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 September 22, 1994
(Date of earliest event reported)
CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP
(exact name of registrant as specified in its charter)
CONNECTICUT
(State or other jurisdiction of incorporation)
0-14466 06-1115374
(Commission File Number) (IRS Employer Identification
Number)
900 Cottage Grove Road, South Building 06002
Bloomfield, Connecticut (Zip Code)
(Address of principal executive offices)
(203) 726-6000
(Registrant's telephone number, including area code)
<PAGE>
Connecticut General Realty Investors III Limited Partnership
(a Connecticut limited partnership)
ITEM 2. Acquisition or Disposition of Assets
On September 22, 1994, the Partnership completed the sale of Promenades
Plaza, a shopping center, to Sterling Promenades Limited Partnership, a
Florida limited partnership for an all cash gross sales price of
$6,572,000. The Contract for Purchase and Sale between the parties was
signed on September 21, 1994 and the transaction completed with the
recording of the deed and receipt of consideration on September 22, 1994.
The property was purchased on April 15, 1985 for a total purchase price of
$10,486,000, excluding $1,194,469 of acquisition fees and closing costs.
ITEM 7(C). Exhibits
10(a) Contract for Purchase and Sale dated July 19, 1994, First
Amendment to Contract for Purchase and Sale dated August 18,
1994, and Second Amendment to Contract for Purchase and Sale
dated September 21, 1994 between the Registrant and Sterling
Promenades Limited Partnership, a Florida limited
partnership.
<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.
CONNECTICUT GENERAL REALTY INVESTORS III
LIMITED PARTNERSHIP
By: CIGNA Realty Resources, Inc. - Fifth
General Partner
Date: October 7, 1994 By: /s/ John D. Carey
John D. Carey, President and Controller
(Principal Executive Officer)
(Principal Accounting Officer)
<PAGE>
FORM 8-K
Connecticut General Realty Investors III Limited Partnership
(a Connecticut Limited Partnership)
EXHIBIT INDEX
Exhibit
Number
10(a) Contract for Purchase and Sale dated July 19, 1994,
First Amendment to Contract for Purchase and Sale dated
August 18, 1994, and Second Amendment to Contract for
Purchase and Sale dated September 21, 1994.
<PAGE>
CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE
THIS CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE (herein the
"Contract"), made and entered into by and among CONNECTICUT GENERAL REALTY
INVESTORS III LIMITED PARTNERSHIP, a Connecticut limited partnership
(hereinafter called "Seller"), STERLING EQUITIES, INC., a Florida
corporation (hereinafter called "Buyer"), and CARLTON, FIELDS, WARD,
EMMANUEL, SMITH & CUTLER, P.A. (hereinafter called "Escrow Agent");
W I T N E S S E T H:
WHEREAS, Seller is the sole fee simple owner of the following
described real property situate, lying and being in Charlotte County,
Florida, to-wit:
Parcel 1 of PORT CHARLOTTE PLAZA SECTION 7, a
commercial subdivision lying in Section 22,
Township 40 South, Range 22 East, Charlotte
County, Florida, as per map or plat thereof
recorded in Plat Book 16 on Pages 61A and 61B
of the Public Records of Charlotte County,
Florida, and re-recorded in Plat Book 16,
Pages 63A and 63B of the Public Records of
Charlotte County, Florida.
Together With:
(i) all easements, rights-of-way and other rights
and appurtenances to said described real property (all
of which, together with the above-described real
property, is hereinafter sometimes referred to as "Real
Property"); and
(ii) all buildings and other improvements,
including all shrubs, trees and plants thereon (herein
"Improvements"); and
(iii) all right, title and interest of Seller in
and to all leases of rental space in the buildings
located on the Real Property herein described, together
with all right, title, interest and obligations of
Seller as landlord under said leases, and all
refundable tenant security deposits and other
refundable tenant deposits deposited by tenants under
said leases, together with all interest on said
deposits, if any, due tenants, and copies of all
records of Seller relating to said leases and to
tenants, including, without limitation, applications
for leases and expired leases; and all right, title and
interest of Seller in and to all service contracts,
<PAGE>
utility contracts and other contract rights and
licenses, including (a) the trade name or names
"Promenades Plaza" and "Promenades Plaza Shopping
Center," and (b) logos or other marks used or
designated for use in connection with the Real
Property, and (c) telephone exchange numbers, and (d)
plans and specifications relating to the Real Property
and the Improvements, (all of the foregoing hereinafter
collectively referred to as "Contract Rights"); and
(iv) all personal property, including but not
limited to all equipment, machinery, office equipment
and furnishings, supplies, tools and inventory, and all
other tangible personal property owned by Seller and
located on the Real Property as set forth herein, used
in connection with the operation of the Real Property
and the Improvements thereon as a retail shopping
center, excluding (a) personal property owned by
tenants, (b) furniture, furnishings and other property
owned by Trammell Crow located in the leasing office,
and (c) computer hardware and software owned by Seller
presently used in connection with the operation of the
Real Property and the Improvements thereon as a retail
shopping center (all of the foregoing hereinafter
collectively referred to as "Tangible Personal
Property"); and
(v) all right, title and interest of Seller in
and to all assignable business licenses, permits,
approvals, certificates of occupancy and development
rights related to the Real Property, the Improvements
or the Contract Rights (herein "Business Licenses")
granted or issued by the appropriate governmental
authorities having jurisdiction.
The above-described Real Property and the Improvements
thereon is a retail shopping center located in Port
Charlotte, Charlotte County, Florida, commonly known as
"PROMENADES PLAZA" or "PROMENADES PLAZA SHOPPING
CENTER." All of the foregoing Real Property,
Improvements, Contract Rights, Tangible Personal
Property and Business Licenses included in this sale
are hereinafter collectively referred to as the
"Property."
and
WHEREAS, Buyer desires to purchase the Property from Seller, and
Seller desires to sell the Property to Buyer, under the terms and
provisions as hereinafter set forth.
<PAGE>
NOW, THEREFORE, for and in consideration of the mutual covenants
and promises of the parties hereto and other good and valuable
consideration as hereinafter provided, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, Seller does hereby agree to
sell to Buyer and Buyer does hereby agree to purchase from Seller the
Property, for the price and upon the terms and conditions as hereinafter
set forth:
1. Deposit. Buyer shall, within two [2] Business Days after
the execution of this Contract by Seller and Buyer, deposit with Escrow
Agent the sum of Fifty Thousand Dollars ($50,000.00) in cash or by wired or
certified funds (the "Initial Deposit"), representing a portion of the
earnest money deposit in the total amount of Two Hundred Thousand Dollars
($200,000.00) (the "Deposit") to apply on the Purchase Price of the
Property at closing. Escrow Agent shall, upon receipt of said Initial
Deposit, (a) execute this Contract, and (b) deposit said Initial Deposit in
an interest-bearing account. Buyer shall deliver the balance of the
Deposit, in the amount of One Hundred Fifty Thousand Dollars ($150,000.00)
(the "Additional Deposit") to the Escrow Agent on or before 3:00 p.m. on
the last day of the Due Diligence Period, as defined below. The Deposit
shall be held by Escrow Agent in an interest-bearing account with interest
to be applied as a credit to the Purchase Price. All references herein to
the Deposit shall include any and all interest earned thereon.
2. Purchase Price. The purchase price (herein "Purchase
Price") to be paid by Buyer to Seller for the Property is SIX MILLION THREE
HUNDRED THOUSAND DOLLARS ($6,300,000.00) subject to any applicable increase
therein resulting from the Leasing Earnout as hereinafter defined and
provided; and said Purchase Price shall be payable as follows:
(A) Assumption of Mortgage. Buyer shall purchase the
Property subject to and shall assume the Mortgage Loan ("Mortgage
Loan") evidenced and secured by the following loan documents
(herein "Loan Documents") owned and held by The Equitable Life
Assurance Society of the United States, a New York corporation
(herein "Equitable"), subject to the consent and approval of
Equitable as hereinafter provided, to-wit:
Mortgage Consolidation and Modification
Agreement (herein "Mortgage") dated
December 10, 1986 by and between Seller and
Equitable, recorded in Official Records
Book 896 on Page 1747 of the Public Records
of the Public Records of Charlotte County,
Florida, securing a Renewal Note (herein
"Note") of even date in the original
principal amount of Six Million Dollars
($6,000,000.00); and which said Mortgage and
the Note secured thereby were thereafter
modified and amended by that certain Mortgage
and Note Modification Agreement dated
June 30, 1989 by and between Seller and
<PAGE>
Equitable, recorded in Official Records
Book 1047 on Page 415 of the Public Records
aforesaid.
Seller represents to Buyer that the unpaid principal
balance due on said Note secured by said Mortgage, as modified,
is approximately Five Million Eight Hundred Forty Thousand
Dollars ($5,840,000.00). Any variance in the unpaid principal
amount due on said Note secured by said Mortgage, as modified, at
the time of closing hereunder from said amount of Five Million
Eight Hundred Forty Thousand Dollars ($5,840,000.00) shall be
added to or deducted from the cash payment to be paid by Buyer to
Seller as hereinafter provided.
(B) Cash Payment. Buyer shall pay to Seller in cash or by
federally-wired funds the sum of Four Hundred Sixty Thousand
Dollars ($460,000.00) (or such greater or lesser amount as may be
required to complete payment of said Purchase Price after
prorations as hereinafter provided) upon delivery to Buyer of the
Special Warranty Deed and other documents required by this
Contract, upon which the Deposit shall apply as a part.
3. Title Insurance And Uniform Commercial Code Search.
(A) Buyer shall obtain at closing a Marketability Title
Insurance Policy (1990 ALTA Form, with Florida modifications) (herein
"Title Policy") (unqualified and without exception to title except for the
Permitted Exceptions as provided in Paragraph "7" hereof) on the Property
in the full amount of the Purchase Price, and such Policy shall be
purchased from and issued by a title insurance company acceptable to Buyer
(herein "Title Company"). Buyer shall pay the Title Policy premium. A
written Commitment or Binder for said insurance (herein "Binder"), together
with legible copies of all instruments and documents affecting title to the
Property as shown on said Binder, shall be obtained by Buyer within fifteen
(15) Business Days after the Effective Date of this Contract; and Buyer
shall furnish Seller a copy of said Binder and copies of said instruments
and documents.
In the event the Binder for such a Policy shows any
exceptions to title that are reasonably unacceptable to Buyer (collectively
the "Title Defects"), Buyer or its attorney shall notify Seller or its
attorney in writing within ten (10) Business Days after receipt by Buyer of
the Binder and legible copies of all instruments and documents of record
affecting title to the Property as shown on said Binder, specifying the
Title Defects which exist with respect to the title to the Property.
Seller shall notify Buyer in writing within five (5) Business Days after
receipt by Seller or its attorney of notice from Buyer of any Title
Defects, whether or not Seller will attempt to cure any such Title Defects
(the "Seller's Notice"). In the event Seller, by Seller's Notice to Buyer,
elects not to attempt to cure any such Title Defects, Buyer shall notify
Seller or its attorney in writing within five (5) Business Days after
receipt by Buyer of Seller's Notice in which Seller elects not to attempt
<PAGE>
to cure Title Defects whether Buyer elects to (a) waive any such Title
Defects, or (b) terminate this Contract. In the event Buyer elects to
terminate this Contract, the Deposit paid by Buyer shall be returned to
Buyer and thereupon all rights and liabilities arising hereunder shall
terminate. In the event Seller, by Seller's Notice, elects to attempt to
cure any such Title Defects, Seller shall have a period of sixty (60) days
after Seller notifies Buyer in writing that Seller will attempt to cure any
such Title Defects within which to attempt to cure any such Title Defects
to the satisfaction of the Title Company; and, subject to the other terms
and provisions of this Contract, this sale shall be closed within ten (10)
Business Days after written notice of such curing to Buyer; provided,
however, no such closing shall be earlier than the Closing Date as
hereinafter provided. In the event Seller elects to attempt to cure Title
Defects as herein provided, Seller shall proceed immediately to attempt to
cure Title Defects after notice by Seller or its attorney to Buyer that
Seller will attempt to cure Title Defects; and Seller shall use reasonable
diligence to attempt to cure any such Title Defects. In the event
(i) Seller elects to attempt to cure Title Defects, and (ii) Seller fails
to cure Title Defects of which written notice has been given under and
pursuant to the terms and provisions hereof within the period aforesaid,
Buyer may, at its option, by written notice to Seller, either (a) terminate
this Contract, and upon such termination the Deposit paid by Buyer shall be
returned to Buyer and thereupon all rights and liabilities arising
hereunder shall terminate, or (b) waive all conditions in this Paragraph
"3(A)" and, subject to all the other terms and provisions of this Contract,
close this transaction in the same manner as if no such Title Defects had
been found.
(B) Within fifteen (15) Business Days after the Effective
Date of this Contract Buyer may obtain a Uniform Commercial Code Search
(UCC-11) from the Secretary of State of the State of Florida which will
show all outstanding financing statements ("Outstanding Financing
Statements") encumbering any of the Improvements, Contract Rights or
Tangible Personal Property of the Seller included in this sale. Buyer
shall notify Seller of any and all encumbrances shown on the Outstanding
Financing Statements to which Buyer objects within five (5) Business Days
of Buyer's receipt of the UCC-11 Search. Seller shall notify Buyer in
writing within five (5) Business Days after receipt by Seller or its
attorney of notice from Buyer of any Outstanding Financing Statements to
which Buyer objects, whether or not Seller will attempt to remove any such
Outstanding Financing Statements (the "Seller's Notice"). In the event
Seller, by Seller's Notice to Buyer, elects not to remove any such
Outstanding Financing Statements, Buyer shall notify Seller or its attorney
in writing within five (5) Business Days after receipt by Buyer of Seller's
Notice in which Seller elects not to remove the Outstanding Financing
Statements whether Buyer elects to (a) waive any such Outstanding Financing
Statements or (b) terminate this Contract. In the event Buyer elects to
terminate this Contract, the Deposit paid by Buyer shall be returned to
Buyer and thereupon all rights and liabilities arising hereunder shall
terminate.
<PAGE>
4. Closing. Subject to the aforesaid curative period for
curing defects in title, the curative period for curing Encroachments and
Survey Defects as hereinafter provided, and all other conditions as herein
provided, this sale shall be closed and the deed and other closing
documents as herein provided shall be delivered on or before thirty (30)
days after the Due Diligence Period as hereinafter provided (herein "First
Closing Period"); provided, however, Buyer may, if required to close the
assumption of the Mortgage Loan evidenced and secured by the Loan
Documents, owned and held by Equitable, extend the First Closing Period for
an additional thirty (30) days (herein "Extended Closing Period") by
written notice to Seller no later than the last day of the First Closing
Period. The exact date for closing within the First Closing Period or the
Extended Closing Period, as applicable, shall, subject to the terms and
provisions of this Contract, be set by the Buyer provided the Buyer or its
attorney gives the Seller or its attorney at least five (5) Business Days'
prior notice of the closing date. In the event Buyer fails to so notify
Seller, the closing shall occur on the last day of the First Closing Period
or the last day of the Extended Closing Period, as applicable, at 10:00
a.m. DST. This sale and purchase shall be closed at the offices of
Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. - One Harbour Place,
777 So. Harbour Island Boulevard, Tampa, Florida, 33602, or at such other
location in Tampa, Hillsborough County, Florida that is acceptable to the
parties hereto.
5. Costs And Liens. Seller shall pay (i) for all required
documentary stamps to be affixed to the Special Warranty Deed, (ii) for
recording any and all documents to cure any Title Defects, (iii) at or
prior to closing, subject to the terms and provisions hereof, all amounts
required to pay in full and satisfy of record any and all liens on the
Property, and (iv) Seller's attorneys' fees. Buyer shall pay (i) Buyer's
attorneys' fees, (ii) recording fees for the Special Warranty Deed, (iii)
Title Policy premium, (iv) Survey costs and (v) all costs associated with
the Feasibility Study as hereinafter provided.
6. Taxes And Assessments, And Prorations.
(A) Seller shall pay all due and unpaid real estate taxes
and tangible personal property taxes on the Property prior to or at
closing. Real estate taxes and tangible personal property taxes on the
Property which are not due and payable for the year of closing shall be
prorated on a calendar year basis as of the Closing Date on the basis of
maximum discounts allowed by taxing authorities. If the amount of taxes
for the year of closing cannot be ascertained, rates, millages and assessed
valuations for the previous year, with known changes, shall be used for
proration purposes at closing; however said real estate taxes shall
thereafter at the request of Seller or Buyer be reprorated by and between
Seller and Buyer within sixty (60) days after receipt by Seller or Buyer of
the statement or statements therefor from the proper taxing authority or
authorities. Seller shall pay all certified, confirmed and ratified
special assessment liens on the Property as of the Closing Date. Buyer
shall pay for or assume the obligation for the payment of pending special
assessment liens as of the Closing Date, except that where an improvement
<PAGE>
has been substantially completed as of the date of closing, such pending
special assessment lien shall be considered as certified, confirmed and
ratified, and Seller shall at closing be charged an amount equal to the
last estimate by the public body or authority charging for the same. If at
the time of closing the Property or any portion thereof is subject to or
affected by any special assessment payable in installments, of which the
first installment shall be a charge or lien or shall have been paid, all of
the remaining installments shall be due and payable for the purpose of this
Contract and shall be paid by Seller at the time of closing. All utilities
on the Property (not including items for which tenants are directly liable
and Seller has no direct or contingent liability) shall be transferred from
Seller to Buyer on the Closing Date, and Seller shall pay the bill or bills
for all utility charges for utilities supplied to the Property through the
Closing Date upon receipt by Seller of the bill or bills therefor; and
Buyer shall pay all bills for utility charges for utilities supplied to the
Property after the Closing Date.
(B) All charges on service contracts, current rents
collected by Seller from tenants, and other income and operational expenses
shall be prorated as of the Closing Date. Delinquent rents (rents not paid
within any applicable grace period in the Leases) existing at the time of
closing which are subsequently collected by Buyer within six (6) months
after the Date of Closing [said six-(6)-month period shall not apply to
Percentage Rent], or proper prorated share thereof, shall be remitted to
Seller, less any reasonable cost and expenses incurred in their collection;
it being understood that the rents collected by Buyer after closing shall
be applied first to monthly rents due and payable after closing, then rents
shall be applied to delinquent rents. In the event Seller has collected
from any tenant under any tenant lease any percentage rent (the "Percentage
Rent") on an estimated basis, Seller and Buyer agree as follows: (i) all
Percentage Rent collected by Seller on an estimated basis shall be
appropriately adjusted with the appropriate tenant or tenants at the end of
the applicable period as provided in any applicable tenant lease, and (ii)
proration of all Percentage Rent collected by Seller on an estimated basis
shall on written request of Seller or Buyer be readjusted or re-prorated at
the end of the applicable period or periods under the terms of each
applicable tenant lease. If any Percentage Rent collected by Buyer after
the Closing Date includes any Percentage Rent for any period prior to the
Closing Date, Buyer shall turn over to Seller its pro rata share of such
Percentage Rent (after deducting therefrom Seller's share of the cost of
collection thereof, if any) if, as and when received by Buyer.
In the event Seller has collected from any tenant under
any tenant lease any pass-throughs, including but not limited to common
area maintenance, real estate taxes and insurance (herein collectively
"Pass-Throughs") on an estimated basis, Seller and Buyer agree as follows:
(i) all Pass-Throughs collected by Seller on an estimated basis shall be
appropriately adjusted with the appropriate tenant or tenants at the end of
the applicable period as provided in any applicable tenant lease; and
(ii) proration of all Pass-Throughs collected by Seller on an estimated
basis shall on written request of Seller or Buyer be readjusted or
reprorated at the end of the applicable period or periods under the terms
<PAGE>
of each applicable lease. If any Pass-Throughs collected by Buyer after
the Closing Date include any Pass-Throughs for any period prior to the
Closing Date, Buyer shall turn over to Seller its pro rata share of such
Pass-Throughs (after deducting therefrom Seller's share of the cost of
collection thereof, if any) if, as and when received by Buyer.
(C) All prepaid rentals and prepaid payments applying to
the period from and including the Closing Date, and all unapplied security
deposits and other refundable fees collected from tenants, together with
all interest earned thereon, if any, payable to tenants, shall be delivered
over and paid to Buyer by (i) a reduction in the amount of the Purchase
Price to be paid by Buyer to Seller at the time of closing as herein
provided, or (ii) cashier's check or certified check.
(D) Seller's present insurance coverage on the Property is
in the form of a blanket policy or policies insuring the Property and other
properties. Therefore, (i) Buyer shall obtain at the time of closing, at
its expense, new insurance coverage on the Property, and (ii) insurance
premiums shall not be prorated as of the Closing Date.
(E) Seller, in connection with the ownership and operation
of the Property, has fully and timely complied with all the terms and
provisions of Chapter 212 of the Florida Statutes, as amended ("Statute"),
including but not limited to (i) the timely filing by Seller of all tax
returns with the Department of Revenue of the State of Florida
("Department"), and (ii) the payment by Seller of all taxes due the
Department on all rentals received by Seller from all tenants under the
terms and provisions of all Leases. Seller agrees, at Seller's sole cost
and expense, to [1] obtain from the Department and furnish to Buyer no
later than ten (10) business days after the Effective Date of this Contract
an original written report or status letter ("Status Letter") executed by a
duly authorized representative of the Department, which Status Letter shall
indicate that [i] Seller has paid all taxes, interest (if any) and
penalties (if any) due the Department, or [ii] no taxes, interest or
penalties are due the Department by Seller, and [2] furnish to Buyer no
later than ten (10) business days after the Effective Date of this
Contract, true and correct copies of the returns filed by Seller with the
Department for each of the six (6) calendar months immediately prior to the
Effective Date of this Contract. Further, Seller agrees as follows:
(a) within fifteen [15] business days after the Closing Date, to make a
final return with the Department and make payment to the Department of all
taxes, interest and penalties due the Department, and (b) that Buyer, on
the Closing Date, may withhold and place with Escrow Agent a sufficient
portion of the Purchase Price ("Purchase Price Portion") which in Buyer's
judgment, reasonably exercised, will safely cover the amount of any taxes,
interest and penalties due and unpaid the Department until Seller shall
furnish to Buyer a receipt ("Receipt") from the Department showing that all
taxes, interest and penalties due the Department have been paid by Seller,
or a Certificate ("Certificate") from the Department stating that no taxes,
interest or penalties are due from Seller [upon the receipt by Buyer of
said Receipt or said Certificate, Buyer shall cause Escrow Agent to pay to
<PAGE>
Seller the Purchase Price Portion]. The terms and provisions of this
Paragraph "6(E)" shall survive the Closing of this transaction.
(F) Seller shall deliver over and pay to Buyer at closing,
by a reduction in the amount of the Purchase Price to be paid by Buyer to
Seller at the time of closing as herein provided, all of the following
which exist or are obligations of the Seller as of the Effective Date of
this Contract, to-wit: (i) the amount of any free rent provided any
tenant; (ii) any unpaid tenant allowances; (iii) any unfinished landlord's
construction obligations less and except the landlord's obligations under
the terms and provisions of the Winn-Dixie Lease as hereinafter provided;
(iv) other concessions granted to tenants; (v) any brokerage commissions
payable in connection with any lease; and (vi) any other obligation of
Seller in connection with the Property; provided, however, Seller and Buyer
understand and agree that the foregoing terms and provisions of this
Subparagraph "6(F)" shall not be applicable to [i] the Winn-Dixie Lease,
[ii] any relocation of any Existing Tenant or termination of any Existing
Lease or any new lease or new leases under the terms and provisions of the
Leasing Earnout as provided in Paragraph "23" hereof, [iii] the Mortgage
Loan evidenced and secured by the Loan Documents owned and held by
Equitable which encumber the Property, or [iv] any leasing commission and
any tenant concession in connection with or related to any lease
consummated after the Effective Date of this Contract which has been
approved by Buyer pursuant to Paragraph "20" hereof.
(G) All unspent Merchants' Association dues collected by
Seller from tenants shall be credited to Buyer at closing on the basis of
an accounting for the calendar year. Delinquent Merchants' Association
dues existing at the time of closing which are subsequently collected by
Buyer within six (6) months after closing, or proper prorated share
thereof, shall be remitted to Seller, less any reasonable cost and expenses
incurred in their collection, it being understood that the Merchants'
Association dues collected by Buyer after closing shall be applied first to
Merchants' Association dues due and payable after the closing, then
Merchants' Association dues shall be applied to delinquent Merchants'
Association dues.
(H) The Purchase Price as provided in Paragraph "2" of this
Contract shall be increased or decreased as may be required by the
proration of all items as set forth in this Paragraph "6."
7. Conveyance. Upon payment of the Purchase Price by Buyer to
Seller (adjusted by prorations as herein provided), Seller agrees to convey
title to the Property to Buyer or Buyer's Permitted Assignee under the
terms hereof by Special Warranty Deed free and clear of all liens and
encumbrances except (i) real estate taxes for the year of closing and
subsequent years, none of which shall be due and payable at closing, and
(ii) such other exceptions to title that are (a) accepted in writing by
Buyer, or (b) deemed to be accepted by Buyer under the terms hereof (said
items (i) and (ii) are herein referred to as "Permitted Exceptions").
<PAGE>
8. Possession. Seller agrees to deliver occupancy and
possession of the Property to Buyer on the Closing Date; subject, however,
to (i) the possession and occupancy rights of tenants occupying rental
space in the buildings located on the Real Property under existing tenant
leases or rental agreements at closing, and (ii) the rights of others to
use any part of the Property under the terms and provisions of the
Permitted Exceptions.
9. Remedies Upon Default.
(A) If (i) Buyer fails or refuses to perform this Contract,
and (ii) Seller is not in default under any of the terms and provisions of
this Contract, the Deposit paid by Buyer under the terms hereof shall be
paid to Seller as full and agreed consideration for the execution of this
Contract, and as liquidated damages, in full settlement of any claims for
damages, as Seller's sole remedy hereunder, and Seller shall have no right
of specific performance.
(B) If (i) Seller fails or refuses to perform this
Contract, and (ii) Buyer is not in default under any of the terms and
provisions of this Contract, Buyer may, at its option, either (i) make
written demand of the Escrow Agent and Seller for the return of the Deposit
paid by Buyer under the terms hereof, and upon such written demand the
Deposit shall be returned to Buyer and thereupon all rights and liabilities
arising hereunder shall terminate, or (ii) sue Seller for specific
performance of this Contract; provided, however, and notwithstanding any of
the foregoing terms and provisions of this Subparagraph "9(B)," if the
title to the Property to be conveyed by Seller to Buyer at closing is not
good and insurable title to the Property because of action taken by
Equitable to foreclose the Loan Documents which [i] secure the Mortgage
Loan, and [ii] encumber the Property, the Seller may by written notice to
Buyer terminate this Contract, and upon such termination the Deposit paid
by Buyer shall be returned to Buyer and thereupon all rights and
liabilities arising hereunder shall terminate.
10. Brokerage Fees. It is understood and agreed that this sale
and purchase has been brought about through the services of (1) CSC Realty
Partners, Inc. ("CSC" or "Broker"), a Florida registered real estate broker
whose address is 450 North Park Road, Suite 301, Hollywood, Florida, 33021,
and (2) Sterling Realty Services, L.C. ("Sterling Realty"), whose address
is 303 Royal Poinciana Plaza, Palm Beach, Florida, 33480. Seller agrees to
pay CSC as a commission for its services at the time of and only in the
event of a closing of the purchase of the Property by Buyer under the terms
of this Contract the sum of Two Hundred Fifty-Two Thousand Dollars
($252,000.00) [no commission shall be paid to the Broker on any amount
received by Seller as Leasing Earnout as provided in Paragraph "23"
hereof]. CSC agrees to pay Sterling Realty a sum for its services pursuant
to a separate agreement between CSC and Sterling Realty.
Seller represents to Buyer that there are no real estate
brokers, finders or other persons or entities involved in connection with
this transaction other than CSC by, through or under Seller that are
<PAGE>
entitled to a real estate commission, finder's fee or other fee; and Seller
agrees to indemnify Buyer against any claims of CSC and any other broker,
any other finder or other person or entity claiming a real estate
commission or fee in connection with this sale by, through or under Seller,
including all costs and reasonable attorneys' fees expended by Buyer in the
defense of any such claim. Further, in the event CSC or Sterling Realty or
any other broker, any other finder or other person or entity claiming a
real estate commission or fee in connection with this sale by, through or
under Seller files a suit naming Buyer as a defendant, Seller agrees at its
cost and expense to defend any such suit or action naming Buyer as a
defendant.
Buyer represents to Seller that there are no real estate
brokers, finders or other persons or entities involved in connection with
this transaction other than CSC and Sterling Realty, by through or under
Buyer that are entitled to a real estate commission, finder's fee or other
fee; and Buyer agrees to indemnify Seller against any claims of any other
broker, any other finder or other person or entity claiming a real estate
commission, finder's fee or other fee in connection with this sale by,
through or under Buyer, including all costs and reasonable attorneys' fees
expended by Seller in the defense of any such claim. Further, in the event
any other broker, any other finder or other person or entity claiming a
real estate commission, finder's fee or other fee in connection with this
sale by, through or under Buyer files a suit naming Seller as a defendant,
Buyer agrees at its cost and expense to defend any such suit or claim
naming Seller as a defendant.
CSC, by the execution hereof, hereby (i) consents and agrees
to the terms and provisions of this Paragraph "10," (ii) represents to
Seller and Buyer that to its knowledge there are no brokers, finders or any
other person or entity involved in connection with this transaction other
than CSC and Sterling Realty, and (iii) releases and discharges Buyer from
any and all liability for the payment of any commission or fee in
connection with this transaction, and (iv) releases and discharges Seller
from any and all liability for the payment of any commission or fee to
Sterling Realty in connection with this transaction.
Sterling Realty, by the execution hereof, hereby
(i) consents and agrees to the terms and provisions of this Paragraph "10,"
(ii) represents to Seller and Buyer that to its knowledge there are no
brokers, finders or any other person or entity involved in connection with
this transaction other than CSC and Sterling Realty, and (iii) releases and
discharges Buyer and Seller from any and all liability for the payment of
any fee in connection with this transaction.
11. Casualty Loss. Should the Improvements on the Real Property
and/or the Tangible Personal Property be damaged or destroyed by fire or
other casualty (herein "Casualty Damage") before the delivery of the deed
hereunder, and the cost to repair or replace the Casualty Damage as
evidenced by the lowest bid received by Seller from a licensed and
qualified independent contractor (herein "Contractor") (said bid to repair
or replace the Casualty Damage is hereinafter referred to as "Construction
<PAGE>
Cost") is less than Fifty Thousand Dollars ($50,000.00), Seller shall have
the right but not the obligation to repair or replace said Casualty Damage.
In the event (a) Seller elects to repair or replace said Casualty Damage,
and (b) the Casualty Damage cannot be repaired or replaced prior to the
Closing Date, the Closing Date and delivery of possession as herein
provided shall be extended and shall occur within fifteen (15) Business
Days after the completion of the repair and replacement of said Casualty
Damage. If Seller does not, within fifteen (15) days after the date of the
Casualty Damage, or prior to the Closing Date, whichever first occurs,
notify Buyer of Seller's election to so repair or replace any such Casualty
Damage, Buyer may, at its election:
(i) terminate this Contract without any liability to
Seller, and thereupon the Deposit paid by Buyer under the terms
hereof shall be returned to Buyer and thereupon all rights and
liabilities arising hereunder shall terminate; or
(ii) proceed with the purchase of the Property pursuant to
this Contract, provided the Purchase Price shall be reduced by an
amount equal to the Construction Cost; or
(iii) proceed with the purchase of the Property pursuant to
this Contract with no reduction in the Purchase Price except for
a reduction in an amount equal to the deductible amount of any
applicable insurance coverage, in which case Seller shall assign
its rights to any and all insurance proceeds to Buyer and all
insurance proceeds actually held by Seller shall be delivered to
and retained by Buyer, and Buyer shall be entitled to settle the
loss with Seller's insurers.
Should the Casualty Damage occur before the delivery of the
deed, and the Construction Cost determined as provided above equals or
exceeds the sum of Fifty Thousand Dollars ($50,000.00), either Seller or
Buyer may terminate this Contract upon notice to the other within fifteen
(15) Business Days after the date of the occurrence of the Casualty Damage
or prior to the Closing Date, whichever shall first occur; and upon such
termination by Seller or Buyer, the Deposit paid by Buyer under the terms
hereof shall be returned to Buyer and thereupon all rights and liabilities
arising hereunder shall terminate; provided, however, if Seller notifies
Buyer of Seller's election to terminate this Contract pursuant to the terms
and provisions of this paragraph, Buyer shall have the right within ten
(10) Business Days after being served with any such notice by Seller, or
prior to the Closing Date, whichever shall first occur, to notify Seller of
Buyer's election to proceed with the purchase of the Property pursuant to
this Contract, with no reduction in the Purchase Price except for a
reduction in an amount equal to the deductible amount of any applicable
insurance coverage, in which case Seller shall assign its rights to any and
all insurance proceeds to Buyer and all insurance proceeds actually held by
Seller shall be delivered to and retained by Buyer, and the Buyer shall be
entitled to settle the loss with Seller's insurers.
<PAGE>
12. Survey. Buyer may, at Buyer's expense, during the Due
Diligence Period obtain an As-Built Survey of the Real Property and the
Improvements thereon (herein "Survey") prepared by a Florida registered
land surveyor (herein "Surveyor"); and said Survey shall show thereon and
include (i) the Real Property and the legal description thereof,
(ii) Certificate by the Surveyor certified to Buyer, Seller and the Title
Company, dated as of a date not earlier than the Effective Date of this
Contract, (iii) all above-ground Improvements on the Real Property and all
physical matters on the ground affecting the Real Property, (iv) whether
the Property is located in a "Special Flood Hazard Area" as defined by a
review of a stated, identified Flood Hazard Boundary Map or Flood Hazard
Rate Map published by the Federal Insurance Administration of the U.S.
Department of Housing & Urban Development, and the Flood Zone or Flood
Zones applicable to the Real Property, (v) all easements of record
affecting the Real Property, with proper notation of book and page of each
such easement as recorded in the Public Records of Charlotte County,
Florida, (vi) the lines of the public street or streets abutting the Real
Property, and the widths and centerlines of all said streets, and (vii) all
encroachments, if any, on the Property or any portion thereof. If said
Survey shows (i) any encroachments on the Real Property or that
Improvements on the Real Property encroach on other lands (herein referred
to as "Encroachments"), or (ii) that the Real Property is not adjacent and
contiguous to a publicly-dedicated right-of-way, or (iii) any other facts
that will prevent the Title Company from eliminating the survey exception
from the Title Policy (said Items (ii) and (iii) are hereinafter referred
to individually and collectively as "Survey Defects"), written notice to
that effect shall be given to the Seller or its attorney within ten (10)
days after the receipt by Buyer of said Survey; and Seller or its attorney
shall, within five (5) days after receipt by Seller or its attorney from
Buyer or its attorney of notice of any such Encroachments or Survey
Defects, notify Buyer in writing whether or not Seller will attempt to cure
any such Encroachments or Survey Defects (herein "Seller's Notice"). In
the event Seller, by Seller's Notice to Buyer, elects not to attempt to
cure any such Encroachments or Survey Defects, Buyer shall notify Seller or
its attorney in writing within five (5) days after receipt by Buyer of
Seller's Notice in which Seller elects not to attempt to cure Encroachments
or Survey Defects whether Buyer elects to (a) waive any such Encroachments
or Survey Defects without reduction in the Purchase Price, or (b) terminate
this Contract. In the event Buyer elects to terminate this Contract, the
Deposit paid by Buyer under the terms hereof shall be returned to Buyer and
thereupon all rights and liabilities arising hereunder shall terminate. In
the event Seller, by Seller's Notice, elects to attempt to cure any
Encroachments or Survey Defects, Seller shall have a period of sixty (60)
days after Seller or Seller's attorney notifies Buyer in writing that
Seller will attempt to cure Encroachments or Survey Defects within which to
attempt to cure such Encroachments or Survey Defects; and, subject to the
other terms and provisions of this Contract, this sale shall be closed
within ten (10) Business Days after written notice of such curing to Buyer;
provided, however, no such closing shall be earlier than the Closing Date
as herein provided. In the event Seller elects to attempt to cure
Encroachments or Survey Defects as herein provided, Seller shall proceed
immediately to attempt to cure Encroachments or Survey Defects after notice
<PAGE>
by Seller or its attorney to Buyer that Seller will attempt to cure
Encroachments or Survey Defects, and Seller shall use reasonable diligence
to attempt to cure any such Encroachments or Survey Defects. In the event
(i) Seller elects to attempt to cure any Encroachments or Survey Defects,
and (ii) Seller fails to cure any such Encroachments or Survey Defects of
which written notice has been given under and pursuant to the terms and
provisions hereof within the time limit aforesaid, Buyer may, at its
option, either (a) terminate this Contract, and upon such termination the
Deposit paid by Buyer under the terms hereof shall be returned to Buyer and
thereupon all rights and liabilities arising hereunder shall terminate, or
(b) waive all conditions in this Paragraph "12" and, subject to all the
other terms and provisions of this Contract, close this transaction in the
same manner as if no such Encroachments or Survey Defects had been found.
13. Lien And Possession Affidavit. At the closing of the sale
and purchase of the Property Seller shall furnish to Buyer Seller's
Affidavit in form acceptable to the Title Company sufficient to remove
standard printed exceptions to title in the Title Policy regarding
(a) unrecorded matters (except real estate taxes not yet due and payable),
(b) parties in possession, except for (i) the rights of tenants in
possession and occupancy of rental space located on the Real Property, and
(ii) the rights of others to use any portion of the Property under the
terms and provisions of the Permitted Exceptions, and (c) mechanics' liens.
14. Tax Act Affidavit. At the closing of this sale and
purchase, in order to comply with the United States Internal Revenue Code &
Treasury Regulations relating to the withholding of a tax equal to ten
percent (10%) of the amount realized on the transfer if the transferor
(seller) is a foreign person as defined in the United States Internal
Revenue Code, Seller and the general partner of Seller shall make, have
witnessed and appropriately acknowledged an Affidavit sufficient so that
the withholding of a tax is not required upon the disposition of the
Property.
15. Further Covenants And Agreements of Seller. In addition to
all other covenants of Seller contained in this Contract, Seller covenants
and agrees as follows:
(a) Seller shall deliver to Buyer within ten (10) days
after the Effective Date of this Contract a rent roll (herein
"Rent Roll") for the Property signed and certified by Seller as
being true and correct, which will include, as of June 1, 1994,
(i) a computer printout of all tenant leases affecting the
Property, and (ii) separate schedules which show (a) all prepaid
rents or prepaid payments by tenants, if any, and (b) all
unapplied security deposits from tenants, if any, (c) all
delinquencies by tenants, if any. And further, Seller agrees, at
its sole cost and expense, to deliver to Buyer prior to closing a
current updated Rent Roll dated as of a date not earlier than
five (5) days prior to closing, signed and certified by Seller as
being true and correct.
<PAGE>
(b) At the time of closing Seller shall transfer and convey
to Buyer only service contracts on the Property acceptable to
Buyer, if any, by instrument of assignment in form as may be
reasonably acceptable to Seller and Buyer; however said
assignment shall contain terms and provisions providing (i) that
Seller as assignor shall agree to indemnify and hold harmless
Buyer as assignee from all obligations and liabilities arising
out of Seller's performance or failure to perform Seller's
obligations under any such contracts and agreements through the
Closing Date, and (ii) that Buyer as assignee agrees to indemnify
and hold harmless Seller as assignor against any claims or losses
arising under any such contracts and agreements from and after
the Closing Date. Seller shall, at its sole cost and expense no
later than the date of closing, terminate all service contracts
on the Property not acceptable to Buyer.
(c) At the time of closing Seller shall transfer and assign
to Buyer all of Seller's right, title and interest in and to all
tenant leases in effect, and rents due thereunder, by instrument
of assignment in such form as may be reasonably acceptable to
Seller and Buyer, however said assignment shall contain terms and
provisions providing (i) that Seller as assignor shall agree to
indemnify and hold harmless Buyer as assignee from all
obligations and liabilities arising out of Seller's performance
or failure to perform Seller's obligations as landlord under such
leases through the Closing Date, (ii) that Buyer as assignee
shall accept the assignment of said leases and agree to perform
all of the terms, covenants and conditions of such leases on the
part of the Buyer as landlord therein required to be performed
from and after the Closing Date, including but not limited to the
obligation to repay in accordance with the terms of such leases
and rental agreements to tenants thereunder security and other
prepaid deposits, but only to the extent such security and other
deposits had been disclosed by Seller as assignor and paid or
credited to Buyer at closing, and (iii) that Buyer as assignee
shall covenant and agree to indemnify, save and hold harmless
Seller as assignor from and against any and all losses,
liability, claims or causes of action existing in favor of or
asserted by the tenants under such leases arising out of or
relating to Buyer's failure to perform any of the obligations as
landlord under such leases from and after the Closing Date.
(d) At the time of the closing Seller shall transfer and
convey to Buyer all other Contract Rights (excluding service
contracts and tenant leases) by instrument of assignment in such
form as may be reasonably acceptable to Seller and Buyer; and at
the time of closing Seller shall deliver to Buyer a letter
addressed to all tenants signed by Seller, advising tenants to
make future rental payments as directed by Buyer, and advising
all tenants that all tenant security deposits and other prepaid
deposits (if any) have been transferred to Buyer. Said letter
<PAGE>
shall be in such form as may be reasonably acceptable to Seller
and Buyer.
(e) At the time of closing Seller shall deliver to Buyer
all original leases and all modifications and amendments thereto,
contracts, plans, specifications, brochures and marketing
material in the possession of Seller or Seller's managing agent
at the Property.
(f) At the time of closing Seller shall transfer and convey
to Buyer title to all Tangible Personal Property by bill of sale
without warranty, subject only to the Permitted Exceptions, and
such bill of sale shall be in form reasonably acceptable to
Seller and Buyer with the inventory list to be used as an
attachment to said bill of sale. Seller shall provide Buyer with
the inventory list of personal property within ten (10) days of
the Effective Date of this Contract.
(g) Seller shall at the time of closing transfer and assign
to Buyer all assignable Business Licenses issued by the
appropriate governmental authorities having jurisdiction by
instrument of assignment in such form as may be reasonably
acceptable to Seller and Buyer. All prepaid fees for Business
Licenses which are assignable and are assigned shall be prorated
as of the Closing Date.
(h) Buyer shall at closing deposit with the public utility
companies or other companies supplying utilities to the Real
Property (herein "Utility Companies") all utility deposits
required by the Utility Companies; and all utility deposits
deposited with Utility Companies by Seller shall be returned to
Seller.
(i) At the time of closing Seller shall assign to Buyer all
refundable tenant security deposits and other refundable prepaid
deposits, if any, collected from tenants, together with all
interest thereon due tenants, if any, by instrument of assignment
in form reasonably acceptable to Seller and Buyer; however said
assignment shall contain terms and provisions providing (i) that
Seller shall, in such assignment, agree for all acts or omissions
of Seller prior to and including the date of said assignment, to
indemnify and hold harmless Buyer from and against any and all
liability, loss, damages, costs and expenses, including
reasonable attorneys' fees, together with all costs and expenses,
including reasonable attorneys' fees, in any and all appellate
proceedings, (ii) that Buyer shall, in such assignment, (a) agree
to hold, keep and account to all tenants for all tenant security
deposits and other tenant deposits, if any, together with all
interest earned thereon, if any, assigned by Seller to Buyer, and
(b) agree for all acts or omissions of Buyer after the date of
said assignment to indemnify and hold harmless Seller from and
against any and all liability, loss, damages, costs and expenses,
<PAGE>
including reasonable attorneys' fees, together with all costs and
expenses, including reasonable attorneys' fees, in any and all
appellate proceedings, that Seller may incur by reason of,
arising out of or in connection with any claim by any tenant in
connection with or related to any such deposit.
(j) Seller agrees to furnish to Buyer, at Seller's sole
cost and expense, within ten (10) days after the Effective Date
of this Contract, (i) copies of all executed service contracts
affecting the Property, including but not limited to maintenance,
landscaping, janitorial and other services, (ii) copies of all
tenant leases, and (iii) copies of financial operating statements
for the Property for the calendar years 1992 and 1993.
(k) Seller agrees to furnish to Buyer, at Seller's sole
cost and expense, within ten (10) days after the Effective Date
of this Contract, copies of the real estate tax statement and
tangible personal property tax statement on the Property for the
calendar year 1993, whether paid or unpaid.
(l) Seller agrees to furnish to Buyer at Seller's sole cost
and expense, within ten (10) days after the Effective Date of
this Contract, copies of all studies and reports in the
possession of Seller or Seller's management company, concerning
the Property, including but not limited to soil reports,
environmental reports, engineering and architectural studies, and
surveys.
(m) Seller agrees to furnish to Buyer, at Seller's sole
cost and expense, within ten (10) days after the Effective Date
of this Contract, copies of all certificates of occupancy,
licenses, permits and approvals in the possession of Seller or
Seller's management company, issued by appropriate governmental
authorities regarding the Property.
16. Representations and Warranties, and Further Agreements of
Seller. Seller does hereby represent and warrant to, and covenant and
agree with Buyer as follows:
(A) Seller agrees to use its best efforts to obtain and
furnish to Buyer at least five (5) days prior to the date of
closing an estoppel certificate (herein "Estoppel Certificate")
signed by each tenant occupying rental space in the Improvements
or using the Improvements on the Real Property under a written
lease or rental agreement. The Estoppel Certificate shall be in
form prepared by Seller's attorney that is reasonably acceptable
to Seller, Buyer and Buyer's attorney. In the event Seller is
unable to obtain an Estoppel Certificate from any tenant
occupying rental space in the Improvements on the Property,
Seller shall provide Buyer with its Estoppel Certificate
concerning such tenant(s), and Buyer agrees to accept Seller's
Estoppel Certificate as to such tenant(s).
<PAGE>
(B) That Seller has, to the best of its knowledge, complied
with all applicable laws, ordinances, regulations, statutes,
rules and orders, all requirements of all governmental bodies,
boards, agencies and authorities, and all restrictions and
material provisions of any agreements pertaining to or affecting
the Property; that Seller has not, to the best of Seller's
knowledge, violated and has not received any notice of any
violation of, any such law, ordinance, regulations, statutes,
rule, order, requirement, restriction or provision; and that the
Seller is not aware of the presence of any pollutant,
contaminant, chemical or other industrial toxic or hazardous
substance, material or waste on, in or under the Property or of
any condition which is likely to pose a significant threat that
the Property may be exposed to any pollutant, contaminant,
chemical or other industrial toxic or hazardous substance,
material or waste.
(C) That to the best of Seller's knowledge Seller has not
received any notice of nor does Seller have any knowledge of any
existing or threatened condemnation involving the Property.
(D) That the leases of equipment, contracts relating to
service, maintenance and operation of the Property and employment
and management contracts in connection therewith, if any of the
foregoing, copies of which shall be delivered to Buyer under the
terms hereof, are all of such leases and contracts affecting the
Property, and the copies will be true, complete and accurate
copies thereof; that Seller shall not hereafter contract for any
services or make any leases for equipment or commitments or
obligations therefor which will bind Buyer as a successor in
interest with respect to the Property, other than (i) as provided
in the Winn-Dixie Lease, and (ii) in connection with the Leasing
Earnout as provided in Paragraph "23" hereof, and (iii) equipment
leases and service and maintenance contracts which Buyer has
either approved or which are cancelable without penalty within
thirty (30) days or less after giving notice thereof.
(E) That from and after the date of full execution of this
Contract by Seller and Buyer to the Closing Date Seller shall
conduct its business involving the Property as follows, and
during such period will, except as provided in this Contract,
(a) refrain from transferring any of the Property or creating on
the Property any easements, liens, mortgages, encumbrances or
other interests, except as provided in this Contract, (b) refrain
from entering into any contracts exclusive of Leases regarding
the Property (other than contracts in the ordinary and usual
course of business, and which are cancelable by the owner of the
Property without penalty within thirty [30] days after giving
notice thereof), (c) continue to meet its contractual obligations
and keep in full force and effect the existing fire and extended
coverage insurance for the Property, (d) promptly comply with all
notices of violation by Seller or the Property of state, city or
<PAGE>
municipal laws, ordinances, regulations, ordinances or
requirements or departments of housing, buildings, fire, labor,
health or other state, city or municipal departments or other
governmental authorities having jurisdiction against or affecting
the Property or the use or operation thereof, reserving the right
to challenge issuance of any such notices of violation in its
sole discretion, and (e) continue to operate the Property in the
same manner and in accordance with the same standards as
heretofore.
(F) That Seller (a) is a limited partnership duly organized
and validly existing under and by virtue of the laws of the State
of Connecticut, qualified to do business in Florida and (b) is in
good standing under the laws of the State of Connecticut and
Florida. Seller agrees, at Seller's sole cost and expense prior
to the Closing Date, to furnish to Buyer or Buyer's attorney
(i) a current Certified Copy of the Seller's Limited Partnership
Certificate certified by current Certificate of the Connecticut
Secretary of State, (ii) a current Certificates of good standing
for the Seller issued by the Connecticut Secretary of State and
by the Florida Secretary of State. Seller shall deliver to Buyer
at closing evidence of its authority to deliver the deed and
perform Seller's other obligations under this Contract, in form
and substance reasonably satisfactory to Buyer and the Title
Company.
(G) CIGNA Realty Resources, Inc.-Fifth ("CIGNA Realty") is
a corporation duly organized and validly existing under and by
virtue of the laws of the State of Delaware, (b) is in good
standing under the laws of the State of Delaware, qualified to do
business in Florida, if required and in active status under the
laws of the State of Florida, and (c) is the sole general partner
of Seller. CIGNA Realty, as the general partner of Seller,
agrees, at its sole cost and expense prior to the Closing Date,
to furnish to Buyer or Buyer's attorney (i) a current Certificate
of good standing for CIGNA Realty issued by the Delaware
Secretary of State, and (ii) a current Certificate of active
status issued by the Florida Secretary of State, if applicable.
(H) The representations and warranties set forth above in
this Paragraph "16" (a) are true and correct as of the Effective
Date of this Contract, (b) shall be continuing and true and
correct as of the Closing Date, (c) shall be deemed reaffirmed by
Seller at closing by the delivery of the deed of conveyance, and
(d) shall survive the closing for a period of one [1] year
thereafter.
17. Buyer's Representations, Warranties and Additional
Covenants. Buyer does hereby represent and warrant to and covenant and
agree with Seller as follows:
<PAGE>
Buyer (a) is a corporation duly organized and validly
existing under and by virtue of the laws of the State of Florida,
(b) is in active status under the laws of the State of Florida,
(c) has made all filings and paid all taxes required by the State
of Florida. Buyer agrees, at Buyer's sole cost and expense prior
to the Closing Date, to furnish to Seller or Seller's attorney
(i) a Certified Copy of Buyer's Articles of Incorporation
certified by a current Certificate of the Florida Secretary of
State, and (ii) an original current Certificate of active status
for Buyer issued by the Florida Secretary of State.
18. Condemnation. If at any time prior to the delivery of the
executed deed of conveyance to Buyer as herein provided the Real Property
herein described or any part thereof is taken by eminent domain, or if any
preliminary steps in any taking by eminent domain of the Real Property
herein described or any part thereof occurs prior to such delivery, Buyer
may, at its option, exercised within ten (10) days after receipt by Buyer
of written notice from Seller of such fact (if Buyer receives such notice
from Seller within ten [10] days prior to closing, the Closing Date shall
be extended in order to provide Buyer the aforesaid ten [10] days), rescind
this Contract; and upon such rescission the Deposit paid by Buyer under the
terms hereof shall be returned to Buyer upon demand and all rights and
liabilities arising hereunder shall terminate. Seller shall notify Buyer
in writing of any such taking by eminent domain and all steps preliminary
thereto as soon as the Seller receives notice thereof. In the event Buyer
does not elect to rescind this Contract under such circumstances, Buyer
shall be entitled to all proceeds received or to be received from any
condemning authority, and Seller shall (i) pay to Buyer at closing all such
proceeds received by Seller, and (ii) assign to Buyer all such proceeds to
be thereafter received from any condemning authority, by instrument of
assignment in form reasonably acceptable to Buyer.
19. Buyer's Additional Rights. After the Effective Date of this
Contract Buyer shall have the following additional rights:
(1) The right to have the Property inspected by an engineer
or engineers, architect or architects, or other representatives
selected by Buyer (herein collectively referred to as the
"Representatives"), at Buyer's sole cost and expense; and the
Representatives may enter upon the Real Property and the
Improvements thereon at all reasonable times and do all things
reasonably necessary in connection with said inspection or
inspections; and Seller and its agents and employees shall
cooperate with Buyer and its Representatives in connection with
such inspection or inspections (such inspection or inspections by
said Representatives are herein collectively referred to as the
"Inspections"); and
(2) The right to have the tenant Leases affecting the Real
Property and the Improvements thereon and the books and records
of Seller and the financial information appurtenant to the
operation of the Property, management reports, prior cam reports,
<PAGE>
licenses and certificates of occupancy which are in the
possession of Seller or Seller's managing agent at the Property
examined by an accountant or accountants, representative or
representatives selected by Buyer (herein collectively referred
to as the "Representatives"), at Buyer's sole cost and expense;
and the Representatives may enter upon the Real Property and the
Improvements thereon at all reasonable times and do all things
reasonably necessary in connection with such examination or
examinations; and Seller and its agents and employees shall
cooperate with Buyer and its Representatives in connection with
such examination or examinations (said examination or
examinations by said Representatives are herein collectively
referred to as the "Examinations"); and
(3) The following rights: (i) to have the zoning laws and
other laws and ordinances, orders or requirements affecting the
Real Property and the Improvements thereon, licenses, permits,
Certificates of Occupancy and other permits for the development,
use and operation of the Property and all service and maintenance
contracts, if any, and all equipment leases, if any, reviewed by
an attorney or attorneys or representative or representatives
(all herein collectively referred to as the "Representatives")
selected by Buyer, at Buyer's sole cost and expense, and (ii) to
fully explore and examine the marketing feasibility of the
Property by a representative or representatives of Buyer (all
herein collectively referred to as the "Representatives") at
Buyer's sole cost and expense; and the Representatives may enter
upon the Real Property and the Improvements thereon at all
reasonable times and do all things reasonably necessary in
connection with such Review. Seller and its agents and employees
shall cooperate with Buyer and its Representatives in connection
with any such review by such Representatives (said review by the
Representatives is herein referred to as the "Review").
The Inspections, the Examinations and the Review are
hereinafter sometimes collectively referred to as "Feasibility Study"; and
the period for such Feasibility Study shall (a) commence on the Effective
Date of this Contract, and (b) terminate (herein "Termination Date") thirty
(30) days after Seller furnishes to Buyer the last of the following:
(i) the Rent Roll as provided in Subparagraph "15(a)" hereof, (ii) the
Personal Property Inventory as provided in Subparagraph "15(f)" hereof,
(iii) copies of all Service Contracts, Tenant Leases and Financial
Operating Statements as provided in Subparagraph "15(j)" hereof,
(iv) copies of the real estate tax statement and tangible personal property
tax statement on the Property for the calendar year 1993 as provided in
Subparagraph "15(k)" hereof, (v) copies of all studies and reports in the
possession of Seller or Seller's management company as provided in
Subparagraph "15(l)" hereof, and (vi) copies of all certificates of
occupancy, licenses, permits and approvals in the possession of Seller or
Seller's management company as provided in Subparagraph "15(m)" hereof
(herein sometimes referred to as "Due Diligence Period").
<PAGE>
Buyer shall, no later than the Termination Date, notify
Seller in writing whether the Inspections, Examinations and Review are
satisfactory to Buyer; and in the event Buyer shall fail to so notify
Seller, Buyer shall be deemed to have found such Inspections, Examinations
and Review satisfactory. This Contract is specifically conditioned upon
such Inspections, Examinations and Review being satisfactory to Buyer, in
Buyer's sole discretion; and if for any reason whatsoever the Inspections
or Examinations or Review are not satisfactory to Buyer, and provided Buyer
provides written notice thereof to Seller no later than the Termination
Date, the Initial Deposit paid by Buyer under the terms hereof, together
with all interest earned thereon, shall be returned to Buyer and thereupon
all rights and liabilities arising hereunder shall terminate.
During the Due Diligence Period the Initial Deposit received
by Escrow Agent, together with all interest earned thereon, shall be
refundable to Buyer if Buyer (i) determines in its sole discretion not to
purchase the Property, and (ii) notifies Seller in writing no later than
the Termination Date that Buyer has determined not to purchase the
Property; however, if (1) Buyer determines within the Due Diligence Period
that the Feasibility Study for the Property is satisfactory to Buyer, or
(2) Buyer is deemed to have found said Feasibility Study satisfactory as
provided by the terms and provisions of this Contract, the Initial Deposit
and all interest earned thereon shall be (a) non-refundable except as
herein provided, and provided the Seller is not in default under any of the
terms and provisions of this Contract, and (b) Buyer shall deposit the
Additional Deposit with Escrow Agent on or before the Termination Date, and
(c) the Deposit shall be credited on the Purchase Price for the Property at
closing.
In connection with conducting the Feasibility Study, Buyer
and its Representatives shall: (a) not injure or damage the Property; (b)
give Seller reasonable oral or written notice of the date, time and
proposed activities on the Property, (c) coordinate the Feasibility Study
with Mark V. DePucchio of CIGNA Investments, Inc., (d) not interfere with
the Seller's conduct of its business on the Property or with the conduct of
the tenants' business on the Property; (e) restore the Property to the
condition in which it was found before the Inspections, Examinations and
Review were conducted; (f) not permit any liens to attach to the Property
by reason of Buyer's exercise of its rights under this Paragraph "19"; (g)
comply with all federal, state and local laws, regulations and ordinances,
and with prudent practices; and (h) not disclose the results of the
Inspections, the Examinations or the Review to any party other than Buyer's
Representatives or Buyer's attorneys, or to Seller or Seller's attorneys,
except to the extent required by subpoena or other legal process. Seller
shall have the right, but shall not be obligated, to have a representative
present during the Inspections, the Examinations and the Review of the
Property. Buyer agrees to indemnify and hold Seller and the Property free
and harmless of and from any claim, liability and expenses either involving
bodily injury or property damage arising out of Buyer's Feasibility Study
activities. The Buyer's indemnity obligations found in this Paragraph "19"
shall survive closing under this Contract or termination of this Contract
by Seller or Buyer.
<PAGE>
20. Approval of Leases by Buyer. After the Due Diligence
Period, provided (i) Buyer has not terminated this Contract under the terms
of Paragraph "19" hereof, and (ii) Buyer has deposited with Escrow Agent
the Additional Deposit as provided in Paragraph "1" hereof, Seller shall
not enter into a lease with any tenant for rental space in the Improvements
on the Real Property without Buyer's prior approval of any such lease,
which approval shall not be unreasonably withheld or delayed; provided,
however, if the terms and provisions of any such lease comply with the
terms and provisions of Paragraph "23" hereof, such lease shall be deemed
approved by Buyer.
21. Conditions to Closing. If, as of the date of closing
(i) any tenant or tenants occupying more than ten thousand (10,000) square
feet of leasable area in the aggregate are in material default or vacate
the premises or cancel their leases, or (ii) any other material adverse
change in the Property occurs, Buyer may, by written notice to Seller no
later than the date of closing, terminate this Contract; and upon such
termination the Deposit shall be returned to Buyer and thereupon all rights
and liabilities arising hereunder shall terminate.
22. Consent and Approval of Equitable. Reference is made to the
Mortgage Loan evidenced and secured by the Loan Documents owned and held by
Equitable as set forth in Subparagraph "2(A)" hereof. Seller and Buyer
acknowledge and agree that:
(a) the Mortgage Loan (i) matured under the terms of the
Loan Documents, and (ii) is not in good standing;
(b) the Mortgage Loan has not been reinstated, and Seller
has and shall have no obligation to take any action to reinstate
the Mortgage Loan; and
(c) Buyer desires to (i) purchase the Property subject to
the Mortgage Loan, and (ii) assume the Mortgage Loan as provided
in Paragraph "2" hereof.
Therefore, this Contract is specifically conditioned upon
Buyer obtaining from Equitable and furnishing to Seller no later than
thirty (30) days after the Due Diligence Period as provided in Paragraph
"19" hereof the written commitment of Equitable acceptable to and accepted
by Buyer, containing terms and provisions wherein and whereby (i) the
Mortgage Loan shall be reinstated, (ii) the Loan Documents shall be
modified to change the terms and provisions thereof to permit Buyer to
assume the Mortgage Loan and to change the terms and provisions thereof in
a manner satisfactory to Buyer in its sole and absolute discretion (herein
"Equitable's Consent and Approval"). Buyer shall pay all charges incident
to the reinstatement and assumption of the Mortgage Loan and the
modification of the Loan Documents, including, without limitation, any and
all service fees and other fees payable to Equitable, and any and all costs
in connection with the closing thereof.
<PAGE>
In the event Buyer is unable to obtain and furnish to Seller
Equitable's said Consent and Approval satisfactory to Buyer in its sole and
absolute discretion within thirty (30) days after the Due Diligence Period,
Buyer or Seller may terminate this Contract by written notice to the other;
and upon such termination the Initial Deposit paid by Buyer shall be
returned to Buyer and thereupon all rights and liabilities arising
hereunder shall terminate.
Further, in the event (i) Buyer obtains and furnishes to
Seller the Consent and Approval of Equitable as herein provided, (ii) Buyer
pays to Escrow Agent the Additional Deposit as provided in this Contract,
and (iii) Equitable fails or refuses to close the Mortgage Loan
Modification and Assumption contemporaneously with the closing of the sale
and purchase of the Property under the terms of this Contract, Seller or
Buyer may by written notice to the other terminate this Contract, and upon
such termination the Deposit paid by Buyer under the terms hereof shall be
returned to Buyer and thereupon all rights and liabilities arising
hereunder shall terminate.
23. Leasing Earnout. Seller has advised Buyer and Buyer
acknowledges that Seller is currently negotiating the terms and provisions
of a lease or leases (herein individually "New Lease" or collectively "New
Leases") for space in the Promenades Plaza with Fawcett Hospital or an
affiliate thereof, as "Tenant" (herein "Fawcett") in addition to the
existing leases (herein "Existing Leases") with existing tenants ("Existing
Tenants") as will be shown on the Rent Roll to be furnished to Buyer by
Seller under the terms of Subparagraph "15(a)" hereof.
In the event a New Lease is executed by Fawcett prior to or
after the closing of this sale and purchase, Buyer shall pay to Seller in
addition to the Purchase Price as provided in Paragraph "2" hereof, at the
closing or thereafter, as may be applicable, additional sums (herein
"Leasing Earnout") subject to the following terms and provisions:
A. The Leasing Earnout shall be computed on net rentals
for the New Leases in 10,000 square foot increments up to a
maximum of 30,000 square feet.
B. The New Leases shall be limited to the areas or bays
numbered 3-9, 25, 41-48 as shown on the Sketch of Promenades
Plaza attached hereto and made a part hereof as Exhibit A (herein
"Tenant Spaces"); and in the event of a closing of the purchase
of the Property by Buyer under the terms of this Contract prior
to October 30, 1994, Buyer shall not, prior to October 30, 1994,
(i) negotiate any lease with any prospective tenant other than
Fawcett for said Tenant Spaces, or (ii) offer to lease said
Tenant Spaces to any prospective tenant other than Fawcett.
C. The Leasing Earnout to be paid by Buyer to Seller shall
be seventy-five percent (75%) of the valuation increase for the
first increment, then fifty percent (50%) and twenty-five percent
(25%) respectively for the second and third increments; and the
<PAGE>
valuation shall be based on a thirteen percent (13%)
capitalization rate computed only on the Base Rent ["Base Rent"
is defined as the average rent payable by Fawcett under all
leases based on the average rent payable on each lease for the
first five (5) years of the term of each lease], provided the New
Leases are for a minimum lease term of five (5) years.
D. Any New Lease must be a true triple-net lease providing
a net rental income to the Buyer of not less than Six Dollars
($6.00) per square foot. The total cumulative amount of all
tenant allowances for all New Leases shall not exceed the sum of
Two Hundred Thousand Dollars ($200,000.00); and each New Lease
shall be in form and content acceptable to Buyer in its
reasonable discretion.
E. Any Leasing Earnout payable to Seller under the terms
hereof shall be reduced by (i) the loss of income due to the
relocation of any Existing Tenant, (ii) the amount of Buyer's
actual cost associated with tenant improvements and other
relocation expenses after closing, (iii) the amount of the actual
loss to Buyer resulting from the termination of any Existing
Lease, and (iv) leasing commissions [Seller shall be responsible
for all leasing commissions payable under all New Leases for the
first five-(5)-year term thereof, and Buyer shall be responsible
for all other leasing commissions payable on all New Leases]. A
copy of the sample Leasing Earnout calculations is attached
hereto and made a part hereof as Exhibit B.
F. Any Leasing Earnout payable to Seller by Buyer under
the terms hereof shall be due and payable upon the acceptance of
and the execution of any such New Lease by Fawcett, provided,
however, any Leasing Earnout due and payable to Seller under the
terms hereof prior to closing shall be paid by Buyer to Seller at
closing.
G. Any New Lease shall not violate any exclusive use
clause existing in any one of the Existing Leases.
H. All New Leases must be executed no later than
December 31, 1995.
I. All of the terms and provisions of this Paragraph "23"
shall survive the closing of the sale and purchase of the
Property under the terms of this Contract.
24. Winn-Dixie Lease. Reference is made to the following:
A. That certain Lease (herein "Original Lease")
dated June 17, 1975 by and between Winn-Dixie Stores,
Inc., a Florida corporation, as "Tenant" (herein "Winn-
Dixie"), and General Development Corporation, a
Delaware corporation (herein "General Development"),
<PAGE>
wherein and whereby General Development did lease and
demise unto Winn-Dixie those certain premises therein
more particularly described, located in a shopping
center development now known as "Promenades Plaza
Shopping Center" (herein "Shopping Center"), situate
near the northwesterly corner of the intersection of
Harbor Boulevard and U.S. Highway #41 (North Tamiami
Trail) in the County of Charlotte, State of Florida,
for an initial term of twenty (20) years commencing
upon a date of completion of certain construction and
upon such other terms and conditions and for the
rentals as set forth therein, and a Short Form of said
Original Lease being recorded in Official Records
Book 496 on Page 352 of the Public Records of Charlotte
County, Florida; which said Original Lease was
thereafter modified and amended by (i) Letter Agreement
dated July 7, 1975 (herein "July 7 Letter Agreement"),
(ii) Letter Agreement dated November 3, 1975 (herein
"November 3 Letter Agreement"), (iii) Letter Agreement
dated March 2, 1976 (herein "March 2 Letter
Agreement"), (iv) First Amendment to Lease and First
Amendment to Short Form Lease dated April 2, 1976
(herein "First Amendment"), (v) Attornment Agreement
dated May 20, 1976 (herein "Attornment Agreement"),
(vi) Supplemental Lease Agreement dated October 18,
1976 (herein "Supplemental Agreement"), (vii) Second
Amendment to Lease (herein "Second Amendment") dated
May 2, 1989 by and between Seller as Landlord and Winn-
Dixie as Tenant, and (viii) Third Amendment to Lease by
and between Seller as Landlord and Winn-Dixie as
Tenant, executed by Seller on October 12, 1993 and
executed by Winn-Dixie on October 18, 1993 (herein
"Third Amendment to Lease"), a copy of which is
attached hereto and made a part hereof as Exhibit C
[said Original Lease, as modified and amended by the
July 7 Letter Agreement, the November 3 Letter
Agreement, the March 2 Letter Agreement, the First
Amendment, the Attornment Agreement, the Supplemental
Agreement, the Second Amendment and the Third Amendment
to Lease, may hereinafter sometimes be referred to as
the "Winn-Dixie Lease"].
B. The Winn-Dixie Expansion Improvements (herein "Winn-
Dixie Expansion Improvements") as described and defined in the
Third Amendment to Lease.
C. Landlord Improvements (herein "Landlord Improvements")
as described and defined in the Third Amendment to Lease.
D. The Reimbursement Payment (herein "Reimbursement
Payment") as described and defined in the Third Amendment to
Lease.
<PAGE>
Contract, Seller and Buyer covenant and agree as follows relative to the
Winn-Dixie Lease, to-wit:
(1) Buyer acknowledges that Seller has delivered to Buyer a
copy of the plans and specifications for the Winn-Dixie Expansion
Improvements as provided and defined in the Third Amendment to
Lease (herein "Winn-Dixie's Plans and Specifications"); and Buyer
hereby approves said Winn-Dixie's Plans and Specifications.
Seller shall furnish Buyer a copy of any amendment or
modification of the Winn-Dixie's Plans and Specifications (herein
"Amendment"); and Buyer agrees to approve any such Amendment if
any such Amendment is reasonably required by Seller, by notice in
writing to Seller within ten (10) days after the receipt by Buyer
of any such Amendment.
(2) Buyer acknowledges that Seller has delivered to Buyer a
copy of the plans and specifications for the Landlord
Improvements as provided and defined in the Third Amendment to
Lease (herein "Landlord's Plans and Specifications"); and Buyer
hereby approves said Landlord's Plans and Specifications. Seller
shall furnish Buyer a copy of any amendment or modification of
the Landlord's Plans and Specifications (herein "Amendment"); and
Buyer agrees to approve any such Amendment if any such Amendment
is reasonably required by Seller, by notice in writing to Seller
within ten (10) days after the receipt by Buyer of any such
Amendment.
(3) Buyer acknowledges and agrees that if (i) the
Reimbursement Payment is due and payable to Winn-Dixie under the
terms of the Third Amendment to Lease prior to closing under the
terms of this Contract, and (ii) Seller elects not to make said
Reimbursement Payment to Winn-Dixie as provided under the terms
and provisions of the Third Amendment to Lease, Winn-Dixie shall
have the right to withhold payment monthly of the Rent
Differential [as defined under the terms and provisions of the
Third Amendment to Lease]. If Seller elects not to make said
Reimbursement Payment to Winn-Dixie, Seller shall notify Buyer of
its election by notice in writing within the first twenty (20)
days of the thirty-(30)-day period as provided in Subparagraph
"2.H" of the Third Amendment to Lease.
(4) At the closing of the sale and purchase of the
Property:
(A) Seller shall transfer and assign to Buyer all of
Seller's right, title and interest in and to the Winn-Dixie
Lease and the rents due thereunder, which Seller represents
are assignable, by instrument of assignment in such form as
may be reasonably acceptable to Seller and Buyer; however
said assignment shall contain terms and provisions providing
(i) that Seller as assignor shall agree to indemnify and
hold harmless Buyer as assignee from all obligations and
<PAGE>
liabilities arising out of Seller's performance or failure
to perform Seller's obligations as landlord under the Winn-
Dixie Lease through the Closing Date, except for the
obligations of Seller under the terms of the Third Amendment
to Lease assumed by Buyer under the terms hereof; (ii) that
Buyer as assignee shall accept the assignment of the Winn-
Dixie Lease and agree to perform all of the terms, covenants
and conditions of said Winn-Dixie Lease on the part of Buyer
as landlord therein required to be performed from and after
the Closing Date, including but not limited to (a) the
obligation to pay Winn-Dixie the Reimbursement Payment upon
completion of the Winn-Dixie Expansion Improvements by Winn-
Dixie under the terms of, as described and defined in the
Third Amendment to Lease, (b) the obligation to install,
construct and complete the Landlord Improvements and pay the
cost therefor (herein "Landlord Improvements Cost") as
described and defined in the Third Amendment to Lease, and
(c) the obligation to repay Winn-Dixie in accordance with
the terms of the Winn-Dixie Lease security and other prepaid
deposits, if any, but only to the extent such security and
other deposits have been disclosed by Seller as assignor and
paid or credited to Buyer at closing; and (iii) that Buyer
as assignee shall covenant and agree to indemnify, save and
hold harmless Seller as assignor from and against any and
all losses, liabilities, claims and causes of action
existing in favor of or asserted by Winn-Dixie under the
Winn-Dixie Lease, arising out of or relating to Buyer's
failure to perform any of the obligations of landlord under
the Winn-Dixie Lease from and after the Closing Date,
including but not limited to (a) the obligation to pay Winn-
Dixie the Reimbursement Payment as described and defined in
the Third Amendment to Lease, and (b) the obligation to
install, construct and complete the Landlord Improvements
and pay the Landlord Improvements Cost as described and
defined in the Third Amendment to Lease.
(B) Buyer shall reimburse and pay Seller any portion
of the Landlord Improvements Cost expended by Seller in
connection with the installation, construction and
completion of the Landlord Improvements as described and
defined in the Third Amendment to Lease, together with all
costs for construction administration. Seller shall, within
fifteen (15) days prior to the closing under the terms of
this Contract, furnish to Buyer a budget for the Landlord
Improvements Cost, which Landlord Improvements Cost shall
not exceed the sum of One Hundred Twenty-Five Thousand
Dollars ($125,000.00).
(C) Buyer shall reimburse and pay to Seller any
portion of the Reimbursement Payment paid by Seller to Winn-
Dixie under the terms of the Third Amendment to Lease.
<PAGE>
(5) In the event of a closing of the purchase of the
Property by Buyer under the terms of this Contract, Buyer shall
pay Trammell Crow on the New Rent Commencement Date [as defined
in the Third Amendment to Lease] the balance of the leasing
commission due Trammell Crow in connection with the Winn-Dixie
Lease in the amount of Twelve Thousand Five Hundred Dollars
($12,500.00). The terms and provisions of this Sub-subparagraph
"24(5)" shall survive the closing of the sale and purchase of the
Property under the terms of this Contract.
25. Radon Gas Disclosure. As required by Florida Law, the
following is notification regarding radon gas:
Radon Gas: Radon is a naturally-occurring radioactive
gas that, when it has accumulated in the building in
sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have
been found in buildings in Florida. Additional
information regarding radon and radon testing may be
obtained from your county public health unit.
26. Disclaimer of Warranties; "As Is" Conveyance.
(A) Buyer warrants, acknowledges and agrees that Buyer is
purchasing the Property in "As Is" condition and "With All Faults," as of
the Closing Date, and specifically and expressly without any warranties,
representations or guaranties, either express or implied, of any kind,
nature or type whatsoever from or on behalf of Seller except as contained
and provided in this Contract. Buyer further acknowledges and agrees that
Buyer has not relied and is not relying upon any information,
documentation, sales brochure or other literature, maps or sketches,
surveys, projections, statements, representations, guaranties or warranties
(whether expressed or implied, oral or written, material or immaterial)
that may have been given by or made by or on behalf of Seller, including,
without limitation, any statements made by or on behalf of the Broker or by
or on behalf of any management entity employed by Seller, except as
contained and provided in this Contract.
(B) Buyer acknowledges and agrees that, except as contained
and provided in this Contract, Seller has not, does not and will not make
any warranties or representations, express or implied, or arising by
operation of law, including but not limited to any warranty of condition,
marketability, habitability or fitness for a particular use, or with
respect to the value, profitability or marketability of the Property,
except as contained and provided in this Contract; and Buyer further
acknowledges that, except as herein provided, the Seller has not, does not
and will not make any representation or warranty with respect to compliance
with any environmental protection, pollution or land-use laws, rules,
regulations, orders or requirements, including but not limited to those
pertaining to the handling, generating, treating, storage or disposal of
any hazardous waste or toxic substance.
<PAGE>
27. Notices. Any notice or demand to be given or that may be
given hereunder shall be in writing and shall be (i) delivered by hand, or
(ii) delivered through the United States mail, postage prepaid, certified,
return receipt requested, or (iii) delivered through or by Federal Express,
Express Mail, Airborne, Emery, Purolator or other expedited mail or package
service, addressed to the parties as follows:
<PAGE>
If to Seller: Connecticut General Realty
Investors - III Limited
Partnership
c/o CIGNA Investments, Inc.
Attention: Thomas W. Johnson,
Mark V. DePucchio and
Bruce A. Douglas, Esq.
900 Cottage Road
Bloomfield, CT 06002
Telephone: (203) 726-6161
Copy to: Joseph B. Cofer, Esquire
Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.
One Harbour Place
777 So. Harbour Island Boulevard
Tampa, Florida 33602
or P.O. Box 3239
Tampa, Florida 33601
Telephone: (813) 223-7000 ext. 146
If to Buyer: Sterling Equities, Inc.
Attention: A. David Kosoy
303 Royal Poinciana Plaza
Palm Beach, FL 33480
Telephone: (407) 835-1810
Copy to: Honigman Miller Schwartz & Cohn
Attention: Carl Angeloff, P.A.
or
Neil W. Platock, P.A.
222 Lakeview Avenue / Suite 800
West Palm Beach, FL 33401-6112
Telephone: (407) 838-4500
If to
Escrow Agent: Joseph B. Cofer, Esquire
Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.
One Harbour Place
777 So. Harbour Island Boulevard
Tampa, Florida 33602
or P.O. Box 3239
Tampa, Florida 33601
Telephone: (813) 223-7000 ext. 146
If to Broker: CSC Realty Partners, Inc.
Attention: John Collins and
<PAGE>
Steve Corzette
450 North Park Road
Suite 301
Hollywood, Florida 33021
Telephone: (305) 961-5555
Copy to: Sterling Realty Services, L.C.
303 Royal Poinciana Plaza
Palm Beach, FL 33480
Telephone: (407) 835-1810
Any notice or demand to be given or that may be given hereunder shall be
deemed complete (i) three days after depositing any such notice or demand
in the United States mail with proper postage affixed thereto, certified,
return receipt requested, or (ii) upon depositing any such notice or demand
with Federal Express, Express Mail, Airborne, Emery, Purolator or other
expedited mail or package delivery, or (iii) upon hand-delivery to the
appropriate address as herein provided. Any party hereto may change said
address by notice in writing to the other parties in the manner herein
provided.
28. Attorneys' Fees And Costs. In the event of any litigation
arising out of this Contract, the prevailing party shall be entitled to
recover all costs incurred in connection with such litigation, including
reasonable attorneys' fees and reasonable paralegal fees, and together with
all costs, including reasonable attorneys' fees and reasonable paralegal
fees, for any and all appellate proceedings.
29. Escrow Agent. Escrow Agent hereby acknowledges receipt by
Escrow Agent of the Initial Deposit paid by Buyer to be applied on the
Purchase Price of the Property under the terms hereof. Escrow Agent agrees
to hold, keep and deliver the Deposit and all other sums delivered to it
pursuant hereto in accordance with the terms and provisions of this
Contract. Escrow Agent shall not be entitled to any fees or compensation
for its services hereunder. Escrow Agent shall be liable only to hold said
sums and deliver the same to the parties named herein in accordance with
the provisions of this Contract, it being expressly understood that by
acceptance of this agreement Escrow Agent is acting in the capacity of a
depository only and shall not be liable or responsible to anyone for any
damages, losses or expenses unless same shall have been caused by the gross
negligence or willful malfeasance of Escrow Agent. In the event of any
disagreement between Buyer and Seller resulting in any adverse claims and
demands being made in connection with or for the monies involved herein or
affected hereby, Escrow Agent shall be entitled to refuse to comply with
any such claims or demands so long as such disagreement may continue; and
in so refusing Escrow Agent shall make no delivery or other disposition of
any of the monies then held by it under the terms of this Contract, and in
so doing Escrow Agent shall not become liable to anyone for such refusal;
and Escrow Agent shall be entitled to continue to refrain from acting until
(a) the rights of the adverse claimants shall have been finally adjudicated
in a court of competent jurisdiction of the monies involved herein or
<PAGE>
affected hereby, or (b) all differences shall have been adjusted by
agreement between Seller and Buyer, and Escrow Agent shall have been
notified in writing of such agreement signed by the parties hereto. Escrow
Agent shall have a period not exceeding three (3) Business Days after
receipt by Escrow Agent of any notice or request to perform any act or
disburse any portion of the monies held by Escrow Agent under the terms of
this Contract. Further, Escrow Agent shall have the right at all times to
pay all sums held by it (i) to the appropriate party under the terms
hereof, or (ii) into any court of competent jurisdiction after a dispute
between or among the parties hereto has arisen, whereupon Escrow Agent's
obligations hereunder shall terminate.
Seller and Buyer jointly and severally agree to indemnify
and hold harmless said Escrow Agent from any and all costs, damages and
expenses, including reasonable attorneys' fees, that said Escrow Agent may
incur in its compliance of and in good faith with the terms of this
agreement; provided, however, this indemnity shall not extend to any acts
of gross negligence or willful malfeasance on the part of the Escrow Agent.
Buyer acknowledges that Escrow Agent is the attorney for
Seller; and Buyer agrees that Escrow Agent shall not be disqualified from
representing Seller in any action arising out of or relating to this
Contract by virtue of Escrow Agent's having acted as Escrow Agent
hereunder; and Buyer consents to the representation of Seller by Escrow
Agent in any such action.
30. Miscellaneous.
(A) No agreements, unless incorporated in this Contract,
shall be binding upon the parties hereto.
(B) Buyer may assign all of its rights under this Contract
to Sterling Promenades Limited Partnership, a Florida limited partnership,
of which Sterling III Florida, L.C., a Florida limited liability company,
is the sole general partner (herein "Assignee"), provided (i) Buyer
notifies Seller in writing at least fifteen [15] days prior to the date of
closing of such assignment to Assignee, and (ii) Buyer shall continue to be
liable and responsible under the terms of this Contract; however, Buyer
shall not otherwise assign this Contract or any of Buyer's rights hereunder
without the prior written consent of Seller.
(C) This Contract shall be effective as of the date of the
signing of this Contract by the last to sign of Seller, Buyer, Escrow
Agent, CSC and Sterling Realty (herein "Effective Date"). In computing any
period of time prescribed by the terms and provisions of this Contract, the
day from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included unless
it is a Saturday or a Legal Holiday ("Legal Holiday" shall mean any legal
holiday designated in Section 683.01, Fla. Stat., and such other legal
holiday as may be designated by law applicable to Charlotte County where
the Property is located); in which event the period shall run until the end
of the next day which is not a Saturday or Legal Holiday. In the event any
<PAGE>
day on which any act is to be performed by Seller or Buyer under the terms
of this Contract is a Saturday or Legal Holiday, the time for the
performance by Seller or Buyer of any such act shall be extended to the
next day which is not a Saturday or Legal Holiday. "Business Days" are
defined as Monday through Friday exclusive of any Legal Holiday.
(D) This Contract may be executed in any number of
counterparts, each of which, when executed, shall be an original; and all
of which, taken together, shall constitute one and the same instrument as
if all parties hereto had executed the same instrument; and any party or
signatory hereto may execute this Contract by signing any such counterpart.
(E) If this Contract or a counterpart hereof is not
executed by Seller, Buyer, Escrow Agent, CSC, and Sterling Realty and an
executed copy or executed counterparts thereof delivered to Joseph B.
Cofer, Esquire - Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., One
Harbour Place, 777 So. Harbour Island Boulevard, Tampa, Florida, 33602, on
or before 5:00 p.m. DST on __________________, 1994, the Initial Deposit,
if paid by Buyer, shall at the option of Buyer be returned to Buyer and
thereupon this Contract shall be null and void.
(F) This agreement shall be binding upon and its benefits
and advantages shall inure to the successors and assigns of the parties
hereto. Whenever used herein the singular number shall include the plural,
the plural the singular, and the use of any gender shall include all
genders.
EXECUTED by Seller on ______________, 1994.
EXECUTED by Buyer on ______________, 1994.
EXECUTED by Escrow Agent on ______________, 1994.
EXECUTED by CSC on ______________, 1994.
EXECUTED by Sterling Realty on _______________, 1994.
Signed, sealed and delivered
in the presence of:
CONNECTICUT GENERAL REALTY
INVESTORS - III LIMITED
PARTNERSHIP, a Connecticut
limited partnership
By: Cigna Realty Resources, Inc. -
Fifth, a Delaware corporation,
general partner
By: (SEAL)
____________________________ John D. Carey
As to "Seller" President
<PAGE>
[Corporate Seal]
"SELLER"
STERLING EQUITIES, INC., a
Florida corporation
By: (SEAL)
Name:
As to "Buyer" Title:
"BUYER"
CARLTON, FIELDS, WARD, EMMANUEL,
SMITH & CUTLER, P.A.
By: (SEAL)
Joseph B. Cofer, Esquire
As to "Escrow Agent"
"ESCROW AGENT"
<PAGE>
CSC REALTY PARTNERS, INC., a
Florida corporation
By: (SEAL)
Name:
As to "Broker" Title:
[Corporate Seal]
"CSC" OR "BROKER"
STERLING REALTY SERVICES, L.C.
By: (SEAL)
Name:
Its:
"STERLING REALTY"
<PAGE>
AMENDMENT TO CONTRACT
FOR PURCHASE AND SALE OF REAL ESTATE
THIS AGREEMENT supplements and amends that certain Contract
for Purchase and Sale of Real Estate ("Contract") by and among
CONNECTICUT GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP, a
Connecticut limited partnership ("Seller"), STERLING EQUITIES, a
Florida general partnership ("Buyer"), as assignee of Sterling
Equities, Inc., a Florida corporation, and CARLTON, FIELDS, WARD,
EMMANUEL, SMITH AND CUTLER, P.A. ("Escrow Agent") having an
Effective Date of July 19, 1994, pertaining to the sale and
purchase of the following described real property, lying and being
in Charlotte County, Florida: Parcel 1 of PORT CHARLOTTE PLAZA
SECTION 7, a commercial subdivision lying in Section 22, Township
40 South, Range 22 East, Charlotte County, Florida, as per map or
plat thereof recorded in Plat Book 16, on Pages 61A and 61B of the
Public Records of Charlotte County, Florida, and re-recorded in
Plat Book 16, Pages 63A and 63B of the Public Records of Charlotte
County, Florida.
Preliminary Statements
Buyer and Seller desire to amend the Contract as hereinafter
set forth. Any capitalized terms not defined in this Agreement
shall have the meaning set forth in the Contract.
<PAGE>
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Buyer and Seller agree as
follows:
1. The foregoing preliminary statements are true, correct
and incorporated herein by reference.
2. The Termination Date of the Due Diligence Period is
hereby amended to be September 21, 1994. The closing date, under
the First Closing Period, is hereby amended to be September 21,
1994. Buyer shall retain the right to close during the Extended
Closing Period as provided in the Contract, so long as it delivers
is written notice to Seller no later than September 21, 1994.
3. This Agreement may be executed and delivered in any
number of counterparts, each of which, when so executed and
delivered, shall be and constitute one and the same document; and
any facsimile copies of this Agreement and any signatures hereon
shall be considered for all purposes as originals.
4. This Agreement amends the Contract to the extent that
the Contract is inconsistent herewith; otherwise, the Contract
remains unchanged and in full force and effect.
IN WITNESS WHEREOF, the Buyer, Seller and Escrow Agent have
executed and delivered this Agreement on the dates set forth
below:
Signed, sealed and delivered
in the presence of: BUYER:
STERLING EQUITIES, a Florida general
partnership
By: Charger Realty, Inc., a
Florida corporation,
as general partner
______________________________ By:
___________________________
Witness David A. Kosoy, President
______________________________ Date:
_________________________
Witness
<PAGE>
SELLER:
CONNECTICUT GENERAL REALTY
INVESTORS III LIMITED PARTNERSHIP, a
Connecticut limited partnership
______________________________ By:
______________________________
Witness Name:
Title:
______________________________ Date:
_____________________________
Witness
ESCROW AGENT:
CARLTON, FIELDS, WARD, EMMANUEL,
SMITH AND CUTLER, P.A.
______________________________ By:
______________________________
Witness Name:
Title:
______________________________ Date:
____________________________
Witness
<PAGE>
SECOND AMENDMENT TO CONTRACT
FOR PURCHASE AND SALE OF REAL ESTATE
THIS AGREEMENT supplements and amends that certain Contract
for Purchase and Sale of Real Estate by and among CONNECTICUT
GENERAL REALTY INVESTORS III LIMITED PARTNERSHIP, a Connecticut
limited partnership ("Seller"), STERLING EQUITIES, INC., a Florida
corporation ("Original Buyer"), and CARLTON, FIELDS, WARD,
EMMANUEL, SMITH & CUTLER, P.A. ("Escrow Agent"), having an
Effective Date of July 19, 1994 ("Original Contract").
Preliminary Statements:
Original Buyer assigned all of its right, title and interest
in and to the Original Contract to Sterling Equities, a Florida
general partnership. Sterling Equities, Seller and Escrow Agent
then amended the Original Contract as provided in an Amendment to
Contract for Purchase and Sale of Real Estate, executed by Seller
on August 18, 1994 and Sterling Equities and Escrow Agent on
August 19, 1994 ("First Amendment"). Sterling Equities has
assigned all of its right, title and interest in and to the
Original Contract, as amended by the First Amendment (as so
amended, the "Contract"), to Sterling Promenades Limited
Partnership, a Florida limited partnership ("Buyer"). The Seller
has not assigned any right, title or interest in or to the
Contract.
Buyer, Seller and Escrow Agent desire to further amend the
Original Contract as hereinafter set forth, with the joinder and
consent of CSC Realty Partners, Inc., and Sterling Services, L.C.
Any capitalized terms not defined in this Agreement shall have the
meanings set forth in the Original Contract.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Buyer and Seller agree as
follows:
1. The foregoing preliminary statements are true, correct
and incorporated herein by reference.
2. The Buyer shall pay the Seller at closing in cash
$272,000.00, which sum shall be payable in addition to the
Purchase Price and in lieu of the Leasing Earnout. In
consideration of the Buyer's agreement to pay this additional sum
to the Seller at closing, the Seller hereby waives and releases
any and all right to claim or receive all or any portion of the
Leasing Earnout, which shall never become due and payable,
notwithstanding anything to the contrary set forth in the
Contract.
3. The commission payable to CSC Realty Partners, Inc., as
described in Section 10 of the Contract, is hereby reduced from
$252,000.00 to $202,000.00.
4. Seller hereby agrees to indemnify Buyer and hold Buyer
harmless against any and all loss or damage which Buyer may
sustain as a result of any claim for compensation asserted by The
Trammell Crow Company or any of its affiliates as a result of any
lease which may now or hereafter be entered into by Buyer, as
landlord, and Fawcett Hospital or any of its affiliates, as
tenant, including, but not limited to, any and all commission or
other compensation now or hereafter claimed to be due and owing
and all attorneys' fees incurred by Buyer in the defense of any
such claim, whether incurred at pre-trial, trial, appellate or
post-judgement proceedings.
<PAGE>
5. This Agreement may be executed and delivered in any
number of counterparts.
6. This Agreement amends the Contract to the extent that
the Contract is inconsistent herewith; otherwise, the Contract
remains unchanged and in full force and effect.
IN WITNESS WHEREOF, Buyer, Seller and Escrow Agent have
executed this Agreement as of the 21st day of September, 1994.
<PAGE>
BUYER:
Sterling Promenades Limited
Partnership, a Florida limited
partnership
By: Sterling III Florida, Inc.,
its sole general partner
By:
Witness A. David Kosoy,
President
(SEAL)
Witness
SELLER:
Connecticut General Realty Investors
III Limited Partnership, a
Connecticut limited partnership
By: CIGNA Realty Resources, Inc.
- Fifth, a Delaware
corporation, its sole
general partner
By:
Witness Thomas W. Johnson, as
Authorized Agent
(SEAL)
Witness
<PAGE>
ESCROW AGENT:
CARLTON, FIELDS, WARD, EMMANUEL,
SMITH & CUTLER, P.A.
By:
Witness Name:
Title:
Witness
The undersigned hereby (1) consent to the foregoing Agreement, (2)
agree that 75% of the $202,000.00 commission described in the
foregoing Agreement shall be paid to CSC Realty Partners, Inc.,
and the balance shall be paid to Sterling Realty Services, L.C.,
(3) agree that said commission shall constitute full payment of
all commission or compensation due the undersigned in connection
with this transaction, notwithstanding any prior agreements or
anything else to the contrary, and (4) authorize the closing agent
to disburse the respective amounts due them directly,
notwithstanding any contrary provisions in the Contract:
CSC Realty Partners, Inc.
By:
Witness Name:
Title:
Witness
Sterling Realty Services, L.C.
By:
Witness Name:
Title
Witness
