<PAGE>
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): March 26, 1996
Commission file number: 0-12045
PRUDENTIAL ACQUISITION FUND I, L.P.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 13-3173903
- --------------------------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Seaport Plaza, New York, New York 10292-0116
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 214-1016
N/A
- --------------------------------------------------------------------------------
Former name, former address and former fiscal year, if changed since last
report.
<PAGE>
Item 2. Acquisition or Disposition of Assets
Prudential Acquisition Fund, I, L.P., a Delaware limited partnership
(``Partnership''), sold the Partnership's interest in two shopping center
properties, Ridge Plaza, a 155,000 square foot shopping center and Pine
Island, a 250,000 square foot shopping center, located adjacent to one
another in Davie, Broward County, Florida (``Shopping Centers'') on
March 26, 1996 at a gross sales price of $15,500,000. Such price
represents approximately 92.3% of the appraised value of the Partnership's
interest in the Shopping Centers, based upon an appraisal dated as
of September 30, 1995. The Shopping Centers were owned by a joint
venture (``Joint Venture'') in which the Partnership held a
54% interest. The gross sales price attributable to the Partnership's
interest in the Joint Venture is $8,370,000 which, after estimated
selling expenses of approximately $470,000 in transfer tax, legal
fees, brokers' commissions, recording fees, title insurance premiums,
other related expenses and pro-rations, resulted in net proceeds payable
to the Partnership of $7,900,000 from the Joint Venture. A distribution
will be made in April 1996 in the amount of $121.00 per $1,000 Unit
which represents $112.66 per Unit from the sale of the Shopping
Centers, and $8.34 per Unit from current and prior undistributed cash
flow from operations.
The purchaser of the Shopping Centers was PIRP, Inc., a Delaware
corporation (``PIRP''). PIRP assigned its rights under the Purchase &
Sale Agreement dated November 1, 1995 between itself and the Joint
Venture to 1620 North Spring Street, Inc., a Delaware corporation,
on March 5, 1996, which in turn assigned its rights as it relates to
Ridge Plaza Shopping Center, to Ridge Plaza Investment Holdings, Inc.,
a Delaware corporation, and as it relates to Pine Island Shopping Center
to Pine Island Investment Holdings, Inc., a Delaware corporation. None
of the aforementioned purchasers has any material relationships with
the Joint Venture or the Partnership or their respective affiliates.
The purchase price was paid for in cash.
Item 5. Other Events
Pursuant to the Consent Solicitation Statement dated January 26, 1996,
the Limited Partners of the Partnership approved (i) a plan of sale of
substantially all of the assets of the Partnership and (ii) the complete
liquidation and dissolution of the Partnership (collectively, the ``Plan'')
with 47,105 units or 67.17% voting for the Plan, 2,008 units or 2.86%
voting against the Plan and 2,456 or 3.5% abstaining. The sale of the
Shopping Centers discussed under Item 2 above was not subject to the
Plan.
The Partnership is in the process of listing the remaining three
properties for sale.
Item 7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
On a pro forma basis, if the sale of the Shopping Centers
had been consummated on December 31, 1995, the Partnership's
Statement of Financial Condition as of such date
would have reflected an increase in cash of $7,900,000,
and a decrease in the investment in the Joint Venture by
the same amount. For the Statement of Operations, if
the transaction was consummated as of January 1, 1994,
the Partnership's share of the Joint Venture equity income
for the year ended December 31, 1994 would have decreased
by $194,000, the Partnership's net income would have
decreased by the same amount and the net loss per limited
partnership unit (``Unit'') of $2.12 would have increased by
$2.77 to $4.89. For the Statement of Operations, if the
transaction was consummated as of January 1, 1995, the
Partnership's share of the Joint Venture equity loss for the
year ended December 31, 1995 would have decreased by $655,000,
the Partnership's net loss would have decreased by a
corresponding amount and the net loss per Unit of $8.32
would have decreased by $9.34 to net income per Unit of
$1.02. These pro forma adjustments for the Statement of
Operations exclude the Partnership's non-recurring
gain or loss on the sale.
(c) Exhibits
10(G) Purchase & Sale Agreement with Exhibits dated November
1, 1995 by and between Ridge Plaza Joint Venture and PIRP,
Inc. (filed herewith)
10(H) First Amendment to Purchase & Sale Agreement made
as of March 4, 1996, by and between Ridge Plaza Joint
Venture and PIRP, Inc. (filed herewith)
2
<PAGE>
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.
Prudential Acquisition Fund I, L.P.
A Delaware Limited Partnership
(Registrant)
<TABLE>
<S> <C>
By: Prudential Realty Partnerships, Inc.
General Partner
By: /s/ Kevin R. Smith Date: April 9, 1996
-----------------------------------------------------------------
Kevin R. Smith
Vice President
By: Prudential-Bache Properties, Inc.
General Partner
By: /s/ Chester A. Piskorowski Date: April 9, 1996
-----------------------------------------------------------------
Chester A. Piskorowski
Vice President
</TABLE>
3
<PAGE>
PURCHASE AND SALE AGREEMENT
by and between
RIDGE PLAZA JOINT VENTURE,
a Florida joint venture
and
PIRP, INC.,
a Delaware corporation
Property Name: Pine Island and Ridge Plaza Shopping Centers
Location: 8800 State Road 84
and
9200 State Road 84
Davie, Florida
Date: November 1, 1995
PAGE
<PAGE>
TABLE OF CONTENTS
Page
1. Sale of Project . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Tangible Personal Property . . . . . . . . . . . . . . . . . . 1
1.5 Outstanding Tenant Matters . . . . . . . . . . . . . . . . . . 2
2. Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Earnest Money. . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Cash at Closing. . . . . . . . . . . . . . . . . . . . . . . . 3
3. Title Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Surveys. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Title Information. . . . . . . . . . . . . . . . . . . . . . . 3
3.2.1 Title Commitment . . . . . . . . . . . . . . . . . . 3
3.2.2 Title Documents. . . . . . . . . . . . . . . . . . . 4
3.3 Title Review . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Inspection Matters. . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Project Documents. . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Project Inspection . . . . . . . . . . . . . . . . . . . . . . 5
4.3 AS-IS Defined. . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 Access to the Project. . . . . . . . . . . . . . . . . . . . . 7
4.5 Operation and Maintenance Prior to Closing . . . . . . . . . . 8
4.6 Hazardous Materials. . . . . . . . . . . . . . . . . . . . . . 8
4.7 Project Information From Seller. . . . . . . . . . . . . . . . 10
4.8 Project Information From Seller's Agents . . . . . . . . . . . 11
4.9 Buyer's Affidavit. . . . . . . . . . . . . . . . . . . . . . . 11
5. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.2 Title Transfer and Payment of Purchase Price . . . . . . . . . 12
5.3 Adjustments and Prorations . . . . . . . . . . . . . . . . . . 12
5.3.1 Lease Rentals and Security Deposits. . . . . . . . . 12
5.3.2 Real Estate and Personal Property Taxes. . . . . . . 13
5.3.3 Project Operating Expenses . . . . . . . . . . . . . 14
5.3.4 Recording Fees . . . . . . . . . . . . . . . . . . . 15
5.3.5 Closing Costs. . . . . . . . . . . . . . . . . . . . 15
5.3.6 Insurance. . . . . . . . . . . . . . . . . . . . . . 15
5.3.7 Delayed Adjustment . . . . . . . . . . . . . . . . . 15
5.3.8 Documentary Stamp Taxes. . . . . . . . . . . . . . . 15
5.3.9 Mortgages. . . . . . . . . . . . . . . . . . . . . . 15
i
<PAGE>
5.4 Commissions. . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.4.1 Fee. . . . . . . . . . . . . . . . . . . . . . . . . 16
5.4.2 Reciprocal Indemnities . . . . . . . . . . . . . . . 16
5.5 Seller's Closing Documents . . . . . . . . . . . . . . . . . . 16
5.5.1 Special Warranty Deed. . . . . . . . . . . . . . . . 16
5.5.2 Bill of Sale . . . . . . . . . . . . . . . . . . . . 16
5.5.3 Assignment and Assumption. . . . . . . . . . . . . . 16
5.5.4 Non-Foreign Status Certificate . . . . . . . . . . . 17
5.5.5 Notice to Tenants. . . . . . . . . . . . . . . . . . 17
5.5.6 Designation Agreement. . . . . . . . . . . . . . . . 17
5.5.7 Affidavit. . . . . . . . . . . . . . . . . . . . . . 17
5.5.8 Title Clearance Documents. . . . . . . . . . . . . . 17
5.5.9 Notice to Issuers of Guarantees and/or
Warranties. . . . . . . . . . . . . . . . . . . . . . . . 17
5.5.10 Affidavit. . . . . . . . . . . . . . . . . . . . . . 17
5.5.11 Certified Rent Roll. . . . . . . . . . . . . . . . . 17
5.5.12 Closing Statement. . . . . . . . . . . . . . . . . . 17
5.5.13 Authority Certificate. . . . . . . . . . . . . . . . 17
5.5.14 Other Documents. . . . . . . . . . . . . . . . . . . 17
5.6 Buyer's Closing Documents. . . . . . . . . . . . . . . . . . . 18
5.6.1 Buyer's Affidavit. . . . . . . . . . . . . . . . . . 18
5.6.2 Closing Statement. . . . . . . . . . . . . . . . . . 18
5.6.3 Assignment and Assumption Agreement. . . . . . . . . 18
5.6.4 Designation Agreement. . . . . . . . . . . . . . . . 18
5.6.5 Other Documents. . . . . . . . . . . . . . . . . . . 18
5.7 Other Deliveries . . . . . . . . . . . . . . . . . . . . . . . 18
5.7.1 Keys and Original Documents. . . . . . . . . . . . . 18
5.7.2 Evidence of Authority. . . . . . . . . . . . . . . . 18
5.7.3 Letter of Credit and the Initial Earnest
Money Deposit . . . . . . . . . . . . . . . . . . . . . . 18
6. Lease Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.1 Leasing Commissions. . . . . . . . . . . . . . . . . . . . . . 19
6.2 New Leases . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7. Estoppel Letters. . . . . . . . . . . . . . . . . . . . . . . . . . 20
8. Representations and Warranties. . . . . . . . . . . . . . . . . . . 23
8.1 Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.2 Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.3 Limitation Date. . . . . . . . . . . . . . . . . . . . . . . . 25
9. Default and Remedies. . . . . . . . . . . . . . . . . . . . . . . . 26
9.1 Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.2 Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ii
<PAGE>
10. Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.1 Casualty . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.2 Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . 28
11. Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12. Additional Covenants. . . . . . . . . . . . . . . . . . . . . . . . 29
12.1 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.3 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . 31
12.4 Entire Agreement and Modification. . . . . . . . . . . . . . . 31
12.5 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 32
12.6 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 32
12.9 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . 32
12.10 Full Execution. . . . . . . . . . . . . . . . . . . . . . 32
12.11 Termination . . . . . . . . . . . . . . . . . . . . . . . 33
12.12 1995 Tax Appeal . . . . . . . . . . . . . . . . . . . . . 33
12.13 Seller's Knowledge. . . . . . . . . . . . . . . . . . . . 33
12.14 Reporting of Foreign Investment . . . . . . . . . . . . . 33
12.15 Suspension of Marketing . . . . . . . . . . . . . . . . . 34
12.16 Radon Gas . . . . . . . . . . . . . . . . . . . . . . . . 34
12.17 Hart-Scott-Rodino . . . . . . . . . . . . . . . . . . . . 34
12.18 Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . 35
12.19 Insurance. . . . . . . . . . . . . . . . . . . . . . . . 35
12.20 Severability. . . . . . . . . . . . . . . . . . . . . . . 35
Exhibits:
Exhibit A Legal Description
Exhibit A-1 Irrevocable Letter of Credit
Exhibit B Exceptions to Title
Exhibit B-1 List of Personal Property
Exhibit B-2 Buyer's Affidavit and Agreement
Exhibit C Special Warranty Deed
Exhibit D Bill of Sale
Exhibit E Assignment and Assumption Agreement
Exhibit F FIRPTA Certificate
Exhibit F-1 Notice to Tenant
Exhibit G Tenant Estoppel Letter
Exhibit H Certificate of Insurance
iii
<PAGE>
Exhibit I Designation Agreement
Exhibit J Affidavit
Exhibit K List of Service Contracts
Exhibit L Rent Roll
Exhibit M Brokerage Agreements
Exhibit N Seller's Estoppel Letter
Exhibit O List of Litigation
Exhibit P List of Contractor Claims
Exhibit Q Affidavit
Exhibit R Delinquency List
iv
<PAGE>
<PAGE>
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made this
1st day of November, 1995, by and between RIDGE PLAZA JOINT
VENTURE, a Florida Joint Venture ("Seller") and PIRP, INC., a
Delaware corporation ("Buyer").
W I T N E S S E T H:
In consideration of Ten Dollars ($10.00) and other good and
valuable consideration paid in hand by Buyer to Seller (the receipt
and sufficiency of which are hereby acknowledged) and the mutual
covenants and agreements set forth herein the parties hereto do
hereby agree as follows:
1. Sale of Project. Seller agrees to sell and Buyer agrees to
purchase, subject to the Permitted Exceptions (as hereinafter
defined) and subject to the terms and conditions stated herein, the
following (collectively called the "Project"):
1.1 Real Property. Those certain tracts of the land situated
in Broward County, Florida located at 8800 State Road 84 and 9200
State Road 84 in Davie, Florida, which are more particularly
described in Exhibit "A" attached hereto as a part hereof, together
with all buildings, improvements and fixtures located thereon and
owned by Seller (and specifically excluding any items of personal
property affixed thereto by any tenant of the Project to the extent
the tenant is entitled to retain ownership thereof under its Lease,
unless such tenant and its lender, if any, abandons the same at the
end of the term of the respective tenant's lease) as of the Closing
Date (as defined in Paragraph 5.1 hereof) and all of Seller's
right, title and interest in and to all rights, privileges and
appurtenances pertaining thereto including all of Seller's right,
title and interest in and to all rights-of-way, open or proposed
streets, alleys, easements, strips or gores of land adjacent
thereto (collectively called the "Real Property"); and
1.2 Tangible Personal Property. The tangible personal
property owned by Seller, located on the Real Property and shown on
Exhibit "B-1" attached hereto as a part hereof (the "Tangible
Personal Property"); and
1.3 Intangible Personal Property. All of Seller's right,
title and interest in and to all documents, plans, site plans,
permits, licenses, agreements, leases, subleases and deposits
(excluding utility deposits paid by Seller or Seller's agents) and
other monies held by or for Seller, all with regard to the Real
Property and the Tangible Personal Property, to the extent such
items are assignable without expense to Seller and to the extent in
Seller's possession on the date hereof ("Intangible Personal
Property").
- 1 -
<PAGE>
1.4 Names. All rights (if any) to use the names "Pine
Island" and Ridge Plaza", (collectively called the "Personal
Property") (but Seller does not represent that it has exclusive
rights to use such trade names and Seller has not registered the
same in any manner); and
1.5 Outstanding Tenant Matters. All rights, if any, which
Seller has in connection with the following tenant matters and
related litigation: Leaps and Bounds, Tony Roma's/Marvel Vega,
Tark's, Fun Factory, Fabric King, Mr. B's and Cellular USA
("Outstanding Tenant Matters").
2. Purchase Price. The total purchase price to be paid by Buyer
for the purchase of the Project is the sum of SEVENTEEN MILLION,
TWO HUNDRED AND NO/100 DOLLARS ($17,200,000.00) in cash ("Purchase
Price"), subject to the prorations and adjustments as provided in
Paragraph 5.3 hereof. The Purchase Price shall be paid in the
following manner:
2.1 Earnest Money. Upon the execution by the parties hereto
of this Agreement and as a condition precedent to the formation of
this Agreement, Buyer shall deposit the sum of TEN THOUSAND AND
NO/100 DOLLARS ($10,000.00) in cash as initial earnest money
("Initial Earnest Money Deposit") with Shear, Newman, Hahn &
Rosenkranz, P.A. whose mailing address is 201 E. Kennedy Boulevard,
Suite 1000, Tampa, Florida 33602 Attention: Jeffrey Drew Butt,
Esquire ("Escrow Agent"). The Initial Earnest Money Deposit will
be invested by the Escrow Agent in an interest-bearing account at
NationsBank of Florida, N.A., and any interest earned thereon shall
be considered a part of the Initial Earnest Money Deposit, or the
Total Earnest Money Deposit, as applicable. Upon the expiration of
the Inspection Period (as defined in Paragraph 4.2 hereof), Buyer
shall deliver a cashier's or certified check or an unconditional
and irrevocable "Letter of Credit" in the amount of ONE MILLION,
SEVEN HUNDRED AND TEN THOUSAND AND NO/100 DOLLARS ($1,710,000.00)
substantially in the form attached hereto as Exhibit "A-1" issued
by an issuer with an office in the Continental United States (the
"Original Letter of Credit" or the "Additional Earnest Money
Deposit")(The Initial Earnest Money Deposit, the Original Letter of
Credit and any Substitute Letter of Credit, as defined below shall
sometimes be referred to as the "Total Earnest Money Deposit").
Any interest earned on the Total Earnest Money Deposit, or any part
thereof, shall be reported as income to Buyer. The Total Earnest
Money Deposit shall be held by the Escrow Agent pursuant to a
separate escrow agreement entered into this day by Seller, Buyer
and Escrow Agent (the "Escrow Agreement"). If the Original Letter
of Credit or any Substitute Letter of Credit by its terms will
expire while it is being held by the Escrow Agent under the Escrow
Agreement or while it is deposited with a Clerk of Court pursuant
to the terms of the Escrow Agreement, then the Buyer shall provide
to the Escrow Agent or the Clerk of Court, as applicable, a
substitute letter of credit at least one (1) day prior to the
expiration date of the Original Letter of Credit or any Substitute
Letter of Credit, as applicable, which substitute letter of credit
shall be issued by a bank reasonably acceptable to the Seller and
which has an expiration date occurring at least six (6) months
after the expiration date of the then current term of the Original
Letter of Credit or any Substitute Letter of Credit, as applicable,
and which is otherwise to the same tenor and affect as the Original
- 2 -
<PAGE>
Letter of Credit (the "Substitute Letter of Credit") (the Original
Letter of Credit and the Substitute Letter of Credit, if any, shall
sometimes be referred to as the Letter of Credit). If the Buyer
fails to provide the Substitute Letter of Credit in accordance with
the previous sentence, on or before one (1) day prior to expiration
date of the Original Letter of Credit or any Substitute Letter of
Credit, as applicable, the Escrow Agent is hereby authorized to
immediately draw on the Letter of Credit, whereupon the Escrow
Agent shall immediately deposit the same or deliver the same to the
same Clerk of Court holding the Total Earnest Money Deposit, as
applicable, to be held by the Escrow Agent or such Clerk of Court,
as applicable, pursuant to the terms of the Escrow Agreement
(including the deposit of the proceeds in the same account that the
Initial Earnest Money Deposit is being held) or in the same manner
the Clerk of Court is holding the Total Earnest Money Deposit, as
applicable.
2.2 Cash at Closing. On the Closing Date, Buyer shall pay to
Escrow Agent for the account of Seller the Purchase Price in cash
(subject to the prorations and adjustments set forth in Paragraph
5.3 or as otherwise provided under this Agreement) in immediately
available U.S. funds by wire transfer as more particularly set
forth in Paragraph 5.2 of this Agreement. At the Closing, the
Escrow Agent shall simultaneously with the payment of the Purchase
Price by Buyer deliver the Total Earnest Money Deposit to Buyer.
3. Title Matters.
3.1 Surveys. Within five (5) business days after the Seller
executes this Agreement, Seller shall deliver to Buyer a copy of
the most recent surveys of the Project in Seller's possession (the
"Surveys"). If Buyer desires updates of the Surveys, it has the
right to obtain the same at its sole cost and expense so long as
such updates are made by duly licensed surveyors (the "Updated
Surveys"). The Updated Surveys shall be certified to Seller, as
well as Buyer, Buyer's Permitted Assignees and Buyer's intended
mortgagee(s) and the title company which will issue the title
policies at the Closing (the "Title Company") (as defined below).
3.2 Title Information. Within five (5) business days after
full execution of this Agreement, Seller shall (at its sole cost
and expense) deliver or cause to be delivered to Buyer the
following items:
3.2.1 Title Commitment. A title commitment (the
"Title Commitment") covering the Real Property issued by
Lawyers Title Insurance Corporation through its agents, Shear,
Newman, Hahn & Rosenkranz, P.A. ("Title Company") which binds
the Title Company to issue at Closing an Owner's Policy of
Title Insurance (ALTA Owner's Policy Form B-1970 (Amended
10/17/70, 10/17/84 and 10/17/92 with Florida Modifications)
insuring the Real Property in the full amount of the Purchase
Price; and
- 3 -
<PAGE>
3.2.2 Title Documents. True and correct copies of
any and all documents referred to in the Title Commitment
which constitute exceptions or restrictions upon the title of
Seller ("Title Documents").
3.3 Title Review. Buyer shall have until thirty (30)
business days after the full execution of this Agreement to review
the Surveys, the Updated Surveys, the Title Policies and the Title
Commitments (collectively the "Title Materials") and to notify
Seller in writing of its objections to anything contained therein
("Objection Notice"). Any items in the Title Materials to which
Buyer does not object in the Objection Notice shall be deemed to be
"Permitted Exceptions" to title under this Agreement. Seller may
attempt to satisfy any objections set forth in the Objection Notice
prior to Closing, but Seller shall not be required to do so nor
shall Seller be required to incur any cost or expense to do so.
Seller must deliver written notice to Buyer on or before seven (7)
business days after receipt of an Objection Notice if Seller is
unwilling or unable to satisfy any objections in the Objection
Notice, and Buyer shall on or before five (5) business days from
receipt of such response, either (i) waive such objections and
accept such title as Seller is able to convey and by such waiver
and acceptance Buyer shall be deemed to have waived any and all
claims and/or causes of action against Seller for damages or any
other remedies for any and all defects in and/or exceptions to the
title to the Project to the extent arising from such waived
objections or (ii) terminate this Agreement by notifying Seller in
writing on or before five (5) business days from receipt of such
notice, in which event the Initial Earnest Money Deposit shall be
returned to Buyer and thereafter Seller and Buyer shall have no
further obligations or liabilities one to the other hereunder
except as otherwise provided herein. The items listed on Exhibit
"B" attached hereto as a part hereof, the Leases (as set forth in
the Rent Roll attached hereto as Exhibit "L" hereof), zoning
ordinances (provided it shall be a condition of Buyer's obligation
to close hereunder that such ordinances have not been changed or
modified since the expiration of the Inspection Period to the
extent that such changed or amended ordinances diminish Buyer's
ability on the Closing Date to operate the Project in the manner in
which it is being operated on the date hereof), and any standard
exceptions printed in the Title Commitments to be included in the
title policies to be issued pursuant thereto shall also be deemed
to be "Permitted Exceptions." Notwithstanding anything herein,
Seller, at its expense, shall prior to closing discharge of record
or bond off, if applicable, any mortgage, judgment, mechanic's lien
and/or other encumbrance which can be discharged simply by the
payment of an ascertainable amount of money affecting all or any
part of the Project provided that the same is due to the Seller's
actions (and not the actions of third parties', such as tenants of
the Project) and further provided that the same is not a Permitted
Exception.
4. Inspection Matters.
4.1 Project Documents. Buyer acknowledges that Gumberg Asset
Management Corp., an affiliated company of Buyer, has been the
property manager of the Project since 1988 and as such has
expansive knowledge of the properties' operations and physical
condition.
- 4 -
<PAGE>
In addition, within five (5) business days after the mutual
execution and delivery hereof Seller agrees to provide directly (or
through Gumberg Asset Management Corp.)to Buyer (or provide Buyer
with the opportunity to inspect) Seller's documents, contracts,
leases, books and records, engineering studies, environmental
studies, tenant and landlord correspondence, financial reports
relating to the operation, expenses and revenues of the Project,
1995 budget; audited financial statements for 1994 and 1993, tenant
billings, tenant sales reports, current delinquency reports, real
estate and personal property tax bills for the last 3 years, as-
built plans, all other plans, service contracts, other contracts,
permits, licenses, warranties and other information as reasonably
requested and available relating to the ownership, management and
operation of the Project (except for (a) privileged and
confidential communications between Seller and its counsel or other
third parties, (b) any appraisals of the Project; (c) any
documents, contracts and other information relating to the Seller
or The Prudential Insurance Company of America's relationship to
Seller, including, without limitation, Seller's joint venture
agreement, and any information specifically prepared for any
partner of Seller or any investor in any entity related to Seller;
and (d) the Project Management Agreement, as defined below)
(collectively, the "Documents"). It is the intention of Seller and
Buyer that Seller's only obligation hereunder is to (a) authorize
Gumberg Asset Management Corp. to release all Documents in its
possession to Buyer and (b) provide directly to Buyer only such
information which may only be in the possession of Seller. By
execution of this Agreement, Seller hereby authorizes Gumberg Asset
Management Corp. to release all Documents in its possession
regarding the Project to Buyer.
All of the Documents are confidential and shall not be
distributed or disclosed by Buyer to any person or entity not
associated with Buyer or the Transaction (as defined in Paragraph
5.1 hereof). If the Transaction fails to close for any reason
whatsoever, Buyer shall return to Seller all of the Documents which
Seller has delivered or arranged to be provided to Buyer (including
documents obtained from Gumberg Asset Management Corp.) in
accordance with this Paragraph 4.1. For the purposes hereof,
Buyer's prospective lenders and partners and any Permitted Assignee
(as defined below) are deemed to be associated with the
Transaction. THE FURNISHING OF ANY MATERIALS, DOCUMENTS, REPORTS,
AGREEMENTS OR INFORMATION DESCRIBED ABOVE SHALL NOT BE INTERPRETED
IN ANY MANNER AS A REPRESENTATION OR WARRANTY OF ANY TYPE OR KIND
BY SELLER, ANY JOINT VENTURE PARTNER OF SELLER, OR ANY OFFICER,
DIRECTOR, EMPLOYEE, AGENT, OR OTHER PARTY RELATED IN ANY WAY TO ANY
OF THE FOREGOING EXCEPT AS SET FORTH IN PARAGRAPH 8.2 HEREOF.
For purposes of this Agreement, the term "Project Management
Agreement" shall mean the Property Management Agreement by and
between Seller and Gumberg Asset Management Corp. relating to the
Project.
4.2 Project Inspection. At any time during the period of
time beginning on the date of full execution and delivery of this
Agreement and expiring thirty (30) business days thereafter
("Inspection Period") Buyer shall have the right to fully inspect
the Project (including the
- 5 -
<PAGE>
Documents, as defined above), conduct
tests and perform such other due diligence as Buyer deems
necessary, in its sole discretion, including, without limitation,
the right to make soil tests, roof analyses, environmental tests,
and other examinations of the Project as determined desirable by
Buyer and deemed necessary by Buyer to accept title to the Project
in accordance with the terms of this Agreement without Seller
liability except as set forth in Paragraph 8.2 hereof, and to speak
with tenants at the Project, at its sole cost and expense, subject
to the conditions set forth in Paragraph 4.4 hereof and subject to
rights of tenants in the Project. Except as set forth in Paragraph
8.2 hereof, Buyer shall not rely on any representation or warranty
of Seller and Buyer shall make such inspections of the Project,
market conditions, laws, ordinances, regulations or any other
aspects of the proposed Transaction as Buyer deems necessary.
Buyer shall conduct such studies, inspections, tests and
investigations in a manner which does not unduly disturb or unduly
interfere with the operation, management or use of the Project by
Seller, Seller's agents, any tenant of the Project or by any such
tenant's customers, invitees or guests and which does not damage or
affect the physical structure of the Project.
Buyer shall be responsible for any and all losses, damages,
charges and other costs associated with such inspections and
studies, and Buyer covenants and agrees to return the Project at
the Buyer's sole cost and expense to the same condition as existed
prior to such inspections and studies, normal wear and tear
excepted. Buyer agrees not to (i) engage in any activity in or
about the Project which directly or indirectly violates the terms
of any governmental or quasi-governmental statute, rule,
regulation, order or practice, and (ii) allow any liens to arise
against the Project as a result of such inspections and studies and
agrees to indemnify and hold Seller harmless from and against any
and all claims, charges, actions, costs, suits, damages, injuries,
or other liabilities (including, but not limited to, reasonable
attorney fees and reasonable expenses, but not including Seller's
expenses incurred while assisting Buyer during its due diligence
investigations) to the extent resulting from Buyer's or its agent's
or employee's entry onto the Project prior to Closing. Such
indemnity shall survive the Closing or early termination of this
Agreement. Prior to becoming liable for such indemnification,
Buyer shall have a reasonable opportunity to settle or defend the
matter.
If, for any reason or no reason (other than the reason stated
in Paragraph 8.1 (iii) hereof), Buyer delivers written notice of
the Buyer's intent to terminate this Agreement to Seller during the
Inspection Period then this Agreement shall terminate,whereupon the
Initial Earnest Money Deposit shall be returned to Buyer by Escrow
Agent (in accordance with the provisions of Paragraph 12.11
hereof). After return of the Initial Earnest Money Deposit in
accordance with the terms hereof, neither Seller nor Buyer shall
have any further obligations or liabilities one to the other
hereunder except as provided by this Paragraph 4.2. However, if
upon expiration of the Inspection Period Buyer does not deliver
written notice to Seller of Buyer's intent to terminate, then this
Agreement shall remain in full force and effect upon deposit of the
Additional Earnest Money Deposit and BUYER SHALL BE DEEMED TO HAVE
ACCEPTED THE PROJECT AS OF THE LAST DAY OF THE INSPECTION PERIOD ON
AN "AS IS" BASIS
- 6 -
<PAGE>
AND THE ONLY CONDITIONS PRECEDENT TO CLOSING SHALL
BE THOSE SPECIFICALLY PROVIDED FOR HEREIN.
Upon the expiration of the Inspection Period, the sole
obligation of the Seller with respect to the physical condition of
the Project shall be to deliver possession of the Project to Buyer
in substantially the same physical condition (excluding normal wear
and tear and casualty damage except as set forth in Paragraph 10.1
hereof) as existed on the last day of the Inspection Period and
BUYER HAS AGREED TO ACCEPT POSSESSION OF THE PROJECT ON THE CLOSING
DATE ON AN "AS IS" BASIS. BUYER AGREES THAT THE PROJECT SHALL BE
SOLD "AS IS, WHERE IS, WITH ALL FAULTS" WITH NO RIGHT OF SET-OFF OR
REDUCTION IN THE PURCHASE PRICE, AND, EXCEPT AS SET FORTH IN
PARAGRAPH 8.2 HEREOF, SUCH SALE SHALL BE WITHOUT REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, (INCLUDING, WITHOUT
LIMITATION, WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES, USES,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE BUT
SPECIFICALLY EXCLUDING THE LIMITED WARRANTY OF TITLE TO BE GIVEN IN
THE SPECIAL WARRANTY DEED AS SET FORTH IN PARAGRAPH 5.5.1 HEREOF
AND IN THE RELATED CONVEYANCING DOCUMENTS) AND SELLER DOES HEREBY
DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY. ALL THE
FOREGOING IS SUBJECT TO ANY EXPRESS CONDITION OR COVENANT CONTAINED
HEREIN AND ANY WARRANTY IN THE DOCUMENTS TO BE DELIVERED BY SELLER
AT CLOSING.
4.3 AS-IS Defined. For purposes of this Agreement, the term
"AS IS" shall mean (without limitation thereon) AS IS with respect
to (a) the physical condition of the Project (including defects
seen and unseen and conditions natural and artificial), (b) title
to the Real Property as disclosed by the Title Commitment, subject
only to (a) the Permitted Exceptions and (b) any items which arise
subsequent to the expiration of the Inspection Period and prior to
the Closing Date if waived in writing by Buyer, (c) the Documents
and any other documents, agreements or restrictions relating to the
operation of the Project and previously disclosed to Buyer
(including matters disclosed on the Surveys) and not affecting
title thereto, and (d) all laws, ordinances, rules and regulations
to which the Project is subject under any applicable governmental
or regulatory jurisdiction, provided that it shall be a condition
of Buyer's obligation to close hereunder that none of the same
diminish Buyer's ability on the Closing Date to operate the Project
in the manner in which it is being operated on the date hereof.
4.4 Access to the Project. During the Inspection Period
Buyer or one or more representatives of Buyer shall have access to
the Project (subject to the rights of tenants under the Leases and
subject to the terms and conditions set forth in Paragraph 4.2
hereof) at reasonable times during normal business hours if Buyer
notifies Seller not fewer than twenty-four (24) hours in advance of
the time Buyer desires access to the Project, provides Seller with
a proposed schedule of Buyer's inspections, coordinates its
inspections with Seller or the Project Manager (as directed by
Seller) and Buyer conducts such inspections in a manner which does
not interfere
- 7 -
<PAGE>
with the operations of the Project or unduly disturb
the employees or the tenants of the Project. At Seller's option,
Buyer shall be accompanied by a representative of Seller during any
such visit to the Project. Seller agrees to either provide such
representative or to waive the foregoing requirement, in either
case within 24 hours after receipt of the above mentioned notice
from Buyer. The Inspection Period shall automatically be extended
by one day for each day or portion thereof that Seller fails to
timely comply (a) with the immediately preceding sentence and/or
(b) with Seller's obligations under Sections 3.1 or 3.2 hereof,
provided that Buyer has provided Seller with written notice of such
failure promptly after such failure.
4.5 Operation and Maintenance Prior to Closing. Until the
time of Closing, Seller shall operate the Project in the ordinary
course of business and shall maintain the Project in substantially
the same manner as it is currently being maintained.
Notwithstanding the preceding sentence, Seller shall not be
required to make any capital improvements or repairs to the Project
unless required by law or unless necessary in order to operate the
Project in the ordinary course of business.
4.6 Hazardous Materials. In addition to and not by way of
limitation of the sale of the Project on an "AS IS" basis under
this Agreement, Buyer acknowledges receipt of a true and correct
copy of those certain environmental assessment reports, dated March
22, 1995, prepared by Dames & Moore, Inc. (Job No. 23639-005-024)
("Environmental Assessment Reports"). The Environmental Assessment
Reports are furnished for informational purposes only and do not
disclose the presence of asbestos or hazardous or toxic materials
at the Project but are not comprehensive surveys of the Project for
all forms of asbestos containing materials or all hazardous or
toxic materials. Buyer shall not rely on and Buyer hereby
represents to Seller that it has not relied on the Environmental
Assessment Reports. Buyer acknowledges being informed by Seller
(i) that Seller's knowledge regarding the presence or absence of
asbestos at the Project and the presence or absence of other
hazardous or toxic materials at the Project is limited to the
Environmental Assessment Reports and the information described
below and (ii) that Seller has not made any inquiry beyond the
Environmental Assessment Reports. Seller makes no representations
or warranties whatsoever to Buyer regarding: (i) the Environmental
Assessment Reports (including, without limitation, the contents
and/or accuracy thereof), and (ii) the presence, location or scope
of any asbestos or any other hazardous or toxic materials or
chemicals in, at, or under the Project except as set forth in
Paragraph 8.2 hereof. During the Inspection Period Buyer may (but
shall not be obligated to) make such studies and investigations,
conduct such tests and surveys and engage such specialists as Buyer
deems appropriate to fairly evaluate the Project and its risks from
an environmental and hazardous or toxic materials and chemicals
standpoint, provided that all such studies, investigations, tests
and surveys are performed under the supervision of a third party
reputable engineer licensed in the State of Florida (collectively,
"Buyer's Environmental Reports"). If Buyer's Environmental Reports
disclose the presence of any asbestos or other hazardous or toxic
materials at the Project which under current applicable law must,
at the present time or in the foreseeable future in connection with
the ordinary course of business at the Project, be encapsulated,
removed or otherwise dealt with, including, without
- 8 -
<PAGE>
limitation, ongoing compliance program or remediation, then at Buyer's
election, to be exercised by written notice given to Seller during
the Inspection Period (the" Environmental Notice"), which notice
shall be accompanied by the Buyer's Environmental Reports which
explains in detail (i) the environmental issue for which the Buyer
claims reimbursement and (ii) the estimated cost of the necessary
encapsulation, removal or other work, (a) there shall be a
reduction of, or a credit against, the Purchase Price at closing in
an amount equal to the lesser of the Agreed Remedial Cost (as
defined below) or the Cap (as defined below), in which case any
encapsulation, removal or other work shall be at the sole cost and
expense of Buyer, or (b) Buyer may terminate this Agreement. If
Buyer fails to give timely notice of termination to Seller, as
required hereby, it shall be deemed that Buyer has elected "(a)"
above. If Buyer elects, or is deemed to have elected, "(a)" above,
representatives of Seller and Buyer shall promptly meet and make a
good faith effort to reach agreement on the Agreed Remedial Cost
(as defined below). If Seller and Buyer do not reach such
agreement in writing within fifteen (15) days after receipt by
Seller of the Environmental Notice, then at Buyer's election, to be
exercised by written notice given to Seller within five (5) days
after the expiration of such fifteen (15) day period, (a) Buyer may
terminate this Agreement or (b) Buyer may waive the items raised in
the Environmental Notice, and accept the Project in accordance with
the other terms of this Agreement and by such waiver and acceptance
Buyer shall be deemed to have waived any and all claims and/or
cause of action against Seller for damages or any other remedies
for any and all matters raised in the Environmental Notice. The
Agreed Remedial Cost shall be defined as either (i) the amount
which Buyer and Seller agree is the amount reasonably estimated to
encapsulate, remove or otherwise deal with verified environmental
issues raised in the Environmental Notice and substantiated by the
Buyer's Environmental Reports or (ii) zero ($0) if the Buyer and
Seller cannot agree. The Cap shall be defined as $50,000.00. If
the Agreed Remedial Cost is greater than the Cap, Seller may or may
not agree at its sole discretion to elect to pay the excess of the
Agreed Remedial Cost over the Cap by giving written notice to Buyer
within five (5) days after Seller and Buyer agree upon the Agreed
Remedial Cost in writing, whereupon there shall be a reduction of,
or a credit against, the Purchase Price at Closing in an amount
equal to the Agreed Remedial Cost. If Seller does not agree to pay
the excess of the Agreed Remedial Cost over the Cap within such
five (5) day period then at Buyer's election, to be exercised by
written notice given to Seller within five (5) days after the
expiration of such five (5) day period, (a) Buyer may terminate
this Agreement or (b) Buyer may waive the items raised in the
Environmental Notice, and accept the Project in accordance with the
other terms of this Agreement (in which case Buyer shall receive a
reduction of, or a credit against the Purchase Price at Closing in
an amount equal to the Cap) and by such waiver and acceptance Buyer
shall be deemed to have waived any and all claims and/or causes of
action against Seller for damages or any other remedies for any and
all matters raised in the Environmental Notice. Upon receipt of a
notice pursuant to the terms of this Paragraph 4.6, any portion of
the Total Earnest Money Deposit paid hereunder shall be returned to
Buyer in accordance with the terms of the Escrow Agreement and this
Agreement shall be deemed terminated and of no further force and
effect and both parties shall be released from all liabilities and
obligations under this Agreement. Notwithstanding anything also
contained herein, Seller hereby discloses to Buyer that there is the
- 9 -
<PAGE>
possibility of an environmental issue relating to the dry
cleaner located at Pine Island. Furthermore, by its execution of
this Agreement, Buyer hereby agrees that if it does not terminate
this Agreement prior to the expiration of the Inspection Period or
otherwise as provided in this Paragraph 4.6 that at that time it
hereby: (a) acknowledges that it has satisfied itself as to the
existence or absence of asbestos, asbestos-containing materials or
hazardous and/or toxic materials at, on or in the Project,
including whether or not the environmental issue relating to the
dry cleaner located at Pine Island exists or not; (b) as of Closing
Buyer releases Seller from any and all liability to Buyer and to
Buyer's successors in interest attributable to the presence,
discovery, or removal of any hazardous or toxic materials or
chemicals in, at, or under the Project, including, without
limitation, any hazardous material relating to the dry cleaner
located at Pine Island, and (c) as of Closing, as between Buyer and
Seller, takes responsibility and liability for all obligations
attributable to any hazardous or toxic materials or chemicals in,
at, or under the Project, including, without limitation, any
hazardous material relating to the dry cleaner located at Pine
Island. The agreements of Buyer set forth in the preceding
sentence are intended to clarify that it is the intent of the
parties that environmental matters be included within the "AS IS"
basis of the sale of the Project to Buyer, and notwithstanding the
agreement of Buyer in subsections (b) and (c) of the preceding
sentence, Buyer shall not be liable to Seller, or responsible to
Seller in any respect, for any cleanup or remediation obligations
with respect to the Project attributable to any hazardous or toxic
materials or chemicals in, at or under the Project prior to the
Closing (such release by Seller of cleanup or remediation
responsibility on the part of Buyer shall not apply in respect of
hazardous materials or chemicals in, at or under the Project
introduced to or released at the Project as of or subsequent to
Closing) or for any loss or damage Seller may sustain as a result
of actions against Seller by third parties. Notwithstanding
anything herein to the contrary, the agreements of Buyer set forth
in this Paragraph 4.6 shall survive the Limitation Date and shall
be enforceable at any time.
4.7 Project Information From Seller. Any reports, analyses,
surveys or other documentation prepared by third-party consultants
and/or advisors and delivered to Buyer by either Seller or Gumberg
Asset Management Corp. have been or will be given without
representation or warranty as to their completeness or accuracy.
Notwithstanding anything else contained herein, privileged and
confidential communications between Seller and its counsel or other
third parties shall not be given for review, copying or otherwise
to Buyer. IT IS THE BUYER'S RESPONSIBILITY TO INSPECT AND REVIEW
ALL FILES AND DOCUMENTS AS BUYER DEEMS NECESSARY. ALL FILES AND
DOCUMENTS (OTHER THAN INTERNAL APPRAISALS, STATE OR FEDERAL TAX
INFORMATION WHICH ARE CONSIDERED CONFIDENTIAL AND PRIVILEGED AND
CONFIDENTIAL COMMUNICATIONS BETWEEN SELLER AND ITS COUNSEL OR OTHER
THIRD PARTIES) WILL BE DELIVERED BY OR ON BEHALF OF SELLER TO BUYER
OR WILL BE AVAILABLE WHERE THEY ARE CURRENTLY LOCATED FOR BUYER'S
INSPECTION, REVIEW AND COPYING.
- 10 -
<PAGE>
4.8 Project Information From Seller's Agents. Subsequent to
the date of this Agreement, Buyer may request from Seller's Agents
(i.e. broker, Project manager, contractors, or similar individuals
or entities engaged by Seller relating to or involving the Project)
information or opinions regarding the Project or some aspect of the
Project, its history, condition or prospects for future use or
development by Buyer. Buyer has been informed that Seller's files
may not be complete. Much of the information that Seller and its
agents have about the Project was prepared by third parties,
therefore such information may not be accurate or complete.
Although Seller is willing to cooperate with Buyer, and Seller has
instructed its agents to cooperate with Buyer, SELLER IS UNWILLING
TO SELL THE PROJECT UNLESS SELLER IS RELEASED FROM LIABILITY BY
BUYER FOR (i) STATEMENTS OR OPINIONS MADE BY OR INFORMATION
FURNISHED BY SELLER'S AGENTS UNLESS THE STATEMENTS OR OPINIONS MADE
BY OR INFORMATION FURNISHED BY SELLER'S AGENTS ARE INCORPORATED AS
SELLER REPRESENTATIONS INTO PARAGRAPH 8.2 HEREOF OR THE CLOSING
DOCUMENTS EXECUTED BY SELLER (COLLECTIVELY, THE "STATEMENTS"), OR
(ii) INFORMATION WITHHELD BY SELLER'S AGENTS UNLESS SUCH
INFORMATION WAS WITHHELD FROM BUYER AT THE EXPRESS DIRECTION OF AN
OFFICER OF SELLER AND WAS UNKNOWN TO THE PROJECT MANAGER.
ACCORDINGLY, BUYER HEREBY RELEASES SELLER FROM LIABILITY ARISING
FROM THE STATEMENTS OR THE WITHHELD INFORMATION.
4.9 Buyer's Affidavit. It is a condition precedent to the
Closing of the Transaction and Seller's obligation to deliver the
Special Warranty Deed (as defined in Paragraph 5.5.1 hereof) that
Seller receive at Closing from Buyer a fully executed and sworn
Affidavit and Agreement in the form attached hereto as Exhibit
"B-2" (the "Buyer's Affidavit"). If Buyer fails to deliver the
Buyer's Affidavit at the Closing, such failure shall constitute a
default by Buyer and Seller shall have all its rights and remedies
available to it under Paragraph 9.2 hereof.
5. Closing. Buyer and Seller hereby agree that the Transaction
shall be consummated as follows:
5.1 Closing Date. The transaction contemplated by this
Agreement ("Transaction") shall close ("Closing") on or before the
later to occur of (i) thirty (30) calendar days following the
expiration of the Inspection Period (or at Buyer's option, thirty
(30) calendar days after the expiration of any right of
cancellation under Paragraph 4.6 hereof), or (ii) fifteen (15)
calendar days after the expiration of the waiting period referenced
in Paragraph 12.17 hereof (provided no Enforcement Action, as
defined in Paragraph 12.17, has occurred) unless such date is
either a Friday, Saturday, Sunday or a legal holiday in which event
the Closing shall occur on the next business day thereafter
("Original Closing Date"), provided, however, that Buyer shall have
the right one time to elect to extend the Original Closing Date for
a period of time not to exceed thirty (30) calendar days upon
reasonable prior notice to Seller (the "Extended Closing Date")
(The Original Closing Date and the Extended Closing Date, as
applicable, shall be referred to as the "Closing Date").
Notwithstanding anything else contained herein, in no event shall the
- 11 -
<PAGE>
Closing Date occur after January 15, 1996. The Closing shall
take place at 9:00 a.m. Eastern Time in the offices of the Title
Company and Buyer and Seller shall conduct a "pre-closing" on the
last business day prior to the Closing Date with title transfer and
payment of the Purchase Price to be completed on the Closing Date
as set forth in Paragraph 5.2 hereof.
5.2 Title Transfer and Payment of Purchase Price. Seller
agrees to convey title to the Real Property to Buyer by special
warranty deed upon confirmation of receipt of the Purchase Price by
the Escrow Agent as set forth below. Effective upon the delivery
of such deed, actual possession (subject to the tenancies existing
under the Leases and the risk of loss of the Project as allocated
under Paragraph 5.3.6 hereof and the Permitted Exceptions) shall
pass from Seller to Buyer. Buyer's acceptance of such deed shall
be deemed to be the full performance and discharge of any and all
of Seller's obligations hereunder, except those expressly set forth
in Paragraph 8.3 hereof to survive until the Limitation Date.
Provided Seller has complied with all of its obligations under this
Agreement and all conditions precedent to Closing have been
satisfied by the Closing Date, Buyer agrees to deliver the cash
payment specified in Paragraph 2.2 hereof by timely delivering the
same to the Escrow Agent no later than 2:00 p.m.Eastern Time on the
Closing Date and unconditionally directing the Escrow Agent to
deposit the same in Seller's designated account pursuant to a
mutually agreed upon closing instruction letter. If Seller is
unable to confirm receipt of the funds by the Escrow Agent by such
time, at Seller's option this Agreement shall terminate unless
Buyer is able to evidence to Seller's reasonable satisfaction that
Buyer has given unconditional instructions for the deposit and
transfer of funds to the Escrow Agent in the amount of the full
Purchase Price (i.e. a federal bank wire confirmation number).
Buyer shall pay to Seller one (1) day's interest on the unpaid
funds at the then current Federal Funds Rate for each and every day
that the funds are not timely received as set forth above up to a
maximum period of two (2) business days, after which, if funds have
still not been received by the Escrow Agent, Buyer shall be in
material default hereunder and Seller may terminate the Agreement
and all obligations to Buyer hereunder.
5.3 Adjustments and Prorations. The following adjustments
and prorations shall be made at Closing:
5.3.1 Lease Rentals and Security Deposits. Seller
shall be entitled to all rents (including any percentage rent
and any accrued tax and operating expense escalations, subject
to the provisions of Paragraph 5.3.7 hereof), charges, and
other revenue of any kind attributable to any period under the
Leases to but not including the Closing Date, except Seller
shall not be entitled to any monies, whenever collected,
relating to Outstanding Tenant Matters. Buyer shall be
entitled to all rents (including any percentage rent and any
accrued tax and operating expense escalations, subject to the
provisions of Paragraph 5.3.7 hereof), charges and other
revenue of any kind attributable to any period under the
Leases on and after the Closing Date. Rents and expense
escalations or other reimbursements due landlord under the
Leases collected prior to the Closing Date and attributable to
both Seller's and Buyer's period of ownership shall be
prorated as of the
- 12 -
<PAGE>
Closing Date. Uncollected rents and
expense escalations or other reimbursements due landlord under
the Leases shall not be prorated at the time of Closing, but,
for a period of ninety (90) days after the Closing Date, Buyer
shall make and shall cause Gumberg Asset Management Corp. to
make a good faith effort (excluding, at Buyer's election,
litigation or threatened litigation) to collect the same on
Seller's behalf (including, without limitation, the accounts
receivable due from Builder's Square and Publix) and to tender
the same to Seller upon receipt, provided that all rents,
escalations and other reimbursements due landlord under the
Leases collected by Buyer on or after the Closing Date shall
first be applied to all amounts due under the Leases at the
time of collection (i.e., current rents and sums due Buyer as
the current owner and landlord) with the balance (if any)
payable to Seller, but only to the extent of amounts
delinquent and actually due Seller. If Buyer or Gumberg Asset
Management Corp. institutes litigation in order to collect
uncollected rents, expense escalations or other reimbursements
due landlord under Leases, the costs of such litigation
(including any reasonable attorney's fees) shall be prorated
between Seller and Buyer in the same proportion that any such
collected rents, expense escalations or other reimbursements
are allocated pursuant to the previous sentence. Except as
provided below, after the Closing Buyer shall have an
exclusive right to collect the sums due Seller under the
Leases. Seller hereby retains its rights, however, to
continue to pursue any tenant under the Leases (except
Outstanding Tenant Matters, as defined in Paragraph 1.5) for
sums due Seller for periods attributable to Seller's ownership
of the Project, provided, however, that Seller's rights after
Closing shall not include actual or threatened eviction of any
such tenant. Buyer shall receive a credit against the
Purchase Price for all security deposits and pre-paid rentals
held by Seller under the Leases. The cost of any tenant
improvements, brokerage commissions and/or rental concessions
with respect to leases for the Project entered into after the
date of full execution of this Agreement and approved by Buyer
in accordance with Paragraph 6.2 hereof shall be prorated as
of the Closing Date based on each party's status as the
landlord for the remainder of the then current rent paying
term of each applicable Lease. The provisions of this
Paragraph 5.3.1 shall survive the Closing and the delivery of
the Deed.
5.3.2 Real Estate and Personal Property Taxes. Real
estate and personal property taxes shall be prorated as of the
Closing Date. Seller shall pay all real estate and personal
property taxes attributable to the Project to, but not
including, the Closing Date. If the real estate and/or
personal property tax rate and assessments have not been set
for the year in which the Closing occurs, then the proration
of such taxes shall be based upon the rate and assessments for
the preceding tax year, and such proration shall be adjusted
in cash between Seller and Buyer upon presentation of written
evidence that the actual taxes paid for the year in which the
Closing occurs differ from the amounts used at Closing and in
accordance with the provisions of Paragraph 5.3.7 hereof.
- 13 -
<PAGE>
Certified, confirmed and ratified special assessment liens as
of the date of Closing are to be paid by Seller. Pending
liens as of the date of Closing shall be assumed by Buyer
provided, however, that where the improvement has been
substantially completed as of the date of this Agreement, such
pending lien shall be considered as certified, confirmed or
ratified and Seller shall, at Closing, be charged an amount
equal to the last estimate by the public body of the
assessment for the improvement.
If any real estate tax or personal property tax reduction
proceedings have been commenced by Seller or are pending as of
the Closing Date with respect to any period prior thereto, no
right, title or interest in such proceedings shall be assigned
to Buyer and all proceeds and/or awards resulting therefrom
shall be paid to Seller; provided that Seller shall deliver to
Buyer the portion (after any and all appeals are deemed final
and the refund is received), if any, of such proceeds and/or
awards payable to any tenant pursuant to its Lease
(collectively, the "Tenant Refund Monies"), and further
provided that the remaining portion of any such proceeds
and/or awards applicable to the year in which the Closing
occurs, less the reasonable costs of obtaining the same, shall
be apportioned between Seller and Buyer in proportion to their
respective periods of ownership of the Project during such
year and shall be paid after any and all appeals are deemed
final and the refund is received. Buyer agrees to promptly
refund to the applicable tenants under the Leases the full
amount of the Tenant Refund Monies to the extent the Landlord
is obligated under the Leases. Buyer agrees to indemnify,
defend and hold harmless Seller from any loss, cost, claim,
liability, expense or demand of whatever nature caused
directly or indirectly by the misapplication of the Tenant
Refund Monies or the failure of Buyer to refund the Tenant
Refund Monies, or a portion thereof, in accordance with the
terms of the Leases.
All taxes imposed due to a change of use of the Project
after the Closing Date shall be paid by Buyer. The provisions
of this Paragraph 5.3.2 shall survive the Closing and the
delivery of the Deed.
5.3.3 Project Operating Expenses. Operating expenses
for the Project (including the cost of all Service Contracts
unless such Service Contracts are canceled pursuant to the
terms hereof) shall be prorated as of the Closing Date. Seller
shall pay all utility charges and other operating expenses
attributable to the Project for the period prior to, but not
including, the Closing Date (except for those separately
metered utility charges payable by tenants directly to the
utility companies in accordance with the Leases) and Buyer
shall pay all utility charges (except for those separately
metered utility charges payable by tenant directly to the
utility companies in accordance with the Leases) and other
operating expenses attributable to the Project on or after the
Closing Date. Seller shall not assign to Buyer any deposits
which Seller has with any of the utility services or companies
servicing the Project. Buyer shall arrange with such services
and companies
- 14 -
<PAGE>
to have accounts opened in Buyer's name
beginning at 12:01 a.m. on the day following the Closing Date.
5.3.4 Recording Fees. Buyer shall pay all recording
fees imposed with respect to the recording of the Deed and any
financing documents entered into by Buyer.
5.3.5 Closing Costs. Seller shall pay the cost of
preparing this Agreement and the Closing Documents, the cost
of the title insurance searches, the Title Commitment and the
title insurance policy issued pursuant thereto issued at the
minimum promulgated rate with no endorsements and attorney's
fees incurred by Seller in connection with the Closing and any
other costs or expenses customarily paid by sellers of similar
real property in the State of Florida. Buyer shall pay the
cost of its inspections, the cost of the Updated Survey, if
any, the cost of any endorsements to the Title Commitment or
the title policy issued thereto requested by Buyer or its
lender(s) and any other costs or expenses customarily paid by
buyers of similar real property in the State of Florida and
attorney's fees incurred by Buyer in connection with the
Closing.
5.3.6 Insurance. Seller shall cancel all insurance
coverage for the Project as of the Closing Date and Buyer
shall bear the risk of obtaining insurance coverage for the
Project on the Closing Date and for all risk of loss
thereafter. Risk of loss prior to the Closing Date shall be
borne by Seller.
5.3.7 Delayed Adjustment. If at any time following
the Closing Date the amount of an item listed in any
subparagraph of Paragraph 5.3 hereof shall prove to be
incorrect, the party in whose favor the error was made shall
promptly pay to the other party the sum necessary to correct
such error upon receipt of proof of such error, provided that
such proof is delivered to the party from whom payment is
requested on or before one (1) year after Closing. A final
reconciliation between Seller and Buyer shall be performed as
soon as possible, but not later than one year after the
Closing Date. The provisions of this Paragraph 5.3.7 shall
survive the Closing and the delivery of the Deed.
5.3.8 Documentary Stamp Taxes. Seller shall pay all
documentary stamp taxes, and county surtax if applicable, on
the Deed based upon the Purchase Price.
5.3.9 Mortgages. Buyer shall pay all documentary
stamp taxes, intangible taxes and all recording fees on any
note, mortgage or document evidencing a security interest
executed in connection with its placement of debt on the
Project.
5.4 Commissions.
5.4.1 Fee. If, as and when the Transaction is
consummated, Seller shall pay to Sonnenblick Goldman Company
and Gumberg Asset Management Corp. (collectively, the
- 15 -
<PAGE>
"Agents") commissions pursuant to a confidential commission
agreement as payment in full for services rendered in
connection with the Transaction. AGENTS HAVE NO AUTHORITY TO
MAKE AND HAVE NOT MADE ANY REPRESENTATIONS, WARRANTIES OR
OTHER PROMISES REGARDING THE PROJECT TO Buyer AND/OR Buyer'S
REPRESENTATIVES OR AGENTS. By its execution of this Agreement,
each Agent acknowledges that the Fee is payment in full for
all real estate brokerage services rendered by Agents and any
participating brokers with whom either Agent was in contact in
connection with the Transaction, and each Agent agrees to
indemnify Seller and Buyer and to hold both Seller and Buyer
harmless from any loss, liability, damage, cost or expense
(including, without limitation, court costs and reasonable
attorney's fees) paid or incurred by either Seller or Buyer by
reason of any claim to any broker's, finder's, or other fee in
connection with the Transaction by any party claiming by,
through or under either Agent.
5.4.2 Reciprocal Indemnities. Seller agrees to
indemnify Buyer and hold Buyer harmless from any loss,
liability, damage, cost or expense (including, without
limitation, court costs and reasonable attorney's fees) paid
or incurred by Buyer by reason of any claim to any broker's,
finder's, or other fee in connection with the Transaction by
any party claiming by, through or under Seller. Buyer agrees
to indemnify Seller and hold Seller harmless from any loss,
liability, damage, cost or expense (including, without
limitation, court costs and reasonable attorney's fees) paid
or incurred by Seller by reason of any claim to any broker's,
finder's, or other fee in connection with the Transaction by
any party (other than the Agents) claiming by, through or
under Buyer. Prior to becoming liable for such
indemnification, Buyer or Seller shall have a reasonable
opportunity to settle or defend the matter.
5.5 Seller's Closing Documents. At the Closing, Seller shall
deliver or cause to be delivered to Buyer the following documents:
5.5.1 Special Warranty Deed. A special warranty deed
in the form attached hereto as Exhibit "C" ("Special Warranty
Deed").
5.5.2 Bill of Sale. A bill of sale in the form
attached hereto as Exhibit "D".
5.5.3 Assignment and Assumption. An assignment and
assumption agreement in the form attached hereto as Exhibit
"E" ("Assignment").
5.5.4 Non-Foreign Status Certificate. A non-foreign
status certificate in the form attached hereto as Exhibit "F".
5.5.5 Notice to Tenants. Letters to each tenant under
the Leases in the form attached hereto as Exhibit "F-1".
- 16 -
<PAGE>
5.5.6 Designation Agreement. The Designation
Agreement, the form of which is attached hereto as Exhibit
"I".
5.5.7 Affidavit. An Affidavit, the form of which is
attached hereto as Exhibit "J".
5.5.8 Title Clearance Documents. Those documents
needed to clear matters raised in an Objection Notice (as
defined in Paragraph 3.3) to the extent not waived by Buyer
pursuant to the terms of Paragraph 3.3.
5.5.9 Notice to Issuers of Guarantees and/or
Warranties. Written notices, signed by Seller and addressed
to those who issued guarantees or warranties then in effect
with respect to any part of the Project, indicating that the
project has been sold and that Buyer shall have the rights of
Seller thereunder subsequent to Closing
5.5.10 Affidavit. The Affidavit referred to on
Section 8.2.
5.5.11 Certified Rent Roll. A certified rent roll as
required by Paragraph 8.2 hereof.
5.5.12 Closing Statement. A closing statement in
customary form evidencing the Purchase Price and all
adjustments and prorations required hereby (the "Closing
Statement").
5.5.13 Authority Certificate. A duly executed
certificate of authority regarding the person signing the
closing documents on behalf of the Seller.
5.5.14 Other Documents. Such other documents as may
be reasonably required by the Title Company or as may be
agreed upon by Seller and Buyer to consummate the Transaction,
including without limitation, an affidavit sufficient, in
Title Company's sole discretion, to delete the parties in
possession, the mechanic's lien and the gap exceptions from
the Title Policy.
The foregoing documents shall be duly executed and
acknowledged at the time of Closing.
5.6 Buyer's Closing Documents. At the Closing, Buyer shall
deliver or cause to be delivered to Seller the following documents:
5.6.1 Buyer's Affidavit. The Buyer's Affidavit, the
form of which is attached hereto as Exhibit "B-2", duly
executed and acknowledged by Buyer.
- 17 -
<PAGE>
5.6.2 Closing Statement. The Closing Statement.
5.6.3 Assignment and Assumption Agreement. The
Assignment and Assumption Agreement referred to above,
executed and acknowledged by Buyer.
5.6.4 Designation Agreement. The Designation
Agreement, in the form of which is attached hereto as Exhibit
"I".
5.6.5 Other Documents. Such other documents as may
be reasonably required by the Title Company or as may be
mutually agreed upon by Buyer and Seller, both as to form and
content, in their reasonable discretion to consummate the
transaction. (Seller and Buyer agree to use their best faith
efforts to agree to the form and content of such documents
during the Inspection Period to the extent possible given the
then state of information available to both parties).
5.7 Other Deliveries. At the Closing, the following shall
occur:
5.7.1 Keys and Original Documents. Seller shall
direct the Project Manager to deliver to Buyer keys to all
locks on the Project (in Project Manager's possession) and
original or, if originals are not available, true and correct
copies of the tenant space leases encumbering the Project on
the Closing Date ("Leases"), warranties, guarantees, service
contracts encumbering the Project on the Closing Date (the
"Service Contracts") (unless canceled as set forth herein) and
commission agreements encumbering the Project on the Closing
Date, and all other items constituting Intangible Personal
Property to the extent in Seller's possession.
5.7.2 Evidence of Authority. Seller and Buyer shall
deliver to the Title Company such documents as may be
reasonably required by the Title Company to evidence the
capacity of the parties hereto and the authority of the
persons executing any documents on behalf of the parties
hereto.
5.7.3 Letter of Credit and the Initial Earnest Money
Deposit. The Letter of Credit and the Initial Earnest Money
Deposit shall be returned to Buyer by the Escrow Agent.
5.8 Service Contracts. Buyer and Seller acknowledge that
Seller is subject to certain Service Contracts relating to the
operation of the Project as listed in Exhibit "K" hereto. Most of
the Service Contracts are terminable upon thirty days' notice.
Buyer agrees to give Seller notice by the end of the Inspection
Period of those Service Contracts Buyer does not wish to assume as
of the Closing and Seller agrees to terminate such Service
Contracts (but only if it can do so without cost or other
obligation to Seller). If Buyer fails to provide such timely
notice, Buyer shall accept the liability of the Service Contracts
as of the Closing. The Project
- 18 -
<PAGE>
Management Agreement (as defined in Paragraph 4.1 hereof) is not
considered a Service Contract and will be terminated by Seller,
effective on the Closing Date.
6. Lease Issues.
6.1 Leasing Commissions. Seller shall indemnify and hold
Buyer harmless from any claims for leasing commissions payable
during the current terms of the Leases (specifically excluding
therefrom any Future Commissions). For purposes of this Agreement,
Future Commissions shall mean any leasing commissions arising out
of future exercise of renewal terms or options or rights to expand
relating to any existing Leases and any leasing commissions
relating to any new leases which arose or accrued subsequent to the
date of full execution of this Agreement. If the Transaction is
consummated, Buyer shall indemnify and hold Seller harmless from
the Future Commissions and any costs payable under Paragraph 6.2
hereof. Prior to becoming liable for such indemnification, Buyer
shall have a reasonable opportunity to settle or defend the matter.
Buyer agrees to cooperate with and to assist Seller (at no cost or
expense to Buyer) in attempting to obtain a complete release of
liability for payment of the Future Commissions with Buyer thereby
formally assuming such obligations.
6.2 New Leases. If the Transaction is consummated, Buyer
shall (i) reimburse Seller on the Closing Date for an amount equal
to the product derived when Buyer's Pro Rata Share (as defined
below) is multiplied by any and all reasonable and necessary fees
actually paid by Seller, Future Commissions (as defined in
Paragraph 6.1 above) actually paid by Seller, or reasonable and
necessary expenses actually paid by Seller (collectively the
"Expenses") arising out of or in connection with (a) any future
exercise of extensions, renewals or expansions under the Leases and
(b) any new leases within the Project, all to the extent approved
by Seller and Buyer on or after the date of full execution of this
Agreement and actually paid by Seller prior to Closing and (ii)
indemnify and hold Seller harmless from and against any and all
claims for the Expenses which remain unpaid for any reason at the
time of Closing. Prior to becoming liable for such indemnification,
Buyer shall have a reasonable opportunity to settle or defend the
matter. The term "Buyer's Pro Rata Share" shall mean an amount
equal to the quotient derived when the number of months that the
tenant under the applicable lease is required to pay rent under
such lease (excluding free rent months) after the Closing Date is
divided by the total number of months such tenant is required to
pay rent (excluding free rent months) during the entire term of
such lease. If the Transaction is consummated, Seller shall
reimburse Buyer on the Closing Date for an amount equal to the
product derived when Seller's Pro Rata Share (as defined below) is
multiplied by any and all fees, Future Commissions (as defined in
Paragraph 6.1 above) or expenses incurred prior to the Closing Date
but not paid prior to the Closing Date arising out of or in
connection with (a) any extensions, renewal or expansions under the
Leases and (b) any new leases within the Project. The term
"Seller's Pro Rata Share" shall mean an amount equal to the
quotient derived when the number of months that the tenant under
the applicable lease is required to pay rent under such lease
(excluding free rent months) prior to the Closing Date is divided
by the total number of months in the term such tenant is required
to pay rent (excluding
- 19 -
<PAGE>
free rent months) during the entire term of
such lease. If Seller desires to execute a renewal, amendment,
extension or expansion of a Lease or execute a new lease with a
potential tenant for space in the Project after the date hereof but
prior to Closing, Seller shall promptly provide Buyer with a copy
of the proposed document for its review. Buyer shall advise
Seller, in writing, whether or not it approves or rejects such
proposed document within three (3) business days after receipt of
the proposed document. If Buyer fails to notify Seller within such
time period, Buyer shall be deemed to have approved the proposed
document. Buyer's approval shall include Buyer's agreement to be
responsible and liable, to the extent provided above in this
Paragraph 6.2, for costs associated with such lease matter and to
reimburse Seller for any lease related expenses, including, but not
limited to any legal fees, leasing commissions and tenant finish
cost. If Buyer rejects the proposed document, Seller nevertheless
retains full right, power and authority to execute such proposed
document, and Seller shall promptly advise Buyer of same. Buyer
shall advise Seller, in writing, whether or not it elects to
terminate this Agreement within three (3) business days after
receipt of Seller's notice that Seller has executed the proposed
document over Buyer's objection. If Buyer fails to notify Seller
within such time period, Buyer shall be deemed to have fully waived
any rights to terminate this Agreement pursuant to this Paragraph
6.2.
6.3 Tenant Evictions. If after the expiration of the
Inspection Period, Seller desires to commence an action to evict a
tenant under one of the Leases, Seller shall provide Buyer with
written notice of such intention (the "Eviction Notice"). Buyer
shall have the right to object to such eviction action, provided
that such objection is not unreasonably made, by providing written
notice of such objection to Seller within three (3) business days
after receipt of the Eviction Notice (the "Objection Notice"). If
Seller does not receive the Objection Notice in said three (3)
business days time period, Seller is free to proceed with the
eviction listed in the Eviction Notice. If Seller does receive the
Objection Notice in said three (3) business days time period,
Seller is not entitled to proceed with the eviction listed in the
Eviction Notice.
7. Estoppel Letters. (a) Seller shall use its best efforts
(excluding, at Seller's election, litigation or threatened
litigation) to obtain and deliver to Buyer, not less than ten (10)
days prior to the Closing Date (the "Estoppel Deadline") an
executed tenant estoppel certificate in the form attached hereto as
Exhibit "G" from each tenant at the Project dated not less than ten
(10) days and not more than twenty (20) days prior to the Closing
Date or any Extended Closing Date (the "Tenant Estoppel Letters").
At a minimum, however, Seller shall obtain and deliver to Buyer at
Closing a Tenant Estoppel Letter from each Anchor Tenant (as
defined below) and Tenant Estoppel Letters from the remainder of
the non-Anchor Tenants under leases which collectively lease 80% or
more of the remaining gross leasable area of the Project at the
time of closing (the "Required Non-Anchor Estoppel Letters") (In
total the Anchor Tenant Estoppel Letters and the Required Non-
Anchor Estoppel Letters equals the Estoppel Standard). In the
event Seller cannot for any reason obtain and deliver Tenant
Estoppel Letters from 100% of the Anchor Tenants and non-Anchor
Tenants at the Project on the Closing Date (the "Remainder
Tenants"), Seller shall deliver at the Closing to Buyer one or more
Seller's (landlord) estoppel letters in the form attached hereto as
Exhibit "N" ("Seller's Estoppel Letter"), in substitution for any
missing or stale-
- 20 -
<PAGE>
dated Tenant Estoppel Letters. Any Seller's
Estoppel Letter shall be effective and enforceable against Seller
through the earlier to occur of the expiration or early termination
of a Lease or the Limitation Date; provided that if Seller shall
obtain a Tenant Estoppel Letter from any such tenant after delivery
of such Seller's Estoppel Letter, Buyer shall return the previously
delivered Seller's Estoppel Letter which shall thereafter be
without further force or effect. Upon receipt of a Tenant Estoppel
Letter consistent with this Paragraph 7, Buyer shall rely
exclusively on such Tenant Estoppel Letter and the copy of any
Lease attached thereto rather than the Documents as they relate to
the Lease. For purposes of this Agreement, the following tenants
at the Project shall constitute an "Anchor Tenant": Publix, Rite
Aid, Builder's Square, Linen Supermarkets, AMC Theatre and Happy
Days Skate & Putt.
(a) If on or before the Estoppel Deadline Seller fails to
deliver Tenant Estoppel Letters sufficient to satisfy the Estoppel
Standard, then Buyer shall either (1) accept the Tenant Estoppel
Letters delivered to Buyer, and the parties shall proceed to
Closing without abatement of the Purchase Price subject and
pursuant to the other terms of this Agreement, or (2) notify Seller
in writing not less than five (5) days prior to the Closing Date of
such insufficiency, whereupon Seller shall have ten (10) days after
receipt of such notice to deliver a sufficient number of Tenant
Estoppel Letters to satisfy the Estoppel Standard, and Closing
shall be extended to the extent necessary. If Seller fails to
deliver the Tenant Estoppel Letters sufficient to satisfy the
Estoppel Standard within such ten (10) day period, Buyer shall have
the right to terminate this Agreement by giving written notice to
Seller on or before such Extended Closing Date. If Buyer duly
exercises such right of termination, Escrow Agent shall return in
accordance with the terms of the Escrow Agreement the Total Earnest
Money Deposit including, without limitation, the Letter of Credit,
to Buyer, this Agreement shall be null and void (except for any
indemnity or liability of Buyer pursuant to Paragraph 4.2 hereof),
the Documents shall be returned to Seller by Buyer, and neither
party shall have any further obligations hereunder. If Buyer does
not duly exercise such right to terminate this Agreement, Buyer
shall be deemed to have waived its right to do so and Closing shall
occur as described in this Agreement, without postponement or
reduction of the Purchase Price. Except as provided herein with
respect to Seller's Estoppel Letters, Buyer specifically releases
Seller from all liability and obligation as to the non-conformity
of any Tenant Estoppel Letter if the Tenant executing such Tenant
Estoppel Letter modifies the form of, or refuses to execute or
provide all of the information required by, such Tenant Estoppel
Letter and Buyer nevertheless thereafter proceeds with the closing
of the transaction contemplated hereby. Seller makes no
representation or warranty whatsoever, express or implied, as to
the content, completeness or accuracy of any of the information set
forth in any Tenant Estoppel Letter.
(b) If Buyer, in its reasonable discretion, finds any of the
Tenant Estoppel Letters or Seller's Estoppel Letters then presented
to it (if any) to be objectionable (other than for an item shown on
the Delinquency List, as defined below), then Buyer may, before the
Closing Date, give notice to Seller citing its objections. If (1)
Buyer does not give Seller such notice on or before the Closing
Date, Buyer shall have no further right to raise such objections
and shall be required
- 21 -
<PAGE>
to accept all Tenant Estoppel Letters and
Seller's Estoppel Letters (if any) as then presented; or (2) Buyer
does give such notice on or before the Closing Date, Buyer shall
have no further right to raise any objections other than those
cited in Buyer's notice.
(c) Upon receipt by Seller of a timely and proper notice of
objection by Buyer, Seller shall have the right, exercisable only
by giving notice to that effect to Buyer within five (5) business
days after receiving Buyer's notice, to elect in its sole and
absolute discretion (1) to decline to take any action, or (2) to
agree to attempt to remedy any such objections within ten (10) days
of receipt by Seller of Buyer's notice, whereupon the Closing shall
be extended to the extent necessary. If notice of Seller's
election is not timely given, subparagraph (2) above shall apply.
(d) If Seller elects Option (1) in Subparagraph (c) above,
then Buyer shall have the right, exercisable only by giving notice
to that effect to Seller (with a copy to Escrow Agent) within five
(5) business days after receiving Seller's notice, to terminate
this Agreement. If Buyer duly exercises such right of termination,
Escrow Agent shall return in accordance with the terms of the
Escrow Agreement the Total Earnest Money Deposit, including without
limitation, the Letter of Credit, to Buyer, the Documents shall be
returned to Seller by Buyer, this Agreement shall be null and void
(except for any indemnity of Buyer pursuant to Paragraph 4.2
hereof) and neither party shall have any further obligations
hereunder. If Buyer does not duly exercise such right of
termination, then Buyer shall have no further right to raise any
such objections and Closing shall occur as described in this
Agreement, without postponement or reduction of the Purchase Price.
(e) If Seller elects Option (2) in Subparagraph (c) above,
then Seller shall commence to cure such objections, using
reasonable efforts; provided, however, that Seller shall not be
required to institute any litigation with respect to any such
objections. If Seller fails to cure such objections within such
ten (10) day period, then Buyer shall have the right, exercisable
only by giving notice to that effect to Seller (with a copy to
Escrow Agent) within five (5) days after the end of such (10) day
period to terminate this Agreement. If Buyer duly exercises such
right of termination, Escrow Agent shall return in accordance with
the terms of the Escrow Agreement the Total Earnest Money Deposit,
including, without limitation, the Letter of Credit to Buyer, the
Documents shall be returned to Seller by Buyer, this Agreement
shall be null and void (except for any indemnity of Buyer pursuant
to Paragraph 4.2 hereof) and neither party shall have any further
obligations hereunder. If Buyer does not duly exercise such right
of termination, then (1) Buyer shall have no further right to raise
such objections, (2) at Closing, Buyer shall accept the Project
without any reduction in the Purchase Price on account of such
objection, and (3) Seller shall have no express or implied
obligation whatsoever to cure such objections. If Seller cures
such objections within such ten (10) days, then the Closing
contemplated hereby shall occur in accordance with the other terms
of this Agreement.
- 22 -
<PAGE>
(f) The procedure set forth in this Paragraph 7 shall be
Buyer's sole rights and remedies with regard to any such objections
to the Tenant Estoppel Letters. Buyer shall have no right to take
any other action or assert any claim or cause of action against
Seller based upon any such objection to the Tenant Estoppel
Letters.
(g) The parties hereto acknowledge that Seller shall not be
required to obtain more than one set of estoppel letters for the
benefit of Buyer and any assignee or mortgagee, in the aggregate,
subject to Seller's duty to supplement any stale-dated Tenant
Estoppel Letter as provided herein.
(h) Seller shall have no obligations regarding tenant
estoppel letters other than as specifically set forth herein.
(i) The Delinquency List is a list of all items which would
appear as exceptions to a "clean" Tenant Estoppel Letter which are
known to Gumberg Asset Management Corp. The Seller and Buyer agree
that the Delinquency List as of the date hereof is that shown on
Exhibit "R". Seller agrees to cause Gumberg Asset Management Corp.
to update the Delinquency List on a weekly basis through the date
five (5) days prior to the end of the Inspection Period, the result
of which is that the Delinquency List as updated through the end of
the Inspection Period is the applicable Delinquency List for the
purposes of Subparagraph (b) above.
8. Representations and Warranties.
8.1 Buyer. In consideration of Seller withdrawing the
Project from the market, Buyer represents and warrants to Seller
that (i) Buyer has full power and authority to enter into this
Agreement and to assume and perform all of Buyer's obligations
under this Agreement; (ii) the person executing this Agreement on
behalf of Buyer has been duly authorized and is empowered to bind
Buyer to this Agreement; (iii) Buyer acknowledges that there is a
possibility that the Rite Aid store may "go dark" as a result of
the sale to Eckerd and that Buyer shall not have the right to
terminate this Agreement pursuant to Paragraph 4.2 hereof due to
this possibility occurring or the financial impact of such an
occurrence; (iv) there is the possibility of an environmental issue
relating to the dry cleaner located at Pine Island; (v) Buyer
acknowledges that Gumberg Asset Management Corp., an affiliate of
Buyer, has been the property manager of the Project since 1988 ;
and (vi) Buyer's obligations hereunder will not be contingent on
Buyer's ability to obtain financing or financing considerations.
8.2 Seller. Seller represents and warrants to Buyer that (i)
subject to the provisions set forth in Paragraph 11 hereof, Seller
has full power and authority to enter into this Agreement and to
assume and perform all of Seller's obligations under this Agreement
and the person executing this Agreement on behalf of Seller has
been duly authorized and is empowered to bind Seller to this
Agreement; (ii) the limited special warranty of title set forth in
the Special Warranty Deed shall be true and correct at the time of
Closing; (iii) subject to Paragraph 11 hereof, this
- 23 -
<PAGE>
Agreement and the Documents do not and will not conflict with any
agreements by which Seller is bound or any present judgment, or court order;
(iv) Seller has received no written notice from any insurance company
stating that hazard insurance will no longer be obtainable for the
Project; (v) Seller has received no written notice of pending or
contemplated condemnation proceedings affecting the Project; (vi)
To Seller's best knowledge, Seller is not a party to any litigation
that would in any manner materially affect the Project, except the
Outstanding Tenant Matters and any other matters disclosed on
Exhibit "O". Seller shall give Buyer prompt notice of the
commencement prior to the Closing Date, of any litigation (unless
the litigation is brought by Buyer) which materially affects the
Project, and if any litigation against Seller which materially
affects the Project occurs prior to Closing hereunder, Seller will
hold Buyer harmless respecting same (unless the litigation is
brought by Buyer); (vii) Seller has received no written notice of
any (and, to Seller's best knowledge, there exists no) pending
change in any governmental regulation or private restriction
applicable to the Project, nor any other pending event, which would
result in any change in the condition of the Project as it exists
on the date of this Agreement, nor limitation on, or impediment to,
the operation of the Project as it is operated on the date hereof;
(viii) Seller has received no written notice of any (and, to
Seller's best knowledge, there exists no) pending event which would
result in the termination of any existing parking spaces at the
Project, nor the current access from the Project to any existing
public highways or roads adjoining or situated on the Project; (ix)
Seller has received no written notice that it has not complied with
any applicable law, ordinance, or other governmental requirement
respecting the Project; (x) To Seller's best knowledge, Exhibit "M"
hereto lists all leasing brokerage commission agreements pertaining
to the Project (at Closing, Seller shall deliver to Buyer a then-
current Exhibit "M"); (xi) To Seller's best knowledge, all parking
spaces serving the Project are part of the Real Property; (xii) All
utility facilities serving the Project are in working order and to
the best of Seller's knowledge, such utilities have received all
necessary permits; (xiii) No person or party has an option to
purchase any part of the Project; (xiv) All information to be
delivered by or on behalf of Seller to Buyer is true, correct and
complete in all material respects to Seller's best knowledge and
belief; (xv) Except as set forth in the Environmental Assessment
Reports or previously disclosed to Buyer, Seller knows of no
environmental issue affecting all or any part of the Project on the
date hereof; and (xvi) Prudential Bache Properties is a general
partner of Prudential Acquisition Fund I, L.P. and Prudential
Realty Acquisition Fund II, L.P.
Seller also represents and warrants the following with regard
to the Service Contracts and the Leases:
(a) All of the existing Leases are set forth in the
"Rent Roll" attached hereto as Exhibit "L" (at Closing, Seller
shall deliver to Buyer a then-current Exhibit "L" certified by
Seller as being true and correct in all material respects);
(b) All of the existing Service Contracts are set forth
in Exhibit "K" attached hereto (at Closing, Seller shall deliver to
Buyer a then-current Exhibit "K");
- 24 -
<PAGE>
(c) No contractor under any of the Service Contracts has
asserted, and Seller has no knowledge of, any material claim,
offset, right of recoupment or defense available to any contractor
except as may be set forth on Exhibit "P";
Seller hereby confirms that Buyer's obligation to close the
proposed transaction hereunder is conditioned on all of Seller's
representations and warranties herein being true and correct in all
material respects as of the Closing Date. On the Closing Date,
Seller shall deliver the Affidavit set forth as Exhibit "J".
Failure to deliver the same shall constitute a default under this
Agreement.
Seller agrees that in the event of a default as set forth in
Paragraph 9.1 hereof pursuant to which Buyer has the right to
receive monetary damages, Buyer shall have the right to pursue, in
addition to the Seller, Prudential Acquisition Fund I, L.P. and
Prudential Realty Acquisition Fund II, L.P. in connection with such
monetary damages.
The only representations, warranties or both given by Seller
under this Agreement upon which Buyer may rely are those contained
in this Paragraph 8.2.
8.3 Limitation Date. Buyer and Seller hereby agree that,
notwithstanding any provision of this Agreement or any provision of
law to the contrary, any action which may be brought by Buyer
against Seller for breach of this Agreement or any representations
or warranties under this Agreement or arising out of or in
connection with this Transaction shall be forever barred unless
Buyer (a) delivers to Seller, no later than one (1) year after the
Closing Date (or such longer period as may be specified in any
express warranty hereunder), a written notice of its claim setting
forth in reasonable detail the factual basis for such claim and
Buyer's good faith estimate of damages arising out of such claim,
and (b) files a complaint or petition against Seller alleging such
claim in an appropriate Federal District Court in Broward County,
Florida (provided such court otherwise has jurisdiction), no later
than eighteen (18) months after the Closing Date ("Limitation
Date"). Except for a forcible entry and detainer suit (or similar
suit for possession of the Project) filed in the applicable Court
in Broward County, the parties hereto hereby each waive any right
to file any action in connection with this Agreement in State
Courts for the State where the Project is located and agree to make
the forum for any dispute resolution Federal District Court in the
County where the Project is located. In no event shall Seller be
liable after the Closing Date for its breach of any covenant,
representation or warranty if such breach was known to Buyer prior
to the Closing Date. The warranties and representations of Seller
set forth in Paragraph 8.2 hereof and the agreements of Seller,
Buyer or both set forth in Paragraphs 5.3.2, 5.3.5, 5.3.7, 5.4,
6.1, 6.2, 8.2, 9.2, 10.1, 10.2, 12.3 and 12.9 and all of the
representations, warranties, and agreements of Buyer set forth
herein shall survive until the Limitation Date, and no action based
thereon shall be commenced after the Limitation Date.
Notwithstanding the foregoing, (a) Buyer's representations,
warranties and agreements under Paragraphs 4.1, 4.2, 4.6, 4.8 and
5.3.2 hereof and (b) Seller's representations, warranties and
agreements , if any, in Paragraph 4.6 hereof shall survive both the
Closing and the Limitation Date and shall not merge
- 25 -
<PAGE>
into the Special Warranty Deed, but shall be enforceable at any time by
Seller or Buyer, as applicable .
9. Default and Remedies.
9.1 Buyer. If (a) Seller fails to perform any of its material
obligations or agreements contained herein (except for permitted
terminations set forth herein), (b) Seller's failure to perform is
not solely a willful default but rather Seller's inability to close
the transaction contemplated hereby is due in whole or in part to
an event, circumstance or other matter out of Seller's control and
(c) Buyer is not then in default of any of its material obligations
and agreements contained herein, then Buyer may elect one, but only
one, of the following as Buyer's sole and exclusive remedy: (i)
Buyer may terminate this Agreement by giving written notice of
termination and the reasons therefor to Seller, in which event
neither Seller nor Buyer shall have any further obligations or
liabilities one to the other hereunder (except for any indemnity or
liability of Buyer pursuant to Paragraph 4.2 hereof), the Documents
shall be returned to Seller and the Total Earnest Money Deposit
shall be returned to Buyer including, without limitation, the
Letter of Credit; or (ii) thereby waiving all other actions, rights
or claims for damages, Buyer may bring an equitable action for
specific performance of the terms of this Agreement in accordance
with all terms and conditions of this Agreement.
If (a) Seller fails to perform any of its material objections
or agreements contained herein (except for permitted terminations
set forth herein), (b) Seller's failure to perform as described
above is due solely to Seller's willful refusal to close (rather
than (x) an inability in whole or in part to close in accordance
with the terms hereof due to an event, circumstance or other matter
out of Seller's control, (y) for any refusal to close due to the
failure of Seller to obtain the necessary approvals referred to in
Paragraph 11 hereof or (z) a failure to close due to a failure of
the closing conditions set forth in Paragraph 12.17 hereof), and
(c) Buyer is not then in default of any of its material obligations
and agreements contained herein, then Buyer may elect one, but only
one, of the following as Buyer's sole and exclusive remedy: (i)
thereby waiving all other actions, rights or claims for damages,
Buyer may bring an equitable action for specific performance of the
terms of this Agreement in accordance with all terms and conditions
of this Agreement or (ii) then Buyer may terminate this Agreement
by giving written notice of termination and the reason therefore to
Seller (the "Termination Notice"), provided however, Seller shall
have ten (10) days from the date of the Termination Notice to
attempt to cure such default of Seller, in which event the Closing
Date shall be extended for such ten (10) day period. If Seller
cures such default within such ten (10) days, then Buyer and Seller
shall consummate the transaction contemplated hereby in accordance
with the terms of this Agreement. If Seller refuses to or fails to
cure such default within such ten (10) days, then this Agreement
shall be null and void, neither Seller nor Buyer have any further
obligations or liabilities one to the other hereunder (except for
any indemnity or liability of Buyer pursuant to Paragraph 4.2
hereof), the Documents shall be returned to Seller, the Total
Earnest Money Deposit shall be returned in accordance with the
terms of the Escrow Agreement to Buyer and Seller shall promptly
pay to
- 26 -
<PAGE>
Buyer an amount equal to $1,700,000.00 representing
liquidated damages for losses sustained by Buyer.
9.2 Seller. If Buyer fails to close the Transaction in
accordance with the terms hereof (except for permitted terminations
set forth herein) and Seller is not then in default of any of its
material obligations or agreements contained herein, then Seller's
sole right and remedy hereunder is to terminate this Agreement,
whereupon Seller shall receive the Total Earnest Money Deposit as
liquidated damages and shall be entitled to direct the Escrow Agent
to draw on the Letter of Credit with the Documents to be returned
to Seller and thereafter Seller and Buyer shall have no further
obligations or liabilities one to the other hereunder (except for
any indemnity or liability of Buyer pursuant to Paragraph 4.2
hereof). Seller's receipt of the Total Earnest Money Deposit
(including drawing on the Letter of Credit) as "liquidated damages"
is agreed to due to the difficulty, inconvenience and uncertainty
of ascertaining actual damages for such breach by Buyer and Buyer
agrees that the same is a reasonable and fair estimate of damages.
Upon receipt of the proceeds of the Letter of Credit by Escrow
Agent, Escrow Agent shall immediately deliver the same to Seller.
10. Risk of Loss.
10.1 Casualty. If during or after the Inspection Period, the
Project is damaged by any casualty Seller shall immediately notify
Buyer in writing of the same ("Casualty Notice"). Buyer's sole
right if such a casualty occurs during the Inspection Period is to
cancel this Agreement in accordance with Paragraph 4.2 or proceed
with Closing as set forth herein without repair of the casualty
damage and receive at Closing an assignment of Seller's rights to
any insurance proceeds which remain unpaid to Seller in connection
with such casualty (to the extent not used by Seller in the
restoration of such casualty) and a credit against the Purchase
Price in the amount of the deductible under Seller's property
casualty insurance coverage for the Project (less any sums paid by
Seller in the restoration of such casualty) plus any amounts
previously paid to Seller as insurance proceeds in connection with
such casualty if such amounts have not already been expended for
the repair of the Project. If after the Inspection Period, the
Project is damaged by any casualty prior to Closing, Seller shall
immediately deliver to Buyer a Casualty Notice. If a casualty
occurs after the Inspection Period and if the cost of repairing
such damage is estimated by an architect retained by Seller to be:
(a) equal to or less than TWO HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($250,000.00), then Buyer and Seller shall proceed
with Closing as set forth herein, except for any liability or
indemnity pursuant to Paragraph 4.2 hereof, and without repair of
the casualty damage and Buyer shall receive an assignment of
Seller's rights in any insurance proceeds which remain unpaid to
Seller in connection with such casualty and a credit against the
Purchase Price in the amount of the deductible under Seller's
property casualty insurance coverage for the Project plus any
amounts previously paid to Seller as insurance proceeds in
- 27 -
<PAGE>
connection with such casualty, if such amounts have not already
been expended for the repair of the Project.
(b) greater than TWO HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($250,000.00), then Buyer must elect (as its sole and
exclusive remedy) to either (i) terminate this Agreement by giving
notice to such effect to Seller not later than the earlier to occur
of the last business day prior to Closing or fifteen (15) calendar
days after receipt of the Casualty Notice (in which event the Total
Earnest Money Deposit shall be returned to Buyer and neither
Seller nor Buyer shall have any further obligations or liabilities
one to the other hereunder) or (ii) proceed with Closing as set
forth herein, except for any liability or indemnity pursuant to
Paragraph 4.2 hereof, and without repair of the casualty damage and
Buyer shall receive an assignment of Seller's rights in any
insurance proceeds which remain unpaid to Seller in connection with
such casualty and a credit against the Purchase Price in the amount
of the deductible under Seller's property casualty insurance
coverage for the Project plus any amounts previously paid to Seller
as insurance proceeds in connection with such casualty if such
amounts have not already been expended for the repair of the
Project. Buyer's failure to give timely notice under Paragraph
10.1 (b)(i) shall be deemed to be an election under Paragraph 10.1
(b)(ii).
If Buyer elects (or is deemed to have elected) option "(ii)"
above, Seller agrees to cooperate with Buyer in any loss adjustment
negotiations, legal actions and agreements with the insurance
company, and to assign to Buyer at Closing its rights to such
insurance proceeds and will not settle any insurance claims or
legal actions relating thereto without Buyer's prior written
consent, which Buyer agrees will not be unreasonably withheld,
delayed or conditioned.
10.2 Eminent Domain. In the event all or a material portion of
the Project is taken by eminent domain or becomes subject to a
taking by eminent domain or a deed in lieu of condemnation prior to
Closing, Seller shall immediately notify Buyer in writing of the
same ("Eminent Domain Notice") and Buyer must elect (as its sole
and exclusive remedy) to either (i) terminate this Agreement by
giving notice to such effect and returning the Documents to Seller
not later than ten (10) business days after receipt of the Eminent
Domain Notice (in which event neither Seller nor Buyer shall have
any further obligations or liabilities one to the other, except for
any obligations or liabilities of Buyer pursuant to Paragraph 4.2
hereof, and the Total Earnest Money Deposit or Initial Earnest
Money Deposit, as applicable, shall be returned to Buyer or (ii)
proceed with Closing as set forth herein and accept title to the
Project subject to such taking or proceeding together with an
assignment of all of Seller's rights and interest in and to any
proceeds or compensation which remain unpaid to Seller in
connection with such taking and a credit against the Purchase Price
for any amounts previously paid to Seller as condemnation proceeds
or compensation in connection with such taking. Buyer's failure to
give timely notice under Paragraph 10.2 (i) shall be deemed to be
an election under Paragraph 10.2 (ii).
Seller will not settle any proceedings relating to any taking
without Buyer's prior written consent, which Buyer agrees will not
be unreasonably withheld, delayed or conditioned.
- 28 -
<PAGE>
11. Approval. This Agreement is subject to the condition precedent
of the approval of this Transaction by the appropriate officers in
Corporate Office of The Prudential Insurance Company of America
(the "Approval") during the period of time beginning on the date
Seller executes this Agreement (the "Seller's Execution Date") and
expiring on ten (10) days after the Seller's Execution Date
("Approval Period"). If (a) such officers, in their sole and
absolute discretion, disapprove this Transaction and written notice
thereof (the "Disapproval Notice") is given by Seller to Buyer on
or before the expiration of the Approval Period, then, upon the
receipt of such Seller's written notice by Buyer, or (b) if Seller
fails during the Approval Period to give Buyer notice of the
receipt of the Approval, then, upon written notice from Buyer to
Seller, this Agreement shall terminate, the Total Earnest Money
Deposit shall be returned to Buyer, and thereafter Seller and Buyer
shall have no further obligations or liabilities one to the other
hereunder (except for any indemnity of liability of Buyer pursuant
to Paragraph 4.2).
12. Additional Covenants.
12.1 Time. Time is of the essence of this Agreement.
Reference herein to "business day" shall mean a day in which
commercial banks in New York are open for ordinary business; and
reference to "calendar days" or "days" shall mean calendar days.
12.2 Notices. Any notice, request, demand, instruction or
other communication to be given to either party hereunder (except
those required to be delivered at Closing) shall be in writing, and
shall be deemed to be delivered upon the earlier to occur of (i)
actual receipt if delivered by hand or by recognized express mail
service (such as Federal Express) to the address indicated; or (ii)
the third business day after deposit in registered or certified
United States Postal Service mail, return receipt requested,
postage prepaid, addressed as follows:
IF TO BUYER:
Gumberg Property Investors, Inc.
3200 North Federal Highway
Fort Lauderdale, FL 33306-1033
Attention: Andrew Gumberg
and
Investcorp International Inc.
280 Park Avenue, 37th Floor
New York, NY 10017
Attention: Jon Dracos
COPY TO:
- 29 -
<PAGE>
Thomas Keltner, Jr., Esquire
Wien, Malkin & Bettex
60 E. 42nd Street
New York, NY 10165-0015
COPY TO:
Robert Howard, Esquire
Gumberg Property Investors, Inc.
3200 North Federal Highway
Fort Lauderdale, FL 33306-1033
IF TO SELLER:
Ridge Plaza Joint Venture
c/o The Prudential Insurance Company of America
One Ravinia Drive, Suite 1400
Atlanta, Georgia 30346
Attention: Collete English Dixon, Vice President
COPY TO:
The Prudential Insurance Company of America
One Ravinia Drive, Suite 1400
Atlanta, Georgia 30346
Attention: G. Gregory Boyd, Associate Regional Counsel
COPY TO:
Shear, Newman, Hahn & Rosenkranz, P.A.
201 East Kennedy Boulevard, Suite 1000
Tampa, Florida 33602
Attention: Jeffrey Drew Butt, Esquire
- 30 -
<PAGE>
IF TO ESCROW AGENT
Shear, Newman, Hahn & Rosenkranz, P.A.
201 East Kennedy Boulevard, Suite 1000
Tampa, Florida 33602
Attention: Jeffrey Drew Butt, Esquire
The names and addresses for the purpose of this Paragraph may
be changed by either party by giving written notice of such
change to the other party in the manner provided herein.
12.3 Attorneys' Fees. If litigation between the Seller and
the Buyer arises out of this Agreement or any provisions contained
herein, the prevailing party (i.e., the party as to which the
judgment or decision is more favorable on the significant issues in
the subject litigation, provided that such judgment or decision is
at least 25% greater than any written settlement offer rejected by
such party) will be entitled to recover, in addition to all other
remedies or damages, from the other party the reasonable attorneys'
fees, court costs and disbursements incurred by the prevailing
party, through appeals and collection efforts (if any), and the
same will be assessed as costs payable by the non-prevailing party
in the litigation.
12.4 Entire Agreement and Modification. This Agreement
constitutes the entire agreement between Buyer and Seller and
supersedes all prior agreements, including, without limitation, all
prior understandings (if any) relating to the subject matter
hereof. This Agreement cannot be amended, modified or altered
except by an agreement in writing executed by both Buyer and
Seller.
12.5 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and their
respective successors, permitted assigns and legal representatives.
12.6 Assignment. This Agreement cannot be assigned by Buyer in
whole or in part without the prior written consent of the Seller,
which consent may be withheld by Seller for any reason whatsoever.
All approved assignees (the "Permitted Assignees") shall assume
Buyer's obligations hereunder from and after the effective date of
the assignment and a copy of the assignment/assumption document
shall be promptly given to Seller. Notwithstanding the above, this
Agreement may be assigned by Buyer in whole without the prior
written consent of Seller upon the following conditions: (i) the
assignee is an affiliate of Investcorp International, Inc., (ii)
such assignment does not cause Seller to incur any additional costs
or expenses (e.g. new Hart-Scott-Rodino filing fees), (iii) such
assignment does not cause a change in the Closing Date and (iv)
Seller has written notice of such assignment not less than ten (10)
business days prior to Closing.
- 31 -
<PAGE>
12.7 Headings. Paragraph headings are for convenience of
reference only and shall in no way affect the interpretation of
this Agreement.
12.8 Governing Law. The substantive laws of the State of
Florida and the applicable federal laws of the United States of
America shall govern the validity, construction, enforcement and
interpretation of this Agreement.
12.9 Confidentiality. Buyer agrees that any and all
information about the Project, whether provided by Seller or by
Buyer's consultants, will be held in the strictest confidence and
that Buyer will not directly or indirectly disclose or permit
anyone else to disclose the information to any person, firm or
entity not involved with the Transaction, except as may be required
by law or to a prospective assignee of Buyer's rights hereunder or
in any litigation between Seller and Buyer wherein such information
is relevant. Buyer agrees that it will not use any information
about the Project in a manner detrimental to the interest of
Seller.
Buyer and Seller each agree not to disclose the monetary terms
and conditions of this Transaction without the prior written
consent of the other, but this shall not prevent each party from
issuing a press release and/or other publicity announcing the
Transaction and/or the Closing provided that (a) such press release
or other publicity does not disclose the monetary terms and
conditions of this Transaction and (b) the other party hereto shall
have the right to approve such press releases and publicity, such
approval not to be unreasonably withheld, delayed or conditioned.
12.10 Full Execution. This Agreement shall be deemed
fully executed and binding upon Buyer and Seller if, as and when
both Buyer and Seller have executed this Agreement as set forth
below. Agents' execution of this Agreement shall not be required
for full execution of this Agreement but shall merely evidence
their respective acceptance of the provisions set forth in herein
which specifically relate to them.
12.11 Termination. At any time that this Agreement
states that Seller shall be entitled to the Total Earnest Money
Deposit, (a) the Initial Earnest Money Deposit or the Total Earnest
Money Deposit, as applicable, shall be paid to Seller within five
(5) days after the Expiration Date (as defined in the Escrow
Agreement executed by Buyer and Seller on the date hereof) (the
"Escrow Agreement"), and (b) Seller shall also be entitled at that
same time to direct the Escrow Agent to draw on the Letter of
Credit. At any time that this Agreement states that Buyer shall be
entitled to the Total Earnest Money Deposit, the Initial Earnest
Money Deposit or the Total Earnest Money Deposit, as applicable,
shall be paid to Buyer within five (5) days after the Expiration
Date (as defined in the Escrow Agreement). Upon receipt of the
proceeds of the Letter of Credit by Escrow Agent, Escrow Agent
shall deliver such proceeds to Seller in accordance with the terms
of the Escrow Agreement. Upon termination of this Agreement, the
terms of this Paragraph 12.11 shall survive.
- 32 -
<PAGE>
12.12 1995 Tax Appeal. Seller shall have the right to
file and prosecute a real property or personal property tax appeal
relating to 1995 taxes after the Closing, subject to Buyer's prior
written consent, which consent shall not be unreasonably withheld,
delayed or conditioned.
12.13 Seller's Knowledge. All references in this
Agreement to Seller's "actual knowledge" or "knowledge", or to the
"best of Seller's knowledge", whether capitalized or not, shall
refer only to the current (i.e., upon execution of this Agreement
and at Closing) actual knowledge of the Designated Employees (as
hereinafter defined) of the Atlanta, Georgia office of Prudential
Real Estate Investors with due inquiry being made by the Designated
Employees (as hereinafter defined) of Gumberg Asset Management
Corp., the manager of the Project, and shall not be construed to
refer to the knowledge of any other office, officer, agent or
employee of Seller or any affiliate thereof or to impose upon such
Designated Employees any duty to investigate the matter to which
such actual knowledge, or the absence thereof, pertains, including
but not limited to the contents of the files, Documents and
materials made available to or disclosed to Buyer; Seller
affirmatively stating that neither it nor the Designated Employees
have reviewed such files, Documents, or materials and that Seller's
representations and warranties hereunder are made ONLY as to the
actual knowledge of the Designated Employees and NOT as to or based
upon the contents of any such files, Documents, materials or any
other files, documents or materials in any other office of Seller.
For purposes of this Agreement, the term "Designated Employees"
shall refer to Collete English Dixon and N. W. Burt.
12.14 Reporting of Foreign Investment. Each party agrees
to comply with any and all reporting requirements applicable to
such party regarding the Transaction which are set forth in any
law, statute, ordinance, rule, regulation, order or determination
of any governmental authority, including but not limited to The
International Investment Security Act of 1976, The Agricultural
Foreign Investment Disclosure Act of 1978, The Foreign Investment
in Real Property Tax Act of 1980 and the Tax Reform Act of 1984 and
further agrees upon request of a party to furnish to the other
party with evidence of such compliance.
12.15 Suspension of Marketing. Seller agrees to remove
the Project from the market until Closing unless this Agreement is
terminated and during this time, Seller will not solicit or pursue
any other offers for the purchase of the Project.
12.16 Radon Gas. Radon is a naturally occurring
radioactive gas that when it is accumulated in a building in
sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be
obtained from the local County Public Health Center.
12.17 Hart-Scott-Rodino. For purposes of this Agreement,
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvement
Act of 1976, as amended, and the rules and regulations promulgated
thereunder. Buyer and Seller agree to fully disclose all required
information and
- 33 -
<PAGE>
documents and to take all steps necessary to file
under the HRS Act in connection with the Transaction within fifteen
(15) days after the full execution hereof. Buyer and Seller shall
each pay fifty (50%) percent of any required filing fee in
connection with the filings necessary under the HRS Act. Buyer and
Seller agree to delay the Closing Date as necessary for a period of
time, if any, such that all required filings and notifications
under the HSR Act are made (including the production of any
required additional information or documents) and the required
waiting period applicable to the Transaction, as contemplated by
the HSR Act, shall have expired. It shall be a condition of Closing
the Transaction that (i) no legal action or proceeding shall have
been instituted or threatened by the United States Department of
Justice or the Federal Trade Commission challenging the
Transaction, or (ii) there shall be no outstanding order (including
a temporary restraining order) of any court or governmental agency
having jurisdiction over either of the parties hereto enjoining or
otherwise preventing consummation of the Transaction (the actions
in subparagraphs (i) and (ii) shall collectively be referred to as
"Enforcement Actions"). Notwithstanding anything else contained
herein, but subject to Buyer's extension rights in Paragraph 5.1,
if on December 31, 1995 the above-referenced waiting period has not
then expired or if an Enforcement Action has commenced and is
continuing, then either party hereto shall have the right to
terminate this Agreement by delivering written notice of such
election to the other party hereto and the Escrow Agent until the
earlier to occur of (i) the expiration of the waiting period
without the commencement of any Enforcement Action, (ii) the
termination of all active Enforcement Actions or (iii) the Closing
Date. Upon such termination, the Escrow Agent shall return in
accordance with the terms of the Escrow Agreement the portion of
the Total Earnest Money Deposit then paid, including, without
limitation, the Letter of Credit, to Buyer, the Documents shall be
returned to the Seller, this Agreement shall be null and void
(except for any indemnity of Buyer pursuant to Paragraph 4.2
hereof) and neither party shall have any further obligations
hereunder.
12.18 Jurisdiction. Except for a forcible entry and
detainer suit (or similar suit for possession of the Project) filed
in the applicable Court in Broward County, the parties hereto
hereby each waive any right to file any action in connection with
this Agreement in State Courts for the State where the Project is
located and agree to make the forum for any dispute resolution
Federal District Court in the County where the Project is located,
provided, however, that such Court otherwise has jurisdiction in
the matter.
12.19 Insurance. Seller agrees to maintain property and
liability insurance on the Project until the Closing in the same
amounts and under the same terms and conditions as Seller currently
maintains for the Project. A copy of a certificate of insurance
evidencing the current all risk insurance coverage maintained by
Seller for the Project is attached hereto as Exhibit "H".
12.20 Severability. If any provision of this Agreement
is deemed invalid or unenforceable by a court of competent
jurisdiction, such provision shall be ineffective to the extent of
such invalidity or unenforceability only, without invalidating the
remainder of such provision or the remaining provisions of this
Agreement.
- 34 -
<PAGE>
12.21 It shall be a condition of Buyer's obligation to
close the transaction contemplated hereunder that:
(a) Seller has complied with all of its material obligations
hereunder in accordance with the terms and conditions hereof;
(b) There has been no substantial change in the physical
condition (including environmental condition) of the Project
(excluding normal wear and tear and casualty damage except as set
forth in Paragraph 10.1 hereof) since the last day of the
Inspection Period; and
(c) Since the end of the Inspection Period, there have been
no bankruptcies or material defaults of any Tenants.
If the above conditions have not be fulfilled on the Closing
Date, Buyer shall have the right to terminate this Agreement by
delivering written notice to Seller and the Escrow Agent whereupon
(i) the Escrow Agent shall return the Total Earnest Money Deposit
in accordance with the terms of the Escrow Agreement, including,
without limitation, the Letter of Credit, (ii) the Documents shall
be returned to the Seller, (iii) this Agreement shall be null and
void (except for any indemnity of Buyer pursuant to Paragraph 4.2
hereof) and (iv) neither party shall have any further obligations
hereunder.
- 35 -
<PAGE>
This Agreement has been executed by the parties hereto in
multiple counterparts and is effective as of the date of Seller's
execution hereof as set forth below.
SELLER:
RIDGE PLAZA JOINT VENTURE, a Florida
Joint Venture,
By: Prudential Acquisition Fund I, L.P.,
a Delaware limited partnership,
joint venturer
/s/ Martha L. Hardeman By: Prudential Realty Partnerships, Inc.,
Name: Martha L. Hardeman a Delaware corporation,
general partner
By: /s/ Deborah C. Proctor
Name: Deborah C. Proctor
/s/ Colette English Dixon Its: Vice President
Name: Colette English Dixon
By: Prudential Realty Acquisition Fund II, L.P.,
a Delaware limited partnership,
joint venturer
/s/ Martha Hardeman By: Prudential Realty Partnerships, Inc.,
Name: Martha Hardeman A Delaware corporation,
general partner
By: /s/ Deborah C. Proctor
Name: Deborah C. Proctor
/s/ Colette English Dixon Its: Vice President
Name: Colette English Dixon
BUYER:
PIRP, INC., a Delaware corporation
/s/ Matthew D. Marquis By: /s/ F. Jonathan Dracos
Name: Matthew D. Marquis Name: F. Jonathan Dracos
Its: Vice President
/s/ Elizabeth Schaffer
Name: Elizabeth Schaffer
- 36 -
<PAGE>
The undersigned representatives of the Agent hereby execute this
Agreement for the sole and limited purposes set forth in Paragraph
5.4 hereof and to acknowledge receipt of a copy of this Agreement
and to bind itself and Agent's employees to comply with the
confidentiality requirement of Paragraph 12.9 hereof.
Sonnenblick Goldman Company Gumberg Asset Management Corp.
By: /s/ Manuel De Zarraga By: /s/ Andrew Gumberg
Name: Manuel De Zarraga Name: Andrew Gumberg
Title: Managing Director Title: President and Chief Executive Officer
Address: One Biscayne Tower Address: 3200 N. Federal Hwy
Suite 1800 Ft. Lauderdale, Fl
Miami, Florida 33165 33306
Tax I.D. Number: 13-3561475 Tax I.D. Number: 65-0485569
Date of Execution: 11/8/95 Date of Execution: 11/9/95
- 37 -
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
That property generally known as Ridge Plaza comprising Parcels I-
V, described as follows:
PARCEL I:
Parcel "Q" , of RIDGE PLAZA, according to the Plat thereof on
file in the office of the Clerk of the Circuit Court in and for
Broward County, Florida, recorded in Plat Book 116, Page 27.
PARCEL II:
The easterly 585.00 feet of Tract A of Pine Island Ridge
Section 2 as shown on plat recorded in Plat Book 83, Page 20 of the
public records of Broward County, Florida; the Westerly boundary
thereof being common with the Easterly boundary of a 100' canal
easement as shown on said plat of Pine Island Ridge Section 2.
PARCEL III:
Tract "A", of ROUTE 84 SQUARE, according to the Plat thereof
on file in the Office of the Clerk of the Circuit Court in and for
Broward County, Florida, recorded in Plat Book 117, Page 11.
PARCEL IV:
TOGETHER WITH:
Rights and privileges granted in Easement recorded in Official
Records Book 12505, page 317 of the Public Records of Broward
County, Florida, which rights are an appurtenance to Parcel I,
Parcel II and Parcel III. Subject to the terms, provisions and
conditions set forth in said instrument.
PARCEL V:
TOGETHER WITH:
Rights and privileges granted in Easement recorded in Official
Records Book 11032, page 313 of the Public Records of Broward
County, Florida, which rights are an appurtenance to Parcel I,
Parcel II and Parcel III. Subject to the terms, provisions and
conditions set forth in said instrument.
- 1 -
<PAGE>
That property generally known as Pine Island Plaza comprising
Parcels VI and VII, described as follows:
PARCEL VI:
Tracts "P" and "C" of PINE ISLAND PLAZA ASSOCIATES, according
to the Plat thereof recorded in Plat Book 115, at Page 35, of the
Public Records of Broward County, Florida.
PARCEL VII:
TOGETHER WITH:
Rights and privileges granted in Easement recorded in Official
Records Book 10751, page 464 of the Public Records of Broward
County, Florida, which rights are an appurtenance to Parcel VI.
Subject to the terms, provisions and conditions set forth in said
instrument.
- 2 -
<PAGE>
<PAGE>
EXHIBIT "A-1"
IRREVOCABLE LETTER OF CREDIT
Irrevocable Letter of Credit No. _____ Date:_________________, 1995
Amount: $_____________
Dear _____________:
_________________________________________ ("Issuer") hereby
authorizes Shear, Newman, Hahn & Rosenkranz, P.A., as escrow agent
("Beneficiary") to draw on Issuer for the account of
("Account Holder") ONE MILLION SEVEN HUNDRED TEN THOUSAND
AND NO/100 DOLLARS ($1,710,000.00) by means of Beneficiary's sight
draft on Issuer accompanied by this original letter of credit or a
copy of this letter of credit. Partial drawings are not permitted.
It is a condition precedent to the payment of the draft hereunder
that this original signed letter of credit or a copy of this letter
of credit be surrendered to Issuer by Beneficiary along with such
draft and certificate. The draft must be marked "Drawn under
Irrevocable Letter of Credit No. of
_______________________________________ dated _____________,
19___." This Letter of Credit is nonassignable and nontransferable.
Issuer hereby agrees with Beneficiary that a draft drawn under and
in compliance with the terms of this letter of credit will be duly
honored upon presentation at Issuer's offices on or before the
close of business by Issuer on ________________, 19__, at which
time this letter of credit shall expire. If the expiration date
hereof shall not be one of Issuer's regular business days, such
expiration date shall be extended to the next following business
day of Issuer. This Letter of Credit shall be governed by the law
of the State of Florida and applicable federal law and, except as
otherwise expressly stated herein, incorporates and is subject to
the "Uniform Customs and Practice for Documentary Credits" (1993
Revision, International Chamber of Commerce Publication No. 500).
[ISSUER]
By:
Name:
Title:
- 1 -
<PAGE>
<PAGE>
EXHIBIT "B"
EXCEPTIONS TO TITLE
1. Taxes and assessments for the year 1995 and subsequent years,
and subsequent assessments for prior years due to change in
land usage, ownership or otherwise.
2. Rights of tenants in possession under any of the Leases (a
list of which shall be provided by Seller at the beginning of
the Inspection Period and again at Closing).
3. Any state of facts which the Updated Surveys show, or if
Purchaser does not obtain Updated Surveys, any state of facts
which an accurate survey or a personal inspection of the
Project might disclose and any easements or claims of easement
not shown by the public records. The term Updated Surveys
shall have the same meaning herein as in Paragraph 3.1 of the
Agreement to which this exhibit is attached.
4. Any claim that any portion of the Project is sovereign lands
of the State of Florida, including, submerged, filled or
artificially exposed lands and lands accreted to such lands,
and any adverse claim due to riparian rights, if any.
5. Restrictions, limitations and easements as shown on the Plat
of Ridge Plaza, recorded in Plat Book 116, at Page 27. (As to
Parcel I )
6. Restrictions, limitations and easements as shown on the Plat
of Pine Island Ridge Section Two, recorded in Plat Book 83, at
Page 20. (As to Parcel II )
7. Restrictions, limitations and easements as shown on the Plat
of Route 84 Square, recorded in Plat Book 117, at Page 11. (As
to Parcel III )
8. Phosphate, minerals, metals and petroleum reservations
contained in Deed No. 16811 from the Trustees of the Internal
Improvement Fund of the State of Florida dated September 22,
1919 and recorded in Deed Book 10, Page 113. (As to Parcels I
through V)
Note: release of additional reservations in said deed, and
release of the rights of entry and exploration arising out of
said deed have been released by virtue of document filed in
Official Records Book 11495, at Page 260.
9. Reservations for canal, drainage, phosphate, minerals, metals
and petroleum contained in Deed No. 16405 from the Trustees of
the Internal Improvement Fund of the State of Florida recorded
in Deed Book 139, Page 466 of Dade County, Florida. (As to
Parcels I through V)
Note: release of additional reservations in said deed, and
release of the rights of entry and exploration arising out of
said deed have been released by virtue of document filed in
Official Records Book 11495, at Page 260.
- 1 -
<PAGE>
10. Terms and provisions in that certain Maintenance Agreement
with Central Broward Drainage District dated August 17, 1983,
filed August 18, 1983, in Official Records Book 11076, at Page
803. (As to Parcels I through V)
11. Terms and provisions in that certain Maintenance Agreement
with Central Broward Drainage District dated August 17, 1983
and filed August 18, 1983 in Official Records Book 11076, at
Page 809. (As to Parcels I through V)
12. Terms, provisions and easements contained in that certain
Developer Agreement with the City of Sunrise, Florida dated
July 29, 1983, filed August 17, 1983, in Official Records Book
11073, at Page 429. (As to Parcel I)
13. Restrictions and limitations pertaining to access, ingress,
egress, light, air and view between the property taken by
order of taking for right-of-way of State Road 84 as filed in
Official Records Book 8565, at Page 981 and ratified by Final
Judgment as filed in Official Records Book 9621, at page 329.
(As to Parcel I)
14. Easement for water and sewer services filed in Official
Records Book 11704, at Page 510. (As to Parcels I through V)
15. Unrecorded easement to Florida Power & Light Company dated
December 19, 1983 (Copy attached to Warranty Deed filed in
Official Records Book 12562, at Page 949). (As to Parcels I
through V)
16. Canal Easement granted to Broward County, dated December 15,
1972, filed March 8, 1973 in Official Records Book 5192, at
Page 899. (As to Parcels I through V)
17. Easement granted to Cable TV Fund 14-A/B Venture a Colorado
Joint Venture, dated January 15, 1992, filed May 5, 1992 in
Official Records Book 19450, at Page 335. (As to Parcels I
through V)
18. Terms and provisions of that certain lease by and between
Ridge Associates, Ltd., (Lessor) and American Multi-Cinema,
Inc., a Missouri corporation, (Lessee), as evidenced by that
Memorandum of Lease dated October 2, 1984 and filed April 11,
1985 in Official Records Book 12459, at Page 269 together with
Non-disturbance and Attornment Agreement in Official Records
Book 12459, Page 275, and together with Memorandum of
Management Agreement, dated February 23, 1989, and filed in
Official Records Book 16271, at Page 717 and Official Records
Book 18428, at Page 226 and a Memorandum of First Right of
Refusal, dated February 23, 1989, and filed in Official
Records Book 16271, at Page 723 and Official Records Book
18428, at Page 216. (As to Parcels I through V)
19. Terms and provisions of Agreements with Broward County
relating to nonvehicular ingress and egress lines filed
October 25, 1990 in Official Records Book 17863, at Page 198,
and filed March 15, 1991 in Official Records Book 18221, at
Page 100. (As to Parcel I)
20. Easement granted to Broward County, dated August 8, 1990,
filed April 3, 1991 in Official Records Book 18270, at Page
248. (As to Parcels I through V)
- 2 -
<PAGE>
21. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Terre Neuve Corp., d/b/a Terre Neuve, (Tenant),
as evidenced by that Memorandum of Lease dated June 1, 1994
and filed August 11, 1994 in Official Records Book 22486, at
Page 481. (As to Parcels I through V)
22. Terms and provisions of that certain lease and amendments
thereto by and between Ridge Plaza Joint Venture, a Florida
general partnership (Landlord) and The Florida Billiard Club,
Inc., a Florida corporation, (Tenant), as evidenced by that
Memorandum of Lease dated May 19, 1989 and filed June 20, 1989
in Official Records Book 16530, at Page 166; and as evidenced
by that Memorandum of Lease dated September 27, 1991 and filed
January 29, 1992 in Official Records Book 19122, at Page 13;
and as evidenced by that Memorandum of Additional Space and
Lease Modification Agreement filed March 27, 1990 in Official
Records Book 17278, at Page 581. (As to Parcels I through V)
23. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Tasty Yogurt of Florida, Inc., (Tenant), as
evidenced by that Memorandum of Lease dated March 2, 1989 and
filed March 23, 1989 in Official Records Book 16293, at Page
463. (As to Parcels I through V)
24. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Gold Hands, Inc., a Florida corporation,
(Tenant), as evidenced by that Memorandum of Lease dated April
29, 1989 and filed August 24, 1989 in Official Records Book
16706, at Page 89. (As to Parcels I through V)
25. Terms and provisions of that certain lease dated May 22, 1985,
as modified, by and between Ridge Plaza Joint Venture, a
Florida general partnership (Landlord) and Richard Moore
d/b/a/ Prime Cut Hair Design, (Tenant), as evidenced by that
Memorandum of Lease dated March 7, 1990 and filed September
10, 1990 in Official Records Book 17743, at Page 516. (As to
Parcels I through V)
26. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Dayco-Astaldi Construction Corporation of
Florida, (Tenant), as evidenced by that Memorandum of Lease
dated March 21, 1991 and filed April 22, 1991 in Official
Records Book 18321, at Page 833 and that Memorandum of
Additional Space and Lease Modification Agreement filed
December 3, 1992 in Official Records Book 20129, at Page 55.
(As to Parcels I through V)
27. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Florida Amusements and Entertainment, Inc.,
(Tenant), as evidenced by that Memorandum of Lease dated
January 22, 1991 and filed May 31, 1991 in Official Records
Book 18428, at Page 462; and as evidenced by that Memorandum
of Additional Space and Lease Modification Agreement filed
September 21, 1993 in Official Records Book 21143, Page 636.
(As to Parcels I through V)
28. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Cellular USA, Inc., (Tenant), as evidenced by
- 3 -
<PAGE>
that Memorandum of Lease dated September 9, 1991 and filed
October 15, 1991 in Official Records Book 18827, at Page 853.
(As to Parcels I through V)
29. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Ensemble Stage Company, Inc., (Tenant), as
evidenced by that Memorandum of Lease dated December 23, 1991
and filed March 16, 1992 in Official Records Book 19270, at
Page 140. (As to Parcels I through V)
30. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Casual Motor Sports, Inc. d/b/a J&J Raceway,
(Tenant), as evidenced by that Memorandum of Lease dated
October 13, 1992 and filed November 24, 1992 in Official
Records Book 20100, at Page 473. (As to Parcels I through V)
31. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Mr. B's Enterprises, Inc. d/b/a Mr. B's Pasta
& Pizza, (Tenant), as evidenced by that Memorandum of Lease
dated July 13, 1993 and filed October 4, 1993 in Official
Records Book 21210, at Page 157. (As to Parcels I through V)
32. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Ridgeworld, Inc., d/b/a Laser Storm, (Tenant),
as evidenced by that Memorandum of Lease dated July 12, 1993
and filed October 12, 1993 in Official Records Book 21250, at
Page 113. (As to Parcels I through V)
33. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Dorfco, Inc., d/b/a Uncle Funny's Comedy Club,
(Tenant), as evidenced by that Memorandum of Lease dated
August 3, 1993 and filed October 29, 1993 in Official Records
Book 21329, at Page 603. (As to Parcels I through V)
34. Terms, provisions and restrictions in that certain lease by
and between Ridge Plaza Joint Venture, a Florida general
partnership (Landlord) and Leaps & Bounds, Inc., a Delaware
corporation, (Tenant), as evidenced by that Memorandum of
Lease dated October 14, 1993 and filed November 18, 1993 in
Official Records Book 21407, at Page 112. (As to Parcels I
through V)
35. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Cable Ad Sales, Inc., d/b/a Cable Ad Sales,
(Tenant), as evidenced by that Memorandum of Lease dated
October 14, 1993 and filed January 10, 1994 in Official
Records Book 21622, at Page 176. (As to Parcels I through V)
36. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Twice as Neat, Inc., d/b/a Twice as Neat,
(Tenant), as evidenced by that Memorandum of Lease dated
December 6, 1993 and filed March 18, 1994 in Official Records
Book 21889, at Page 709. (As to Parcels I through V)
- 4 -
<PAGE>
37. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Abe Ventures, Inc., d/b/a Muddy Waters Cafe,
(Tenant), as evidenced by that Memorandum of Lease dated March
14, 1994 and filed August 8, 1994 in Official Records Book
22471, at Page 895. (As to Parcels I through V)
38. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Skater's Edge, Inc., d/b/a Skater's Edge,
(Tenant), as evidenced by that Memorandum of Lease dated
February 16, 1995 and filed March 14, 1995 in Official Records
Book 23232, at Page 60. (As to Parcels I through V)
39. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Del-Fa Corporation d/b/a Pine Yogurt, (Tenant),
as evidenced by that Memorandum of Lease dated October 6, 1993
and filed January 10, 1994 in Official Records Book 21622, at
Page 173. (As to Parcels I through V)
40. Terms and provisions of that certain lease by and between
Ridge Associates Ltd., a Florida limited partnership
(Landlord) and Jerrico, Inc., (Tenant), as evidenced by that
Memorandum of Lease dated February 25, 1985 and filed July 2,
1985 in Official Records Book 12654, at Page 48; Informational
Note: Mortgage filed May 25, 1990 in Official Records Book
17452, at Page 242, as such lease was sublet to Fondue Garden.
(As to Parcels I through V)
41. Terms and provisions of that certain lease dated September 26,
1983, as amended, by and between Ridge Plaza Joint Venture,
a Florida general partnership (Landlord) and Oretsky
Enterprises, Inc., d/b/a Ridge Plaza Tire and Auto Center,
(Tenant), as evidenced by that Memorandum of Lease filed
November 12, 1994 in Official Records Book 22823, at Page
171. (As to Parcels I through V)
42. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Paper Station, Inc. d/b/a Party Depot,
(Tenant), as evidenced by that Memorandum of Lease dated March
4, 1994 and filed June 27, 1994 in Official Records Book
22311, at Page 253. (As to Parcels I through V)
43. Easements, restrictions and limitations as shown on the Plat
of Pine Island Plaza Associates, as recorded in Plat Book 115,
at Page 35. (As to Parcels VI and VII)
44. Easement granted to Florida Power & Light Company, dated
August 5, 1983, filed May 13, 1985 in Official Records Book
12533, at Page 861. (As to Parcels VI and VII)
45. Easement to the City of Sunrise filed September 14, 1983 in
Official Records Book 11134, at Page 957. (As to Parcels VI
and VII)
46. Phosphate, minerals, metals and petroleum reservations
contained in Deed No. 16811 from the Trustees of the Internal
Improvement Fund of the State of Florida dated September 22,
1919 and recorded in Deed Book 10, Page 113. (As to Parcels VI
and VII)
- 5 -
<PAGE>
Note: release of additional reservations in said deed, and
release of the rights of entry and exploration arising out of
said deed have been released by virtue of documents filed
October 13, 1982 in Official Records Book 10452, at Page 752,
and filed March 1, 1983 in Official Records Book 10700, at
Page 55.
47. Utility Easement to City of Sunrise filed October 16, 1978 in
Official Records Book 7820, at Page 647. (As to Parcels VI and
VII)
48. Terms and provisions of Developer Agreement between the City
of Sunrise and Pine Island Associates, Ltd., a Florida limited
partnership, dated February 25, 1983 and filed March 23, 1983
in Official Records Book 10744, at Page 837. (As to Parcels VI
and VII)
49. Easement to Pine Island Associates, Ltd., a Florida limited
partnership filed March 25, 1983 in Official Records Book
10751, at Page 464. (As to Parcels VI and VII)
50. Restrictions and limitations pertaining to access, ingress,
egress, light, air and view between the property taken by
order of taking for right-of-way of State Road 84 as filed in
Official Records Book 8565, at Page 981. (As to Parcels VI and
VII)
51. Agreements with Broward County relating to nonvehicular
ingress and egress lines between Broward County and Ridge
Plaza Joint Venture filed October 8, 1990 in Official Records
Book 17820, at Page 747 and filed March 15, 1991 in Official
Records Book 18221, at Page 109. (As to Parcels VI and VII)
52. Road Easement from Ridge Plaza from Ridge Plaza Joint Venture
to Broward County filed April 3, 1991 in Official Records Book
18270, at Page 244. (As to Parcels VI and VII)
53. Cable Television Easement between Ridge Plaza Joint Venture,
a Florida general partnership, and Cable TV Fund 14-A/B
Venture filed May 5, 1992 in Official Records Book 19450, at
Page 330. (As to Parcels VI and VII)
54. Unrecorded Easement in favor of Florida Power & Light Company
dated August 5, 1983 contained as an exhibit to that certain
Warranty Deed filed May 24, 1985 Official Records Book 12562,
at Page 964. (As to Parcels VI and VII)
55. Cross Parking and Access Agreement filed in Official Records
Book 11550, at Page 106 as modified by that Supplement to
Cross Parking And Access Easement filed March 28, 1985 in
Official Records Book 12423, at Page 701. (As to Parcels VI
and VII)
56. Lease between Ridge Plaza Joint Venture, a Florida general
partnership (Landlord) and Homeowners Warehouse, Inc., a
Florida corporation (Tenant) a memorandum of which was filed
August 25, 1986 in Official Records Book 13673, at Page 874;
as assigned to Builders Square, Inc., a Delaware corporation,
filed October 16, 1986 in Official Records Book 13820, at Page
94. (As to Parcels VI and VII)
57. Terms and provisions of that certain lease by and between Pine
Island Associates Ltd., a Florida limited partnership
(Landlord) and Publix Super Markets, Inc. (Tenant), as
- 6 -
<PAGE>
evidenced by that Memorandum of Lease dated January 21, 1983
and filed July 5, 1983 in Official Records Book 10972, at
Page 284; (As to Parcels VI and VII)
58. Terms and provisions of that certain lease by and between Pine
Island Associates Ltd., a Florida limited partnership
(Landlord) and American Savings and Loan Association of
Florida, a Florida corporation (Tenant), as evidenced by that
Memorandum of Lease dated April 26, 1983 and filed July 5,
1983 in Official Records Book 10927, at Page 451; (As to
Parcels VI and VII)
59. Terms and provisions of that certain lease with Fortune
Financial Group, Inc., as successor tenant, as evidenced by
that Assignment and Assumption Agreement to Lease filed
January 28, 1986 in Official Records Book 13140, at Page 941;
and as further evidenced by that Assignment and Assumption
Agreement to Lease filed January 24, 1986 in Official Records
Book 13134, at Page 736; as affected by and further evidenced
by that Assignment and Assumption Agreement filed March 4,
1991 in Official Records Book 18184, Page 769 wherein American
Savings and Loan Association of Florida is assignee; and that
Memorandum of Lease filed March 27, 1991 in Official Records
Book 18251, at Page 85. (As to Parcels VI and VII)
60. Terms and provisions of that certain lease by and between Pine
Island Associates Ltd., a Florida limited partnership
(Landlord) and Mobil Oil Corporation, a New York corporation
(Tenant), as evidenced by that Memorandum of Lease dated May
27, 1983 and filed February 21, 1984 in Official Records Book
11491, at Page 445; and that Starter Agreement filed March 5,
1984 in Official Records Book 11521, at Page 875. (As to
Parcels VI and VII)
61. Terms and provisions of that certain lease by and between Pine
Island Associates Ltd., a Florida limited partnership
(Landlord) and Garcia's of Scottsdale, Inc., a Delaware
corporation (Tenant), as evidenced by that Memorandum of Lease
dated March 1, 1983 and filed March 15, 1984 in Official
Records Book 11550, at Page 854; (As to Parcels VI and VII)
62. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Erblat Jewelers, Inc. d/b/a Golden Earrings
(Tenant), as evidenced by that Memorandum of Lease filed
February 3, 1988 in Official Records Book 15163, at Page 771.
(As to Parcels VI and VII)
63. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Dr. James A. Zurfluh d/b/a Pine Island Dental
(Tenant), as evidenced by that Memorandum of Lease filed
September 2, 1988 in Official Records Book 15751, at Page 67.
(As to Parcels VI and VII)
64. Terms and provisions of that certain lease and any
modifications thereto by and between Ridge Plaza Joint
Venture, a Florida general partnership (Landlord) and
Michele's Video, Inc. (Tenant), as evidenced by that
Memorandum of Lease filed October 3, 1988 in Official Records
Book 15834, at Page 552; also that certain Memorandum of Lease
from Landlord to Video Extravaganza, Inc., d/b/a Michele's
Video filed June 16, 1993 in Official Records Book 20785, at
Page 926. (As to Parcels VI and VII)
- 7 -
<PAGE>
65. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Connilyn Corporation d/b/a Interiors At Pine
Island (Tenant), as evidenced by that Memorandum of Lease
filed October 26, 1988 in Official Records Book 15900, at Page
173. (As to Parcels VI and VII)
66. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Broward Pizza, Inc. d/b/a Casino's Pizza
(Tenant), as evidenced by that Memorandum of Lease filed
December 13, 1989 in Official Records Book 17003, at Page 667,
as assigned to Papa Leone's. (As to Parcels VI and VII)
67. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Good Health Enterprises, Inc. (Tenant), as
evidenced by that Memorandum of Lease filed June 4, 1990 in
Official Records Book 17473, at Page 416. (As to Parcels VI
and VII)
68. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Arman of Broward, Inc. d/b/a Pine Natural Foods
(Tenant), as evidenced by that Memorandum of Lease filed
January 18, 1991 in Official Records Book 18078, at Page 825.
(As to Parcels VI and VII)
69. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Robert C. Balandis, D.P.M., P.A. (Tenant), as
evidenced by that Memorandum of Lease filed July 19, 1991 in
Official Records Book 18578, at Page 207. (As to Parcels VI
and VII)
70. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Davie Travel Agency, Inc. d/b/a Davie
International Travel (Tenant), as evidenced by that Memorandum
of Lease filed March 12, 1992 in Official Records Book 19258,
at Page 137. (As to Parcels VI and VII)
71. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Time For Kids, Inc. d/b/a Fun Factory (Tenant),
as evidenced by that Memorandum of Lease filed June 9, 1992 in
Official Records Book 19565, at Page 433. (As to Parcels VI
and VII)
72. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Catania, Inc. (Tenant), as evidenced by that
Memorandum of Lease filed August 18, 1992 in Official Records
Book 19790, at Page 270. (As to Parcels VI and VII)
73. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Pine Island Ridge Rentals & Sales, Inc. d/b/a
Pine Island Ridge Rentals & Sales (Tenant), as evidenced by
that Memorandum of Lease filed November 23, 1992 in Official
Records Book 20098, at Page 150. (As to Parcels VI and VII)
74. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and JB & Sons, Inc. d/b/a Greeting Card Outlet
- 8 -
<PAGE>
(Tenant), as evidenced by that Memorandum of Lease filed April
6, 1993 in Official Records Book 20523, at Page 863. (As to
Parcels VI and VII)
75. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Loralex Learning Corp. d/b/a Sylvan Learning
Center (Tenant), as evidenced by that Memorandum of Lease
filed April 8, 1993 in Official Records Book 20533, at Page
111. (As to Parcels VI and VII)
76. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Cosmetics, Inc. d/b/a To Be Determined
(Tenant), as evidenced by that Memorandum of Lease filed
August 20, 1993 in Official Records Book 21008, at Page 966.
(As to Parcels VI and VII)
77. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Famous Restaurants, Inc. (f/k/a Garcia's of
Scottsdale, Inc.) d/b/a Garcia's (Tenant), as evidenced by
that Memorandum of Lease filed September 28, 1993 in Official
Records Book 21174, at Page 47. (As to Parcels VI and VII)
78. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and J.Y. Song Tae Kwon Do Center, Inc. d/b/a J.Y.
Song Tae Kwon Do Center (Tenant), as evidenced by that
Memorandum of Lease filed October 4, 1993 in Official Records
Book 21210, at Page 160. (As to Parcels VI and VII)
79. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Tark's, Inc. d/b/a Tark's of Davie (Tenant), as
evidenced by that Memorandum of Lease filed October 11, 1993
in Official Records Book 21245, at Page 400. (As to Parcels VI
and VII)
80. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Warrick #5, Inc. d/b/a Warrickleen (Tenant), as
evidenced by that Memorandum of Lease filed October 18, 1993
in Official Records Book 21277, at Page 552. (As to Parcels VI
and VII)
81. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Electrolux Corporation d/b/a Electrolux Corp.
(Tenant), as evidenced by that Memorandum of Lease filed
October 21, 1993 in Official Records Book 21296, at Page 904.
(As to Parcels VI and VII)
82. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Indochine Restaurant, Inc. d/b/a Indochine
(Tenant), as evidenced by that Memorandum of Lease filed April
15, 1994 in Official Records Book 22011, at Page 663. (As to
Parcels VI and VII)
83. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Linen Supermarket, Inc., a Florida corporation,
d/b/a Linen Supermarket (Tenant), as evidenced by that
Memorandum of Lease filed May 23, 1994 in Official Records
Book 22172, at Page 445. (As to Parcels VI and VII)
- 9 -
<PAGE>
84. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Lite Snacks Corp. d/b/a D'Lites Emporium
(Tenant), as evidenced by that Memorandum of Lease filed June
22, 1994 in Official Records Book 22292, at Page 988. (As to
Parcels VI and VII)
85. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and The LJ Diner Corp. d/b/a LJ Diner (Tenant), as
evidenced by that Memorandum of Lease filed July 3, 1994 in
Official Records Book 22334, at Page 926; and as further
evidenced by that Collateral Assignment of Lease filed January
26, 1995 in Official Records Book 23079, at Page 615. (As to
Parcels VI and VII)
86. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and The Price is Right of Davie, Inc. d/b/a The
Price is Right (Tenant), as evidenced by that Memorandum of
Lease filed August 31, 1994 in Official Records Book 22557, at
Page 11. (As to Parcels VI and VII)
87. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Cobbler's III, Inc. d/b/a Cobbler's West
(Tenant), as evidenced by that Memorandum of Lease filed
August 31, 1994 in Official Records Book 22557, at Page 14.
(As to Parcels VI and VII)
88. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Triple S of Pompano, Inc. d/b/a Silk, Silk,
Silk (Tenant), as evidenced by that Memorandum of Lease filed
October 20, 1994 in Official Records Book 22740, at Page 603.
(As to Parcels VI and VII)
89. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Creative Hairdressers, Inc. d/b/a Hair Cuttery
(Tenant), as evidenced by that Memorandum of Lease filed April
26, 1995 in Official Records Book 23376, at Page 646. (As to
Parcels VI and VII)
90. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Chan Brothers, Inc., a/k/a Chans (Tenant), as
evidenced by that Memorandum of Lease filed February 7, 1994
in Official Records Book 21732, at Page 203; (As to Parcels VI
and VII)
91. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and B& T Bagel, Inc. d/b/a Pine Island Bagels
(Tenant), as evidenced by that Memorandum of Lease filed May
12, 1993 in Official Records Book 20666, at Page 10; and
Memorandum of Amendment to Lease Agreement filed December 3,
1988 in Official Records Book 16001, at Page 392 (As to
Parcels VI and VII)
92. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Hollywood Federal Savings and Loan (Tenant), as
evidenced by that Memorandum of Lease filed January 17, 1989
in Official Records Book 16118, at Page 165, as assigned to
First Union National Bank of Florida, N.A.; (As to Parcels VI
and VII)
- 10 -
<PAGE>
93. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Continental Candy and Gifts, Inc. (Tenant), as
evidenced by that Memorandum of Amendment to Lease Agreement
filed March 6, 1989 in Official Records Book 16245, at Page
13; (As to Parcels VI and VII)
94. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Gerald J. Adams, Inc. d/b/a Fastax Systems
(Tenant), as evidenced by that Memorandum of Amendment to
Lease Agreement filed January 7, 1989 in Official Records
Book 16141, at Page 840; (As to Parcels VI and VII)
95. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Robin Johnson d/b/a R.J. & Mates (Tenant), as
evidenced by that Memorandum of Amendment to Lease Agreement
filed December 20, 1988 in Official Records Book 16046, at
Page 710; (As to Parcels VI and VII)
96. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and James Paolella d/b/a Ciro's Deli (Tenant), as
evidenced by that Memorandum of Additional Space and Lease
Modification Agreement filed April 3, 1991 in Official Records
Book 18270, at Page 335; (As to Parcels VI and VII)
97. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and The Book Corner, Inc. (Tenant), as evidenced by
that Memorandum of Amendment to Lease Agreement filed May 17,
1995 in Official Records Book 23462, at Page 25; (As to
Parcels VI and VII)
98. Terms and provisions of that certain lease by and between
Ridge Plaza Joint Venture, a Florida general partnership
(Landlord) and Broward Schools Credit Union (Tenant), as
evidenced by that Memorandum of Amendment to Lease Agreement
filed May 17, 1995 in Official Records Book 23462, at Page 3;
(As to Parcels VI and VII)
99. Consent to Lien Rights of Merabank filed September 12, 1987 in
Official Records Book 14792, at Page 376. [as to leasehold
interest only]; (As to Parcels VI and VII)
100. That certain lease dated June 30, 1983 by and between Ridge
Associates, Ltd., (Landlord) and TPI Entertainment, Inc.,
(Tenant), as evidenced by and affected by that Memorandum of
Transfer of Partnership Agreement dated may 28, 1993 and filed
September 27, 1993 in Official Records Book 21173, at Page
163, as amended by unrecorded Assignment and Assumption
Agreement, by and between Tenant and Exhibition Enterprises
Partnership, dated April 19, 1991; (As to Parcels I through V)
101. That certain lease by and between Ridge Plaza Joint Venture,
a Florida general partnership (Landlord) and Davie
Communications, Inc., a Florida corporation (Tenant), as
evidenced by that Memorandum of Lease filed March 5, 1990 in
Official Records Book 17210, at Page 925, as assigned to
A.J.A. Mail Box, Inc., on July 17, 1990, and as further
assigned to J. Alvarez Curry & Associates, Inc., on March 11,
1992, and as further assigned to M.A.K., Inc., d/b/a Mail
Boxes etc., and as amended by Lease Modification Agreement,
dated as of November 9, 1994; (As to Parcels VI and VII)
- 11 -
<PAGE>
102. That certain lease by and between Pine Island Associates,
Ltd., a Florida limited partnership (Landlord) and Freshness,
Inc. (Tenant), as evidenced by that Assignment of Lease filed
October 25, 1985 in Official Records Book 12921, at Page 905
wherein the said lease was assigned to KFC National Management
Company pursuant to Assignment of Lease, dated July 11, 1985.
(As to Parcels VI and VII)
103. Reservations in favor of the Trustees of the Internal
Improvement Trust Fund of the State of Florida contained in
deed dated September 22, 1919, recorded in Deed Book 27, Page
435, as to:
a. Canal Rights
b. Canal Reservations partially assigned to the Everglades
Drainage District in Deed Book 461, Page 376.
104. Terms, provisions and obligations in Easement dated July 26,
1983, recorded in Official Records Book 11032, at Page 313.
105. Terms, provisions and obligations in Easement dated April 30,
1985, recorded in Official Records Book 12505, at page 317.
106. Terms, provisions and obligations in Easement dated March 3,
1983, recorded in Official Records Book 10751, at page 464.
107. That certain lease by and between Ridge Plaza Joint Venture
(Landlord) and Age of Aquarium, Inc. (Tenant), as evidenced by
that Memorandum of Lease filed August 11, 1995 in Official
Records Book 23781, at Page 303.
108. That certain lease by and between Ridge Plaza Joint Venture
(Landlord) and D.M.H. II, Inc. (Tenant), as evidenced by that
Memorandum of Lease filed August 31, 1995 in Official Records
Book 23854, at Page 984.
Note: Except as otherwise provided herein, all recording
information relates to Broward County, Florida unless
noted otherwise.
Note: Any unrecorded item listed in item numbers 5-102 above
shall not be included in the Exhibit "B" to the Special
Warranty Deed to be delivered at the Closing.
- 12 -
<PAGE>
<PAGE>
EXHIBIT "B-1"
LIST OF PERSONAL PROPERTY
38 trash cans
2 metal desks
1 4-drawer filing cabinet
1 hot water pressure cleaner, trailer mounted
1 20 ft. aluminum ladder
1 8 ft. aluminum ladder
1 10 ft. wood ladder
1 desk telephone
1 answering machine
2 fire extinguishers
3 50 ft. hoses
2 100 ft. hoses
4 buckets
3 chairs
2 metal tables
1 time clock
1 6-shelf storage rack
1 tool box with assorted hand tools
1 circular saw
1 gas chain saw
1 cordless drill with assorted bits
1 bench grinder
Assorted irrigation parts
1 dolly
Assorted paint brushes and rollers
1 sledge hammer
8 replacement lamp diffusers
48 36 in. fluorescent lamps
Assorted cleaning chemicals
Paint, 10 gallons
1 trash hopper, 85 gallons
1 electric hedge trimmer
3 50 ft. extension cords
2 flashlights
5 brooms, 3 mops, and 2 shovels
Assorted window washing equipment
There is also personal property located in Bay H-12/19, the former
Louisiana Grill. This property consists of various restaurant
equipment, a sound system, lighting system and related items
(collectively, the "Grill Equipment"). Note that some of this
property may be subject to claims by unknown third parties.
Accordingly, Seller is willing to convey only its right, title and
interest to the Grill Equipment.
- 1 -
<PAGE>
Note that the following personal property is owned by Gumberg Asset
Management Corp. and is specifically excluded from the sale:
1 wood desk
9 chairs
1 desk with miscellaneous office supplies
1 telephone
The above property is located in the leasing office, bay E-20, 8920
State Road 84.
1 plastic "Gumberg Asset Management Corp." window sign
35 window leasing signs
3 wood roadside leasing signs
Note the following personal property is also specifically excluded
from the sale:
Leased Equipment and Property at the Property
Two Melex golf carts (Electric Car)
One water cooler (Zephyrhills)
ADT fire sprinkler monitoring system
Other Equipment and Property at the Property
The following bays contain equipment and property owned by third
parties. These bays contain no equipment or property owned by
Seller or Gumberg Asset Management Corp.
Bay/Address Owner of property
A-8 8958 SR 84 B & R Cosmetics, Inc.
H-14 A/B 9036/8 SR 84 Florida Amusements, Inc.
C-6 9118 SR 84 Florida Amusements, Inc.
C-4/5 9122 SR 84 Dorfco, Inc.
- 2 -
<PAGE>
<PAGE>
EXHIBIT "B-2"
BUYER'S AFFIDAVIT AND AGREEMENT
STATE OF
COUNTY OF
This day personally came and appeared before me, the
undersigned authority _____________________, _____________ of
("Buyer"), who is knowledgeable of the facts
stated herein and whose mailing address is
_______________________________________, who, on being duly sworn,
stated under oath as follows that:
1. Pursuant to Paragraph 4.2 of that certain Purchase and
Sale Agreement ("Purchase Agreement") dated __________________,
19____ by and between Buyer and Ridge Plaza Joint Venture, a
Florida joint venture ("Seller"), as amended, Buyer has had full
access to and has (to Buyer's satisfaction) exercised its option to
inspect and evaluate for potential purchase those certain
properties known as Ridge Plaza and Pine Island Shopping Center
located in Davie, State of Florida and more particularly described
on Exhibit "A" attached hereto ("Project") and all files of Seller
relating thereto which Buyer felt were important or material to
Buyer, and Seller made available to Buyer all files of Seller
relating to the Project requested by Buyer.
2. Buyer and experts of Buyer's choice have had full access
to and has (to Buyer's satisfaction) (i) physically inspected the
Project, (ii) analyzed the present, past and Buyer's projected use
of the Project, (iii) determined the fair market value of the
Project in its "As Is" condition (as defined in the Purchase
Agreement) as of the closing date and (iv) independently verified
all material documents and information provided to Buyer by Seller
and Seller's Agents (as hereinafter defined).
3. Buyer has not relied upon and is not relying upon any
document, representation of information provided to Buyer by Seller
or Seller's Agents (as defined in Paragraph 6 below) except for
those representations specifically made in the Purchase Agreement.
4. There are no verbal promises or representations which
have been made by Seller or Seller's Agents nor relied upon by
Buyer in connection with the Project or the Purchase Agreement.
There are no unperformed written promises by Seller of Seller's
Agents in connection with the Project or the Purchase Agreement:
5. The Project inspection reports listed on Exhibit "B"
attached hereto were prepared at Buyer's request and expense for
Buyer's benefit and constitute all reports of such type which were
obtained by Buyer in connection with Buyer's evaluation and
decision to purchase the Project; and said reports are a source of
information relied upon by Buyer in making Buyer's decision to
purchase the Project and Buyer has not relied solely upon Seller's
information or reports, each of which was disclosed for
informational purposes only.
6. Buyer hereby releases Seller from and waives any and all
causes of action, claims, liabilities, damages or injury arising
from, connected with or otherwise caused by: (a) statements,
opinions or information obtained from Seller's brokers,
contractors, property managers or similar individuals or entities
engaged by Seller ("Seller's Agents") related to or involving the
Project or (b) information withheld by Seller's Agents unless
withheld at the express direction of an officer
- 1 -
<PAGE>
of Seller's partner and related to or involving the Project and was unknown
to Gumberg Asset Management Corp.; or (c) environmental contamination
existing in, at or under the Project, including but not limited to all
CERCLA (Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended) based or related claims,
liabilities or damages or environmental claims or causes of action
arising from any other federal or state based statutory or
regulatory cause of action. Seller's Agents include but are not
limited to Seller's brokers, Sonnenblick Goldman Company and
Gumberg Asset Management Corp., Seller's Project Manager, Gumberg
Asset Management Corp., and any other agent or representative of
Seller who discussed the Project with or provided information to
Buyer or Buyer's representatives.
,
a
By:
Name:
Title:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this ____
day of __________________________, 1995, by
____________________________, the
___________________________ of , a
, on behalf of the
, and who is personally known to me or who has produced
__________________________ as identification.
Notary Public - State of Florida
My Commission Expires: Name:
Commission No.:
(SEAL)
- 2 -
<PAGE>
<PAGE>
PREPARED BY AND RETURN TO:
Jeffrey Drew Butt, Esquire
Shear, Newman, Hahn & Rosenkranz, P.A.
201 E. Kennedy Blvd., St. 1000
Tampa, FL 33602
EXHIBIT "C"
SPECIAL WARRANTY DEED
Property Appraiser's Parcel Identification Number: __________
Grantee's Taxpayer Identification Number: __________
THE STATE OF
KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF
RIDGE PLAZA JOINT VENTURE, a Florida joint venture
("Grantor"), for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration paid in
hand to Grantor by , a
("Grantee"), whose mailing address is 3200
North Federal Highway, Fort Lauderdale, FL 33306-1033, the receipt
and sufficiency of which is hereby acknowledged, has GRANTED,
BARGAINED, SOLD and CONVEYED, and by these presents does GRANT,
BARGAIN, SELL and CONVEY unto Grantee those certain tracts of land
located in Broward County, Florida more particularly described in
Exhibit "A" attached hereto as a part hereof ("Real Property"),
together with all (i) improvements located thereon and all
appurtenances thereunto belonging, and (ii) all of Grantor's right,
title and interest in and to all rights-of-way, open or proposed
streets, alleys, easements, and strips or gores of land adjacent
thereto.
This conveyance is made by Grantor and accepted by Grantee
subject only to the matters set forth in Exhibit "B" attached
hereto as a part hereof ("Permitted Exceptions").
TO HAVE AND TO HOLD the Real Property together with all
improvements located thereon all and singular the rights and
appurtenances thereto in anywise belonging, subject to the
Permitted Exceptions, unto Grantee, its legal representatives,
successors and assigns, and Grantor
- 1 -
<PAGE>
does hereby bind itself, its
legal representatives, successors and assigns, to WARRANT and
FOREVER DEFEND all and singular the Real Property unto the Grantee,
its legal representatives, successors and assigns, against Grantor
and every person whomsoever lawfully claiming or to claim the same
or any part thereof, by, through or under Grantor, but not
otherwise, and Grantor covenants that it is lawfully seized of the
Real Property in fee simple and that the Real Property is free of
all liens and encumbrances except as set forth above.
Grantee, by its acceptance hereof, does hereby assume and
agree to pay all ad valorem taxes pertaining to the Real Property
for the calendar year 1995 and subsequent years, there having been
a proper proration of same between Grantor and Grantee.
EXECUTED this ______ day of ____________________, 1995, TO BE
EFFECTIVE as of the _____ day of __________________, 1995.
Signed, Sealed and
delivered in the
presence of: RIDGE PLAZA JOINT VENTURE, a Florida
Joint Venture,
By: Prudential Acquisition Fund I, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
Name: a Delaware corporation,
general partner
By:
Name:
Its:
Name:
- 2 -
<PAGE>
By: Prudential Realty Acquisition Fund II, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
Name: A Delaware corporation,
general partner
By:
Name:
Its:
Name:
STATE OF
COUNTY OF
BEFORE ME, the undersigned officer, this day of
, 19 , personally appeared
, the of Prudential
Realty Partnerships, Inc., a Delaware corporation, on behalf of the
corporation, as the general partner of Prudential Acquisition Fund
I, L.P., a Delaware limited partnership, and as the general partner
of Prudential Realty Acquisition Fund II, L.P., a Delaware limited
partnership, the joint venture partners of Ridge Plaza Joint
Venture, a Florida joint venture, who acknowledged executing the
foregoing and who is personally known to me or who produced
as identification.
Notary Public - State of
[Print Name]
Commission No.:
My commission expires:
(Seal)
- 3 -
<PAGE>
<PAGE>
EXHIBIT "D"
BILL OF SALE
WHEREAS, by special warranty deed of even date herewith, RIDGE
PLAZA JOINT VENTURE, a Florida joint venture ("Seller") conveyed to
, a
("Buyer"), whose mailing address is 3200 North Federal Highway,
Fort Lauderdale, FL 33306-1033, those certain tracts of land more
particularly described in Exhibit "A" attached hereto as a part
hereof, together with all improvements located thereon ("Real
Property").
WHEREAS, in connection with the above described conveyance
Seller desires to sell, transfer and convey to Buyer certain items
of tangible personal property as hereinafter described.
NOW, THEREFORE, in consideration of the receipt of TEN AND
NO/100 DOLLARS ($10.00) and other good and valuable consideration
paid in hand by Buyer to Seller, the receipt and sufficiency of
which are hereby acknowledged, Seller has GRANTED, CONVEYED, SOLD,
TRANSFERRED, SET OVER and DELIVERED and by these presents does
hereby GRANT, SELL, TRANSFER, SET OVER and DELIVER to Buyer, its
legal representatives, successors and assigns, all of its right,
title and interest in and to (a) all fixtures and fittings owned
by Seller which are affixed or attached to or placed or situated
upon the Real Property (excluding any items of personal property
affixed to the Real Property by any tenant of the Real Property to
the extent the Tenant is entitled to retain ownership thereof under
its Lease, unless such tenant and its lender, if any, abandons the
same at the end of the terms of the respective tenant's lease) and
(b) the tangible personal property owned by Seller, located on the
Real Property and shown on Exhibit "B-1" attached hereto as a part
hereof (collectively the "Personal Property"), to have and to hold,
all and singular, the Personal Property unto Buyer forever.
Seller does hereby bind itself, its legal representatives,
successors and assigns, to WARRANT, and FOREVER DEFEND title to the
Personal Property unto Buyer, its legal representatives, successors
and assigns, against every person whomsoever lawfully claiming or
to claim same or any part thereof, by, through or under Seller, but
not otherwise.
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE
CONDITION OF THE PERSONAL PROPERTY OR ITS MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE. BY ITS ACCEPTANCE OF THIS BILL
OF SALE, BUYER ACKNOWLEDGES THAT IT HAS FULLY INSPECTED THE
PERSONAL PROPERTY AND BUYER ACCEPTS THE SAME IN ITS PRESENT USED
AND "AS IS" CONDITION.
- 1 -
<PAGE>
EXECUTED this _____ day of ______________________, 1995, TO BE
EFFECTIVE as of the _____ day of ___________________, 1995.
SELLER:
RIDGE PLAZA JOINT VENTURE, a Florida
Joint Venture,
By: Prudential Acquisition Fund I, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
Name: a Delaware corporation,
general partner
By:
Name:
Its:
Name:
By: Prudential Realty Acquisition Fund II, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
Name: A Delaware corporation,
general partner
By:
Name:
Its:
Name:
- 2 -
<PAGE>
STATE OF
COUNTY OF
BEFORE ME, the undersigned officer, this day of
, 19 , personally appeared
, the of Prudential
Realty Partnerships, Inc., a Delaware corporation, on behalf of the
corporation, as the general partner of Prudential Acquisition Fund
I, L.P., a Delaware limited partnership, and as the general partner
of Prudential Realty Acquisition Fund II, L.P., a Delaware limited
partnership, the joint venture partners of Ridge Plaza Joint
Venture, a Florida joint venture, who acknowledged executing the
foregoing and who is personally known to me or who produced
as identification.
Notary Public - State of
[Print Name]
Commission No.:
My commission expires:
(Seal)
- 3 -
<PAGE>
EXHIBIT "E"
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment"), is
made by and between RIDGE PLAZA JOINT VENTURE, a Florida joint
venture ("Assignor") and , a
("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Sale Agreement")
dated as of November, 1995, by and between Assignor and Assignee,
Assignor agreed to sell to Assignee certain real property, and the
improvements located thereon ("Project") as more particularly
described in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, inter alia, that
Assignor shall assign to Assignee certain leases, commission
agreements, service contracts, warranties, guarantees and trade
name, that Assignee shall assume all of the obligations of Seller
under such leases, commission agreements and service contracts from
and after the date of such assignment, and that Assignor and
Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree
as follows:
1. Assignment of Tenant Leases and Commission Agreements.
Assignor hereby assigns, sets over and transfers to Assignee all of
Assignor's right, title and interest in, to and under those certain
tenant space leases and subleases set forth in Exhibit "A"
attached hereto as a part hereof ("Leases") and those certain
Commission Agreements set forth in Exhibit "A-1" attached hereto as
a part hereof ("Commission Agreements"), including all amendments
thereto and modifications thereto, as specified in said Exhibits.
Assignee hereby assumes the obligation to pay (a) any and all
leasing commissions arising out of any future exercise of renewal
terms or options or rights to expand relating to any existing
Leases and any and all leasing commissions relating to any new
leases which arose or accrued subsequent to November ___, 1995, [to
be completed at Closing with the date that the Sale Agreement was
dated] (b) any and all reasonable and necessary fees, costs or
expenses which remain unpaid on the date hereof and which the
landlord is obligated under any extensions, renewals or expansions
under the Leases or under any new leases within the Project, all to
the extent approved by Assignor and Assignee on or after November
___, 1995 [to be completed at Closing with the date that the Sale
Agreement was dated] and all other liabilities and obligations of
Assignor under the Leases and the Commission Agreements arising or
accruing on and after the date hereof (collectively, the
"Liabilities") and indemnifies and holds harmless Assignor from all
of the Liabilities. Prior to becoming liable for such
indemnification, Assignee shall have a reasonable opportunity to
settle or defend the matter.
2. Assignment of Service Contracts. Assignor hereby assigns,
sets over and transfers to Assignee all of Assignor's right, title
and interest in, to and under those certain service contracts set
forth in Exhibit "B" attached hereto as a part hereof
("Contracts"), to the extent
- 1 -
<PAGE>
assignable and Assignee hereby assumes all of the liabilities and
obligations of Assignor under the Contracts arising or accruing on
and after the date hereof.
3. Assignment of Warranties and Guarantees. Assignor hereby
assigns, sets over and transfers to Assignee all of Assignor's
right, title and interest in, to and under those certain warranties
and guarantees set forth in Exhibit "C" attached hereto as a part
hereof, to the extent assignable without expense to Assignor.
4. Assignment of Trade Name. Assignor hereby assigns, sets
over and transfers to Assignee all of Assignor's right, title and
interest in the trade names "Ridge Plaza" and "Pine Island", except
that this assignment is made without warranty of title to such
names or of Assignee's right to the exclusive use of such names and
Assignee hereby acknowledges that Assignor may never have used or
registered such trade names (the "Trade Names").
5. Assignment of Outstanding Tenant Matters. Assignor
hereby assigns, sets over and transfers to Assignee all of
Assignor's right, title and interest in the following tenant
matters and related litigation: Leaps and Bounds, Tony
Roma's/Marvel Vega, Tark's, Fun Factory, Fabric King, Mr. B's and
Cellular USA.
6. Assignment of Intangible Personal Property. Assignor
hereby assigns, sets over and transfers to Assignee all of
Assignor's right, title and interest in all documents, plans, site
plans, permits, licenses and deposits (excluding utility deposits
paid by Assignor or Assignor's agents) and other monies held by or
for Assignor, all with regard to the Project, to the extent
assignable without expense to Assignor, and to the extent in
Assignor's possession or control on the date hereof (the
"Intangible Personal Property").
7. Indemnity. In addition to the other indemnities
specifically contained elsewhere herein, Assignee agrees to
indemnify, defend and hold harmless Assignor from any loss, cost,
claim, liability, expense or demand of whatever nature under the
Leases, the Commission Agreements, the Contracts, the Trade Names
and the Intangible Personal Property accruing on or after the date
hereof. Assignor agrees to indemnify, defend and hold harmless
Assignee from any loss, cost, claim, liability, expense or demand
of whatever nature under the Leases, the Commission Agreements, the
Contracts, the Trade Names and the Intangible Personal Property
accruing prior to the date hereof except to the extent Assignee
assumes such liability in Paragraph 1 hereof. Assignee further
agrees to indemnify, defend and hold harmless Assignor from any
claim by any tenant under a Lease for the return of its security
deposit to the extent the security deposit was paid or credited to
Assignee pursuant to the Sale Agreement. Nothing herein increases
Assignee's or Assignor's obligations under the Sale Agreement.
Prior to becoming liable for such indemnification, the party
obligated to indemnify shall have a reasonable opportunity to
settle or defend the matter.
8. Miscellaneous. This Assignment and the obligations of the
parties hereunder shall survive the closing of the transaction
referred to in the Sale Agreement, shall be binding upon and inure
to the benefit of the parties hereto, their respective legal
representatives, successors and assigns, shall be governed by and
construed in accordance with the laws of the State of Florida
applicable to agreements made and to be wholly performed within
said State and may not be
- 2 -
<PAGE>
modified or amended in any manner other
than by a written agreement signed by the party to be charged
therewith.
EXECUTED this _____ day of _____________, 1995, TO BE
EFFECTIVE as of the _____ day of ____________, 1995.
ASSIGNOR:
RIDGE PLAZA JOINT VENTURE, a Florida
Joint Venture,
By: Prudential Acquisition Fund I, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
a Delaware corporation,
general partner
By:
Name:
Its:
By: Prudential Realty Acquisition Fund II, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
A Delaware corporation,
general partner
By:
Name:
Its:
ASSIGNEE:
a
By:
Name:
Title:
- 3 -
<PAGE>
EXHIBIT "A" TO EXHIBIT "E"
- 4 -
<PAGE>
EXHIBIT "A-1" TO EXHIBIT "E"
- 5 -
<PAGE>
<PAGE>
EXHIBIT "B" TO EXHIBIT "E"
- 6 -
<PAGE>
<PAGE>
EXHIBIT "C" TO EXHIBIT "E"
- 7 -
<PAGE>
<PAGE>
EXHIBIT "F"
CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a
transferee of a United States real property interest must withhold
tax if the transferor is a foreign person. To inform the transferee
that withholding of tax is not required upon the disposition of a
United States real property interest by RIDGE PLAZA JOINT VENTURE,
a Florida joint venture ("Ridge Plaza"), a New Jersey corporation
("Prudential"), the undersigned hereby certifies the following on
behalf of Ridge Plaza:
1. Ridge Plaza is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax Regulations);
and
2. Ridge Plaza's U.S. employer tax identification number is
__________________; and
3. Ridge Plaza's office address is c/o Prudential Real
Estate Investors, One Ravinia Drive, Suite 1400, Atlanta, GA 30346.
Ridge Plaza understands that this certification may be
disclosed to the Internal Revenue Service by transferee and that
any false statement contained herein could be punished by fine,
imprisonment, or both.
The undersigned representative of Ridge Plaza declares that
(s)he has examined this certification and to the best of his/her
knowledge and belief it is true, correct and complete, and (s)he
further declares that (s)he has authority to sign this document on
behalf of Ridge Plaza.
Dated: ___________________, 1995.
RIDGE PLAZA JOINT VENTURE, a Florida
Joint Venture,
By: Prudential Acquisition Fund I, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
a Delaware corporation,
general partner
By:
Name:
Its:
- 1 -
<PAGE>
By: Prudential Realty Acquisition Fund II, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
A Delaware corporation, general partner
By:
Name:
Its:
STATE OF
COUNTY OF
BEFORE ME, the undersigned officer, this day of
, 19 , personally appeared
, the of Prudential
Realty Partnerships, Inc., a Delaware corporation, on behalf of the
corporation, as the general partner of Prudential Acquisition Fund
I, L.P., a Delaware limited partnership, and as the general partner
of Prudential Realty Acquisition Fund II, L.P., a Delaware limited
partnership, the joint venture partners of Ridge Plaza Joint
Venture, a Florida joint venture, who acknowledged executing the
foregoing and who is personally known to me or who produced
as identification.
Notary Public - State of
[Print Name]
Commission No.:
My commission expires:
(Seal)
- 2 -
<PAGE>
EXHIBIT "F-1"
NOTICE TO TENANT
Date
RE: Notice of Change of Ownership of _________________
Property Address
(City, State)
Dear _____________:
You are hereby notified as follows:
(1) That as of the date hereof, Ridge Plaza Joint Venture of
America has transferred, sold, assigned, and conveyed all of
its interest in and to the above-described property (the
"Property") to Gumberg Property Investors, Inc. (the "New
Owner").
(2) Future rental payments with respect to your lease premises at
the Property should be made to the New Owner in accordance
with your Lease terms at the following address:
(3) Your security deposit in the amount of $_________ has been
transferred to the New Owner and as such the New Owner shall
be responsible for holding the same in accordance with the
terms of your lease.
Sincerely,
RIDGE PLAZA JOINT VENTURE
By:
Its: Authorized Representative
- 1 -
<PAGE>
<PAGE>
EXHIBIT "G"
TENANT ESTOPPEL LETTER
RE: Lease dated ______________________ between
_____________________ as Landlord and
___________________________ as Tenant for premises (the
"Premises") in _____________________ Shopping Center,
____________, ______________________ (the "Center").
The undersigned, as the current Tenant under the Lease, certifies
the following as of this date:
(1) The Lease as amended by amendment(s) dated
_______________________ [if blank, "none" will be deemed
applicable] constitutes the entire agreement between Landlord
and Tenant with respect to the Premises.
(2) A guaranty agreement from ________________________ and dated
_______________ has been delivered to Landlord [if blank,
"none" will be deemed applicable].
(3) The Lease is valid and in full force and effect, and neither
Tenant nor the guarantor of the Lease (if any) has any credit,
offset or claim against Tenant's duty to perform its monetary
and other obligations under the Lease, whether by reason of
Landlord's acts or omissions or otherwise.
(4) (a) The commencement date of the Lease term was
______________, and the expiration date of the Lease term
is ________________.
(b) Tenant has accepted possession of the Premises, and the
Premises are open for business.
(c) There are no options on the part of Tenant to terminate,
extend or renew the Lease term except:
______________________________ [if left blank, "none"
will be deemed stated].
(d) Current monthly minimum rent payable under the Lease is
$________________.
(e) Percentage rent for the current lease year is based on
_____ percent of gross sales in excess of $__________,
and Tenant paid $_____________ in percentage rent for the
immediately preceding lease year ended on
_________________, 199__ [if blank, "not applicable" will
be deemed stated].
(5) Tenant has no option, first refusal or other right to purchase
the Premises or the Center or any part thereof.
(6) The security deposited with Landlord under the Lease is
$_____________ [if left blank, "none" will be deemed stated].
(7) All guaranteed minimum rent, "CPI" increases, common area
maintenance charges, real estate taxes, additional rent, and
other sums payable by Tenant under the Lease and charged to
Tenant as of the date hereof have been fully paid in
accordance with the provisions of the Lease and Tenant has no
dispute regarding any of the same except as follows:
____________________________________________.
- 1 -
<PAGE>
(8) To the extent the Lease grants Tenant any construction
contribution, free rent or rent allowance, concession or
abatement, as of the date hereof all such amounts have been
fully paid by Landlord and/or credited to Tenant, except:
[if left blank, "none" will be deemed stated].
(9) Prior to the date hereof all work (if any) to be performed by
Landlord pursuant to the Lease was completed to Tenant's
satisfaction.
(10) No default exists under the Lease on the part of either
Landlord or Tenant, and all sums due to Tenant under the Lease
have been paid to Tenant.
(11) No installment of rent has been paid more than one (1) month
in advance.
(12) There are no actions, voluntary or otherwise, pending against
Tenant under any bankruptcy, reorganization, arrangement,
insolvency or similar federal or state laws.
This certificate is given with the knowledge that it will be relied
on by a purchaser and/or mortgagee of the Center.
Dated: __________________________ Tenant:
By: [Indicate Title]
- 2 -
<PAGE>
<PAGE>
EXHIBIT "H"
CERTIFICATE OF INSURANCE
- 1 -
<PAGE>
<PAGE>
EXHIBIT "I"
DESIGNATION AGREEMENT
This Designation Agreement is executed by the undersigned
pursuant to 26 C.F.R. Section 1.6045(e) (5) in connection with the
requirements for information reporting on real estate transactions
with dates of closing on or after January 1, 1991.
The undersigned hereby agree as follows:
1. The name and address of the transferor are as follows:
Ridge Plaza Joint Venture, c/o Prudential Real Estate Investors,
One Ravinia Drive, Suite 1400, Atlanta, GA 30346.
2. The name and address of the transferee are as follows:
,
.
3. The real estate transferred is located and is described in
Exhibit "A" attached hereto and made a part hereof.
4. The name address of the person designated ("Designated
Party") as the reporting person with respect to this transaction is
as follows:
Shear, Newman, Hahn & Rosenkranz, P.A.
201 E. Kennedy Blvd., Suite 1000
Tampa, FL 33602
Attn: Jeffrey Drew Butt, Esquire
It is understood that all parties to this Agreement must
retain this Agreement for four (4) years following the close of the
calendar year in which the date of closing occurs and that, upon
request by the Internal Revenue Service or any person involved in
this transaction who did not participate in this Designation
Agreement, this Agreement must be made available for inspection.
- 1 -
<PAGE>
<PAGE>
Executed this ______ day of __________________, 199__.
TRANSFEROR
RIDGE PLAZA JOINT VENTURE, a Florida
Joint Venture,
By: Prudential Acquisition Fund I, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
a Delaware corporation,
general partner
By:
Name:
Its:
By: Prudential Realty Acquisition Fund II, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
A Delaware corporation,
general partner
By:
Name:
Its:
TRANSFEREE
a
By:
Name:
Its:
- 2 -
<PAGE>
DESIGNATED PARTY
SHEAR, NEWMAN, HAHN & ROSENKRANZ, P.A.
By:
Name:
Its:
- 3 -
<PAGE>
EXHIBIT "J"
AFFIDAVIT
Prepared By and Return to:
Jeffrey Drew Butt, Esquire
Shear, Newman, Hahn & Rosenkranz, P.A.
Post Office Box 2378
Tampa, Florida 33601-2378
AFFIDAVIT
STATE OF
COUNTY OF
Before me, the undersigned officer, this day of
, 19 , appeared , who is
personally known to me or who produced as
identification, and who upon being duly sworn, deposes and says:
1. Affiant is the Vice President, of Prudential Realty
Partnerships, Inc., a Delaware Corporation, a general partner of
Prudential Acquisition Fund I, L.P., a Delaware Limited
Partnership, a joint venture partner of Ridge Plaza Joint Venture,
a Florida joint venture (the "Joint Venture"), and has personal
knowledge of the facts set forth herein.
2. The Joint Venture is currently in existence under a valid
joint venture agreement, is in good standing under the laws of the
State of Florida and has paid all taxes, fees and charges which may
be due to the State of Florida.
3. No acts have been taken to dissolve the Joint Venture.
4. The names of all of the partners of the Joint Venture are
as follows:
a. Prudential Acquisition Fund I, L.P., a
Delaware Limited Partnership
b. Prudential Realty Acquisition Fund II, L.P.,
a Delaware Limited
Partnership
and there are no other partners in the Joint Venture.
- 1 -
<PAGE>
5. Prudential Bache Properties is a general partner of
Prudential Acquisition Fund I, L.P. and Prudential Realty
Acquisition Fund II, L.P.
6. The Affiant has been authorized by all necessary action
of the Joint Venture to execute all documents (the "Documents") on
behalf of the Joint Venture, including but not limited to a deed in
connection with the land described on Exhibit "A" annexed hereto
and incorporated herein by reference.
7. No other party on behalf of the Joint Venture needs to
join in the execution of the Documents.
8. Neither the Joint Venture nor any of the partners have
been debtors in a bankruptcy proceeding during the existence of the
Joint Venture.
9. None of the corporate partners have been dissolved.
10. The Affiant is duly authorized to execute this Affidavit.
Further Affiant Sayeth Not.
Address:
Sworn to and subscribed before me this day of
, 19 .
Notary Public - State of
Name:
Commission No.:
(SEAL)
My Commission Expires:
- 2 -
<PAGE>
<PAGE>
EXHIBIT "K"
SERVICE CONTRACTS
Maintenance/Service Contracts and Equipment Leases
<TABLE>
PINE ISLAND PLAZA:
<CAPTION>
Monthly
Vendor Service Provided Term Charge Other
<S> <C> <C> <C> <C>
ADT Security Alarm Monitoring & lease 6/30/96 $ 451.93 cancel on 30 days notice
Allegheny Telephone Pay telephones 6/13/98 N/A cancel on 30 days notice
Automatic Sprinkler Quarterly inspection N/A $ 631.75 N/A
Burns International Security guard w. cart 11/18/95 $1,160.70 cancel on 2 days notice
RAM Diversified Landscaping 7/31/95 $2,808.50 cancel on 4 days notice
Southern Sanitation Waste removal N/A $3,864.10 required by Davie
</TABLE>
The parking lot sweeping contract was terminated by the contractor
on 9/10/95. Seller's agent is currently rebidding this contract.
Any new contract will be subject to cancellation on 48 hours
notice. Presently, the lot is being swept by Quality Power
Sweeping on a weekly purchase order.
<TABLE>
RIDGE PLAZA:
<CAPTION>
Monthly
Vendor Service Provided Term Charge Other
<S> <C> <C> <C> <C>
ADT Security Alarm Monitoring & lease 6/30/96 $ 406.53 cancel on 30 days notice
Allegheny Telephone Pay telephones 6/13/98 N/A cancel on 30 days notice
Automatic Sprinkler Quarterly inspection N/A $ 334.50 N/A
Burns International Security guard w. cart 11/18/95 $1,405.56 cancel on 2 days notice
RAM Diversified Landscaping 7/31/96 $2,170.00 cancel on 4 days notice
Southern Sanitation Waste removal N/A $3,026.64 required by Davie
Town of Davie Police Police guard N/A $22.10/hr. N/A
</TABLE>
The parking lot sweeping contract was terminated by the contractor
on 9/10/95. Seller's agent is currently rebidding this contract.
Any new contract will be subject to cancellation on 48 hours
notice. Presently, the lot is being swept by Quality Power
Sweeping on a weekly purchase order.
<TABLE>
SPLIT BETWEEN PINE/RIDGE:
<CAPTION>
Monthly
Vendor Service Provided Term Charge Other
<S> <C> <C> <C> <C>
Electric Car Maint. golf cart N/A $ 145.00 cancel on 2 days notice
Zephyrhills Water Cooler rental N/A $ 19.03 cancel at any time
</TABLE>
- 1 -
<PAGE>
<PAGE>
EXHIBIT "L"
RENT ROLL<PAGE>
- 1 -
<PAGE>
EXHIBIT "M"
BROKERAGE AGREEMENTS
Commission
Tenant Broker Due
Age of Aquarium (Pine, Bay E-22) Equivest Properties, Inc. $1,842.75
This is the second half of the commission and is payable within 30
days of the tenant's opening. The tenant anticipates opening on
October 27.
- 1 -
<PAGE>
<PAGE>
EXHIBIT "N"
SELLER'S ESTOPPEL LETTER
By lease dated
("Lease"), ("Tenant") has leased from
RIDGE PLAZA JOINT VENTURE, A Florida Joint Venture, or its
predecessors in interest ("Landlord"), premises located at
, which are
more particularly described in the Lease. Landlord, as owner of
the property ("Property") of which the leased premises are a part,
intends to sell the Property to
("Buyer") who, as a condition to the purchase of the Property,
has required this Seller's Estoppel Letter.
In Consideration of Buyer's agreement to purchase the
Property, Landlord agrees and certifies to Buyer as follows:
(1) The Lease as amended by amendment(s) dated
_______________________ [if blank, "none" will be deemed
applicable] constitutes the entire agreement between Landlord
and Tenant with respect to the Premises.
(2) A guaranty agreement from ________________________ and dated
_______________ has been delivered to Landlord [if blank,
"none" will be deemed applicable].
(3) To the best knowledge of Landlord, the Lease is valid and in
full force and effect, and neither Tenant nor the guarantor of
the Lease (if any) has any credit, offset or claim against
Tenant's duty to perform its monetary and other obligations
under the Lease, whether by reason of Landlord's acts or
omissions or otherwise.
(4) (a) The commencement date of the Lease term was
______________, and the expiration date of the Lease term
is ________________.
(b) Tenant has accepted possession of the Premises, and the
Premises are open for business.
(c) There are no options on the part of Tenant to terminate,
extend or renew the Lease term except:
______________________________ [if left blank, "none"
will be deemed stated].
(d) Current monthly minimum rent payable under the Lease is
$________________.
(e) Percentage rent for the current lease year is based on
_____ percent of gross sales in excess of $__________,
and Tenant paid $_____________ in percentage rent for the
immediately preceding lease year ended on
_________________, 199__ [if blank, "not applicable" will
be deemed stated].
- 1 -
<PAGE>
(5) Tenant has no option, first refusal or other right to purchase
the Premises or the Center or any part thereof.
(6) The security deposited with Landlord under the Lease is
$_____________ [if left blank, "none" will be deemed stated].
(7) All guaranteed minimum rent, "CPI" increases, common area
maintenance charges, real estate taxes, additional rent, and
other sums payable by Tenant under the Lease and charged to
Tenant as of the date hereof have been fully paid in
accordance with the provisions of the Lease and Tenant has no
dispute regarding any of the same except as follows:
____________________________________________.
(8) To the extent the Lease grants Tenant any construction
contribution, free rent or rent allowance, concession or
abatement, as of the date hereof all such amounts have been
fully paid by Landlord and/or credited to Tenant, except:
[if left blank, "none" will be deemed stated].
(9) To the best knowledge of Landlord, prior to the date hereof
all work (if any) to be performed by Landlord pursuant to the
Lease was completed to Tenant's satisfaction.
(10) To the best knowledge of Landlord, no default exists under the
Lease on the part of either Landlord or Tenant.
(11) All sums due to Tenant under the Lease have been paid to
Tenant.
(12) No installment of rent has been paid more than one (1) month
in advance.
(13) To the best knowledge of Landlord, there are no actions,
voluntary or otherwise, pending against Tenant under any
bankruptcy, reorganization, arrangement, insolvency or similar
federal or state laws.
The reference herein to Landlord's "best knowledge" shall
refer only to the current actual knowledge of the Designated
Employees (as hereinafter defined) of the Atlanta, Georgia office
of Prudential Real Estate Investors with due inquiry being made by
the Designated Employees of Gumberg Asset Management Corp., the
manager of the Property and shall not be construed to refer to the
knowledge of any other office, officer, agent or employee of
Landlord or any affiliate thereof or to impose upon such Designated
Employees any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains, including but not
limited to the contents of the files, documents and materials made
available to or disclosed to Buyer; Landlord affirmatively stating
that neither it nor the Designated Employees have reviewed such
files, documents, or materials and that Landlord's representations
and warranties hereunder are made ONLY as to the actual knowledge
of the Designated Employees and NOT as to or based upon the
contents of any such files, documents, materials or any other
files, documents or materials in any other office of Seller. For
purposes of this Certificate, the term "Designated Employees" shall
refer to Collete English Dixon and N. W. Burt.
- 2 -
<PAGE>
RIDGE PLAZA JOINT VENTURE, a Florida
Joint Venture,
By: Prudential Acquisition Fund I, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
a Delaware corporation,
general partner
By:
Name:
Its:
By: Prudential Realty Acquisition Fund II, L.P.,
a Delaware limited partnership,
joint venturer
By: Prudential Realty Partnerships, Inc.,
A Delaware corporation,
general partner
By:
Name:
Its:
- 3 -
<PAGE>
<PAGE>
EXHIBIT "O"
LIST OF LITIGATION
- 1 -
<PAGE>
<PAGE>
EXHIBIT "P"
LIST OF CONTRACTOR CLAIMS, ETC.
None<PAGE>
- 1 -
<PAGE>
EXHIBIT "Q"
AFFIDAVIT
STATE OF
COUNTY OF
BEFORE ME, the undersigned officer, this day of
, 19 , personally appeared
, who is personally known to me or who produced
as identification, and who upon being
duly sworn deposes and says:
The undersigned, a Vice-President of Prudential Realty
Partnerships, Inc., a Delaware Corporation, a general partner of
Prudential Acquisition Fund I, L.P., a Delaware Limited
Partnership, a joint venture partner of Ridge Plaza Joint Venture,
a Florida Joint Venture (the "Seller"), does hereby certify that
except as noted on Exhibit A attached hereto, the representations
and warranties of the Seller contained in the Purchase and Sale
Agreement by and between Seller and , dated November
, 1995 are true and correct in all material respects as of the
date hereof.
This Affidavit shall not affect the parties' respective
obligations or rights contained in the Agreement, to the extent
such obligations or rights survive the closing thereunder.
IN WITNESS WHEREOF, the undersigned has executed this
Affidavit as of the _____ day of , 1995.
Name:
Vice President of Prudential Realty
Partnerships, Inc., a Delaware Corporation,
a general partner of Prudential Acquisition
Fund I, L.P., a Delaware Limited Partnership,
a Joint Venture Partner of Ridge Plaza Joint
Venture, a Florida Joint Venture
SWORN TO AND SUBSCRIBED before me the day and year first above
written by .
Notary Public - State of
[Print Name]
Commission No.:
My commission expires:
(Seal)
- 1 -
<PAGE>
<PAGE>
EXHIBIT "R"
DELINQUENCY LIST
- 1 -
<PAGE>
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this
"Amendment") is made as of March 4, 1996, by and between Ridge
Plaza Joint Venture ("Seller") and PIRP, INC. ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into a certain Purchase and
Sale Agreement, dated as of November 1, 1995 and effective as of
November 10, 1995 (the "Purchase Agreement") relating to certain
property known as Pine Island and Ridge Plaza Shopping Centers and
located at 8800 State Road 84 and 9200 State Road 84, Davie,
Florida (the "Property"); and
WHEREAS, Buyer has completed its inspection of the Property;
and
WHEREAS, based upon such inspection and other factors, Buyer
has requested Seller to reduce the Purchase Price and Seller has
agreed to do so; and
WHEREAS, Seller and Buyer desire to execute this Amendment to
evidence, inter alia, the reduction of the Purchase Price and the
expiration of the Inspection Period.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and
valuable consideration, the Seller and the Buyer agree to amend the
Purchase Agreement and the Purchase Agreement is hereby amended as
follows:
1. The Purchase Price, as reflected in Paragraph 2 of the
Purchase Agreement, is hereby reduced to FIFTEEN MILLION, FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($15,500,000.00) in cash,
subject to the prorations and adjustments provided in Paragraph 5.3
of the Purchase Agreement. Furthermore, Buyer agrees that no
lender will be involved in the purchase contemplated by the
Purchase Agreement.
2. Seller hereby waives delivery of the Additional Earnest
Money Deposit and the Initial Earnest Money Deposit shall
constitute the Total Earnest Money Deposit for all purposes of the
Purchase Agreement except as provided in the remaining portions of
this Paragraph. For all purposes of the Agreement, the phrase
"Additional Earnest Money Deposit" shall be revised to mean an
amount equal to One Million Five Hundred Forty Thousand and 00/100
Dollars ($1,540,000.00). If Seller is entitled to the Total
Earnest Money Deposit pursuant to Paragraph 9.2 of the Agreement,
Seller shall be entitled to collect from Buyer, in addition to the
Initial Earnest Money Deposit, damages, in an amount equal to the
Additional Earnest Money Deposit, which damages Buyer agrees to
immediately pay to Seller.
1
<PAGE>
3. Buyer acknowledges and agrees that the term "Permitted
Exceptions" as defined in Paragraph 3.3 of the Agreement shall
include only those items shown on Exhibit "A" attached hereto and
incorporated herein by reference.
4. Buyer acknowledges that (a) the Inspection Period has
expired and that Buyer is purchasing the Property in accordance
with the last full paragraph of Paragraph 4.2 of the Purchase
Agreement relating to the sale of the Property in an "As Is"
condition; and (b) Buyer shall have no right to terminate the
Purchase Agreement in accordance with the terms of Paragraph 4.2 of
the Purchase Agreement.
5. Buyer acknowledges that Buyer has accepted the
environmental condition of the Property as of February 23, 1996,
and thus Buyer shall have no right to terminate the Agreement nor
shall there be a reduction of, or credit against, the Purchase
Price at Closing due to the environmental condition of the Property
except that Buyer shall have the right to terminate the Agreement,
in accordance with all of the terms and conditions of the
Agreement, if an environmental condition of the Property arises
after February 23, 1996..
6. Paragraph 5.1 of the Purchase Agreement is deleted in its
entirety and the following is substituted in its place and stead:
"Closing Date. The transaction contemplated by this
Agreement ("Transaction") shall close ("Closing") on or
before March 8, 1996 (the "Closing Date"). The Closing
shall take place at 9:00 a.m. Eastern Time in the offices
of the Title Company and Buyer and Seller shall conduct
a "pre-closing" on March 7, 1996 with title transfer and
payment of the Purchase Price to be completed on the
Closing Date as set forth in Paragraph 5.2 hereof."
7. Notwithstanding anything else contained in the Purchase
Agreement, Buyer shall reimburse the Seller for a portion of
Seller's attorneys fees in the amount of $4,000.00.
8. The following sentence shall be added to the end of
Paragraph 8.3 of the Purchase Agreement:
"Notwithstanding the foregoing, Buyer's representations,
warranties and agreements under Paragraph 12.17 hereof
shall survive both the Closing and the Limitation Date
and shall not merge into the Special Warranty Deed, but
shall be enforceable at any time by Seller."
9. The dollar amount of "$1,700,000.00" in the last sentence
of Paragraph 9.1 of the Purchase Agreement shall be deleted and
replaced with the dollar amount of "$1,550,000.00."
2
<PAGE>
10. Buyer and Seller acknowledge and agree that Seller
delivered the Approval, as required by Paragraph 11 of the Purchase
Agreement, on or before the expiration of the Approval Period.
11. The last sentence of Paragraph 12.6 of the Purchase
Agreement shall be deleted and the following inserted in its place
and stead:
"Notwithstanding the above, this Agreement may be
assigned in two parts to Qualified Entities (as defined
below) pursuant to the Partial Assignments of Purchase
and Sale Agreement, Escrow Agreement, Etc. attached
hereto as Composite Exhibit "T", provided (i) such
assignment does not cause Seller to incur any additional
costs or expenses (e.g. new Hart-Scott-Rodino filing
fees), (ii) such assignment does not cause a change in
the Closing Date, and (iii) Seller has written notice of
such assignment no later than March 1, 1996. For
purposes of the previous sentence, the term "Qualified
Entities" shall mean Pine Island Investment Holdings,
Inc. and Ridge Plaza Investment Holdings, Inc.
Additionally, Buyer (a) hereby gives notice of its intent
to make such assignments and (b) represents, warrants and
covenants to Seller that Pine Island Investment Holdings,
Inc. and Ridge Plaza Investment Holdings, Inc. are and
will be exclusively represented by Investcorp
International, Inc., as agent, in all matters through the
Closing Date.
12. Composite Exhibit "T" attached hereto shall be added as
Composite Exhibit "T" to the Purchase Agreement.
13. Buyer agrees that Seller shall not be a party to any
partial assignment referenced above and shall have no liability or
obligation in connection therewith except to transfer the Property
as directed by Buyer in accordance with said assignments. Without
limiting the generality of the foregoing, Seller shall not be a
party to any allocation of the Purchase Price among assets being
transferred and it shall be the sole responsibility of Buyer to
inform Seller of the allocation it desires.
14. The following shall be added at the end of Paragraph
12.17 of the Purchase Agreement:
"Notwithstanding the above, Buyer represents to Seller
that Buyer has preliminarily determined that the
Transaction will not be subject to reporting under the
HSR Act, as contemplated above, for the reasons set forth
in Composite Exhibit "S" attached hereto. Therefore,
Buyer does not anticipate that a filing will be made
under the HSR Act and Seller is not proceeding with such
a filing based solely upon Buyer's representations
herein. In lieu of the HSR Act filing contemplated
above, Buyer and its assignees will provide to Seller at
3
<PAGE>
Closing letters of warranty and representation, in the
form attached hereto as Composite Exhibit "S", that the
transaction is not reportable under the HSR Act.
In the event that Buyer is unable to provide to Seller
such letters of warranty and representation, or in the
event the parties hereto determine subsequent to the date
hereof that the transaction will be reportable under the
HSR Act, the provisions in the first paragraph of this
Paragraph 12.17 will be in full force and effect and will
be legally binding, except that Buyer will pay one
hundred percent (100%) of any required filing fee, and
will also pay Seller's reasonable expenses related to
preparing the HSR filing."
15. Composite Exhibit "S" attached hereto shall be added as
Composite Exhibit "S" to the Purchase Agreement.
16. Paragraph 5.3.5 shall be deleted in its entirety and the
following inserted in its place and stead:
"5.3.5 Closing Costs. Seller shall pay the
cost of preparing this Agreement and the
Closing Documents, the cost of the title
insurance searches, $44,450.00 towards the
cost of the Title Commitment and the title
insurance policy issued pursuant thereto
issued at the minimum promulgated rate with no
endorsements ("Seller's Share of Title
Insurance") and attorney's fees incurred by
Seller in connection with the Closing and any
other costs or expenses customarily paid by
sellers of similar real property in the State
of Florida. Buyer shall pay the cost of its
inspections, the cost of the Updated Survey,
if any, the cost of the Title Commitment and
the title insurance policy issued pursuant
thereto issued at the minimum promulgated rate
to the extent such cost exceeds the Seller's
Share of Title Insurance, the cost of any
endorsements to the Title Commitment or the
title policy issued thereto requested by Buyer
and any other costs or expenses customarily
paid by buyers of similar real property in the
State of Florida and attorney's fees incurred
by Buyer in connection with the Closing."
17. Except as amended hereby, the Purchase Agreement shall
remain in full force and effect.
18. This Amendment may be executed in several counterparts,
each of which shall be deemed an original, and all such
counterparts shall together constitute one and the same instrument.
19. Exhibit "B" to the Purchase Agreement is deleted in its
entirety.
4
<PAGE>
This Amendment has been executed by the parties hereto
effective as of the date set forth above.
SELLER:
RIDGE PLAZA JOINT VENTURE, a Florida
General Partnership,
By: Prudential Acquisition Fund I,
L.P., a Delaware limited
partnership,
partner
/s/ Patricia Stiles By: Prudential Realty Partnerships, Inc.,
Name: Patricia Stiles a Delaware corporation,
general partner
By: /s/ Kevin R. Smith
Name: Kevin R. Smith
/s/ Juliette Diarra Its: Vice President
Name:Juliette Diarra
By: Prudential Realty Acquisition Fund II, L.P.,
a Delaware limited partnership,
partner
/s/ Patricia Stiles By: Prudential Realty Partnerships, Inc.,
Name: Patricia Stiles a Delaware corporation,
general partner
By: /s/ Kevin R. Smith
Name: Kevin R. Smith
/s/ Juliette Diarra Its: Vice President
Name:Juliette Diarra
BUYER:
PIRP, INC.
a Delaware corporation
/s/ Chaya R. Shafran By: /s/ F. Jonathan Dracos
Name: Chaya R. Shafran Name: F. Jonathan Dracos
Its: Vice President
/s/ Mary Sheeran
Name: Mary Sheeran
5
<PAGE>
<PAGE>
EXHIBIT "A"
AS TO ALL PARCELS:
1. Taxes and assessments for the year 1996 and subsequent years,
and subsequent assessments for prior years due to change in
land usage, ownership or otherwise.
2. Rights of tenants in possession (as tenants only) under any of
the Leases (a list of which shall be provided by Seller at the
beginning of the Inspection Period and again at Closing).
3. Any claim that any portion of the Project is sovereign lands
of the State of Florida, including, submerged, filled or
artificially exposed lands and lands accreted to such lands,
and any adverse claim due to riparian rights, if any.
4. Rights of parties in possession other than the owner.
5. All zoning ordinances which affect the Project.
AS TO PARCELS 1, 2, 3, 4 & 5 (RIDGE PLAZA):
6. The following items with respect to Parcel 1 and Easement Parcels 4 and 5:
a. Reservations in favor of the Trustees of the Internal
Improvement Fund of the State of Florida contained in
deed recorded in Deed Book 10, Page 113, Public Records
of BROWARD County, Florida, as to:
i. 3/4th's interest in all phosphate, mineral and metal rights.
ii. 1/2 interest in all petroleum rights.
The right of entry and exploration and other
reservations, except as set forth above, have been
released by document recorded in Official Records
Book 11495, Page 260.
b. Restrictions imposed upon a portion of subject premises
as to rights of access, ingress, egress, light, air and
view by that Order of Taking for right of way of State
Road 84 recorded in Official Records Book 8565, Page 981,
and ratified in Final Judgment in Eminent Domain
Proceedings recorded in Official Records Book 9621, Page 329.
c. Restrictions, dedications and easements as contained in
the Plat of Ridge Plaza, as recorded in Plat Book 116,
Page 27, of the Public Records of Broward County,
Florida.
1
<PAGE>
d. Developer Agreement recorded in Official Records Book
11073, Page 429, together with Bill of Sale recorded in
Official Records Book 11704, Page 510.
e. Maintenance Agreements recorded in Official Records Book
11076, Page 803 and in Official Records Book 11076, Page
809.
f. Unrecorded Easement to Florida Power and Light Company
dated December 19, 1983 as attached to Warranty Deed
recorded in Official Records Book 12562, Page 941 as
Exhibit B-1.
g. Easement(s) reserved and terms, provisions and
obligations contained in instrument recorded in Official
Records Book 5192, Page 899.
h. Easement(s) reserved and terms, provisions and
obligations contained in instrument recorded in Official
Records Book 12505, Page 317.
i. Memorandum of Management Agreement recorded in Official
Records Book 16271, Page 717 and in Official Records Book
18428, Page 226, as may be affected by document recorded
in O.R. Book 21173, Page 163. (As to leasehold interest
only of American Multi-Cinema, Inc. "AMC" and not the
underlying fee interest)
j. Memorandum of First Right of Refusal recorded in Official
Records Book 16271, Page 723 and in Official Records Book
18428, Page 216, as may be affected by document recorded
in O.R. Book 21173, Page 163. (As to leasehold interest
only of American Multi-Cinema, Inc. "AMC" and not the
underlying fee interest)
k. Agreement recorded in Official Records Book 17863, Page
198 and in Official Records Book 18221, Page 100.
l. Road Easement and terms, provisions and obligations
contained in instrument recorded in Official Records Book
18270, Page 248.
m. Cable Television Easement recorded in Official Records
Book 19450, Page 335.
n. UCC-1 Financing Statement recorded in Official Records
Book 20593, Page 721 (as to Leasehold interest only and
not the underlying fee interest).
7. The following items with respect to Parcel 2 and Easement Parcels 4 and 5:
a. Reservations in favor of Trustees of the Internal
Improvement Fund of the State of Florida contained in
deed recorded in Deed Book 10, Page 113, Public Records
of BROWARD County, Florida, as to:
i. 3/4th's interest in all phosphate, mineral and metal rights.
ii. 1/2 interest in all petroleum rights.
2
<PAGE>
The right of entry and exploration and other
reservations, except as set forth above, have been
released by document recorded in Official Records Book
11495, Page 260.
b. Restrictions, dedications and easements as contained in
the Plat of Pine Island Ridge Section Two, as recorded in
Plat Book 83, Page 20, of the Public Records of Broward
County, Florida.
c. Developer Agreement recorded in Official Records Book
11073, Page 429, together with Bill of Sale recorded in
Official Records Book 11704, Page 510.
d. Maintenance Agreements recorded in Official Records Book
11076, Page 803 and in Official Records Book 11076, Page
809.
e. Unrecorded Easement to Florida Power and Light Company
dated December 19, 1983 as attached to Warranty Deed
recorded in Official Records Book 12562, Page 941 as
Exhibit B-1.
f. Easement(s) reserved and terms, provisions and
obligations contained in instrument recorded in Official
Records Book 5192, Page 899.
g. Easement(s) reserved in instrument recorded in Official
Records Book 12505, Page 317.
h. Memorandum of Management Agreement recorded in Official
Records Book 16271, Page 717 and Official Records Book
18428, Page 226, as may be affected by document recorded
in O.R. Book 21173, Page 163. (As to leasehold interest
only of American Multi-Cinema, Inc. "AMC" and not the
underlying fee interest)
i. Memorandum of First Right of Refusal recorded in Official
Records Book 16271, Page 723 and in Official Records Book
18428, Page 216, as may be affected by document recorded
in O.R. Book 21173, Page 163. (As to leasehold interest
only of American Multi-Cinema, Inc. "AMC" and not the
underlying fee interest)
j. Cable Television Easement recorded in Official Records
Book 19450, Page 335.
8. The following items with respect to Parcel 3 and Easement Parcels 4 and 5:
a. Reservations in favor of the Trustees of the Internal
Improvement Fund of the State of Florida contained in
deed recorded in Deed Book 139, Page 466, Public Records
of DADE County, Florida, as to:
i. 3/4th's interest in all phosphate, mineral and metal rights.
ii. 1/2 interest in all petroleum rights.
3
<PAGE>
The right of entry and exploration and other
reservations, except as set forth above, have been
released by document recorded in Official Records Book
11495, Page 260.
b. Reservations in favor of the Trustees of the Internal
Improvement of the State of Florida contained in deed
recorded in Deed Book 27, Page 435, Public Records of
BROWARD County, Florida, as to:
i. Canal rights.
ii. Canal reservations partially assigned to the
Everglades Drainage District in Deed Book 461, Page 376.
c. Restrictions imposed upon a portion of subject premises
as to rights to access, ingress, egress, light, air and
view, by that order of Taking for right of way of State
Road 84 recorded in Official Records Book 8565, Page 981
and ratified in Final Judgment in Eminent Domain
Proceedings recorded in Official Records Book 9621, Page
329.
d. Restrictions, dedications and easements as contained in
the Plat of Route 84 Square, as recorded in Plat Book
117, Page 11, of the Public Records of Broward County,
Florida.
e. Developer Agreement recorded in Official Records Book
11073, Page 429, together with Bill of Sale recorded in
Official Records Book 11704, Page 510.
f. Maintenance Agreements recorded in Official Records Book
11076, Page 803 and in Official Records Book 11076, Page
809.
g. Unrecorded Easement to Florida Power and Light Company
dated December 19, 1993 as attached to Warranty Deed
recorded in Official Records Book 12562, Page 941 as
Exhibit B-1.
h. Easement(s) reserved and terms, provisions and
obligations contained in instrument recorded in Official
Records Book 5192, Page 899.
i. Easement(s) reserved and terms, provisions and
obligations contained in instrument recorded in Official
Records Book 12505, Page 317.
j. Memorandum of Management Agreement recorded in,Official
Records Book 16271, Page 717 and in Official Records Book
18428, Page 226, as may be affected by document recorded
in O.R. Book 21173, Page 163. (As to leasehold interest
only of American Multi-Cinema, Inc. "AMC" and not the
underlying fee interest)
k. Memorandum of First Right of Refusal recorded in Official
Records Book 16271, Page 723 and in Official Records Book
4
<PAGE>
18428, Page 216, as may be affected by document recorded
in O.R. Book 21173, Page 163. (As to leasehold interest
only of American Multi-Cinema, Inc. "AMC" and not the
underlying fee interest)
l. Cable Television Easement recorded in Official Records
Book 19450, Page 335.
9. The following items with respect to Parcels 1, 2, and 3 and Easement
Parcels 4 and 5:
a. Those certain Memorandums of Lease recorded in the
following Official Records Books and Pages:
0. R. Book Page
12459 269, as affected by document recorded in Official
Records Book 21173, Page 163
12654 48
15834 552
16293 463
16530 166
16792 126
17278 581
17743 516
18428 462
18827 853
19122 13
20100 473
21143 636
21173 163
21210 157
21250 113
21329 603
21407 112
21622 173
21622 176
21889 709
22471 895
22486 481
22823 171
23232 60
24000 704
10. Leasehold Mortgage recorded in Official Records Book 17452,
Page 242 (as to the leasehold interest of Long John Silver's
Inc. and Jerrico, Inc., their successors and/or assigns and
not the underlying fee interest)
11. The following items with respect to Easement Parcels 4 and 5:
a. Terms, provisions, conditions and obligations in
instruments recorded in Official Records Book 11032, Page
313, and in O.R. Book 11076, Page 809.
5
<PAGE>
12. The following matters shown on a certain boundary survey
prepared by Jon P. Weber, P.L.S., Florida Registration No.
4323, of Keith and Schnars, P.A., Engineers, Planners &
Surveyors, bearing project No. 10645C.29 dated 04/13/85 and
updated and certified on 12/01/95, including all matters
excluded specifically from the aforementioned boundary survey
by notation thereon:
a. As to Parcel 1:
i. Easement, if any, for sidewalk which meanders
inside and outside of the northerly and easterly
boundaries of the land.
ii. Non-vehicular access lines:
iii. Encroachment, if any, onto or into the 12' utility
easement, shown on the survey and designated on the
Plat, by the following:
(1) the meandering sidewalk referenced above;
(2) sign located in the northeast corner of the land;
(3) asphalt parking areas (surfical);
(4) Southern Bell box;
(5) 30' drainage easement along the southerly boundary of the
land; and
(6) 10' water and sewer lines easement along the
southeasterly boundary of the land at a point
which is approximately 137' south of the north
boundary of the land.
iv. Encroachment, if any, onto or into the 30' drainage
easement, shown on the survey and designated on the
Plat, by the following:
(1) concrete slabs, transformer pads, water meters, and fire
hydrants;
(2) asphalt parking areas (surfical);
(3) meandering sidewalk referenced above.
(4) one story cement block structure (in the southwest corner
of said land); and
(5) 12' utility easement along easterly boundary of said land.
v. Encroachment, if any, onto or into the 10' water
and sewer lines easement, recorded in O.R. Book
11704, Page 510, shown on the survey as follows:
6
<PAGE>
(1) asphalt parking areas (surfical);
(2) meandering sidewalk referenced above;
(3) transformer pads, and light poles;
(4) 30' drainage easement along southerly boundary of the land;
(5) 12' utility easement along easterly boundary of the land;
(6) sign which traverses said easement and the south boundary
of parcel designated as "Out Parcel L" on the survey;
(7) concrete curbings throughout the easement for traffic flow
and parking islands; and
(8) 10' covered walkway (at the northeast corner of the
one-story cement block structure).
vi. Encroachment, if any, onto or into the 30' roadway easement,
shown on the survey and designated on the Plat, by the following:
(1) asphalt parking areas (surfical); and
(2) light poles, water meters, catch basins,
signs, concrete curbings, overhead electric
lines, and chain link fence.
vii. Encroachments and or easements relative to the
following (located on areas other than those
referenced above):
(1) light poles, catch basins, signs and water
meters along the northerly and easterly
boundaries of the land; and water meters,
valve boxes, clean outs, catch basins, grease
traps, dumpsters, manholes, fire hydrants,
transformer pads and the like located on the
interior of the land.
b. As to Parcel 2:
i. Encroachment, if any, into or onto 6' utility
easement, shown on the survey and designated on the
Plat, by the following:
(1) asphalt parking area and concrete curbings
(surfical).
ii. Encroachment, if any, into or onto 10' utility
easement, shown on the survey and designated on the
Plat, as follows:
(1) asphalt parking areas and concrete curbings (surfical);
7
<PAGE>
iii. Encroachment, if any, onto or into the 10' water
and sewer lines easement, recorded in O.R. Book
11704, Page 510, shown on the survey as follows:
(1) asphalt parking areas and concrete curbings
(surfical);
(2) concrete slabs, fire hydrant, and light poles.
iv. Encroachment or easement relative to the following
(located on areas other than those listed above:
(1) light poles, water meters, valve boxes, clean
outs, grease traps, fire hydrants, transformer
pads, concrete slabs, overhead wires, wood
utility poles and anchors and the like located
on the interior of the land.
c. As to Parcel 3:
i. Easement, if any, for sidewalk which meanders
inside and outside of the northerly boundary of the
land.
ii. Encroachment, if any, into or onto 6' utility
easement, shown on the survey and designated on the
Plat, by the following:
(1) asphalt parking area and concrete curbings
(surfical).
(2) concrete slabs; and
(3) sprinkler pump.
iii. Encroachment, if any, into or onto the 10' water
and sewer lines easement recorded in O.R. Book
11704, Page 510, shown on the survey as follows:
(1) asphalt parking areas, concrete curbings
and/or sidewalks (surfical);
(2) concrete slabs;
iv. Encroachment, if any, into or onto the 12' utility
easement, shown on the survey and designated on the
Plat, by the following:
(1) the meandering sidewalk referenced above;
(2) concrete slabs;
(3) non-vehicular access line;
(4) Southern Bell box;
8
<PAGE>
(5) concrete curbings and asphalt parking areas
(surfical);
v. Encroachments and/or easements relative to the
following (located on areas other than those listed
above:
(1) catch basins, fire hydrants, transformer pads,
light poles, dumpsters, concrete slabs, man
holes, clean outs, water meters, signs, and
utility poles;
(2) non-vehicular access lines;
d. As to Easement Parcel 4:
i. Encroachment, if any, into or onto the Parking
Easement recorded in O.R. Book 12505, Page 317, by
the following:
(1) catch basins;
(2) overhead electric lines:
e. As to Easement Parcel 5:
i. Encroachment, if any, into or onto the 30' Berm
Easement recorded in O.R. Book 11032, Page 313, by
the following:
(1) water valve boxes;
(2) light poles;
(3) storm sewer lines;
AS TO PARCELS 6 & 7 (PINE ISLAND):
13. Any state of facts which the Updated Survey shows, or if
Purchaser does not obtain an Updated Survey, any state of
facts which an accurate survey or a personal inspection of the
Project might disclose and any easements or claims of easement
not shown by the public records. The term Updated Survey(s)
shall have the same meaning herein as in Paragraph 3.1 of the
Agreement to which this exhibit is attached.
14. Reservations in favor of the Trustees of the Internal
Improvement Fund of the state of Florida contained in deed
recorded in Deed Book 10, Page 113, Public Records of BROWARD
County, Florida, as to:
a. 3/4th's interest in all phosphate, mineral and metal
rights.
b. 1/2 interest in all petroleum rights.
Other reservations contained therein have been released by
document recorded in Official Records Book 10452, Page 752 and
Official Records Book 10700, page 55.
9
<PAGE>
15. Easement(s) reserved and terms, provisions and obligations
contained in instrument recorded in Official Records Book
7820, Page 647.
16. Restrictions, dedications and easements as contained in the
Plat of Pine Island Plaza Associates, as recorded in Plat Book
115, Page 35, of the Public Records of Broward County,
Florida.
17. Developer Agreement recorded in Official Records Book 10744,
Page 837, together with Bill of Sale recorded in Official
Records Book 11134, Page 956.
18. Cross Access and Parking Agreement recorded in Official
Records Book 11550, Page 106, as supplemented by supplement
thereto recorded in Official Records Book 12423, Page 701.
19. Order of Taking recorded in Official Records Book 8565, Page
981.
20. Unrecorded Easement to Florida Power and Light Company dated
August 5, 1983 as attached to Warranty Deed recorded in
Official Records Book 12562, Page 964 as Exhibit B-1.
21. Easement(s) reserved in instrument recorded in Official
Records Book 11134, Page 957.
22. Easement(s) granted to Florida Power and Light Company
recorded in Official Records book 12533, Page 861.
23. Agreement recorded in Official Records Book 17820, Page 747
and in Official Records Book 18221, Page 109.
24. Road Easement recorded in Official Records Book 18270, Page
244.
25. Cable Television Easement recorded in Official Records Book
19450, Page 330.
26. Those certain Memorandums of Lease recorded in the following
Official Records Books and Pages:
O. R. Book Page
10927 451
10972 284
11550 854
12921 905
13134 736
13140 941
13673 874
13820 94
16046 710
16141 840
16792 126
17003 667
10
<PAGE>
O. R. Book Page
17473 416
18078 825
18251 85
18270 335
18578 207
19258 137
19565 433
19790 270
20098 150
20533 111
20666 10
20785 926
21008 966
21174 47
21210 160
21245 400
21277 552
21296 904
21732 203
22011 663
22292 988
22311 253
22334 926
22557 11
22557 14
22740 603
23079 615
23376 646
23462 3
23462 25
23781 303
23854 984
24274 261
27. UCC-1 Financing Statement recorded in Official Records Book
20905, Page 444 (as to Leasehold interest only and not the
underlying fee interest).
28. The following items with respect to the Easement Parcel 7:
a. Terms, provisions, conditions and obligations in
instrument recorded in Official Records Book 10751, Page
464.
29. UCC-1 Financing Statement recorded in Official Records Book
24274, Page 260 (to be assigned to proposed owner insured
herein).
30. Option to Purchase contained in unrecorded Lease dated May 27,
1983 by and between Pine Island Associates, Ltd., a Florida
limited partnership (Lessor) and Mobil Oil Corporation, a New
11
<PAGE>
York corporation (Lessee), as such lease is evidenced by
Memorandum of Lease of even date therewith and recorded on
February 21, 1984 in O.R. Book 11491, Page 445 and as further
evidenced by Starter Agreement dated November 28, 1983 by and
between the identical parties and recorded on March 5, 1984 in
O.R. Book 11521, Page 875.
Note: Except as otherwise provided herein, all recording
information relates to Broward County, Florida.
Note: Any unrecorded item listed in item numbers 6-30 above
shall not be included in the Exhibit "B" to the Special
Warranty Deed to be delivered at the Closing.
<PAGE>
12
<PAGE>
COMPOSITE EXHIBIT "S"
REPRESENTATION AND WARRANTY LETTER
[TO RIDGE PLAZA JOINT VENTURE]
Re: Buyer's Representation and Warranty Regarding Hart-Scott-
Rodino Notification
Pursuant to Paragraph 12.17 of a certain Purchase and Sale
Agreement ("Purchase Agreement"), dated as of November 1, 1995 and
effective as of November 10, 1995, by and between Ridge Plaza Joint
Venture ("Seller") and PIRP, Inc. ("Buyer"), Buyer and Pine Island
Investment Holdings, Inc. ("Assignee") hereby provide this letter
of warranty and representation to Seller that the acquisition from
the Seller of Ridge Plaza and Pine Island Shopping Centers, 9200
State Road 84 and 8800 State Road 84, Davie, Florida (collectively,
the "Property") by the Assignee and Ridge Plaza Investment
Holdings, Inc. is not subject to the notification and waiting
provisions under the HSR Act and regulations promulgated
thereunder.
Buyer and Assignee hereby jointly and severally represent and
warrant that (a) Assignee is not "controlled" by any other entity
since no other entity or person (i) holds 50% or more of its voting
securities, (ii) has the contractual power presently to designate
half or more of its directors, or (iii) otherwise controls it as
the term "control" is defined under the HSR Act and regulations
promulgated thereunder; (b) Assignee is its "Ultimate Parent
Entity" as that term is defined under the HSR Act and regulations
promulgated thereunder; and (c) both Assignee and Ridge Plaza
Investment Holdings, Inc., as newly formed entities without
regularly prepared balance sheets together have less than $10
million in annual net sales and less than $10 million in total
assets as determined under 16 CFR (sec)801.11(e) (specifically, both
Assignee and Ridge Plaza Investment Holdings, Inc.together have
less than $10 million in total assets on the day of closing, after
excluding from their assets the cash used to acquire their
respective portion of the Property from Seller and the expenses
related to that acquisition).
Any capitalized terms not defined herein shall have the same
meaning as in the Purchase Agreement.
Executed this ________ day of March, 1996, to be effective as
of March ____, 1996.
PIRP, INC., a Delaware corporation
By:----------------------------
Name:--------------------------
Its: Vice President
[SIGNATURE LINES CONTINUED ON NEXT PAGE]<PAGE>
1
<PAGE>
PINE ISLAND INVESTMENT
HOLDINGS, INC.
By:----------------------------
Name:--------------------------
Its:----------------------------
2
<PAGE>
<PAGE>
COMPOSITE EXHIBIT "S"
REPRESENTATION AND WARRANTY LETTER
[TO RIDGE PLAZA JOINT VENTURE]
Re: Buyer's Representation and Warranty Regarding Hart-Scott-
Rodino Notification
Pursuant to Paragraph 12.17 of a certain Purchase and Sale
Agreement ("Purchase Agreement"), dated as of November 1, 1995 and
effective as of November 10, 1995, by and between Ridge Plaza Joint
Venture ("Seller") and PIRP, Inc. ("Buyer"), Buyer and Ridge Plaza
Investment Holdings, Inc. ("Assignee") hereby provide this letter
of warranty and representation to Seller that the acquisition from
the Seller of Ridge Plaza and Pine Island Shopping Centers, 9200
State Road 84 and 8800 State Road 84, Davie, Florida (collectively,
the "Property") by the Assignee and Pine Island Investment
Holdings, Inc. is not subject to the notification and waiting
provisions under the HSR Act and regulations promulgated
thereunder.
Buyer and Assignee hereby jointly and severally represent and
warrant that (a) Assignee is not "controlled" by any other entity
since no other entity or person (i) holds 50% or more of its voting
securities, (ii) has the contractual power presently to designate
half or more of its directors, or (iii) otherwise controls it as
the term "control" is defined under the HSR Act and regulations
promulgated thereunder; (b) Assignee is its "Ultimate Parent
Entity" as that term is defined under the HSR Act and regulations
promulgated thereunder; and (c) both Assignee and Pine Island
Investment Holdings, Inc., as newly formed entities without
regularly prepared balance sheets together have less than $10
million in annual net sales and less than $10 million in total
assets as determined under 16 CFR (sec)801.11(e) (specifically, both
Assignee and Pine Island Investment Holdings, Inc. together have
less than $10 million in total assets on the day of closing, after
excluding from their assets the cash used to acquire their
respective portion of the Property from Seller and the expenses
related to that acquisition).
Any capitalized terms not defined herein shall have the same
meaning as in the Purchase Agreement.
Executed this ________ day of March, 1996, to be effective as
of March _____, 1996.
PIRP, INC., a Delaware corporation
By:----------------------------
Name:--------------------------
Its: Vice President
[SIGNATURE LINES CONTINUED ON NEXT PAGE]<PAGE>
3
<PAGE>
RIDGE PLAZA INVESTMENT
HOLDINGS, INC.
By:----------------------------
Name:--------------------------
Its:---------------------------
4
<PAGE>
<PAGE>
COMPOSITE EXHIBIT "T"
PARTIAL ASSIGNMENT OF PURCHASE AND SALE AGREEMENT,
ESCROW AGREEMENT, ETC.
For Ten and 00/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, PIRP, Inc., a Delaware corporation (the
"Assignor"), does hereby assign and convey to Pine Island
Investment Holdings, Inc., a Delaware corporation (the "Assignee"),
all of Assignor's right, title, interest, duties and obligations,
as the same relate to certain property commonly known as Pine
Island Shopping Center and located at 8800 State Road 84, Davie,
Florida ("Pine Island"), in and to (i) that certain Purchase and
Sale Agreement, dated as of November 1, 1995, effective as of
November 10, 1995, by and between Ridge Plaza Joint Venture
("Seller"), as seller, and Assignor, as buyer (the "Contract"), a
copy of which is attached hereto as Exhibit "A" and incorporated
herein by reference, (ii) that certain Escrow Agreement, dated
November 1, 1995, by and among Seller, Assignor and Shear, Newman,
Hahn & Rosenkranz, P.A., as escrow agent (the "Escrow Agreement"),
a copy of which is attached hereto as Exhibit "B" and incorporated
herein by reference and (iii) a portion of the Initial Earnest
Money Deposit being held pursuant to the Escrow Agreement in the
amount of $7,700.00 plus all applicable interest (the "Funds").
Assignor and Assignee each agree to execute and deliver to the
other such additional documentation as may be reasonably necessary
to implement the intent of this Assignment as required from time to
time by Assignee and Assignor, respectively.
Assignee hereby assumes all responsibilities, rights, title,
interest, duties, liability and obligations (collectively, the
"Obligations") of Assignor effective the date of this Assignment,
in the Contract and the Escrow Agreement to the extent the
Obligations relate to or arise out of Pine Island.
This Assignment shall be binding upon and inure to the benefit
of the respective successors and assigns and, as applicable, the
heirs and legal representatives of the parties hereto.
This Assignment shall be deemed a Florida contract and
construed according to the laws of such state, regardless whether
this Assignment is being executed by any of the parties hereto in
other states or otherwise.
In the event that any provision of this Assignment if
determined by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions shall remain in full force
and effect.
1
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Assignment as of the ______ day of
__________________, 1996.
Signed, Sealed & Delivered
in the presence of: "Assignor"
PIRP, Inc.
- ---------------------------- By:----------------------------
Name:----------------------- Name:--------------------------
Its:---------------------------
- ----------------------------
Name:-----------------------
"Assignee"
PINE ISLAND INVESTMENT
HOLDINGS, INC.
- ---------------------------- By:----------------------------
Name:----------------------- Name:--------------------------
Its:---------------------------
Name:-----------------------<PAGE>
2
<PAGE>
COMPOSITE EXHIBIT "T"
PARTIAL ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
ESCROW AGREEMENT, ETC.
For Ten and 00/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, PIRP, Inc., a Delaware corporation (the
"Assignor"), does hereby assign and convey to Ridge Plaza
Investment Holdings, Inc., a Delaware corporation (the "Assignee"),
all of Assignor's right, title, interest, duties and obligations,
as the same relate to certain property commonly known as Ridge
Plaza Shopping Center and located at 9200 State Road 84, Davie,
Florida ("Pine Island"), in and to (i) that certain Purchase and
Sale Agreement, dated as of November 1, 1995, effective as of
November 10, 1995, by and between Ridge Plaza Joint Venture
("Seller"), as seller, and Assignor, as buyer (the "Contract"), a
copy of which is attached hereto as Exhibit "A" and incorporated
herein by reference, (ii) that certain Escrow Agreement, dated
November 1, 1995, by and among Seller, Assignor and Shear, Newman,
Hahn & Rosenkranz, P.A., as escrow agent (the "Escrow Agreement"),
a copy of which is attached hereto as Exhibit "B" and incorporated
herein by reference and (iii) a portion of the Initial Earnest
Money Deposit being held pursuant to the Escrow Agreement in the
amount of $2,300.00 plus all applicable interest (the "Funds").
Assignor and Assignee each agree to execute and deliver to the
other such additional documentation as may be reasonably necessary
to implement the intent of this Assignment as required from time to
time by Assignee and Assignor, respectively.
Assignee hereby assumes all responsibilities, rights, title,
interest, duties, liability and obligations (collectively, the
"Obligations") of Assignor effective the date of this Assignment,
in the Contract and the Escrow Agreement to the extent the
Obligations relate to or arise out of Ridge Plaza.
This Assignment shall be binding upon and inure to the benefit
of the respective successors and assigns and, as applicable, the
heirs and legal representatives of the parties hereto.
This Assignment shall be deemed a Florida contract and
construed according to the laws of such state, regardless whether
this Assignment is being executed by any of the parties hereto in
other states or otherwise.
In the event that any provision of this Assignment if
determined by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions shall remain in full force
and effect.
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Assignment as of the ______ day of
__________________, 1996.
Signed, Sealed & Delivered
in the presence of: "Assignor"
PIRP, Inc.
- ---------------------------- By:----------------------------
Name:----------------------- Name:--------------------------
3
<PAGE>
Its:---------------------------
- ----------------------------
Name:-----------------------
"Assignee"
RIDGE PLAZA INVESTMENT
HOLDINGS, INC.
- ---------------------------- By:----------------------------
Name:----------------------- Name:--------------------------
Its:----------------------------
- ----------------------------
Name:-----------------------
4
