EXHIBIT 10.121
AGREEMENT FOR PURCHASE AND SALE OF
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BUILDING
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
-----------------------------------------------
THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 11/th/ day of January, 2002, by and between
SARASOTA ▇▇▇▇▇▇▇, LLC, a Florida limited liability company (hereinafter referred
to as "Seller") and ▇▇▇▇▇ CAPITAL, INC., a Georgia corporation (hereinafter
referred to as "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten and No/100 Dollars ($10.00) in hand
paid by Purchaser to Seller at and before the sealing and delivery of these
presents and for other good and valuable consideration, the receipt, adequacy,
and sufficiency of which are hereby expressly acknowledged by the parties
hereto, the parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
-----------------------------
terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ in the City of Sarasota, Sarasota County, Florida, and being more
particularly described on Exhibit "A" attached hereto and by this reference
-----------
made a part hereof (hereinafter referred to as the "Land"); and
(b) all rights, privileges, and easements appurtenant to the Land,
including all water rights, mineral rights, development rights, air rights,
reversions, or other appurtenances to said Land, if any, and all right,
title, and interest of Seller, if any, in and to any land lying in the bed
of any street, road, alley, or right-of-way, open or proposed, adjacent to
or abutting the Land; and
(c) all buildings, structures, and improvements situated on the Land,
including, without limitation, that certain office building, all parking
areas and other amenities located on the Land, and all apparatus,
elevators, built-in appliances, equipment, pumps, machinery, plumbing,
heating, air conditioning, and electrical and other fixtures located on the
Land (all of which are together hereinafter referred to as the
"Improvements"); and
(d) all personal property now owned or hereafter acquired by Seller
and located on, or used in connection with, the Land and Improvements,
including, without limitation, the items set forth and described on Exhibit
-------
"B" attached hereto and by this reference made a part hereof, and all other
---
equipment, supplies, tools, furniture, furnishings, office
equipment, fittings, appliances, shades, wall-to-wall carpet,
draperies, screens and screening, art, awnings, plants, shrubbery,
landscaping, lawn care and building maintenance equipment, vending
machines and other furnishings or items of personal property owned by
Seller and used in connection with the operation of the Land and
Improvements (all of which are together hereinafter referred to as the
"Personal Property"); and
(a) all of Seller's right, title, and interest, as landlord or
lessor, in and to the Lease (as hereinafter defined); and
(b) all of Seller's right, title, and interest in and to the
plans and specifications with respect to the Improvements and any
guarantees, trademarks, rights of copyright, warranties, or other
rights related to the ownership of or use and operation of the Land,
Personal Property, or Improvements, all governmental licenses and
permits, and all intangibles associated with the Land, Personal
Property, and Improvements.
1. ▇▇▇▇▇▇▇ Money. Within ten (10) business days after the full
-------------
execution of this Agreement, Purchaser shall deliver to Chicago Title Insurance
Company ("Escrow Agent"), whose offices are at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, telephone (904)
▇▇▇-▇▇▇▇, either by Purchaser's check, payable to Escrow Agent, or by wire
transfer of federal funds to Escrow Agent's account, the sum of Two Hundred
Fifty Thousand and No/100 Dollars ($250,000.00) (the "▇▇▇▇▇▇▇ Money"), which
▇▇▇▇▇▇▇ Money shall be held and disbursed by Escrow Agent pursuant to a written
Escrow Agreement, a copy of which is attached hereto as Exhibit "C" and by this
-----------
reference made a part hereof. The ▇▇▇▇▇▇▇ Money shall be paid by Escrow Agent to
Seller at Closing and shall be applied as a credit to the Purchase Price (as
hereinafter defined). All interest and other income from time to time earned on
the ▇▇▇▇▇▇▇ Money shall be deemed a part of the ▇▇▇▇▇▇▇ Money for all purposes
of this Agreement.
2. Purchase Price. Subject to adjustment and credits as otherwise
--------------
specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be Twenty-One Million Four
Hundred Thousand and No/00 Dollars ($21,400,000.00). The Purchase Price shall be
paid by Purchaser to Seller at the Closing (as hereinafter defined) by wire
transfer of good federal funds to an account designated in writing by Seller,
less the amount of ▇▇▇▇▇▇▇ Money and subject to prorations, adjustments, and
credits as otherwise specified in this Agreement.
3. Purchaser's Inspection and Review Rights. Commencing on the
----------------------------------------
effective date of this Agreement and subject to the rights of the Tenant (as
hereinafter defined), upon giving reasonable advance notice to Seller's property
manager, Purchaser and its agents, engineers, or representatives, with Seller's
reasonable, good faith cooperation, shall have the privilege of going upon the
Property as needed to inspect, examine, test, and survey the Property at all
reasonable times and from time to time. Such privilege shall include the right
to make borings and other tests to obtain information necessary to determine
surface and subsurface conditions, provided that such activities do not
materially interfere with the rights of the Tenant or the ongoing operation of
the Property. Purchaser shall maintain at all times during its entry upon the
Property, commercial
2
general liability insurance with limits of not less than One Million and No/100
Dollars ($1,000,000.00) per occurrence, combined single limit. Such policy of
insurance shall name Seller as an additional insured and such policy shall be
primary with respect to the activities of Purchaser and its agents, engineers or
representatives at the Property, whether or not Seller holds other policies of
insurance. If requested by Seller, a certificate issued by the insurance carrier
of such policy shall be delivered to Seller prior to entry upon the Property by
Purchaser or its agents, engineers or representatives. Purchaser hereby agrees
to hold Seller harmless from any liens, claims, liabilities, and damages
incurred through the exercise of such privilege (but excluding any liability
arising out of the existing environmental condition of the Property or the
presence of toxic or hazardous substances thereon and excluding any claims
arising out of a release of existing or in-place hazardous or toxic substances
on or under the Property), and Purchaser further agrees to repair any damage to
the Property caused by the exercise of such privilege (excluding any damage
arising out of a release of existing or in-place hazardous or toxic substances
on or under the Property). The obligations of Purchaser under the preceding
sentence shall survive the Closing or any termination of this Agreement.
Seller has heretofore provided to Purchaser true and complete copies of the
Lease, and the reports, documents and instruments described on Exhibit "D"
-----------
attached hereto and by reference made a part hereof. Within two (2) business
days after the effective date of this Agreement, Seller shall deliver to
Purchaser true and complete copies of the reports, documents and instruments
relating to the Property of the nature described on Exhibit "E" attached hereto
-----------
and by reference made a part hereof. In addition to the foregoing, at all
reasonable times prior to the Closing, Seller shall make available to Purchaser,
or Purchaser's agents and representatives, at Seller's office or the office of
the property manager in either Sarasota Florida, or Jacksonville, Florida, and
for copying at Purchaser's expense, all other books, records, and files relating
to the ownership and operation of the Property in the possession or control of
Seller or Seller's managing agent. Seller further agrees to in good faith assist
and cooperate with Purchaser in coming to a thorough understanding of the books,
records, and files relating to the Property.
5. Special Condition to Closing. Purchaser shall have until and through the
----------------------------
date for Closing (the "Inspection Period") to make investigations, examinations,
inspections, market studies, feasibility studies, lease reviews, and tests
relating to the Property and the operation thereof in order to determine, in
Purchaser's sole opinion and discretion, the suitability of the Property for
acquisition by Purchaser. Purchaser shall have the right to terminate this
Agreement at any time prior to the expiration of the Inspection Period by giving
written notice to Seller of such election to terminate. In the event Purchaser
so elects to terminate this Agreement, Escrow Agent shall pay to Seller from the
▇▇▇▇▇▇▇ Money the sum of Twenty-Five Dollars ($25.00) and the balance of the
▇▇▇▇▇▇▇ Money shall be refunded by Escrow Agent to Purchaser, whereupon, except
as expressly provided to the contrary in this Agreement, no party hereto shall
have any other or further rights or obligations under this Agreement. Seller
acknowledges that the sum of $25.00 is good and adequate consideration for the
termination rights granted to Purchaser hereunder.
6. General Conditions Precedent to Purchaser's Obligations Regarding the
---------------------------------------------------------------------
Closing. In addition to the conditions to Purchaser's obligations set forth in
-------
Paragraph 5 above, the obligations
3
and liabilities of Purchaser hereunder shall in all respects be conditioned upon
the satisfaction of each of the following conditions prior to or simultaneously
with the Closing, any of which may be waived by written notice from Purchaser to
Seller:
(a) Seller has complied with and otherwise performed each of the
material covenants and obligations of Seller set forth in this
Agreement.
(b) All representations and warranties of Seller as set forth in
this Agreement shall be in all respects true and correct in all
material respects as of the date made and as of Closing (and as if
made without limitation as to Seller's knowledge).
(c) There has been no adverse change to the title to the Property
which has not been cured and the Title Company (as hereinafter
defined) is prepared to issue to Purchaser upon the Closing a fee
simple owner's title insurance policy on the Land and Improvements
pursuant to the Title Commitment (and Endorsements).
(d) The Tenant shall not be in material default (without regard
to the expiration of any applicable cure period provided in the Lease
with Tenant) under the terms of the Lease as of the date of Closing.
(e) Seller shall obtain and deliver to Purchaser a fully
completed estoppel certificate with respect to the Lease substantially
in the form attached hereto as Exhibit "F" and by this reference made
a part hereof (herein referred to as the "Tenant Estoppel
Certificate"), duly executed by the Tenant thereunder. The Tenant
Estoppel Certificate shall be executed as of a date not more than
fifteen (15) days prior to Closing.
(f) Seller shall obtain and deliver to Purchaser a fully
completed estoppel certificate executed by Sarasota Commerce Center
Association, Inc. substantially in the form attached hereto as Exhibit
-------
"G" and by this reference made a part hereof (herein referred to as
-
the "Association Estoppel Certificate"). The Association Estoppel
Certificate shall be executed as of a date not more than fifteen (15)
days prior to Closing.
(g) Seller shall obtain and deliver to Purchaser a fully
completed estoppel certificate executed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
substantially in the form attached hereto as Exhibit "H" and by this
----------
reference made a part hereof (herein referred to as the "▇▇▇▇▇▇▇▇
Estoppel Certificate"). The ▇▇▇▇▇▇▇▇ Estoppel Certificate shall be
executed as of a date not more than fifteen (15) days prior to
Closing.
In the event Purchaser shall terminate this Agreement as a result of the
non-satisfaction of any of the foregoing conditions, Purchaser shall be entitled
to an immediate return of the ▇▇▇▇▇▇▇ Money from Escrow Agent.
7. Title to the Property. Good and marketable fee simple record
---------------------
title to the Land and Improvements shall be conveyed by Seller to Purchaser by
Special Warranty Deed, free and clear of
4
all liens, easements, restrictions, and encumbrances whatsoever, excepting only
the matters set forth on Exhibit "I" attached hereto and by this reference made
----------
a part hereof (hereinafter referred to as the "Permitted Exceptions"). Seller
covenants and agrees that Seller, at its sole cost and expense, shall, within
five (5) days after the effective date of this Agreement, cause Chicago Title
Insurance Company (herein referred to as "Title Company") to deliver to
Purchaser its commitment (herein referred to as the "Title Commitment") to issue
to Purchaser upon the recording of the Special Warranty Deed conveying title to
the Land and Improvements from Seller to Purchaser, the payment of the Purchase
Price, and the payment to the Title Company of the policy premium therefor, an
ALTA owner's policy of title insurance, in the amount of the Purchase Price,
insuring good and marketable fee simple record title to the Land and
Improvements to be in Purchaser. The Title Commitment shall not contain any
exception for mechanic's or materialmen's liens or any exception for unpaid
taxes other than and exception for taxes for years subsequent to 2001 not yet
due or payable. Such Title Commitment shall not contain any exception for rights
of parties in possession other than an exception for the rights of the Tenant
(as hereinafter defined), as tenant only, under the Lease. The Title Commitment
shall not contain an exception for the state of facts which would be disclosed
by a survey of the Property or an "area and boundaries" exception, and in lieu
thereof, the Title Commitment shall contain an exception only for the matters
shown on the as-built survey to be provided by Seller to Purchaser in accordance
with Paragraph 9(e) hereof. The Title Commitment shall also contain such other
special endorsements available to be issued in Florida as Purchaser shall
reasonably require (the "Endorsements"). Seller shall also cause to be delivered
to Purchaser together with such Title Commitment, legible copies of all
documents and instruments referred to therein. Purchaser, upon receipt of the
Title Commitment and the copies of the documents and instruments referred to
therein, shall then have until the date of Closing during which to examine same
after which Purchaser shall notify Seller of any defects or objections affecting
the record marketability of the title to the Property, other than the Permitted
Exceptions. If Purchaser fails to give such notice of defects or objections as
to any matters disclosed by such Title Commitment, such matters shall be deemed
to be additional Permitted Exceptions. Seller shall then have until the earlier
of the date of Closing or three (3) days after receipt of such notice of title
defects or objections from Purchaser to advise Purchaser in writing which of
such title defects or objections Seller does not intend to satisfy or cure;
provided, however, Seller hereby agrees that Seller shall satisfy or cure any
such defects or objections consisting of taxes, mortgages, deeds of trust,
mechanic's or materialmen's liens created by or arising under Seller, or other
such monetary encumbrances created by or arising under Seller, and Seller agrees
that Seller shall obtain a dismissal with prejudice of the proceedings described
on Exhibit "J" attached hereto and by reference made a part hereof. In the event
----------
Seller fails to give such written advice to Purchaser within such three (3) day
period, Seller shall be deemed to have declined to satisfy or cure all such
defects or objections set forth in Purchaser's notice. Seller shall have until
Closing to satisfy or cure all such defects and objections which Seller agreed
to satisfy or cure as provided above. In the event Seller fails or refuses to
cure any defects and objections which are required herein to be satisfied or
cured by Seller prior to the Closing, then, at the option of Purchaser, (i)
Purchaser may terminate this Agreement by written notice to Seller and Escrow
Agent, in which event the ▇▇▇▇▇▇▇ Money shall be immediately refunded to
Purchaser, and Purchaser and Seller shall have no further rights, obligations or
liabilities hereunder, except for the obligations of the parties which are
herein expressly stated to survive the termination of this
5
Agreement, (ii) if any such defect or objection is one that Seller agreed to
satisfy or cure as provided above, the same shall be paid or satisfied out of
the Seller's closing proceeds, (iii) Purchaser may accept title to the Property
subject to such defects and objections, or (iv) any combination of items (ii)
and (iii).
8. Representations and Warranties of Seller. Seller hereby makes the
----------------------------------------
following representations and warranties to Purchaser, each of which shall be
deemed material:
(a) Lease. Attached hereto as Exhibit "K" and by this reference
----- ----------
made a part hereof is a description of the only lease in effect
relating to the Property and all modifications and amendments to such
lease (such lease, as modified and amended, being herein collectively
referred to as the "Lease"). Seller has delivered to Purchaser a
complete and accurate copy of the Lease. Seller is the "landlord"
under the Lease and owns unencumbered legal and beneficial title to
the Lease and the rents and other income thereunder, subject only to
an existing mortgage and assignment instruments in favor of SouthTrust
Bank, National Association, which shall be paid and cancelled at the
time of the Closing. The tenant identified in the Lease is hereinafter
referred to as the "Tenant".
(b) Lease - Assignment. To the Seller's knowledge, the Tenant has
------------------
not assigned its interest in the Lease or sublet any portion of the
premises leased to the Tenant under its Lease.
(c) Lease - Default. (i) Seller has not received any written
---------------
notice of termination or default under the Lease, (ii) to the Seller's
knowledge, there are no existing or uncured defaults by Seller, by any
predecessor landlord, or by Tenant under the Lease, (iii) Tenant has
not asserted in writing any defense, set-off, or counterclaim with
respect to its tenancy or its obligation to pay rent, additional rent,
or other charges pursuant to its Lease, and (iv) to the Seller's
knowledge, Tenant is not using its premises in violation of any
restrictive covenant applicable to the Property.
(d) Lease - Rents and Special Consideration. The Tenant: (i) has
---------------------------------------
not prepaid rent for more than the current month under the Tenant's
Lease, (ii) is not entitled to receive any rent concession (not
already taken) in connection with its tenancy under its Lease, (iii)
is not entitled to any special work (not yet performed) or
consideration (not yet given) in connection with its tenancy, and (iv)
does not have any deed, option, or other evidence of any right or
interest in or to the Property, except for such Tenant's tenancy as
evidenced by the express terms of the Tenant's Lease. As of the date
hereof, the amount of the "Capital Reserve" funds held by Seller under
Section 3.5(b) of the Lease is $82,137.00. To the Seller's knowledge,
all "Reserve Contribution" amounts heretofore paid by Tenant to Seller
have been drawn upon or used by Seller solely to pay qualifying
capital expenses as provided in Section 3.5(b) of the Lease.
(e) Lease - Commissions. No rental, lease, or other commissions
-------------------
with respect to the Lease is payable to Seller, to any partner of
Seller, any party affiliated with or related
6
to Seller or any partner of Seller or to any third party whatsoever.
All commissions payable under, relating to, or as a result of the
Lease have been cashed-out and paid and satisfied in full by Seller,
and no further commissions shall be due or payable as a result of the
Lease or as a result of the exercise by the Tenant thereunder of any
right or option in the Lease to extend the term of such Lease or to
expand the space leased thereunder.
(f) Lease - Acceptance of Premises. Seller has not received
------------------------------
written notice from the Tenant that Tenant's premises are not in full
compliance with the terms and provisions of such Tenant's Lease or are
not satisfactory for such Tenant's purposes. Tenant has not indicated
to Seller in writing its request or its intent to terminate its Lease
prior to the expiration of the term of such Lease or to reduce the size
of the premises leased by such Tenant.
(g) Service Contracts. Attached hereto as Exhibit "L" and by
----------------- -----------
this reference made a part hereof is a complete and accurate list and
description of all of the service contracts, management agreements, or
other agreements (other than the Lease) which are in effect and which
relate to the operation, management, or maintenance of the Property
(said agreements being herein collectively referred to as the "Service
Contracts"). Seller has provided Purchaser with complete and accurate
copies of all Service Contracts. To the Seller's knowledge, all such
Service Contracts are in full force and effect in accordance with their
respective provisions, all payments required to be made by Seller or
the "Owner" thereunder have been paid in full, and there is no default,
or claim of default, or any event which the passage of time or notice,
or both, would constitute a default on the part of any party to any of
such Service Contracts. All Service Contracts are assignable by Seller
to Purchaser and no Service Contract prohibits such assignment or
provides for any right, claim, or cause of action against Purchaser or
the Property upon such assignment. Seller has cancelled or will cancel,
effective as of the Closing, any agreement in the nature of a
management agreement or service contract between Seller and any partner
of Seller or any party affiliated with or related to Seller or any
partner of Seller.
(h) Warranties and Guaranties. All of the warranties and
-------------------------
guaranties of contractors, vendors, manufacturers and other parties
which are known by Seller to be in effect and to relate to the Property
and which are in the possession and control of Seller will be made
available to Purchaser for review and copying at the Property or at
Seller's Jacksonville, Florida office at all times prior to Closing.
(i) No Other Agreements. Other than the Lease, the Service
-------------------
Contracts, and the Permitted Exceptions, there are no leases, service
contracts, management agreements, or other agreements or instruments in
force and effect, oral or written, that grant to any person whomsoever
or any entity whatsoever any right, title, interest or benefit in or to
all or any part of the Property, any rights to acquire all or any part
of the Property or any rights relating to the use, operation,
management, maintenance, or repair of all or any part of the Property.
7
(j) No Litigation. Except as disclosed on Exhibit "J" attached
------------- -----------
hereto and by this reference made a part hereof, there are no actions,
suits, or proceedings pending, or to the Seller's knowledge threatened
by any organization, person, individual, or governmental agency against
Seller with respect to the Property or against the Property. Seller
also has no knowledge of any pending or threatened application for
changes in the zoning applicable to the Property or any portion
thereof.
(k) Condemnation. No condemnation or other taking by eminent
------------
domain of the Property or any portion thereof has been instituted and,
to the Seller's knowledge, there are no pending or threatened
condemnation or eminent domain proceedings (or proceedings in the
nature or in lieu thereof) affecting the Property or any portion
thereof or its use.
(l) Proceedings Affecting Access. There are no pending or, to
----------------------------
the Seller's knowledge, threatened proceedings that could have the
effect of impairing or restricting access between the Property and
adjacent public roads.
(m) Certificates. There are presently in effect permanent
------------
certificates of occupancy, licenses, and permits as may be required for
the Property, and to the Seller's knowledge, the present use and
occupation of the Property is in compliance and conformity with the
certificates of occupancy and all licenses and permits. Within two (2)
business days after the effective date of this Agreement, Seller shall
provide Purchaser with complete and accurate copies of all such
Certificates of Occupancy, licenses and permits which are currently
required and known by Seller to relate to the Property and which are in
the possession or control of Seller. There are no outstanding written
notices or requests of any municipal department, insurance company or
board of fire underwriters (or organization exercising functions
similar thereto), or mortgagee directed to Seller and requesting the
performance of any work or alteration in respect to the Property which
has not been complied with.
(n) Compliance With Governmental Requirements. To the Seller's
-----------------------------------------
knowledge, there are no violations of law, municipal or county
ordinances, or other legal requirements with respect to the Property,
and the Improvements thereon comply with all applicable legal
requirements with respect to the use, occupancy, and construction
thereof, including the Americans with Disabilities Act.
(o) Survey. Seller has heretofore delivered to Purchaser the
------
most current "as-built" survey of the Land and Improvements in the
possession or control of Seller.
(p) Initial Utility Charges. All installation and connection
-----------------------
charges for utilities serving the Property have been paid in full.
(q) No Liens. All contractors, subcontractors, and other
--------
persons or entities furnishing work, labor, materials, or supplies by
or at the instance of Seller for the Property
8
have been paid in full and, other than routine ongoing charges
pursuant to the Service Contracts, there are no claims against the
Property or Seller in connection therewith.
(r) No Liens Upon Building Service Equipment. None of the
----------------------------------------
fixtures, equipment, apparatus, fittings, machinery, appliances,
furniture, furnishings, and articles of personal property attached or
appurtenant to, or used in connection with the occupation or operation
of, all or any part of the Property are leased by Seller from third
parties, and all of same which are owned by Seller, including the
Personal Property, are free of any and all liens, encumbrances,
charges, or adverse interests, except for the security interest
granted to SouthTrust Bank, National Association, which security
interest shall be terminated at the time of the Closing.
(s) Employees. There are no employment, collective bargaining,
---------
or similar agreements or arrangements between Seller and any of its
employees or others which will be binding on Purchaser or any of
Purchaser's successors in title.
(t) Bankruptcy. Seller is solvent and has not made a general
----------
assignment for the benefit of creditors nor been adjudicated a bankrupt
or insolvent, nor has a receiver, liquidator, or trustee for any of
Seller's properties (including the Property) been appointed or a
petition filed by or against Seller for bankruptcy, reorganization, or
arrangement pursuant to the Federal Bankruptcy Act or any similar
Federal or state statute, or any proceeding instituted for the
dissolution or liquidation of Seller.
(u) Authorization. Seller is a duly organized and validly
-------------
existing limited liability company under the laws of the State of
Florida. This Agreement has been duly authorized and executed on behalf
of Seller, all necessary action on the part of Seller to authorize the
transactions herein contemplated has been taken, and no further action
is necessary for such purpose, and this Agreement constitutes the valid
and binding agreement of Seller, enforceable in accordance with its
terms, subject to bankruptcy, insolvency and similar laws affecting
generally the enforcement of creditor's rights. Neither the execution
and delivery of this Agreement nor the consummation of the transaction
contemplated hereby will (i) be in violation of Seller's Articles of
Organization or Operating Agreement, (ii) conflict with or result in
the breach or violation of any law, regulation, writ, injunction or
decree of any court or governmental instrumentality applicable to
Seller, or (iii) constitute a breach of any evidence of indebtedness or
agreement of which Seller is a party or by which Seller is bound.
(v) Seller Not a Foreign Person. Seller is not a "foreign
---------------------------
person" which would subject Purchaser to the withholding tax
provisions of Section 1445 of the Internal Revenue Code of 1986, as
amended.
As used herein, the term "Seller's knowledge" shall mean the actual present
knowledge of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. Park, without investigation or
the need to conduct investigation. At Closing, Seller shall represent and
warrant to Purchaser that all such representations and warranties
9
of Seller in this Agreement remain true and correct in all material respects as
of the date of the Closing, except for any changes in any such representations
or warranties that occur and are disclosed by Seller to Purchaser expressly and
in writing at any time and from time to time prior to Closing upon their
occurrence, which disclosures shall thereafter be updated by Seller to the date
of Closing. Each and all of the express representations, warranties and
covenants made and given by Seller to Purchaser in this Paragraph 8 shall
survive the execution and delivery of the Special Warranty Deed by Seller to
Purchaser for a period of one (1) year after the Closing whereupon they shall
expire, except to the extent that with respect to any particular alleged breach,
Purchaser gives Seller written notice prior to the expiration of said one (1)
year period of such alleged breach and files an action against Seller with
respect thereto within ninety (90) days after the giving of such notice. If
there is any material change in any representations or warranties and Seller
does not cure or correct such changes prior to Closing, then Purchaser may, at
Purchaser's option, (i) close and consummate the transaction contemplated by
this Agreement, except that after such closing and consummation Purchaser shall
have the right to seek actual monetary damages from Seller not to exceed
$500,000.00 for any such changes knowingly and intentionally caused by Seller or
any such representations or warranties knowingly and intentionally breached by
Seller, or (ii) terminate this Agreement by written notice to Seller, whereupon
the ▇▇▇▇▇▇▇ Money shall be immediately returned to Purchaser, and thereafter the
parties hereto shall have no further rights or obligations hereunder, except
only (1) for such rights or obligations that, by the express terms hereof,
survive any termination of this Agreement and (2) that Purchaser shall have the
right to seek actual monetary damages from Seller for any changes in such
representations and warranties knowingly and intentionally caused by Seller or
any such representations and warranties knowingly and intentionally breached by
Seller, subject to the limitation set forth in Paragraph 16 hereof.
Except as otherwise expressly provided in this Agreement or in any
documents to be executed and delivered by Seller to Purchaser at the Closing,
Seller has not made, and Purchaser has not relied on, any representation or
warranty, express or implied, regarding the Property, whether made by Seller, on
Seller's behalf or otherwise. Purchaser acknowledges (i) that Purchaser has
entered into this Agreement with the intention of making and relying upon its
own investigation or that of Purchaser's own consultants and representatives
with respect to the physical, environmental, and economic condition of the
Property and (ii) that Purchaser is not relying upon any statements,
representations or warranties of any kind, other than those specifically set
forth in this Agreement or in any document to be executed and delivered by
Seller to Purchaser at the Closing, made (or purported to be made) by Seller or
anyone acting or claiming to act on Seller's behalf. Purchaser shall be provided
the right and opportunity to inspect the Property and, subject to the terms and
conditions of this Agreement, shall purchase the Property in its "as is"
condition, "with all faults".
9. Seller's Additional Covenants. Seller does hereby further covenant and
-----------------------------
agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
---------------------
date of this Agreement up to and including the date of Closing, Seller
shall: (i) not negotiate with any third party respecting the sale of the
Property or any interest therein, (ii) not modify, amend,
10
or terminate the Lease or enter into any new lease, contract, or other
agreement respecting the Property, unless Seller obtains the prior
written consent to same from Purchaser, which consent shall not be
unreasonably withheld, conditioned or delayed, (iii) not waive any
rights of Seller under the Lease or any Service Contract, unless Seller
obtains the prior written consent to same from Purchaser, which consent
shall not be unreasonably withheld, conditioned or delayed, (iv) not
grant or otherwise create or consent to the creation of any easement,
restriction, ▇▇▇▇▇, assessment, or encumbrance respecting the Property,
unless Seller obtains the prior written consent to same from Purchaser,
which consent shall not be unreasonably withheld, conditioned or
delayed, and (v) cause the Property to be operated, maintained, and
repaired in the same manner as the Property is currently being
operated, maintained, and repaired.
(b) Removal of Personal Property. Seller shall neither
----------------------------
transfer nor remove any Personal Property or fixtures from the Property
after the date of this Agreement except for the purposes of replacement
thereof, in which case such replacements shall be promptly installed
and shall be comparable in quality to the items being replaced.
(c) Preservation of Lease. Seller shall, from and after the
---------------------
date of this Agreement to the date of Closing, use its best efforts to
perform and discharge all of the duties and obligations and shall
otherwise comply with every covenant and agreement of the landlord
under the Lease, at Seller's expense, in the manner and within the time
limits required thereunder. Furthermore, Seller shall, for the same
period of time, use diligent and good faith efforts to cause the Tenant
under the Lease to perform all of its duties and obligations and
otherwise comply with each and every one of its covenants and
agreements under such Lease and shall take such actions as are
reasonably necessary to enforce the terms and provisions of such Lease.
Seller hereby agrees that from and after full execution of this
Agreement, Seller shall not draw on or use any "Capital Reserve" funds
paid by Tenant to Seller under Section 3.5 of the Lease unless Seller
obtains an acknowledgment from Tenant that Seller is authorized under
Section 3.5(b) of the Lease to draw on or use such "Capital Reserve"
funds for qualifying capital expenditures under Section 3.5(b) of the
Lease.
(d) Insurance. From and after the date of this Agreement to
---------
the date and time of Closing, Seller shall, at its expense, continue to
maintain the same all-risk fire and extended coverage insurance
covering the Property which is currently in force and effect.
(e) As-Built Survey. Seller agrees to obtain at Seller's cost
---------------
and deliver to Purchaser prior to December 21, 2001, an as-built survey
of the Land and Improvements prepared for and certified to ▇▇▇▇▇
Capital, Inc., ▇▇▇▇▇ Operating Partnership, L.P., Bank of America, N.A.
and the Title Company by a registered land surveyor approved by
Purchaser, which approval shall not be unreasonably withheld. Purchaser
hereby approves ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Inc. as the surveyor. The as-built
survey shall comply with the minimum standard detail requirements for
urban surveys as adopted in 1999 by the American Land Title Association
and American Congress on Surveying and Mapping shall be dated not
earlier
11
than one (1) month prior to Closing, and shall include a certification
from the surveyor in the form attached hereto as Exhibit "N" and by
-----------
reference made a part hereof.
(a) Estoppel Certificates. Seller agrees to use reasonable and
---------------------
diligent efforts in good faith to obtain and deliver to Purchaser the
Tenant Estoppel Certificate, the Association Estoppel Certificate and
the ▇▇▇▇▇▇▇▇ Estoppel Certificate duly executed by the applicable
signatories thereof and certifying as to the matters set forth in the
forms of such estoppel certificates attached to this Agreement.
10. Closing. Provided that all of the conditions set forth in this
-------
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may waive expressly and in
writing, at or prior to Closing, any conditions that are unsatisfied or
unperformed at such time, the consummation of the sale by Seller and purchase by
Purchaser of the Property (herein referred to as the "Closing") shall be held on
or before January 15, 2002, at an office in Jacksonville, Florida at the office
of Seller's attorney, and at such specific time and date as shall be designated
by Purchaser in a written notice to Seller not less than three (3) business days
prior to Closing. In the event Purchaser fails to give such Notice of the time,
date and place of Closing, the Closing shall occur at 1:30 p.m. on the last date
for such Closing as provided above, at the Jacksonville, Florida office of the
Seller's attorney.
11. Seller's Closing Documents. For and in consideration of, and as a
--------------------------
condition precedent to Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Special Warranty Deed. A Special Warranty Deed conveying
---------------------
to Purchaser marketable fee simple title to the Land and Improvements,
together with all rights, members, easements, and appurtenances
thereof, subject only to the Permitted Exceptions. The legal
description set forth in the Special Warranty Deed shall be identical
to Exhibit "A" attached hereto. In the event the as-built survey of the
-----------
Land and Improvements obtained by Seller as provided in Paragraph 9(e)
hereof shall differ from the legal description set forth on Exhibit "A"
-----------
hereto, Seller shall execute and deliver to Purchaser a quitclaim deed
containing a legal description based upon such as-built survey;
(b) ▇▇▇▇ of Sale. A ▇▇▇▇ of Sale conveying to Purchaser
------------
marketable title to the Personal Property in the form and substance of
Exhibit "O" attached hereto and by this reference made a part hereof;
-----------
(c) Blanket Transfer. A Blanket Transfer and Assignment in the
----------------
form and substance of Exhibit "P" attached hereto and by this
-----------
reference made a part hereof;
(d) Assignment and Assumption of Lease. An Assignment and
----------------------------------
Assumption of Lease in the form and substance of Exhibit "Q" attached
-----------
hereto and by this reference made a
12
part hereof, assigning to Purchaser all of Seller's right, title, and
interest in and to the Leases and the rents thereunder;
(e) Seller's Certificate. A certificate evidencing the
--------------------
reaffirmation of the truth and accuracy of Seller's representations,
warranties, and agreements set forth in Paragraphs 8 and 19 hereof;
(f) Seller's Affidavit. A customary Seller's Affidavit in the
------------------
form of Exhibit "R" attached hereto and by this reference made a part
-----------
hereof;
(g) FIRPTA Certificate. A FIRPTA Affidavit in the form and
------------------
substance of Exhibit "S" attached hereto and by this reference made a
-----------
part hereof;
(h) Surveys and Plans. Such surveys, site plans, plans and
-----------------
specifications, and other matters relating to the Property as are
described in subparagraph (a) of the Blanket Transfer and Assignment
and are in the possession or control of Seller;
(i) Certificates of Occupancy. Original or Seller certified
-------------------------
copies of Certificates of Occupancy for all space within the
Improvements, to the extent same are in the possession or control of
Seller;
(j) Lease. The original executed counterpart(s) of the Lease in
-----
the possession or control of Seller;
(k) Service Contracts. An original executed counterpart of each
-----------------
Service Contract;
(l) Estoppel Certificates. The Tenant Estoppel Certificate,
-----------------
Association Estoppel Certificate and ▇▇▇▇▇▇▇▇ Estoppel Certificate
referred to in Paragraphs 6(e), 6(f) and 6(g) hereof, if and to the
extent obtained by Seller and if not previously delivered to
Purchaser;
(m) Operating Expense Statements. Statements, certified to be
----------------------------
complete and accurate by Seller, of operating expenses and other
financial and expense information required in order to compute any
escalations of and adjustments in rent, additional rent, operating
expenses, and other charges under the Lease;
(n) Limited Liability Company Resolution. A copy of a
------------------------------------
resolution adopted by the requisite majority in interest of the Members
of Seller, certified by an appropriate officer or manager of Seller to
be in force and unmodified as of the date and time of Closing,
authorizing the execution and delivery of documents required hereunder,
and designating and guaranteeing the signatures of the officers or
managers of Seller who are to execute and deliver all such documents on
behalf of Seller in a form satisfactory to the Title Company;
13
(o) Keys and Records. All of the keys or access cards to any
----------------
doors or locks on the Property and the original tenant files and other
books and records relating to the Property in Seller's possession or
control;
(p) Tenant Notice. Notice from Seller and Purchaser to the
-------------
Tenant of the sale of the Property to Purchaser in such form as
Purchaser shall reasonably approve;
(q) Settlement Statement. A settlement statement setting forth
--------------------
the amounts paid by or on behalf of and/or credited to each of
Purchaser and Seller pursuant to this Agreement; and
(r) Other Documents. Such other documents as shall be
---------------
reasonably required by Purchaser's counsel or the Title Company.
12. Purchaser's Closing Documents. Purchaser shall obtain or
-----------------------------
execute, at Purchaser's expense, and deliver to Seller at Closing the following
documents, all of which shall be duly executed and acknowledged where required
and shall survive the Closing:
(a) Blanket Transfer. A Blanket Transfer and Assignment in the
----------------
form and substance of Exhibit "P" attached hereto;
----------
(b) Assignment and Assumption of Lease. The Assignment and
----------------------------------
Assumption of Lease in the form and substance of Exhibit "Q" attached
----------
hereto;
(c) Tenant Notice. Notice from Seller and Purchaser to the
-------------
Tenant of the sale of the Property to Purchaser;
(d) Settlement Statement. A settlement statement setting forth
--------------------
the amounts paid by or on behalf of and/or credited to each of
Purchaser and Seller pursuant to this Agreement;
(e) Other Documents. Such other documents as shall be
---------------
reasonably required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title
-------------
Commitment, including the cost of the examination of title to the Property made
in connection therewith, the premium for the owner's policy of title insurance
issued pursuant thereto (except for any additional cost attributable to the
Endorsements), the cost of the as-built survey obtained by Seller as provided in
Paragraph 9(e) hereof, the cost of any documentary, transfer or sales tax
imposed by the State of Florida or the City or County of Sarasota upon the
conveyance of the Property pursuant hereto, the attorneys' fees of Seller, and
all other costs and expenses incurred by Seller in closing and consummating the
purchase and sale of the Property pursuant hereto. Purchaser shall pay the
recording fees on the Special Warranty Deed (and quitclaim deed if required
pursuant to Paragraph 11[a] hereof) of the Property from Seller to Purchaser to
be recorded in connection with this
14
transaction, the additional cost of the Title Policy attributable to the
Endorsements, the attorneys' fees of Purchaser, and all other costs and expenses
incurred by Purchaser in closing and consummating the purchase and sale of the
Property pursuant hereto. All other expenses relating to this transaction shall
be allocated in the manner customary in Sarasota, Florida.
14. Prorations. The following items shall be prorated and/or
----------
credited between Seller and Purchaser as of Midnight preceding the date of
Closing:
(a) Rents. Rents, additional rents, operating costs, and other
-----
income of the Property (other than security deposits) collected by
Seller from the Tenant for the month of Closing. Purchaser shall also
receive a credit against the Purchase Price payable by Purchaser to
Seller at Closing for any rents or other sums prepaid by the Tenant for
any period following the month of Closing, or otherwise. Purchaser
shall receive a credit against the Purchase Price payable by Purchaser
to Seller at Closing for the entire amount of the "Capital Reserve"
paid by the Tenant under the Lease and not theretofore applied to any
capital expenses as authorized by Section 3.5(b) of the Lease and
Paragraph 9(c) hereof. Seller hereby acknowledges that Purchaser shall
not be legally responsible to Seller for the collection of any
uncollected rent or other income under the Lease that is past due or
otherwise due and payable as of the date of Closing. Purchaser agrees
that if (i) Tenant is in arrears on the date of Closing in the payment
of rent or other charges under such Tenant's Lease, and (ii) upon
Purchaser's receipt of any rental or other payment from the Tenant,
such Tenant is, or after application of a portion of such payment will
be, current under such Lease in the payment of all accrued rental and
other charges that become due and payable on the date of Closing or
thereafter and in the payment of any other obligations of the Tenant
to Purchaser, then Purchaser shall refund to Seller, out of and to the
extent of the portion of such payment remaining after Purchaser
deducts therefrom any and all sums due and owing it from the Tenant
from and after the date of Closing, an amount up to the full amount of
any arrearage existing on the date of Closing.
(b) Property Taxes. Ad valorem taxes are paid by the Tenant
--------------
under the Lease and accordingly shall not be prorated between Seller
and Purchaser.
(c) Utility Charges. Except for utilities which are the direct
---------------
responsibility of the Tenant to the applicable public or private
utilities supplier, (i) Seller shall pay all utility bills received
prior to Closing and shall be responsible for utilities furnished to
the Property prior to Closing, and (ii) Purchaser shall be responsible
for the payment of all bills for utilities furnished to the Property
subsequent to the Closing. Seller and Purchaser hereby agree to prorate
as of midnight preceding the date of Closing and pay their respective
shares of all utility bills received subsequent to Closing (if they
include a service period prior to the date of Closing and are not the
responsibility of the Tenant to the applicable public or private
utility supplier), which agreement shall survive Closing. Seller shall
be entitled to all deposits presently in effect with the utility
providers.
15
(d) Service Contracts. Charges under the Service Contracts
-----------------
shall be prorated as of Midnight preceding the date of Closing.
(e) Other Tenant Charges. Where the Lease contains Tenant
--------------------
obligations for taxes, common area expenses, operating expenses or
additional charges of any nature, and where Seller shall have collected
on an estimated basis any portion thereof in excess of amounts owed by
Seller for such items for the period prior to the date of Closing, then
there shall be an adjustment and credit given to Purchaser on the date
of Closing for such excess amounts collected. Purchaser shall apply all
such excess amounts to the charges owed by Purchaser for such items for
the period after the date of Closing, and if required by the Lease,
shall rebate or credit Tenant with any remainder. If it is determined
subsequent to the Closing that the amount collected during Seller's
ownership period exceeded expenses incurred during the same period by
more than the amount previously credited to Purchaser at Closing, then
Seller shall promptly pay to Purchaser the deficiency. If it is
determined subsequent to Closing that the amount collected during
Seller's ownership period exceeded expenses incurred during the same
period by less than the amount previously credited to Purchaser at
Closing, then Purchaser shall promptly pay to Seller the overpayment.
The obligations of the parties under this Paragraph 14 shall survive the
Closing. Notwithstanding anything contained in this Agreement to the contrary,
if the Closing occurs on the last day of a month, the foregoing items shall be
prorated and/or credited between Seller and Purchaser as of Midnight of the date
of Closing (instead of Midnight preceding the date of Closing), and in such case
(i) the Purchase Price shall be reduced by $5,000.00, and (ii) appropriate
changes shall be made in the assumption and indemnity provisions of the Blanket
Transfer and Assignment and the Assignment and Assumption of Lease to the end
that Seller shall be responsible thereunder for the period through the date of
Closing, and Purchaser shall be responsible thereunder for the period after the
date of Closing.
15. Purchaser's Default. In the event of default by Purchaser under
-------------------
the terms of this Agreement, Seller's sole and exclusive remedy shall be to
terminate this Agreement, receive the ▇▇▇▇▇▇▇ Money from Escrow Agent as
liquidated damages, and receive copies of the "Third Party Reports" from
Purchaser, and thereafter the parties hereto shall have no further rights or
obligations hereunder whatsoever. It is hereby agreed that Seller's damages will
be difficult to ascertain and that the ▇▇▇▇▇▇▇ Money constitutes a reasonable
liquidation thereof and is intended not as a penalty, but as fully liquidated
damages. Seller agrees that in the event of a default by Purchaser, it shall not
initiate any proceeding to recover damages from Purchaser, but shall limit its
recovery to the receipt and retention of the ▇▇▇▇▇▇▇ Money and copies of the
Third Party Reports. The limitations on Purchaser's liability under this
Paragraph 15 shall be inapplicable to the liability of Purchaser for payments,
if any, due by Purchaser to Seller under Paragraph 4 hereof. For purposes
hereof, the term "Third Party Reports" shall mean the reports, studies, surveys
and other information furnished to Purchaser by third parties (excluding
Purchaser's attorneys) in connection with the inspection of the Property. The
delivery of the Third Party Reports by Purchaser shall be without warranty or
representation whatsoever, express or implied, including any warranty as to
accuracy or completeness or otherwise.
16
16. Seller's Default. In the event of default by Seller under the
----------------
terms of this Agreement, except as otherwise specifically set forth herein, at
Purchaser's option: (i) Purchaser shall be entitled to an immediate refund of
all but $25.00 of the ▇▇▇▇▇▇▇ Money and to pursue against Seller an action for a
specific performance, or (ii) Purchaser may terminate this Agreement by written
notice to Seller, whereupon the ▇▇▇▇▇▇▇ Money shall be immediately returned by
Escrow Agent to Purchaser, and Seller shall further reimburse to Purchaser the
documented out-of-pocket costs and expenses incurred by Purchaser in connection
with the proposed acquisition of the Property by Purchaser, not to exceed
$50,000.00; provided, however, if Seller knowingly and intentionally breaches
any covenant to be performed by Seller under this Agreement or knowingly and
intentionally causes any representation or warranty to be untrue or knowingly
and intentionally does anything to make impossible or defeat the remedy of
specific performance, Purchaser shall be further entitled to seek actual damages
from Seller up to a maximum of $500,000.00.
17. Condemnation. If, prior to the Closing, all or any part of the
------------
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within fifteen (15) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser
chooses to cancel this Agreement in accordance with this Paragraph 17, then the
▇▇▇▇▇▇▇ Money shall be returned immediately to Purchaser by Escrow Agent and the
rights, duties, obligations, and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect, except for the
obligations of the parties which are herein expressly stated to survive the
termination of this Agreement. If Purchaser does not elect to cancel this
Agreement in accordance herewith, this Agreement shall remain in full force and
effect and the sale of the Property contemplated by this Agreement, less any
interest taken by eminent domain or condemnation, or sale in lieu thereof, shall
be effected with no further adjustment and without reduction of the Purchase
Price, and at the Closing, Seller shall assign, transfer, and set over to
Purchaser all of the right, title, and interest of Seller in and to any awards
that have been or that may thereafter be made for such taking. At such time as
all or a part of the Property is subjected to a bona fide threat of condemnation
and Purchaser shall not have elected to terminate this Agreement as hereinabove
provided, Purchaser shall be permitted to participate in the proceedings as if
Purchaser were a party to the action. Seller shall not settle or agree to any
award or payment pursuant to condemnation, eminent domain, or sale in lieu
thereof without obtaining Purchaser's prior written consent thereto in each
case.
18. Damage or Destruction. If any of the Improvements shall be
---------------------
destroyed or damaged prior to the Closing, and if either the estimated cost of
repair or replacement exceeds Two Hundred Fifty Thousand Dollars ($250,000.00)
or the damage is such that the Lease is terminated or terminable at the option
of the Tenant (unless the termination option is waived in writing), Purchaser
may, by written notice given to Seller within twenty (20) days after receipt of
written notice from Seller of such damage or destruction, elect to terminate
this Agreement, in which event
17
the ▇▇▇▇▇▇▇ Money shall immediately be returned by Escrow Agent to Purchaser and
the rights, duties, obligations, and liabilities of all parties hereunder shall
immediately terminate and be of no further force or effect, except for the
obligations of the parties which are herein expressly stated to survive the
termination of this Agreement. If Purchaser does not elect to terminate this
Agreement pursuant to this Paragraph 18, or has no right to terminate this
Agreement (because the damage or destruction does not exceed $250,000.00 and
would not give rise to a right by Tenant to terminate its Lease), and the sale
of the Property is consummated, Purchaser shall be entitled to receive all
insurance proceeds paid or payable to Seller by reason of such destruction or
damage under the insurance required to be maintained by Seller pursuant to
Paragraph 9(d) hereof (less amounts of insurance theretofore received and
applied by Seller to costs actually incurred for restoration). Seller shall not
settle or release any damage or destruction claims without obtaining Purchaser's
prior written consent in each case. All said insurance proceeds received by
Seller by the date of Closing shall be paid by Seller to Purchaser at Closing,
together with the lesser of (i) that amount necessary to cover any difference
between the amount of such proceeds and the estimated cost of repair or
replacement, or (ii) the amount of the deductible under Seller's all-risk
property damage insurance policy. In addition, at Closing, Seller shall pay over
to Purchaser, and assign to Purchaser, all proceeds of any rent loss insurance
for the period of time commencing on the date of Closing. If the amount of said
casualty or rent loss insurance proceeds is not settled by the date of Closing,
Seller shall execute at Closing all proofs of loss, assignments of claim, and
other similar instruments in order that Purchaser receive all of Seller's right,
title, and interest in and under said insurance proceeds.
19. Hazardous Substances. To the Seller's knowledge, and based
--------------------
solely on the Existing Environmental Reports (as hereinafter defined) as to
matters occurring before the Seller came into ownership of the Property, (i) no
"hazardous substances", as that term is defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. (s) 9601, et seq., the Resource Conservation and Recovery Act of 1976, as
amended, 42 U.S.C. (s) 6901, et seq., and the rules and regulations promulgated
pursuant to these acts, any so-called "super-fund" or "super-lien" laws or any
applicable state or local laws, nor any other pollutants, toxic materials, or
contaminants have been or shall prior to Closing be discharged, disbursed,
released, stored, treated, generated, disposed of, or allowed to escape on the
Property, (ii) no asbestos or asbestos containing materials have been installed,
used, incorporated into, or disposed of on the Property, (iii) no
polychlorinated biphenyls are located on or in the Property, in the form of
electrical transformers, fluorescent light fixtures with ballasts, cooling oils,
or any other device or form, (iv) no underground storage tanks are located on
the Property or were located on the Property and subsequently removed or filled,
(v) no investigation, administrative order, consent order and agreement,
litigation, or settlement with respect to hazardous substances is proposed,
threatened, anticipated or in existence with respect to the Property, and (vi)
the Property has not previously been used as a landfill, cemetery, or as a dump
for garbage or refuse. As used herein, the term "Existing Environmental Reports"
shall mean the reports and studies listed on Exhibit "T" attached hereto and by
----------
reference incorporated herein. Seller represents to Purchaser that the Existing
Environmental Reports constitute all of the environmental reports and studies
relating to the Land and Improvements obtained by Seller or any affiliate of
Seller or otherwise in the possession or control of Seller. The representations
and warranties set forth in this Paragraph 19
18
shall expressly survive the execution and delivery of the Special Warranty Deed
conveying the Land and Improvements from Seller to Purchaser for a period of one
(1) year after Closing whereupon they shall expire, except to the extent that
with respect to any particular alleged breach, Purchaser gives Seller written
notice prior to the expiration of said one (1) year period of such alleged
breach and files an action against Seller with respect thereto within ninety
(90) days after the giving of such notice.
20. Assignment. This Agreement and Purchaser's rights, duties, and
----------
obligations hereunder may not be delegated, transferred, or assigned by
Purchaser without the prior written consent of Seller, and any assignee or
transferee proposed by Purchaser shall expressly assume all of Purchaser's
duties, liabilities and obligations under this Agreement by written instrument
delivered to Seller. Notwithstanding the foregoing to the contrary, this
Agreement, and Purchaser's rights and duties hereunder, may be freely assigned
and transferred to any entity under common control with Purchaser or controlled
by Purchaser or to ▇▇▇▇▇ Operating Partnership, L.P., a Delaware limited
partnership, or to any partnership having Purchaser or ▇▇▇▇▇ Operating
Partnership, L.P. as a direct or indirect general partner. For purposes of this
Paragraph 20, the term "control" shall mean a twenty percent (20%) ownership in
the applicable entity.
21. Broker's Commission. Upon the Closing, and only in the event of
-------------------
Closing, Seller shall pay to each of Tri-Star Properties, Inc. ("Tri-Star") and
CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. ("CB") a real estate sales commission in the amount of
$80,500.00 as full and complete compensation for the services provided by
Tri-Star and CB in connection with the purchase and sale of the Property.
Tri-Star and CB each hereby agree that it shall accept the foregoing commission
amount ($80,500.00) in full and complete satisfaction of the commission payable
to it in connection with the purchase and sale of the Property and that in the
event the purchase and sale of the Property is not closed and consummated for
any reason whatsoever, then no commission shall have been earned and none shall
be payable. Seller shall and does hereby indemnify and hold harmless Purchaser
from and against any claim, whether or not meritorious, for any real estate
sales commission, finder's fees, or like compensation in connection with the
sale contemplated hereby and arising out of any act or agreement of Seller,
including any claims asserted by Tri-Star and CB. Likewise, Purchaser shall and
does hereby indemnify and hold harmless Seller from and against any claim,
whether or not meritorious, for any real estate sales commission, finder's fees,
or like compensation in connection with the sale contemplated hereby and arising
out of any act or agreement of Purchaser, except any such claims asserted by
Tri-Star and CB. This Paragraph 21 shall survive the Closing or any termination
of this Agreement.
22. Notices. Wherever any notice or other communication is required
-------
or permitted hereunder, such notice or other communication shall be in writing
and shall be delivered by overnight courier, by hand, facsimile transmission or
sent by U.S. registered or certified mail, return receipt requested, postage
prepaid, to the addresses set out below or at such other addresses as are
specified by written notice delivered in accordance herewith:
19
PURCHASER: ▇▇▇▇▇ Capital, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Bank of America Plaza, Suite 5200
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SELLER: Sarasota ▇▇▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Park, President
Facsimile: 904-791-4699
with a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Any notice or other communication (i) mailed as hereinabove provided shall be
deemed effectively given or received on the third (3rd) business day following
the postmark date of such notice or other communication, (ii) sent by overnight
courier or by hand shall be deemed effectively given or received on the date of
delivery, and (iii) sent by facsimile transmission shall be deemed effectively
given or received on the first business day after the day of transmission of
such notice and confirmation of such transmission.
23. Possession. Possession of the Property shall be granted by Seller
----------
to Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
25. Access to Records Following Closing. Purchaser agrees that for a
-----------------------------------
period of two (2) years following the Closing, Seller shall have the right
during regular business hours, on five (5) days' written notice to Purchaser, to
examine and review at Purchaser's Norcross, Georgia office,
20
the books and records relating to the ownership and operation of the Property
which were delivered by Seller to Purchaser at the Closing. Likewise, Seller
agrees that for a period of two (2) years following the Closing, Purchaser shall
have the right during regular business hours, on five (5) days' written notice
to Seller, to examine and review at Seller's Jacksonville, Florida office, all
books, records, and files, if any, retained by Seller relating to the ownership
and operation of the Property prior to the Closing. The obligations of the
parties under this Paragraph 25 shall survive the Closing.
26. Intentionally Omitted.
---------------------
27. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
28. Authorization. Purchaser represents to Seller that this Agreement
-------------
has been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms, and all necessary action on the part of Purchaser to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
29. General Provisions. No failure of either party to exercise any
------------------
power given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Florida. Except as otherwise provided herein, all
rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine, feminine, or neuter gender
shall include all genders, and all references herein to the singular shall
include the plural and vice versa.
30. Radon Gas. Radon is a naturally occurring radioactive gas that,
---------
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are
21
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 testing may be obtained from public health units. Florida
Statute 404.036(8).
31. Effective Date. The "effective date" of this Agreement shall be
--------------
deemed to be the date this Agreement is fully executed by both Purchaser and
Seller and a fully executed original counterpart of this Agreement has been
received by both Purchaser and Seller.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
------
SARASOTA ▇▇▇▇▇▇▇, LLC, a
Florida limited liability company
By: ▇▇▇▇▇▇▇ Development, Inc., a Florida
corporation, its Manager
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Park
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Park
---------------------------------
Its: President
---------------------------------
(CORPORATE SEAL)
"PURCHASER":
---------
▇▇▇▇▇ CAPITAL, INC., a
Georgia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Its: Senior Vice President
------------------------------------
(CORPORATE SEAL)
[Signatures continued on following page]
22
[Signatures continued from previous page]
The undersigned Tri-Star and CB join in this Agreement for the purpose of
confirming their agreement to the terms of Paragraph 21 hereof.
"TRI-STAR ":
TRI-STAR PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: President
----------------------------------
"CB":
CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By: __________________________________
Name: __________________________________
Title: __________________________________
23
[Signatures continued from previous page]
The undersigned Tri-Star and CB join in this Agreement for the purpose of
confirming their agreement to the terms of Paragraph 21 hereof.
"TRI-STAR ":
TRI-STAR PROPERTIES, INC.
By: __________________________________
Name: __________________________________
Title: __________________________________
"CB":
CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: SR. Vice Pres.
----------------------------------
23
Schedule of Exhibits
--------------------
Exhibit "A" - Description of Land
Exhibit "B" - Description of Personal Property
Exhibit "C" - Form of Escrow Agreement
Exhibit "D" - Documents Delivered to Purchaser Prior to Effective
Date
Exhibit "E" - Documentation to be Provided to Purchaser within Two
(2) Business Days After the Effective Date
Exhibit "F" - Tenant Estoppel Certificate Form
Exhibit "G" - Association Estoppel Certificate Form
Exhibit "H" - ▇▇▇▇▇▇▇▇ Estoppel Certificate Form
Exhibit "I" - Permitted Exceptions
Exhibit "J" - Litigation Matters
Exhibit "K" - Description of Lease
Exhibit "L" - List of Service Contracts
Exhibit "M" - Intentionally Omitted
Exhibit "N" - Form of Surveyor's Certificate
Exhibit "O" - ▇▇▇▇ of Sale Form
Exhibit "P" - Blanket Transfer and Assignment Form
Exhibit "Q" - Assignment and Assumption of Lease Form
Exhibit "R" - Seller's Affidavit Form
Exhibit "S" - FIRPTA Affidavit Form
Exhibit "T" - List of Existing Environmental Reports
EXHIBIT "A"
----------
DESCRIPTION OF LAND
Commitment Number 220102644
Exhibit "A"
Parcel 1:
Lot 4, SARASOTA COMMERCE CENTER SUBDIVISION, recorded in Plat Book 34, Page 17,
Public Records of Sarasota County, Florida.
LESS: A portion of said Lot 4, described as follows:
Commence at the Northeast corner of said Lot 4; thence, leaving said corner and
along the North boundary line of said ▇▇▇ ▇, ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇▇) ▇▇(▇▇▇▇)
▇▇(▇▇▇▇▇▇) West, 300.48 feet to the Point of Beginning; said point lying on the
arc of a curve to the right, whose center bears South 65(degrees) 50(feet)
20(inches) West, 536.01 feet; thence, in a Southerly direction, along the arc of
said curve having a radius of 536.01 feet and central angle of 22(degrees)
57(feet) 44(inches), 214.82 feet; thence, along a non-radial line to the last
curve, North 83(degrees) 15(feet) 17(inches) West, 236.48 feet to its
intersection with the arc of a curve to the left, whose center bears South
89(degrees) 49(feet) 48(inches) West, 491.00 feet; thence, in a Northerly
direction, along the arc of said curve, having a radius of 491.00 feet and a
central angle of 01(degrees) 16(feet) 41(inches), 10.95 feet to a point of
compound curvature of a curve to the left; thence, in a Northwesterly direction,
along the arc of said curve, having a radius of 260.00 feet and a central angle
of 27(degrees) 20(feet) 56(inches), 124.11 feet to a point of compound curvature
of a curve to the left; thence, in a Northwesterly direction, along the arc of
said curve, having a radius of 142.00 feet and a central angle of 01(degrees)
08(feet)36(inches), 2.83 feet; thence, along a non-radial line to the last
curve, North 45(degrees) 18(feet) 51(inches) East, 62.22 feet; thence North
88(degrees) 31(feet) 43(inches) East, 177.44 feet to the Point of Beginning.
TOGETHER WITH:
A portion of Lots 30 and 31 ▇▇▇▇▇▇ Farms First Unit, recorded in Plat Book 2,
page 216, Public Records of Sarasota County, Florida, described as follows:
Begin at the Northeast corner of Lot 4, Sarasota Commerce Center Subdivision,
recorded in Plat Book 34, page 17, Public Records of Sarasota County, Florida,
said point also lying on the West boundary line of a 52(feet) wide drainage
canal, said line also being the East line of the aforementioned Lot 31; thence,
leaving said Northeast corner, and along the North line of said ▇▇▇ ▇, ▇▇▇▇▇
▇▇(▇▇▇▇▇▇▇) ▇▇(▇▇▇▇) ▇▇(▇▇▇▇▇▇) West, 300.48 feet to a point lying on the arc of
a curve to the left, whose center bears South 65(degrees) 50(feet) 20(inches)
West, 536.01 feet; thence, in a Northwesterly direction, along the arc of said
curve, having a radius of 536.01 feet and a central angle of 08(degrees)
31(feet) 08(inches), 79.70 feet; thence, along a non-tangent line to the last
curve, North 00(degrees) 18(feet) 51(inches) West, 58.05 feet; thence South
89(degrees) 41(feet) 09(inches) East, 339.23 feet to its intersection with the
aforementioned East line of said ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
18(feet) 51(inches) West, 116.50 feet to the Point of Beginning.
Parcel 2:
Non-Exclusive ingress and egress and utility easements for the benefit of Parcel
1 over, under and across the land as described in that certain Declaration of
Easements filed November 12, 1998 and recorded in Official Records Instrument
Number 1998150909, of the Public Records of Sarasota County, Florida.
Parcel 3:
A perpetual, non-exclusive easement for the benefit of Parcel 1 as set forth in
Easement between BSRT Commerce Center, LLC, Sarasota ▇▇▇▇▇▇▇ LLC, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, PFL Life Insurance Company, and SouthTrust Bank, National
Association, dated August 4, 1999, recorded as Instrument No. 2000006764, of the
Public Records of Sarasota County, Florida.