SALE AND PURCHASE AGREEMENT
BY AND BETWEEN
SUPERSTOCK, INC., A FLORIDA CORPORATION,
AS SELLER
AND
NL VENTURES IV, L.P., A TEXAS LIMITED PARTNERSHIP,
AS PURCHASER
FOR THE SUPERSTOCK FACILITY
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT (the "Agreement") is made and entered
into by and between SuperStock, Inc., a Florida corporation ("Seller") and NL
Ventures IV, L.P., a Texas limited partnership, and assigns ("Purchaser") to be
effective as of the date a fully executed original counterpart of this Agreement
is delivered to and received by the Title Company (the "Effective Date").
RECITALS
A. Seller is the owner of certain real property and improvements located
in the City of Jacksonville, Florida, which are more particularly described in
this Agreement as the "Project."
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the Project, upon and subject to the terms and conditions
hereinafter set forth, including without limitation, the condition that at
Closing Purchaser and Seller shall enter into a long term "absolute net" lease
of the Project with Purchaser as landlord and Seller as tenant (the "Lease").
AGREEMENTS
For and in consideration of the premises, the respective covenants and
agreements herein set forth, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged and confessed, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, unless otherwise defined herein or the
context otherwise requires, capitalized terms used in this Agreement shall have
the respective meanings assigned to them in Annex A attached hereto and made a
part hereof for all purposes.
ARTICLE 2
PROPERTY
Subject to the terms and provisions hereof, and for the consideration
herein set forth, Seller agrees to sell, and Purchaser agrees to purchase, the
following described property located in the City of Jacksonville, Florida:
2.1 Realty. All those certain tracts, pieces or parcels of land described
in Exhibit A attached hereto and made a part hereof for all purposes (herein
referred to as the "Land"), together with the buildings, structures, fixtures
(except for trade fixtures owned by Seller), paving, curbing, trees, shrubs,
plants, and other improvements and landscaping of every kind and nature
presently situated on, in, or under, or hereafter (but prior to Closing) erected
or installed or used in, on, or about the Land (herein collectively referred to
as the "Improvements"), and all rights and appurtenances pertaining thereto,
including, but not limited to: (i) all right, title and interest, if any, of
Seller, in and to any land in the bed of any street, road or avenue open or
proposed in front of or adjoining the Land; (ii) all right, title and interest,
if any, of Seller, in and to any rights-of-way, rights of ingress or egress or
other interests in, on, or to, any land, highway, street, road, or avenue, open
or proposed, in, on, or across, in front of, abutting or adjoining the Land, and
any awards made, or to be made in lieu thereof, and in and to any unpaid awards
for damage thereto by reason of a change of grade of any such highway, street,
road, or avenue; (iii) any easement across or adjacent to the Land, existing or
abandoned; (iv) all right, title and interest, if any, of Seller, in and to all
sewage treatment capacity and water capacity and other utility capacity to serve
the Land and Improvements; (v) all right, title and interest, if any, of Seller,
in and to all oil, gas, and other minerals in, on, or under, and that may be
produced from the Land; (vi) any reversionary rights attributable to the Land;
(vii) all water rights appurtenant to the Land; and (viii) all development
rights, zoning classifications (including, without limitation, variances),
rights as to non-conforming uses and/or structures, vested or "grand-fathered
rights" and other entitlements pertaining to the Land (the Land, Improvements
and all of the other properties, rights and interests mentioned above are herein
collectively referred to as the "Realty");
2.2 Personalty. All personal property and equipment owned by Seller as of
the date hereof (or acquired by Seller prior to the Closing, as herein defined)
and which is directly used in connection with the ownership, use, operation,
repair and maintenance of the Realty and is located on the Realty (herein
collectively referred to as the "Personalty") including, but not limited to, all
gas and electric fixtures, appliances and wiring, engines, boilers, elevators,
escalators, incinerators, motors, dynamos, heating and air conditioning
equipment, sinks, water closets, basins, pipes, electrical systems, faucets,
fire prevention and extinguishing apparatus, central music and public address
systems, burglar alarms, security systems and equipment, shades, awnings,
screens, blinds, installed carpeting, lamps, drapes, curtains, spare parts,
materials and supplies for the ownership, use, operation, maintenance and repair
of the Realty or the Personalty or both; provided, however, such Personalty
shall not include Seller's trade fixtures or inventory;
2.3 Incidental Rights. To the extent assignable, all of Seller's right,
title and interest, in and to and under all contracts, guaranties, warranties or
other agreements (herein collectively referred to as the "Incidental Rights")
relating to the ownership, construction, rental, operation, maintenance and
repair of the Realty and the Personalty, including, without limitation,
construction contracts relating to construction of the Improvements (herein
collectively referred to as the "Construction Contracts"), all contracts or
agreements, such as maintenance, service, management, leasing or utility
contracts relating, in any way, to the ownership, use, leasing, service,
management, operation, maintenance and repair of the Realty and the Personalty
as more particularly set forth in Schedule 2.3 (herein collectively referred to
as the "Property Agreements"), , and all governmental permits or approvals or
licenses in effect as of Closing with respect to the ownership, construction,
use, occupancy and operation of the Realty and the Personalty; provided,
however, that the Incidental Rights shall not include (i) any Property
Agreements that Seller shall remain liable for as tenant under the Lease as
indicated on Schedule 2.3; (ii) any of Seller's tradenames or trademarks; or
(iii) any Property Agreements that Seller shall not remain liable for as tenant
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under the Lease, but Purchaser, in its sole discretion, requests that Seller
terminate (and if Seller is unable or unwilling to terminate for any reason,
Seller must notify Purchaser of such fact in writing at least three (3) days
prior to the expiration of the Review Period); and
2.4 Plans. All of Seller's right, title and interest in and to all plans,
drawings, specifications, surveys, engineering, environmental, inspection or
similar reports and other technical descriptions relating to the Realty and
Personalty (herein collectively referred to as the "Plans").
ARTICLE 3
▇▇▇▇▇▇▇ MONEY AND
INDEPENDENT CONTRACT CONSIDERATION
3.1 ▇▇▇▇▇▇▇ Money. Purchaser shall deposit, as ▇▇▇▇▇▇▇ money, with the
Title Company, to bind this Agreement with Seller, the sum of $25,000.00 (herein
referred to as the "Initial ▇▇▇▇▇▇▇ Money") in the form of cash, cashier's check
or other readily available funds, which deposit is to be made within three (3)
business days from and after the Effective Date. In addition, Purchaser shall
deposit, as additional ▇▇▇▇▇▇▇ money, with the Title Company, the sum of
$25,000.00 (herein referred to as the "Additional ▇▇▇▇▇▇▇ Money") in the form of
cash, cashier's check or other readily available funds, on the expiration of the
Review Period. The Initial ▇▇▇▇▇▇▇ Money and the Additional ▇▇▇▇▇▇▇ Money are
sometimes collectively referred to herein as the "▇▇▇▇▇▇▇ Money". The Title
Company shall place the ▇▇▇▇▇▇▇ Money in a fully federally insured interest
bearing account, and all interest earned thereon shall become a part of the
▇▇▇▇▇▇▇ Money as it accrues. If the transaction contemplated hereby closes, then
on the Closing Date (as herein defined), the ▇▇▇▇▇▇▇ Money shall be paid over to
Seller and applied to the Total Purchase Price; provided, however, that where
Purchaser has the option to terminate this Agreement, in the event of such
termination, then the ▇▇▇▇▇▇▇ Money shall be immediately returned by the Title
Company to Purchaser. In the event the transaction contemplated hereby does not
close for any other reason, the ▇▇▇▇▇▇▇ Money shall be disbursed in accordance
with the terms hereof, subject to the reimbursements to Seller set forth in
Section 10.4 hereof. In the event that Purchaser fails to deposit the Initial
▇▇▇▇▇▇▇ Money with the Title Company as provided in this Article 3, then this
Agreement shall become null and void for all purposes, and the parties hereto
shall have no further obligations hereunder.
3.2 Independent Contract Consideration. Within three (3) business days
from and after the Effective Date, Purchaser shall deliver the sum of One
Hundred and No/100 Dollars ($100.00) directly to Seller in the form of cash,
cashier's check or other readily available funds as Independent Contract
Consideration, which amount the parties bargained for and agreed to as
consideration for Purchaser's exclusive right to inspect and purchase the
Project pursuant to this Agreement and for Seller's execution, delivery and
performance of this Agreement. The Independent Contract Consideration is in
addition to and independent of any other consideration or payment provided in
this Agreement, is non-refundable, and it is fully earned and shall be retained
by Seller notwithstanding any other provisions of this Agreement and shall be
credited against the Total Purchase Price at Closing.
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ARTICLE 4
PURCHASE PRICE
4.1 Total Purchase Price. The total purchase price (the "Total Purchase
Price") for the sale and purchase of the Project is Seven Million Five Hundred
Thousand and No/100 Dollars ($7,500,000.00). At Closing, subject to the
provisions of Section 4.2 hereof, Purchaser shall pay the Total Purchase Price,
in cash, by bank cashier's check or wire transfer, through the account of the
Title Company, to Seller or as otherwise directed by Seller in writing.
4.2 Deduction from Purchase Price. In the event that Seller is a "foreign
person" (as defined in Internal Revenue Code Section 1445(f)(3) and regulations
issued thereunder) or in the event that Seller fails or refuses to deliver the
non-foreign affidavit required in Section 10.2(11) hereof, or in the event that
Purchaser receives notice from any seller-transferor's agent or
purchaser-transferee's agent (each as defined in Internal Revenue Code Section
1445(d) and the regulations issued thereunder) that, or Purchaser has actual
knowledge that, such affidavit is false, Purchaser shall deduct and withhold
from the Total Purchase Price a tax equal to ten percent (10%) thereof, as
required by Internal Revenue Code Section 1445. In the event of any such
withholding, Seller's obligation to deliver title hereunder and to otherwise
perform all of its obligations hereunder shall not be excused or otherwise
affected. Purchaser shall remit such withheld amount to and file the required
form with the Internal Revenue Service, and in the event of any claimed
over-withholding, Seller shall be limited solely to an action against the
Internal Revenue Service for refund (under Regulation Section 1.1464-1(a)), and
hereby waives any right of action against Purchaser on account of such
withholding. The provisions of this Section 4.2 shall survive the Closing Date
hereunder without limit as to time.
ARTICLE 5
SURVEY
5.1 Survey. Within twenty (20) days after the Effective Date, Seller and
Purchaser agree, (i) to cause a registered, licensed state surveyor approved by
the Title Company to prepare a new and updated on the ground survey (the
"Survey") of the Realty, and (ii) to deliver to Purchaser at least three (3)
copies, to Purchaser's counsel at least one (1) copy, and to the Title Company
at least one (1) copy of the Survey plat and a certificate under the seal of the
surveyor, which Survey shall satisfy all of the reasonable requirements of
Purchaser's Lender and, without limiting the foregoing, shall: (a) meet the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys" as
adopted by the American Land Title Association, the American Congress on
Surveying and mapping, and the National Society of Professional Surveyors in
1997, including items 1 through 4, 6 through 11, and 13 through 16 of Table A
thereto; and (b) include the surveyor's registered number and seal, the date of
the Survey (which shall be no earlier than the Effective Date), and a narrative
certificate certifying that the survey has been prepared in accordance with the
foregoing-described ALTA/ACSM Standards, and containing such other information
as Purchaser's Lender may reasonably require.
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Without limiting the foregoing, the Survey shall be in form and substance
acceptable to the Title Company as a basis for deleting, to the maximum extent
permitted by applicable title insurance regulations, the standard printed
exceptions relating to survey matters in the Owner's Policy of Title Insurance
to be delivered by Seller as hereinafter provided. For purposes of the property
description to be included in the Deed, the field notes prepared by the surveyor
shall control any conflicts or inconsistencies with the description herein.
ARTICLE 6
TITLE COMMITMENT AND CONDITION OF TITLE
6.1 Title Commitment. Within twenty (20) days after the Effective Date,
Seller and Purchaser agree to cause the Title Company to furnish Purchaser and
its counsel a Commitment for Owner's Policy of Title Insurance (the "Title
Commitment") prepared and issued by the Title Company describing and covering
the Realty, listing Purchaser as the prospective name insured and showing as the
policy amount the Total Purchase Price, which Title Commitment shall constitute
the commitment of the Title Company to insure, by title insurance in the
standard form of an Owner's Policy of Title Insurance in use in the State of
Florida, Purchaser's title to the Realty to be good, marketable and
indefeasible, subject only to those exceptions as may be approved by Purchaser
or as hereinafter provided (herein referred to collectively as "Permitted
Exceptions") and to the standard printed exceptions contained in the standard
form of Owner's Policy of Title Insurance, except that, to the maximum extent
permitted by applicable title insurance regulations and at Seller's expense,
such standard exceptions shall be modified as follows: (i) the standard printed
form survey exception shall be amended to read only "shortages in area", (ii)
the standard exception as to the lien for taxes shall be limited to the year of
Closing and subsequent years, and shall be endorsed "Not Yet Due and Payable,"
with respect to such years. (iii) there shall be no exception for "visible and
apparent easements" or for "public or private roads" or the like, and (iv) there
shall be no exception for "rights of parties in possession", except for Seller,
as tenant under the Lease and any Purchaser approved subtenants, if any.
6.2 UCC Report. Within twenty (20) days after the Effective Date, Seller
and Purchaser shall obtain and provide to Purchaser a report (the "UCC Report")
of searches made of the Uniform Commercial Code Records of ▇▇▇▇▇ County,
Florida, the Real Property Records of ▇▇▇▇▇ County, Florida, and the Office of
the Secretary of State, State of Florida and the state of Seller's incorporation
or creation, indicating whether the Project is subject to any liens or security
interests (other than liens and security interests, if any, which are to be
released at the Closing).
6.3 Disclosure of Exceptions by Survey, Title Commitment and UCC Report.
Title Company shall furnish Purchaser and its counsel legible and true copies of
the instruments creating any title exceptions, and Purchaser and its counsel
shall have fifteen (15) business days after the date of receipt of such
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instruments by Purchaser and its counsel (provided Purchaser and its counsel
shall have received all of the Title Commitment, UCC Report and Survey) ("Title
Objection Period") to approve in writing the exceptions, in Purchaser's sole and
absolute discretion. The exceptions or conditions to title set forth on Schedule
6.3 attached hereto and the matters affecting title created by Purchaser,
expressly assumed by Purchaser, or created with the prior written consent of
Purchaser, are acceptable to Purchaser and are deemed to be "Permitted
Exceptions" for purposes of this Agreement. If the Title Commitment, UCC Report
and Survey disclose any objections to title other than the Permitted Exceptions,
which would materially interfere with Purchaser's intended use of the Property,
Seller shall have a reasonable time, not to exceed twenty (20) days from the
date such objections are made known in writing to Seller, to provide Purchaser
with notice that Seller intends to cure such objections prior to Closing. Any
curative material shall be filed by Seller, at its sole cost and expense, prior
to or at Closing.
Seller agrees to spend up to $10,000 to cure any unacceptable title,
survey or UCC exceptions (exclusive of monetary liens which Seller has agreed to
cure as hereinafter provided in this Section 6.3); provided, however, in no
event will Seller be obligated to incur costs in excess of $10,000 in the
aggregate or institute legal proceedings to do so. Notwithstanding the
foregoing, Seller shall also satisfy any monetary liens on the Project created
by Seller (or will cause the Project to be released from said monetary liens).
If the cost to cure exceeds $10,000 and Seller shall (x) elect (or be deemed to
have elected) not to cure any such unacceptable title exceptions or (y) not so
cure any other unpermitted exceptions on or before the Closing Date, Purchaser
may as its sole and exclusive remedy and at its sole option, either (i)
terminate this Agreement by written notice to Seller, in which event the ▇▇▇▇▇▇▇
Money shall be returned to Purchaser and neither party shall have any further
rights, obligations, or liabilities hereunder except with respect to any
surviving obligations hereunder, or (ii) waive any objections to the condition
of title to the Project and close the transaction contemplated hereby without a
reduction in the Total Purchase Price, in which event, any such waived
objections will be deemed to be Permitted Exceptions. Any instrument in order to
cure a defect in the insurability of title as provided herein shall be in such
form as may be reasonably required by the Title Company and to satisfy said
Title Company sufficiently for them to certify the said facts and/or to omit any
exception to title, and/or to guarantee to Purchaser and Purchaser's Lenders, if
any, against collection of any item out of the Project and, without limiting the
foregoing, the same shall include, if necessary, affidavits or consents of
officers and directors of Seller on behalf of Seller. If the Project is subject
to any liens, including without limitation, transfer, inheritance, estate,
franchise, license or other similar taxes or mechanics liens, the same shall not
be deemed an objection to title, provided that the Title Company will issue or
bind itself to issue its title policy which will insure Purchaser against
collection of said liens from the Project. If Purchaser does not notify Seller
within the 15-day period for an unacceptable title matter, the Title Commitment
will be deemed approved and, except as otherwise expressly set forth herein, all
matters shown thereby will be deemed to be Permitted Exceptions.
6.4 New Exceptions. If between the expiration of the Title Objection
Period and the Closing Date, an updated title report shows any new exceptions
not shown on the Title Commitment, or an updated survey shows any new
encroachments or other survey matters not existing during the Title Objection
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Period and such new exception is not otherwise a Permitted Exception
(collectively, "New Exceptions"), then, provided such New Exception would
materially interfere with Purchaser's intended use of the Project, Purchaser
shall have the right to give Seller written notice of same within ten (10) days
of Purchaser's receipt of notice from the Title Company or surveyor of the
existence of any such New Exception, and in such instance the parties shall have
the same rights and obligations as to title encumbrances and exceptions and
survey matters object to during the Title Objection Period. If Purchaser does
not give notice of any such New Exceptions to Seller during such ten (10) day
period, Purchaser shall be conclusively presumed to have waived such New
Exceptions and to have agreed to accept title subject to such New Exceptions
(which shall thereupon be deemed to be Permitted Exceptions), and the Closing
shall occur without any credit or abatement of the Total Purchase Price.
ARTICLE 7
STUDIES AND SELLER REPAIRS
Without in any way limiting any other duties of Seller hereunder to
provide information to Purchaser, promptly following the Effective Date, Seller
shall provide to Purchaser copies of all environmental and engineering studies,
reports and information of which Seller has Actual Knowledge, but only to the
extent that such studies, reports and information are in Seller's possession or
reasonably available to Seller, including, without limitation, correspondence
from Governmental Authorities, concerning the environmental, mechanical and
structural condition of the Realty. Should disclosure of any such materials be
restricted or limited then Seller shall inform Purchaser of such restriction
with a brief summary description of the materials not disclosed. In addition,
subject to the provisions of Article 16 hereof, during the Review Period
Purchaser and its contractors and representatives, shall have the right to
conduct any and all appraisals, environmental, mechanical or structural studies
and tests of the Realty (including, without limitation, Phase I Environmental
Site Assessment and asbestos and lead paint studies) which Purchaser and
Purchaser's Lender, in their reasonable discretion, deem necessary to determine
whether the Realty is suitable for Purchaser's intended use. In the event that
it is determined that a Phase II Environmental Site Assessment is necessary,
such as assessment shall not be conducted without the prior approval of Seller.
If Seller refuses to allow such Phase II Environmental Site Assessment, then
Purchaser shall have the right to (i) waive such requirement and proceed to
Closing, or (ii) terminate this Agreement in which case this Agreement shall
terminate and the Title Company shall return the ▇▇▇▇▇▇▇ Money to Purchaser and
the parties hereto shall have no further obligations under this Agreement,
except as may otherwise be provided herein. Purchaser shall make available to
Seller copies of all studies, reports or information in Purchaser's possession
generated as a result of its inspection of the Project.
Prior to entering the Project for any purpose, Purchaser shall furnish
Seller with evidence of liability insurance coverage. Purchaser agrees to
conduct all tests and inspections on the Project during normal business hours
and in such a manner as to minimize interference with Seller's business
operations; provided, however, that Seller agrees to make reasonable efforts to
accommodate Purchaser's activities. Purchaser agrees to repair any physical
damage to the Project caused by Purchaser's entry onto the Project. Should any
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engineering study indicate the need for immediate repairs, Seller shall elect to
either (i) agree to complete such repairs prior to Closing, (ii) subject to
approval by Purchaser's Lender, agree to complete such repairs within a
reasonable timeframe after Closing, in which case Seller agrees to escrow 125%
of the estimated cost of such repairs at Closing, or (iii) refuse to make such
repairs. Any escrow agreement entered into in connection with such escrowed
funds shall allow reasonable periodic disbursements to reimburse Seller for
documented expenses incurred as a result of such required repairs and for the
release of any escrowed funds not used in making such repairs. In the event that
Seller is unable to complete such repairs prior to Closing, refuses to complete
such repairs or to deposit 125% of the estimated costs into escrow, Seller shall
so notify Purchaser in writing and Purchaser shall have the option to (i) extend
the Closing Date as necessary to complete such repairs, (ii) waive such repairs
and proceed to Closing, or (iii) terminate this Agreement in which case this
Agreement shall terminate and the Title Company shall return the ▇▇▇▇▇▇▇ Money
to Purchaser and the parties hereto shall have no further obligations under this
Agreement, except as may otherwise be provided herein.
ARTICLE 8
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF SELLER
To induce Purchaser to enter into this Agreement and to purchase the
Project, Seller hereby represents and warrants to, and covenants and agrees with
Purchaser, as follows, with the understanding and intention that Purchaser is
relying upon the accuracy of such representations and warranties, and the
agreement of Seller to comply with and perform such covenants and agreements,
which representations, warranties, covenants and agreements shall be deemed
(except as provided below) to be made by Seller to Purchaser as of the Effective
Date and as of the Closing Date and thereafter (it being understood that such
representations, warranties, covenants and agreements shall not be merged into
the documents to be executed on the Closing Date but rather shall survive for
the period set forth in Section 17.4 of this Agreement), and this Agreement is
contingent upon and subject to the truth and accuracy of such representations
and warranties, and the full and complete satisfaction of such covenants and
agreements, and in the event such representations and warranties are not true
and accurate as of Closing and any such covenants and agreements are not
satisfied prior to Closing, Purchaser shall have the option of terminating this
Agreement at any time prior to Closing, whereupon the Title Company shall
promptly return the ▇▇▇▇▇▇▇ Money to Purchaser and all parties hereto shall be
released from any and all liability hereunder except as set forth herein, or
Purchaser may, at its sole option and discretion, waive in writing Seller's
satisfaction of any such representations, warranties, covenants or agreements
and consummate the transaction contemplated hereby (it being understood and
agreed by Seller and Purchaser that Seller shall remain liable during the
survival period provided for in Section 17.4 hereof for all representations,
warranties, covenants and agreements made by Seller in this Agreement and not
expressly waived in writing by Purchaser as hereinabove provided):
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(1) From the Effective Date until the Closing, Seller shall (i) maintain the
Project in, or, if necessary, restore the Project to, its present condition,
subject to reasonable wear and tear, damage, casualty and condemnation; (ii)
continue to operate the Project in a good, businesslike manner; and (iii) shall
not modify or alter, in any material respect, any repair or maintenance programs
or policies now in effect with respect to the Project, except as necessary to
accommodate a Purchaser approved subtenant, if any.
(2) Seller has delivered to Purchaser copies of all insurance policies relating
to the Project. Seller shall continue all such insurance policies in full force
and effect through the Closing Date, and Seller shall neither cancel nor
materially amend any of the same without Purchaser's prior written consent, not
to be unreasonably withheld.
(3) To best of Seller's Actual Knowledge, Seller has not received within the
eighteen (18) consecutive months immediately preceding the Effective Date any
notices or requests from any carrier of any insurance with respect to the
Project, and Seller shall immediately deliver copies of any such notice or
request to Purchaser received after the Effective Date.
(4) To the best of Seller's Actual Knowledge, Seller has not received within the
eighteen (18) consecutive months immediately preceding the Effective Date any
written or oral notices or requests from any mortgagee, insurance company or
Board of Fire underwriters, or any organization exercising functions similar
thereto, requesting the performance of any work or alterations in respect to the
Project which have not been performed.
(5) From the Effective Date through the Closing Date, Seller shall not enter
into any new Property Agreements without the prior written consent of Purchaser
unless such new Property Agreements are cancelable on or before the Closing Date
or Seller agrees to remain liable for such Property Agreement as tenant under
the Lease. The copies of the Property Agreements delivered to Purchaser
hereunder are true, accurate and complete, and, to the best of Seller's Actual
Knowledge, Seller has received no notice and has no knowledge of any material,
uncured breach or default by Seller or by any other party under the Property
Agreements. Prior to the Closing Date, Seller shall comply with each and every
material undertaking, covenant and obligation under the Property Agreements and
the same shall not be materially modified, amended, terminated, renewed or
otherwise altered without the prior written consent of Purchaser, which
Purchaser consent shall not be unreasonably withheld.
(6) There is no actual or pending action, suit, claim, litigation, or proceeding
by any entity, individual or governmental agency affecting Seller or the Project
which would in any way constitute a lien, claim or obligation of any kind
against the Project, and to the best of Seller's Actual Knowledge, there is no
such action, suit, claim, litigation or proceeding threatened.
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(7) There are no pending condemnation or similar proceedings or assessments
affecting the Project or any part thereof, nor to the best of Seller's Actual
Knowledge, are any such assessments or proceedings contemplated by any
Governmental Authority.
(8) No restrictive covenant or zoning (or its equivalent) classification (or,
other Governmental Requirement) is materially violated by the present use and
maintenance of the Project and appurtenant uses (including, without limitation,
parking uses associated with the Project), and, there are no proceedings pending
to change such zoning (or its equivalent) classification, and Seller shall not
itself apply for or acquiesce in any such change.
(9) To the best of Seller's Actual Knowledge, Seller has not received within the
eighteen (18) consecutive months immediately preceding the Effective Date any
notice of any breach of any Governmental Requirement or restrictive covenant
which remains uncured, and is not under any order of any Governmental Authority,
with respect to the Project or the Seller's present use and operation of the
Project.
(10) The execution of this Agreement, the consummation of the transactions
herein contemplated, and the performance and observance of the obligations of
Seller hereunder and under any and all other agreements and instruments herein
mentioned to which Seller is a party will not conflict with or result in the
breach of any Governmental Requirement or of any agreement or instrument to
which Seller is now a party or to which it is subject, or constitute a default
thereunder, and does not require Seller to obtain any consents or approvals
from, or the taking of any other actions with respect to any third parties.
(11) Seller has all requisite power and authority to carry on Seller's business
as it is now being conducted and to enter into and perform this Agreement. The
execution of this Agreement, the consummation of the transactions herein
contemplated, and the performance or observance of the obligations of Seller
hereunder and under any and all other agreements and instruments herein
mentioned to which Seller is a party have been duly authorized by all requisite
action and are enforceable against Seller in accordance with their respective
terms. The individual executing this Agreement on behalf of Seller is authorized
to act for and on behalf of and to bind Seller in connection with this Agreement
and in so doing to bind Seller to all of the terms and provisions hereof.
(12) The financial statements, reports, and other data relative to the Project
heretofore furnished by Seller to Purchaser are (and all such statements,
reports, information, and other data hereafter furnished by Seller to Purchaser
will be) true and correct in all material respects, and fairly reflect the
financial condition, the financial results or other subject matter thereof as of
the dates thereof.
(13) All of the Personalty is and shall be owned by Seller on the Closing Date,
free and clear of all liens, encumbrances, and security interests.
10
(14) There are no labor disputes, organizational campaigns or union contracts
existing or under negotiation as of the Effective Date with respect to the
Project for the construction, maintenance and operation thereof, and there are
no employees or associates, either of Seller or any other employer engaged in
the construction, operation and maintenance of the Project, to whom Purchaser
shall, at or after the Closing Date, have any obligation whatsoever.
(15) Seller has maintained and does presently maintain in full force and effect
all Environmental Permits necessary or required for the ownership and operation
of the Project, and Seller has provided, or will provide, copies of all such
Environmental Permits to Purchaser for its review.
(16) There will not as of the Closing Date exist any Environmental Condition on
or at the Realty or any other matter on or connected with the Project that would
cause the imposition on Purchaser of Environmental Liabilities if such
Environmental Condition or other matter were disclosed to Governmental
Authorities.
(17) As of the Effective Date and as of the Closing Date Seller is not currently
operating nor is it required to be operating the Project under any compliance
order, decree or similar agreement; any consent decree, order or similar
agreement; and/or any corrective action decree, order or similar agreement
issued by or entered into with any Governmental Authority under any
Environmental Law.
(18) Except as disclosed in any Phase I Environmental Site Assessment delivered
to Purchaser, no Hazardous Materials have been dumped, landfilled, stored,
located or disposed of on the Realty.
(19) To the best of Seller's Actual Knowledge, there has not been in respect to
the Project, within the eighteen (18) consecutive months immediately preceding
the Effective Date, any emission (other than steam or water vapor) into the
atmosphere or any discharge, direct or indirect, of any pollutants into the
waters of the State of Florida or the United States of America other than
domestic sewage discharged into a publicly owned treatment facility.
(20) To the extent within Seller's possession or available to Seller, Seller
shall provide Purchaser and its employees, representatives and agents with
access to the Project and shall make available for review and copying (if not
otherwise required to be furnished to Purchaser as herein provided), warranties
and guaranties directly relating to the Project, income and expense and
operating data directly relating to the Project, licenses and permits directly
relating to the Project, all fire, hazard, liability, and other insurance
policies held by Seller with respect to the Project, all appraisals of the
Project made within the last five years, engineer's or architect's studies or
reports with respect to the Project, and any and all books, records, contracts,
and any other documents or information directly relating to the Project. Seller
makes no representations or warranties as to the accuracy of the information
contained in any third party documents provided to Purchaser in accordance with
this Section 20; provided, however, that Seller represents that all documents
provided shall be true and correct copies of the same. To the extent that Seller
is prohibited by law or agreement from providing Purchaser with any
11
documentation that Seller is otherwise obligated to provide to Purchaser, Seller
shall provide Purchaser with written notice briefly describing the nature of
such documentation and the reason why the same may not be delivered to
Purchaser. Seller shall nevertheless continue to make reasonable attempts to
obtain such documentation and provide same to Purchaser. Seller shall cooperate
and assist Purchaser in the inspection of such documents, items and information
and in any other inspection by Purchaser provided for hereunder, provided that
any such inspection shall be conducted during normal business hours or at such
other time as is reasonable or necessary to conduct the inspection and shall not
unreasonably interfere with the normal business operations of Seller, and shall
be subject to the conditions set forth in Article 16 hereof.
(21) From the Effective Date through the Closing Date, Seller shall promptly
notify Purchaser of any material change with respect to the Project or any
information heretofore or hereafter furnished to Purchaser with respect to the
Project, including specifically, but without limitation, any change which would
make any portion of this Agreement, including, without limitation, the
representations, warranties, covenants and agreements contained in this Article
8 untrue or materially misleading.
(22) To the extent that Seller's representations and/or warranties in this
Article 8 are limited to the "Actual Knowledge" of any particular natural
persons, Seller warrants and represents that such persons are the most likely
officers, directors and/or employees of Seller to be familiar with the matters
to which the respective representation and/or warranty pertains.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby warrants and represents to Seller as follows:
(1) Purchaser is a limited partnership duly organized under the laws of
the State of Texas, and has full power to execute, deliver and perform this
Agreement.
(2) The execution of this Agreement, the consummation of the transactions
herein contemplated, and the performance or observance of the obligations of
Purchaser hereunder have been duly authorized by requisite action and are
enforceable against Purchaser in accordance with their respective terms. The
individuals executing this Agreement on behalf of Purchaser are authorized to
act for and on behalf of and to bind Purchaser in connection with this
Agreement.
(3) The execution of this Agreement, the consummation of the transactions
herein contemplated, and the performance and observance of the obligations of
Purchaser hereunder and under any and all other agreements and instruments
herein mentioned to which Purchaser is a party will not conflict with or result
in the breach of any Governmental Requirement or of any agreement or instrument
to which Purchaser is now a party or to which it is subject, or constitute a
default thereunder, and does not require Purchaser to obtain any consents or
approvals from, or the taking of any other actions with respect to any third
parties.
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(4) Other than the liens and security interests which shall be granted to
Purchaser's Lender at Closing, Purchaser has not granted any security interest
or liens which shall affect the Project.
ARTICLE 10
CLOSING
10.1 Closing Date. Unless extended as provided in this Agreement, and
provided Purchaser does not terminate this Agreement in accordance with its
terms and all other conditions set forth herein are satisfied, Purchaser and
Seller shall consummate and close the transactions contemplated hereby on or
before fifteen (15) days after the expiration of the Review Period, unless
Purchaser and Seller agree to an earlier date (the actual date of Closing
hereunder being herein referred to as the "Closing Date"), during regular
business hours in the offices of the Title Company, or such other location as
may be mutually agreed to by the parties. For the purposes of this Agreement,
the actual consummation and closing of the purchase and sale contemplated by
this Agreement is herein referred to sometimes as the "Closing".
10.2 Items to be Delivered by Seller on Closing Date. On the Closing Date
(or soon thereafter with regard to the Owner's Policy of Title Insurance),
provided all conditions set forth herein have been fully satisfied and/or
complied with, Seller shall deliver for the benefit of Purchaser the following
(all of which shall be duly executed, witnessed and notarized where appropriate
and, where appropriate, be in recordable form):
(1) Special Warranty Deed (the "Deed") in form and substance
reasonably satisfactory to Seller and Purchaser, which Deed shall (i) convey to
Purchaser good, marketable and indefeasible fee simple title to the Realty, (ii)
bind Seller and its successors and assigns to warrant and forever defend the
Realty unto Purchaser and its successors and assigns against every person
claiming same or any part thereof, by, through or under Seller, but not
otherwise, and (iii) be free and clear of all liens, encumbrances, covenants,
restrictions and other matters, except for the Permitted Exceptions.
(2) An Estoppel Certificate in form and substance reasonably
acceptable to Seller, Purchaser and Purchaser's Lender, duly executed by Seller
as tenant.
(3) A ▇▇▇▇ of Sale conveying the Personalty to Purchaser. The ▇▇▇▇
of Sale shall be prepared by Purchaser in form and substance reasonably
satisfactory to Seller and Purchaser, and shall contain a special warranty of
title, subject only to the Permitted Exceptions.
(4) Assignment of Incidental Rights and Plans and all other
documents affecting the Realty and Personalty and/or the construction,
furnishing and equipping thereof, including, but not limited to, all warranties
13
and guaranties under the Construction Contracts and equipment warranties.
Additionally, Seller shall use its reasonable efforts to cause each person or
entity who has issued a valid general contractor's or other warranty with
respect to the Project to execute an instrument in favor of Purchaser that
acknowledges and consents to the assignment of such warranty by Seller to
Purchaser. The Assignment shall be prepared by Purchaser in form and substance
reasonably satisfactory to Seller and Purchaser.
(5) All Property Agreements, the Plans, licenses and permits,
certificates of occupancy, certificates of compliance, tenant files, all studies
with respect to the functional aspects of the Project, including, without
limitation, soil and compaction tests, flooding studies and environmental
studies; all extra promotional brochures, posters, signs and other advertising
materials relative to the operation of the Project; copies of all other books
and records relating to the ownership and operation of the Project; and copies
of the Construction Contracts and all amendments relating thereto.
(6) A "Bills Paid Affidavit" verifying that there are no unpaid
bills or claims for labor performed or materials furnished to the Project by or
at the instance of Seller prior to the Closing Date.
(7) An Owner's Policy of Title Insurance in the face amount of the
Total Purchase Price, in the same form as the revised Title Commitment.
(8) Current records search results reasonably acceptable to
Purchaser reflecting that since the date of the searches furnished pursuant to
Section 6.2 hereof, no Uniform Commercial Code filings, chattel mortgages,
assignments, pledges or other similar encumbrances have been filed in the
offices of the Secretary of State of the State of Florida, in the office of the
County Clerk of ▇▇▇▇▇ County, Florida, or in any other appropriate offices for
the filing of such documents in the State of Florida with reference to the
Project.
(9) A certificate, executed and sworn to by Seller, confirming that
(i) as of the Closing Date, all of the warranties and representations set forth
in Article 8 hereof are true and correct in all material respects, and all
covenants and agreements set forth in Article 8 hereof have been satisfied, (ii)
Seller has delivered true, correct and complete original copies of all Property
Agreements entered into by Seller from and after the Effective Date (or, if none
have been entered into, so stating), and (iii) that no material adverse changes
have occurred with respect to any part of the Project.
(10) An operating statement, prepared as of the last day of the
calendar month preceding the Closing Date, which fully and accurately reflects
(and is certified by Seller as fairly reflecting) the results of operations from
the Project since the day that the last such operating statement was furnished
to Purchaser.
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(11) If Seller is not a "foreign person" (as defined in the Internal
Revenue Code Section 1445 and the regulations issued thereunder), a non-foreign
affidavit containing such information as shall be required by Internal Revenue
Code Section 1445 and regulations issued thereunder.
(12) Possession of the Project in substantially the same condition
as it exists on the Effective Date, subject to the rights of Seller as tenant
under the Lease and any Purchaser approved subtenants, if any.
(13) Such other documents, instruments and certificates as are
contemplated herein to effect and complete the Closing including, without
limitation, such ordinary and customary instruments as may be requested by the
Title Company.
(14) Original executed counterparts of the resolutions of Seller,
and any other documents as Purchaser shall reasonably request to evidence and
confirm the power and authority of Seller to close the transaction contemplated
herein.
(15) The Lease, executed by Seller, in form and substance reasonably
acceptable to both Seller, as tenant, and Purchaser, as landlord.
10.3 Items Delivered By Purchaser on Closing Date. On the Closing Date,
provided all conditions set forth herein have been fully satisfied and/or
complied with, Purchaser shall deliver for the benefit of Seller the following
(all of which shall be duly executed, witnessed, and notarized, where
appropriate, and, where appropriate, be in recordable form):
(1) The Total Purchase Price.
(2) Original executed counterparts of the resolutions of Purchaser
or other documents as Seller shall reasonably request to evidence and confirm
the power and authority of Purchaser to close the transaction contemplated
herein.
(3) Such other documents, instruments and certificates as are
contemplated herein to effect and complete the Closing including, without
limitation, such ordinary and customary instruments as may be requested by the
Title Company.
(4) The Lease, executed by Purchaser, in form and substance
reasonably acceptable to both Seller, as tenant, and Purchaser, as landlord.
(5) A subordination, non-disturbance and attornment agreement in a
form reasonably acceptable to Seller, as tenant, and Purchaser's Lender,
executed by Purchaser's Lender.
15
10.4 Closing Costs and Attorneys' Fees. On the Closing Date (i) Purchaser
shall pay Purchaser's attorneys' fees; all fees incurred by Purchaser in
connection with the Financing; the costs of preparing and recording the Deed and
other conveyancing documents; all mortgage or similar taxes and recording fees
associated with the Financing and the liens securing the same; and any other
costs incurred by Purchaser and all other costs which Purchaser has specifically
agreed to bear in other parts of this Agreement, and (ii) Seller shall pay any
transfer taxes and/or real estate transfer fees incident to the delivery of the
Deed and other conveyancing documents required of Seller herein; all fees,
expenses and penalties relating to the payoff of existing notes secured by the
Project or any part thereof, and the release of any deed of trust liens and
other liens associated therewith to the extent such liens were created by
Seller; the cost of examining, insuring and, to the extent the obligation to
cure is otherwise imposed on Seller under this Agreement, curing title (if
necessary) to the Project, as provided for herein (including the cost of the
premium of the Owner's Policy of Title Insurance and the Mortgagee Policy of
Title Insurance (including any endorsements thereto)) to be provided hereunder;
the cost of the Survey; the cost of the UCC reports; all engineering,
environmental and appraisal reports, the cost of Seller's attorneys' fees; any
other costs incurred by Seller; and all other costs which Seller has
specifically agreed to bear in other parts of this Agreement. Seller and
Purchaser shall share equally all escrow fees charged by the Title Company. In
the event no agreement is contained herein respecting the payment of a
particular cost or expense required to be incurred by Seller in connection with
this Agreement, such cost or expense shall be paid by Seller. In the event no
agreement is contained herein respecting the payment of a particular cost or
expense required to be incurred by Purchaser in connection with this Agreement,
such cost or expense shall be paid by Purchaser. Notwithstanding the foregoing,
in the event that this Agreement is terminated by Purchaser pursuant to its
rights under Articles 15 or 16 herein, Purchaser shall promptly reimburse Seller
for the cost of all engineering, environmental and appraisal reports prepared at
the request of Purchaser or Purchaser's Lender up to a maximum amount of
$18,000. The Title Company shall reimburse such costs to Seller, on Purchaser's
behalf, from the ▇▇▇▇▇▇▇ Money upon its receipt of invoices for such costs which
have been reasonably approved by Purchaser.
10.5 Prorations. There shall be no prorations, credits or offsets at
Closing for ad valorem taxes, special assessments and Project operating
expenses. Both Seller and Purchaser agree that Seller is currently responsible
for payment of such expenses and shall, to the extent provided in the Lease,
continue to be responsible for such expenses accruing against the Project for
periods of time from and after the Closing Date under the Lease.
ARTICLE 11
DESTRUCTION, DAMAGE OR CONDEMNATION
Prior to the Closing Date, risk of loss with regard to the Project and the
construction, ownership, operation, management or maintenance thereof shall be
borne by Seller. If, prior to the Closing Date, all or a material part of the
Project is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain, or included in whole or in part in a governmental plan
or proposal which may result in the taking of all or a material part of the
Project, or is taken by eminent domain or condemnation (or a sale in lieu
16
thereof), or all or a significant (by which term is meant damage or destruction
where the estimated costs of restoration exceed $100,000.00) part of the Project
is damaged or destroyed by fire or other casualty, Purchaser may, by written
notice to Seller, given within thirty (30) days after Purchaser's receiving
actual notice of such plan or proposal, threat of condemnation, condemnation,
damage, destruction, or sale, elect to rescind and cancel this Agreement, and
upon such rescission and cancellation, the Title Company shall return the
▇▇▇▇▇▇▇ Money to Purchaser and none of the parties shall have any rights,
obligations or liabilities hereunder, except as set forth herein. The Closing
Date shall be postponed, if necessary, to grant Purchaser such thirty (30) day
period. If Purchaser does not elect so to rescind, or if less than a significant
part of the Project is damaged or destroyed by fire or other casualty, this
Agreement shall remain in full force and effect, and the purchase contemplated
herein, less any property destroyed by fire or other casualty or taken by
eminent domain or condemnation, or sold in lieu thereof, shall be effected with
no further adjustments, and the provisions of the Lease shall govern any actions
required to be taken by Purchaser and Seller in connection with such
condemnation, damage, destruction, or sale. If this Agreement is not rescinded
by Purchaser as set forth above, at such time as all or part of the Project is
subject to a bona fide threat of condemnation as hereinabove provided, Purchaser
shall be permitted to participate in the proceedings as if Purchaser were a
party to the action.
ARTICLE 12
REAL ESTATE COMMISSIONS
Purchaser and Seller mutually represent and warrant to each other that it
dealt with no real estate brokers in the transactions contemplated by this
Agreement, and that no brokerage fees, commissions, or other remuneration of any
kind are due in connection herewith. Seller shall forever indemnify and hold
harmless Purchaser against and in respect of any and all claims, losses,
liabilities and expenses, including, without limitation, reasonable attorney's
fees and court costs, which Purchaser may incur on account of any claim by any
broker or agent or other person on the basis of any arrangements or agreements
made or alleged to have been made by or on behalf of Seller in respect to the
transactions herein contemplated. Purchaser shall forever indemnify and hold
harmless Seller against and in respect of any and all claims, losses,
liabilities and expenses, including, without limitation, reasonable attorney's
fees and court costs, which Seller may incur on account of any claim by any
broker or agent or other person on the basis of any arrangements or agreements
made or alleged to have been made by or on behalf of Purchaser in respect to the
transactions herein contemplated. The provisions of this Article 12 shall
survive the Closing and termination of this Agreement.
ARTICLE 13
NOTICES
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, transmitted by confirmed facsimile or
other similar electronic transmission device or by messenger delivery, or mailed
first class, postage prepaid, certified United States mail, return receipt
requested, as follows:
17
If to Seller, to: SuperStock, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: Loeb & Loeb LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser, to: NL Ventures IV, L.P.
c/o AIC Ventures
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
provided that any party may change its address for notice by giving to the other
party written notice of such change. Any notice request, demand or other
communication given under this Section shall be effective upon the earlier of
18
(i) personal delivery to the party to receive such notice, request, demand or
communication, (ii) receipt at the address for notice as provided for herein for
the party to receive such notice, request, demand or communication, or (iii) the
expiration of seventy-two (72) hours from and after the date such notice,
request, demand or other communication was sent in accordance herewith.
ARTICLE 14
DEFAULTS AND REMEDIES
14.1 Seller's Remedies on Purchaser's Default. In the event that Purchaser
shall fail to consummate the purchase of the Project on or before the Closing
Date for any reason other than termination hereof pursuant to a right granted to
Purchaser to do so, failure of any condition set forth herein, or breach by
Seller of its representations, warranties, covenants or agreements hereunder,
then, as its sole and exclusive remedy hereunder, Seller may terminate this
Agreement and receive the ▇▇▇▇▇▇▇ Money from Title Company whereupon neither
party shall have any further obligations hereunder except as set forth herein.
Seller agrees to accept such sum as its total liquidated damages and relief and
as its sole remedy, at law or in equity, for Purchaser's default hereunder, the
parties having agreed that in the event of a default hereunder by Purchaser, the
actual harm to Seller will be extremely difficult and impracticable to
determine, and Seller and Purchaser agree that said liquidated damages are not
intended as a penalty.
14.2 Purchaser's Remedies on Seller's Default. In the event Seller shall
fail or refuse to fully and timely perform any of its obligations hereunder, or
shall fail or refuse to consummate the sale of the Project for any reason not
set forth in this Agreement, except where caused by Purchaser's default, then as
its sole and exclusive remedies hereunder, Purchaser may: (i) terminate this
Agreement and recover (a) from the Title Company, the ▇▇▇▇▇▇▇ Money, and (b)
from Seller, Purchaser's actual out-of-pocket expenses incurred in connection
with the transaction herein contemplated, up to a maximum of $18,000.00, and
thereafter neither party shall have any further obligations hereunder except as
set forth herein, or (ii) enforce specific performance of this Agreement (and
should Purchaser be successful in enforcing specific performance, Seller shall
be responsible for all of Purchaser's reasonable court costs and reasonable
attorneys' fees incurred in connection therewith). In the event Seller fails or
refuses to perform any covenant or agreement herein undertaken or fails or
refuses to furnish any item or thing or permit any inspection, then Purchaser
may, at its election, either waive such compliance or performance by Seller and
proceed to Closing, or extend the Closing Date for such period of time (not to
exceed thirty (30) days) deemed appropriate by Purchaser in which event the
substituted Closing Date shall thereafter be and constitute the Closing Date
hereunder.
14.3 Limitation on Damages. Notwithstanding any other provision to the
contrary set forth in this Agreement, but without in any way limiting any
party's indemnification obligations hereunder, no party hereto shall be liable
to any other party hereto for any incidental, consequential, special, exemplary
or punitive damages arising out of or in connection with this Agreement,
regardless of whether the breaching or defaulting party knew or should have
known of the possibility of such damages, and without regard to the nature of
the claim or the underlying theory or cause of action, and each party hereby
waives its right to all such remedies and damages.
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ARTICLE 15
SPECIAL PROVISIONS
Notwithstanding anything to the contrary herein, satisfaction of the
provisions of this Article 15 shall be a further express condition precedent to
the obligations of Purchaser to close the transaction contemplated hereby.
15.1 Financing. Purchaser shall seek to obtain the commitment from a
lender ("Purchaser's Lender") to provide financing (the "Financing") for the
acquisition of the Project on terms and conditions satisfactory to Purchaser in
its sole discretion and agrees to keep Seller reasonably informed of its
progress in obtaining the Financing. If Purchaser's Lender refuses to fund the
purchase or Purchaser is otherwise unable to obtain such financing, then
Purchaser shall have the absolute and unfettered right, at any time prior to and
on the Closing Date, to terminate this Agreement by sending written notice of
such termination to Seller and the Title Company, whereupon the Title Company
shall return the ▇▇▇▇▇▇▇ Money to Purchaser and the parties hereto shall have no
further obligations under this Agreement, except as may otherwise be provided
herein. Seller agrees to execute, such estoppel certificates, subordination,
nondisturbance and attornment agreements, and other instruments as Purchaser's
Lender may reasonably require in connection with such financing. To the extent
permitted by, and subject to the conditions of, Article 7, Seller further agrees
to cooperate with Purchaser's Lender and to allow such lender and its
contractors, appraisers and representatives reasonable access to the Project to
inspect same and to perform such other due diligence in connection with the loan
as they may reasonably deem necessary; subject, however, to the provisions set
forth in Article 16 hereof. In addition, Seller agrees that Purchaser may share
all studies, tests, reports, financial data and other information regarding the
Project provided by Seller to Purchaser with Purchaser's Lender and prospective
lenders. Purchaser agrees to repair any physical damage to the Project caused by
Purchaser's Lender's entry onto the Project.
15.2 Lease. At Closing, Seller and Purchaser shall execute and enter into
the Lease upon terms and in a form mutually agreeable to both parties. The Lease
shall grant Seller (Tenant) a license for use of the Incidental Rights and Plans
and the Property Agreements, which license shall be coterminous with the Lease.
15.3 Due Diligence Materials. Seller shall deliver all due diligence
materials as reasonably requested by Purchaser, except as provided for in
Article 8, Paragraph 20.
20
ARTICLE 16
REVIEW PERIOD
For the purposes of this Agreement, the term "Review Period" shall mean
the period of time commencing on the Effective Date, and expiring sixty (60)
days thereafter. During the Review Period, Purchaser, at Purchaser's expense,
may review all of the documents, items, information and materials reasonably
requested by Purchaser and delivered by Seller, and, subject to the other
provisions of this Agreement, including Article 7, may conduct soil tests,
structural tests, and such other engineering and economic feasibility tests and
studies and such other inspections or investigations with respect to the
Project, as Purchaser may desire or deem appropriate. Seller agrees to cooperate
with and assist Purchaser in the physical inspection of the Project and the
inspection of such documents, items, information and materials, provided that
such inspection shall be conducted during normal business hours or at such other
time as is reasonable and necessary to conduct the inspection, and shall not
unreasonably interfere with the normal business of Seller. If, within the Review
Period, Purchaser shall, for any reason, in Purchaser's sole and absolute
discretion, be dissatisfied with any aspect of the Project, then Purchaser shall
have the absolute and unfettered right to terminate this Agreement by sending
written notice of such termination to Seller at any time prior to the expiration
of the Review Period. In the event that Purchaser terminates this Agreement, as
provided above, the Title Company shall return the ▇▇▇▇▇▇▇ Money to Purchaser
and the parties hereto shall have no further obligations under this Agreement,
except as may be otherwise provided herein.
ARTICLE 17
MISCELLANEOUS
17.1 Cooperation; Further Documents.
(1 Each of the parties hereto agrees to use its reasonable efforts
to take or cause to be taken all action, and to do or cause to be done all
things necessary, proper or advisable under applicable Governmental
Requirements, regulations or otherwise, to consummate and to make
effective the transactions contemplated by this Agreement, including,
without limitation, the timely performance of all actions and things
contemplated by this Agreement to be taken or done by each of the parties
hereto.
(2 Each party shall reasonably cooperate with the other party in
such other party's discharge of the obligations hereunder, which shall
include making reasonably available to the other party (but if after the
Closing Date, at the other party's direct out-of-pocket expense), such of
its personnel as have relevant information with respect thereto.
(3 Seller shall from time to time, at the reasonable request of
Purchaser, execute and deliver such instruments of transfer, conveyance
and assignment in addition to those delivered contemporaneously herewith
and at the Closing, and take such other action as Purchaser may reasonably
21
require to more effectively transfer, convey and assign to and vest in
Purchaser, and to put Purchaser in possession of, any assets being
transferred, conveyed, assigned and delivered by Seller pursuant to this
Agreement.
17.2 No Partnership. This Agreement is a contract of purchase and sale
only and is not intended and shall not be construed to create any association,
trust, partnership, joint venture, agency or any other relationship between
Purchaser and Seller.
17.3 Savings Clause. Should any provision of this Agreement be held
unenforceable or invalid under the laws of the United States of America or the
State of Florida, or under any other applicable laws of any other jurisdiction,
then the parties hereto agree that such provision shall be deemed modified for
purposes of performance of this Agreement in such jurisdiction to the extent
necessary to render it lawful and enforceable, or if such a modification is not
possible without materially altering the intention of the parties hereto, then
such provision shall be severed herefrom for purposes of performance of this
Agreement in such jurisdiction. The validity of the remaining provisions of this
Agreement shall not be affected by any such modification or severance, except
that if any severance materially alters the intentions of the parties hereto as
expressed herein (a modification being permitted only if there is no material
alteration), then the parties hereto shall use commercially reasonable efforts
to agree to appropriate equitable amendments to this Agreement in light of such
severance.
17.4 Survival. Except as may otherwise be expressly set forth herein, each
and every indemnification obligation, warranty, representation, covenant and
agreement of Seller and Purchaser contained herein shall survive the execution,
delivery and Closing (if any) of this Agreement for a period of one (1) year
from and after the Closing Date or, if no Closing shall occur, for a period of
two (2) years from and after the date of termination of this Agreement, and
shall not be merged into the Deed (if any) or any other document executed and
delivered prior to or at the Closing, but shall expressly survive and be binding
thereafter on Seller and Purchaser, respectively. No inspections or examinations
of the Project or the books, records, or information relative thereto by
Purchaser shall diminish or otherwise affect Seller's indemnification
obligations, representations, warranties, covenants and agreements relative
thereto, and Purchaser may continue to rely thereon, except that if Purchaser
has actual knowledge that a representation or warranty of Seller is false prior
to Closing, but nevertheless agrees to close the transaction contemplated
hereby, then Purchaser may not later seek recovery from Seller on such false
representation or warranty.
17.5 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Florida.
17.6 Cumulative Rights. Except as may otherwise be set forth herein, all
rights, powers and privileges conferred hereunder upon the parties shall be
cumulative and not restrictive of those given by law.
22
17.7 No Waiver By Conduct. The failure of either party to exercise any
power given such party hereunder or to insist upon strict compliance by the
other party with its obligations hereunder shall not, and no custom or practice
of the parties at variance with the terms hereof, shall constitute a waiver of
such parties rights to demand exact compliance with the terms hereof.
17.8 Entire Agreement. This Agreement, including the exhibits, annexes and
schedules attached hereto, constitutes the entire agreement and understanding
between the parties hereto relating to the sale and purchase of the Project, and
supersedes all prior and contemporaneous agreements and undertakings of the
parties in connection therewith. No statements, agreements, covenants,
understandings, representations, warranties or conditions not expressed in this
Agreement shall be binding upon the parties hereto, or shall be effective to
interpret, change, or restrict provisions of this Agreement, unless such is in
writing, signed by both parties hereto and by reference made a part hereof. This
Agreement may not be modified or amended except by a subsequent agreement in
writing signed by Seller and Purchaser.
17.9 Assignment. Seller shall not assign, transfer, or mortgage Seller's
interest in this Agreement. Seller expressly agrees that Purchaser shall have
the absolute right to assign and transfer Purchaser's interest in the Project
and in this Agreement to any special purpose entity at Closing without the need
to obtain the consent of Seller, and in the event of any such assignment, such
assignee shall succeed to all the interests and rights so assigned as though
such assignee had executed this Agreement, and Purchaser shall thereafter be
relieved of obligations hereunder.
17.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
17.11 Binding Effect. Subject to the restrictions set forth in Section
17.9 hereof, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
17.12 Time. Time is of the essence with respect to this Agreement, and the
respective time periods set forth herein.
17.13 Captions. The captions in this Agreement are inserted for
convenience and reference only, and shall in no way affect, define, limit or
describe the scope, intent or construction of any provision hereof.
17.14 Pronouns. Pronouns, wherever used herein, and of whatever gender,
shall include natural persons and corporations and associations of every kind
and character, and the singular shall include the plural wherever and as often
as may be appropriate.
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17.15 Construction of Agreement. The terms and provisions of this
Agreement represent the results of negotiations between Seller and Purchaser,
each of which has been represented by counsel of its own choosing, and neither
of which has acted under duress or compulsion, whether legal, economic or
otherwise. Accordingly, the terms and provisions of this Agreement shall be
interpreted and construed in accordance with their usual and customary meanings,
and Seller and Purchaser hereby waive the application in connection with the
interpretation and construction of this Agreement of any rule of law to the
effect that ambiguous or conflicting terms or provisions contained in this
Agreement shall be interpreted or construed against the party whose attorney
prepared the executed draft or any earlier draft of this Agreement.
17.16 Third Party Beneficiaries. Except as expressly set forth herein,
nothing in this Agreement is intended or shall operate to create any rights of
any nature in favor of any person, association or entity that is not a party to
this Agreement.
17.17 Recordation. Neither Seller nor Purchaser shall record this
Agreement in the Real Property Records without the prior written consent of the
other party.
17.18 Subleases, Liability Insurance, and Confidentiality. Notwithstanding
anything in this Agreement to the contrary: (a) Seller may enter into subleases
and while such subleases will not be a Seller default under this Agreement, if
Purchaser does not approve of the subleases, Purchaser may cancel this
Agreement; (ii) Purchaser's liability insurance shall be for at least $1,000,000
per occurrence; and (iii) Purchaser shall treat as confidential Seller's
non-public information, but this limitation shall not be applicable to
information relating to the real estate that is the subject of this sale.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the
date shown to the left of their respective signatures.
SELLER:
SUPERSTOCK, INC., a Florida corporation
Date: ____________________
By:
-----------------------------------------------------
Name:
---------------------------------------------------
Title:
--------------------------------------------------
PURCHASER:
Date: ____________________
NL VENTURES IV, L.P., a Texas limited
partnership
By: AIC NET LEASE MANAGEMENT IV,
L.P., a Texas limited partnership, its sole
General Partner
By: AIC OPCO IV, L.L.C.
a Texas limited liability company,
its sole General Partner
----------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
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Receipt of a fully executed copy of this Agreement is hereby acknowledged,
and the undersigned Title Company agrees to perform the duties of the Title
Company set forth in the foregoing Agreement as and when called upon to do so.
TITLE COMPANY:
-------------
FIDELITY NATIONAL TITLE COMPANY
By:
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Date:
---------------------------------------
26
ANNEX A
General Definitional Provisions
(1 All terms defined in this Agreement shall have their defined meanings
when used in each certificate, exhibit, schedule, annex or other instrument
related thereto, unless in any case the context states or implies otherwise; and
when required by the context, each term shall include the plural as well as the
singular, and vice versa.
(2 Definitions of each person or entity specifically defined herein,
unless otherwise expressly provided to the contrary, include the successors,
assigns, heirs and legal representatives of each such person or entity.
(3 Unless the context otherwise requires or unless otherwise expressly
provided, references to this Agreement shall include all amendments,
modifications, supplements and restatements thereof or thereto, as applicable,
and as in effect from time to time.
Defined Terms
The terms defined in this Annex A shall, for all purposes of this
Agreement, have the meanings herein specified.
"Actual Knowledge" shall mean the actual knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇.
"Closing" shall have the meaning ascribed to such term in Section 10.1
hereof.
"Closing Date" shall have the meaning ascribed to such term in Section
10.1 hereof.
"Construction Contracts" shall have the meaning ascribed to such term in
Section 2.3 hereof.
"Deed" shall have the meaning ascribed to such term in Section 11.2(1)
hereof.
"Environmental Conditions" means any and all acts, omissions, events,
circumstances, and conditions on or in connection with the Realty or the Project
that constitute a violation of, or require remediation under, any Environmental
Laws, including any pollution, contamination, degradation, damage, or injury
caused by, related to, or arising from or in connection with the generation,
use, handling, treatment, storage, disposal, discharge, emission or release of
Hazardous Materials.
"Environmental Laws" means all applicable federal, state, local or
municipal laws, rules, regulations, statutes, ordinances or orders of any
Governmental Authority, relating to (a) the control of any potential pollutant,
or protection of health or the air, water or land, (b) solid, gaseous or liquid
27
waste generation, handling, treatment, storage, disposal, discharge, release,
emission or transportation, (c) exposure to hazardous, toxic or other substances
alleged to be harmful, (d) the protection of any endangered or at-risk plant or
animal life, or (e) the emission, control or abatement of noise. "Environmental
Laws" shall include, but not be limited to, the Clean Air Act, 42 U.S.C. ss.
7401 et seq., the Clean Water Act, 33 U.S.C. ss. 1251 et seq., the Resource
Conservation Recovery Act ("RCRA"), 42 U.S.C. ss. 6901 et seq., the Toxic
Substances Control Act, 15 U.S.C. ss. 2601 et seq., the Endangered Species Act,
16 U.S.C. ss. 1531 et seq., the Safe Drinking Water Act, 42 U.S.C. ss. 300f et
seq., and the Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. ss. 9601 et seq., including the Superfund Amendments
and Reauthorization Act, 42 U.S.C. ss. 11001, et seq. The term "Environmental
Laws" shall also include all applicable state, local and municipal laws, rules,
regulations, statutes, ordinances and orders dealing with the subject matter of
the above listed federal statutes or promulgated by any governmental or
quasi-governmental agency thereunder in order to carry out the purposes of any
federal, state, local or municipal law.
"Environmental Liabilities" means any and all liabilities,
responsibilities, claims, suits, losses, costs (including remedial, removal,
response, abatement, clean-up, investigative and/or monitoring costs and any
other related costs and expenses), other causes of action recognized now or at
any later time, damages, settlements, expenses, charges, assessments, liens,
penalties, fines, pre-judgment and post-judgment interest, attorneys' fees and
other legal costs incurred or imposed (a) pursuant to any agreement, order,
notice of responsibility, directive (including directives embodied in
Environmental Laws), injunction, judgment or similar documents (including
settlements) arising out of, in connection with, or under Environmental Laws,
(b) pursuant to any claim by a Governmental Authority or any other person or
entity for personal injury, property damage, damage to natural resources,
remediation, or payment or reimbursement of response costs incurred or expended
by such Governmental Authority, person or entity pursuant to common law or
statute and related to the use or release of Hazardous Materials, or (c) as a
result of Environmental Conditions.
"Environmental Permits" means any permits, licenses, approvals, consents,
registrations, identification numbers or other authorizations with respect to
the Project or the ownership or operation thereof required under any applicable
Environmental Law.
"Governmental Authority" means any and all foreign, federal, state or
local governments, governmental institutions, public authorities and
governmental entities of any nature whatsoever, and any subdivisions or
instrumentalities thereof, including, but not limited to, departments, boards,
bureaus, commissions, agencies, courts, administrations and panels, and any
divisions or instrumentalities thereof, whether permanent or ad hoc and whether
now or hereafter constituted or existing.
"Governmental Requirements" means any and all laws (including, but not
limited to, applicable common law principles), statutes, ordinances, codes,
rules, regulations, interpretations, guidelines, directions, orders, judgments,
writs, injunctions, decrees, decisions or similar items or pronouncements,
promulgated, issued, passed or set forth by any Governmental Authority.
28
"Hazardous Materials" means any (a) petroleum or petroleum products, (b)
asbestos or asbestos containing materials, (c) hazardous substances as defined
by ss. 101(14) of CERCLA and (d) any other chemical, substance or waste that is
regulated by any Governmental Authority under any Environmental Law.
"Incidental Rights" shall have the meaning ascribed to such term in
Section 2.3 hereof.
"Improvements" shall have the meaning ascribed to such term in Section 2.1
hereof.
"Land" shall have the meaning ascribed to such term in Section 2.1 hereof.
"Lease" shall have the meaning ascribed to such term in the recitals
hereof.
"Permitted Exceptions" shall have the meaning ascribed to such term in
Section 6.1 hereof.
"Personalty" shall have the meaning ascribed to such term in Section 2.2
hereof.
"Plans" shall have the meaning ascribed to such term in Section 2.4
hereof.
"Project" shall mean the Realty, the Personalty, the Incidental Rights,
the Plans and all other property and interests that are subject to this
Agreement.
"Property Agreements" shall have the meaning ascribed to such term in
Section 2.3 hereof.
"Purchaser's Lender" shall have the meaning ascribed to such term in
Section 15.1 hereof.
"Realty" shall have the meaning ascribed to such term in Section 2.1
hereof.
"Review Period" shall have the meaning ascribed to such term in Article 16
hereof.
"Survey" shall have the meaning ascribed to such term in Section 5.1
hereof.
"Title Commitment" shall have the meaning ascribed to such term in Section
6.1 hereof.
"Title Company" shall mean Fidelity National Title Company, located at
Three Lincoln Center, Suite 260, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇; (972)
770-2120, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Total Purchase Price" shall have the meaning ascribed to such term in
Section 4.1 hereof.
"UCC Report" shall have the meaning ascribed to such term in Section 6.2
hereof.
29
EXHIBIT A
Land Description
A-1
SCHEDULE 2.3
SCHEDULE 6.3
1. Zoning regulations and ordinances which are not violated by the
existing structures or present use thereof.
2. Consents by Seller or any former owner of the Project for the erection
of any structure or structures on, under or above any street or streets on which
the Project may abut, provided same would not unreasonably interfere with the
current use of the Project.
3. Any and all covenants, restrictions, easements and agreements of record
provided the same do not (i) prohibit the maintenance of the structure or
structures now on the Project or (ii) interfere with the use of the Project for
its present use or (iii) allow a lien to enforce payment of any fees, dues or
assessments.