and Escrow Agent have executed
this Agreement under seal as of the day and year first above written.
SELLER:
------
MAURIN-OGDEN LIMITED PARTNERSHIP,
a Massachusetts Limited Partnership
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
------------------------
W. Jerry Sauls,
Executive Vice President
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
50
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SHERWOOD SOUTH GENERAL PARTNERSHIP,
a Louisiana general partnership
By: MAURIN-OGDEN LIMITED PARTNERSHIP,
a Massachusetts Limited Partnership,
its Managing General partner
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
--------------------
W. Jerry Sauls,
Executive Vice President
[CORPORATE SEAL]
PINHOOK PLAZA LIMITED PARTNERSHIP,
a Louisiana limited partnership
By: MAURIN-OGDEN LIMITED PARTNERSHIP,
a Massachusetts Limited Partnership,
its Managing General partner
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
------------------------
W. Jerry Sauls,
Executive Vice President
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
51
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GAUSE 11 LIMITED PARTNERSHIP,
a Louisiana limited partnership
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
------------------------
W. Jerry Sauls,
Executive Vice President
[CORPORATE SEAL]
PURCHASER:
---------
IRT PROPERTY COMPANY,
a Georgia Corporation
By: /s/ W. Benjamin Jones III
-------------------------
W. Benjamin Jones III,
Executive Vice President
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
52
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ESCROW AGENT:
------------
ORLEANS TITLE INSURANCE AGENCY,
Agent for
FIRST AMERICAN TITLE INSURANCE COMPANY
a California Corporation
By: /s/ Henry O'Connor, Jr.
-----------------------
Henry O'Connor, Jr.
Title: Agent
------------------
[CORPORATE SEAL]
53
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FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE
--------------------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE ("First
Amendment"), is made and entered into this 1st day of December, 1994, by and
among MAURIN-OGDEN LIMITED PARTNERSHIP, a Massachusetts limited partnership,
SHERWOOD SOUTH GENERAL PARTNERSHIP, a Louisiana general partnership, PINHOOK
PLAZA LIMITED PARTNERSHIP, a Louisiana limited partnership, and GAUSE 11
LIMITED PARTNERSHIP, a Louisiana limited partnership (collectively, the
"Seller"); IRT PROPERTY COMPANY, a Georgia corporation ("Purchaser"); and FIRST
AMERICAN TITLE INSURANCE COMPANY, a California corporation ("Escrow Agent").
WITNESSETH:
----------
WHEREAS, Purchaser, Seller and Escrow Agent entered into that certain
Agreement for Purchase and Sale dated November 23, 1994 (the "Contract")
pursuant to which Seller agreed to sell and Purchaser agreed to purchase the
Property as more particularly described in the Contract; and
WHEREAS, Purchaser and Seller desire to amend the Contract as more
particularly hereinafter set forth.
NOW, THEREFORE, for and in consideration of the Purchase Price, the
mutual covenants and agreements contained herein, the sum of Ten and No/100
Dollars ($10.00) and good and valuable consideration, the receipt , adequacy
and sufficiency of which are hereby acknowledged by Purchaser, Seller and
Escrow Agent, Purchaser, Seller and Escrow Agent intending to be legally bound
agree as follows:
1. COMPLETED ENVIRONMENTAL AUDIT. Pursuant to Section 14C of
the Agreement, Purchaser acknowledges that it has completed its environmental
audit for all of the Property, Phase One Audits and Phase Two Audits as
Purchaser deemed necessary or appropriate, and Purchaser accepts all of the
Property and agrees that it no longer has any right to cancel the Agreement
pursuant to Section 14D of the Agreement, except (i) with regard to that center
known as Bluebonnet Village (the "Bluebonnet Property") for which special
provision is hereinafter made, and (ii) only with respect to the centers known
as Pinhook Plaza and Sherwood South, Purchaser reserves its rights under
Section 14C and 14D to complete Phase Two Audits and cancel the Agreement as
provided therein.
2. BLUEBONNET PROPERTY. Notwithstanding anything set forth in
Section 14 of the Contract to the contrary, it is hereby agreed that Purchaser
shall have until December 20, 1994, to quantify the cost to remediate any and
all contamination at the Bluebonnet Property. If in the reasonable opinion of
Purchaser's environmental
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consultant (the "Consultant"), based upon the consultant's assumptions
regarding the required scope of work, the estimated cost to remediate the
contamination at the Bluebonnet Property would be $150,000 or less, then
Purchaser shall be required to purchase the Bluebonnet Property in accordance
with the terms of the Contract without any reduction in Purchase Price. If,
however, in the reasonable opinion of the Consultant, based upon the
Consultant's assumptions regarding the required scope of work, the estimated
cost to remediate the contamination at the Bluebonnet Property would exceed
$150,000, then a portion of the Purchase Price in the amount of the estimated
cost to remediate ("Escrow Holdback") shall be delivered to Escrow Agent at
Closing to be held in an interest-bearing escrow account in a bank or other
financial institution for the purpose of remediating the contamination at the
Bluebonnet Property. Portions of the Escrow Holdback, together with any
interest earned thereon, may be distributed by Escrow Agent to Buyer (upon
Buyer's submittal of invoices for remediation) up to a maximum of the Escrow
Holdback, together with any interest earned thereon, with any excess amounts to
be returned to Seller upon completion of the remediation. At Closing, Buyer
and Seller shall execute an escrow agreement with Escrow Agent in form and
substance reasonably satisfactory to Buyer, Seller and Escrow Agent. All of
the interest earned on the Escrow Holdback shall accrue to the benefit of
Seller and be payable to Seller unless Buyer uses such amount for the
remediation of the contamination at the Bluebonnet Property. Notwithstanding
anything herein to the contrary, if in the reasonable opinion of the
Consultant, based upon the Consultant's assumptions regarding the required
scope of work, the estimated cost to remediate the contamination at the
Bluebonnet Property would exceed $300,000, then Seller may elect not to close
the purchase and sale of the Bluebonnet Property, and in such event, (i) the
Contract shall remain in full force and effect except for the exclusion of the
Bluebonnet Property and (ii) the Purchase Price shall be reduced by $7,843,000
to reflect the elimination of the Bluebonnet Property. To be effective, such
cancellation right must be exercised by written notice from Seller to Purchaser
given within five (5) days after Seller receives written notice from Purchaser,
together with a copy of the Consultant's letter, stating that in the opinion of
the Consultant, based upon the Consultant's assumptions regarding the required
scope of work, the estimated cost to remediate the contamination at the
Bluebonnet Property would exceed $300,000. The provisions of this Section 1 of
the First Amendment shall survive Closing hereunder.
3. SUPERSEDED DOCUMENTS. This First Amendment supersedes and replaces
the notice letter dated November 29, 1994 from Purchaser
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to Seller and Escrow Agent exercising certain rights with regard to Pinhook
Plaza and Sherwood South.
4. REAFFIRMATION. Except as hereinabove modified, the terms and
provisions of the Contract remain in full force and effect, the same being
republished and confirmed hereby.
5. COUNTERPART EXECUTION. This First Amendment may be executed in
several counterparts, each of which shall be deemed an original, and with all
of such counterparts together constituting one and the same agreement.
6. CAPITALIZED TERMS. The capitalized terms used in this First
Amendment shall have the meaning attributed to them in the Contract unless
otherwise set forth herein.
7. FACSIMILE. Purchaser and Seller may rely upon a facsimile of a
signed original of this First Amendment in the same manner as if such facsimile
were an actual executed original.
IN WITNESS WHEREOF, the duly authorized representatives of the
undersigned have executed this Agreement under seal the day and year first
above written.
SELLER:
------
MAURIN-OGDEN LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
-----------------------
W. Jerry Sauls
Executive Vice President
[CORPORATE SEAL]
[Signatures continued on next page]
56
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SHERWOOD SOUTH GENERAL PARTNERSHIP,
a Louisiana general partnership
By: MAURIN-OGDEN LIMITED PARTNERSHIP,
A Massachusetts Limited
Partnership,its Managing General
Partner
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W.Jerry Sauls
-----------------------
W. Jerry Sauls
Executive Vice President
[CORPORATE SEAL]
PINHOOK PLAZA LIMITED PARTNERSHIP,
a Louisiana limited partnership
By: MAURIN-OGDEN LIMITED PARTNERSHIP,
A Massachusetts Limited
Partnership, its Managing General
Partner
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
--------------------------
W. Jerry Sauls
Executive Vice President
[CORPORATE SEAL]
[Signatures continued on next page]
57
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GAUSE 11 LIMITED PARTNERSHIP,
a Louisiana limited partnership
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
-----------------------
W. Jerry Sauls
Executive Vice President
[CORPORATE SEAL]
PURCHASER:
---------
IRT PROPERTY COMPANY,
a Georgia corporation
By: /s/ Lee A. Harris
--------------------
Lee A. Harris
Senior Vice President
[CORPORATE SEAL]
ESCROW AGENT:
------------
ORLEANS TITLE INSURANCE AGENCY,
Agent for
FIRST AMERICAN TITLE INSURANCE COMPANY,
a California corporation
By: /s/ Henry O'Conner, Jr.
-------------------------------------
Henry O'Conner, Jr.
Title: Agent
----------------------------------
[CORPORATE SEAL]
58
<PAGE> 59
SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE
THIS SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE ("Second
Amendment"), is made and entered into this 20th day of December, 1994, by and
among MAURIN-OGDEN LIMITED PARTNERSHIP, a Massachusetts limited partnership,
SHERWOOD SOUTH GENERAL PARTNERSHIP, a Louisiana general partnership, PINHOOK
PLAZA LIMITED PARTNERSHIP, a Louisiana limited partnership, and GAUSE 11
LIMITED PARTNERSHIP, a Louisiana limited partnership (collectively, the
"Seller"); IRT PROPERTY COMPANY, a Georgia corporation ("Purchaser"); and FIRST
AMERICAN TITLE INSURANCE COMPANY, a California corporation ("Escrow Agent").
WITNESSETH:
WHEREAS, Purchaser, Seller and Escrow Agent entered into that certain
Agreement for Purchase and Sale dated November 23, 1994, pursuant to which
Seller agreed to sell and Purchaser agreed to purchase the Property as more
particularly described therein;
WHEREAS, such purchase and sale agreement was amended by First
Amendment to Agreement for Purchase and Sale, dated December 1, 1994, by and
among the same parties (such purchase and sale agreement, as so amended the
"Contract"); and
WHEREAS, Purchaser and Seller desire to further amend the Contract as
more particularly hereinafter set forth.
NOW, THEREFORE, for and in consideration of the Purchase Price, the
mutual covenants and agreements contained herein, the sum of Ten and No/100
Dollars ($10.00) and good and valuable consideration, the receipt , adequacy
and sufficiency of which are hereby acknowledged by Purchaser, Seller and
Escrow Agent, Purchaser, Seller and Escrow Agent intending to be legally bound
agree as follows:
1. CLOSING DATE. The definition of "Closing Date" on page four
of the Contract is amended to delete "December 20, 1994" and insert in
replacement thereof the date "December 21, 1994".
2. DELCHAMPS/VILLAGE AT NORTHSHORE. Section 8B(iii)(b), on page
14 of the Contract is deleted in its entirety and there shall be no credit to
the Purchase Price for the matters described therein.
3. TARPON HEIGHTS LIFT STATION. Section 14A(ii), on page 26
of the Contract is deleted in its entirety. The parties acknowledge that no
escrow will be made for the Tarpon Heights Plaza sanitary
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sewer treatment plant and that Seller shall have no further responsibility
whatsoever in connection with any aspect of the ownership or operation of said
treatment plant.
4. ENVIRONMENTAL ACKNOWLEDGMENTS. Purchaser has completed its
environmental review on all Property, including the "Bluebonnet Property" as
defined in Paragraph 1 of the First Amendment to the Contract. The parties
agree that no purchase price adjustment or escrow is necessary with respect to
the Bluebonnet Property and Purchaser acknowledges that it accepts the
Bluebonnet Property, Pinhook Plaza and Sherwood South and has no further right
to cancel the Agreement pursuant to Section 14D of the Contract.
5. FURTHER PURCHASE PRICE REDUCTIONS. Exhibit L to the
Contract is deleted in its entirety and a new Exhibit L, attached hereto and by
this reference made a part hereof, is inserted in replacement thereof.
6. TWO CLOSINGS.
A. The parties acknowledge that subject to the terms and
conditions of the Contract, they anticipate closing the purchase and sale of
all of the Property, except Tarpon Heights and Country Club Plaza, as of
December 21, 1994.
B. Subject to the occurrence of the Closing as described
in subparagraph A, pursuant to Section 7B of the Contract, the parties agree to
hold a second Closing as to Tarpon Heights and Country Club Plaza on the
earlier of March 20, 1995 or five (5) business days after The Industrial
Development Board of the Parrish of La Forche and UNUM Life Insurance Company
of America have consented to transfer of the Tarpon Height Debt and release of
Country Club Plaza in accordance with the terms and conditions of Section 7A of
the Contract and subject to satisfaction of all other terms and conditions of
the contract applicable to Tarpon Heights and Country Club Plaza; provided that
if such approval is not obtained within such time period, then this Agreement
shall terminate and neither party shall have any further liability one to the
other with respect to such Properties. Each of Seller and Purchaser agree to
use reasonable best efforts to obtain such approvals. The parties acknowledge
that the remaining portion of the Deposit that is applicable to Tarpon Heights
and Country Club Plaza is $81,000.00.
7. REAFFIRMATION. Except as hereinabove modified, the terms and
provisions of the Contract remain in full force and effect, the same being
republished and confirmed hereby.
8. COUNTERPART EXECUTION. This Second Amendment may be
executed in several counterparts, each of which shall be deemed an original,
and with all of such counterparts together constituting one and the same
agreement.
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9. CAPITALIZED TERMS. The capitalized terms used in this
Second Amendment shall have the meaning attributed to them in the Contract
unless otherwise set forth herein.
IN WITNESS WHEREOF, the duly authorized representatives of the
undersigned have executed this Agreement under seal the day and year first
above written.
SELLER:
------
MAURIN-OGDEN LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
-----------------------
W. Jerry Sauls
Executive Vice President
[CORPORATE SEAL]
SHERWOOD SOUTH GENERAL PARTNERSHIP,
a Louisiana general partnership
By: MAURIN-OGDEN LIMITED PARTNERSHIP,
A Massachusetts Limited
Partnership,its Managing General
Partner
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W.Jerry Sauls
-----------------------
W. Jerry Sauls
Executive Vice President
[CORPORATE SEAL]
[Signatures continued on next page]
61
<PAGE> 62
PINHOOK PLAZA LIMITED PARTNERSHIP,
a Louisiana limited partnership
By: MAURIN-OGDEN LIMITED PARTNERSHIP,
A Massachusetts Limited
Partnership, its Managing General
Partner
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
------------------------
W. Jerry Sauls
Executive Vice President
[CORPORATE SEAL]
GAUSE 11 LIMITED PARTNERSHIP,
a Louisiana limited partnership
By: M-O Venture Corporation, a
Massachusetts Corporation,
its General Partner
By: /s/ W. Jerry Sauls
-----------------------
W. Jerry Sauls
Executive Vice President
[CORPORATE SEAL]
PURCHASER:
---------
IRT PROPERTY COMPANY,
a Georgia corporation
By: /s/ Lee A. Harris
--------------------
Lee A. Harris
Senior Vice President
[CORPORATE SEAL]
[Signatures continued on next page]
62
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ESCROW AGENT:
------------
ORLEANS TITLE INSURANCE AGENCY,
Agent for
FIRST AMERICAN TITLE INSURANCE COMPANY,
a California corporation
By: /s/ Henry O'Conner, Jr.
-------------------------------------
Henry O'Conner, Jr.
Title: Agent
----------------------------------
[CORPORATE SEAL]
63
